Judge Gito - Remedial Law - Civil Procedure Part 2 Compressed

MODES OF DISCOVERY
Modes of Discovery
(Rule 23-29)
Deposition Pending Action (Rule 23)
Deposition before action or pending appeal (Rule 24)
Interrogatories to parties (Rule 25)
Admission by adverse party (Rule 26)
Production or Inspection of Documents (Rule 27)
Physical or mental examination of Persons (Rule 28)

Deposition
It is the taking of testimony of

any person, whether he be a
party or not, but at the
instance of a party to the
action. This testimony is taken
out of court.
Two situation where Deposition is taken
Please take NOTE:
If deposition is
taken pending
•Deposition de
action, it is called: benne esse
If deposition is
taken before
existence of the
•In perpetuam rei
action, for appeal, it
is called:
memoriam
Is it necessary to ask permission from the
court for the taking of deposition if there is a
pending action?
 Yes.Because deposition can be taken upon ex-
parte motion from a party (Sec. 1, Rule 23).
 Thus, the requirement that it should be by
leave of court after jurisdiction has been
obtained over any defendant or over property
which is the subject of the action, or without
such leave after an answer has been served, is
not anymore necessary.
RULE 23
DEPOSITIONS PENDING ACTION
1997 Rules of Civil Procedure 2019 Amendments
Section 1. Depositions pending action, when may Section 1. Depositions pending action, when may
be taken. — By leave of court after jurisdiction be taken. — Upon ex parte motion of a
has been obtained over any defendant or over party, the testimony of any person, whether a
property which is the subject of the action, or party or not, may be taken, at the instance of
without such leave after an answer has been any party, by deposition upon oral examination
served, the testimony of any person, whether a or written interrogatories. The attendance of
party or not, may be taken, at the instance of witnesses may be compelled by the use of a
any party, by deposition upon oral examination subpoena as provided in Rule 21. Depositions
or written interrogatories. The attendance of shall be taken only in accordance with these
witnesses may be compelled by the use of a Rules. The deposition of a person confined in
subpoena as provided in Rule 21. Depositions prison may be taken only by leave of court on
shall be taken only in accordance with these such terms as the court prescribes.
Rules. The deposition of a person confined in
prison may be taken only by leave of court on
such terms as the court prescribes.
How is deposition taken?
Deposition upon oral

examination
Deposition upon written
interrogatories
Before whom may deposition be taken?
It 1) judge; 2) notary public; 3) person

depends If deposition authorized to administer oath.
will be taken
within the
Secs.
Philippines:
10 &
If in foreign 1) secretary of embassy or legation; 2)
11 consul general; 3) consul; 4) vice
Rule 3 country: consul; 5) consular agent; 6) person as
may be appointed by commission or
letters rogatory; 7) person authorized
to administer oath.
Commission vs. Letters Rogatory
 Commission – is  Letters Rogatory – is an
instrument whereby the foreign
authorization given to court is informed of the
somebody, other than pendency of the case and in the
consular officers, to take name of a foreign witnesses, and
the deposition of the is requested to cause their
depositions to be taken in due
deponent. It is usually course of law, for the
issued when the Philippines furtherance of justice, with an
has no consular office in a offer of the party of the court
making the request, to do like
particular country. for the other, in similar case.
Section 12, Rule 23
 Commission or Letters Rogatory. — A

commission or letters rogatory shall be issued only
when necessary or convenient, on application and
notice, and on such terms and with such direction as
are just and appropriate. Officers may be designated
in notices or commissions either by name or
descriptive title and letters rogatory may be
addressed to the appropriate judicial authority in the
foreign country.
Dulay vs. Dulay, 474 SCRA 674
 Leave of court is not required when deposition is to be
taken before secretary of embassy or legation, consul
general, consul, vice-consul or consular agent of the RP and
defendant’s answer has already been served. However, if
deposition is to be taken in foreign country where the
Philippine has no secretary of embassy or legation, consul
general, consul, vice-consul or consular agent, it may be
taken by person as may be appointed by commission. The
authentication made by the consular officer was a
ratification of the authority of the notary public who took
the questioned depositions.
Whose deposition may be taken?
 Any person, whether a party or not, may be taken
 Sec. 1, Rule 23
 Section 15. Deposition upon oral examination; notice;
time and place. — A party desiring to take the deposition of
any person upon oral examination shall give reasonable
notice in writing to every other party to the action. The
notice shall state the time and place for taking the deposition
and the name and address of each person to be
examined, if known, and if the name is not known, a general
description sufficient to identify him or the particular class or
group to which he belongs. On motion of any party upon
whom the notice is served, the court may for cause shown
enlarge or shorten the time.
 Section 16. Orders for the protection of parties and depositions.

 Section 17. Record of examination; oath; objections.
 Section 18. Motion to terminate or limit examination.
 Section 19. Submission to witness; changes; signing.
 Section 20. Certification and filing by Officer.
 Section 21. Notice of filing
 Section 22. Furnishing of copies
 Section 23. Failure to attend of party giving notice
 Section 24. Failure of the party giving notice to subpoena
Deposition upon written interrogatories
 SECTION 25. Deposition Upon Written Interrogatories; Service of
Notice and of Interrogatories. — A party desiring to take the deposition
of any person upon written interrogatories shall serve them upon every
other party with a notice stating the name and address of the person who is
to answer them and the name or descriptive title and address of the officer
before whom the deposition is to be taken. Within ten (10) days thereafter, a
party so served may serve cross-interrogatories upon the party proposing
to take the deposition. Within five (5) days thereafter the latter may serve
re-direct interrogatories upon a party who has served cross-interrogatories.
Within three (3) days after being served with re-direct interrogatories, a
party may serve re-cross-interrogatories upon the party proposing to take
the deposition.
 SECTION 26. Officers to Take Responses and
Prepare Record. — A copy of the notice and copies of
all interrogatories served shall be delivered by the party
taking the deposition to the officer designated in the
notice, who shall proceed promptly, in the manner
provided by Sections 17, 19 and 20 of this Rule, to take
the testimony of the witness in response to the
interrogatories and to prepare, certify, and file or mail
the deposition, attaching thereto the copy of the notice
and the interrogatories received by him.
 SECTION 27. Notice of Filing and Furnishing Copies. — When a
deposition upon interrogatories is filed, the officer taking it shall
promptly give notice thereof to all the parties, and may furnish
copies to them or to the deponent upon payment of reasonable
charges the
 SECTION 28. Orders for the Protection of Parties and
Deponents. — After the service of the interrogatories and prior
to the taking of the testimony of the deponent, the court in which
the action is pending, on motion promptly made by a party or a
deponent, and for good cause shown, may make any order specified
in Sections 15, 16 and 18 of this Rule which is appropriate and just
or an order that the deposition shall not be taken before the officer
designated in the notice or that it shall not be taken except upon
oral examination. refor.
Supposing the party sought to be
examined refused to appear?
 The attendance of witnesses may be compelled by the

use of subpoena under Rule 21.
 Sec. 1, Rule 23.

Where do you apply the sub-poena?
 RULE 21
 SECTION 5. Subpoena for depositions. — Proof of service of

a notice to take a deposition, as provided in Sections 15 and 25 of
Rule 23, shall constitute sufficient authorization for the issuance
of subpoenas for the persons named in said notice by the clerk
of the court of the place in which the deposition is to be
taken. The clerk shall not, however, issue a subpoena duces tecum
to any such person without an order of the court.
 In short, the court of the place where the deposition shall be
taken.
What may be asked during the taking of
deposition?
 RULE 23
 SECTION 2. Scope of examination. — Unless otherwise
ordered by the court as provided by Section 16 or 18 of
this Rule, the deponent may be examined regarding any
matter, not privileged, which is relevant to the
subject of the pending action, whether relating to the
claim or defense of any other party, including the existence,
description, nature, custody, condition, and location of any
books, documents, or other tangible things and the identity
and location of persons having knowledge of relevant facts.
Limitations on deposition taking:
Matter inquired into is not privilege.
Matter inquired into is relevant pending action.
Court may issue order to protect the parties (Sec.

16 & 18).
When is objection made on the
admissibility of the deposition?
 SECTION 6.Objections to Admissibility. —

Subject to the provisions of Section 29 of this
Rule, objection may be made at the trial
or hearing to receiving in evidence any
deposition or part thereof for any reason which
would require the exclusion of the evidence if
the witness were then present and testifying.
Sec. 4, Rule 23
Use of Deposition:
In what • Trial
proceedings • Hearing of motion
may it be used • Hearing of interlocutory proceeding
• Against any party who was present

Against whom
• Against a party who was not
may it be sued present but notified
For what purpose it may be used:
 A. For impeaching purposes if the
deponent is a witness
 B. It may be used for any purpose if the
deponent is a party
 C. It may be used for any purpose if:
◦ 1) that the witness is dead; or
◦ 2) that the witness resides at a distance more than
one hundred (100) kilometers from the place of trial
or hearing, or is out of the Philippines, unless it
appears that his absence was procured by the party
offering the deposition; or
◦ 3) that the witness is unable to attend or testify
because of age, sickness, infirmity, or imprisonment; or
 C. It may be used for any purpose if:
◦ 4) that the party offering the deposition has been
unable to procure the attendance of the witness by
subpoena; or
◦ 5) upon application and notice, that such exceptional
circumstances exist as to make it desirable, in the
interest of justice and with due regard to the
importance of presenting the testimony of witnesses
orally in open court, to allow the deposition to be used.
(Sec.4, Rule)
Effect of using deposition
 Section 8. Effect of Using Depositions. — The

introduction in evidence of the deposition or any
part thereof for any purpose other than that of
contradicting or impeaching the deponent makes
the deponent the witness of the party
introducing the deposition, but this shall not
apply to the use by an adverse party of a deposition
as described in paragraph (b) of Section 4 of this
rule.
Effect of taking depositions
 SECTION 7. Effect of Taking

Depositions. — A party shall not be
deemed to make a person his own
witness for any purpose by taking his
deposition.
Rule 24
Deposition before Action, or Pending Appeal
 SECTION 1. Depositions Before Action; Petition. — A

person who desires to perpetuate his own testimony or
that of another person regarding any matter that may be
cognizable in any court of the Philippines, may file a
verified petition in the court of the place of the
residence of any expected adverse party.
 The same as Rule 134 – Perpetuation of Testimony

Contents of petition
 (a) that the petitioner expects to be a party to an action
 (b) the subject matter of the expected action and his interest therein;
 (c) the facts which he desires to establish by the proposed testimony and
his reasons for desiring to perpetuate it;
 (d) the names or a description of the persons he expects will be adverse
parties and their addresses so far as known; and
 (e) the names and addresses of the persons to be examined and the
substance of the testimony which he expects to elicit from each, and shall
ask for an order authorizing the petitioner to take the depositions of the
persons to be examined named in the petition for the purpose of
perpetuating their testimony.(Section 2, Rule 24).
Procedure
Petitioner shall If the court is

Deposition
File Petition serve notice to satisfied, it shall
taking will
all person issue order
(Sec. 2) follow Rule 23.
named in the granting the
(sec. 4)
petition. (Sec. 3) petition. (Sec. 4)
Deposition pending appeal
 If an appeal has been taken from a judgment of a court,
including the Court of Appeals in proper cases, or before the
taking of an appeal if the time therefor has not expired, the
court in which the judgment was rendered may allow the
taking of depositions of witnesses to perpetuate their
testimony for use in the event of further proceedings in the
said court. In such case the party who desires to perpetuate
the testimony may make a motion in the said court for leave
to take the depositions, upon the same notice and service
thereof as if the action was pending therein. (Sec. 7, Rule 24)
Contents of the Motion
The motion shall state:
(a) the names and addresses of

the persons to be examined
(b) the reason for
and the substance of the
perpetuating their testimony.
testimony which he expects to
elicit from each; and
Rule 25
Interrogatories to Parties
 SECTION 1. Interrogatories to Parties; Service
Thereof. — Under the same conditions specified in Section
1 of Rule 23, any party desiring to elicit material and
relevant facts from any adverse parties shall file and serve
upon the latter written interrogatories to be answered by
the party served or, if the party served is a public or private
corporation or a partnership or association, by any officer
thereof competent to testify in its behalf.
 N.B. Written interrogatories are directed to adverse party,
not to strangers.
Interrogatories under Rule 23 & Rule 25
 Rule 23  Rule 25
 There is deposition  No deposition
officer officer
 Questions are  Directed to parties
prepared beforehand  Not applicable to
 Party or not may be stranger
taken
Scope and use of interrogatories
 SECTION 5. Scope and Use of

Interrogatories. — Interrogatories
may relate to any matters that can be
inquired into under Section 2 of Rule 23,
and the answers may be used for the
same purposes provided in Section 4 of
the same Rule.
Effect of failure to serve written
interrogatories
 SECTION 6. Effect of Failure to Serve

Written Interrogatories. — Unless
thereafter allowed by the court for good cause
shown and to prevent a failure of justice, a
party not served with written
interrogatories may not be compelled by
the adverse party to give testimony in open
court, or to give a deposition pending appeal.
Rule 26
Admission by adverse party
 SECTION 1. Request for Admission. — At any time
after issues have been joined, a party may file and
serve upon any other party a written request for the
admission by the latter of the genuineness of any material
and relevant document described in and exhibited with
the request or of the truth of any material and relevant
matter of fact set forth in the request. Copies of the
documents shall be delivered with the request unless
copies have already been furnished.
Implied admission
 SECTION 2. Implied Admission. — Each of the matters of
which an admission is requested shall be deemed admitted
unless, within a period designated in the request, which shall not
be less than fifteen (15) days after service thereof, or within
such further time as the court may allow on motion, the party
to whom the request is directed files and serves upon the party
requesting the admission a sworn statement either denying
specifically the matters of which an admission is requested or
setting forth in detail the reasons why he cannot truthfully
either admit or deny those matters.
Objection to admission
 Objections to any request for admission shall be
submitted to the court by the party requested
within the period for and prior to the filing of his
sworn statement as contemplated in the preceding
paragraph and his compliance therewith shall be
deferred until such objections are resolved, which
resolution shall be made as early as practicable (Sec.
2, Rule 26).
Effect of admission
 SECTION 3. Effect of Admission. — Any

admission made by a party pursuant to such
request is for the purpose of the pending
action only and shall not constitute an
admission by him for any other purpose nor
may the same be used against him in any
other proceeding.
Effect of failure to file and serve request
 SECTION 5. Effect of Failure to File and
Serve Request for Admission. — Unless
otherwise allowed by the court for good cause
shown and to prevent a failure of justice, a party
who fails to file and serve a request for admission
on the adverse party of material and relevant facts
at issue which are, or ought to be, within the
personal knowledge of the latter, shall not be
permitted to present evidence on such facts.
If the actionable document is already denied
under oath, it need not be subject of request
for admission.
 Po vs. CA, 164 SCRA 668

 A party should not be compelled to admit
matters of fact already admitted by his
pleading and concerning which there is no
issue, nor should he be required to make a
second denial of those already denied in his
answer to the complaint.
If the request is addressed to the lawyer of the
adverse party and the latter did not answer the
request, would it have the effect of admitting
the matters subject of the request?
 No. The SC held that request for admission must be

served directly upon the party requested. Otherwise,
that party cannot be deemed to have admitted the
genuineness of any relevant matters of the fact set forth
therein on account of the failure to answer the request
for admission (Lanada vs. CA, GR. No. 102390,
February 1, 2002).
Rule 27
Production or Inspection of documents
 Motion for production or inspection
 A) To produce and permit the inspection and copying or

photographing, x x x x any designated documents, papers,
books, accounts, letters, photographs, objects or tangible
things, not privileged, which constitute or contain evidence
material to any matter involved in the action and which are in
his possession, custody or control.
 To permit entry upon designated land or other property in
possession and control of the other party (Sec. 1, Rule 27);
Requisites:
 a) The party must file a motion for the production or inspection
of documents or things, showing good cause therefor;
 b) Notice of the motion must be served to all other parties of the
case;
 c) The motion must designate the documents, papers, books,
accounts, letters, photographs, objects or tangible things which
the party wishes to be produced and inspected;
 d) Such documents, etc. are not privileged;
 e) Such documents, etc. constitute or contain evidence material to
any matter involved in the action; and
 f) Such documents, etc. are in the possession, custody or control
of the other party (Security Bank vs. CA, 323 SCRA 330)
Distinguish Rule 27 from Subpoena Duces
Tecum
 There is a need to show good cause for production or
inspection of documents while good cause is not
required in subpoena duces tecum.
 An order for production or inspection of documents can
only be directed to a party while subpoena duces tecum
may be directed to a non-party.
 An order for production or inspection of documents is a
pre-trial device to obtain fact to prepare for trial while
subpoena duces tecum is a process used during trial
proper.
Cases
 Chan vs. Chan, July 24, 2013
 If sought to be examined is a record regarding the drug
rehabilitation of a party, then such matter cannot be the
subject of an order for examination of documents because it
is a matter of privilege.
 Insigne vs.Abra Valley Colleges, July 29, 2015
 In a complaint for inspection of corporate books, the plaintiff
can file for a motion for production/inspection of documents
to compel the defendant to produce the stock-and-transfer
book, even if the latter interpose the defense that plaintiff is
not a stockholder.
Rule 28
Physical or Mental Examination
 Section 1. When examination may be ordered.
 N.B. In an action in which the mental or physical condition
of a party is in controversy.
 Examples:
◦ Action for annulment of contract on the ground of
insanity
◦ Petition for guardianship of a person alleged to be insane
◦ Action to recover damages for personal injury where the
issue is the extent of the injuries of the plaintiff
What is the effect if the party refused to be
examined?
 The requesting party may request from the Court
an Order that the designated facts subject of the
request shall be deemed established (Sec. 3(a),
Rule 29).
 BUT:
 The party sought to be examined cannot be
arrested, even if he refused the follow the order
of the court (Sec. 3(d), Rule 29).
What is the effect if the party examined requests and
obtains a report of the examination so ordered or take
the deposition of the examiner?
 SECTION 4. Waiver of Privilege. — By requesting

and obtaining a report of the examination so ordered or
by taking the deposition of the examiner, the party
examined waives any privilege he may have in that action
or any other involving the same controversy, regarding
the testimony of every other person who has examined
or may thereafter examine him in respect of the same
mental or physical examination (Rule 28).
What if the party examined refused to deliver the
report or the physician fails to make such report,
what is the remedy of the requesting party?
 If the party examined refuses to deliver such

report, the court on motion and notice may
make an order requiring delivery on such terms
as are just, and if a physician fails or refuses to
make such a report the court may exclude his
testimony if offered at the trial (Sec. 3e, Rule
28).
Rule 29
Refusal to Comply with Modes of Discovery
 SECTION 1. Refusal to Answer. — x x x x x The
proponent may thereafter apply to the proper court of the
place where the deposition is being taken, for an order to
compel an answer. The same procedure may be availed of
when a party or a witness refuses to answer any
interrogatory submitted under Rules 23 or 25.
 NOTE:
 This is applicable in taking of deposition under Rule 23 and
25
Other consequences of refusal to answer question
during deposition, or order production or inspection of
documents or things under Rule 27 or refused to
submit himself for examination under Rule 28, a party
may ask from the court the following:
 An order that the matters regarding which the questions
were asked, or the character or description of the thing or
land, or the contents of the paper, or the physical or mental
condition of the party, or any other designated facts shall be
taken to be established for the purposes of the action
in accordance with the claim of the party obtaining
the order (Sec. 3(a), Rule 29).
 An order refusing to allow the disobedient party
to support or oppose designated claims or
defenses or prohibiting him from introducing in
evidence designated documents or things or items
of testimony, or from introducing evidence of
physical or mental condition (Sec. 3(b), Rule
29).
 An order striking out pleadings or parts thereof, or staying
further proceedings until the order is obeyed, or dismissing the
action or proceeding or any part thereof, or rendering a
judgment by default against the disobedient party (Sec. 3(c),
Rule 29).
 Please take NOTE:
 This remedy is available in case of failure of the party to attend in
deposition taking or failed to serve answers to written
interrogatories under Rule 25 (Sec. 5, Rule).
submit himself for examination under Rule 28
 Inlieu of any of the foregoing orders or in

addition thereto, an order directing the arrest
of any party or agent of a party for disobeying
any of such orders except an order to submit
to a physical or mental examination. (Sec. 3(d),
Rule 29).
TRIAL
RULE 30
TRIAL
Section 1. Notice of Trial. — Upon entry Section 1. Schedule of trial. — The
of a case in the trial calendar, the clerk parties shall strictly observe the
shall notify the parties of the date of its scheduled hearings as agreed upon
trial in such manner as shall ensure his and set forth in the pre-trial order.
receipt of that notice at least five (5)
days before such date. (2a, R22) (a) The schedule of the trial dates,
for both plaintiff and defendant,
shall be continuous and within the
following periods:
RULE 30
TRIAL
i. The initial presentation of plaintiff’s

evidence shall be set not later than
thirty (30) calendar days after the
termination of the pre-trial conference.
Plaintiff shall be allowed to present its
evidence within a period of three (3)
months or ninety (90) calendar days,
which shall include the date of the
judicial dispute resolution, if necessary;
RULE 30
TRIAL
ii. The initial presentation of
defendant’s evidence shall be set
not later than thirty (30) calendar
days after the court’s ruling on
plaintiff’s formal offer of evidence.
The defendant shall be allowed to
present its evidence within a period
of three (3) months or ninety (90)
calendar days;
RULE 30
TRIAL
iii. The period for the presentation of
evidence on the third (fourth, etc.) –
party claim, counterclaim or cross-
claim shall be determined by the court,
the total of which shall in no case
exceed ninety (90) calendar days; and
iv. If deemed necessary, the court shall

set the presentation of the parties’
respective rebuttal evidence, which
shall be completed within a period of
thirty (30) calendar days.
RULE 30
TRIAL
(b) The trial dates may be shortened
depending on the number of witnesses
to be presented, provided that the
presentation of evidence of all parties
shall be terminated within a period of
ten (10) months or three hundred
(300) calendar days. If there are no
third (fourth, etc.)-party claim,
counterclaim or cross-claim, the
presentation of evidence shall be
terminated within a period of six (6)
months or one hundred eighty (180)
calendar days.
RULE 30
TRIAL
(c) The court shall decide and serve

copies of its decision to the parties
within a period not exceeding
ninety (90) calendar days from the
submission of the case for
resolution, with or without
memoranda. (n)
RULE 30
Section 1
 The new Rules adopts the continuous trial system in
civil cases.
 Under this system, the parties are enjoined to follow
strictly the schedule of trials agreed upon in the pre-
trial order.
 The initial presentation of plaintiff’s evidence shall be
set not later than thirty (30) calendar days after the
termination of the pre-trial conference.
RULE 30
Section 1
 Period to present evidence:

 Plaintiff shall present evidence within a period of three
(3) months or ninety (90) calendar days, which shall
include the date of the judicial dispute resolution, if
necessary;
 The defendant shall present evidence within a period of
three (3) months or ninety (90) calendar days;
RULE 30
Section 1

 The period for the presentation of evidence on the third
(fourth, etc.) – party claim, counterclaim or cross-claim
shall be determined by the court, the total of which shall in
no case exceed ninety (90) calendar days; and
 If deemed necessary, the court shall set the presentation of
the parties’ respective rebuttal evidence, which shall be
completed within a period of thirty (30) calendar days.
RULE 30
Section 1
 The trial dates may be shortened depending on the
number of witnesses to be presented, provided that
the presentation of evidence of all parties shall be
terminated within a period of ten (10) months or three
hundred (300) calendar days. If there are no third
(fourth, etc.)-party claim, counterclaim or cross-claim,
the presentation of evidence shall be terminated within
a period of six (6) months or one hundred eighty (180)
calendar days.
RULE 30
Section 1
 Period to decide the case:

 The court shall decide and serve copies of its decision to
the parties within a period not exceeding ninety (90)
calendar days from the submission of the case for
resolution, with or without memoranda.
RULE 30
Section 1
TRIAL PROCESS
Schedule of trial –
Plaintiff’s evidence Defendant’s
30 days from
– 90 days evidence – 90 days
termination of PT
Third party,
Decision – within
counterclaim, Rebuttal evidence –
90 days from
cross-claim – 90 30 days
submission
days maximum
RULE 30
TRIAL
Section 2. Adjournments and postponements. — A Section 2. Adjournments and postponements. — A
court may adjourn a trial from day to day, and to court may adjourn a trial from day to day, and to
any stated time, as the expeditious and convenient any stated time, as the expeditious and convenient
transaction of business may require, but shall have transaction of business may require, but shall have
no power to adjourn a trial for a longer period no power to adjourn a trial for a longer period
than one month for each adjournment nor more than one month for each adjournment, nor more
than three months in all, except when authorized than three months in all, except when authorized
in writing by the Court Administrator, Supreme in writing by the Court Administrator, Supreme
Court. (3a, R22) Court.
The party who caused the postponement is

warned that the presentation of its evidence
must still be terminated on the remaining
dates previously agreed upon.
(2a)
RULE 30
Section 2
A party may ask for postponement of trial.

 However, under the new Rules, the party who
caused the postponement is warned that the
presentation of its evidence must still be
terminated on the remaining dates previously
agreed upon.
RULE 30
TRIAL
Section 3. Requisites of motion to postpone trial [Section 3. Requisites of motion to
for absence of evidence. — A motion to postpone trial for absence of evidence. —
postpone a trial on the ground of absence of Deleted]
evidence can be granted only upon affidavit
showing the materiality or relevancy of such
evidence, and that due diligence has been used
to procure it. But if the adverse party admits
the facts to be given in evidence, even if he
objects or reserves the right to object to their
admissibility, the trial shall not be postponed.
(4a, R22; Bar Matter No. 803, 21 July 1998)
RULE 30
TRIAL
Section 4. Requisites of motion to postpone Section 3. Requisites of motion to postpone
trial for illness of party or counsel. — A trial for illness of party or counsel. — A
motion to postpone a trial on the ground motion to postpone a trial on the ground
of illness of a party or counsel may be of illness of a party or counsel may be
granted if it appears upon affidavit or granted if it appears upon affidavit or
sworn certification that the presence of sworn certification that the presence of
such party or counsel at the trial is such party or counsel at the trial is
indispensable and that the character of his indispensable and that the character of his
illness is such as to render his non- or her illness is such as to render his or
attendance excusable. (5a, R22) her non-attendance excusable. (4a)
RULE 30
TRIAL
Section 4. Hearing days and calendar call. —
Trial shall be held from Monday to
Thursday, and courts shall call the cases at
exactly 8:30 a.m. and 2:00 p.m., pursuant to
Administrative Circular No. 3-99. Hearing
on motions shall be held on Fridays,
pursuant to Section 8, Rule 15.
All courts shall ensure the posting of their

court calendars outside their courtrooms
at least one (1) day before the scheduled
hearings, pursuant to OCA Circular
No. 250-2015. (n)
RULE 30
TRIAL
Section 5. Order of trial. — Subject to the Section 5. Order of trial. — Subject to the
provisions of section 2 of Rule 31, and unless the provisions of Section 2 of Rule 31, and unless the
court for special reasons otherwise directs, the court for special reasons otherwise directs, the
trial shall be limited to the issues stated in the trial shall be limited to the issues stated in the
pre-trial order and shall proceed as follows: pre-trial order and shall proceed as follows:
(a) The plaintiff shall adduce evidence in support of (a) The plaintiff shall adduce evidence in support of
his complaint; his or her complaint;
(b) The defendant shall then adduce evidence in (b) The defendant shall then adduce evidence in
support of his defense, counterclaim, cross-claim support of his or her defense, counterclaim,
and third-party complaints; cross-claim and third-party complaint;
RULE 30
TRIAL
(c) The third-party defendant if any, shall adduce (c) The third-party defendant, if any, shall adduce
evidence of his defense, counterclaim, cross-claim evidence of his or her defense, counterclaim,
and fourth-party complaint; cross-claim and fourth-party complaint;
(d) The fourth-party, and so forth, if any, shall (d) The fourth-party, and so forth, if any, shall
adduce evidence of the material facts pleaded by adduce evidence of the material facts pleaded by
them; them;
(e) The parties against whom any counterclaim or (e) The parties against whom any counterclaim or
cross-claim has been pleaded, shall adduce cross-claim has been pleaded, shall adduce
evidence in support of their defense, in the order evidence in support of their defense, in the order
to be prescribed by the court; to be prescribed by the court;
RULE 30
TRIAL
(f) The parties may then respectively adduce (f) The parties may then respectively adduce
rebutting evidence only, unless the court, for rebutting evidence only, unless the court, for
good reasons and in the furtherance of justice, good reasons and in the furtherance of justice,
permits them to adduce evidence upon their permits them to adduce evidence upon their
original case; and original case; and
(g) Upon admission of the evidence, the case (g) Upon admission of the evidence, the case
shall be deemed submitted for decision, unless shall be deemed submitted for decision, unless
the court directs the parties to argue or to the court directs the parties to argue or to
submit their respective memoranda or any submit their respective memoranda or any
further pleadings. further pleadings.
RULE 30
TRIAL
If several defendants or third-party If several defendants or third-party

defendants, and so forth, having defendants, and so forth, having
separate defenses appear by different separate defenses appear by different
counsel, the court shall determine counsel, the court shall determine
the relative order of presentation of the relative order of presentation of
their evidence. (1a, R30) their evidence. (5a)
RULE 30 ORDER OF
Section 5 TRIAL
Defendant’s
Plaintiff’s evidence evidence on his Third party
Fourth party, if any
on his claim defense, cross-claim defendant
or counterclaim
Parties against
whom, counterclaim, Parties rebuttal Submitted for
cross-claim has been evidence decision
pleaded
RULE 30
TRIAL
Section 6. Oral offer of exhibits. —

The offer of evidence, the comment
or objection thereto, and the court
ruling shall be made orally in
accordance with Sections 34 to 40
of Rule 132. (n)
RULE 30
Section 6
The new Rules requires that

offer of evidence should be
done ORALLY.
RULE 30
TRIAL
Section 6. Agreed statement of facts. — The Section 7. Agreed statement of facts. — The
parties to any action may agree, in writing, parties to any action may agree, in writing,
upon the facts involved in the litigation, and upon the facts involved in the litigation, and
submit the case for judgment on the facts submit the case for judgment on the facts
agreed upon, without the introduction of agreed upon, without the introduction of
evidence. evidence.
If the parties agree only on some of the facts If the parties agree only on some of the facts
in issue, the trial shall be held as to the in issue, the trial shall be held as to the
disputed facts in such order as the court shall disputed facts in such order as the court shall
prescribe. (2a, R30) prescribe. (6)
RULE 30
TRIAL
Section 7. Statement of judge. — During [Section 7. Statement of judge. —

the hearing or trial of a case any Deleted]
statement made by the judge with
reference to the case, or to any of the
parties, witnesses or counsel, shall be
made of record in the stenographic
notes. (3a, R30)
RULE 30
TRIAL
Section 8. Suspension of actions. — The Section 8. Suspension of actions. — The

suspension of actions shall be governed suspension of actions shall be governed
by the provisions of the Civil Code. (n) by the provisions of the Civil Code and
other laws. (8a)
RULE 30
TRIAL
Section 9. Judge to receive evidence; delegation to Section 9. Judge to receive evidence; delegation to clerk
clerk of court. — The judge of the court where the of court. — The judge of the court where the case is
case is pending shall personally receive the evidence pending shall personally receive the evidence to be
to be adduced by the parties. However, in default adduced by the parties. However, in default or ex
or ex parte hearings, and in any case where the parte hearings, and in any case where the parties
parties agree in writing, the court may delegate the agree in writing, the court may delegate the
reception of evidence to its clerk of court who is a reception of evidence to its clerk of court who is a
member of the bar. The clerk of court shall have no member of the bar. The clerk of court shall have no
power to rule on objections to any question or to power to rule on objections to any question or to
the admission of exhibits, which objections shall be the admission of exhibits, which objections shall be
resolved by the court upon submission of his report resolved by the court upon submission of his or her
and the transcripts within ten (10) days from report and the transcripts within ten (10) calendar
termination of the hearing. (n) days from termination of the hearing. (9a)
DEMURRER TO EVIDENCE
Rule 33
Demurrer to Evidence
When is the proper • After the plaintiff has completed the

time to file presentation of his evidence, the
Demurrer to defendant may move for dismissal on the
Evidence? ground that upon the facts and the law
the plaintiff has shown no right to relief.
What is the effect if

the motion is • If his motion is denied, he shall have the right to
present evidence. If the motion is granted but
denied? How about on appeal the order of dismissal is reversed he
if the motion is shall be deemed to have waived the right to
granted but present evidence.
reversed on appeal?
Grounds for Demurrer
 On the ground that upon the facts and the
law the plaintiff has shown no right to relief
(Sec. 1, Rule 33).
 This is equivalent to insufficiency of evidence.
 Thus, res judicata is a proper ground for
demurrer (Republic vs. Tuvera, 516 SCRA
113).
Effect of Denial of Demurrer
 Defendant will present evidence.
 The denial of demurrer is not a final order; it is an

interlocutory order (Katigbak vs. Sandiganbayan,
404 SCRA 558).
Effect of Grant of Demurrer
 The case is dismissed.
 If the order is reversed in the appellate court, the defendant

loses his right to present evidence.
 It is not correct for the appellate court to remand the case

for further proceedings. The correct procedure is for the
appellate court to render judgment based on the pieces of
evidence presented by the plaintiff (Radiowealth Finance
Corp. vs. Del Rosario, 335 SCRA 288).
Motion to Dismiss vs. Demurrer
 1. MTD in Rule 15 is made  1. It is made after the
before answer. plaintiff rests its case.
 2. There are several  2. There is only one
grounds. ground.
 3. If denied, defendant may  3. If denied, the
file answer. defendant will present
 4. When granted, the evidence.
complaint may be filed  4. When granted, it may
except for, prescription, res not be re-filed. The
judicata, or claim is remedy is appeal.
extinguished.
Civil Demurrer vs. Criminal Demurrer
 1. Leave of court is not  1. It may be with or without

required. leave of court.
 2. If granted, the order is not
 2. If granted, the order is
appealable.
appealable.
 3. If denied, the accused may
 3. If denied, the present evidence if he filed it
defendant may present with leave of court.
evidence.  4. The Court may dismiss the
 4. It cannot be granted case motu propio (Sec. 23,

Rule 119).
motu propio.
JUDGMENT AND FINAL
ORDER
Judgment
 It is the final ruling by the court of competent
jurisdiction regarding the rights or other matters
submitted to it in an action or proceeding
(Macahilig vs. Heirs of Gracia M. Magalit,
344 SCRA 838, 848).
 A judgment is the court’s official and final
consideration and determination of the
respective rights and obligations of the parties
Requisites of a Valid Judgment
 Court must have jurisdiction over the case
 Court must have jurisdiction over the parties and subject
matter
 Parties must be given an opportunity to adduce evidence
in their behalf.
 Evidence must have been considered.
 In writing personally and directly prepared by the judge,
stating clearly and distinctly the facts and the law on
which it is based, signed by him.
How to resolve the conflict between the
body and the dispositive portion
 GENERAL RULE:
 The dispositive portion of the decision shall prevail.
 BUT:
 If the inevitable conclusion from the body of the
decision is so clear that there was a mere mistake in
the dispositive portion, the body of the decision shall
prevail (So vs. Food Fest Land, Inc., 642 SCRA
592; People vs. Cilot, GR No. 208410, October
19, 2016).
What is judgment upon compromise?
 This is a judgment rendered by the court on the
basis of the a compromise agreement entered
between the parties to the action (Diamond
Builders Conglomeration vs. Country
Bankers Corp., 540 SCRA 194).
 Once approved by the court, a judicial compromise
is not appealable and it thereby becomes
immediately executory (Domingo vs. CA, 255
SCRA 189).
What is the doctrine of the law of the case?
 What ever is once irrevocably established as
controlling legal rule or decision between the same
parties in the case continues to be the law of the case,
whether correct on general principles or not, so long
as the fact on which such decision was predicated
continue to be the facts before the court (RCPI vs.
CA, 488 SCRA 306; Mercury Group of
Companies vs. HDMF, 541 SCRA 211; Yap vs.
Siao, GR No. 212493, June 1, 2016).
What is the doctrine of immutability of
judgment?
 Under the doctrine of immutability of judgments, a judgment
that has attained finality can no longer be disturbed. Thus,
issues actually and directly resolved in the former suit cannot
again be raised in any future case between the same parties
(Pinero vs. NLRC, 427 SCRA 112, 117; Borlongan vs.
Buenaventura, 483 SCRA 405).
 The doctrine prohibits any alteration, modification, or
correction of final and executory judgments as what remains
to be done is the purely ministerial enforcement or execution
of the judgment (Tabalno vs. Dingal, Sr., GR No. 191526,
October 5, 2015).
Please take NOTE:
As a general rule, therefore, final

and executory judgments are
immutable and unalterable except
under the three exceptions:
nunc pro tunc entries

which cause no
clerical errors; void judgments.
prejudice to any
party;
What is judgment nunc pro tunc?
 The office of a judgment nunc pro tunc is to record some
act of the court done at a former time which was not
then carried into the record, and the power of a court to
make such entries is restricted to placing upon the
record evidence of judicial action which has been actually
taken. It may be used to make the record speak the truth,
but not to make it speak what it did not speak but ought
to have spoken (Briones-Vasquez vs. CA, 450 SCRA
482, 491-492).
Final Order vs. Interlocutory Order
 The first disposes of the subject matter in its entirety or terminates a
particular proceeding or action, leaving nothing more to be done except to
enforce by execution what the court has determined, but the latter does
not completely dispose of the case but leaves something else to be decided
upon.
 An interlocutory order deals with preliminary matters and the trial on the
merits is yet to be held and the judgment rendered. The test to ascertain
whether or not an order or a judgment is interlocutory or final is:
does the order or judgment leave something to be done in the
trial court with respect to the merits of the case? If it does, the
order or judgment is interlocutory; otherwise, it is final.‘ (Spouses
Teves vs. Integrated Credit & Corporate Services, GR No. 216714,
April 4, 2018)
Remedy in Interlocutory Order
 The proper remedy to question an
improvident interlocutory order is a petition
for certiorari under Rule 65, not rule 45.
 A petition for review under Rule 45 is the
proper mode of redress to question only final
judgments (Silverio, Jr., vs. Filipino
Business Consultants, 466 SCRA 584,
594).
Rule 34
Judgment on the Pleadings
 SECTION 1. Judgment on the Pleadings. — Where
an answer 1) fails to tender an issue, or
otherwise 2) admits the material allegations of
the adverse party's pleading, the court may, on
motion of that party, direct judgment on such
pleading. However, in actions for declaration of
nullity or annulment of marriage or for legal
separation, the material facts alleged in the
complaint shall always be proved.
When do we say that an answer
fails to tender an issue?
 Answer: If it does not comply with the

requirements of specific denial under
Sections 8 and 10 of Rule 8.
Section 8, Rule 8
 SECTION 8. How to Contest Such Documents. — When an
action or defense is founded upon a written instrument, copied in
or attached to the corresponding pleading as provided in the
preceding section, the genuineness and due execution of the
instrument shall be deemed admitted unless the adverse
party, under oath, specifically denies them, and sets forth
what he claims to be the facts; but the requirement of an
oath does not apply when the adverse party does not appear to
be a party to the instrument or when compliance with an order
for an inspection of the original instrument is refused.
Section 10, Rule 8
 SECTION 10. Specific Denial. — A defendant must specify
each material allegation of fact the truth of which he does not
admit and, whenever practicable, shall set forth the substance
of the matters upon which he relies to support his denial.
Where a defendant desires to deny only a part of an averment,
he shall specify so much of it as is true and material and shall
deny only the remainder. Where a defendant is without
knowledge or information sufficient to form a belief as to the
truth of a material averment made in the complaint, he shall so
state, and this shall have the effect of a denial.
Manner of denying an allegation
By specifically denying the allegation and setting forth the

substance upon which one relies his denial.
By specifically denying some part of the allegation and denying

the rest.
By specifically denying the allegation for lack of knowledge

sufficient to form a belief as to the truth or falsity of the
allegation.
Effect of Defective Denial
 SECTION 11. Allegations Not Specifically
Denied Deemed Admitted.
 Materialaverment in the complaint, other than

those as to the amount of unliquidated damages,
shall be deemed admitted when not specifically
denied. Allegations of usury in a complaint to
recover usurious interest are deemed admitted if
not denied under oath.
Problem
 A is indebted to B in the amount of Php500,000.00 covered by a
Promissory Note (PN). The PN is due and demandable on March 1,
2017. On March 1, 2017, A failed to pay his obligation. B sent a
Demand Letter to A. Despite receipt of the same, A did not pay. B
filed a complaint for sum of money against A. B attached to his
complaint, the Promissory Note executed by A, the demand letter,
and a letter from A purportedly acknowledging his indebtedness to
B. A filed an answer denying the material allegation in B’s Complaint
in a general manner.
 If you are B’s counsel, what will you do to protect the
interest of your client, B?
Answer
I will file a motion for judgment on the pleadings. By
not specifically denying the material allegation in the
complaint, A impliedly admitted the allegation in the
Complaint.
 Material averment in the complaint, other than those
as to the amount of unliquidated damages, shall be
deemed admitted when not specifically denied (Sec.
11, Rule 8).
Comglasco Corp. vs. Santos Car Check
Center, GR No. 202989, March 25, 2015
 Petitioner entered into 5 year lease contract with
respondent. Petitioner, after one year, pre-terminated the
contract. Respondent filed answer interposes the defense of
1) rebus sic stantibus under Article 1267 of the civil code
invoking the Asian Financial crisis; 2) legal impossibility of
performance under Article 1266.
 Because of these defenses, the respondent filed a motion for
judgment on the pleadings.
 Should the motion be granted?
Comglasco Corp. vs. Santos Car Check
Center, GR No. 202989, March 25, 2015
 As there was no issue of fact, the Court
should grant the motion. By interposing such
defenses, the defendant admitted the material
allegation in the complaint. Hence, judgment
on the pleading may be availed.
RULE 34
JUDGMENT ON THE PLEADINGS
Section 2. Action on motion for judgment on the
pleadings. — The court may motu propio or on
motion render judgment on the pleadings if it
apparent that the answer fails to tender an
issue, or otherwise admits the material
allegations of the adverse party’s pleadings.
Otherwise, the motion shall be subject to the
provisions of Rule 15 of these Rules.
[NONE]
Any action of the court on a motion for
judgment on the pleadings shall not be subject
of an appeal or petition for certiorari,
prohibition or mandamus (n)
RULE 34
Section 2
 The new Rules allows the court to motu

propio render judgment on the pleadings if it
apparent that the answer fails to tender an
issue, or otherwise admits the material
allegations of the adverse party’s pleadings.
 If it is by motion from the party, then the
procedure in Rule 15 shall apply.
Rule 35
Summary Judgment
When may
a motion • It may be availed of when a
responsive pleading has been
for filed, however, the same did not
summary establish a genuine issue.
judgment • What triggers a summary
judgment is the absence of
be availed genuine issue of fact.
of?
Issues are joined
 Issues are joined because the responsive
pleading is filed. However, the allegations in
the responsive pleading do not establish a
real and genuine factual issue, because, for
one, the issue tendered is sham,
fictitious, and patently unsubstantial.
Problem
 A is indebted to B in the amount of Php500,000.00 covered by a
Promissory Note (PN). The PN is due and demandable on March
1, 2017. On March 1, 2017, A failed to pay his obligation. B sent a
Demand Letter to A. Despite receipt of the same, A did not pay.
B filed a complaint for sum of money against A. In B attached to
his complaint, the Promissory Note executed by A, and the
demand letter. A denied the allegations in B’s Complaint. A
further alleged in his answer that B already condoned his debt.
However, said allegation is totally false.
 What procedural action will you advice B to take to
expedite the resolution of the case?
Answer
I will file a motion for summary judgment because
there is no genuine issue.
 “A "genuine issue" is an issue of fact which requires
the presentation of evidence as distinguished from a
sham, fictitious, contrived or false claim. When the
facts as pleaded appear uncontested or undisputed,
then there is no real or genuine issue or question as
to the facts, and summary judgment is called for
(Yap vs. Siao, GR No. 212493, June 1, 2016).
Please take NOTE:
 The party who moves for summary judgment has
the burden of demonstrating clearly the absence of
any genuine issue of fact, or that the issue posed in
the complaint is patently unsubstantial so as not to
constitute a genuine issue for trial. Trial courts have
limited authority to render summary judgments and may do
so only when there is clearly no genuine issue as to any
material fact. When the facts as pleaded by the parties are
disputed or contested, proceedings for summary judgment
cannot take the place of trial.
Who may file a motion for summary
judgment?
 SECTION 1. Summary Judgment for Claimant. — A party
seeking to recover upon a claim, counterclaim, or cross-claim
or to obtain a declaratory relief may, at any time after the
pleading in answer thereto has been served, move with
supporting affidavits, depositions or admissions for a summary
judgment in his favor upon all or any part thereof.
 SECTION 2. Summary Judgment for Defending Party. —
A party against whom a claim, counterclaim, or cross-claim is
asserted or a declaratory relief is sought may, at any time, move
with supporting affidavits depositions or admissions for a
summary judgment in his favor as to all or any part thereof.
RULE 35
SUMMARY JUDGMENT
Section 3. Motion and proceedings thereon. — The Section 3. Motion and proceedings thereon. — The
motion shall be served at least ten (10) days motion shall cite the supporting affidavits,
before the time specified for the hearing. The depositions or admissions, and the specific
adverse party may serve opposing affidavits, law relied upon. The adverse party may file
depositions, or admissions at least three (3) days a comment and serve opposing affidavits,
before the hearing. After the hearing, the depositions, or admissions within a non-
judgment sought shall be rendered forthwith if extendible period of five (5) calendar days
the pleadings, supporting affidavits, depositions, from receipt of the motion. Unless the
and admissions on file, show that, except as to the court orders the conduct of a hearing,
amount of damages, there is no genuine issue as judgment sought shall be rendered forthwith if
to any material fact and that the moving party is the pleadings, supporting affidavits, depositions,
entitled to a judgment as a matter of law. (3a, R34) and admissions on file, show that, except as to the
amount of damages, there is no genuine issue as
to any material fact and that the moving
RULE 35
SUMMARY JUDGMENT
party is entitled to a judgment as a matter of law.
Any action of the court on a motion for

summary judgment shall not be subject of
appeal or petition for certiorari, prohibition
or mandamus.
RULE 35
Section 3
 The new Rules specifies that the motion for summary
judgment must be accompanied by supporting affidavits,
depositions or admissions, and the specific law relied
upon.
 The adverse party may file a comment and serve
opposing affidavits, depositions, or admissions within a
non-extendible period of five (5) calendar days from
receipt of the motion.
 Hearing is optional to the court
RULE 35
Section 3
 PLEASE TAKE NOTE:
 Any action of the court on a motion for summary

judgment shall not be subject of appeal or petition for
certiorari, prohibition or mandamus.
Judgment on the Pleadings vs. Summary
Judgment
 There is absence of  Answers tenders an

factual issue because issue, but the issue is not
the answer tenders no genuine.
issue.  The motion may be filed
 Only the claiming party by the claiming party or
can file the motion. defending party.
 It is based on pleadings  It is based on pleadings,
alone. affidavits, depositions
and admissions.
 Only three (3) day notice
 five(5) day notice is
is required.
required.
POST JUDGMENT REMEDIES
Post Judgment Remedies
Before the Motion for new trial
Judgment
becomes Motion for reconsideration
final
Appeal
After the Petition for relief from judgment

judgment Annulment of judgment
became
final Certiorari
Collateral attack
Rule 37
New Trial
 GROUNDS
 Fraud, accident, mistake or excusable negligence which

ordinary prudence could not have guarded against and by
reason of which such aggrieved party has probably been
impaired in his rights; or
 Newly discovered evidence, which he could not, with
reasonable diligence, have discovered, and produced at the
trial, and which if presented would probably alter the result.
When to file?
 It is filed within a period for taking an appeal (Sec. 1,
Rule 37).
 Where appeal is by notice of appeal, within 15 days
from notice of judgment or final order (Sec. 2, Rule
40; Sec. 3, Rule 41).
 Where record on appeal is required, within 30 days
from notice of judgment or order (Sec. 2, Rule 40;
Sec. 3, Rule 41).
Fraud
 The fraud referred to in Section 1, Rule 37 is
extrinsic fraud, that is, deception or trickery by
which the aggrieved party was prevented from
having his day in court or presenting his case before
the court. It should be distinguished from intrinsic
fraud which involves the presentation of false or
perjured testimony but did not otherwise prevent
the aggrieved party from presenting his case.
Example of Extrinsic Fraud
 When a party connived with the court personnel
so that notices of trial dates were sent to the old
address of the aggrieved party’s counsel although
a notice of change of address was filed already.
 The aggrieved party’s lawyer betrays him and sells
out his case to the other side.
 The judge is bribed by the adverse party to
render a decision in his favour.
Accident
Accident is similar to the concept of
fortuitous event in civil law. It is
something which ordinary prudence
on the part of party or counsel
could not have guarded.
Mistake
 Ifa party, because of a pending compromise
agreement believed in good faith that it was
not necessary for him to answer, appear at
the trial and put up a defense, there is a
mistake which would constitute a sufficient
ground for new trial (Salazar vs. Salazar, 8
Phil. 853).
Please take NOTE:
 An error or mistake committed by a counsel in
the course of judicial proceedings is not a ground
for new trial.
 It has been repeatedly enunciated that "a client is bound
by the action of his counsel in the conduct of a case and
cannot be heard to complain that the result might have
been different if he proceeded differently. A client is
bound by the mistakes of his lawyer (Briones vs.
People, GR No. 156000, June 5, 2009).
NOTE the exception:
 An exception to the principle that a client is
bound by the mistakes of his counsel is one
wherein the negligence of the latter is so
gross that the former was deprived of his day
in court, as a result of which he is deprived of
property without due process of law (Amil
vs. CA, GR No. 125271, October 7, 1999)
Newly discovered evidence, Requisites:
 Evidence must be discovered after trial.
 Such evidence could not have been produced
during trial even with exercise of reasonable
diligence
 Evidence is material not merely cumulative,
corroborative or impeaching
 The evidence would have change the result of the
case [Ybiernas vs. Tanco-Gobaldon, June 1,
2011].
Formalities of Motion for New Trial
 A motion for the cause mentioned in paragraph (a) [FAME]

of the preceding section shall be supported by affidavits of
merits which may be rebutted by affidavits.
 A motion for the cause mentioned in paragraph (b)

[NEWLY DISCOVERED EVIDENCE] shall be
supported by affidavits of the witnesses by whom such
evidence is expected to be given, or by duly authenticated
documents which are proposed to be introduced in
evidence.
Effect of filing on period to appeal
The filing of the

Motion for New
Trial interrupts the
period to appeal.
What is the remedy if the motion is
denied?
 SECTION 9. Remedy Against Order

Denying a Motion for New Trial or
Reconsideration. — An order denying a
motion for new trial or reconsideration is
not appealable, the remedy being an appeal
from the judgment or final order.
“Fresh Period” or “Neypes Rule”
 If the motion is denied, the movant has a “fresh period” of fifteen
(15) days from receipt of the notice of the order denying or
dismissing the motion for reconsideration within which to file the
notice of appeal.
 The “fresh period” rule applies not only in Rule 41 (RTC-CA), but
also in Rule 40 (MTC-RTC), Rule 42 (Petrev, RTC-CA), Rule 43
(Petrev, QJA-CA), and Rule 45 (RTC, CA-SC).
 This was adopted to standardize the appeal period.
 Neypes vs. Court of Appeals, 469 SCRA 633

May motion for new trial be filed in the
CA?
 YES.
 SECTION 1. Period for Filing; Ground. — At any time

after the appeal from the lower court has been perfected
and before the Court of Appeals loses jurisdiction over the
case, a party may file a motion for a new trial on the ground of
newly discovered evidence which could not have been
discovered prior to the trial in the court below by the exercise of
due diligence and which is of such a character as would probably
change the result. The motion shall be accompanied by affidavits
showing the facts constituting the grounds therefor and the newly
discovered evidence (Rule 53).
Motion for Reconsideration
 Within the same period, the aggrieved party
may also move for reconsideration upon the
grounds that the damages awarded are
excessive, that the evidence is insufficient to
justify the decision or final order, or that the
decision or final order is contrary to law
(Sec. 1, Rule 37).
When to file?
 It is filed within a period for taking an appeal (Sec. 1,
Rule 37).
 Where appeal is by notice of appeal, within 15 days
from notice of judgment or final order (Sec. 2, Rule
40; Sec. 3, Rule 41).
 Where record on appeal is required, within 30 days
from notice of judgment or order (Sec. 2, Rule 40;
Sec. 3, Rule 41).
Effect of filing on period to appeal
The filing of the

Motion for New
Reconsideration
interrupts the
period to appeal.
Grounds for MR
Damages awarded
are excessive
Evidence is
insufficient to
justify the decision
Decision or final
order is contrary
to law
Contents of MR
A motion for reconsideration shall point out
specifically the findings or conclusions of the
judgment or final order which are not
supported by the evidence or which are
contrary to law, making express reference to
the testimonial or documentary evidence or to
the provisions of law alleged to be contrary to
such findings or conclusions (Sec. 2, Rule 37).
Effect of failure to conform to formalities
Section •A pro forma motion

for new trial shall not
2, Rule toll the reglementary
37 period of appeal.
What is the remedy if the motion is
denied?
 SECTION 9. Remedy Against Order

Denying a Motion for New Trial or
Reconsideration. — An order denying a
motion for new trial or reconsideration is
not appealable, the remedy being an appeal
from the judgment or final order.
“Fresh Period” or “Neypes Rule”
 If the motion is denied, the movant has a “fresh period” of fifteen
(15) days from receipt of the notice of the order denying or
dismissing the motion for reconsideration within which to file the
notice of appeal.
 The “fresh period” rule applies not only in Rule 41 (RTC-CA), but
also in Rule 40 (MTC-RTC), Rule 42 (Petrev, RTC-CA), Rule 43
(Petrev, QJA-CA), and Rule 45 (RTC, CA-SC).
 This was adopted to standardize the appeal period.
 Neypes vs. Court of Appeals, 469 SCRA 633

Where new trial/MR is not allowed
Cases covered by Rules on Summary
Procedure
Case covered by the Rules on Small Claims
In environmental cases, except in highly

meritorious cases or to prevent miscarriage of
justice
Appeal
What may •Judgment

be
appealed? •Final order
•Final
Order
•Interlocutory
Judgments or Order
Rule 41, Sec. 1
not Appealable
 (a) An order denying a petition for relief or any similar motion seeking
relief from judgment;
 (b) An interlocutory order;
 (c) An order disallowing or dismissing an appeal;
 (d) 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;
 (e) An order of execution;
 (f) A judgment or final order for or against one or more of several
parties or in separate claims, counterclaims, cross-claims and
third-party complaints, while the main case is pending, unless the
court allows an appeal therefrom; and
 (g) An order dismissing an action without prejudice.
Please take NOTE:
 As of December 27, 2007, an aggrieved party
may no longer assail an order denying a motion
for new trial or motion for reconsideration by
way of Rule 65, as per A.M. No. 07-7-12-SC,
such ground having been removed from the
enumeration in Sec. 1 of Rule 41. The proper
remedy is to appeal from the judgment pursuant
to Sec. 9, Rule 37.
Judgments or Orders not appealable:
 REMEDY:
 Section 1, Rule 41
 In all the above instances where the
judgment or final order is not appealable,
the aggrieved party may file an appropriate
special civil action under Rule 65.
Rule Rule Rule Rule
40 41 & 43 45
42
MTC,
MCTC, RTC to RTC-SC;
MTCC, QJA-CA CA to SC
CA
METC to
RTC
Petition for Pure question

Ordinary Ordinary
Review of law
appeal appeal
In the exercise
of its appellate
jurisdiction
Rule 40
Appeal from MTC to RTC
Where to appeal
• An appeal from a judgment or final order of a Municipal Trial Court
may be taken to the Regional Trial Court exercising jurisdiction
over the area to which the former pertains. (Section 1)
When to appeal
• An appeal may be taken within fifteen (15) days after notice to the
appellant of the judgment or final order appealed from. Where a
record on appeal is required, the appellant shall file a notice of
appeal and a record on appeal within thirty (30) days after notice
of the judgment or final order. (Section 2).
How to appeal
 The appeal is taken by filing a notice of appeal with the
court that rendered the judgment or final order appealed
from. The notice of appeal shall indicate the parties to the
appeal, the judgment or final order or part thereof
appealed from, and state the material dates showing the
timeliness of the appeal.
 A record on appeal shall be required only in special
proceedings and in other cases of multiple or separate
appeals (Sec. 3, Rule 40).
How to perfect an appeal
 SECTION 4. Perfection of
Appeal; Effect Thereof. — The
perfection of the appeal and the effect
thereof shall be governed by the
provisions of Section 9, Rule 41.
Section 9, Rule 41
A party's appeal by notice of appeal is
deemed perfected as to him upon the filing of
the notice of appeal in due time.
 A party's appeal by record on appeal is
deemed perfected as to him with respect to
the subject matter thereof upon the approval
of the record on appeal filed in due time.
Effect of perfection of an appeal
 In appeals by notice of appeal, the court loses jurisdiction
over the case upon the perfection of the appeals filed in
due time and the expiration of the time to appeal of the
other parties.
 In appeals by record on appeal, the court loses
jurisdiction only over the subject matter thereof upon
the approval of the records on appeal filed in due time
and the expiration of the time to appeal of the other
parties (Sec. 9, Rule 41).
Court’s Residual Jurisdiction
 Priorto the transmittal of the original record or the
record on appeal, the court may issue orders for the
protection and preservation of the rights of the
parties which do not involve any matter litigated by
the appeal, approve compromises, permit appeals of
indigent litigants, order execution pending appeal in
accordance with Section 2 of Rule 39, and allow
withdrawal of the appeal (Sec. 9, Rule 41).
Procedure in RTC in appeal from MTC
Within 15 days from

receipt, appellant shall file
Notify the parties upon appellant’s memorandum.
receipt of the complete Appellee from receipt Submitted for decision.
records from MTC thereof shall file within
15 days, Appellee’s
memorandum.
Appeal from Orders Dismissing Case
Without Trial; Lack of Jurisdiction
 If an appeal is taken from an order of the lower court
dismissing the case without a trial on the merits, the
Regional Trial Court may affirm or reverse it, as the case may
be.
 In case of affirmance and the ground of dismissal is lack of
jurisdiction over the subject matter, the Regional Trial Court,
if it has jurisdiction thereover, shall try the case on the
merits as if the case was originally filed with it. In case
of reversal, the case shall be remanded for further
proceedings (Sec. 8, Rule 40).
Appeal from Orders Dismissing Case
Without Trial; Lack of Jurisdiction
 If the case was tried on the merits by the lower court
without jurisdiction over the subject matter, the
Regional Trial Court on appeal shall not dismiss
the case if it has original jurisdiction thereof, but
shall decide the case in accordance with the preceding
section, without prejudice to the admission of amended
pleadings and additional evidence in the interest of justice.
(Sec. 8, Rule 40).
Rule 41
Appeal from RTC
Modes of appeal
(Sec. 2)
Ordinary
Rule 41
appeal
Petition for
Rule 42
review
Appeal by
Rule 45
certiorari
Modes of Appeal
 Ordinary Appeal.
 The appeal to the Court of Appeals in cases decided by

the Regional Trial Court in the exercise of its original
jurisdiction shall be taken by filing a notice of appeal with
the court which rendered the judgment or final order
appealed from and serving a copy thereof upon the
adverse party. No record on appeal shall be required
except in special proceedings and other cases of multiple
or separate appeals where the law or these Rules so
require. In such cases, the record on appeal shall be filed
and served in like manner (Sec. 2(a), Rule 41).
Modes of Appeal
 Petition for Review.
 The appeal to the Court of Appeals in cases
decided by the Regional Trial Court in the
exercise of its appellate jurisdiction shall be
by petition for review in accordance with
Rule 42.(Sec. 2(b), Rule 41).
Modes of Appeal
 Appeal by certiorari
 Inall cases where only questions of law are
raised or involved, the appeal shall be to the
Supreme Court by petition for review on
certiorari in accordance with Rule 45..(Sec.
2(b), Rule 41).
Problem
 Carlito filed an unlawful detainer case against Matilde with
the Municipal Trial Court. After due proceedings, the MTC
rendered a decision in favor of Matilde. Carlito appealed
the decision to the RTC by notice of appeal. The RTC
rendered a decision in favor of Carlito.
 Matilde wants to appeal the decision of the RTC.

Where will he file his appeal? And under what
mode?
Answer
 The appeal to the Court of Appeals in
cases decided by the Regional Trial
Court in the exercise of its appellate
jurisdiction shall be by petition for
review in accordance with Rule 42.(Sec.
2(b), Rule 41).
When to appeal
 The appeal shall be taken within fifteen (15)
days from notice of the judgment or final
order appealed from.
 Where a record on appeal is required, the
appellant shall file a notice of appeal and a
record on appeal within thirty (30) days
from notice of the judgment or final order
(Sec. 3, Rule 41).
Payment of appeal fee
 Withinthe period for taking an appeal,

the appellant shall pay to the clerk of the
court which rendered the judgment or
final order appealed from, the full
amount of the appellate court docket
and other lawful fees. (Section 4, Rule
41)
Is payment of appeal fee within the period for appeal
mandatory?
 The Court has consistently upheld the dismissal of an appeal or notice of
appeal for failure to pay the full docket fees within the period for taking the
appeal. Time and again, this Court has consistently held that the payment of
docket fees within the prescribed period is mandatory for the perfection of
the appeal. Without such payment, the appellate court does not acquire
jurisdiction over the subject matter of the court does not acquire
jurisdiction over the subject matter of the action and the decision sought
to be appealed from becomes final and executory.
 Fil-Estate Properties vs. Homena-Valencia October 15. 2007, citing
Manalili v. De Leon, 422 Phil. 214, 220 (2001); St. Louis University v. Cordero, G.R.
No. 144118, 21 July 2004, 434 SCRA 575, 583.
When is appeal perfected?
 A party's appeal by notice of appeal is deemed perfected as to him upon
the filing of the notice of appeal in due time.
 A party's appeal by record on appeal is deemed perfected as to him with
respect to the subject matter thereof upon the approval of the record
on appeal filed in due time.
 In appeals by notice of appeal, the court loses jurisdiction over the
case upon the perfection of the appeals filed in due time and the
expiration of the time to appeal of the other parties.
 In appeals by record on appeal, the court loses jurisdiction only over the
subject matter thereof upon the approval of the records on appeal filed in
due time and the expiration of the time to appeal of the other parties.
 Section 9, Rule 41.
Problem
 Marina filed a case against Marino before the RTC. The RTC decided
in favor of Marina. Marino received the copy the decision on July 2.
While Marina received the copy of the decision on August 2. On July
10, Marino filed a notice of appeal and paid the corresponding
appeal fee before the RTC.
 Does the RTC lose jurisdiction on July 10, the date when
Marino filed his notice of appeal?
 If not, when will the Court lose its jurisdiction?
 If the RTC jurisdiction is already lost, can it still entertain
any motion from the parties?
Concept of Residual Jurisdiction
 The court may issue orders for the protection and
preservation of the rights of the parties which do not
involve any matter litigated by the appeal, 1. approve
compromises, 2. permit appeals of indigent
litigants, 3. order execution pending appeal in
accordance with Section 2 of Rule 39, and 4. allow
withdrawal of the appeal.
 This prior to the transmittal of the records.
 Section 9, Rule 41.
Rule 42
Petition for Review from RTC
How appeal
Period to file
taken
Section 1
By filing a verified
petition for review with The petition shall be
CA and payment of filed and served within
corresponding fee, fifteen (15) days from
copy furnished the RTC notice of the decision.
and the adverse party.
Problem
 Marina filed a Petition for Certiorari before RTC to assail
the Order of the MTC quashing the Information. The
RTC dismissed the Petition. Marina received the decision
on July 2. On July 10, Marina filed a Petition for Review
before the CA with payment of the corresponding
docket fee therein.
 Is the mode of appeal availed by Marina proper?
 Assuming that it is improper, may the Petition for
Review be treated as a notice of appeal?
Answer 1
 No.The proper remedy should be appeal.
 It is fundamental that a petition for certiorari is an
original action and, as such, it cannot be gainsaid that
the RTC took cognizance of and resolved the aforesaid
petition in the exercise of its original jurisdiction.
Hence, based on the above-cited rule, Marina should
have filed a notice of appeal with the RTC instead of a
petition for review with the CA (Yalong vs. People,
GR 187174,August 28, 2013).
Answer 2
 It cannot be treated as notice of appeal.
 For one, a notice of appeal is filed with the regional trial
court that rendered the assailed decision, judgment or final
order, while a petition for review is filed with the CA. Also,
a notice of appeal is required when the RTC issues a
decision, judgment or final order in the exercise of its
original jurisdiction, while a petition for review is required
when such issuance was in the exercise of its appellate
jurisdiction.(Yalong vs. People, GR 187174, August 28,
2013).
When is appeal perfected under Rule 42?
 Upon the timely filing of a petition for

review and the payment of the
corresponding docket and other lawful
fees, the appeal is deemed perfected as
to the petitioner (Sec. 8, Rule 42).
When will the court lose jurisdiction in
Rule 42?
 The Regional Trial Court loses

jurisdiction over the case upon the
perfection of the appeals filed in due
time and the expiration of the time to
appeal of the other parties (Sec. 8,
Rule 42).
Residual Jurisdiction applies
 The Regional Trial Court loses jurisdiction over the case
upon the perfection of the appeals filed in due time and the
expiration of the time to appeal of the other parties.
 However, before the Court of Appeals gives due course to
the petition, the Regional Trial Court may issue orders for
the protection and preservation of the rights of the parties
which do not involve any matter litigated by the appeal,
approve compromises, permit appeals of indigent
litigants, order execution pending appeal in accordance
with Section 2 of Rule 39, and allow withdrawal of the
appeal. (Section 8, Rule 42).
Will the filing of Petition stay the
judgment or order appealed from?
 Yes.
 Exceptin civil cases decided under the Rule on

Summary Procedure, the appeal shall not stay the
judgment or final order unless the Court of
Appeals, the law, or these Rules shall provide
otherwise (Sec. 8(b), Rule 42).
Rule 45
Appeal by Certiorari
Where • May file with the Supreme Court a verified

petition for review on certiorari. The
petition shall raise only questions of law
to file? which must be distinctly set forth. (Sec. 1)
When • The petition shall be filed within fifteen

(15) days from notice. Subject to
extension of 30 days upon payment of
to file? corresponding docket fee. (Sec. 2)
Questions of law vs. Questions
of fact
There is
There is question of fact
question of law when doubt
when there is arises as to the
doubt as to what
law is on certain truth or falsity of
state of facts. the alleged
facts.
Factual-issue-bar Rule
 Petition for review under Rule 45 is discretionary. It
may only be availed if the appeal is on pure
question of law. Thus, question of fact is not allowed
to be raised because the Supreme Court is not a
trier of facts. Consequently, calibration of evidence,
as a rule may not be entertained by the Supreme
Court.
 (Roman Catholic Archbishop of Manila vs.
Sta.Teresa, November 18, 2013)
Instances when SC may pass upon questions of fact
 The conclusions of CA is grounded entirely

on speculations, surmises and conjectures
 The inference is manifestly mistaken
 There is grave abuse of discretion
 Judgment is based on misapprehension of
facts
 Findings of facts are conflicting
Instances when SC may pass upon questions
of fact
 The CA went beyond the issues of the case or its
judgment is contrary to the admission of the
parties
 The findings of CA is contrary to lower court
 Finding of fact are conclusion without basis inn
evidence
 Findings of fact of CA are premised on the
supposed absence of evidence and contradicted by
evidence on record.
Rule 43
Appeal from QJA
• Quasi Judicial Agencies’ decision in the
Scope exercise of its quasi-judicial function (Sec. 1)
• 15 days from notice of decision or order

Period appealed from. (Sec. 1)
Where to appeal • Court of Appeals. (Sec. 3)
How appeal taken • By filing a verified petition for review. (Sec. 5)
• Will not stay the execution of decision unless

Effect of filing restrained. (Sec. 12)
Remedies after Judgment became final and
executory
Petition for relief from judgment

(Rule 38)
Annulment of Judgment (Rule 47)
Certiorari (Rule 65)

Rule 38
Petition for Relief from Judgment
• Judgment
• Final order
Subject • Other proceedings (Sec.1)
• Order denying the appeal (Sec.2)
• Fraud, Accident, Mistake, Excusable

Grounds Negligence (FAME) (Sec. 1 &2)
• Court which rendered the judgment, final

Where to file order, order denying appeal or court which
conducted the proceedings (Sec. 1)
Period to File
A petition provided for in either of the preceding sections of this Rule
must be verified, filed within sixty (60) days after the petitioner learns
of the judgment, final order, or other proceeding to be set aside, and
not more than six (6) months after such judgment or final order was
entered, or such proceeding was taken.
Two periods
 1) Within 60 days after the petitioner learns the judgment, etc.
 2) Within 6 months after entry.
Problem
 Marina learns the judgment by default on September 1. The
Judgment was entered on January 2. The Petition was filed on
October 1.
 Is it filed within the period?
Judgment was entered on May 2. The Petition was filed on October
1.
Judgment was entered on July 2. The Petition was filed on
December 1.
Is petition for relief available
in the SC or CA?
 No.
 Purcon
vs. MRM Philippines, Inc., 566
SCRA 645
Rule 47
Annulment of Judgments
 Coverage (Sec. 1)
 This Rule shall govern the annulment by the
Court of Appeals of judgments or final orders and
resolutions in civil actions of Regional Trial
Courts for which the ordinary remedies of new
trial, appeal, petition for relief or other
appropriate remedies are no longer available
through no fault of the petitioner.
Grounds
 Extrinsicfraud & Lack of jurisdiction

 N.B. Extrinsic fraud shall not be a valid ground if it
was availed of, or could have been availed of, in a
motion for new trial or petition for relief.
 Republic vs “G” Holdings, Inc., 475 SCRA 608
Extrinsic fraud
 Fraud is regarded as extrinsic where it prevents a party
from having a trial or from presenting his entire case to
the court or where it operates upon matters pertaining
not to the judgment itself but the manner in which it is
procured. The overriding consideration when extrinsic
fraud is alleged is that the fraudulent scheme of the
prevailing party litigant prevented a party from having his
day in court.
 Alaban vs. CA, 470 SCRA 697
Period to File
 If based on extrinsic fraud, the

action must be filed within four (4)
years from its discovery; and if
based on lack of jurisdiction, before
it is barred by laches or estoppel
(Sec. 3, Rule 47).
Does RTC have jurisdiction to entertain
petition for annulment of judgment of MTC?
 An action to annul a judgment or final order
of a Municipal Trial Court shall be filed in the
Regional Trial Court having jurisdiction over
the former. It shall be treated as an ordinary
civil action and Sections 2, 3, 4, 7, 8 and 9 of
this Rule shall be applicable thereto (Sec.
10, Rule 47).
Collateral Attack on Judgment
A collateral attack is made when, in another
action to obtain a different relief, an attack on
the judgment is made as an incident in said
action. This is proper only when the judgment,
on its face, is null and void, as where it is
patent that the court, which rendered said
judgment, has no jurisdiction (Co vs. CA, 196
SCRA 705).
Other Appeals/Reviews
 Review of decision of NLRC – Rule 65 (St. Martin Funeral
Homes vs. NLRC)
 Review of decision of VA in labor cases – Rule 43 (Royal Plant
Workers Union vs. Coca-Cola Bottler Phils. April 15, 2013)
 Review of rulings of Ombudsman
◦ Administrative – Rule 43 (Pia vs Gervacio June 5, 2013)
◦ Criminal cases – Rule 65 SC (Cabrera vs. Lapid, 510) SCRA 55)
 Appeals from CTA en banc – Rule 45 (Sec. 11, RA 9282)
 Review of decision of Comelec – Rule 64, 65
 Review of decision of COA – Rule 64, 65
 Appeals from decision of CSC – Rule 43
Carpio-Morales vs. CA,
Nov. 15, 2015
 Section 14. Restrictions. — No writ of injunction shall be
issued by any court to delay an investigation being
conducted by the Ombudsman under this Act, unless
there is a prima facie evidence that the subject matter of
the investigation is outside the jurisdiction of the Office of
the Ombudsman.
 No court shall hear any appeal or application for remedy
against the decision or findings of the Ombudsman, except the
Supreme Court, on pure question of law.
Nov. 15, 2015
 The second paragraph: “No court shall hear any appeal or
application for remedy against the decision or findings of the
Ombudsman, except the Supreme Court, on pure question of law”
was declared unconstitutional for violating Section 30, Article
VI.
 “SECTION 30. No law shall be passed increasing
the appellate jurisdiction of the Supreme Court as
provided in this Constitution without its advice and
concurrence.”
Nov. 15, 2015
 The first paragraph: “No writ of injunction

shall be issued by any court to delay an
investigation being conducted by the
Ombudsman under this Act was declared
ineffective until the Court adopts the same as
part of the rules of procedure through an
administrative circular duly issued therefor.
Nov. 15, 2015
 Section 5(5),Article VIII
 Promulgate rules concerning the protection and enforcement of
constitutional rights, pleading, practice, and procedure in all
courts, the admission to the practice of law, the Integrated Bar,
and legal assistance to the underprivileged. Such rules shall provide
a simplified and inexpensive procedure for the speedy disposition
of cases, shall be uniform for all courts of the same grade, and shall
not diminish, increase, or modify substantive rights. Rules of
procedure of special courts and quasi-judicial bodies shall remain
effective unless disapproved by the Supreme Court.
PROVISIONAL REMEDIES
Preliminary Attachment (Rule 57)
Preliminary Injunction (Rule 58)
Receivership (Rule 59)
Delivery of Personal Property (Rule 60)
Support Pendente Lite (Rule 61)

Rule 57
Preliminary Attachment
Definition
It is provisional
It is a provisional because it
remedy issued by the constitutes
court where the action
is pending levying the temporary measure
property or properties availed of during the
of the defendant to pendency of action
serve as security for and they are
whatever judgment the ancillary because it
said court might render is dependent upon
in favor of the plaintiff.
the main action.
Will the writ of preliminary attachment be
dissolved if the parties had already entered
into compromise agreement?
 NO.
 The parties to the compromise agreement should not be
deprived of the protection provided by an attachment lien.
If the rule were otherwise, it is easier for the debtor
whose property was attached to have the lien released by
entering into a compromise agreement without the
intention of actually honoring it (Lim, Jr., vs. spouses
Lazaro, G.R. No. 185734, July 3, 2013).
What is the nature of attachment?
 Attachment is in the nature of a proceeding quasi in
rem (Banco-Espanol vs. Palanca, 37 Phil. 921, 928)
although sometimes referred to as action in rem
(Valdevieso vs. Damalerio, 421 SCRA 664, 671).
 This classification becomes relevant only when the

defendant does not appear in the action as when the
defendant is a non-resident who, at the same time, is
outside of the Philippines.
What is the purpose of preliminary
attachment?
 Preliminary attachment is designed to seize the
property of the debtor before final judgment and put
the same in custodia legis even while the action is
pending for the satisfaction of a later judgment and to
acquire jurisdiction over the property in those
instances where personal or substituted services of
summons on the defendant cannot be effected.
(Philippine Commercial International Bank vs.
Alejandro, 533 SCRA 738).
Who may apply for preliminary
attachment?
Plaintiff Any proper party
Defendant with respect to

his counterclaim
Section 1, Rule 57
Co-party with respect to
his cross-claim
Third party with respect to

his third party complaint
At what stage may preliminary
attachment be applied?
 At the commencement of the action
 Any time before entry of judgment

What are the cases where preliminary
attachment is proper?
 A. Recovery of a specified amount of money or
damages.
◦ Section1(a), Rule 57 – 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.
◦ K.O. Glass Construction vs. Valenzuela, 116 SCRA
563 – about to depart with intent to defraud is required for
the issuance.
 B.Action for money or property embezzled.
◦ Section1(B), Rule 57 – 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. Action for recovery of property unjustly or

fraudulently taken.
◦ Section1(C), Rule 57 – 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. Fraud in contracting or performing an

obligation.
◦ Section1(D), Rule 57 – 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. Removal or disposal of property with

intent to defraud.
◦ Section1(E), Rule 57 – In an action against a
party who has removed or disposed of his
property, or is about to do so, with intent
 F. Action against non-residents or on whose

summons may be served by publication.
◦ Section1(F), Rule 57 – 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.
◦ Read this in relation to Section 16, 17 and 18, Rule
14 of the Rules of Court.
Requisites for issuance of preliminary writ
of attachment
 Applicant's bond must be filed
 Affidavit of merit
◦ Sufficient cause of action exists;
◦ The case is one of those mentioned in Section 1 hereof;
◦ There is no other sufficient security for the claim sought to
be enforced by the action; and
◦ The amount due to the applicant, or the value of the
property the possession of which he is entitled to recover,
is as much as the sum for which the order is granted above
all legal counterclaims.
How may preliminary writ of attachment
be issued?
• Ex parte;
It may • Upon motion with notice
and hearing
be • On appeal before the
issued: Court of Appeals or the
Supreme Court
Stages in the grant of preliminary
attachment
Writ is
Court issues the
attachment is The writ is
order granting
issued pursuant implemented
the application
to an order
Is it necessary for the court to have
acquired jurisdiction over the person of
the defendant when the writ is
implemented?
 Yes, because under the rules: “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)
 Thus, there must be prior or contemporaneous
service of summons.
Are there exceptions to prior or
contemporaneous service of summons?
 Yes, under the rules: “The requirement of prior or
contemporaneous service of summons shall not apply
where the summons could not be served 1. personally
or by substituted service despite diligent efforts,
or 2. the defendant is a resident of the Philippines
temporarily absent therefrom, or 3. the defendant
is a non-resident of the Philippines, or 4. the action
is one in rem or quasi in rem.”(Sec. 5, Rule 57)
How is real property attached?
 It is attached by the sheriff by filing with the RD a copy of
the order together with a description of the property
attached, and a notice that it is attached leaving a copy of
such order, description, and notice with the occupant of the
property, if any.
 Where the property is registered under the Land
Registration Act, 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 (Section
7(b), Rule 57).
How is personal property attached?
 Personal property capable of manual

delivery, by taking and safely keeping it in
his custody, after issuing the corresponding
receipt therefor (Section 7(c), Rule 57).
How are bank deposits and other credits
attached?
 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 (Section 7(d),
rule 57).
How is interest belonging to estate of the
decedent attached?
 By serving the executor or administrator or other
personal representative of the decedent with a copy
of the writ and notice that said interest is attached. A
copy of said writ of attachment and of said notice
shall also be filed in the office of the clerk of the
court in which said estate is being settled and served
upon the heir, legatee or devisee concerned.
(Section 7(e), Rule 57).
May a property under custodia legis be
attached?
 Yes. Under the Rules: If the property sought to be

attached in custodia legis, a copy of the writ of attachment
shall be filed with the proper court or quasi-judicial
agency, and notice of the attachment served upon the
custodian of such property (Sec. 7, Rule 57).
Supposing sheriff attached the
property of the third party, what are
the remedies of the latter if any?
 He may avail the remedy of terceria (Sec. 14, Rule 57).
 The third party-claimant may also invoke the court’s
authority in the same case and move for a summary
hearing on his claim. If his claim is meritorious, the court
shall lift the attachment (Ching vs. CA, 423 SCRA
356)
 The third party may file a separate civil action to nullify
the levy (Ching, id.)
How may a writ of attachment be
discharged?
 1. By filing a motion to discharge the attachment and
making a deposit or counter-bond in an amount equal
to that fixed by the court or value of the property
attached (Sec. 12, Rule 57)
 2. By filing a motion to set aside or discharge the
attachment on other grounds without need of filing a
counterbond.
What are grounds which may be
invoked in the motion to discharge
attachment?
 Attachment was improperly or irregularly issued
 Bond is insufficient
 Attachment is excessive with respect to the excess
 Property is exempt from execution
May a party whose property was
attached recover damages from
the attaching party though the
former lost the case?
 Yes. This is implied from Section 20, Rule 57 which

provides that: “An application for damages on account of
improper, irregular or excessive attachment must be filed
before the trial or before appeal is perfected or before
the judgment becomes executory, with due notice to the
attaching party and his surety or sureties.” (Carlos vs.
Sandoval, 471 SCRA 266, 289-290)
Rule 58
Preliminary Injunction
 Concept
 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 an act or acts. (Sec. 1, Rule 58)
 Preliminary mandatory injunction – order to require
the doing of an act
 Preliminary prohibitory injunction – order to refrain
from doing an act
What is the purpose of preliminary injunction?
 A writ of injunction is issued by the court to prevent

threatened or continuous irreparable injury to parties
before their claims can be thoroughly studied and
adjudicated and during the pendency of the action
(MIAA vs. Rivera Village Lessee Homeowners’
Assn., Inc., 471 SCRA 358). Hence, in order to
protect the rights of the parties before the main
action is resolved, there is need to preserve the status
quo.
What is the status quo?
 It is defined as the last actual, peaceful, and

uncontested status that precedes the actual
controversy, that which is existing at the time of
the filing of the case (Spouses Dulnuan vs.
MBTC, July 8, 2015.)
MANDATORY PROHIBITORY
 When on is required to  When one is required to

perform an act refrain from doing an act
 The act has already been  The act has not yet been
performed and this act performed because it is
violated the rights of restrained or prevented by
another. Since the act has injunction. Its purpose is to
already been performed, prevent a future or
the purpose of the threatened injury
injunction is to restore
the status quo
Mandatory vs. Prohibitory

Which court should issue writ of
preliminary injunction?
 It shall be issued by the court where the principal

action is pending (Sec. 2, Rule 58)
Illustration
 An appeal from the judgment of CA may be appealed
through petition for review under Rule 45. The petition
may include prayer for preliminary injunction. Since it is the
SC which has jurisdiction over the appeal, it has also
jurisdiction to issue writ of preliminary injunction
 Under Section 20, Rule 70, the plaintiff may appeal the
decision to the RTC. Here, it is the RTC which has
 If Petition for Certiorari is pending with the CA, it is the
CA which has jurisdiction to issue writ of preliminary
injunction.
What are the grounds for the issuance of a preliminary
injunction?
 Section 3, Rule 58 can be capsulized as follows:

 (1) there exists a clear and unmistakable right to be
protected; (2) this right is directly threatened by an act
sought to be enjoined; (3) the invasion of the right is
material and substantial; and (4) there is an urgent and
paramount necessity for the writ to prevent serious and
irreparable damage (Sps. Dulnuan vs. MBTC, July 8,
2015).
Clear and Unmistakable Legal Right
 Thunder Security and Investigation Agency vs.

NFA, 654 SCRA 714 – Court cannot enjoin the
termination of an employee whose contract of
employment has already expired.
 Sps. Duluan vs. MBTC, July 8, 2015 – the Court
cannot enjoin the bank from possessing foreclosed
property even during the period for redemption.
What are the formal requisites of
the issuance of preliminary
injunction?
 There must be a verified application (Sec. 4(a), Rule
58).
 The applicant must post a bond (Sec.4 (b), Rule 58).
 There must be notice and hearing (Sec. 5, Rule 58).

Can preliminary injunction be issued without
notice and hearing?
 No.
 Section 5, Rule 58 provides: “No preliminary
injunction shall be granted without
hearing and prior notice to the party or
person sought to be enjoined.”
Is the rule on contemporaneous service
of summons applicable to application for
 YES
 When an application for a writ of preliminary injunction or a
temporary restraining order is included in a complaint or any
initiatory pleading, the case, if filed in a multiple-sala court, shall
be raffled only after notice to and in the presence of the adverse
party or the person to be enjoined. In any event, such notice
shall be preceded, or contemporaneously accompanied, by
service of summons, together with a copy of the complaint or
initiatory pleading and the applicant's affidavit and bond, upon the
adverse party in the Philippines (Sec. 4 (c), Rule 58).
Are there exceptions?
 YES
 However, where the summons could not be served
personally or by substituted service despite diligent
efforts, or the adverse party is a resident of the
Philippines temporarily absent therefrom or is a
nonresident thereof, the requirement of prior or
(Sec. 4 (c), Rule 58).
What is temporary restraining order?
 It is an order issued to preserve the status quo until
the hearing of the application for a writ of preliminary
injunction because preliminary injunction cannot be
issued ex-parte (Bacolod Water District vs.
Labayen, 446 SCRA 110). By its nature, it could be
considered as a provisional remedy within a provisional
remedy because it is issued to preserved the status
quo for a limited period until the court decides to
issue a writ of preliminary injunction
May TRO be issued ex-parte?
 YES
 If it shall appear from facts shown by affidavits or by the
verified application that great or irreparable injury would
result to the applicant before preliminary injunction can
be heard, the court to which the application for
preliminary injunction was made, may issue ex parte a
temporary restraining order to be effective only for a
period of twenty (20) days from service on the party or
person sought to be enjoined x x x. (Section 5, Rule
58).
May TRO be issued by the EJ?
 If the matter is of extreme urgency and the applicant will suffer
grave injustice and irreparable injury, the executive judge of a
multiple-sala court or the presiding judge of a single-sala court
may issue ex-parte a temporary restraining order effective for
only seventy-two (72) hours from issuance but he shall
immediately comply with the provisions of the next preceding
section as to service of summons and the documents to be
served therewith (Sec. 5, Rule 58).
What should the judge where the case is raffled, do
after the EJ issued the
72 hour TRO?
 Within the aforesaid seventy-two (72) hours, the judge before
whom the case is raffled shall conduct a summary hearing to
determine whether the temporary restraining order shall be
extended until the application for preliminary injunction can
be heard. In no case shall the total period of effectivity of the
temporary restraining order exceed twenty (20) days,
including the original seventy-two hours provided herein
(Sec. 5, Rule 57).
Is 20 day TRO extendible?
 NO
 The Rules provide: “In no case shall the
total period of effectivity of the
temporary restraining order exceed
twenty (20) days, including the original
seventy-two hours provided herein.”
(Sect. 5, Rule 58)
Instances where preliminary injunction may not be
issued by the Court?
 No court, except SC, can issue injunctive relief against lawful
action of the government agencies that enforce
environmental laws (Sec. 10, Rule 2, Part II, A.M. 09-6-8-
SC)
 PD 605 bans the issuance of injunctive relief in cases
involving concessions, licenses issued by the government for
exploitation of natural resources.
 PD 1818 prohibits issuance of TRO, PI against the execution
of government infrastructure projects.
 PARC cannot be enjoined by court in the implementation or
enforcement of CARP under the CARP law.
May criminal prosecution be restrained?
 General Rule: NO.
 Exceptions:
◦ To afford adequate protection to the constitutional rights of the
accused
◦ When double jeopardy is apparent
◦ When necessary for the orderly administration of justice or to avoid
oppression
◦ Where the charges are manifestly false and motivated by lust for
vengeance
◦ When there is strictly no prima facie case against the accused and the
motion to quash on that ground has been denied
Characteristics of Provisional Remedies
Temporary
Auxiliary
Ancillary
Purpose of Provisional Remedies
1. Preserve and protect their rights or interest while
the main action is pending
2. To secure judgment
3. Preserve the status quo
4. Preserve the subject matter of litigation

Illustrations
Attachment
Receivership
Injunction
Support pendente lite
Replevin
Jurisdiction
Dependent on the main

action
Provisional Remedies, not exclusive
Reyes vs. Lim,

Section 1,
408 SCRA
Rule 111
560
Section 2,
Rule 127
Preliminary Attachment (Rule 57)
Preliminary Injunction (Rule 58)
Receivership (Rule 59)
Delivery of Personal Property (Rule 60)
Support Pendente Lite (Rule 61)

Rule 57
Preliminary Attachment
Definition
It is provisional
It is a provisional because it
remedy issued by the constitutes
court where the action
is pending levying the temporary measure
property or properties availed of during the
of the defendant to pendency of action
serve as security for and they are
whatever judgment the ancillary because it
said court might render is dependent upon
in favor of the plaintiff.
the main action.
Will the writ of preliminary attachment be
dissolved if the parties had already entered
into compromise agreement?
 NO.
 The parties to the compromise agreement should not be
deprived of the protection provided by an attachment lien.
If the rule were otherwise, it is easier for the debtor
whose property was attached to have the lien released by
entering into a compromise agreement without the
intention of actually honoring it (Lim, Jr., vs. spouses
Lazaro, G.R. No. 185734, July 3, 2013).
What is the nature of attachment?
 Attachment is in the nature of a proceeding quasi in
rem (Banco-Espanol vs. Palanca, 37 Phil. 921, 928)
although sometimes referred to as action in rem
(Valdevieso vs. Damalerio, 421 SCRA 664, 671).
 This classification becomes relevant only when the

defendant does not appear in the action as when the
defendant is a non-resident who, at the same time, is
outside of the Philippines.
What is the purpose of preliminary
attachment?
 Preliminary attachment is designed to seize the
property of the debtor before final judgment and put
the same in custodia legis even while the action is
pending for the satisfaction of a later judgment and to
acquire jurisdiction over the property in those
instances where personal or substituted services of
summons on the defendant cannot be effected.
(Philippine Commercial International Bank vs.
Alejandro, 533 SCRA 738).
Who may apply for preliminary
attachment?
Plaintiff Any proper party
Defendant with respect to

his counterclaim
Section 1, Rule 57
Co-party with respect to
his cross-claim
Third party with respect to

his third party complaint
At what stage may preliminary
attachment be applied?
 At the commencement of the action
 Any time before entry of judgment

 A. Recovery of a specified amount of money or
damages.
◦ Section1(a), Rule 57 – 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
◦ K.O. Glass Construction vs. Valenzuela, 116 SCRA
563 – about to depart with intent to defraud is required for
the issuance.
 B.Action for money or property embezzled.
◦ Section1(B), Rule 57 – 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. Action for recovery of property unjustly or

fraudulently taken.
◦ Section1(C), Rule 57 – 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. Fraud in contracting or performing an

obligation.
◦ Section1(D), Rule 57 – 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. Removal or disposal of property with

intent to defraud.
◦ Section1(E), Rule 57 – In an action against a
party who has removed or disposed of his
property, or is about to do so, with intent
 F. Action against non-residents or on whose

summons may be served by publication.
◦ Section1(F), Rule 57 – 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.
◦ Read this in relation to Section 16, 17 and 18, Rule
14 of the Rules of Court.
Requisites for issuance of preliminary writ
of attachment
 Applicant's bond must be filed
 Affidavit of merit
◦ Sufficient cause of action exists;
◦ The case is one of those mentioned in Section 1 hereof;
◦ There is no other sufficient security for the claim sought to
be enforced by the action; and
◦ The amount due to the applicant, or the value of the
property the possession of which he is entitled to recover,
is as much as the sum for which the order is granted above
all legal counterclaims.
How may preliminary writ of attachment
be issued?
• Ex parte;
It may • Upon motion with notice
and hearing
be • On appeal before the
issued: Court of Appeals or the
Supreme Court
Stages in the grant of preliminary
attachment
Writ is
Court issues the
attachment is The writ is
order granting
issued pursuant implemented
the application
to an order
Is it necessary for the court to have
acquired jurisdiction over the person of
the defendant when the writ is
implemented?
 Yes, because under the rules: “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)
 Thus, there must be prior or contemporaneous
service of summons.
Are there exceptions to prior or
contemporaneous service of summons?
 Yes, under the rules: “The requirement of prior or
where the summons could not be served 1. personally
or by substituted service despite diligent efforts,
or 2. the defendant is a resident of the Philippines
temporarily absent therefrom, or 3. the defendant
is a non-resident of the Philippines, or 4. the action
is one in rem or quasi in rem.”(Sec. 5, Rule 57)
How is real property attached?
 It is attached by the sheriff by filing with the RD a copy of
the order together with a description of the property
attached, and a notice that it is attached leaving a copy of
such order, description, and notice with the occupant of the
property, if any.
 Where the property is registered under the Land
Registration Act, 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 (Section
7(b), Rule 57).
How is personal property attached?
 Personal property capable of manual

delivery, by taking and safely keeping it in
his custody, after issuing the corresponding
receipt therefor (Section 7(c), Rule 57).
How are bank deposits and other credits
attached?
 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 (Section 7(d),
rule 57).
How is interest belonging to estate of the
decedent attached?
 By serving the executor or administrator or other
personal representative of the decedent with a copy
of the writ and notice that said interest is attached. A
copy of said writ of attachment and of said notice
shall also be filed in the office of the clerk of the
court in which said estate is being settled and served
upon the heir, legatee or devisee concerned.
(Section 7(e), Rule 57).
May a property under custodia legis be
attached?
 Yes. Under the Rules: If the property sought to be

attached in custodia legis, a copy of the writ of attachment
shall be filed with the proper court or quasi-judicial
agency, and notice of the attachment served upon the
custodian of such property (Sec. 7, Rule 57).
Supposing sheriff attached the
property of the third party, what are
the remedies of the latter if any?
 He may avail the remedy of terceria (Sec. 14, Rule 57).
 The third party-claimant may also invoke the court’s
authority in the same case and move for a summary
hearing on his claim. If his claim is meritorious, the court
shall lift the attachment (Ching vs. CA, 423 SCRA
356)
 The third party may file a separate civil action to nullify
the levy (Ching, id.)
How may a writ of attachment be
discharged?
 1. By filing a motion to discharge the attachment and
making a deposit or counter-bond in an amount equal
to that fixed by the court or value of the property
attached (Sec. 12, Rule 57)
 2. By filing a motion to set aside or discharge the
attachment on other grounds without need of filing a
counterbond.
What are grounds which may be
invoked in the motion to discharge
attachment?
 Attachment was improperly or irregularly issued
 Bond is insufficient
 Attachment is excessive with respect to the excess
 Property is exempt from execution
May a party whose property was
attached recover damages from
the attaching party though the
former lost the case?
 Yes. This is implied from Section 20, Rule 57 which

provides that: “An application for damages on account of
improper, irregular or excessive attachment must be filed
before the trial or before appeal is perfected or before
the judgment becomes executory, with due notice to the
attaching party and his surety or sureties.” (Carlos vs.
Sandoval, 471 SCRA 266, 289-290)
Rule 58
Preliminary Injunction
 Concept
 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 an act or acts. (Sec. 1, Rule 58)
 Preliminary mandatory injunction – order to require
the doing of an act
 Preliminary prohibitory injunction – order to refrain
from doing an act
What is the purpose of preliminary injunction?
 A writ of injunction is issued by the court to prevent

threatened or continuous irreparable injury to parties
before their claims can be thoroughly studied and
adjudicated and during the pendency of the action
(MIAA vs. Rivera Village Lessee Homeowners’
Assn., Inc., 471 SCRA 358). Hence, in order to
protect the rights of the parties before the main
action is resolved, there is need to preserve the status
quo.
What is the status quo?
 It is defined as the last actual, peaceful, and

uncontested status that precedes the actual
controversy, that which is existing at the time of
the filing of the case (Spouses Dulnuan vs.
MBTC, July 8, 2015.)
MANDATORY PROHIBITORY
 When on is required to  When one is required to

perform an act refrain from doing an act
 The act has already been  The act has not yet been
performed and this act performed because it is
violated the rights of restrained or prevented by
another. Since the act has injunction. Its purpose is to
already been performed, prevent a future or
the purpose of the threatened injury
injunction is to restore
the status quo
Mandatory vs. Prohibitory

Which court should issue writ of
 It shall be issued by the court where the principal

action is pending (Sec. 2, Rule 58)
Illustration
 An appeal from the judgment of CA may be appealed
through petition for review under Rule 45. The petition
may include prayer for preliminary injunction. Since it is the
SC which has jurisdiction over the appeal, it has also
 Under Section 20, Rule 70, the plaintiff may appeal the
decision to the RTC. Here, it is the RTC which has
 If Petition for Certiorari is pending with the CA, it is the
CA which has jurisdiction to issue writ of preliminary
injunction.
What are the grounds for the issuance of a preliminary
injunction?
 Section 3, Rule 58 can be capsulized as follows:

 (1) there exists a clear and unmistakable right to be
protected; (2) this right is directly threatened by an act
sought to be enjoined; (3) the invasion of the right is
material and substantial; and (4) there is an urgent and
paramount necessity for the writ to prevent serious and
irreparable damage (Sps. Dulnuan vs. MBTC, July 8,
2015).
Clear and Unmistakable Legal Right
 Thunder Security and Investigation Agency vs.

NFA, 654 SCRA 714 – Court cannot enjoin the
termination of an employee whose contract of
employment has already expired.
 Sps. Duluan vs. MBTC, July 8, 2015 – the Court
cannot enjoin the bank from possessing foreclosed
property even during the period for redemption.
What are the formal requisites of
the issuance of preliminary
injunction?
 There must be a verified application (Sec. 4(a), Rule
58).
 The applicant must post a bond (Sec.4 (b), Rule 58).
 There must be notice and hearing (Sec. 5, Rule 58).

Can preliminary injunction be issued without
notice and hearing?
 No.
 Section 5, Rule 58 provides: “No preliminary
injunction shall be granted without
hearing and prior notice to the party or
person sought to be enjoined.”
Is the rule on contemporaneous service
of summons applicable to application for
 YES
 When an application for a writ of preliminary injunction or a
temporary restraining order is included in a complaint or any
initiatory pleading, the case, if filed in a multiple-sala court, shall
be raffled only after notice to and in the presence of the adverse
party or the person to be enjoined. In any event, such notice
shall be preceded, or contemporaneously accompanied, by
service of summons, together with a copy of the complaint or
initiatory pleading and the applicant's affidavit and bond, upon the
adverse party in the Philippines (Sec. 4 (c), Rule 58).
Are there exceptions?
 YES
 However, where the summons could not be served
personally or by substituted service despite diligent
efforts, or the adverse party is a resident of the
Philippines temporarily absent therefrom or is a
nonresident thereof, the requirement of prior or
(Sec. 4 (c), Rule 58).
What is temporary restraining order?
 It is an order issued to preserve the status quo until
the hearing of the application for a writ of preliminary
injunction because preliminary injunction cannot be
issued ex-parte (Bacolod Water District vs.
Labayen, 446 SCRA 110). By its nature, it could be
considered as a provisional remedy within a provisional
remedy because it is issued to preserved the status
quo for a limited period until the court decides to
issue a writ of preliminary injunction
May TRO be issued ex-parte?
 YES
 If it shall appear from facts shown by affidavits or by the
verified application that great or irreparable injury would
result to the applicant before preliminary injunction can
be heard, the court to which the application for
preliminary injunction was made, may issue ex parte a
temporary restraining order to be effective only for a
period of twenty (20) days from service on the party or
person sought to be enjoined x x x. (Section 5, Rule
58).
May TRO be issued by the EJ?
 If the matter is of extreme urgency and the applicant will suffer
grave injustice and irreparable injury, the executive judge of a
multiple-sala court or the presiding judge of a single-sala court
may issue ex-parte a temporary restraining order effective for
only seventy-two (72) hours from issuance but he shall
immediately comply with the provisions of the next preceding
section as to service of summons and the documents to be
served therewith (Sec. 5, Rule 58).
What should the judge where the case is raffled, do
after the EJ issued the
72 hour TRO?
 Within the aforesaid seventy-two (72) hours, the judge before
whom the case is raffled shall conduct a summary hearing to
determine whether the temporary restraining order shall be
extended until the application for preliminary injunction can
be heard. In no case shall the total period of effectivity of the
temporary restraining order exceed twenty (20) days,
including the original seventy-two hours provided herein
(Sec. 5, Rule 57).
Is 20 day TRO extendible?
 NO
 The Rules provide: “In no case shall the
total period of effectivity of the
temporary restraining order exceed
twenty (20) days, including the original
seventy-two hours provided herein.”
(Sect. 5, Rule 58)
Instances where preliminary injunction may not be
issued by the Court?
 No court, except SC, can issue injunctive relief against lawful
action of the government agencies that enforce
environmental laws (Sec. 10, Rule 2, Part II, A.M. 09-6-8-
SC)
 PD 605 bans the issuance of injunctive relief in cases
involving concessions, licenses issued by the government for
exploitation of natural resources.
 PD 1818 prohibits issuance of TRO, PI against the execution
of government infrastructure projects.
 PARC cannot be enjoined by court in the implementation or
enforcement of CARP under the CARP law.
May criminal prosecution be restrained?
 General Rule: NO.
 Exceptions:
◦ To afford adequate protection to the constitutional rights of the
accused
◦ When double jeopardy is apparent
◦ When necessary for the orderly administration of justice or to avoid
oppression
◦ Where the charges are manifestly false and motivated by lust for
vengeance
◦ When there is strictly no prima facie case against the accused and the
motion to quash on that ground has been denied
Rule 59
Receivership
 It is a provisional remedy in which the court
appoints a person to preserved, administer or
dispose of and prevent the loss or dissipation of real
or personal property in litigation during the
pendency of the action or during the pendency of
appeal or as an aid in the execution of judgment
when the writ of execution has been returned
unsatisfied.
What are the situation where a receiver
may be appointed?
 The property or fund is in danger of being lost, removed or materially
injured.
 The mortgaged property subject of action for judicial foreclosure is in
danger of being wasted or dissipated or materially injured and its value
may be insufficient to discharge the mortgage debt
 There is agreement between the parties.
 After judgment, to preserve the property, or to dispose it according to
the judgment
 To aid when execution is unsatisfied
 The judgment obligor refuses to apply his property.
 When the appointment of a receiver is the most convenient was of
preserving, administering or disposing the property in litigation (Section
1, Rule 59).
When may it be filed?
At any stage of the proceeding
While pending trial
While on appeal
Even after finality of judgment

What are the requisites for the
appointment of a receiver?
 The applicant must have interest in the property in
litigation.
 Verified application must be filed.
 The applicant must post bond.
 The property or fund is in danger of being lost, wasted
or dissipated
 Receiver must be sworn to an oath to perform his duties
dutifully.
Is the filing of the bond mandatory?
 Yes. Itis mandatory. The language of Section 2,
Rule 59 is very clear. It uses the word “shall”
which denotes its mandatory character. Thus,
the filing of the bond is required at all times,
even if there is a clear and sufficient cause for
the appointment of a receiver (Tantano vs.
Espina-Caboverde, G.R. No. 203585, July
29, 2013).
What may be done to frustrate the
appointment of a receiver?
 Section 3 provides that the application may
be denied is the adverse party files a bond in
favor of the applicant to answer for all the
damages he may suffer by reason of the acts,
omissions, or other matters specified in the
application as ground for such appointment
(Section 3, Rule 59).
What are the powers of a receiver?
 Bring and defend, actions in his  Make transfers;
own name;  Pay outstanding debts;
 Take and keep possession of the  Divide the money and other
property in controversy; property that shall remain
 Receive rents; among the persons legally
 Collect debts due to himself entitled to receive the same
 Collect debts due or to the  Do such acts respecting the
fund, property, estate, person, or property as the court may
corporation of which he is the authorize. Invest funds in the
receiver; hands only by order of the
 Compound for and compromise court upon the written consent
the debts collected of all the parties to the action.
 (Section 6, Rule 59)
What is the effect on the contract entered into
by the receiver without court approval?
 It is not binding on the property or bond being

administered by the receiver. It will be the personal
responsibility of the receiver and is not binding on
receivership (Pacific Merchandising Corp vs.
Consolation Insurance & Surety Co., G.R. No. L-
30204, October 29, 1976).
Please take NOTE:
No action may be filed by or

against a receiver without leave
of the court which appointed
him (Section 6, Rule 59).
Grounds for discharge of receiver
 Postingof counter-bond (Section 3, Rule 59).
 The appointment was without sufficient cause
 The applicant’s bond is insufficient (Section 8,
Rule 59)
 The receiver is no longer necessary (Section
8, Rule 59).
Rule 60
Replevin
 What is replevin?
 It is an action whereby the owner or person
entitled to repossession of goods or chattels
may recover those goods or chattels from one
who has wrongfully distrained or taken or who
wrongfully detains such goods or chattels
(Jim’s Furniture Mart, Inc., vs. Harris,
N.E. 2d 175, 176).
As provisional remedy:
 It
is a remedy applied by a person entitled to
possess the personal property, to hold
possession of the personal property during
the pendency of the case.
What is the nature of Replevin?
 Replevin, broadly understood, is both a form of principal
remedy and of a provisional relief. It may refer either to the
action itself, i.e., to regain the possession of personal
chattels being wrongfully detained from the plaintiff by
another, or to the provisional remedy that would allow
the plaintiff to retain the thing during the pendency of the
action and hold it pendente lite. The action is primarily
possessory in nature and generally determines nothing more
than the right of possession (Central Visayas Finance
Corp. vs. G.R. No. 212674, March 25, 2019).
When may the remedy be applied?
 It may be applied at the commencement of the action or
anytime before answer (Section 1, Rule 60).
 A party praying for the recovery of possession of

personal property may, at the commencement of the
action or at any time before answer, apply for an order
for the delivery of such property to him, in the manner
hereinafter provided (Section 1, Rule 60).
Before the application may be granted, it
must be shown by affidavit that:
 a) That the applicant is the owner of the property claimed,
particularly describing it, or is entitled to the possession thereof;
 b) That the property is wrongfully detained by the adverse party,
alleging the cause of detention thereof according to the best of his
knowledge, information, and belief ;
 c) That the property has not been distrained or taken for a tax
assessment or a fine pursuant to law, or seized under a writ of
execution or preliminary attachment, or otherwise placed
under custodia legis, or if so seized, that it is exempt from such
seizure or custody; and
 d) The actual market value of the property (Section 2, Rule 60).
Necessity of filing a bond
 The applicant must also give a bond, executed to
the adverse party in double the value of the
property as stated in the affidavit
aforementioned, for the return of the property
to the adverse party if such return be adjudged,
and for the payment to the adverse party of such
sum as he may recover from the applicant in the
action (Section 2, Rule 60).
Please take NOTE:
 Replevin is not available when the property is under
custodia legis, under attachment or seized pursuant to law
(Pagkalinawan vs. Gomez, 21 SCRA 1275; Section
2, Rule 60).
 The fact that a property is subject of litigation would not
mean that such property is under custodia legis. Only
when property is lawfully taken by virtue of legal process
is it considered in custody of the law (Bagalihug vs.
Fernandez, 198 SCRA 614, 621).
Question
 Properties were seized by the Bureau of
Customs. The plaintiff claiming to have a right
over the properties seized by the Bureau of
Customs, filed an action for recovery of
properties with prayer for issuance of writ of
replevin on the ground that the seizure of the
properties was illegal. Can the court issue
writ of replevin?
Answer
 No.
 The court has no jurisdiction to take cognizance of the
petition for replevin. The court is devoid of any competence
to pass upon the validity or regularity of seizure and
forfeiture proceedings conducted by the Bureau of Customs
and to enjoin or otherwise interfere with its proceedings. It
is the collector of Customs, sitting in seizure and forfeiture
proceedings, who has the exclusive jurisdiction to hear and
determine all questions touching on seizure or forfeiture of
dutiable goods (ATI vs. Bautista, 505 SCRA 748)
Action of the Court on the application
 Upon the filing of such affidavit and approval
of the bond, the court shall issue an order
and the corresponding writ of replevin,
describing the personal property alleged to
be wrongfully detained and requiring the
sheriff forthwith to take such property into
his custody (Section 3, Rule 60).
How is the writ of replevin implemented?
 The sheriff must serve a copy thereof on the adverse
party, together with a copy of the application, affidavit
and bond.
 Sheriff will take custody of the property and retain it.
 If the property is concealed in a building, he must
demand its delivery, otherwise the enclosure may be
broken to secure the property.
 Sheriff must keep the property in a secure place.
When will the property taken by the
sheriff be delivered to the applicant?
 If within five (5) days from the taking of the property by
the sheriff, the adverse does not object to the sufficiency
of the bond;
 Or the court approves the bond despite objection of the
adverse party;
 Or if the counter-bond is insufficient or the counter-
bond was not filed;
 THE PROPERTY SHALL BE DELIVERED TO
THE APPLICANT (Section 6, Rule 60).
How may the adverse party seek the
return of the property?
 He should post a counter-bond which is double the value of
the property (Section 5, Rule 60).
 The bond is executed to the applicant (Section 5, Rule
60).
 He should serve copy of the bond to the applicant (Section
5, Rule 60).
 He must perform the above acts before the delivery of the
property to the applicant. This means within five (5) days
from the taking of the property by the sheriff (Sections 5
and 6, Rule 60).
 The bond is sufficient (Sections 5 and 6, Rule 60).
Question
 The action for replevin wherein the writ

of replevin was issued and implemented,
was dismissed without prejudice because
of the failure of the plaintiff to prosecute.
 Should the defendant return the
property?
Answer
 YES.
 Upon the dismissal of the replevin case for failure to
prosecute, the writ of seizure, which is merely ancillary in
nature, became functus officio and should have been lifted.
There was no adjudication on the merits, which means that
there was no determination of the issue who has the better
right to possess the subject car. Advent cannot therefore
retain possession of the subject car considering that it was
not adjudged as the prevailing party entitled to the remedy
of replevin (Advent Capital Corp. vs. Young, G.R. No.
183018,August 3, 2011).
What is procedure if property is claimed
by third person?
 The third person shall serve to the sheriff the
affidavit of his title as well as to the applicant.
 He should file the affidavit when the property is
still in the in the custody of the sheriff.
 In this case, the sheriff is not bound to keep the
property.
If the applicant wants to deliver the
property to him, what should he do?
 The applicant may file a bond to indemnify the third-
party claimant in a sum not less than the value of the
property under replevin.
 In case of disagreement as to value, the court will fix the
value of the property.
 No claim for damages for the taking or keeping, of the
property may be enforced against the bond unless the action
therefor is filed within one hundred twenty (120) days from
the date of the filing of the bond.
But, please take NOTE:
 The party claimant is not precluded from

vindicating his claim to the property. He may even
maintain separate action and seek injunctive relief
against the sheriff.
 The applicant is also not precluded from claiming
damages against the third-party claimant who filed
a frivolous claim in a separate controversy.
What is the judgement in a Replevin suit?
The judgment may

Section 9, Rule 60)
provide:
Or, the value of the

Plaintiff is entitled to property, if it cannot
the property anymore be
delivered
Rule 61
Support Pen Dente Lite
 Support pen dente lite is a proceeding where the amount
of support is provisionally fixed by the court in favor of a
person or persons entitled thereto during the pendency
of the action for support or any applicable principal
action.
 It may also be applied in proceedings for legal separation,
annulment of marriage, declaration of nullity of marriage.
 In custody of minor, the same may be asked (David vs.
CA, 250 SCRA 82).
Who may apply for remedy?
 Itmay filed by any party.
 The rules says:
 A verified application for support pendente lite may
be filed by any party stating the grounds for the
claim and the financial conditions of both parties,
and accompanied by affidavits, depositions or
other authentic documents in support thereof
When to apply for support pen dente lite
 At the commencement of the proper action

or proceeding, or at any time prior to the
judgment or final order . . . .
Procedure
 A verified application shall be filed which shall state 1) the
grounds for the claim, and 2) financial condition of both
parties (Section 1, Rule 61).
 The adverse party shall be asked to comment within five (5)
days from service. The comment shall be verified (Section 2,
Rule 61).
 After comment is filed or expiration of the period to file the
same, hearing shall be conducted (Section 3, Rule 61).
 If the application is granted, the court shall fix the amount of
money to be provisionally paid or such other form of
support (Section 4, rule 61).
How is the order enforced?
 Section 5. Enforcement of order. — If the

adverse party fails to comply with an order
granting support pendente lite, the court
shall, motu proprio or upon motion; issue an
order of execution against him, without
prejudice to his liability for contempt (Rule
61)
Please take NOTE:
 When the person ordered to give
support pendente lite refuses or fails to do so,
any third person who furnished that support to
the applicant may, after due notice and hearing
in the same case obtain a writ of execution to
enforce his right of reimbursement against the
person ordered to provide such support
Support in Criminal Cases
 In criminal actions where the civil liability includes support
for the offspring as a consequence of the crime and the civil
aspect thereof has not been waived, reserved and instituted
prior to its filing, the accused may be ordered to provide
support pendente lite to the child born to the offended party
allegedly because of the crime. The application therefor may
be filed successively by the offended party, her parents,
grandparents or guardian and the State in the corresponding
criminal case during its pendency, in accordance with the
procedure established under this Rule (Section 6, Rule
61).
There should be restitution if the
applicant is not entitled for support
 When the judgment or final order of the court finds that the
person who has been providing support pendente lite is not
liable therefor, it shall order the recipient thereof to return
to the former the amounts already paid with legal interest
from the dates of actual payment, without prejudice to the
right of the recipient to obtain reimbursement in a separate
action from the person legally obliged to give the support.
Should the recipient fail to reimburse said amounts, the
person who provided the same may likewise seek
reimbursement thereof in a separate action from the person
legally obliged to give such support (Section 7, Rule 61).
SPECIAL CIVIL ACTIONS
Interpleader (Rule 62)
Declaratory Relief (Rule 63)
Review of Judgment and Final Order of COMELEC and COA (Rule 64)
Certiorari, Prohibition, Mandamus (Rule 65)
Quo Warranto (Rule 66)
Expropriation (Rule 67)
Foreclosure of Real Estate Mortgage (Rule 68)
Partition (Rule 69)
Forcible Entry and Unlawful Detainer (Rule 70)
Contempt (Rule 71)

Rule 62
Interpleader
 Meaning of Interpleader
 It is a special civil action filed by a person against whom
two conflicting claims are made upon the same subject
matter and over which he claims no interest, or if he
claims interest, the same is not disputed by the parties.
This action is brought against the conflicting claimants
to compel them to interplead and litigate their claims
among themselves
When is interpleader proper?
 Whenever conflicting claims upon the same subject
matter are or may be made against a person who
claims no interest whatever in the subject matter, or an
interest which in whole or in part is not disputed by
the claimants, he may bring an action against the
conflicting claimants to compel them to interplead
and litigate their several claims among themselves (Sec.
1, Rule 62).
Requisites of Interpleader
There must be two or more claimants with adverse
and conflicting interest upon a subject matter
The conflicting claims involve the same subject
matter
The conflicting claims are made upon the same
person
The plaintiff has no claim or his interest, in whole or
in part in the subject is not disputed by the claimants
What is the jurisdiction of interpleader?
 It depends on the subject matter of the conflicting
claims:
 If the subject matter of the action is personal
property – determine the value of the property
 If the conflicting claims involve right to receive
particular sum – determine the amount of the sum
claimed
 If the subject matter is real property – determine
the assessed value of the property
 If the subject matter is incapable of pecuniary
estimation - RTC
Rule 63
Declaratory Relief
 Meaning
◦ Declaratory relief is defined as an action by any person interested

in a deed, will, contract or other written instrument, executive
order or resolution, to determine any question of construction or
validity arising from the instrument, executive order or regulation,
or statute; and for a declaration of his rights and duties
thereunder. The only issue that may be raised in such a petition is
the question of construction or validity of provisions in an
instrument or statute (Province of Camarines Sur vs. CA,
600 SCRA 569).
For what purpose is declaratory relief
filed?
To determine any question of

construction or validity arising
from the subject of the action;
Seek a declaration of
petitioner’s rights thereunder.
What are the actions that may be brought
under Rule 63?
 An action to determine any question of construction
or validity arising, and for a declaration of his rights or
duties, thereunder – Declaratory Relief.
 An action for the reformation of an instrument, to

quiet title to real property or remove clouds
therefrom, or to consolidate ownership under
Article 1607 of the Civil Code (Sec. 1, Rule 63)
What are the requisites of declaratory
relief?
 The subject matter must be deed, will, contract or other
written instrument, or whose rights are affected by a
statute, executive order or regulation, ordinance, or any
other governmental regulation;
 The terms of said statute or document and the validity
thereof are doubtful and require judicial construction;
 There must have been no breach of the statute or
document;
 There must be actual justiciable controversy
 The issue is ripe for judicial determination;
 Adequate relief is not available.
Please take note:
 Declaratory relief must be filed before any breach or
violation. If the law or contract has been violated prior
to the filing of declaratory relief, the latter recourse
should be dismissed (Malana vs. Tappa, 600 SCRA
189).
 BUT: If the breach occurred during the pendency of

declaratory relief, the latter will converted to ordinary
civil action (Sec. 6, Rule 63).
What are the subject matter in a petition for
declaratory relief? ( CESO DAW)
 Deed
 Will
 Contract or other written instrument
 Statute
 Executive order or regulation,
 Ordinance
 Any other governmental regulation
 NOTE:These are exclusive
Illustration of exclusivity of grounds
 An order the RTC denying petitioner’s motion to

suspend the implementation of writ of execution
cannot become a subject matter of declaratory
relief (Mangahas vs. Paredes, 515 SCRA 709,
716).
 Final
decision of the court cannot be the subject of
declaratory relief (Reyes vs. Dison, 628 SCRA 1,
15).
Who may file the petition?
“Any
• if subject is deed, will, contract,
interested or other written instrument;
party”
“Persons • if the subject is statute, executive

whose rights order, regulation, ordinance or
are affected” any other government regulation.
Which court has jurisdiction?
 The RTC has jurisdiction as declaratory relief raises issue which is
incapable of pecuniary estimation (Sec. 19[1], BP 129; Sec.1, Rule
63).
 SC has no original jurisdiction over declaratory relief (Clark
Investors and Locators Assn. vs. Secretary, July 6, 2015).
 If the action is for quieting of title to real property, the jurisdiction
depends upon the assessed value of the real property (Heirs of
Valeriano S. Concha vs. SPS Lumucso, 540 SCRA 1, 16).
 Action for reformation of contract should be treated as action in
capable of pecuniary estimation, hence RTC.
 An action for consolidation of ownership is an action incapable of
pecuniary estimation (Cruz vs. Leis, 327 SCRA 570)
Rule 64
Review of the Judgment or Final Order
of COMELEC and COA
 Rule 64 governs the review of the judgment or final
order of the COMELEC and COA.
 The mode of review is via Petition for Certiorari
under Rule 65 (Aratuc vs. Comelec, 88 SCRA
251, 272).
 The ground upon which the petition must be filed is
on jurisdictional ground, that is, the COLEMEC or
COA acted without jurisdiction or committed grave
abuse of discretion amounting to lack or excess of
jurisdiction.
When should petition be filed?
 The petition shall be filed within thirty (30) days from

notice of the judgment or final order or resolution
sought to be reviewed (Sec 3, Rule 64).
Does Neypes or “fresh period” rule
apply to judgment or final order of
COMELEC and COA?
 NO. Section 3, Rule 64 provides:
 “If the motion is denied, the aggrieved party may file
the petition within the remaining period, but which
shall not be less than five (5) days in any event,
reckoned from notice of denial” (Pates vs. Comelec,
591 SCRA 491; Lokin vs. Comelec, June 26,
2012).
What is the period to file the Petition?
 The petition shall be filed within thirty (30) days from

notice of the judgment or final order or resolution
sought to be reviewed (Sec. 3, id.).
What is the effect of filing the
petition on the judgment or
final order?
 The filing of a petition for certiorari shall not stay the

execution of the judgment or final order or
resolution sought to be reviewed, unless the Supreme
Court shall direct otherwise upon such terms as it
may deem just. (Sec. 8, id.).
Rule 65
Certiorari, Prohibition, Mandamus
 Certiorari
 It is also called “prerogative writ” because it is not
demandable as a matter of right.
 Its purpose is the correction of errors of jurisdiction
which includes commission of grave abuse of discretion
amounting to lack or excess of jurisdiction.
 It is an original and independent action and not a mode of
appeal.
 Certiorari cannot be substitute for appeal or lost appeal.
Certiorari cannot be substitute for lost appeal:
EXCEPTIONS
 When public welfare and the advancement of public
policy dictates.
 When broader interest of justice so require.
 When writs issued are null and void.
 When the questioned order amounts to an oppressive
exercise of judicial authority.
Rule 45 vs. Rule 65
 Certiorari under Rule 45 is a mode of appeal while
certiorari under Rule 65 is a special civil action.
 Certiorari under Rule 45 is just a continuation of the
appellate process of the original case, but under Rule 65, it is
an original action.
 Certiorari under Rule 45 seeks to review the judgment
while certiorari under Rule 65 seeks to annul the
proceedings or judgment.
 Certiorari under Rule 45 raises questions of law while under
Rule 65, it raises question of jurisdiction.
Rule 45 vs. Rule 65
 Certiorari under Rule 45 is to be filed within 15 days from
receipt of judgment or final order while the period to file
certiorari under Rule 65 is either 30 or 60 days
 Certiorari under Rule 45 does not require filing of MR, while
in certiorari under Rule 65, the filing of MR is required.
 The parties in certiorari under Rule 45 are the same parties
to the action while the parties in Rule 65 are the tribunal,
board or officer exercising quasi-judicial function.
 Certiorari under Rule 45 may only be filed before SC, while
certiorari under Rule 65 may be filed with the RTC.
Essential requisites for a petition for
certiorari
 1. The petition is directed against a tribunal, board, or
officer exercising judicial or quasi-judicial functions.
 2. Such tribunal, board, or officer has acted without or
in excess of jurisdiction or with grave abuse of
discretion amounting to lack or excess of jurisdiction.
 3. There is neither appeal nor plain, speedy or
adequate remedy in the ordinary course of law for the
purpose annulling or modifying the proceeding.
First Requisite
The respondent must be exercising
judicial or quasi-judicial function.
 What is judicial function? – It is the power to

determine what the law is and what the legal rights of
the parties are, and then undertakes to determine
these questions and adjudicate the rights of the parties
(Aquino vs. Municipality of Malay, September 29,
2014).
What is quasi-judicial function?
 It is the power of an administrative agency to

investigate facts or ascertain the existence of facts, hold
hearings, and draw conclusions from them as a basis for
its official action and to exercise discretion of a judicial
nature (Aquino vs. Municipality of Malay,
September 29, 2014).
Illustration
 A petition for certiorari challenging the validity of the Human Security
Act of 2007 filed against the Anti-Terrorism Council and its members
was dismissed as said council is not exercising judicial or quasi-judicial
function (Southern Hemisphere Engagement Network vs. Anti
Terrorism Council, 632 SCRA 146, 166).
 Petition for certiorari will not lie against the RTWPB for the wage
order that it issued because what was exercised is quasi-legislative
function (MBTC vs. NWPC, 514 SCRA 346, 357-358).
 Petition for certiorari will not lie to question the EO issued by the
President for the reason that the same was issued in the exercise of
the president’s quasi-legislative power (Galicto vs. Aquino, 667
SCRA 150, 165).
Expanded scope of Certiorari
 “Petition for certiorari and prohibition are appropriate
remedies to raise constitutional issues and to review
and/or prohibit or nullify the acts of legislative and
executive officials” (Araullo vs. Aquino, III, July 1,
2014).
 The basis of this pronouncement is the second
paragraph of Section 1,Article VIII of the Constitution.
Second Requisite
Lack, excess, grave abuse
 Without jurisdiction denotes the tribunal, board or
officer acted with absolute lack of authority.
 Excess of jurisdiction – when the public respondent
exceeds its power or acts without statutory authority.
 Grave abuse of discretion – connotes such
capricious and whimsical exercise of judgment as to be
equivalent to lack or excess of jurisdiction or the
power is exercised in an arbitrary or despotic manner
by reason of passion, prejudice or personal hostility.
Third Requisite
No appeal and other speedy remedy
 Certiorariis not available where the aggrieved

party’s remedy of appeal is plain, speedy and
adequate remedy in the ordinary course of law.
 Certiorari cannot be a substitute for appeal much

less lost appeal.
Certiorari cannot be substitute for lost appeal:
EXCEPTIONS
 When public welfare and the advancement
of public policy dictates.
 When broader interest of justice so
require.
 When writs issued are null and void.
 When the questioned order amounts to
an oppressive exercise of judicial authority.
Rule: Necessity of MR, Exceptions:
 The order is patent nullity.
 The issue has been duly raised and passed by the lower
court.
 There is an urgent necessity for the resolution of the
question.
 The subject matter of the action is perishable.
 Petitioner is deprived of due process.
 MR would be useless under the circumstances.
 Relief from arrest is urgent.
 The proceedings is a total nullity.
 The issue is one purely of law.
What are the formal requirements for filing
the petition?
 Filing of a verified petition.
 The petition shall be accompanied by a certified true
copy of the judgment, order or resolution subject
thereof.
 Copies of all pleadings and documents relevant and
pertinent thereto.
 Sworn certification of non-forum shopping as provided
in the paragraph of Section 3, Rule 46 (Sec. 1, Rule 65).
What is the effect if the formal requirements are
not complied with?
 A petition is procedurally flawed if Sec. 1 of Rule 65 is

not complied with because there are documents
important for the court’s appraisal, evaluation and
judicious disposition of the case. Non-observance of
the rule is a sufficient cause for dismissal of the
petition and cannot be merely brushed a mere
technicality (Lim vs. Vianzon, 497 SCRA 482, 492-
493).
What is the period to file the petition?
 The petition may be filed not later than sixty (60) days from
notice of the judgment, order or resolution sought to be assailed
in the Supreme Court or, if it relates to the acts or omissions
of a lower court or of a corporation, board, officer or person, in
the Regional Trial Court exercising jurisdiction over the
territorial area as defined by the Supreme Court. It may also be
filed in the Court of Appeals whether or not the same is in aid
of its appellate jurisdiction, or in the Sandiganbayan if it is in
aid of its jurisdiction. If it involves the acts or omissions of a
quasi-judicial agency, and unless otherwise provided by law or
these Rules, the petition shall be filed in and cognizable only by
the Court of Appeals. (Sec. 4, Rule 65)
May the period be extended?
 Yes, when:
 Most persuasive and weighty reasons.
 To relieve a litigant from injustice
 Good faith of the defaulting party
 Compelling circumstances
 Merits of the case
 Cause not entirely attributable to the defaulting party
 No showing that it is frivolous
 In the name of substantial justice and fair play
 Importance of issues involved (Labao vs. Flores, 634
SCRA 723)
Does the filing of petition stay the
proceedings?
 NO.
 The petition shall not interrupt the course of the

principal case unless a temporary restraining order or
a writ of preliminary injunction has been issued against
the public respondent from further proceeding in the
case (Sec. 7, Rule 65).
Prohibition
 Concept
 It is an extra-ordinary writ commanding the tribunal,
corporation, board, officer or person, whether exercising
judicial, quasi-judicial or ministerial functions, to desist
from further proceedings when such are conducted
without or in excess of its or his jurisdiction, or with grave
abuse of discretion amounting to lack or excess of
jurisdiction, there being no appeal or any other plain,
speedy, and adequate remedy in the ordinary course of law
(Sec. 2, Rule 65).
Requisites
 (a) it must be directed against a tribunal, corporation,
board or person exercising functions, judicial or
ministerial;
 (b) the tribunal, corporation, board or person has acted
without or in excess of its jurisdiction, or with grave
abuse of discretion; and
 (c) there is no appeal or any other plain, speedy, and
adequate remedy in the ordinary course of law
(Belmonte vs. Deputy Ombudsman, January 13,
2016).
Prohibition vs. Certiorari
 In prohibition, the writ is directed against the
respondent exercising judicial, quasi-judicial and
ministerial function while writ of certiorari is directed
against respondent exercising judicial and quasi-judicial.
 In writ of prohibition the objective is for the
respondent to desist while in certiorari, the objective is
to annul.
Mandamus
 When any tribunal, corporation, board, officer or person unlawfully
neglects the performance of an act which the law specifically enjoins
as a duty resulting from an office, trust, or station, or unlawfully
excludes another from the use and enjoyment of a right or office to
which such other is entitled, and there is no other plain, speedy and
adequate remedy in the ordinary course of law, the person aggrieved
thereby may file a verified petition for mandamus to command the
respondent to do the act required to be done to protect the rights of
the petitioner (Sec. 3, Rule 65)
Subjects of Mandamus
 Neglect to perform an act which the specifically

enjoins as a duty.
 Unlawful exclusion of another from the use and

enjoyment of a right or office to which such other
is entitled.
Mandamus will lie to compel the doing of
a ministerial act
 The act is ministerial if the act is should be performed
under a given state of facts, in a prescribed manner, in
obedience to the mandate of a legal authority, without
regard to the exercise of judgment upon the propriety
or impropriety of the act done (Cudia vs.
Superintendent of PMA, February 24, 2015)
Mandamus will not lie on the following
cases:
 Mandamus will not lie to compel the discretion of
the judge to decide a motion pending before him in
a particular way (Morada vs. Caluag, 5 SCRA
1128, 1130).
 Mandamus will not lie against a government school
or an official with the duty that involves exercise of
discretion like admission of the students (UP vs.
Ayson, 176 SCRA 571, 577)
 Mandamus will not lie to compel UP to allow the
graduation of a student who failed to meet the
requirements (Magtibay vs. Garcia, 120 SCRA
370, 374).
Mandamus will not lie on the following
cases:
 Mandamus will not lie to compel the prosecutor
to file an Information (Hegerty vs. CA, 409
SCRA 285)
 Mandamus will not lie to compel the PMA to
restore cadet’s rights and entitlement as a full-
fledge graduating cadet (Cudia vs.
Superintendent of PMA, February 24,
2015)
Rule 66
Quo Warranto
 Concept
 Itis a proceeding generally defined as an

action against a person who usurp, intrudes
into, or unlawfully holds or exercise a public
office (Tecson vs. COMELEC, 424
SCRA 277, 326) or even a public franchise
(Sec. 1, Rule 66).
Quo warranto that may be brought by the
government:
 (a) Against a person who usurps, intrudes into, or
unlawfully holds or exercises a public office, position
or franchise;
 (b) Against a public officer who does or suffers an
act which, by the provision of law, constitutes a
ground for the forfeiture of his office; or
 (c) Against an association which acts as a
corporation within the Philippines without being
legally incorporated or without lawful authority so to
act (Sec. 1, Rule 66).
May it be filed by an individual?
 YES
A person claiming to be entitled to a public

office or position usurped or unlawfully held
or exercised by another may bring an action
therefor in his own name (Sec. 5, Rule 66).
Who may commence the petition?
Solicitor
General
Public
prosecutor
Private
person
When may the solicitor general or public
prosecutor commence
the petition?
When directed by the President of the

Philippines;
When upon complaint;
Or he has good reason to believe that the

case should be filed (Sec. 2, Rule 66).
What is the jurisdiction and venue of
petition?
 An action under the preceding six sections can be
brought only in the Supreme Court, the Court of
Appeals, or in the Regional Trial Court exercising
jurisdiction over the territorial area where the
respondent or any of the respondents resides, but
when the Solicitor General commences the action, it
may be brought in a Regional Trial Court in the City of
Manila, in the Court of Appeals, or in the Supreme
Court (Sec. 7, Rule 66).
What is the period for the filing of
petition?
 Nothing contained in this Rule shall be construed to
authorize an action against a public officer or employee for
his ouster from office unless the same be commenced
within one (1) year after the cause of such ouster, or
the right of the petitioner to hold such office or
position, arose; nor to authorize an action for damages in
accordance with the provisions of the next preceding section
unless the same be commenced within one (1) year after the
entry of the judgment establishing the petitioner's right to
the office in question (Sec. 11, Rule 66).
Rule 67
Expropriation
 Power of eminent domain is one of the fundamental
powers of the state.
 Sec. 9, Art. III is not a conferment of the power, but rather
a limitation.
 Two requisites for the validity of the exercise of the
power of eminent domain is that 1) it must be exercise
for public purpose; 2) payment of just compensation.
 Power of eminent domain can be used as implement of
police power.
 Expropriation is not limited to acquisition of title. Burden
to a property is tantamount to “taking”.
Concept of “public use”
 The concept has been expanded. It is not limited to
actual “public use”.
 The meaning include “usefulness, utility, or advantage or
what is productive of general benefit…(Vda de Ouano
vs. Republic, 642 SCRA 384, 408-409). Example,
socialized housing (Abad vs. Fil-Homes Relaty Realty
Development Corp., 636 SCRA 247, 254).
Concept of “just compensation”
 It is the full and fair equivalent of property taken form
its owner by the expropriator. The measure is not the
taker’s gain, but the owner’s loss. The word “just” is
used to intensify the meaning of the word
“compensation” and to convey the idea that the
equivalent to be rendered for the property to be taken
shall be real, substantial, full and ample. It is equivalent
to the market value of the property (Republic vs.
Rural Bank of Kabacan, Inc., 664 SCRA 233, 244)
Can the government divert the use
of property taken different from
the purpose for which the
petition was filed?
 No. a condemnor should commit the use of the
property pursuant to the purpose stated in the
petition for expropriation, failing which it should file
another petition for new purpose. If not, then it
behooves the condemnor to return the said property
to its owner, if the latter so desires (Vda. De Ounao
vs. Republic, 642 SCRA 385, 409)
Eminent domain of LGU, requisites:
 There must be an ordinance enacted for the purpose.

 The power of eminent domain is exercised for public
use, purpose or welfare or for the benefit of the poor
and landless.
 It must be exercised through its chief executive.
 Payment of just compensation.
 There must be previous offer to buy but it was refused
(Sec. 19, LGC, RA7160)
What are the stages in expropriation
process?
 First stage – the determination of the authority of
the plaintiff to expropriate. This determination includes
an inquiry into the propriety of the expropriation – its
necessity and the public purpose.
 Second stage – determination of just compensation

(Municipality of Binan vs. Garcia, 180 SCRA 576,
583-584)
What must be alleged in the petition?
 State with certainty the right of the plaintiff to
expropriation and the purpose thereof
 Describe the personal and real property sought to be
expropriated.
 Join as defendants all person owning or claiming to
own, or occupying any property or any interest therein,
showing as far as practicable the interest of defendant.
If the plaintiff cannot identify the owner, it must be so
stated (Sec. 1, Rule 67).
What are the defenses and objection in
the answer?
 If a defendant has no objection or defense to the
action or the taking of his property, he may file and
serve a notice of appearance and a manifestation to
that effect, specifically designating or identifying the
property in which he claims to be interested, within
the time stated in the summons. Thereafter, he shall be
entitled to notice of all proceedings affecting the same
(Sec. 3, Rule 67).
Is omnibus motion rule applicable?
 Yes.
A defendant waives all defenses and objections
not so alleged but the court, in the interest of
justice, may permit amendments to the answer to
be made not later than ten (10) days from the
filing thereof (Sec. 3, Rule 67).
May the defendant be declared in default in
presenting evidence on just compensation?
 No.
 At the trial of the issue of just compensation,
whether or not a defendant has previously
appeared or answered, he may present evidence
as to the amount of the compensation to be paid
for his property, and he may share in the
distribution of the award. (Sec. 3, Rule 67).
 Itis the RTC has jurisdiction because petition for

expropriation is an action incapable of pecuniary
estimation regardless of the value of the subject
property (Barangay San Roque vs. Hiers of
Pastor, 334 SCRA 127, 134).
When is possession on the property
allowed?
 Under the Rules of Court – upon the deposits by
expropriator of an amount equivalent to the assessed
value of the property for purposes of taxation with the
authorized government depositary (Sec. 2, Rule 67).
 After such deposit is made the court shall order the sheriff
or other proper officer to forthwith place the plaintiff in
possession of the property involved and promptly submit a
report thereof to the court with service of copies to the
parties (Sec. 2, id.).
When is possession on the property
allowed?
 Under the LGC – LGU may take possession of the

property upon filing of petition and after making
deposit of 15% of the market value of property based
on the current tax declaration (Sec. 19, LGC.).
 Under R.A. 8974 – with respect to government
infrastructure project, upon filing of complaint and
payment to the owner of sum equivalent100% of the
value of the property based on current relevant zonal
valuation.
Please take note:
 If LGC is not applicable or that the

property taken is not for government
infrastructure project, it is Rule 67,
Section 2 which is applicable with
respect to when possession should be
allowed (Republic vs. Gingoyon, 478
SCRA 474, 515-518).
What is the effect if objections of the
defendant are overruled or the defendant did
not object on the authority and purpose of
the expropriation or no party appears
to object
 The court may issue an order of expropriation declaring

that the plaintiff has a lawful right to take the property
sought to be expropriated, for the public use or purpose
described in the complaint, upon the payment of just
compensation to be determined as of the date of the
taking of the property or the filing of the complaint,
whichever came first (Sec. 4, Rule 67).
What is the nature of order of
expropriation?
 It is a final order which susceptible to appeal. Such

appeal, however, shall not prevent the court from
determining the just compensation to be paid (Sec.4,
Rule 67).
 Also, The right of the plaintiff to enter upon the
property of the defendant and appropriate the same
for public use or purpose shall not be delayed by an
appeal from the judgment (Sec. 11, Rule 67).
What if the RTC is reversed on appeal?
 if the appellate court determines that plaintiff has no

right of expropriation, judgment shall be rendered
ordering the Regional Trial Court to forthwith enforce
the restoration to the defendant of the possession of
the property, and to determine the damages which the
defendant sustained and may recover by reason of the
possession taken by the plaintiff (Sec. 11, Rule 67).
Rule on ascertainment of just
compensation?
 Appointment of 3 commissioners is mandatory (Se. 5,
Rule 67).
 Hearing before commissioners are indispensable.
 Trial with aid of commissioner is substantial right (NPC vs.
De la Cruz, 514 SCRA 56).
 The findings of commissioner may be disregarded by the
Judge but, the latter may do so only for valid reason (NPC
vs. Dela Cruz, id.).
 Just compensation should be determined as of the date of
the taking of the property or the filing of the complaint,
whichever came first (Sec. 4, Rule 67).
What is the effect of non-payment of just
compensation?
 Non-payment of just compensation does not
automatically entitle the private landowner to recover
possession of the expropriated lots. However, in cases
where the government failed to pay just compensation
within five (5) years from the finality of judgment in the
expropriation proceedings, the owners concerned shall
have the right to recover possession of their property
(Republic vs. Lim, 462 SCRA 265, 288-289)
Rule 68
Foreclosure of Real Estate Mortgage
 In an action for the foreclosure of a mortgage or other
encumbrance upon real estate, the complaint shall set forth
the date and due execution of the mortgage; its
assignments, if any; the names and residences of the
mortgagor and the mortgagee; a description of the
mortgaged property; a statement of the date of the note or
other documentary evidence of the obligation secured by
the mortgage, the amount claimed to be unpaid thereon;
and the names and residences of all persons having or
claiming an interest in the property subordinate in right to
that of the holder of the mortgage, all of whom shall be
made defendants in the action (Section 1, Rule 68).
Please take note:
 In an indebtedness subject to mortgage, the creditor has
the following alternative remedies:
◦ To file an action for collection of sum of money.
◦ To foreclose the mortgage.
 The remedies are mutually exclusive; such that the
availment of one, excludes the other. Therefore, if one files
a collection suit and then thereafter files a petition for
foreclosure of mortgage, the same constitute a splitting of
cause of action (Bank of America, NT & SA vs.
Amreican Realty Corp, 321 SCRA 659, 667-669;
Marilag vs. martinez, July 22, 2015).
Jurisdiction of judicial foreclosure
 Judicial foreclosure is a real action. Thus,

jurisdiction depends on the assessed value of real
property.
 Thus, ifthe value of real property is 20K below in

the provinces of 50K below in the NCR, the
jurisdiction is with the MTC; otherwise, it is the
RTC.
What are the different modes of
foreclosing mortgage?
Judicial foreclosure under

Rule 68
Extra-judicial foreclosure under

Act 3135, as amended by 4118
What should be alleged in the complaint?
 Date and due execution of the mortgage;

 its assignments, if any;
 the names and residences of the mortgagor and the
mortgagee;
 a description of the mortgaged property; a statement of
the date of the note or other documentary evidence of
the obligation secured by the mortgage,
 the amount claimed to be unpaid thereon;
 and the names and residences of all persons having or
claiming an interest in the property subordinate in right to
that of the holder of the mortgage, all of whom shall be
made defendants in the action (Section 1, Rule 68).
What should the judgment in judicial
foreclosure contain?
 Ascertainment of the amount due to the plaintiff upon the mortgage debt
or obligation, including interest and other charges as approved by the
court, and costs;
 The sum so found due
 Order the amount found due to be paid to the court or to the judgment
obligee within a period of not less than ninety (90) days nor more than
one hundred twenty (120) days from the entry of judgment,
 and admonition that in default of such payment the property shall be sold
at public auction to satisfy the judgment (Section 2).
 The judgment is appealable.
What is equity of redemption?
 It is the period within which the mortgagor may start
exercising his equity of redemption, which is the right
to extinguish the mortgage and retain ownership of the
property by paying the debt. The payment may be made
even after the foreclosure sale provided it is made
before the sale is confirmed by court (GSIS vs. CFI,
175 SCRA 19, 25).
What is the effect if the mortgagor failed
to pay the sum due within the period
given?
 The court, upon motion, shall order the property to be

sold in the manner and under the provisions of Rule 39
and other regulations governing sales of real estate
under execution (Sec. 3, Rule 57).
 There should be motion, but the motion is ex-parte
(Govt. of PI vs. De Las Lajigas, 55 Phil 668, 672).
What should the mortgagee do, after
the sale of the mortgage property is
made?
 He should file a motion for confirmation of sale (Sec. 3.
Rule 68).
 Here the motion requires notice and hearing (Tiglao vs.
Botones, 90 Phil. 275, 278).
 The confirmation of sale shall operate to divest the rights
in the property of all the parties to action and vest the
rights in the purchaser, subject to the rights of redemption
under the law (Sec. 3, Rule 68).
 Order of confirmation is appealable.
What is the effect of finality of the
confirmation of the sale?
 Upon the finality of the order of confirmation or upon the
expiration of the period of redemption when allowed by
law, the purchaser at the auction sale or last redemptioner,
if any, shall be entitled to the possession of the property
unless a third party is actually holding the same adversely
to the judgment obligor. The said purchaser or last
redemptioner may secure a writ of possession, upon
motion, from the court which ordered the foreclosure
(Sec. 3, Rule 68).
 The motion is ex-parte (Carlos vs. CA, 537 SCRA 247,
253).
Disposition of the proceeds of sale
 They shall, after deducting the costs of the sale, be paid
to the person foreclosing the mortgage, and when
there shall be any balance or residue, after paying off
the mortgage debt due, the same shall be paid to junior
encumbrancers in the order of their priority, to be
ascertained by the court, or if there be no such
encumbrancers or there be a balance or residue after
payment to them, then to the mortgagor or his duly
authorized agent, or to person entitled to it (Sec. 4,
Rule 68).
Is the mortgagee entitled to deficiency?
 Yes.
 If upon the sale of any real property, there be a
balance due to the plaintiff after applying the
proceeds of the sale, the court, upon motion, shall
render judgment against the defendant for any such
balance for which he may be personally liable to the
plaintiff, upon which execution may issue
immediately if the balance is all due at the time of
the rendition of the judgment; otherwise, the plaintiff
shall be entitled to execution at such time as the
balance remaining becomes due under the terms of
the original contract, which time shall be stated in
the judgment (Sec. 6, Rule 68).
Is there still a need to file a separate case to
recover the deficiency?
 No need.
A motion for the recovery of deficiency can

be filed in the same court where judicial
foreclosure was filed (Sec. 6, Rule 68).
Rule 69
Partition
 Partition is defined as the separation, division and
assignment of a thing held in common among those to
whom it may belong (Art. 1079, CC).
 Partition presupposes the existence of a co-ownership
over a property between two or more persons. Thus, a
division of property cannot be ordered by the court
unless the existence of co-ownership is first established
(Co Giuk Lun vs. Co, 655 SCRA 131, 138).
Instances where co-owner may not
demand partition
 There is agreement not to divide for a period of time,
not exceeding ten (10) years (Art. 494).
 The partition is prohibited by the donor for a period
not exceeding 20 years (Art. 494 and 1083 CC)
 When partition is prohibited by law (494, CC)
 When property is not subject to a physical division
(495, CC)
 When condition is imposed but not yet fulfilled (1084,
CC)
Prescription of action for partition
 Itdoes not prescribe. Thus, a co-owner may filed

the action for partition anytime (494, CC).
 However, when of the co-owner repudiated the
co-ownership, and the co-owner is advice of the
repudiation such repudiating co-owner may
acquire ownership thereof thru prescription
(Heirs of Restar vs. Heirs of Cichon, 475
SCRA 731, 738).
 Partition is a real action. Thus, jurisdiction depends on

the assessed value of real property.
 Thus, if the value of real property is 20K below in the

provinces of 50K below in the NCR, the jurisdiction is
with the MTC; otherwise, it is the RTC
What are the stages of partition?
First phase
• Determination whether co-ownership exists.
This phase may end up with the declaration
that plaintiff is not entitled to partition.
Second phase
• Partition shall be done by the court in case the
parties could not agree among themselves.
Please take note:
 Both phases are subject to appeal.
 The action for partition is subject to multiple

appeals and would require record on appeal
(Roman Catholic Archbishop of Manila
vs. CA, 258 SCRA 186, 194).
Who may file the petition?
 A person having the right to compel the partition of real

estate may do so (Sec. 1, Rule 69).
What has to be alleged in the complaint?
 The nature and extent of his title;
 Adequate description of the real estate of which

partition is demanded;
 Joining as defendants all other persons interested in

the property (Sec. 1, Rule 69).
What is the procedure after the court
declared that co-ownership exists and that
the plaintiff has the right to partition
the property?
 Court will direct the parties to partition the property

among themselves (Sec. 2, Rule 69).
 If the don’t agree, the parties shall appoint three (3)
independent commissioners to make the partition (Sec. 2,
Rule 69).
 Commissioners will submit their full and accurate report.
The Court upon receipt of the report, shall through its
clerk of court furnished the parties of the report. They are
allowed to comment or register their objection to the
report within (10) days from the receipt thereof (Sec. 7,
Rule 69).
What should be the action of the court after the filing
of the report?
 Court may, upon hearing, accept the report and render
judgment in accordance therewith;
 For cause shown, recommit the same to the
commissioners for further report of facts;
 Or set aside the report and appoint new commissioners;
 Or accept the report in part and reject it in part; and may
make such order and render such judgment as shall
effectuate a fair and just partition of the real estate, or of
its value, if assigned or sold as above provided, between
the several owners thereof (Sec. 7, Rule 69).
Rule 70
Forcible Entry and Unlawful detainer
What are the three (3) kinds of possessory
action?
Accion
interdictal
Accion
publiciana
Accion
reinvindicatoria
Which court has jurisdiction over
possessory actions?
 Accion interdictal – MTC, regardless of the value of
real property and amount of damages or unpaid rentals.
 Accion publiciana – MTC or RTC, depending on the
assessed value of the real property.
 Accion reindivicatoria – MTC or RTC, depending on
the value of the real property.
What are the two causes of actions under
Rule 70?
 Forcible entry – an action to recover possession of a
property from the defendant whose occupation thereof is
illegal from the beginning since he acquired possession by
force, intimidation, threat, strategy or stealth.
 Unlawful detainer – an action for recovery of
possession from the defendant whose possession of the
property was lawful from the beginning, but became illegal
when he continued his possession despite the termination
of his right thereunder (Sarmieta vs. Manalite
Homeowners Association, 632 SCRA 538, 546).
Section 1, Rule 70 gives the two causes of
action
 a person deprived of the possession of any land or
building by force, intimidation, threat, strategy, or
stealth – forcible entry
 lessor, vendor, vendee, or other person against whom
the possession of any land or building is unlawfully
withheld after the expiration or termination of the
right to hold possession, by virtue of any contract,
express or implied – unlawful detainer
What should be alleged in forcible entry?
Plaintiff had prior physical possession.
That defendant deprived plaintiff of his

possession by means of force, intimidation,
threat, strategy or stealth (FITSS).
Please take note:
 Priorphysical possession is the primary

consideration in a forcible entry case. A
party who can prove prior physical
possession can recover such
possession even against the owner
himself (Antazo vs. Doblada, 611
SCRA 586).
What is the meaning of prior
physical possession in forcible
entry cases?
 While prior physical possession is an indispensable
requirement in forcible entry cases, emphasis should be
made however that possession can be acquired not only by
material occupation, but also by the fact that a thing is
subject to the action of one's will or by the proper acts and
legal formalities established for acquiring such right.
 Possession can be acquired by juridical acts. These are acts
to which the law gives the force of acts of possession.
 Juridical acts were sufficient to establish the plaintiff's prior
possession of the subject property. (Mangaser vs. Ugay,
December 3, 2014).
What should be alleged in the complaint for unlawful
detainer?
 Possession of the property by the defendant was by
contract with or by tolerance of the plaintiff.
 Such possession became illegal upon notice by the plaintiff
to the defendant of the termination of the latter’s
possession.
 Defendant remained in possession of the property and
deprived the plaintiff enjoyment thereof.
 Within one (I) year from the last demand on the defendant
to vacate the property, the plaintiff instituted the complaint
for ejectment (Romullo vs. Samahang
Magkakapitbahay ng Bayanihan Compound
Homeowners Association, 632 SCRA 411, 419-420).
What is the effect if there is failure to
allege facts necessary for forcible entry
and unlawful detainer?
 The jurisdictional facts must appear on the face of the

complaint. When the complaint fails to aver facts
constitutive of forcible entry or unlawful detainer, as
where it does not state how entry was effected or how
and when dispossession started, the remedy should
either be an accion publiciana or accion reinvindicatoria
(Jose vs. Alfuerto, November 26, 2012; Suarez vs.
Emboy, March 12, 2014).
Forcible entry vs. unlawful detainer
 In forcible entry, there must be an allegation of prior
possession of the plaintiff; in unlawful detainer, the
allegation should how the possession of the defendant
becomes illegal.
 In forcible entry, demand to vacate is not needed; in
unlawful detainer, demand to vacate is a prerequisite.
 In forcible entry, the one-year period to file action should
be counted from the date of actual entry; while in unlawful
detainer the one-year period to file action must be
counted from the date of the last demand to vacate.
Please take note:
 When the entry is by stealth, the one-year period to file action
should reckoned from the discovery of entry (Nunez vs.
SLTEAS Phoenix Solutions, Inc., 618 SCRA 134, 142).
 When possession is by tolerance, it becomes illegal upon
demand to vacate by the owner and the possessor by tolerance
refuses to comply with such demand (Piedad vs. Gurieza,
June 18, 2014).
 The rule on tolerance does not apply in a case where there
was forcible entry at the start (Munoz vs. CA, 214 SCRA 216,
224). Hence, in this case, unlawful detainer is not the proper
remedy (Jose vs. Alfuerto, November 26, 2012).
Nature of interdictal cases
 It is both real and in personam

Unlawful detainer in
lease contract cases
 Unless otherwise stipulated, such action by the lessor
shall be commenced only after demand to pay or
comply with the conditions of the lease and to
vacate is made upon the lessee, or by serving written
notice of such demand upon the person found on the
premises, or by posting such notice on the premises if
no person be found thereon, and the lessee fails to
comply therewith after fifteen (15) days in the case of
land or five (5) days in the case of buildings (Sec. 2,
Rule 70).
Demand is to “pay unpaid rental or
to vacate”. Will this make out a
case of unlawful detainer?
 No. It should be demand to pay and vacate.
 A demand in the alternative to pay the increased rental
or otherwise vacate the land is not a demand that will
give rise to an unlawful detainer case (Penas vs. CA,
233 SCRA 744, 747).
What is the form of demand?
 Written notice of such demand upon the person
found on the premises, or by posting such notice on
the premises if no person be found thereon (Sec.
2, Rule 70).
 How about verbal demand?
 Yes (Jakihaca vs.Aquino, 181 SCRA 67)
When is right to commence action in
lease contract?
 When the lessee fails to comply therewith after fifteen

(15) days in the case of land or five (5) days in the case
of buildings.
“Tacita reconduccion”
 atthe end of the lease contract, the lessee

should continue enjoying the property
leased for 15 days with the consent of the
lessor, and no notice to the contrary has
been given, it is understood that there is an
implied new lease contract (1670, CC).
What procedure should govern ejectment
cases?
 Exceptin cases covered by the agricultural
tenancy laws or when the law otherwise
expressly provides, all actions for forcible
entry and unlawful detainer, irrespective of
the amount of damages or unpaid rentals
sought to be recovered, shall be governed
by the summary procedure hereunder
provided (Sec. 3, Rule 70).
Pleadings allowed
 The only pleadings allowed to be filed are

the complaint, compulsory counterclaim and
cross-claim pleaded in the answer, and the
answers thereto. All pleadings shall be
verified (Sec. 4, Rule 70).
Can the court motu propio dismiss the
complaint?
 YES
 The court may, from an examination of the
allegations in the complaint and such evidence
as may be attached thereto, dismiss the case
outright on any of the grounds for the
dismissal of a civil action which are apparent
therein. If no ground for dismissal is found, it
shall forthwith issue summons (Sec. 5, Rule 5)
.
Answer to Complaint
 Within ten (10) days from service of summons, the
defendant shall file his answer to the complaint and serve a
copy thereof on the plaintiff. Affirmative and negative
defenses not pleaded therein shall be deemed waived,
except lack of jurisdiction over the subject matter.
 Cross-claims and compulsory counterclaims not asserted
in the answer shall be considered barred. The answer to
counterclaims or cross-claims shall be served and filed
within ten (10) days from service of the answer in which
they are pleaded (Sec. 6, Rule 70).
Is there default in ejectment cases?
 NO.
 Should the defendant fail to answer the
complaint within the period above provided,
the court, motu proprio or on motion of the
plaintiff, shall render judgment as may be
warranted by the facts alleged in the
complaint and limited to what is prayed for
therein (Sec. 7, Rule 70).
What should the court do in case
tenancy relationship is alleged in
the answer?
 Where tenancy is raised as a defense, the court must

conduct a hearing on the matter to determine the
veracity of the allegations of tenancy (Onquit vs.
Binamira-Parcia, 297 SCRA 354).
Procedure in the MTC
Filing of the
complaint
The court shall render

Filing of answers a judgment within 30
within 10 days days after the case
from summons shall have been
submitted for decision.
After receipt of
Preliminary preliminary conference
order, parties shall file
conference their position papers
within 10 days
Immediate execution
If judgment is rendered
against the defendant,
execution shall issue
immediately upon motion.
How to stay the execution of
judgment
 Appeal is perfected and the defendant files
a sufficient supersedeas bond, approved by
the Municipal Trial Court and executed in
favor of the plaintiff to pay the rents,
damages, and costs accruing down to the
time of the judgment appealed from. (Sec.
19, Rule 70).
judgment
 And during the pendency of the appeal,
he deposits with the appellate court
the amount of rent due from time to
time under the contract, if any, as
determined by the judgment of the
Municipal Trial Court. (Sec. 19, Rule
70).
judgment
 Inthe absence of a contract, he shall deposit
with the Regional Trial Court the reasonable
value of the use and occupation of the premises
for the preceding month or period at the rate
determined by the judgment of the lower court
on or before the tenth day of each succeeding
month or period (Sec. 19, Rule 70).
Decision of the RTC is executory
 The judgment of the Regional Trial

Court against the defendant shall be
immediately executory, without
prejudice to a further appeal that may
be taken therefrom (Sec. 21, Rule 70).
Rule 71
Contempt
 Direct contempt
 A person guilty of misbehavior in the presence of or
so near a court as to obstruct or interrupt the
proceedings before the same, including disrespect
toward the court, offensive personalities toward
others, or refusal to be sworn or to answer as a
witness, or to subscribe an affidavit or deposition
when lawfully required to do so, may be summarily
adjudged in contempt by such court (Sec. I, Rule 71)
Penalty for direct contempt
 a fine not exceeding two thousand pesos or
imprisonment not exceeding ten (10) days, or both, if it
be a Regional Trial Court or a court of equivalent or
higher rank, or
 by a fine not exceeding two hundred pesos or
imprisonment not exceeding one (1) day, or both, if it
be a lower court (Sec. 1, Rule 71).
Remedy of the person adjudged of direct
contempt
 The person adjudged in direct contempt by any court
may not appeal therefrom, but may avail himself of the
remedies of certiorari or prohibition. The
execution of the judgment shall be suspended pending
resolution of such petition, provided such person files a
bond fixed by the court which rendered the judgment
and conditioned that he will abide by and perform the
judgment should the petition be decided against
him.(Sec. 2, Rule 71).
Acts constituting indirect contempt
 Misbehavior of an officer of a court in the performance
of his official duties or in his official transactions;
 Disobedience of or resistance to a lawful writ, process,
order, or judgment of a court;
 Any abuse of or any unlawful interference with the
processes or proceedings of a court not constituting
direct contempt under Section 1 of this Rule;
Acts constituting indirect contempt
 Any improper conduct tending, directly or indirectly, to
impede, obstruct, or degrade the administration of
justice;
 Assuming to be an attorney or an officer of a court, and
acting as such without authority;
 Failure to obey a subpoena duly served;
 The rescue, or attempted rescue, of a person or
property in the custody of an officer by virtue of an
order or process of a court held by him (Sec. 3, Rule
71).
How is indirect contempt commenced?
 By order of the court, or a formal charge by the

offended court. This is in the nature of a show cause
order.
 By verified petition with full requirements of initiatory
pleading for civil action. It is treated as a separate case
to be docketed separately (Sec. 4, Rule 71).
Where should the charge be filed?
 Where the charge for indirect contempt has been
committed against a Regional Trial Court or a court of
equivalent or higher rank, or against an officer appointed
by it, the charge may be filed with such court;
 Where such contempt has been committed against a
lower court, the charge may be filed with the Regional
Trial Court of the place in which the lower court is sitting.
 proceedings may also be instituted in such lower court
subject to appeal to the Regional Trial Court of such place
in the same manner as provided in Section 2 of this Rule
(Sec. 5, Rule 71).
EXECUTION
Meaning of execution
 Execution is a remedy afforded for the satisfaction
of a judgment. Its object being to obtain
satisfaction of the judgment on which the writ is
issued (Cagayan de Oro Coliseum vs. CA, 320
SCRA 731, 754).
 It is the fruit and the end of the suit, and is the life
of the law (Ayo Violago-Isnani, 308 SCRA 543,
551).
Which part of the decision is executed?
 The dispositive portion of the decision is that part of
the decision which is executed.
 The dispositive portion is that which vests rights upon
the parties, sets condition for the exercise of those
rights, and imposes the corresponding duties and
obligations. Hence if there is a conflict between the
dispositive portion of the decision and the body
thereof, the dispositive portion controls irrespective of
what appears in the body (Globe Telecom, Inc., vs.
Florendo-Flores, 390 SCRA 201, 210).
Writ of execution should conform to the
dispositive portion
 The writ may not vary the terms of judgment to be executed
(Buan vs. CA, 235 SCRA 424, 432). Thus, if the judgment does
not provide for the payment of interest, the writ of execution
cannot modify the judgment by requiring the judgment obligor
to pay interest. That part of the writ imposing interest is void
(Solidbank Corporation vs. CA, 379 SCRA 159, 166). An
order of execution which does not conform to the dispositive
portion of the decision sought to be enforced is null and void
(Lao vs. King, 500 SCRA 280).
When is execution a matter of right?
 SECTION 1. Execution Upon Judgments or Final Orders.
— Execution shall issue as a matter of right, on motion, upon a
judgment or order that disposes of the action or proceeding upon
the expiration of the period to appeal therefrom if no appeal has
been duly perfected (Rule 39).
 It is ministerial duty of the court to issue writ of execution when
the judgment is already final. Thus, the act may be compelled by
mandamus. This is base on the principle of immutability of
judgment (Philippine Trust Co. vs. Roxas, GR 171897,
Otober 14, 2015).
When is execution a matter of discretion?
 SECTION 2(a) – Execution of a judgment or final order pending appeal.
— On motion of the prevailing party with notice to the adverse party
filed in the trial court while it has jurisdiction over the case and is
in possession of either the original record or the record on
appeal, as the case may be, at the time of the filing of such motion, said
court may, in its discretion, order execution of a judgment or final order
even before the expiration of the period to appeal.
 After the trial court has lost jurisdiction, the motion for execution
pending appeal may be filed in the appellate court.
 Discretionary execution may only issue upon good reasons to be stated
in a special order after due hearing (Rule 39).
What are the requisites for
discretionary execution?
 There must be motion filed by the prevailing party with
notice to the adverse party;
 There must be a hearing of the motion for discretionary
execution;
 The motion must be filed in the trial court while it has
jurisdiction over the case and is in possession of either the
original record or record on appeal;
 There must be good reason to justify the discretionary;
 Good reason must be stated in a special order.
Is frivolous appeal a good reason to grant a
discretionary execution of judgment?
 No.
 Where the sole reason given by the trial court in allowing
execution is that the appeal is frivolous and dilatory,
execution pending appeal cannot be justified because the
authority to disapprove an appeal pertains to the appellate
court (International School, Inc., [Manila] vs. Court of
Appeals, 309 SCRA 474, 483).
 Mere allegation that the appeal is dilatory is not a good
reason to merit discretionary execution (Intramuros
Tennis Club vs. CA, 341 SCRA 90, 107).
Is posting of bond enough reason to grant execution pending appeal?
 No.
The mere filing of a bond by the successful party is not in itself a
good reason for ordering execution pending appeal, because it is
the combination of circumstances which is the dominating
reason that would justify immediate execution, the bond only
an additional factor (International School, Inc., [Manila]
vs. Court of Appeals, 309 SCRA 474, 483).
 Otherwise, what the prevailing party would do is just to post a
bond, and execution pending appeal will be issued as a matter
of course (Roxas vs. CA, 157 SCRA 370).
Example of good reasons
 Where there is danger of the judgment becoming
ineffectual, as where the losing party is disposing of its
assets (Scottish Union & National Insurance Co.
vs. Macadaeg, 91 Phil. 891) or where the articles
subject of the case would deteriorate (Federation of
United NAMARCO vs. CA, 4 SCRA 867).
 Where the judgment debtor is insolvent or in
imminent danger of being insolvent (Santos vs.
Mojica, Jan. 4, 1969).
Suppose the Court granted the motion for
execution in cases where it is discretionary,
how can execution be stayed?
 It can be stayed by filing a sufficient

supersedeas bond which will guaranty the
performance of the judgment or order
allowed to be executed in case it shall be
finally sustained in whole or in part (Section
3, Rule 39).
Is motion necessary for the issuance of writ
of execution?
 Yes. Motion is necessary. It is extant from the
Section 1, Rule 39. Motion is required even if the
judgment is already final and executory (Ilaw
Buklod ng Manggagawa [IMB] vs. Nestle
Philippines, Inc., September 23, 2015).
 Judge, therefore, may not order the execution
motu prio (Lou vs. Siapno, 335 SCRA 181).
Is it required that the losing party be notified of
the motion for execution?
We have repeatedly held that once a judgment becomes final,
the prevailing party is entitled as a matter of right to a writ of
execution and its issuance is the trial court's ministerial duty.
When a prevailing party files a motion for execution
of a final and executory judgment, it is not mandatory
for such party to serve a copy of the motion to the
adverse party and to set it for hearing. The absence of
such advance notice to the judgment debtor does not
constitute an infringement of due process (Mejia-Espinoza
vs. Carino, GR193397, January 25, 2017).
Where should one file his motion for
execution?
 Execution shall be applied for in the COURT OF ORIGIN.
 If the appeal has been duly perfected and finally resolved, the
execution may forthwith be applied for in the court of origin, on
motion of the judgment obligee, submitting therewith certified
true copies of the judgment or judgments or final order
or orders sought to be enforced and of the entry
thereof, with notice to the adverse party (Section 1,
Rule 39).
 NOTE: In an appealed decision, there is no need to wait for
the records of the case.
May one file the motion for execution with
the appellate court?
The appellate court may, on

motion in the same case, when
the interest of justice so
requires, direct the court of
origin to issue the writ of
execution (Sec. 1, Rule 39).
What is the lifetime of the writ of
execution?
The writ shall continue in effect during

the period within which the judgment
may be enforced. Hence the writ may be
enforced within the five-year period
from entry of judgment because
within that period, the writ may be
enforced by motion (Sec. 6, Rule 39).
How may final and executory judgment or
order be executed?
• Within five (5) years from the date of

By motion its entry.
Section 6, Rule 39
• After the lapse of such time, and before

By action it is barred by the statute of limitations
What is revival of judgment?
 It is an action intended to secure the execution of a previous
judgment which has become dormant after the passage of five
years without it being executed upon motion of the prevailing
party.
 It is not intended to re-open any issue affecting the merits of
the case judgment debtor’s case nor the propriety or
correctness of the first judgment.
 It is a new and an independent action separate and distinct from
the previous action sought to be revived. The cause of action is
the judgment itself (Saligumba vs. Palanog, 573 SCRA 8,
15-16).
What are the defenses that may be
invoked in an action to revive?
 Jurisdictional defenses
 Prescription
 Payment
 Other defenses arising after the finality of judgment
 NOTE:
 It may even be subject to counterclaims arising out of
the transactions not connected with the former
controversy (Basilonia vs.Villaruz, August 10, 2015)
Please take NOTE:
 The revived judgment may also be enforced by
motion within five (5) years from the date of its
entry and thereafter by action before it is barred by
the statute of limitations (Section 6, Rule 39;
PNB vs. Bondoc, 14 SCRA 770, 770-772).
 The rule abandoned the previous ruling of the
Supreme Court in PNB vs Deloso and Luzon
Surety vs. IAC.
Which court has jurisdiction over an
action for revival of judgment?
Heirs of Miranda, Sr., vs. Miranda, GR 179638, July 8,
2013 – An action for revival of judgment may be filed either in
the same court where the judgment was rendered or in the
place where the plaintiff or defendant resides or in any other
place designated by the statutes.
VENUE:
Infante vs. Aran Builders, 531 SCRA 123 – the proper
venue depends on the determination of whether the present
action for revival judgment is real or personal action.
Please take NOTE:
 If the writ of execution was issued and levy made within
five years from entry of the judgment, the auction sale
may be made even after the five year period. The sale of
the property and the proceeds are merely means to
carry the writ of execution and a levy already validly
made. Accordingly and the application of the proceeds
are merely, the levy is the essential act by which the
property is set apart for the satisfaction of judgment
(Government vs. Echaus, 71 Phil. 318; Vda de
Quiambao vs. Manila Motor, 3 SCRA 444).
May the running of the five-year period be
interrupted?
The Court in certain instances, allowed execution of the
judgment by mere motion despite the lapse of he five-year
time. In many instances, the delays in the execution of judgment
were through causes clearly attributable to the judgment
debtor as when he employs legal maneuvers to block the
enforcement of the judgment. Delays attributable to the
defendant have the effect of suspending the running of the
prescriptive period for the enforcement of the judgment
(Camacho vs. CA, 287 SCRA 611; Republic vs. CA, 260
SCRA 344, 349-350).
What are the judgments that are not stayed by appeal?
SECTION 4. Judgments Not Stayed by Appeal. — Judgments in

actions for 1) injunction, 2) receivership, 3) accounting and
4) support, and such other judgments as are now or may
hereafter be declared to be immediately executory, shall be
enforceable after their rendition and shall not be stayed by an
appeal taken therefrom, unless otherwise ordered by the trial
court. On appeal therefrom, the appellate court in its discretion
may make an order suspending, modifying, restoring or granting
the injunction, receivership, accounting, or award of support.
How is execution effected if the obligee or
judgment obligor dies?
 In case of the death of the judgment obligee, upon the application of his
executor or administrator, or successor in interest (Section 7[a], Rule
39).
 In case of the death of the judgment obligor, against his executor or
administrator or successor in interest, if the judgment be for the recovery
of real or personal property, or the enforcement of a lien thereon
(Section 7[b], Rule 39).
 In case of the death of the judgment obligor, after execution is actually
levied upon any of his property, the same may be sold for the satisfaction
of the judgment obligation, and the officer making the sale shall account to
the corresponding executor or administrator for any surplus in his hands
(Section 7[c], Rule 39).
How to execute a money judgment?
 The officer shall enforce an execution of a judgment for money be
demanding from the judgment obligor the immediate payment of the
full amount stated in the writ of execution and all lawful fees. Judgment
obligor shall pay in cash or certified check. It shall be paid directly to
the judgment oblige or his representative. If not available, to the
executing sheriff. (Section 9[a], Rule 39).
 If the cash payment is not sufficient, then the sheriff shall levy any
properties which may be disposed of for value, except properties
exempt from execution. The judgment obligor has the right to choose
what properties to be levied sufficient to satisfy the judgment. If the
obligor did not choose, the officer shall levy personal property first
that are sufficient to satisfy the judgment, then the real properties
(Section 9[a], Rule 39).
How to execute a money judgment?
 The officer may levy on debts due the

judgment obligor and other credits, including
bank deposits, financial interests, royalties,
commissions and other personal property not
capable of manual delivery in the possession
or control of third parties.
 This is garnishment (Section 9[c], Rule 39).
How is garnishment effected?
 1) By serving notice upon the person owing such
debts or having in his possession or control such
credits to which the judgment obligor is entitled.
 2) The garnishee shall make a written report to the
court within five (5) days from service of the notice
of garnishment stating whether or not the
judgment obligor has sufficient funds or credits to
satisfy the amount of the judgment.(Section 9[c],
Rule 39).
How is garnishment effected?
 Ifnot, the report shall state how much funds or credits
the garnishee holds for the judgment obligor. The
garnished amount in cash, or certified bank check
issued in the name of the judgment obligee, shall be
delivered directly to the judgment obligee within ten
(10) working days from service of notice on said
garnishee requiring such delivery, except the lawful fees
which shall be paid directly to the court (Section
9[c], Rule 39).
Execution of money judgment, simplified:
Sec. 9, Rule 39
Sheriff may also
garnish credit and
If judgment debts.
obligor does not
If judgment choose, sheriff
obligor cannot pay shall levy personal
in cash, he shall property first,
Sheriff will then real property
demand for choose property
payment. to be levied and
sold.
Please take NOTE:
 It is not proper for the sheriff to immediately

levy the property of the judgment debtor. He
must first make a demand to pay. Only when the
judgment debtor does not pay, after demand that
the sheriff is authorized to levy the properties of
the judgment debtor (Leachon vs. Pascua,
A.M. No. P-11-2972, September 28, 2011).
How is specific act executed?
 If a judgment directs a party to execute a conveyance of land or
personal property, or to deliver deeds or other documents, or
to perform any other specific act in connection therewith, and the
party fails to comply within the time specified, the court may direct the
act to be done at the cost of the disobedient party by some other
person appointed by the court and the act when so done shall have like
effects as if done by the party. If real or personal property is situated
within the Philippines, the court in lieu of directing a conveyance
thereof may by an order divesting the title of any party and vest
it in others, which shall have the force and effect of a conveyance
executed in due form of law (Section 10 [a], Rule 39).
How is sale of personal or real
property executed?
 If the judgment be for the sale of
real or personal property, to sell
such property, describing it, and apply
the proceeds in conformity with the
judgment. (Section 10 [b], Rule
39).
How is delivery of delivery or
restitution of real property
executed?
 The officer shall demand of the person against whom the
judgment for the delivery or restitution of real property is
rendered and all persons claiming rights under him to peaceably
vacate the property within three (3) working days, and restore
possession thereof to the judgment obligee; otherwise, the officer
shall oust all such persons therefrom with the assistance, if
necessary, of appropriate peace officers, and employing such
means as may be reasonably necessary to retake possession, and
place the judgment obligee in possession of such property.
(Section 10 [c], Rule 39).
How is removal of improvements on
property subject of execution enforced?
 The officer shall not destroy, demolish or
remove said improvements except upon
special order of the court, issued upon motion
of the judgment obligee after due hearing and
after the former has failed to remove the
same within a reasonable time fixed by the
court (Section 10 [d], Rule 39).
How is delivery of personal
property executed?
 In judgments for the delivery of personal
property, the officer shall take possession of
the same and forthwith deliver it to the party
entitled thereto and satisfy any judgment for
money as therein provided (Section 10 [e],
Rule 39).
Is contempt a proper remedy in case the
judgment obligor refuse to vacate
the property?
 No. whatthe sheriff should do is to dispossess him of the

property and if after dispossession, the judgment debtor
should execute acts of ownership or possession or in any
manner disturb the possession of the judgment creditor,
then and only then may he be punished for contempt
(Pascua vs. Heirs of Segundo Simeon, 161 SCRA 1,
5).
What is the effect of levy on
execution to third person?
 The levy on execution shall create a lien in
favor of the judgment obligee over the right,
title and interest of the judgment obligor in
such property at the time of the levy, subject
to liens and encumbrances then existing.
What are properties not subject to
execution?
 (a) The judgment obligor's family home as provided by law, or the
homestead in which he resides, and land necessarily used in
connection therewith;
 (b) Ordinary tools and implements personally used by him in his trade,
employment, or livelihood;
 (c) Three horses, or three cows, or three carabaos, or other beasts of
burden, such as the judgment obligor may select necessarily used by
him in his ordinary occupation;
 (d) His necessary clothing and articles for ordinary personal use,
excluding jewelry;
execution?
 (e) Household furniture and utensils necessary for housekeeping, and used
for that purpose by the judgment obligor and his family, such as the
judgment obligor may select, of a value not exceeding one hundred
thousand pesos;
 (f) Provisions for individual or family use sufficient for four months;
 (g) The professional libraries and equipment of judges, lawyers, physicians,
pharmacists, dentists, engineers, surveyors, clergymen, teachers, and
other professionals, not exceeding three thousand pesos in value;
 (h) One fishing boat and accessories not exceeding the total value of one
hundred thousand pesos owned by a fisherman and by the lawful use of
which he earns his livelihood;
execution?
 (i) So much of the salaries, wages, or earnings of the judgment obligor for
his personal services within the four months preceding the levy as are
necessary for the support of his family;
 (j) Lettered gravestones;
 (k) Monies, benefits, privileges, or annuities accruing or in any manner
growing out of any life insurance;
 (l) The right to receive legal support, or money or property obtained as
such support, or any pension or gratuity from the Government;
 (m)Properties specially exempted by law.
What is the procedure if the property of
third party is levied?
 Basic principle: the execution may issue only upon
a person who is a party to the action or proceeding,
and not against one who did not have his day in
court (Philippine Coconut Federation, Inc., vs.
Republic, October 16, 2016).
 Thus, the property not owned by the judgment
debtor or by one not a party to the case should not
be levied.
 Under the Rules, a person not a party to the action,
claiming a property levied upon may execute an
affidavit of his title or right of possession over the
property. The affidavit shall be served upon the
officer making a levy and a copy thereof must also
be served upon the judgment oblige (Section 16,
Rule 39). This remedy of the claiming party is called
TERCERIA.
 After receipt of the affidavit of claim, what should the
sheriff do?
 The officer shall not be bound to keep the property, unless such
judgment obligee, on demand of the officer, files a bond
approved by the court to indemnify the third-party claimant in a
sum not less than the value of the property levied on. The officer
shall not be liable for damages for the taking or keeping of the
property, to any third-party claimant if such bond is filed.
Suppose damage was incurred by the third
party on account of officer’s taking and keeping
of his property, when should the action against
the bond be filed?
 The action should be filed within one hundred twenty
(120) days from the date of the filing of the bond. Under
Section 16, Rule 39, it is provided that No claim for
damages for the taking or keeping of the property may be
enforced against the bond unless the action therefor is
filed within one hundred twenty (120) days from the date
of the filing of the bond.
What are the remedies of a third party in
case his property is levied?
The third party can

The third party can The third party can
ask the court to
avail the remedy of file a separate action
quash writ of
terceria. to nullify the levy
execution.
Ching vs. CA,

423 SCRA 356
What is the remedy of the judgment
obligee in case the claim of the third party
is frivolous?
 The judgment obligee may claim damages
in the same or a separate action against a
third-party claimant who filed a frivolous
or plainly spurious claim (Section 16,
Rule 39).
Examination of Judgment Obligor When
Judgment Unsatisfied
 When the return of a writ of execution issued against
property of a judgment obligor, or any one of several
obligors in the same judgment, shows that the judgment
remains unsatisfied, in whole or in part, the judgment obligee,
at any time after such return is made, shall be entitled to
an order from the court which rendered the said
judgment, requiring such judgment obligor to appear
and be examined concerning his property and
income before such court or before a commissioner
appointed by it, at a specified time and place; and proceedings
may thereupon be had for the application of the property
and income of the judgment obligor towards the satisfaction
of the judgment (Sec. 36, Rule 39).
Examination of Obligor of Judgment
Obligor
 When the return of a writ of execution against the property
of a judgment obligor shows that the judgment remains
unsatisfied, in whole or in part, and upon proof to the
satisfaction of the court which issued the writ, that a person,
corporation, or other juridical entity has property of such
judgment obligor or is indebted to him, the court may, by an
order, require such person, corporation, or other juridical
entity, or any officer or member thereof, to appear before
the court or a commissioner appointed by it, at a time and
place within the province or city where such debtor resides
or is found, and be examined concerning the same. (Sec. 37,
Rule 39).
RULES ON SUMMARY PROCEDURE
Rationale for Promulgation of the Rule
To achieve an
expeditious
and
inexpensive
determination
of the cases
Applicability
This rule shall govern the summary
procedure in the Metropolitan Trial
Courts, the Municipal Trial Courts in
Cities, the Municipal Trial Courts, and the
Municipal Circuit Trial Courts in the
following cases falling within their
jurisdiction.
Scope
 Civil Cases
 All cases of forcible entry and unlawful detainer,
irrespective of the amount of damages or unpaid rentals
sought to be recovered. Where attorney's fees are
awarded, the same shall not exceed twenty thousand
pesos (P20,000.00).
 All other civil cases, except probate proceedings, where
the total amount of the plaintiff's claim does not exceed
(P200,000.00), exclusive of interest and costs.
Rules of Procedure for Small Claims
Scope This Rule shall govern the procedure in

actions before the Metropolitan Trial
Courts, Municipal Trial Courts in Cities,
Municipal Trial Courts and Municipal
Circuit Trial Courts for payment of money
where the value of the claim does not
exceed Four Hundred Thousand Pesos
(P400,000.00) exclusive of interest and
costs (Section 1, as amended).
Applicability
The Metropolitan Trial Courts, Municipal
Trial Courts in Cities, Municipal Trial
Courts, and Municipal Circuit Trial Courts
shall apply this Rule in all actions which
are purely civil in nature where the claim
or relief prayed for by the plaintiff is
solely for payment or reimbursement of
sum of money.(Section 5, as amended).
Claim and demand from:
 Money owed under the following:
◦ 1. Contract of Lease;
◦ 2. Contract of Loan;
◦ 3. Contract of Services;
◦ 4. Contract of Sale; or
◦ 5. Contract of Mortgage;
 For liquidated damages arising from contract
 Enforcement of Barangay amicable settlement or arbitration
award under the Local Government Code (Section 5, 2016
Revised Rule of Procedure For Small Claims)
Where the RRSP does not apply
 ThisRule shall not apply to a civil case where
the plaintiff's cause of action is pleaded in the
same complaint with another cause of action
subject to the ordinary procedure; nor to a
criminal case where the offense charged is
necessarily related to another criminal case
subject to the ordinary procedure (Section 1,
RRSP).
Please take NOTE:
 SECTION 2. Determination of applicability. — Upon the
filing of a civil or criminal action, the court shall issue an
order declaring whether or not the case shall be
governed by this Rule.
 A patently erroneous determination to avoid the

application of the Rule on Summary Procedure is a
ground for disciplinary action (RRSP).
CIVIL CASE
Section 3 (A)
What are the pleading allowed?
Complaints
Compulsory counterclaims
Cross-claims pleaded in the answer, and

the answers thereto.
Please take NOTE:
Section 3(B)
Verifications. — All
pleadings shall be
verified.
What is the duty of the Court after
determining that a case falls under summary
procedure?
 After the court determines that the case falls under
summary procedure, it may, from an examination of the
allegations therein and such evidence as may be attached
thereto, dismiss the case outright on any of the grounds
apparent therefrom for the dismissal of a civil action.
 If no ground for dismissal is found it shall forthwith issue
summons which shall state that the summary procedure
under this Rule shall apply (Section 4, RRSP).
Within what period should defendant file
his answer?
Within ten (10) days from

service of summons, the
defendant shall file his answer
to the complaint and serve a
copy thereof on the plaintiff
(Section 5, RRSP).
Is the answer of the defendant subject to
omnibus motion rule?
YES. Affirmative and negative

defenses not pleaded therein
shall be deemed waived, except
for lack of jurisdiction over the
subject matter (Section 5,
RRSP).
What is the effect if counterclaim and
cross are not pleaded in the Answer?
Cross-claims and
compulsory counterclaims
not asserted in the answer
shall be considered barred
(Section 5, RRSP).
Within what period should answer to
counter or cross-claim be filed?
The answer to counterclaims or

cross-claims shall be filed and
served within ten (10) days
from service of the answer in
which they are pleaded (Section
5, RRSP).
What is the effect if defendant did not file
an Answer?
 Should the defendant fail to answer the complaint
within the period above provided, the court, motu
proprio, or on motion of the plaintiff, shall render
judgment as may be warranted by the facts alleged in
the complaint and limited to what is prayed for
therein: Provided, however, that the court may in its
discretion reduce the amount of damages and
attorney's fees claimed for being excessive or
otherwise unconscionable (Section 6, RRSP).
Alconera vs. Malajucon, A.M. MTJ-00-1313,
April 25, 2007
 The rules are unequivocal as to what a judge who is hearing
a summary proceeding is supposed to do when the
defendant fails to file his answer within the reglementary
period. The word "shall" indicates that the act of rendering
judgment is mandatory and not discretionary upon him. The
same specific requirement can be found in the rule on
Forcible Entry and Unlawful Detainer proceedings.
Highlighting the absence of discretion is the fact that in the
proviso, the judge is given discretion as to the amount of
damages he is allowed to impose. It was therefore not within
respondent's authority to accept defendant Labao's late
answer.
Fairland Knitcraft Co., vs. Po, GR No.
217694, January 27, 2016
 Section 6 is clear that in case the defendant failed to file his
answer, the court shall render judgment, either motu proprio
or upon plaintiff's motion, based solely on the facts alleged in
the complaint and limited to what is prayed for. The failure of
the defendant to timely file his answer and to controvert the
claim against him constitutes his acquiescence to every
allegation stated in the complaint. Logically, there is
nothing to be done in this situation except to render
judgment as may be warranted by the facts alleged in
the complaint.
Luna vs Mirafuente, A.M. No. MTJ-05-
1610, September 26, 2006
 The word "shall" in the above-quoted sections of the
1991 Revised Rule on Summary Procedure underscores
their mandatory character. Giving the provisions a
directory application would subvert the nature of the
Rule and defeat its objective of expediting the
adjudication of the suits covered thereby. To admit a late
answer is to put a premium on dilatory maneuvers —
the very mischief that the Rule seeks to redress.
When should preliminary conference
scheduled?
 Not later than thirty (30) days after the last

answer is filed, a preliminary conference shall
be held. The rules on pre-trial in ordinary
cases shall be applicable to the preliminary
conference unless inconsistent with the
provisions of this Rule (Section 7, RRSP).
What is the effect of failure of the parties
to appear during PC? Section 7, RRSP
Plaintiff • Dismissal of complaint
Defendant • Entitled to judgment on his

appears, counterclaim
plaintiff did
not • All cross-claims dismissed
What is the effect if the defendant did not
appear?
 Ifa sole defendant shall fail to appear, the plaintiff

shall be entitled to judgment in accordance with
Section 6 hereof. This Rule shall not apply where
one of two or more defendants sued under a
common cause of action who had pleaded a
common defense shall appear at the preliminary
conference (Section 7, RRSP).
Five Star Marketing vs. Booc, GR No.
143331, October 5, 2007
 Applying the foregoing provisions, the MTCC was indeed
empowered to decide the case on the basis of the complaint
filed by the petitioner. The Court once pronounced in the
case of Tubiano v. Razo that the MTC and the RTC were
correct in declaring the decision submitted for decision
based solely on the complaint, upon failure of the petitioner
(respondent herein) to appear at the preliminary conference.
 The word "shall" used in the above cited provision makes
the appearance of the parties mandatory. The Court
excuses the non-appearance only in cases where there is a
justifiable cause offered for the failure to attend.
What should the Court do after
termination of PC?
Within five (5) days after the

termination of the preliminary
conference, the court shall issue an
order stating the matters taken up
therein (Section 8, RRSP).
What are the matters that should be
taken up during PC?
 a) Whether the parties have arrived at an amicable settlement, and
if so, the terms thereof;
 b) The stipulations or admissions entered into by the parties;
 c) Whether, on the basis of the pleadings and the stipulations and
admissions made by the parties, judgment may be rendered
without the need of further proceedings, in which event the
judgment shall be rendered within thirty (30) days from
issuance of the order;
 d) A clear specification of material facts which remain
controverted; and
 e) Such other matters intended to expedite the disposition of the
case (Section 8, RRSP).
When should position paper of the parties
be submitted?
 Within ten (10) days from receipt of the order
mentioned in the next preceding section, the
parties shall submit the affidavits of their
witnesses and other evidence on the factual
issues defined in the order, together with their
position papers setting forth the law and the
facts relied upon by them (Section 9, RRSP).
When should judgment be rendered?
Within thirty (30) days after receipt

of the last affidavits and position
papers, or the expiration of the
period for filing the same, the court
shall render judgment (Section 10,
RRSP).
Please take NOTE:
 Should the court find it necessary to clarify certain
material facts, it may, during the said period, issue
an order specifying the matters to be clarified, and
require the parties to submit affidavits or other
evidence on the said matters within ten (10) days
from receipt of said order. Judgment shall be
rendered within fifteen (15) days after the receipt
of the last clarificatory affidavits, or the expiration
of the period for filing the same.
BUT:
The court shall not

resort to
clarificatory
procedure to gain
time for the
rendition of the
judgment (Section
10, RRSP).
RULES OF PROCEDURE ON SMALL
CLAIMS
Scope This Rule shall govern the procedure in

actions before the Metropolitan Trial
Courts, Municipal Trial Courts in Cities,
Municipal Trial Courts and Municipal
Circuit Trial Courts for payment of money
where the value of the claim does not
exceed Four Hundred Thousand Pesos
(P400,000.00) exclusive of interest and
costs (Section 1, as amended).
Applicability
The Metropolitan Trial Courts, Municipal
Trial Courts in Cities, Municipal Trial
Courts, and Municipal Circuit Trial Courts
shall apply this Rule in all actions which
are purely civil in nature where the claim
or relief prayed for by the plaintiff is
solely for payment or reimbursement of
sum of money.(Section 5, as amended).
Claim and demand from:
 Money owed under the following:
◦ 1. Contract of Lease;
◦ 2. Contract of Loan;
◦ 3. Contract of Services;
◦ 4. Contract of Sale; or
◦ 5. Contract of Mortgage;
 For liquidated damages arising from contract
 Enforcement of Barangay amicable settlement or arbitration
award under the Local Government Code (Section 5, 2016
Revised Rule of Procedure For Small Claims)
Commencement of Small Claims Action
 A small claims action is commenced by filing with the court
an accomplished and verified Statement of Claim in duplicate,
accompanied by a Certification Against Forum Shopping,
Splitting a Single Cause of Action, and Multiplicity of Suits,
and two (2) duly certified photocopies of the actionable
document/s subject of the claim, as well as the affidavits of
witnesses and other evidence to support the claim. No
evidence shall be allowed during the hearing which was not
attached to or submitted together with the Statement of
Claim, unless good cause is shown for the admission of
additional evidence (Section 6).
Commencement of Small Claims Action
 The plaintiff must state in the Statement of Claims if
he/she/it is engaged in the business of lending, banking
and similar activities, and the number of small claims
cases filed within the calendar year regardless of judicial
station.
 No formal pleading, other than the Statement of Claim/s
described in this Rule, is necessary to initiate a small
claims action.
 Non-submission of affidavits may lead to dismissal
of claim(Section 6).
Venue
 The regular rules on venue shall apply.
 However, if the plaintiff is engaged in the

business of lending, banking and similar
activities, and has a branch within the
municipality or city where the defendant
resides, the Statement of Claim/s shall be filed
where that branch is located (Section 7).
Joinder of Claims
 Plaintiff may join in a single statement of
claim one or more separate small claims
against a defendant provided that the
total amount claimed, exclusive of
interest and costs, does not exceed
PHP400,000 (Section 8).
Dismissal of Claims
 After the court determines that the case falls under these
Rules, it may, from an examination of the allegations of the
Statement of Claim/s and such evidence attached thereto, by
itself, dismiss the case outright on any of the grounds for the
dismissal of the case. The order of dismissal shall state if it is
with or without prejudice.
 If, during the hearing, the court is able to determine that
there exists a ground for dismissal of the Statement of
Claim/s, the court may, by itself, dismiss the case even if such
ground is not pleaded in the defendant's Response (Section
11).
Dismissal of Claims
 If plaintiff misrepresents that he/she/it is not engaged in the business
of banking, lending or similar activities when in fact he/she/it is so
engaged, the Statement of Claim/s shall be dismissed with prejudice
and plaintiff shall be meted the appropriate sanctions, such as direct
contempt.
 However, if the case does not fall under this Rule, but falls under
summary or regular procedure, the case shall not be dismissed.
Instead, the case shall be re-docketed under the appropriate
procedure, and returned to the court where it was assigned, subject
to payment of any deficiency in the applicable regular rate of filing
fees. If a case is filed under the regular or summary procedure, but
actually falls under this Rule, the case shall be referred to the
Executive Judge for appropriate assignment (Section 11).
Procedure
Summons, if
Filing of
no ground of Response
verified claim
dismissal
Hearing Decision Execution

Matters to be considered:
 Should the defendant fail to file his/her/its Response within
the required period, and likewise fail to appear on the date
set for hearing, the court shall render judgment on the same
day, as may be warranted by the facts alleged in the
Statement of Claim/s.
 Should the defendant fail to file his/her/its Response within
the required period but appears on the date set for hearing,
the court shall ascertain what defense he/she/it has to offer
which shall constitute his/her/its Response, and proceed to
hear or adjudicate the case on the same day as if a Response
has been filed (Section 14).
 If at the time the action is commenced, the defendant
possesses a claim against the plaintiff that (a) is within the
coverage of this Rule, exclusive of interest and costs; (b)
arises out of the same transaction or event that is the
subject matter of the plaintiff's claim; (c) does not require
for its adjudication the joinder of third parties; and (d) is
not the subject of another pending action, the claim shall
be filed as a counterclaim in the Response; otherwise, the
defendant shall be barred from suing on the
counterclaim. (Section 14).
 The defendant may also elect to file a counterclaim
against the plaintiff that does not arise out of the same
transaction or occurrence, provided that the amount and
nature thereof are within the coverage of this Rule and
the prescribed docket and other legal fees are paid.
(Section 14).
Prohibited Pleadings and Motions
 (a) Motion to dismiss the  (g) Petition for certiorari,
Statement of Claim/s; mandamus, or prohibition
 (b) Motion for a bill of against any interlocutory
particulars; order issued by the court;
 (c) Motion for new trial, or for  (h) Motion to declare the
reconsideration of a judgment, defendant in default;
or for reopening of trial;  (i) Dilatory motions for
 (d) Petition for relief from postponement;
judgment;  (j) Reply and rejoinder;
 (e) Motion for extension of time  (k) Third-party complaints; and
to file pleadings, affidavits, or  (l) Interventions.
any other paper;
 (f) Memoranda;  (Section 16)
Effect of Non-Appearance of Parties
 Failure of the plaintiff to appear shall be cause for the
dismissal of the Statement of Claim/s without prejudice. The
defendant who appears in the absence of the plaintiff shall be
entitled to judgment on a permissive counterclaim.
 Failure of the defendant to appear shall have the same effect
as failure to file a Response under Section 14 of this Rule.
This shall not apply where one of two or more defendants
who are sued under a common cause of action and have
pleaded a common defense appears at the hearing.
 Failure of both parties to appear shall cause the dismissal
with prejudice of both the Statement of Claim/s and the
counterclaim (Section 20).
Decision
 After the hearing, the court shall render its decision
based on the facts established by the evidence (Form 11-
SCC), within twenty-four (24) hours from termination of
the hearing. The decision shall immediately be entered by
the Clerk of Court in the court docket for civil cases
and a copy thereof forthwith served on the parties.
 The decision shall be final, executory and unappealable

(Section 24).
ALTERNATIVE DISPUTE
RESOLUTION
COURT ANNEX MEDIATION
2020 Guidelines for the Conduct of

Court Annexed Mediation and Judicial
Dispute Resolution in Civil Case
A.M. No. 19-10-20-SC

What is the coverage of CAM?
 All civil cases
 All Special civil actions, except Rule 63, 64, 65, and 71
 Special Proceedings cases for settlement of estate where
the dispute involved claims against the estate or
distribution of estate
 Intellectual property cases
 Commercial or intra-corporate dispute
 Environmental cases
 Civil cases covered by Summary Procedure
What are cases not subject to compromise?
 A) Civil cases which cannot be compromised:

◦ Civil status of persons
◦ The validity of marriage or legal separation
◦ Any ground for legal separation
◦ Future support
◦ Jurisdiction of courts
◦ Future legitime
What are cases not subject to compromise?
 B) Habeas corpus
 C) Special proceedings for probate of the will
 D) Cases pending with applications for restraining
order or preliminary injunction.
 In cases covered under paragraphs (a) and (b) where the
parties inform the court that they have agreed to undergo
mediation on some other other aspect thereof, e.g. custody,
of minor children, separation of property, or support
pendente lite, the court shall refer them to mediation.
Procedure for Court Annexed Mediation
(with settlement)
Referral of Conduct of
Setting of CAM
parties and Mediation for
during pre-trial
lawyers to PMC 30 days
If settled draft Submit ComAg

Judgment of the
compromise to court for
Court
agreement approval
Procedure for Court Annexed Mediation
(without settlement)
Referral of Conduct of
Setting of CAM parties and Mediation for 30
lawyers to PMC days
If no settlement, Court shall

mediator will determine of the JDR
report to Court need for JDR
Procedure in JDR
(with settlement)
JDR Judge conducts

Determination of Refer to the JDR
mediation and
the need for JDR Judge
conciliation
If settled, execution Referral of JDR

Judgement based
of Compromise Judge to referring
on Compromise
Agreement Judge
Procedure in JDR
(without settlement)
JDR Judge conducts

Determination of Refer to the JDR
mediation and
the need for JDR Judge
conciliation
If settled, back to
Trial will proceed
referring Judge
Matters to Remember in CAM and JDR
CAM is only for 30 calendar days; extension is not allowed (Section 8,
Rule 18).
JDR, which is for a period of 15 days, is discretionary; extension is not

allowed (Section 8, Rule 18).
Pre-trial must first be terminated before CAR or JDR is conducted

Appearance of lawyer and party is required in CAM and JDR (Section 4,

Rule 18).
Non-appearance of either or both lawyer and party is the same as non-

appearance during pre-trial (Section 5, Rule 18).
Concept of ADR
 It is a system using means and methods
allowed by law and approved by the parties, for
the purpose of resolving or facilitating the
resolution of disputes and controversies
between them, in an expeditious and speedy
manner, without resorting to court
adjudication (Robeniol,ADR, 2015, p. 9).
ADR, defined under the law
 "Alternative Dispute Resolution System" means any
process or procedure used to resolve a dispute or
controversy, other than by adjudication of a presiding
judge of a court or an officer of a government agency, as
defined in this Act, in which a neutral third party
participates to assist in the resolution of issues, which
includes arbitration, mediation, conciliation, early neutral
evaluation, mini-trial, or any combination thereof
(Section 3, RA 9285,ADR Law);
State policy on ADR
 State is to actively promote party autonomy in the resolution of
disputes or the freedom of the parties to make their own
arrangements to resolve their disputes (Section 2,ADR Law).
 Alternative dispute resolution methods or ADRs — like

arbitration, mediation, negotiation and conciliation — are
encouraged by the Supreme Court. By enabling parties to resolve
their disputes amicably, they provide solutions that are less time-
consuming, less tedious, less confrontational, and more
productive of goodwill and lasting relationships (Insular vs. Far
East Bank and Trust Co, G.R. No. 141818, June 22, 2006).
Forms of ADR
 “Arbitration” – means a voluntary dispute resolution
process in which one or more arbitrators, appointed in
accordance with the agreement of the parties, or rules
promulgated pursuant to this Act, resolve a dispute by
rendering an award (Section 3(d),ADR Law).
 “Mediation” – it is a means a voluntary process in which a

mediator, selected by the disputing parties, facilitates
communication and negotiation, and assists the parties in
reaching a voluntary agreement regarding a dispute (Section
3(q),ADR Law).
Forms of ADR
 “Conciliation” – is the adjustment and settlement of a
dispute in a friendly, untagonistic manner (Black’s Law
Dictionary).
 “Neutral Evaluation” – means an ADR process wherein

parties and their lawyers are brought together early in a
pre-trial phase to present summaries of their cases and
receive a non-binding assessment by an experienced,
neutral person, with expertise in the subject in the
substance of the dispute (Section 3(n),ADR Law).
Forms of ADR
 “Mini-trial” – means a structured dispute resolution
method in which the merits of a case are argued before a
panel comprising senior decision makers with or without
the presence of a neutral third person after which the
parties seek a negotiated settlement (Section 3(u), ADR
Law).
 “Court-Annexed Mediation” – means any mediation
process conducted under the auspices of the court, after
such court has acquired jurisdiction of the dispute
(Section 3(l),ADR Law).
ARBITRATION
Kinds of Arbitration
International
Domestic
International commercial
Foreign
International Arbitration
 The parties’ places of business, at the time of the conclusion of
that agreement, are in in different states;
 The place of arbitration provided in the arbitration agreement
and the parties’ place of business are outside of the Philippines.
 The place where a substantial part of the obligations of the is
to be performed or the place with the subject matter of the
dispute is most closely connected, is outside of the Philippines.
 The parties have expressly agreed that the subject matter of
the arbitration agreement relates to more than one country
(Article 1.6, C(8), IRR of ADR Law).
International Arbitration
These place must

be outside of the
Philippines
Place of Place where the

performance of subject matter
Places of Places of
a substantial of the dispute is
business arbitration
part of most closely
obligation connected
Domestic Arbitration
Arbitration is domestic if it
is not international in
character (Section 32,
ARD Law).
Domestic Arbitration
It is domestic if the components of

parties’ places of business, places of
arbitration, place of performance of a
substantial part of obligation, place
where the subject matter of the dispute
is most closely connected, are all located
in the Philippines.
International Commercial Arbitration
It is commercial if it covers
matters arising from all
relationships of commercial
nature, whether contractual
or not.
Foreign Arbitration
It foreign if the seat of

arbitration is outside the
Philippines even if the place
of arbitration is in the
Philippines.
What brings about arbitration?
It is arbitration
agreement, which Formal
must be in writing, requirements:
that brings about
arbitration proceedings.
It must be
It must be in
subscribed by
writing
the parties.
Arbitration agreement vs. Submission
Agreement
 There is arbitration agreement is when the parties to
any contract agree to settle by arbitration a controversy
thereafter arsing between them.
 There is submission agreement when two or more

persons or parties submit to the arbitration of one or
more arbitrators any controversy existing between them
at the time of the submission.
Special Rules of Court on ADR
(A.M. No. 07-11-08-SC, September 1,
2009)
What are the subject matters of the
Rules?
 a. Relief on the issue of Existence,  h. Confirmation, Correction or
Validity, or Enforceability of the Vacation of Award in Domestic
Arbitration Agreement; Arbitration;
 b. Referral to Alternative Dispute  i. Recognition and Enforcement or
Resolution ("ADR"); Setting Aside of an Award in
 c. Interim Measures of Protection; International Commercial
Arbitration;
 d. Appointment of Arbitrator;
 j. Recognition and Enforcement of
 e. Challenge to Appointment of
a Foreign Arbitral Award;
Arbitrator;
 k. Confidentiality/Protective
 f. Termination of Mandate of
Orders;
Arbitrator;
 l. Deposit and Enforcement of
 g. Assistance in Taking Evidence;
Mediated Settlement
Agreements.
What is the nature of the proceedings
under the Rules?
It is special proceedings
and summary in nature
Enumerate the cases which are summary.
 a. Judicial Relief Involving  e. Challenge to Appointment
the Issue of Existence, of Arbitrator;
Validity or Enforceability  f. Termination of Mandate
of the Arbitration of Arbitrator;
Agreement;  g. Assistance in Taking
 b. Referral to ADR; Evidence;
 c. Interim Measures of  h. Confidentiality/Protective
Protection; Orders; and
 d. Appointment of  i. Deposit and Enforcement
Arbitrator; of Mediated Settlement
Agreements.
Rule 1.1, SRCADR
Are there cases under the Rules which are
not summary?
 A. Confirmation, Correction or Vacation of Award in
Domestic Arbitration;
 B. Recognition and Enforcement or Setting Aside of an

Award in International Commercial Arbitration;
 C. Recognition and Enforcement of a Foreign Arbitral

Award
What are the prohibited submission
under the Rules?
 a.
Motion to dismiss;
 b.
Motion for bill of particulars;
 c.
Motion for new trial or for reopening of trial;
 d.
Petition for relief from judgment;
 e.
Motion for extension, except in cases where an ex-
parte temporary order of protection has been issued;
 f. Rejoinder to reply;
 g. Motion to declare a party in default; and
 h. Any other pleading specifically disallowed under any
provision of the Special ADR Rules (Rule 1.6)
Judicial Relief Involving the Issue of
Existence, Validity and Enforceability
of the Arbitration Agreement
The judicial relief, whether resorted to

before or after commencement of
arbitration, shall apply only when the
place of arbitration is in the
Philippines.
Who May File Petition?
 Any party to an arbitration agreement may
petition the appropriate court to determine
any question concerning the existence,
validity and enforceability of such
arbitration agreement serving a copy thereof
on the respondent in accordance with Rule 1.4
(A). (Rule 1.6).
When may the petition be filed?
 The petition for judicial determination of the existence,
validity and/or enforceability of an arbitration agreement
may be filed at any time prior to the commencement
of arbitration.
 Despite the pendency of the petition provided herein,
arbitral proceedings may nevertheless be commenced
and continue to the rendition of an award, while the
issue is pending before the court (Rule 3.3).
What is the venue?
 A petition questioning the existence, validity

and enforceability of an arbitration agreement
may be filed before the Regional Trial Court
of the place where any of the petitioners or
respondents has his principal place of
business or residence (Rule 3.4).
What are the grounds?
 A petition may be granted only if it is shown that the

arbitration agreement is, under the applicable law, invalid,
void, unenforceable or inexistent (Rule 3.5).
Procedure for the Petition
Petition which
Comment/Opposition
includes the service
within 15 days
thereof
Court will set the Decision within 30

case fore hearing days from hearing
Matters that must be considered under
this Rule 3
 The court must exercise judicial restraint in accordance with the policy
set forth in Rule 2.4, deferring to the competence or jurisdiction of the
arbitral tribunal to rule on its competence or jurisdiction (Rule 3.8).
 A prima facie determination by the court upholding the existence,

validity or enforceability of an arbitration agreement shall not be subject
to a motion for reconsideration, appeal or certiorari (Rule 3.11).
 Such prima facie determination will not, however, prejudice the right of
any party to raise the issue of the existence, validity and enforceability of
the arbitration agreement before the arbitral tribunal or the court in an
action to vacate or set aside the arbitral award (Rule 3.11).
Interim Measures of Protection
(Rule 5)
Who may ask for interim measures of
protection?
A party to an arbitration
agreement may petition the
court for interim measures
of protection (Rule 5.1).
When petition may be filed?
 A petition for an interim measure of protection may be
made:
 a) Before arbitration is commenced,
 b) After arbitration is commenced, but before the
constitution of the arbitral tribunal, or
 c) After the constitution of the arbitral tribunal and at
any time during arbitral proceedings but, at this stage,
only to the extent that the arbitral tribunal has no
power to act or is unable to act effectively (Rule
5.2).
What are the grounds which the court may
consider in grating interim protection?
 The following grounds, while not limiting the reasons for the
court to grant an interim measure of protection, indicate the
nature of the reasons that the court shall consider in granting
the relief:
 a. The need to prevent irreparable loss or injury;
 b. The need to provide security for the performance of any
obligation;
 c. The need to produce or preserve evidence; or
 d. The need to compel any other appropriate act or
omission (Rule. 5.4).
What interim protection may be granted?
 a. Preliminary injunction directed against a party to
arbitration;
 b. Preliminary attachment against property or garnishment
of funds in the custody of a bank or a third person;
 c. Appointment of a receiver;
 d. Detention, preservation, delivery or inspection of
property; or,
 e. Assistance in the enforcement of an interim measure of
protection granted by the arbitral tribunal, which the
latter cannot enforce effectively (Rule 5.6).
Procedure for application of interim
relief?
Comment/opposition
Filing of Petition within 15 days from
receipt of Petition
Judgment within (30)

Hearing days after Opposition
of hearing
May the Court issue temporary order of
protection on the basis of the petition?
 In case there is an urgent need to either:
 a) preserve property
 b) prevent the respondent from disposing of, or concealing, the
property
 c) prevent the relief prayed for from becoming illusory because of prior
notice,
 It shall issue an immediately executory temporary order of protection
and require the petitioner, within five (5) days from receipt of that order,
to post a bond to answer for any damage that respondent may suffer as a
result of its order. The ex-parte temporary order of protection shall be
valid only for a period of twenty (20) days from the service on the party
required to comply with the order.(Rule 5.9).
What should the court do after it issued
temporary order of protection ex parte?
b. Notify the parties

that the petition shall be
heard on a day specified in
a. Furnish the the notice, which must not
respondent a copy of the be beyond the twenty
petition and a notice (20)-day period of the
requiring him to comment effectivity of the ex-parte
thereon on or before the order.
day the petition will be
heard;
Rule 5.9
How may the respondent lift the
temporary order of protection?
 By positing a counter-bond as determined by the Court.
 If the respondent requests the court for an extension of
the period to file his opposition or comment or to reset
the hearing to a later date, and such request is granted,
the court shall extend the period of validity of the ex-
parte temporary order of protection for no more than
twenty days from expiration of the original period (Rule
5.9).
Reliefs from the Court action
 Ifrespondent was given an opportunity to be
heard on a petition for an interim measure of
protection, any order by the court shall be
immediately executory, but may be the
subject of a motion for reconsideration
and/or appeal or, if warranted, a petition for
certiorari (Rule 5.10).
Recognition and Enforcement or
Setting Aside of an International
Commercial Arbitration Award
(Rule 12)
Who may request recognition and
enforcement or setting aside International
Commercial Arbitration Award
Any party to an international

commercial arbitration in the
Philippines may petition the proper
court to recognize and enforce or set
aside an arbitral award (Rule 12.1).
When may petition to recognize and enforce
international commercial arbitration
award be filed?
 The petition for enforcement and recognition of an

arbitral award may be filed anytime from receipt of the
award. If, however, a timely petition to set aside an
arbitral award is filed, the opposing party must file
therein and in opposition thereto the petition for
recognition and enforcement of the same award within
the period for filing an opposition (Rule 12.2).
When may petition for petition to set aside
international commercial arbitration
award be filed
 The petition to set aside an arbitral award may only be

filed within three (3) months from the time the
petitioner receives a copy thereof. If a timely request is
made with the arbitral tribunal for correction,
interpretation or additional award, the three (3) month
period shall be counted from the time the petitioner
receives the resolution by the arbitral tribunal of that
request.(Rule 12.2).
What is the venue for these petitions?
 A petition to recognize and enforce or set aside an

arbitral award may, at the option of the petitioner, be
filed with the Regional Trial Court: (a) where arbitration
proceedings were conducted; (b) where any of the assets
to be attached or levied upon is located; (c) where the
act to be enjoined will be or is being performed; (d)
where any of the parties to arbitration resides or has its
place of business; or (e) in the National Capital Judicial
Region.(Rule 12.3).
What are the grounds to set aside or resist
enforcement of international commercial arbitration
award ?
 A) party to the arbitration agreement was under some
incapacity, or the said agreement is not valid under
the law to which the parties have subjected it or,
failing any indication thereof, under Philippine law.
 B). The party making the application to set aside or resist
enforcement was not given proper notice of the
appointment of an arbitrator or of the arbitral
proceedings or was otherwise unable to present his
case (Rule 12.4).
award ?
 C) The award deals with a dispute not contemplated by or
not falling within the terms of the submission to
arbitration, or contains decisions on matters beyond the
scope of the submission to arbitration; provided that, if
the decisions on matters submitted to arbitration can be
separated from those not so submitted, only that part of
the award which contains decisions on matters not
submitted to arbitration may be set aside or only that
part of the award which contains decisions on matters
submitted to arbitration may be enforced. (Rule 12.4).
award ?
 D) The composition of the arbitral tribunal or the arbitral

procedure was not in accordance with the agreement
of the parties, unless such agreement was in conflict
with a provision of Philippine law from which the
parties cannot derogate, or, failing such agreement, was
not in accordance with Philippine law. (Rule 12.4).
What are other grounds?
 a) The subject-matter of the dispute is not capable of

settlement by arbitration under the law of the
Philippines; or
 b) The recognition or enforcement of the award

would be contrary to public policy.(Rule 12.4).
PLEASE TAKE NOTE:
 Recourse to a court against an arbitral award shall
be made only through a petition to set aside the
arbitral award and on grounds prescribed by the law
that governs international commercial arbitration.
Any other recourse from the arbitral award, such as
by appeal or petition for review or petition for
certiorari or otherwise, shall be dismissed by the
court (Rule 12.5).
Procedure under Rule 12
Memorandum, if
Notice to file
Filing of Petition issues are purely
Opposition
law
Submission of
Judgement of the
Affidavits, if there Hearing
Court
are factual issues
Presumption in Favor of Confirmation
 It is presumed that an arbitral award was made

and released in due course and is subject to
enforcement by the court, unless the adverse
party is able to establish a ground for setting
aside or not enforcing an arbitral award
(Rule12.12)
Recognition and Enforcement of a
Foreign Arbitral Award
Who May Request Recognition and
Enforcement
Any party to a foreign

arbitration may petition the
court to recognize and
enforce a foreign arbitral
award (Rule 13.1).
When to file the Petition
At any time after receipt of a foreign

arbitral award, any party to
arbitration may petition the proper
Regional Trial Court to recognize
and enforce such award. ATESCc
(Rule 13.2).
Venue
 The petition to recognize and enforce a foreign arbitral
award shall be filed, at the option of the petitioner, with
the Regional Trial Court (a) where the assets to be
attached or levied upon is located, (b) where the act to
be enjoined is being performed, (c) in the principal place
of business in the Philippines of any of the parties, (d) if
any of the parties is an individual, where any of those
individuals resides, or (e) in the National Capital Judicial
Region (Rule 13.3).
Governing Law
 The recognition and enforcement of a foreign arbitral
award shall be governed by the 1958 New York
Convention on the Recognition and Enforcement of
Foreign Arbitral Awards (the "New York Convention")
and this Rule. The court may, upon grounds of comity and
reciprocity, recognize and enforce a foreign arbitral
award made in a country that is not a signatory to the
New York Convention as if it were a Convention Award
(Rule 13.4).
Grounds to Refuse Recognition and
Enforcement
 (i). A party to the arbitration agreement was under some
incapacity; or the said agreement is not valid under the
law to which the parties have subjected it or, failing any
indication thereof, under the law of the country where
the award was made; or
 (ii).The party making the application was not given
proper notice of the appointment of an arbitrator or of
the arbitral proceedings or was otherwise unable to
present his case; (Rule 13.4).
Enforcement
 (iii). The award deals with a dispute not
contemplated by or not falling within the terms of the
submission to arbitration, or contains decisions on
matters beyond the scope of the submission to
arbitration; provided that, if the decisions on matters
submitted to arbitration can be separated from those
not so submitted, only that part of the award which
contains decisions on matters not submitted to
arbitration may be set aside; (Rule 13.4).
Enforcement
 (iv). The composition of the arbitral tribunal or the
arbitral procedure was not in accordance with the
agreement of the parties or, failing such agreement, was
not in accordance with the law of the country where
arbitration took place;
 (v).The award has not yet become binding on the parties
or has been set aside or suspended by a court of the
country in which that award was made (Rule 13.4).
Other grounds
 The courts finds:
 (i). The subject-matter of the dispute is not capable of

settlement or resolution by arbitration under Philippine
law; or
 (ii).The recognition or enforcement of the award would
be contrary to public policy (Rule 13.4).
Procedure for Petition for Recognition of
Foreign Arbitral Award
Filing of
Notice to file Memorandum if
Filing of Petition Opposition
Opposition issues are purely
of law
Submission of
Affidavits, if there Hearing Judgement
are factual issues
Please take NOTE:
 It is presumed that a foreign arbitral award was made
and released in due course of arbitration and is subject
to enforcement by the court.
 The court shall recognize and enforce a foreign arbitral
award unless a ground to refuse recognition or
enforcement of the foreign arbitral award under this rule
is fully established.
 The decision of the court recognizing and enforcing a
foreign arbitral award is immediately executory (Rule
13.11).
Special Civil Action under Special
Rules of Court on ADR
Subject matter of Special Civil Action for
Certiorari
 a. Holding that the arbitration  g. Suspending the proceedings to set
agreement is inexistent, invalid aside an international commercial
or unenforceable; arbitral award and referring the case
 b. Reversing the arbitral tribunal's back to the arbitral tribunal;
preliminary determination  h. Allowing a party to enforce an
upholding its jurisdiction; international commercial arbitral
 c. Denying the request to refer the award pending appeal;
dispute to arbitration;  i. Adjourning or deferring a ruling on
 d. Granting or refusing an interim whether to set aside, recognize and
relief; or enforce an international
commercial arbitral award;
 e. Denying a petition for the
appointment of an arbitrator;  j. Allowing a party to enforce a foreign
arbitral award pending appeal; and
 f. Confirming, vacating or
correcting a domestic arbitral  k. Denying a petition for assistance in
award; taking evidence.
Period to File the Petition
 The petition must be filed with the Court of

Appeals within fifteen (15) days from notice
of the judgment, order or resolution sought
to be annulled or set aside.
 No extension of time to file the petition shall
be allowed (Rule 19.28).
Form of Petition
 The petition shall be accompanied by a certified true

copy of the questioned judgment, order or resolution of
the Regional Trial Court, copies of all pleadings and
documents relevant and pertinent thereto, and a sworn
certification of non-forum shopping as provided in the
Rules of Court (Rule 19.27).
Procedure
Filing of Preliminary
Petition determination
Order to
Judgment
Comment
Please take NOTE:
Arbitration May Continue

Despite Petition for Certiorari
Prohibition Against Injunctions

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MODES OF DISCOVERY

Deposition before action or pending appeal (Rule 24)

Interrogatories to parties (Rule 25)

Admission by adverse party (Rule 26)

Production or Inspection of Documents (Rule 27)

Physical or mental examination of Persons (Rule 28)

It is the taking of testimony of

Deposition upon oral

It 1) judge; 2) notary public; 3) person

 Commission or Letters Rogatory. — A

 Any person, whether a party or not, may be taken

 Section 16. Orders for the protection of parties and depositions.

 The attendance of witnesses may be compelled by the

 Sec. 1, Rule 23.

 SECTION 5. Subpoena for depositions. — Proof of service of

Matter inquired into is not privilege.

Matter inquired into is relevant pending action.

Court may issue order to protect the parties (Sec.

 SECTION 6.Objections to Admissibility. —

• Against any party who was present

 Section 8. Effect of Using Depositions. — The

 SECTION 7. Effect of Taking

 SECTION 1. Depositions Before Action; Petition. — A

 The same as Rule 134 – Perpetuation of Testimony

Petitioner shall If the court is

The motion shall state:

(a) the names and addresses of

 SECTION 5. Scope and Use of

 SECTION 6. Effect of Failure to Serve

 SECTION 3. Effect of Admission. — Any

 Po vs. CA, 164 SCRA 668

 No. The SC held that request for admission must be

 A) To produce and permit the inspection and copying or

 SECTION 4. Waiver of Privilege. — By requesting

 If the party examined refuses to deliver such

 Inlieu of any of the foregoing orders or in

i. The initial presentation of plaintiff’s

iv. If deemed necessary, the court shall

(c) The court shall decide and serve

 Period to present evidence:

 Period to present evidence:

 Period to decide the case:

The party who caused the postponement is

A party may ask for postponement of trial.

All courts shall ensure the posting of their

If several defendants or third-party If several defendants or third-party

Section 6. Oral offer of exhibits. —

The new Rules requires that

Section 7. Statement of judge. — During [Section 7. Statement of judge. —

Section 8. Suspension of actions. — The Section 8. Suspension of actions. — The

When is the proper • After the plaintiff has completed the

What is the effect if

 The denial of demurrer is not a final order; it is an

 If the order is reversed in the appellate court, the defendant

 It is not correct for the appellate court to remand the case

 1. Leave of court is not  1. It may be with or without

 4. It cannot be granted case motu propio (Sec. 23,

As a general rule, therefore, final

nunc pro tunc entries