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Civil Procedure | Justice de Leon
Petition for Relief from Judgments, Orders or Other Proceedings

Rule 38
(Sections 1 to 7)
Grounds and nature (Secs 1, 2)
 FAME – fraud, accident, mistake, excusable negligence

Grounds
 When a judgment or final order is entered, or any other proceeding is thereafter taken against a party in any court
through FAME, he may file a petition in such court and in the same case praying that the judgment, order or
proceeding be set aside. (Sec 1)
o Other proceeding – includes compromise judgment which is not yet entered
 When a judgment or final order is rendered by any court in a case, and a party thereto, by FAME, has been
prevented from taking an appeal, he may file a petition in such court and in the same case praying that the appeal
be given due course. (Sec 2)
Requires final judgment or loss of appeal
 No, a petition for relief under Rule 38 cannot be availed of in the appellate court. Under the rules, petitions for relief
Can this remedy be availed of in the Court of Appeals?
from a judgment, final order or other proceeding rendered or taken should be filed in and resolved by the court in the
same case from which the petition arose. Thus, petition for relief from a judgment, final order or proceeding involved
in a case tried by an MTC shall be filed in and decided by the MTC in the same case, or in the RTC if the case was
decided by it. (Redeña vs. CA)
o No, because as a general rule, there is no hearing in appellate courts (CA and SC)
 Petition for either Sec 1 or Sec 2 must be verified, filed within 60 days after the petitioner learns of the judgment, final
Time for filing (Sec 3)
order, or other proceeding to be set aside, and not more than 6 months after such judgment or final order was
 These two periods must concur.

entered, or such proceeding was taken
 Escueta vs. Lim (512 SCRA 411)

Strictly followed
o The 60-day period for filing a petition for annulment of judgment is reckoned from the time the party
acquired knowledge of the order, judgment or proceedings and not from the date he actually read the
same.
Contents
 Showing the FAME relied upon, and

Affidavit of merit (Sec 3)
 Facts constituting the petitioner‘s good and substantial cause of action
 (I think this is supposed to be when petition for relief considered as MR, in which case – after the hearing and
When motion for reconsideration considered as petition for relief
court finds the allegations to be true, it shall set aside the judgment, final order or other proceeding complained
of. The case then shall stand as if such judgment, final order or proceeding had never been rendered, issued or
taken. The court shall then proceed to hear and determine the case as if a MNT or MR had been granted by it.
[Sec 6])
Action of court before answer
 If not sufficient in form and substance to justify relief

Power to deny (Sec 4)
 Preliminary injunction may be granted as may be necessary for the preservation of the rights of the parties
Preliminary injunction pending proceeding (Sec 5)
 If petition is sufficient in form and substance to justify relief, court shall issue an order requiring adverse parties to
Order to file answer (Sec 4)
 Order shall be served in such manner as the court may direct, together with copies of the petition and the
answer the same within 15 days from the receipt thereof
accompanying affidavits
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Procedure
 When necessary for the preservation of the rights of the parties

Availability of preliminary injunction (Sec 5)
 Upon filing by the petitioner of a bond in favour of the adverse party, conditioned that if the petition is dismissed
or the petitioner fails on the trial of the case upon its merits, he will pay the adverse party all damages and costs
that may be awarded to him by reason of the issuance of such injunction or other proceeding following the
 Such injunction shall not operate to discharge or extinguish any lien which the adverse party may have acquired
petition
upon the property of the petitioner
 Court shall hear the petition and if after such hearing,

Proceedings after answer is filed (Sec 6)
o it finds that the allegations are not true, petition shall be dismissed
o if it finds allegations to be true, it shall set aside the judgment or final order or other proceeding
complained of upon such terms as may be just
 Thereafter the case shall stand as if such judgment, final order or other proceeding had never
been rendered, issued or taken
 Court shall then proceed to hear and determine the case as if a timely motion for new trial or
reconsideration had been granted by it
 Lower court shall be required to give due course to the appeal and to elevate the record of the appealed case as if
Where denial of appeal is set aside (Sec 7)
a timely and proper appeal had been made

Action of court after giving due course
Grant of petition for relief (Sec 7)
 No appeal may be taken from an order denying a petition for relief or any similar motion seeking relief from
Denial of petition for relief (Rule 41, Sec 1 (a))
judgment.
o Relief may be Petition for Certiorari (Rule 65)
Remedies after petition for relief expires
 Alvendia vs. IAC (181 SCRA 282)

Reopening not allowed
o It is axiomatic that there is no justification in law and in fact for the reopening of a case which has
long become final and which has in fact been executed. Time and again this Court has said that the
doctrine of finality of judgments is grounded on fundamental consideration of public policy and
sound practice that at the risk of occasional error the judgments of courts must become final at some
definite date fixed by law.

Annulment of Judgment
Rule 47
(Sections 1 to 10)
 This rule shall govern the annulment by the CA of judgments or final orders and resolutions in civil actions of RTCs
When remedy available
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. (Sec 1)
 People vs. Bitanga (525 SCRA 623)

Where applicable
o The remedy of annulment of judgment cannot be resorted to when the RTC judgment being questioned
was a criminal case. Rule 47, Sec 1 limits the application of the rule to civil actions. The 2000 Revised
Rules of Criminal Procedure itself does not permit such recourse, for it excluded Rule 47 from the
enumeration of the provisions of the 1997 Revised Rules of Civil Procedure which have suppletory
application to criminal cases. Rule 124, Sec 18 provides that the provisions of Rules 42, 44 to 46 and 48
to 56 relating to procedure in the CA and in the SC in original and appealed civil cases shall be applied to
 Fraginal vs. Paranal (516 SCRA 530)

criminal cases insofar as they are applicable and not inconsistent with the provisions of this Rule.
o The remedy of annulment of judgment is extraordinary in character and will not so easily and readily lend
itself to abuse by parties aggrieved by final judgments.
o Rule 47, Sec 1 clearly limits the subject matter of petitioners for annulment to final judgments and orders
rendered by RTC in civil actions. Final judgments or orders of quasi-judicial tribunals or administrative
bodies such as the NLRC, the Ombudsman, the CSC, the OP, and, in this case, the PARAD, are not
susceptible to petitions for annulment under Rule 47.
o Direct recourse to a petition for annulment of judgment not allowed if other appropriate remedies are
 Grande vs. University of the Philippines (502 SCRA 67)

available such as a petition for new trial and a petition for relief from judgment or an appeal.
o Rule 47 applies only to petitions for nullification of judgments rendered by RTCs filed with the CA – it
does not pertain to the nullification of decisions of the CA
o Petitions for annulment of judgment are not among the cases originally cognizable by the SC.
o It is totally inappropriate to extend Rule 47 to the review of decisions of the CA.
 Annulment may be based only on the grounds of extrinsic fraud and lack of jurisdiction
Grounds (Sec 2)
 Extrinsic fraud shall not be a valid ground if it was availed of, or could have been availed of, in a MNT or petition for
 Extrinsic fraud – when fraud prevents a party from having a trial or from presenting his entire case to the court, or
relief
where it operates upon matters pertaining not to the judgment itself but to the manner in which it is procured. The
overriding consideration when extrinsic fraud is alleged is that the fraudulent scheme of the prevailing litigant
 Lack of jurisdiction – either lack of jurisdiction over the person of the defendant or over the subject matter of the
prevented a party from having his day in court.
 Cosmic Lumber Corp. vs. CA (265 SCRA 166)

claim
o A party may now petition the CA to annul and set aside judgments of the RTC under authority of Sec 9, par 2
of BP 129. However, certain requisites must first be established before a final and executory judgment can be
the subject of an action for annulment. It must either be void for want of jurisdiction or for lack of due
process of law, or it has been obtained by fraud.
o Extrinsic fraud refers to any fraudulent act of the prevailing party in the litigation which is committed outside
of the trial of the case, whereby the defeated party has been prevented from exhibiting fully his side of the
case by fraud or deception practiced on him by his opponent.
 CA (Sec 1)
Where petition filed (Secs 1, 10)
 Action to annul a judgment or final order of an MTC shall be filed in the RTC 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)
 If based on extrinsic fraud – action must be filed within 4 years from the discovery
Period for filing (Sec 3)
 If based on lack of jurisdiction – before it is barred by laches or estoppel
 Marcelino vs. CA, (210 SCRA 444)

Laches
o Laches means the failure or neglect for an unreasonable and unexplained length of time, to do that which
by exercising due diligence could or should have been done earlier. It is negligence or omission to asset a
right within a reasonable time, warranting the presumption that the party entitled to assert it either has
abandoned or declined to assert it.
o The law serves those who are vigilant and diligent and not those who sleep when the law requires them
to act.
o Unlike the statute of limitations, laches is not a mere question of time but is principally a question of the
inequity or unfairness of permitting state right or claim to be enforced or asserted.
 Action shall be commenced by filing a verified petition alleging therein with particularity the facts and law relied upon
Parties and contents (Sec 4)
for annulment, as well as those supporting the petitioner‘s good and substantial cause of action or defense, as the case
 Petition shall be filed in 7 clearly legible copies, together with sufficient copies corresponding to the number of
may be.
respondents. A certified true copy of the judgment or final order or resolution shall be attached to the original copy of
 Petitioner shall also submit together with the petition affidavits of witnesses or documents supporting the cause of
the petition intended for the court and indicated as such by the petitioner
action or defense and a certificate of non-forum shopping.
 Petitioner need not be a party to the judgment sought to be annulled. What is essential is that the petitioner is one
May be filed by a non-party to the judgment
who can prove his allegation that the judgment was obtained by the use of fraud and collusion and that he was
affected thereby.
 Judgment of annulment may include the award of damages, attorney‘s fees and other relief.
Available even if judgment has been executed (Sec 9)
 If the questioned judgment or final order or resolution has already been executed, the court may issue such orders
 Islamic Da'Wah Council of the Phils. vs. CA (178 SCRA 178)

of restitution or other relief as justice and equity may warrant under the circumstances.
o Annulment of judgment is a remedy in law independent of the case where the judgment sought to be
annulled was rendered. The CA has exclusive jurisdiction over actions for annulment of judgments.
o A person who is not a party to the judgment may sue for its annulment provided that he can prove that
the judgment was obtained through fraud and collusion, and that he would be adversely affected thereby.
o An action for annulment of judgment may be availed of even if the judgment sought to be annulled had
been fully executed and implemented.
 Should the court find no substantial merit in the petition, the same may be dismissed outright with specific reasons
Action by the court (Sec 5)
 Should prima facie merit be found in the petition, the same shall be given due course and summons shall be served on
for such dismissal
the respondent
 Procedure in ordinary civil cases shall be observed

Procedure (Sec 6)
 Should a trial be necessary, reception of evidence may be referred to a member of the court or a judge of a RTC
 Judgment of annulment shall set aside the questioned judgment or final order or resolution and render the same null
Effect of judgment (Sec 7)
 However, where the judgment or final order or resolution is set aside on the ground of extrinsic fraud, the court may
and void, without prejudice to the original action being refilled in the proper court
on motion order the trial court to try the case as if a timely motion for new trial had been granted therein
 Prescriptive period for the refilling of the aforesaid original action shall be deemed suspended from the filing of such
Suspension of prescriptive period (Sec 8)
original action until the finality of the judgment of annulment.

 However, the prescriptive period shall not be suspended where the extrinsic fraud is attributable to the plaintiff in the
original action.
Certiorari
Rule 65
Constitutional provisions on judicial power
 Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are
Art. VIII, Sec. 1, par. 2, Constitution
legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the party of any branch or instrumentality of the government.
 When proper:
Petition for certiorari, in general (Sec 1)
o When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in
excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction, and
 Who may file:

o There is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law,
 How:
o A person aggrieved thereby
o File a verified petition in the proper court,

o alleging the facts with certainty and
o Praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or
officer, and granting such incidental reliefs as law and justice may require.
o 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, and a sworn certification of
non-forum shopping as provided in the paragraph of Section 3, Rule 46.
Distinction between without jurisdiction, in excess of jurisdiction and grave of abuse of discretion
Without jurisdiction In excess of jurisdiction Grave abuse of discretion
If court has transcended or acted Too patent and gross as to amount
When court has no jurisdiction from beyond the limits of its authority, or to an evasion of a positive duty, or a
the beginning. There is an absolute acted without any statutory virtual refusal to perform the duty
want of jurisdiction. authority. enjoined or act in contemplation of
law, or where the power is exercised
Ex: inferior court takes cognizance Ex: decision ordered amount paid in an arbitrary and despotic manner
of an action for legal separation. without interest. Order of execution by reason of passion and personal
included payment of interest. hostility
Does not encompass an error of law
nor does it include a mistake in the
appreciation of the contending
parties‘ respective evidence or the
evaluation of their relative weight
 Jamer vs. NLRC (278 SCRA 632)

Remedy to correct errors of jurisdiction
o A motion for reconsideration is an adequate remedy; hence certiorari proceedings, as in this case, will not
prosper.
o Errors of judgment, as distinguished from errors of jurisdiction, are not within the province of a special civil
action for certiorari. A careful reading of the records show that if there is any error by public respondent in
the analysis of facts and its evaluation of the evidence, it is not of such a degree as may be stigmatized as
grave abuse of discretion.

o The special civil action for certiorari is a remedy designed for the correction of errors of jurisdiction and not
errors of judgment. When the court exercises its jurisdiction over an error committed while so engaged does
not deprive it of the jurisdiction being exercised when the error is committed. If it did, every error committed
by a court would deprive it of its jurisdiction and every erroneous judgment would be a void judgment. This
cannot be allowed. The administration of justice would not countenance such a rule.
o Consequently, an error of judgment that the court may commit in the exercise of its jurisdiction is not
correctible through the original special civil action of certiorari.
Distinction between error of jurisdiction and error of judgment
a. When court without jurisdiction and it rendered decision, committed error of jurisdiction – decision null and void
even if correct, and remedy is certiorari
b. When court with jurisdiction and rendered decision, but decision not correct , committed error of judgment –
decision valid even if wrong, and remedy is appeal
 Day vs. RTC of Zamboanga City (191 SCRA 610)

Questions of fact cannot be raised
o In an original action for certiorari, questions of fact cannot be raised much less passed upon by the
respondent court. Thus, it has been ruled that: ―Questions of fact cannot be raised in an original action
for certiorari. Only established or admitted facts can be considered.‖
o The only grounds which may serve as basis for the issuance of the writ of certiorari are lack of
jurisdiction or grave abuse of discretion by the inferior court or that the said inferior court acted without
or in excess of jurisdiction in its appreciation of the barangay certification as constituting sufficient
compliance with PD 1508.
 Romy’s Freight Service vs. Castro (490 SCRA 165)

Neither questions of fact nor of law entertained
o The Supreme Court is not a trier of facts, more so in the consideration of the extraordinary writ of certiorari
where neither questions of fact nor of law are entertained, but only questions of lack or excess of jurisdiction
or grave abuse of discretion. The sole object of the writ is to correct errors of jurisdiction or grave abuse of
discretion.
o x x x It does not encompass an error of law. Nor does it include a mistake in the appreciation of the
contending parties‘ respective evidence or the evaluation of their relative weight. The Court cannot be tasked
to go over the proofs presented by the parties and analyze, assess and weigh them all over again to ascertain if
the trial court or quasi-judicial agency and the appellate court were correct in according superior credit to this
or that piece of evidence of one party or the other.
o The sole office of a writ of certiorari is the correction of errors of jurisdiction including the commission of
grave abuse of discretion amounting to lack of jurisdiction, and does not include the review of public
respondent‘s evaluation of the evidence and the factual findings based thereon.
 Gerardo vs. De la Pena (192 SCRA 691)

Only issue involved is jurisdiction, either want of or excess thereof
o The SC possesses no authority to rule upon non-jurisdictional issues in a certiorari proceeding. The only
question involved in certiorari is jurisdiction, either want of or in excess thereof.
Distinction between certiorari under Rule 45 as a mode of appeal and certiorari under Rule 65 as a special civil action
Rule 45 Rule 65
Forum SC only RTC, CA, SB, SC
60 days from notice of judgment, etc.,
Period of filing 15 days from notice of judgment except certiorari against Comelec and
COA which is 30 days
Petitioner – aggrieved party; respondent
Same as in lower courts: petitioner – lower court/judge and the party
Parties
(appellant), respondent (appellee) interested to sustain the judgment or
order sought to be set aside
Error of jurisdiction (lack or excess of
Basis Error of law
jurisdiction, or gadalej)
To whom summons or order is No summons required. Appeal is just a No summons required; but there is
served continuation of the original action. But order to comment with copy of petition
there is order to comment
Issuance of writ of preliminary Not ordinarily required because appeal May be issued to preserve rights of
injunction stays execution parties during pendency of proceedings
Correct error of law; affirm, modify,
Action that may be taken on the Annul or modify the act and all
reverse, revise, amend the judgment
judgment proceedings flowing from it
appealed from
Ordinarily a requisite for filing the
Motion for reconsideration Not a requisite for filing the petition
petition
 Banco Filipino Savings and Mortgage Bank vs. CA (334 SCRA 305)
o Distinguished:
Rule 45 – Petition for review on certiorari Rule 65 – Petition for certiorari (special civil
(appeal by certiorari) action of certiorari)
Involves correction of errors of judgment Involves correction of errors of jurisdiction
Lies only when there is no appeal or plain, speedy
and adequate remedy in the ordinary course of law.
o Errors of judgment include errors of procedure or mistakes in the court‘s findings.
o Where a court has jurisdiction over the person and the subject matter, the decision on all other questions
arising in the case is an exercise of that jurisdiction. Consequently, all errors committed in the exercise of
such jurisdiction are merely errors of judgment.
o The remedies of appeal and certiorari are mutually exclusive and not alternative or successive.
o It is true that the SC may treat a petition for certiorari as having been filed under Rule 45 to serve the
higher interest of justice, but not when the petition is filed well beyond the reglementary period for filing
a petition for review and without offering any reason therefor.
No appeal, nor any plain, speedy and adequate remedy
 Fajardo vs. Bautista (232 SCRA 292)

General rule, if appeal available, no certiorari
o Although the special civil action of certiorari is not proper when an ordinary appeal is available, it may
be granted where it is shown that the appeal would be inadequate, slow, insufficient, and will not
promptly relieve a party from the injurious effects of the order complained of, or where appeal is
inadequate and ineffectual.
o Nevertheless, certiorari cannot be a substitute for the lost or lapsed remedy of appeal, where such loss
is occasioned by the petitioner's own neglect or error in the choice of remedies.
Exceptions
 Lansang, Jr. vs. CA (184 SCRA 230)

May be availed of even when appeal is available or period to appeal has expired
o If after judgment, the petition for certiorari is availed of when appeal is a plain, speedy and
adequate remedy, then the petition must fail as certiorari may not be resorted to as a substitute
for appeal much less for a lost one. In such a case, the right to appeal is deemed abandoned.
o However, after a judgment had been rendered and an appeal therefrom had been perfected, a
petition for certiorari relating to certain incidents therein may prosper where the appeal does not
appear to be a plain, speedy and adequate remedy. Hence, appeal and certiorari are not remedies
that exclude each other.
 Jaca vs. Davao Lumber Co. (113 SCRA 107)

When appeal not adequate, or equally beneficial, speedy or adequate
o The availability of the ordinary course of appeal does not constitute sufficient ground to prevent
a party from making use of the extraordinary remedy of certiorari where the appeal is not an
adequate remedy or equally beneficial, speedy and sufficient. It is the inadequacy – not the mere
absence – of all other legal remedies and the danger of failure of justice without the writ, that
must usually determine the propriety of certiorari.
 Tan vs. CA (275 SCRA 568)

Motion for reconsideration required; exceptions
o The special civil action of certiorari will not lie unless a motion for reconsideration is first filed before
the respondent court to allow it an opportunity to correct its errors.
o Exceptions:
1. Where the order is a patent nullity, as where the Court a quo had no jurisdiction;
2. Where the questions raised in the certiorari proceeding have been duly raised and passed
upon by the lower court, or are the same as those raised and passed upon in the lower court;
3. Where there is an urgent necessity for the resolution of the question and any further delay
would prejudice the interests of the Government or of the petitioner or the subject matter of
the action is perishable;
4. Where, under the circumstances, a motion for reconsideration would be useless;
5. Where petitioner was deprived of due process and there is extreme urgency for relief;
6. Where, in a criminal case, relief from an order of arrest is urgent and the granting of such
relief by the trial court is improbable;
7. Where the proceedings in the lower court are a nullity for lack of due process;
8. Where the proceedings was ex parte or in which the petitioner had no opportunity to object;
and
9. Where the issue raised is one purely of law or where public interest is involved.
 Not later than sixty (60) days from notice of the judgment, order or resolution.
Period for filing (Sec 4)
 In case a motion for reconsideration or new trial is timely filed, whether such motion is required or not, the petition
 Period is non-extendible
shall be filed not later than sixty (60) days counted from the notice of the denial of said motion.
Discovery
Read Rules 23 to 29
Rule 23 – Depositions Pending Action
 By leave of court – after jurisdiction has been obtained over any defendant or over property which is the subject
Depositions pending action, when may be taken (Sec 1)
 Without such leave – after an answer has been served,

of the action, or
 The testimony of any person, whether a party or not, may be taken, at the instance of any party, by deposition
 The attendance of witnesses may be compelled by the use of a subpoena as provided in Rule 21.
upon oral examination or written interrogatories.
 Depositions shall be taken only in accordance with these Rules.

 The deposition of a person confined in prison may be taken only by leave of court on such terms as the court
prescribes.
 Unless otherwise ordered by the court as provided by Section 16 or 18 of this Rule, the deponent may be
Scope of examination (Sec 2)
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.
 Examination and cross-examination of deponents may proceed as permitted at the trial under Sections 3 to 18 of
Examination and cross-examination (Sec 3)
Rule 132.
 At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far
Use of depositions (Sec 4)
as admissible under the rules of evidence, may be used against any party who was present or represented at the
taking of the deposition or who had due notice thereof, in accordance with any one of the following provisions:
a. Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony
of deponent as a witness;

b. The deposition of a party or of anyone who at the time of taking the deposition was an officer, director,
or managing agent of a public or private corporation, partnership, or association which is a party may be
used by an adverse party for any purpose;
c. The deposition of a witness, whether or not a party, may be used by any party for any purpose if the
court finds:
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
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; and
d. If only part of a deposition is offered in evidence by a party, the adverse party may require him to
introduce all of it which is relevant to the part introduced, and any party may introduce any other parts.
 Does not affect the right to use depositions previously taken; and,
Effect of substitution of parties (Sec 5)
 When an action has been dismissed and another action involving the same subject is afterward brought between
the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in
the former action may be used in the latter as if originally taken therefor.
 Subject to the provisions of Section 29 of this Rule, objection may be made at the trial or hearing to receiving in
Objections to admissibility (Sec 6)
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.
 A party shall not be deemed to make a person his own witness for any purpose by taking his deposition.
Effect of taking depositions (Sec 7)
 The introduction in evidence of the deposition or any part thereof for any purpose other than that of
Effect of using depositions (Sec 8)
 But this shall not apply to the use by an adverse party of a deposition as described in paragraph (b) of Section 4 of
contradicting or impeaching the deponent makes the deponent the witness of the party introducing the deposition
this rule.
 At the trial or hearing, any party may rebut any relevant evidence contained in a deposition whether introduced by
Rebutting deposition (Sec 9)
him or by any other party
 Within the Philippines, depositions may be taken before

Persons before whom depositions may be taken within the Philippines (Sec 10)
o Any judge,
o Notary public, or
o The person referred to in Section 14 hereof.
 In a foreign state or country, depositions may be taken

Persons before whom depositions may be taken in foreign countries (Sec 11)
a. On notice before a secretary of embassy or legation, consul general, consul, vice-consul, or consular
agent of the Republic of the Philippines;
b. Before such person or officer as may be appointed by commission or under letters rogatory 1; or
c. The person referred to in Section 14 hereof.
1 Letters rogatory – commission from one judge to another in a foreign country requesting him to examine a witness. (Black‘s Law)
- Also defined as an instrument sent in the name and by the authority of the judge or court to another, requesting the latter to cause to be
examined, upon interrogatories filed in a cause pending before the former, a witness who is within the jurisdiction of the judge or court to
whom such letters are addressed (Dasmarinas Gardens vs. Reyes)
 A commission or letters rogatory shall be issued only when necessary or convenient, on application and notice,
Commission or letters rogatory (Sec 12)
 Officers may be designated in notices or commissions either by name or descriptive title and letters rogatory may
and on such terms and with such direction as are just and appropriate.
be addressed to the appropriate judicial authority in the foreign country.
 No deposition shall be taken before a person:

Disqualification by interest (Sec 13)
o Who is a relative within the sixth degree of consanguinity or affinity, or employee or counsel of any of
the parties; or
o Who is a relative within the same degree, or employee of such counsel; or
o Who is financially interested in the action.
 If the parties so stipulate in writing, depositions may be taken before any person authorized to administer oaths,
Stipulations regarding taking of depositions (Sec 14)
at any time or place, in accordance with these Rules, and when so taken may be used like other depositions.
 A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing
Deposition upon oral examination; notice; time and place (Sec 15)
 The notice shall state the time and place for taking the deposition and the name and address of each person to be
to every other party to the action.
examined, if known, and if the name is not known, a general description sufficient to identify him or the
 On motion of any party upon whom the notice is served, the court may for cause shown enlarge or shorten the
particular class or group to which he belongs.
time.
 After notice is served for taking a deposition by oral examination,

Orders for the protection of parties and deponents (Sec 16)
 Upon motion seasonably made by any party or by the person to be examined and for good cause shown,
 The court in which the action is pending may make an order that
o the deposition shall not be taken, or
o that it may be taken only at some designated place other than that stated in the notice, or
o that it may be taken only on written interrogatories, or
o that certain matters shall not be inquired into, or
o that the scope of the examination shall be held with no one present except the parties to the action and
their officers or counsel, or
o that after being sealed the deposition shall be opened only by order of the court, or
o that secret processes, developments, or research need not be disclosed, or
o that the parties shall simultaneously file specified documents or information enclosed in sealed envelopes
 The court may make any other order which justice requires to protect the party or witness from annoyance,
to be opened as directed by the court; or
embarrassment, or oppression.
 The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by
Record of examination; oath; objections (Sec 17)
 The testimony shall be taken stenographically unless the parties agree otherwise.
someone acting under his direction and in his presence, record the testimony of the witness.
 All objections made at the time of the examination to:

o The qualifications of the officer taking the deposition, or
o The manner of taking it, or to the evidence presented, or
o The conduct of any party, and any other objection to the proceedings,
 Evidence objected to shall be taken subject to the objections.

shall be noted by the officer upon the deposition.
 In lieu of participating in the oral examination, parties served with notice of taking a deposition may transmit
written interrogatories to the officers, who shall propound them to the witness and record the answers verbatim.
 At any time during the taking of the deposition, on motion or petition of any party or of the deponent and
Motion to terminate or limit examination (Sec 18)
 Upon a showing that the examination is being conducted

o In bad faith or
o In such manner as unreasonably to annoy, embarrass, or oppress the deponent or party,
The court in which the action is pending or the Regional Trial Court of the place where the deposition is being
taken may
o Order the officer conducting the examination to cease forthwith from taking the deposition, or
 If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in
o Limit the scope and manner of the taking of the deposition, as provided in Section 16 of this Rule.
 Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time
which the action is pending.
necessary to make a notice for an order.

o In granting or refusing such order, the court may impose upon either party or upon the witness the
requirement to pay such costs or expenses as the court may deem reasonable.
 When the testimony is fully transcribed, the deposition shall be submitted to the witness for examination and shall
Submission to witness; changes; signing (Sec 19)
 Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the
be read to or by him, unless such examination and reading are waived by the witness and by the parties.
 The deposition shall then be signed by the witness, unless the parties by stipulation waive the signing or the
officer with a statement of the reasons given by the witness for making them.
 If the deposition is not signed by the witness, the officer shall sign it and state on the record the fact of the waiver
witness is ill or cannot be found or refuses to sign.
or of the illness or absence of the witness or the fact of the refusal to sign together with the reason given therefor,
if any, and the deposition may then be used as fully as though signed, unless on a motion to suppress under
Section 29(f) of this Rule, the court holds that the reasons given for the refusal to sign require rejection of the
deposition in whole or in part.
 The officer shall certify on the deposition that the witness was duly sworn to by him and that the deposition is a
Certification and filing by officer (Sec 20)
 He shall then securely seal the deposition in an envelope indorsed with the title of the action and marked
true record of the testimony given by the witness.
"Deposition of (here insert the name of witness)" and shall promptly file it with the court in which the action is
pending or send it by registered mail to the clerk thereof for filing.
 The officer taking the deposition shall give prompt notice of its filing to all the parties.
Notice of filing (Sec 21)
 Upon payment of reasonable charges therefor, the officer shall furnish a copy of the deposition to any party or to
Furnishing copies (Sec 22)
the deponent.
 If the party giving the notice of the taking of a deposition fails to attend and proceed therewith and another
Failure to attend of party giving notice (Sec 23)
attends in person or by counsel pursuant to the notice, the court may order the party giving the notice to pay such
other party the amount of the reasonable expenses incurred by him and his counsel in so attending, including
reasonable attorney's fees.
 If the party giving the notice of the taking of a deposition of a witness fails to serve a subpoena upon him and the
Failure of party giving notice to serve subpoena (Sec 24)
witness because of such failure does not attend, and if another party attends in person or by counsel because he
expects the deposition of that witness to be taken, the court may order the party giving the notice to pay such
other party the amount of the reasonable expenses incurred by him and his counsel in so attending, including
reasonable attorney's fees.
 A party desiring to take the deposition of any person upon written interrogatories shall serve them upon every
Deposition upon written interrogatories; service of notice and of interrogatories (Sec 25)
other party with a notice stating the name and address of the person who is to answer them and the name or
 Within ten (10) days thereafter, a party so served may serve cross-interrogatories upon the party proposing to take
descriptive title and address of the officer before whom the deposition is to be taken.
 Within five (5) days thereafter the latter may serve re-direct interrogatories upon a party who has served cross-
the deposition.
interrogatories.
 Within three (3) days after being served with re-direct interrogatories, a party may serve recross-interrogatories
upon the party proposing to take the deposition.
 A copy of the notice and copies of all interrogatories served shall be delivered by the party taking the deposition
Officers to take responses and prepare record (Sec 26)
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.
 When a deposition upon interrogatories is filed, the officer taking it shall promptly give notice thereof to all the
Notice of filing and furnishing copies (Sec 27)
parties, and may furnish copies to them or to the deponent upon payment of reasonable charges therefor.
 After the service of the interrogatories and prior to the taking of the testimony of the deponent,
Orders for the protection of parties and deponents (Sec 28)
 the court in which the action is pending,

o on motion promptly made by a party or a deponent, and
o 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.
Effect of errors and irregularities in depositions (Sec 29)
(a) As to notice. — All errors and irregularities in the notice for taking a deposition are waived unless written
objection is promptly served upon the party giving the notice.
(b) As to disqualification of officer. — Objection to taking a deposition because of disqualification of the officer
before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon
thereafter as the disqualification becomes known or could be discovered with reasonable diligence.
(c) As to competency or relevancy of evidence. — Objections to the competency of a witness or the
competency, relevancy, or materiality of testimony are not waived by failure to make them before or during
the taking of the deposition, unless the ground of the objection is one which might have been obviated or
removed if presented at that time.
(d) As to oral examination and other particulars. — Errors and irregularities occurring at the oral examination in
the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in
the conduct of the parties and errors of any kind which might be obviated, removed, or cured if promptly
prosecuted, are waived unless reasonable objection thereto is made at the taking of the deposition.
(e) As to form of written interrogatories. — Objections to the form of written interrogatories submitted under
Sections 25 and 26 of this Rule are waived unless served in writing upon the party propounding them within
the time allowed for serving succeeding cross or other interrogatories and within three (3) days after service
of the last interrogatories authorized.
(f) As to manner of preparation. — Errors and irregularities in the manner in which the testimony is transcribed
or the deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed, or otherwise dealt with by
the officer under Sections 17, 19, 20 and 26 of this Rule are waived unless a motion to suppress the
deposition or some part thereof is made with reasonable promptness after such defect is, or with due
diligence might have been, ascertained.
Rule 24 – Depositions Before Action or Pending Appeal
 A person who desires to perpetuate his own testimony or that of another person regarding any matter that may be
Depositions before action; petition (Sec 1)
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 petition shall be entitled in the name of the petitioner and shall show:
Contents of petition (Sec 2)
(a) that the petitioner expects to be a party to an action in a court of the Philippines but is presently unable
to bring it or cause it to be brought;
(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.
 The petitioner shall serve a notice upon each person named in the petition as an expected adverse party, together
Notice and service (Sec 3)
with a copy of the petition, stating that the petitioner will apply to the court, at a time and place named therein,
 At least twenty (20) days before the date of the hearing, the court shall cause notice thereof to be served on the
for the order described in the petition.
parties and prospective deponents in the manner provided for service of summons.
 If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall
Order and examination (Sec 4)
make an order designating or describing the persons whose deposition may be taken and specifying the subject
matter of the examination and whether the depositions shall be taken upon oral examination or written
 The depositions may then be taken in accordance with Rule 23 before the hearing.
interrogatories.
 For the purpose of applying Rule 23 to depositions for perpetuating testimony, each reference therein to the court
Reference to court (Sec 5)
in which the action is pending shall be deemed to refer to the court in which the petition for such deposition was
filed.
 If a deposition to perpetuate testimony is taken under this Rule, or if, although not so taken, it would be
Use of deposition (Sec 6)
admissible in evidence, it may be used in any action involving the same subject matter subsequently brought in
accordance with the provisions of Sections 4 and 5 of Rule 23.
 If an appeal has been taken from a judgment of a court, including the Court of Appeals in proper cases, or before
Depositions pending appeal (Sec 7)
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
 In such case the party who desires to perpetuate the testimony may make a motion in the said court for leave to
proceedings in the said court.
 The motion shall state

take the depositions, upon the same notice and service thereof as if the action was pending therein.
(a) the names and addresses of the persons to be examined and the substance of the testimony which he
expects to elicit from each; and
 If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may
(b) the reason for perpetuating their testimony.
make an order allowing the depositions to be taken, and thereupon the depositions may be taken and used in the
same manner and under the same conditions as are prescribed in these Rules for depositions taken in pending
actions.
Rule 25 – Interrogatories to Parties
 Under the same conditions specified in Section 1 of Rule 23, any party desiring to elicit material and relevant facts
Interrogatories to parties; service thereof (Sec 1)
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.
 The interrogatories shall be answered fully in writing and shall be signed and sworn to by the person making
Answer to interrogatories (Sec 2)
 The party upon whom the interrogatories have been served shall file and serve a copy of the answers on the party
them.
submitting the interrogatories within fifteen (15) days after service thereof, unless the court, on motion and for
good cause shown, extends or shortens the time.
Objections to interrogatories (Sec 3)
 Objections to any interrogatories may be presented to the court within ten (10) days after service thereof, with
 Answers shall be deferred until the objections are resolved, which shall be at as early a time as is practicable.
notice as in case of a motion; and
 No party may, without leave of court, serve more than one set of interrogatories to be answered by the same
Number of interrogatories (Sec 4)
party.
 Interrogatories may relate to any matters that can be inquired into under Section 2 of Rule 23, and the answers
Scope and use of interrogatories (Sec 5)
may be used for the same purposes provided in Section 4 of the same Rule.
 Unless thereafter allowed by the court for good cause shown and to prevent a failure of justice, a party not served
Effect of failure to serve written interrogatories (Sec 6)
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
 At any time after issues have been joined, a party may file and serve upon any other party a written request for the
Request for admission (Sec 1)
admission by the latter of the genuineness of any material and relevant document described in and exhibited with
 Copies of the documents shall be delivered with the request unless copies have already been furnished.
the request or of the truth of any material and relevant matter of fact set forth in the request.
 Each of the matters of which an admission is requested shall be deemed admitted unless, within a period
Implied admission (Sec 2)
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
 Objections to any request for admission shall be submitted to the court by the party requested within the period
requested or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters.
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.
 Any admission made by a party pursuant to such request is for the purpose of the pending action only and shall
Effect of admission (Sec 3)
not constitute an admission by him for any other purpose nor may the same be used against him in any other
proceeding.
 The court may allow the party making an admission under this Rule, whether express or implied, to withdraw or
Withdrawal (Sec 4)
amend it upon such terms as may be just.
 Unless otherwise allowed by the court for good cause shown and to prevent a failure of justice, a party who fails
Effect of failure to file and serve request for admission (Sec 5)
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.
Rule 27 – Production or Inspection of Documents or Things
 Upon motion of any party showing good cause therefor, the court in which an action is pending may
Motion for production or inspection; order (Sec 1)
(a) order any party to produce and permit the inspection and copying or photographing, by or on behalf of
the moving party, of 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; or
(b) order any party to permit entry upon designated land or other property in his possession or control for
the purpose of inspecting, measuring, surveying, or photographing the property or any designated
 The order shall specify the time, place and manner of making the inspection and taking copies and photographs,
relevant object or operation thereon.
and may prescribe such terms and conditions as are just.

Rule 28 – Physical and Mental Examination of Persons
 In an action in which the mental or physical condition of a party is in controversy, the court in which the action is
When examination may be ordered (Sec 1)
pending may in its discretion order him to submit to a physical or mental examination by a physician.
 The order for examination may be made only on motion for good cause shown and upon notice to the party to
Order for examination (Sec 2)
be examined and to all other parties, and shall specify the time, place, manner, conditions and scope of the
examination and the person or persons by whom it is to be made.
 If requested by the party examined, the party causing the examination to be made shall deliver to him a copy of a
Report of findings (Sec 3)
 After such request and delivery, the party causing the examination to be made shall be entitled upon request to
detailed written report of the examining physician setting out his findings and conclusions.
receive from the party examined a like report of any examination, previously or thereafter made, of the same
 If the party examined refuses to deliver such report, the court on motion and notice may make an order requiring
mental or physical condition.
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.
 By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner,
Waiver of privilege (Sec 4)
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 29 – Refusal to Comply with Modes of Discovery
 If a party or other deponent refuses to answer any question upon oral examination, the examination may be
Refusal to answer (Sec 1)
 The proponent may thereafter apply to the proper court of the place where the deposition is being taken, for an
completed on other matters or adjourned as the proponent of the question may prefer.
 The same procedure may be availed of when a party or a witness refuses to answer any interrogatory submitted
deposition is being taken, for an order to compel an answer.
 If the application is granted, the court shall require the refusing party or deponent to answer the question or
under Rules 23 or 25.
interrogatory and if it also finds that the refusal to answer was without substantial justification, it may require the
refusing party or deponent or the counsel advising the refusal, or both of them, to pay the proponent the amount
 If the application is denied and the court finds that it was filed without substantial justification, the court may
of the reasonable expenses incurred in obtaining the order, including attorney's fees.
require the proponent or the counsel advising the filing of the application, or both of them, to pay to the refusing
party or deponent the amount of the reasonable expenses incurred in opposing the application, including
attorney's fees.
 If a party or other witness refuses to be sworn or refuses to answer any question after being directed to do so by
Contempt of court (Sec 2)
the court of the place in which the deposition is being taken, the refusal may be considered a contempt of that
court.
 If any party or an officer or managing agent of a party refuses to obey an order made under Section 1 of this Rule
Other consequences (Sec 3)
requiring him to answer designated questions, or an order under Rule 27 to produce any document or other thing
for inspection, copying, or photographing or to permit it to be done, or to permit entry upon land or other
property, or an order made under Rule 28 requiring him to submit to a physical or mental examination, the court
may make such orders in regard to the refusal as are just, and among others the following:
(a) 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;
(b) 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;
(c) 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; and
(d) In lieu 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.
 If a party after being served with a request under Rule 26 to admit the genuineness of any document or the truth
Expenses on refusal to admit (Sec 4)
of any matter of fact, serves a sworn denial thereof and if the party requesting the admissions thereafter proves
the genuineness of such document or the truth of any such matter of fact, he may apply to the court for an order
requiring the other party to pay him the reasonable expenses incurred in making such proof, including reasonable
 Unless the court finds that there were good reasons for the denial or that admissions sought were of no
attorney's fees.
substantial importance, such order shall be issued.
 If a party or an officer or managing agent of a party

Failure of party to attend or serve answers (Sec 5)
o Wilfully fails to appear before the officer who is to take his deposition, after being served with a proper
notice, or
o Fails to serve answers to interrogatories submitted under Rule 25 after proper service of such
interrogatories,
The court on motion and notice,
o May strike out all or any part of any pleading of that party, or
o Dismiss the action or proceeding or any part thereof, or enter a judgment by default against that party,
and
o In its discretion, order him to pay reasonable expenses incurred by the other, including attorney's fees.
 Expenses and attorney's fees are not to be imposed upon the Republic of the Philippines under this Rule.
Expenses against the Republic of the Philippines (Sec 6)
Deposition – definition and purposes

 People vs. Webb (312 SCRA 573)
o Deposition – the testimony of a witness taken upon oral question or written interrogatories, not in open
court, but in pursuance of a commission to take testimony issued by a court, or under a general law or court
rule on the subject, and reduced to writing and duly authenticated, and intended to be used in preparation and
upon the trial of a civil or criminal prosecution.
o A pretrial discovery device by which one party (through his attorney) asks oral questions of the other party or
of a witness for the other party.
o The person who is deposed is called the deponent.
o The deposition is conducted under oath outside of the court room, usually in one of the lawyer‘s offices.
o A transcript – a word for word account – is made of the deposition.
o Testimony of a witness, taken in writing, under oath or affirmation, before some judicial officer in answer to
questions or interrogatories x x x.
o Purposes of taking depositions
1. Give greater assistance to the parties ascertaining the truth and in checking and preventing perjury;
2. Provides an effective means of detecting and exposing false, fraudulent claims and defenses;
3. Make available in a simple, convenient and inexpensive way, facts which otherwise could not be
proved except with great difficulty;
4. Educate the parties in advance of a trial as to the real value of their claims and defenses thereby
encouraging settlements;
5. Expedite litigation;
6. Safeguard against surprise;
7. Prevent delay;
8. Simplify and narrow the issues;
9. Expedite and facilitate both preparation and trial.
 Dasmarinas Garments, Inc. vs. Reyes (225 SCRA 622)

When taken
o Depositions may be taken at any time after the institution of any action whenever necessary or convenient.
There is no rule that limits the deposition-taking only to the period of pre-trial or before it; no prohibition
against the taking of depositions after pre-trial.
o Indeed, the law authorizes the taking of depositions of witnesses before or after an appeal is taken from the
judgment of an RTC ―to perpetuate their testimony for use in the event of further proceedings in said court‖,
and even during the process of execution of a final and executory judgment.
 Republic vs. Sandiganbayan (204 SCRA 212)

When leave of court required
o In line with the principle of according liberal treatment to the deposition-discovery mechanism, such modes
of discovery as
a. Depositions under Rule 24,
b. Interrogatories to parties under Rule 25, and
c. Requests for admissions under Rule 26,
May be availed of without leave of court and generally, without court intervention. The Rules explicitly
provide that leave of court is not necessary to avail of said modes of discovery after an answer to the
complaint has been served.
o It is only when an answer has not yet been filed (but after jurisdiction has been obtained over the defendant
or property subject of the action) that prior leave of court is needed to avail of these modes of discovery, the
reason being that at that time the issues are not yet joined and the disputed facts are not clear.
o On the other hand, leave of court is required as regards discovery by
a. Production or inspection of documents or things under Rule 27, or
b. Physical and mental examination of persons under Rule 28
Which may be granted upon due application and a showing of due cause.
 Po vs. CA (164 SCRA 668)

Request for admission
o 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 a request to make a second denial of those already denied in his answer to
the complaint.
o A request for admission is not intended to merely reproduce or reiterate the allegations of the requesting
party‘s pleading but should set forth relevant evidentiary matters of fact, or documents described in and
exhibited with the request, whose purpose is to establish said party‘s cause of action or defense. Unless it
serves that purpose, it is ―pointless, useless,‖ and ―a mere redundancy.‖
Importance of discovery procedures
A.M. No. 03-1-09-SC dated July 13, 2004 Guidelines to be observed by trial court judges and clerks of court in the
conduct of pre-trial and use of deposition – discovery procedures
 To abbreviate court proceedings, ensure prompt disposition of cases and decongest court docket
 Hyatt Industrial Manufacturing Corps. vs. Ley Construction and Development Corp. (484 SCRA 286)
o Deposition is allowed as a departure from the accepted and usual judicial proceedings of examining
witnesses in open court where their demeanor could be observed by the trial judge, consistent with
the principle of promoting just, speedy and inexpensive disposition of every action and proceeding,
provided it is taken in accordance with the provisions of the Rules of Court.
o The importance of discovery procedures is well-recognized by the Court. it approved A.M. No. 03-1-
09-SC which provided for the guidelines to be observed by trial court judges and clerks of court in
the conduct of pre-trial and use of deposition-discovery measures.
o Under the AM, trial courts are directed to issue orders requiring parties to avail of interrogatories to
parties under Rule 25 and request for admission of adverse party under Rule 26 or at their discretion
make use of depositions under Rule 23 or other measures under Rule 27 and 28 within 5 days from
the filing of the answer. The parties are likewise required to submit, at least 3 days before the pre-
trial, pre-trial briefs, containing among others a manifestation of the parties of their having availed or
their intention to avail themselves of discovery procedures or referral to commissioners.

Rule 39
Execution
(Secs 1 to 48)
 Execution shall issue as a matter of right, on motion, upon a judgment or order that disposes of the action or
Judgment or final order (Sec 1)
 If the appeal has been duly perfected and finally resolved, the execution may forthwith be applied for in the court of
proceeding upon the expiration of the period to appeal therefrom if no appeal has been duly perfected
origin, on motion of the judgment oblige, submitting therewith certified true copies of the judgment or judgments or
 The appellate court may, on motion in the same case, when the interest so requires, direct the court of origin to issue
final order or orders sought to be enforced and of the entry thereof, with notice to the adverse party
the writ of execution
 Office of the Court Administrator vs. Corpuz (412 SCRA 1)

Losing party must first receive notice of the judgment before the court or its personnel can execute the judgment
o The losing party must first receive notice of the judgment before the court or its personnel can
execute the judgment, the reason being that, if such judgment is immediately executed without prior
notice to the losing party, then such a party has no remedy if the evidence or law does not support
the judgment.
Kinds of execution
1. According to nature
a. Matter of right (Sec 1)
- Enforceable by mandamus
 Execution of a judgment or a final order pending appeal

b. Discretionary (Sec 2)
o 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.
o After the trial court has lost jurisdiction, the motion for execution pending appeal may be filed
in the appellate court
o Discretionary execution may only issue upon good reasons to be stated in a special order after
 Execution of several, separate or partial judgments

due hearing
o A several, separate or partial judgment may be executed under the same terms and conditions as
execution of a judgment or final order pending appeal
2. According to mode of enforcement
 A final and executory judgment or order may be executed on motion within 5 years from the date of
a. By motion (Sec 6, 1st sentence)
its entry.
 After the lapse of 5 years from the date of entry, and before it is barred by the statute of limitations, a
b. By independent action (Sec 6, 2nd sentence)
judgment may be enforced by action
Judgments which are immediately executory

1. MTC judgment in forcible entry and unlawful detainer (Rule 70, Sec 19), or RTC judgment on appeal against
defendant (id., Sec 21)
2. Judgment in action for injunction, receivership, accounting, support (Sec 4)
Order of execution cannot be appealed (Rule 41, Sec 1 (e))
Discretionary execution (execution pending appeal) (Secs 2, 3, 5)
1. When and where to file motion
a. Before appeal perfected – with trial court
b. After appeal perfected – with appellate court
2. Trial court can grant motion for execution pending appeal even after perfection of appeal (Sec 9, last par)

 The executing sheriff shall observe the same procedure under paragraph (a) with respect to the delivery of
payment to the judgment obligee
 Discretionary execution may only issue upon good reasons to be stated in a special order after due hearing
Grounds of motion for execution pending appeal (Sec 2(a), last par.)
 Balajonda vs. COMELEC (452 SCRA 643)

Execution pending appeal applies to election cases.
o Despite the silence of the Comelec Rules of Procedure as to the procedure of the issuance of a writ of
execution pending appeal, there is no reason to dispute the Comelec‘s authority to do so, considering that
the suppletory application of the Rules of Court is expressly authorized by Sec 1, Rule 41 of the Comelec
Rules of Procedure.
o The public policy underlying the suppletory application of Sec 2(a), Rule 39 is to obviate a hollow victory
for the duly elected candidate as determined by either the courts or the Comelec.
 Discretionary execution issued under section 2 may be stayed upon approval by the proper court of a sufficient
Stay of execution pending appeal (Sec 3)
supersedeas bond filed by the party against whom it is directed, conditioned upon the performance of the judgment
or order allowed to be executed in case it shall be finally sustained in whole or in part. The bond thus given may be
proceeded against on motion with notice to the surety
Bonds in execution
1. Bond filed by judgment debtor to stay execution pending appeal – supersedeas bond (Sec 3)
2. Bond of judgment obligor to enable sheriff to continue holding levied property after affidavit of third party claim filed
with him (Sec 16)
 Where the executed judgment is reversed totally or partially, or annulled, on appeal or otherwise, the trial court may,
Effect of reversal of executed judgment on appeal (Sec 5)
on motion, issue such orders of restitution or reparation of damages as equity and justice may warrant under the
circumstances (Sec 5)
Modes of execution (Sec 6)

1. By motion within 5 years from date of entry of judgment
2. By independent action called ―revival of judgment‖ after 5 years and before it is barred by statute of limitations
Execution in case of death of party
 In case of the death of a party, execution may issue or be enforced in the following manner:
1. Sec 7
a. In case of death of judgment obligee – upon the application of his executor or administrator, or successor in
interest;
b. In case of death of judgment obligor
i. For recovery of real or personal property, or the enforcement of a lien thereon – against his executor or
administrator or successor in interest
ii. 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
2. See effect of death of party on pending action (Rule 3, Sec 16)
 Action survives and continues, except if the action is purely personal to him, such as action for support
a. If plaintiff dies during pendency of case
 Deceased plaintiff shall be substituted by legal representatives

or legal separation
b. If defendant dies, effect of his death depends upon nature of the pending action
Action on contractual money claims
1. Defendant dies before entry of final judgment:
o Action shall not be dismissed and shall be allowed to continue until entry of final judgment
o A favorable judgment obtained by the plaintiff shall be enforced in the manner especially
provided in the rules for prosecuting claims against the estate of a deceased person

2. Defendant dies after entry of final judgment and a writ of execution has been issued but the sheriff has
not yet levied properties of the defendant
o Sheriff shall not proceed with levy
o Plaintiff should file money claim in the estate proceedings for the settlement of the estate of the
defendant
o If no estate proceedings yet, plaintiff may initiate the same and file his claim therein
3. Defendant dies after entry of final judgment and levy
o Judgment shall be enforced by a writ of execution by proceeding with the sale of the levied
property
 Action survives and shall continue

Action for recovery of real or personal property, or to enforce a lien on real or personal property
 Deceased must be substituted by his heirs or legal representatives

 When judgment against defendant becomes final and executory, said judgment can be enforced or
executed against the executor or administrator of the estate of the deceased
 Action survives and shall continue

Action for recovery of damages for injury to person or property
 Heirs or legal representatives must be substituted

 If judgment against defendant has become final and executory, judgment is actually for money so that it
could not be enforced against the executor or administrator, remedy of plaintiff is to file judgment as
 If defendant dies after entry of final judgment and after levy – judgment enforced by proceeding with sale
money claim in the estate proceedings
of levied properties
 The writ of execution shall be returnable to the court issuing it immediately after the judgment has been satisfied in
Lifetime of writ of execution (Sec 14)
 If the judgment cannot be satisfied in full within 30 days after his receipt of the writ, the officer shall report to the
part or in full.
 Such writ shall continue in effect during the period within which the judgment may be enforced by motion.
court and state the reason therefor.
 The officer shall make a report to the court every 30 days on the proceedings taken thereon until the judgment is
 The returns or periodic reports shall set forth the whole of the proceedings taken, and shall be filed with the court and
satisfied in full, or its effectivity expires.
 Jalandoni vs. PNB (108 SCRA 102)

copies thereof promptly furnished the parties.
o A valid execution issued and levy made within the five-year period after entry of the judgment may be
enforced by sale of the property levied upon thereafter, provided the sale is made within ten years after
the entry of the judgment. Thus, judgment debtor‘s land levied upon within five years after entry of
judgment can no longer be sold at an execution sale after the expiration of the 10-year period for
enforcing the judgment.
Execution of judgments for money, how enforced (Sec 9)

1. Immediate payment on demand
2. Satisfaction by levy
 Levy – a seizure. Process whereby a sheriff empowered by writ or other judicial directive actually seizes,
Meaning of levy
or otherwise brings within his control, a judgment debtor‘s property which is taken to secure or satisfy
 Fiestan vs. CA (185 SCRA 751)

the judgment.
o Levy is the act whereby a sheriff sets apart or appropriates for the purpose of satisfying the
command of the writ, a part or the whole of the judgment-debtor‘s property.
- three different kinds of sales under the law
a. ordinary execution sale under Rule 39
b. judicial foreclosure sale under Rule 68
c. extrajudicial foreclosure sale under Act 3135
Execution of money judgments under Rule 39, Sec. 9 – promissory note not allowed.
 Dagooc vs. Erlina (A.M. No. P-04-1857) (formerly OCA I.P.I. No. 02-1429-P)
o The law mandates that in the execution of a money judgment, the judgment debtor shall pay either in
cash, certified bank check payable to the judgment obligee, or any other form of payment acceptable
to the latter. Nowhere does the law mention promissory notes as a form of payment. The only exception is when such
form of payment is acceptable to the judgment debtor. But it was obviously not acceptable to complainant,
otherwise she would not have filed this case against respondent sheriff. In fact, she objected to it
because the promissory notes of the defendants did not satisfy the money judgment in her favor.
o If the judgment debtor cannot pay all or part of the obligation in cash, certified bank check or other
mode of payment acceptable to the judgment obligee, the money judgment shall be satisfied by
levying on the properties of the judgment debtor.
 The levy on execution shall create a lien in favor of the judgment oblige over the right, title and interest of the
Effect of levy on execution as to third persons (Sec 12)
 Campillo vs. CA (129 SCRA 513)

judgment obligor in such property at the time of the levy, subject to liens and encumbrances then existing.
o A later sale of land pursuant to a writ of execution takes precedence over a private sale not recorded
in the Registry of Deeds.
o Under PD 1529, a private instrument, other than a will, does not affect registered land until the same
is registered.
o The act of registration shall be the operative act to convey or affect the land insofar as third persons
are concerned.
3. Garnishment of debts and credits
 Garnishment – proceeding whereby a plaintiff creditor, i.e. garnishor, seeks to subject to his claim the
Meaning of garnishment
property or money of a third party, i.e. garnishee, owed by such party to defendant debtor, i.e. principal
 Manila Remnant Co., Inc. vs. CA (231 SCRA 281)

defendant
o Garnishment is a species of attachment for reaching credits belonging to the judgment

debtor and owing to him from a stranger to the litigation. It is an attachment by means of
which the plaintiff seeks to subject to his claim property of the defendant in the hands of a
third person or money owed by such third person or garnishee to the defendant. The rules
on attachment also apply to garnishment proceedings.
o A garnishment order shall be lifted if it is established that:
1. The party whose accounts have been garnished has posted a counterbond or has
made the requisite cash deposit;
2. The order was improperly or irregularly issued as where there is no ground for
garnishment or the affidavit and/or bond filed therefor are defective or insufficient;
3. The property attached is exempt from execution, hence exempt from preliminary
attachment; or
4. The judgment is rendered against the attaching or garnishing creditor.
Garnishment of bank deposits – does not violate bank secrecy law (RA 1405)
Garnishment of public funds
Third party claim (Sec 16)
 If the property levied on is claimed by any person other than the judgment obligor or his agent, and such
1. How made
person makes an affidavit of his title thereto or right to the possession thereof, stating the grounds of such
right or title, and serves the same upon the officer making the levy and a copy thereof upon the judgment
obligee, 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
 In case of disagreement as to such value, the same shall be determined by the court issuing the writ of
value of the property levied on.
 No claim for damages for the taking or keeping of the property may be enforced upon the bond unless the
execution.
action therefor is filed within 120 days from the date of the filing of the bond.
2. Who acts on the claim?
If disapproved, remedies of third party claimant
- File separate action to determine title or right of possession
- File complaint for damages against bond filed by judgment creditor
 Before the sale of property on execution, notice thereof must be given as follows:
Sale on execution (Sec 15)
 In case of perishable property, by posting written notice of the time and place of the sale in 3 public places, preferably
in conspicuous areas of the municipal or city hall, post office and public market in the municipality or city where the
sale is to take place, for such time as may be reasonable, considering the character and condition of the property;
 By posting for 20 days in the 3 public places above-mentioned a similar notice particularly describing the
1. Real property
 If the assessed value of the property exceeds P50k, by publishing a copy of the notice once a week for 2
property and stating where the property is to be sold
consecutive weeks in one newspaper selected by raffle, whether in English, Filipino, or any major regional
language published, edited and circulated or, in the absence thereof, having general circulation in the province
or city
 By posting a written notice of the time and place of the sale in the three public places mentioned for not less
2. Personal property
than 5 days
 Written notice of the sale shall be given to the judgment obligor, at least 3 days before the sale, except as
3. In all cases
provided in paragraph (a) where notice shall be given at any time before the sale, in the same manner as
 The notice shall specify the place, date and exact time of the sale which should not be earlier than 9AM and not later
personal service of pleadings and other papers as provided by section 6 or Rule 13.
 The place of the sale may be agreed upon by the parties

than 2PM.
 In the absence of such agreement, the sale of real property or personal property not capable of manual delivery shall
be held in the office of the clerk of court of the RTC or MTC which issued the writ or which was designated by the
 In the case of personal property capable of manual delivery, the sale shall be held in the place where the property is
appellate court
located
 When the purchaser of any personal property, capable of manual delivery pays the purchase price, the officer
4. Conveyance of property sold to highest bidder, how made (Secs 23, 24, 25, 26)
making the sale must deliver the property to the purchaser and, if desired, execute and deliver to him a
certificate of sale. The sale conveys to the purchaser all the rights which the judgment obligor had in such
 When the purchaser of any personal property, not capable of manual delivery, pays the purchase price, the
property as of the date of the levy on execution or preliminary attachment (Sec 23)
officer making the sale must execute and deliver to the purchaser a certificate of sale. Such certificate conveys
to the purchaser all the rights which the judgment obligor had in such property as of the date of the levy on
 Upon a sale of real property, the officer must give to the purchaser a certificate of sale containing:
execution or preliminary attachment (Sec 24)
o A particular description of the real property sold;

o The price paid for each distinct lot or parcel;
o The whole price paid by him;
o A statement that the right of redemption expires 1 year from the date of registration of the certificate
of sale.
 When a property sold by virtue of a writ of execution has been claimed by a third person, the certificate of
Such certificate must be registered in the registry of deeds of the place where the property is situated (Sec 25)
sale to be issued by the sheriff pursuant to Sections 23, 24 and 25 of this Rule shall make express mention of
the existence of such third-party claims (Sec 26)
Redemption (Secs 27, 28)

1. Right of redemption
a. Personal property
b. Real property
2. Who may redeem? (Sec 27)
a. Judgment obligor or his successor in interest
b. Creditor who is a redemptioner (a creditor who has a lien by virtue of any attachment, judgment or mortgage
on the property sold, or on some part thereof, subsequent to the lien under which the property was sold)
3. Time and manner of, and amounts payable on, successive redemption, etc (Sec 28)
a. Judgment debtor (or his successor in interest), if exercising redemption ahead of mere redemptioner – within
1 year from date of registration of sheriff‘s certificate of sale (with Register of Deeds)
 By paying the purchaser the amount of his purchase, with one per centum per month interest
 Together with the amount of any assessments or taxes which the purchaser may have paid thereon
thereon in addition, up to the time of redemption
 If the purchaser be also a creditor having a prior lien to that of the redemptioner, other than the
after purchase, and interest on such last named amount at the same rate
judgment under which such purchase was made, the amount of such other lien, with interest
b. Redemptioner exercising redemption ahead of judgment debtor (or his successor in interest) – within 1 year
 By paying the purchaser the amount of his purchase, with one per centum per month interest
from date of registration of certificate of sale
 Together with the amount of any assessments or taxes which the purchaser may have paid thereon
thereon in addition, up to the time of redemption
 If the purchaser be also a creditor having a prior lien to that of the redemptioner, other than the
after purchase, and interest on such last named amount at the same rate
judgment under which such purchase was made, the amount of such other lien, with interest
c. Redemptioner redeeming from another redemptioner – within 60 days after the last redemption
 Upon payment of the sum paid on the last redemption, with two per centum thereon in addition, and
the amount of any assessments or taxes which the last redemptioner may have paid thereon after
 In addition, the amount of any liens held by said last redemptioner prior to his own, with interest
redemption by him, with interest on such last-named amount
 (plus, amounts of any assessments or taxes which the last previous redemptioner paid after the
 Written notice of any redemption must be given to the officer who made the sale and a duplicate filed with
redemption thereon, with interest thereon)
the RD of the place, and if any assessments or taxes are paid by the redemptioner or if he has or acquires any
lien other than that upon which the redemption was made, notice thereof must be made in like manner be
 If such notice be not filed, the property may be redeemed without paying such assessments, taxes, or liens
given the officer and filed with the RD
 If no redemption be made within 1 year from the date of registration of the certificate of sale
Deed and possession after expiration of redemption period (Sec 33)
 If so redeemed whenever 60 days have elapsed and no other redemption has been made, and notice thereof given, and
o Purchaser entitled to a conveyance and possession of the property
the time for redemption has expired
 In all cases, judgment obligor shall have the entire period of 1 year from the date of the registration of the sale to
o Last redemptioner entitled to conveyance and possession
 Deed shall be executed by the officer making the sale or by his successor in office, and in the latter case shall have the
redeem the property
same validity as though the officer making the sale had continued in office and executed it.
Purchaser or last redemptioner entitled to:
1. Execution of final deed of sale by sheriff – to enable purchaser or last redemptioner to consolidate his title to the
new property and to issuance by the Registry of Deeds of new title in his name
2. Physical possession of the property by means of a writ of possession against judgment obligor or his successor in
interest or against any person who occupied the land after filing of case in which judgment was rendered and writ
of execution was issued

 Malonzo vs. Mariano (170 SCRA 667)

Where third party actually holding property before institution of case and adversely to judgment obligor
o Purchaser at an extrajudicial foreclosure sale has an absolute right to possession of the property sold
during the one-year period of redemption
o Sheriff may enforce writ of possession against persons other than the mortgagor who are in
occupancy of the foreclosed property
o In case of an extrajudicial foreclosure of a real estate mortgage, the possession of the property sold
may be given to the purchaser by the sheriff after the period of redemption had expired, unless a
third person is actually holding the property adversely to the mortgagor. An ordinary action for the
recovery of possession is not necessary. There is no law in this jurisdiction whereby the purchaser at
a sheriff‘s sale of real property is obliged to bring a separate and independent suit for possession after
the one-year period for redemption has expired and after he has obtained the sheriff‘s final certificate
of sale.
o Petitioners cannot be deemed third parties actually holding the property adversely to the mortgagor.
They derive their rights to the possession of the property exclusively from the mortgagor, in virtue of
verbal agreements of lease.
o They were lessees at the time that the property occupied by them was mortgaged by their lessor to
Banco Filipino. And of that mortgage they were charged with constructive knowledge upon its
registration in the RD. The right pertaining to them in this situation was that of being notified of the
application for a writ of possession and of being accorded an opportunity at a hearing to oppose the
same, as by showing that they were ―actually holding the property adversely‖ to the mortgagor.
o That right was duly accorded to them. They were served with copies of the motion or petition for
issuance of the writ of possession and had ample opportunities to oppose the same, to persuade the
Court that the writ should not issue or be executed against them.
o The proceedings showed that, by their own assertions, they were not holding the property adversely
to the mortgagor, but were exercising rights under, derived from, said mortgagor who was their
lessor. Upon cessation of their lessor‘s rights over the property, their own also ceased. The writ of
possession was therefore properly enforceable against them.
When writ of possession may be issued:

1. Sale at public auction – issued to purchaser where12-month redemption period has lapsed without any redemption
being made
2. Land registration proceedings
3. Judicial foreclosure – provided debtor is in possession and no third person, not a party to the foreclosure suit, had
intervened
4. Extrajudicial foreclosure
Issuance of writ of possession – ministerial duty; pendency of civil case to annul foreclosure immaterial
 Satisfaction of a judgment shall be entered by the clerk of court in the court docket, and in the execution book, upon
Entry of satisfaction of judgment by clerk of court (Sec 44)
the return of a writ of execution showing the full satisfaction of the judgment, or upon the filing of an admission to
the satisfaction of the judgment executed and acknowledged in the same manner as a conveyance of real property by
the judgment obligee or by his counsel unless a revocation of his authority is filed, or upon the endorsement of such
admission by the judgment obligee or his counsel on the face of the record of the judgment. (wow run on sentence)
Effects of judgments and final orders (Sec 47)
 The judgment or final order is, with respect to the matter directly adjudged or as to any other matter that
1. Bar by former judgment or res judicata (par (b))
could have been raised in relation thereto, conclusive between the parties and their successors in interest by
title subsequent to the commencement of the action or special proceeding, litigating for the same thing and
under the same title and in the same capacity.
 In any other litigation between the same parties or their successors in interest, that only is deemed to have
2. Conclusiveness of judgment (par (c))
been adjudged in a former judgment or final order which appears upon its face to have been so adjudged, or
which has actually and necessarily included therein or necessary thereto.
 Del Rosario vs. Far East Bank and Trust Company (537 SCRA 571)
o Distinguished:
Bar by prior judgment or estoppel by judgment Conclusiveness of judgment
Makes the judgment rendered in the first case an The second rule of res judicata, which refers to a
absolute bar to the subsequent action since that situation where the judgment in the prior action
judgment is conclusive not only as to the matters operates as an estoppel only as to the matters
offered and received to sustain it but also as to actually determined or which were necessarily
any other matter which might have been included therein
offered for that purpose and which could have
been adjudged therein – it is in this concept that
the term res judicata is more commonly and
generally used as a ground for a motion to dismiss
in civil cases
o Requisites of bar by former judgment
a. Finality of the former judgment;
b. Court which rendered it had jurisdiction over the subject matter and the parties;
c. It must be a judgment on the merits; and
d. There must be, between the first and second actions, identity of parties, subject matter and
causes of action
o Requisites of conclusiveness
o In determining whether causes of action are identical to warrant the application of the rule
of res judicata, the test is to ascertain whether the same evidence which is necessary to
sustain the second action would suffice to authorize a recovery in the first even in
cases in which the forms or nature of the two actions are different
Provisional Remedies
Rule 57
Preliminary Attachment
(Secs 1-20)
 Davao Light & Power Co., Inc. vs. CA (204 SCRA 343)
Nature of attachment
o Rule 57 speaks of the grant of the remedy ―at the commencement of the action or at any time thereafter.‖
The phrase, ―at the commencement of the action,‖ obviously refers to the date of the filing of the complaint
– which is the date that marks ―the commencement of the action‖ and the reference is plainly to a time
before summons is served on the defendant, or even before summons issues. Preliminary attachment may be
 Olib vs. Pastoral (188 SCRA 692)

validly applied for and granted before defendant is summoned or is heard from.
o Attachment – a provisional remedy by which the property of an adverse party is taken into legal custody,
either at the commencement of an action or at any time thereafter, as a security for the satisfaction of any
judgment that may be recovered by the plaintiff or any proper party. It is an auxiliary remedy and cannot have
an independent existence apart from the main suit or claim instituted by the plaintiff against the defendant.
Being merely ancillary to a principal proceeding, the attachment must fail if the suit itself cannot be
maintained as the purpose of the writ can no longer be justified.
o Where the main action is appealed, the attachment is also considered as appealed
 At the commencement of the action or at any time before entry of judgment, a plaintiff or any proper party may have
When issued; grounds (Sec 1)
the property of the adverse party attached as security for the satisfaction of any judgment that may be recovered in the
following cases:
1. Action for recovery of specified amount
2. Action involving embezzled property
3. Action to recover property fraudulently taken
4. Action involving fraud in contracting or performing obligations
5. Action against party who has removed or disposed of property to defraud creditors
6. Action against non-resident defendant
 An order of attachment may be issued either ex parte or upon motion with notice and hearing by the court in which
Issuance and contents of order (Sec 2)
 Must require the sheriff of the court to attach so much of the property in the Philippines of the party against whom it
the action is pending, or by the CA or SC
is issued, not exempt from execution, as may be sufficient to satisfy the applicant‘s demand
 Unless such party makes deposit or gives a bond as hereinafter provided in an amount equal to that fixed in the order,
which may be the amount sufficient to satisfy the applicant‘s demand or the value of the property to be attached as
 Several writs may be issued at the same time to the sheriffs of the courts of different judicial regions
stated by the applicant, exclusive of costs
 Order of attachment shall be granted only when it appears by the affidavit of the applicant, or of some other person
Attachment bond required (Secs 3, 4)
who personally knows the facts:

o That a sufficient cause of action exists
o That the case is one of those mentioned in section 1
o That there is no other sufficient security for the claim sought to be enforced by the action
o That the amount due to the applicant, or the value of the property the possession of which he is entitled to
 The affidavit, and the bond required by section 4, must be duly filed with the court before the order issues (Sec 3)
recover is as much as the sum for which the order is granted above all legal counterclaim
 The party applying for the order must thereafter give a bond executed to the adverse party in the amount fixed by the
court in its order granting the issuance of the writ, conditioned that the latter will pay all the costs which may be
adjudged to the adverse party and all damages which he may sustain by reason of the attachment, if the court shall
finally adjudge that the applicant was not entitled thereto (Sec 4)
 Sheriff enforcing the writ shall without delay and with reasonable diligence attach, to await judgment and execution in
Writ may issue ex parte; prior or contemporaneous service of summons required for enforcement (Sec 5)
the action, only so much of the property in the Philippines of the party against whom the writ is issued, not exempt
from execution, as may be sufficient to satisfy the applicant‘s demand
 Unless the former makes a deposit with the court from which the writ is issued, or gives a counter-bond executed to
the applicant, in an amount equal to the bond fixed by the court in the order of attachment or to the value of the
 No levy on attachment pursuant to the writ issued under section 2 shall be enforced unless it is preceded, or
property to be attached, exclusive of costs.
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
 Davao Light & Power Co., Inc. vs. CA, supra

Philippines
o Writs of attachment may properly issue ex parte provided that the Court is satisfied that the relevant
requisites therefor have been fulfilled by the applicant, although it may, in its discretion, require prior hearing
on the application with notice to the defendant; but that levy on property pursuant to the writ thus issued
may not be validly effected unless preceded, or contemporaneously accompanied, by service on the defendant
of summons, a copy of the complaint, the application for attachment, the order of attachment, and the
plaintiff‘s attachment bond.
 Requirement of prior or contemporaneous service of summons shall not apply where the summons could not be
When attachment may be enforced without service of summons
served personally or by substituted service despite diligent efforts, or the defendant is a resident of the Philippines
temporarily absent therefrom, or the defendant is a non-resident of the Philippines, or the action is one in rem or
 Valmonte vs. CA (252 SCRA 92)

quasi in rem.
o A resident defendant in an action in personam who cannot be personally served with summons may be
summoned either by means of substituted service, or by publication
o As petitioner is a nonresident who is not found in the Philippines, service of summons on her must be in
accordance with Rule 14, Sec 17. Such service, to be effective outside the Philippines must be made either:
 By personal service;
 By publication in a newspaper of general circulation in such places and for such time as the court
may order, in which case a copy of the summons and order of the court should be sent by
registered mail to the last known address of the defendant; or
 In any other manner which the court may deem sufficient.
o The three modes of service of summons upon a nonresident must be made outside the Philippines, such as
through the Philippine Embassy in the foreign country where the defendant resides.
Discharge of attachment
 After a writ of attachment has been enforced, the party whose property has been attached, or the person
1. Upon giving counterbond (Sec 12)
 Court shall, after due notice and hearing, order the discharge of the attachment if the movant makes a cash
appearing on his behalf, may move for the discharge of the attachment wholly or in part on the security given
deposit, or files a counter-bond executed to the attaching party with the clerk of the court where the
application is made, in an amount equal to that fixed by the court in the order of attachment, exclusive of
 If the attachment is sought to be discharged with respect to a particular property, the counter-bond shall be
costs
 In either case, the cash deposit or the counter-bond shall secure the payment of any judgment that the
equal to the value of that property as determined by the court
 A notice of the deposit shall forthwith be served on the attaching party

attaching party may recover in the action
 Upon discharge of an attachment in accordance with the provisions of this section, the property attached, or
the proceeds of any sale thereof, shall be delivered to the party making the deposit or giving the counter-
bond, or to the person appearing on his behalf, the deposit or counter-bond aforesaid standing in place of the
 Should such a counter-bond for any reason be found to be, or become insufficient, and the party furnishing
property so released
the same fail to file an additional counter-bond, the attaching party may apply for a new order of attachment
 The party whose property has been ordered attached may file a motion with the court in which the action is
2. On other grounds (Sec 13)
pending, before or after levy or even after the release of the attached property, for an order to set aside or
discharge the attachment on the ground that the same was improperly or irregularly issued or enforced, or
 If the attachment is excessive, the discharge shall be limited to the excess

that the bond is insufficient.
 If the motion be made on affidavits on the part of the movant but not otherwise, the attaching party may
oppose the motion by counter-affidavits or other evidence in addition to that on which the attachment was
 After due notice and hearing, the court shall order the setting aside or the corresponding discharge of the
made
attachment if it appears that it was improperly or irregularly issued or enforced, or that the bond is
insufficient, or that the attachment is excessive, and the defect is not cured forthwith.
3. Judgment rendered against attaching party – dismissal of principal action (Sec 19)
 If judgment be rendered against the attaching party, all the proceeds of sales and money collected or received
by the sheriff, under the order of attachment, and all property attached remaining in any such sheriff‘s hands,
shall be delivered to the party against whom attachment was issued, and the order of attachment discharged
 Traders Royal Bank vs. IAC (133 SCRA 141)

Same procedure as in Sec 16, Rule 39 in levy of property on execution claimed by third party
o Remedy of a person who claims to be an owner of property levied upon by attachment is to file a third
party claim with the sheriff and if attaching creditor posts an indemnity bond, to file a separate and
independent action.
Satisfaction of judgment out of property attached (Sec 15)

 If judgment be recovered by the attaching party and execution issue thereon, the sheriff may cause the judgment to be
satisfied out of the property attached, if it be sufficient for that purpose in the following manner:
o By paying to the judgment obligee the proceeds of all sales of perishable or other property sold in
pursuance of the order of the court, or so much as shall be necessary to satisfy the judgment;
o If any balance remains due, by selling so much of the property, real or personal, as may be necessary to
satisfy the balance, if enough for that purpose remain in the sheriff‘s hands, or in those of the clerk of
court;
o By collecting from all persons having in their possession credits belonging to the judgment obligor, or
owing debts to the latter at the time of the attachment of such credits or debts, the amount of such
credits and debts as determined by the court in the action, and stated in the judgment, and paying the
 The sheriff shall forthwith make a return in writing to the court of his proceedings under this section and furnish
proceeds of such collection over to the judgment obligee.
the parties with copies thereof
 An application for damages on account of improper, irregular or excessive attachment must be filed before the trial or
Claims for damages on account of improper, irregular or excessive attachment (Sec 20)
before appeal is perfected or before the judgment becomes executory, with due notice to the attaching party and his
 Such damages may be awarded only after proper hearing shall be included in the judgment on the main case.
surety or sureties, setting forth the facts showing his right to damages and the amount thereof.
 If the judgment of the appellate court be favorable to the party against whom the attachment was issued, he must
claim damages sustained during the pendency of the appeal by filing an application in the appellate court, with notice
to the party in whose favor the attachment was issued or his surety or sureties, before the judgment of the appellate
 The appellate court may allow the application to be heard and decided by the trial court.
court becomes executory.
 Nothing herein contained shall prevent the party against whom the attachment was issued from recovering in the
same action the damages awarded to him from any property of the attaching party not exempt from execution should
 Pacis vs. Comelec (29 SCRA 24)

the bond or deposit given by the latter be insufficient or fail to fully satisfy the award.
o The reglementary period within which to file the appropriate motion for assessment and award of damages
upon an injunction bond is before the main judgment becomes executory. No claim for recovery of damages
may be filed after the judgment has become final and executory.
o The statutory undertaking of the bond is that it shall answer for all damages which the party to be restrained
may sustain by reason of the injunction if the court should finally decide that the plaintiff was not entitled
thereto. Malice or lack of good faith is not an element of recovery on the bond. To require malice as a
prerequisite would make the filing of a bond a useless formality. If good faith were tenable as a defense, it
would rule out practically all relief from actual damages sustained as a result of an injunction.
o Amount of recoverable damages is limited to bond.
o Where the bond is insufficient in amount, the law expressly gives the party affected the recourse of excepting
thereto and provides for the dissolution of the injunction if ―a bond sufficient in amount with the sufficient
sureties approved after justification is not filed forthwith.‖
Rule 58
Preliminary Injunction
(Secs 1 to 9)
 Preliminary injunction – an order granted at any stage of an action or proceeding prior to the judgment or final order,
Preliminary injunction defined (Sec 1)
 Preliminary mandatory injunction – when the order requires the performance of a particular act or acts
requiring a party or a court, agency or a person to refrain from a particular act or acts.
 Can only be filed in the RTC. Action for injunction with prayer for the issuance of TRO, etc.
Injunction as a main action
 Most common – prohibitory injunction

 Hernandez vs. National Power Corporation (485 SCRA 166)
o For a writ of preliminary injunction to be issued, the Rules do not require that the act complained of be in
violation of the rights of the applicant. Indeed, what the Rules require is that the act complained of be
probably in violation of the rights of the applicant. Under the Rules of Court, probability is enough basis for
injunction to issue as a provisional remedy, which is different from injunction as a main action where one
needs to establish absolute certainty as a basis for a final and permanent injunction.
 Sabalones vs. CA (239 SCRA 79)

Nature and purpose
o The primary purpose of the provisional remedy of injunction is to preserve the status quo of the things
subject of the action or the relations between the parties and thus protect the rights of the plaintiff respecting
these matters during the pendency of the suit. Otherwise, defendant may, before final judgment, do or
continue doing the act which the plaintiff asks the court to restrain and thus make ineffectual the final
judgment that may be rendered afterwards in favor of the plaintiff.
o Injunction is primarily a preventive remedy. Its province is to afford relief against future acts which are
against equity and good conscience and to keep and preserve the thing in the status quo, rather than to
remedy what is past or to punish for wrongful acts already committed. It may issue to prevent future wrongs
although no right has yet been violated.
 Ulang vs. CA (225 SCRA 637)

o Twin requirements of a valid injunction: existence of a right and its actual or threatened violation.
o Injunction, whether preliminary or final, is not designed to protect contingent or future rights. An injunction
will not issue to protect a right not in esse and which may never arise, or to restrain an act which does not
give rise to a cause of action.
o The complainant‘s right or title, moreover, must be clear and unquestioned, for equity, as a rule, will not take
cognizance of suits to establish title, and will not lend its preventive aid by injunction where the complainant‘s
title or right is doubtful or disputed. The possibility of irreparable damage, without proof of violation of an
actual existing right, is not ground for an injunction, being mere damnum absque injuria.
o Injunction will not lie to defeat execution of final judgment so as to take property out of successful party‘s
possession.
 Court where the action or proceeding is pending

Which court may issue writ (Sec 2)
 If the action or proceeding is pending in the CA or SC, it may be issued by said court or any member thereof
 Decano vs. Edu (99 SCRA 410)

Territorial jurisdiction to issue writ
o Where the annulment of the dismissal of an employee is the cause of action and mandamus and injunction
are mere corollary remedies thereto, a CFI of Pangasinan has jurisdiction to issue writs of mandamus and
injunction against an officer of the Land Transportation Commission even if the latter holds office in
Quezon City.
o It is true that the order of dismissal was issued by respondent Edu, but it was to be implemented in Dagupan
City by his subordinate officer, respondent Acting Registrar of the LTC stationed at Dagupan City. Insofar as
respondent Edu is concerned, the order terminating the services of respondent was a fait accompli and this he
had done without authority. The injunction in question, consequently, must be taken only to restrain the
implementation of respondent Edu‘s order by his co-respondent whose official station at Dagupan City is
within the territorial boundaries of the trial court‘s jurisdiction district.
o Where the main issue is the correctness of a national official‘s decision, the provincial CFIs have equal
jurisdiction with Manila Courts to review decisions of national officials, as otherwise litigants of limited means
would practically be denied access to the courts of the localities where they reside and where the questioned
acts are sought to be enforced.
 Preliminary injunction may be granted when it is established:

Grounds for issuance (Sec 3)
o That the applicant is entitled to the relief demanded, and the whole or part of such relief consists in
restraining the commission or continuance of the act or acts complained of, or in requiring the
performance of an act or acts, either for a limited period or perpetually;
o That the commission, continuance or non-performance of the act or acts complained of during the
litigation would probably work injustice to the applicant; or
o That a party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or
suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the
subject of the action or proceeding, and tending to render the judgment ineffectual.
 Verzosa vs. CA (299 SCRA 100)

Acts consummated may not be enjoined; exceptions
o Generally, consummated acts can no longer be restrained by injunction.

o However, ―where the acts are performed after the injunction suit is brought, a defendant may not as [a
matter] of right proceed to perform the acts sought to be restrained and then be heard to assert in the suit
that the injunction will not lie because he has performed these acts before final hearing has been had, but
after the beginning of the action. A defendant thus acts at his peril.‖
o It has been held that ―the general rule of law is that, where a defendant completes, after the beginning of an
action, the act thereby sought to be restrained, and before the issue of any final order or decree, the court has
the power to, and may, compel, by a mandatory injunction, the restoration of the former condition of things
and thereby prevent the giving of an advantage by reason of the wrongful act.
o And where a defendant does an act thus sought to be restrained, he proceeds at his peril and the court in
which the action is pending may compel a restoration of the former status or grant to the plaintiff such relief
as may be proper.‖
 Tay Chun Suy vs.CA (229 SCRA 151)

When injunction is improper
o Rule that no court has power to interfere by injunction with the judgments of another court with concurrent
or coordinate jurisdiction applies only when no third-party claimant is involved.
o When a third-party, or a stranger to the action, asserts a claim over the property levied upon, the claimant
may vindicate his claim by an independent action in the proper civil court which may stop the execution of
the judgment on property not belonging to the judgment debtor.
Laws prohibiting injunction

PD 605 – cases involving concessions, licenses, and other permits issued by public administrative officials or bodies for
exploitation of natural resources
PD 1818 – cases involving infrastructure and natural resources projects of, and public utilities operated by, the
government
PD 385 – against any government financial institution taking foreclosure of loans of which at least 20% thereof are
outstanding
 Hernandez vs. National Power Corporation (485 SCRA 166)

Exceptions
o The prohibition (under PD 1818) extends only to the issuance of injunctions or restraining orders against
administrative acts in controversies involving facts or the exercise of discretion in technical cases. On
issues clearly outside this dimension and involving questions of law, courts could not be prevented from
exercising their power to restrain or prohibit administrative acts.
o Where there is a violation of petitioners‘ constitutionally protected right to health and whether
respondent Napocor had indeed violated the LGC provision on prior consultation with the affected
communities are veritable questions of law that invested the trial court with jurisdiction to issue a TRO
and subsequently, a preliminary injunction. As such, these questions of law divest the case from the
protective mantle of PD 1818.
 A preliminary injunction or temporary restraining order may be granted only when:

Verified application and bond (Sec 4)
o The application in the action or proceeding is verified, and shows facts entitling the applicant to the relief
demanded; and
o Unless exempted by the court, the applicant files with the court where the action or proceeding is
pending, a bond executed to the party or person enjoined, in an amount to be fixed by the court, to the
effect that the applicant will pay to such party or person all damages which he may sustain by reason of
the injunction or temporary restraining order if the court should finally decide that the applicant was not
entitled thereto. Upon approval of the requisite bond, a writ of preliminary injunction shall be issued;
o 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.
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 contemporaneous service of summons shall not apply;
o The application for a temporary restraining order shall thereafter be acted upon only after all parties are
heard in a summary hearing which shall be conducted within 24 hours after the sheriff‘s return of service
and/or the records are received by the branch selected by raffle and to which the records shall be
transmitted immediately.
 If it shall appear from the facts shown by affidavits or by the verified application that great or irreparable injury
Not granted without notice; exception (Sec 5)
 If the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury (TRO, 72 hrs
would result to the applicant before the matter can be heard on notice (TRO, 20 days)
then summary hearing to determine w/n TRO should be extended. Extension cannot exceed 20d, including the
original 72h)
 There is hearing only in the RTC. In the CA – respondent is just required to show cause why applicant not entitled to
Distinction between RTC, CA and SC TROs
 RTC – 20 days; CA – 60 days; SC – indefinite.

hearing
 TC, CA, SB or CTA that issued a writ of preliminary injunction against a lower court, board, officer, or quasi-judicial
o TRO in SC has the same effect as injunction
 Federation of Land Reform Farmers of the Phils. vs. CA (246 SCRA 175)
agency shall decide the main case or petition within 6 months from the issuance of the writ.
o Ordinarily, the efficacy of a TRO is non-extendible and courts have no discretion to extend the same
considering the mandatory tenor of the Rule. However, there is no reason to prevent a court from extending
the 20-day period when the parties themselves ask for such extension or for the maintenance of the status
quo.
 It was valid to extend the TRO by agreement of the parties because of their intention to preserve
the status quo
Dissolution of injunction or TRO (Sec 6)

* Counterbond – person enjoined will pay all damages which applicant may suffer by the denial or dissolution of the
 The application for injunction or restraining order may be denied, upon a showing of its insufficiency.
injunction or restraining order
 Injunction or restraining order may also be denied, or if granted, may be dissolved, on other grounds upon affidavits
 It may further be denied, or if granted, may be dissolved, if it appears after hearing that although the applicant is
of the party or person enjoined, which may be opposed by the applicant also by affidavits.
entitled to the injunction or restraining order, the issuance or continuance thereof, as the case may be, would cause
irreparable damage to the party or person enjoined while the applicant can be fully compensated for such damages as
he may suffer and the former files a bond in an amount fixed by the court conditioned that he will pay all damages
 If it appears that the extent of the preliminary injunction or restraining order granted is too great, it may be modified.
which the applicant may suffer by the denial or the dissolution of the injunction or restraining order.
Judgment to include damages against party and sureties (Sec 8)
 An application for damages on account of improper or irregular injunction must be filed before the trial or before
Same procedure as in Sec 20, Rule 57
appeal is perfected or before the judgment becomes executory, with due notice to the applicant and his surety or
sureties, setting forth the facts showing his right to damages and the amount thereof.
 If the judgment of the appellate court be favorable to the party against whom the injunction was issued or his surety
or sureties, he must claim damages sustained during the pendency of the appeal by filing an application in the
appellate court, with notice to the party in whose favor the injunction was issued, before the judgment of the appellate
court becomes executory.
 Nothing herein contained shall prevent the party against whom the injunction was issued from recovering in the same
action the damages awarded to him from the bond given by the applicant.
 If after the trial of the action it appears that the applicant is entitled to have the act or acts complained of permanently
When final injunction granted (Sec 9)
enjoined, the court shall grant a final injunction perpetually restraining the party or person enjoined from the
commission or continuance of the act or acts confirming the preliminary mandatory injunction.
Rule 59
Receivership
(Sections 1 to 9)
 Normandy vs. Duque (29 SCRA 385)

Receiver defined
o A receiver is a representative of the court appointed for the purpose of preserving and conserving the
property in litigation and prevent its possible destruction or dissipation, if it were left in the possession of any
of the parties.
o The receiver is not the representative of any of the parties but of all of them to the end that their interests
may be equally protected with the least possible inconvenience and expense.
o It is inherent in the office of receiver not only that he should act at all times with the diligence and prudence
of a good father of a family but should also not incur any obligation or expenditure without leave of the court
and it is the responsibility of the court to supervise the receiver and see to it that he adheres to the above
standard of his trust and limits the expenses of the receivership to the minimum
 Upon a verified application, one or more receivers of the property subject of the action or proceeding may be
Appointment of receiver (Sec 1)
appointed by the court where the action is pending, or by the CA or SC, or a member thereof in the following cases:
a. When it appears from the verified application, and such other proof as the court may require, that the party
applying for the appointment of a receiver has an interest in the property or fund which is the subject of the
action or proceeding, and that such property or fund is in danger of being lost, removed, or materially injured
unless a receiver be appointed to administer and preserve it;
b. When it appears in an action by the mortgagee for the foreclosure of a mortgage that the property is in
danger of being wasted or dissipated or materially injured, and that its value is probably insufficient to
discharge the mortgage debt, or that the parties have so stipulated in the contract of mortgage;
c. After judgment, to preserve the property during the pendency of an appeal, or to dispose of it according to
the judgment, or to aid execution when the execution has been returned unsatisfied or the judgment obligor
refuses to apply his property in satisfaction of the judgment, or otherwise to carry the judgment into effect;
d. Whenever in other cases it appears that the appointment of a receiver is the most convenient and feasible
 During the pendency of an appeal, the appellate court may allow an application for the appointment of a receiver to
means of preserving, administering, or disposing of the property in litigation.
be filed in and decided by the court of origin and the receiver appointed to be subject to the control of said court.
Receivership other than that under Rule 58

1. Receivership in aid of execution of judgment under Rule 39, Sec 1
2. Bank receivership
3. Receivership in petitions for insolvency under the Insolvency Law
Notice and hearing required

- incumbent upon applicant to present evidence to establish condition precedent that property is in danger of being
lost, removed or materially injured unless a receiver is appointed to guard and preserve it

 Before issuing the order appointing a receiver the court shall require the applicant to file a bond executed to the party
Oath and bond of receiver (Secs 2, 4)
against whom the application is presented in an amount to be fixed by the court to the effect that the applicant will
pay such party all damages he may sustain by reason of the appointment of such receiver in case the applicant shall
have procured such appointment without sufficient cause; and the court may, in its discretion, at any time after the
 Before entering upon his duties, the receiver shall be sworn to perform them faithfully, and shall file a bond, executed
appointment, require an additional bond as further security for such damages.
to such person and in such sum as the court may direct, to the effect that he will faithfully discharge his duties in the
action or proceeding and obey the orders of the court.
Denial of application or discharge of receiver (Sec 3)

1. Upon motion and prior notice, receivership may be discharged if it is shown that his appointment was obtained
without sufficient cause;
2. Adverse party files a counterbond – will pay applicant all damages he may suffer by reason of acts, omissions, or other
 Compared with counterbond in injunction: person enjoined will pay all damages which applicant may suffer
matters specified in the application as ground for such appointment. (Compare to counterbond in injunction).
by the denial or dissolution of the injunction or restraining order

3. Bond posted by applicant for grant of receivership is insufficient (Sec 5)
4. Bond of the receiver is insufficient (Sec 5)
 Subject to the control of the court in which the action or proceeding is pending, a receiver shall have the power:
General powers of receiver (Sec 6)
o To bring and defend, in such capacity, actions in his own name;

o To take and keep possession of the property in controversy;
o To receive rents;
o To collect debts due to himself as receiver, or to the fund, property, estate, person, or corporation of
which he is the receiver;
o To compound for and compromise the same;
o To make transfers;
o To pay outstanding debts;
o To divide the money and other property that shall remain among the persons legally entitled to receive
the same; and
 However, funds in the hands of a receiver may be invested only by order of the court upon written consent of all
o Generally to do such acts respecting the property as the court may authorize.
 No action may be filed by or against a receiver without leave of the court which appointed him
the parties to the action.
 Liability for refusal or neglect to deliver property to receiver – punishable by contempt and shall be liable to receiver for
the money or value of the property and other things so refused or neglected to be surrendered, together with all damages
that may have been sustained by the party or parties entitled thereto as a consequence of such refusal or neglect (Sec 7)
Judgment to include recovery against sureties (Sec 9)

Same procedure as in Rule 57, Sec 20
 An application for damages on account of improper, irregular or excessive receivership must be filed before
See Rule 58, Sec 8
the trial or before appeal is perfected or before the judgment becomes executory, with due notice to the
applicant and his surety or sureties, setting forth the facts showing his right to damages and the amount
thereof.
 If the judgment of the appellate court be favorable to the party against whom the receivership was issued, he
must claim damages sustained during the pendency of the appeal by filing an application in the appellate
court, with notice to the party in whose favor the receivership was issued (applicant) or his surety or sureties,
before the judgment of the appellate court becomes executory.

 Nothing herein contained shall prevent the party against whom the receivership was issued from recovering
in the same action the damages awarded to him from any property of the applicant not exempt from
execution should the bond or deposit given by the latter be insufficient or fail to fully satisfy the award.
Rule 60
Replevin
(Sections 1 to 10)
 BA Finance Corp. vs. CA (258 SCRA 102)

Replevin defined
o Replevin, broadly understood, is both a form of principal remedy and of a provisional relief.
o It may refer to either 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.
o The action is primarily possessory in nature and generally determines nothing more than the right of
possession.
 Chiao Liong Tan vs. CA (228 SCRA 75)

Nature
o It is true that the judgment in a replevin suit must only resolve in whom is the right of possession.
Primarily, the action of replevin is possessory in character and determines nothing more than the right of
possession. However, when the title to the property is distinctly put in issue by the defendant‘s plea and
by reason of the policy to settle in one action all the conflicting claims of the party to the possession of
the property in controversy, the question of ownership may be resolved in the same proceeding.
o Although a replevin action is primarily one for possession of personalty, yet it is sufficiently flexible to
authorize a settlement of all equities between the parties, arising from or growing out of the main
controversy. Thus, in an action for replevin where the defendant is adjudged entitled to possession, he
need not go to another forum to procure relief for the return of the replevied property or secure a
judgment for the value of the property in case the adjudged return thereof could not be had.
Appropriately, the trial court rendered an alternative judgment.
 Party praying for recovery of possession of personal property may, at the commencement of the action or at any time
Application (Sec 1)
before answer, apply for an order for the delivery of such property to him, in the manner provided
 Applicant must show by his own affidavit or that of some other person who personally knows the facts:
Affidavit and bond (Sec 2)
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
 Applicant must also give a bond, executed to the adverse party in double the value of the property as stated in the
d. The actual market value of the property.
affidavit abovementioned, for the return of the property to the adverse party if such return be adjudged, and for the
payment of the adverse party of such sum as he may recover from the applicant in the action
 Northern Motors, Inc. vs. Herrera (49 SCRA 392)

Foreclosure of chattel mortgage
o Persons having a special right of property in the goods the recovery of which is sought, such as a chattel
mortgagee, may maintain an action for replevin therefor. When the debtor defaults, and the creditor
desires to foreclose the mortgaged chattel, he must necessarily take the mortgaged property in his hands,
but when the debtor refuses to yield the possession of the property, the creditor must institute an action,
either to effect a judicial foreclosure directly, or to secure possession as a preliminary to sale
contemplated under Sec 14 of Act No. 1508. The mortgagee in a chattel mortgage has a right to the
possession of the property mortgaged upon breach of the mortgage contract by the mortgagor.
o The Rules do not require that in an action for replevin, the plaintiff should allege that the ―mortgagee has
asked or directed a public officer to foreclose the mortgage and that he mortgagor has refused to
surrender the mortgaged chattel to such public officer.‖
o In determining the sufficiency of the application for writ of replevin, the allegations thereof and the
recitals of the documents appended thereto and made part thereof should be considered.
Replevin does not issue against property in custodia legis
Order to deliver property (Sec 3)
 Upon filing of affidavit and approval of bond, court shall issue an order and the corresponding writ of replevin
Where writ may be served (anywhere in the Phils.)
describing the personal property alleged to be wrongfully detained and requiring the sheriff forthwith to take such
property into his custody.
Is hearing required? (Compare to preliminary attachment and preliminary injunction)
N.B. Unlike in attachment and injunction which is usually issued only after hearing, with certain exceptions, order for
delivery of personal property as a provisional remedy is issued ex parte and, given the requisites for its issuance, is granted
as a matter of course.
 If the adverse party objects to the sufficiency of the applicant‘s bond, or of the surety or sureties thereon, he cannot
Return of property (Sec 5)
 But if he does not so object, he may, at any time before the delivery of the property to the applicant, require the
immediately require the return of the property
return thereof by filing a counterbond

* Counterbond – double the value of the property, for delivery thereof to the applicant, if such be adjudged, and for
payment of such sum as may be recovered against the adverse party
 Property seized not to be delivered immediately to plaintiff but must retain it in custody for 5 days and shall return it
Disposition of property by sheriff (Sec 6)
 Counterbond must be filed within 5 days from taking of property; period mandatory, so that a lower court which
to the defendant if the latter files a counterbond and requires its return
approves a counterbond filed beyond the period acts in excess of jurisdiction
 If property taken is claimed by any person other than the party against whom the writ of replevin had been issued
See Rule 39, Sec 16; Rule 57, Sec 14
 Right to the possession thereof, stating grounds thereof, and

or his agent, and such person makes an affidavit of his title thereto, or
 Serves such affidavit upon the sheriff while the latter has possession of the property and a copy thereof upon the
 Sheriff shall not be bound to keep the property under replevin or deliver it to the applicant
applicant,
o Unless the applicant or his agent, on demand of said sheriff, shall file a bond approved by the court to
indemnify the third-party claimant in a sum not less than the value of the property under replevin as
provided in section 2
 No claim for damages for the taking or keeping of the property may be enforced against the bond unless the
o In case of disagreement as to such value, court shall determine the same
 Sheriff shall not be liable for damages, for the taking or keeping of such property, to any third-party claimant if
action therefor is filed within 120 days from the date of the filing of the bond
 Nothing herein contained shall prevent such claimant or any third person from vindicating his claim to the
such bond shall be filed.
property, or prevent the applicant from claiming damages against a third-party claimant who filed a frivolous or
 When the writ of replevin is issued in favor of the RP, or any officer duly representing it, the filing of such bond
plainly spurious claim, in the same or a separate action.
shall not be required, and in case the sheriff is sued for damages as a result of the replevin, he shall be represented
by the Sol Gen, and if held liable therefor, the actual damages adjudged by the court shall be paid by the National
Treasurer out of the funds to be appropriated for the purpose.

Judgment to include recovery against sureties (Sec 10)
Same procedure as in Rule 57, Sec. 20
 An application for damages on account of improper or irregular replevin must be filed before the trial or before
See Rule 58, Sec. 8; Rule 59, Sec. 9
appeal is perfected or before the judgment becomes executory, with due notice to the applicant and his surety or
sureties, setting forth the facts showing his right to damages and the amount thereof.
 If the judgment of the appellate court be favorable to the party against whom the writ of replevin was issued, he
must claim damages sustained during the pendency of the appeal by filing an application in the appellate court,
with notice to the party in whose favor the writ was issued (applicant) or his surety or sureties, before the
judgment of the appellate court becomes executory.
 Nothing herein contained shall prevent the party against whom the writ was issued from recovering in the same
action the damages awarded to him from any property of the applicant not exempt from execution should the
bond or deposit given by the latter be insufficient or fail to fully satisfy the award.
(Sections not in outline)
 Sheriff must file order, with his proceedings indorsed thereon, with the court within 10 days after taking the property
Return of papers (Sec 8)
mentioned therein.
 After trial of the issues, court shall determine who has the right of possession to and the value of the property and
Judgment (Sec 9)
shall render judgment in the alternative for the delivery thereof to the parties entitled to the same, or for its value in
case delivery cannot be made, and also for such damages as either party may provided, with costs.
Rule 61
Support Pendente Lite
(Sections 1 to 7)
Support during pendency of action for support pendente lite – pending or during litigation
N.B. Amount of support temporarily fixed by the court in favor of the persons entitled thereto during the pendency of the
action for support
Support pendente lite in other actions

1. Habeas corpus filed by the mother on behalf of a minor child against the father, where the father has recognized the
child as his own and has not been giving him support
2. Rape cases for the offspring of the accused as a consequence thereof
(Not in outline)
 At the commencement of the proper action or proceeding, or at any time prior to the judgment or final order,
Application (Sec 1)
 A verified action 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.
 A copy of the application and all supporting documents shall be served upon the adverse party,
Comment (Sec 2)
 Who shall have 5 days to comment thereon unless a different period is fixed by the court upon his motion
 Comment shall be verified and accompanied by affidavits, depositions or other authentic documents in support
thereof
Hearing (Sec 3)

 After the comment is filed, or after the expiration of the period for its filing,
 The application shall be set for hearing not more than 3 days thereafter
 The facts in issue shall be proved in the same manner as is provided for evidence on motions
 Court shall determine provisionally the pertinent facts, and shall render such orders as justice and equity may require,
Order (Sec 4)
having due regard to the probable outcome of the case and such other circumstances as may aid in the proper
 Application granted – court shall fix the amount of money to be provisionally paid or such other forms of support as
resolution of the question involved.
should be provided, taking into account the necessities of the applicant and the resources or means of the adverse
 Application denied – principal case shall be tried and decided as early as possible
party, and the terms of payment or mode for providing the support.
 Adverse party fails to comply with an order granting support pendente lite – court shall motu proprio or upon
Enforcement of order (Sec 5)
 Person ordered to give support pendente lite refuses or fails to do so – any third person who furnished that support
motion, issue an order of execution against him, without prejudice to his liability for contempt
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
 In criminal actions where civil liability includes support for the offspring as a consequence of the crime and the civil
Support in criminal cases (Sec 6)
aspect thereof has not been waived, reserved or instituted prior to its filing, accused may be ordered to provide
 Application therefor may be filed successively by the offended party, her parents, grandparents or guardian and the
support pendente lite to the child born to the offended party allegedly because of the crime
State in the corresponding criminal case during its pendency, in accordance with the procedure established under this
rule.
 When the judgment or final order of the court finds that the person who has been providing support pendente lite is
Restitution (Sec 7)
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
 Should the recipient fail to reimburse said amounts, the person who provided the same may likewise seek
separate action form the person legally obliged to give the support.
reimbursement thereof in a separate action from the person legally obliged to give such support.
Special Civil Actions
Rule 62
Interpleader
(Sections 1 to 7)
 Beltran vs. People’s Homesite and Housing Corp. (29 SCRA 145)
Interpleader defined
o The action of interpleader is a remedy whereby a person who has property in his possession or has an
obligation to render wholly or partially, without claiming any right in both, comes to court and asks that
the defendants who have made upon him conflicting claims upon the same property or who consider
themselves entitled to demand compliance with the obligation be required to litigate among themselves in
order to determine who is entitled to the property or payment of the obligation. The remedy is afforded
not to protect a person against a double liability but to protect him against a double vexation in respect of
one liability.
 Whenever conflicting claims upon the same subject matter are or may be made against a person who claims no
When interpleader proper (Sec 1)
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.
 Upon filing of the complaint, court shall issue an order requiring the conflicting claimants to interplead with one
Order (Sec 2)
 If the interests of justice so require, the court may direct in such order that the subject matter be paid or delivered to
another.
the court.
 Summons shall be served upon the conflicting claimants, together with a copy of the complaint and order
Summons (Sec 3)
 Within the time for filing an answer,

Motion to dismiss (Sec 4)
 Each claimant may file a motion to dismiss on the ground of impropriety of the interpleader action or on other
 Period to file answer shall be tolled

appropriate grounds specified in Rule 16.
 If motion denied – movant may file his answer within the remaining period, but which shall not be less than 5 days in
any event, reckoned from notice of denial.
 Each claimant shall file his answer setting forth his claim within 15 days from service of summons upon him, serving
Answer and other pleadings (Sec 5)
a copy thereof upon each of the other conflicting claimants who may file their reply thereto as provided by these
 If any claimant fails to plead within the time herein fixed, the court may, on motion, declare him in default and
Rules.
 Parties in an interpleader action may file counterclaims, cross-claims, third-party complaints and responsive pleadings
thereafter render judgment barring him from any claim in respect to the subject matter.
thereto, as provided by these Rules.
 After the pleadings of the conflicting claimants have been filed, and pre-trial has been conducted in accordance with
Determination (Sec 6)
the Rules, the court shall proceed to determine their respective rights and adjudicate their several claims.
 The docket and other lawful fees paid by the party who filed a complaint under this Rule, as well as the costs and
Docket and other lawful fees, costs and litigation expenses as liens (Sec 7)
litigation expenses, shall constitute a lien or charge upon the subject matter of the action, unless the court shall order
otherwise.
Rule 63
Declaratory Relief and Similar Remedies
(Sections 1 to 6)
 Board of Optometry vs. Colet (260 SCRA 88)

Declaratory relief defined
o As a special civil action for declaratory relief, its requisites are:

 The existence of a justiciable controversy;
 The controversy is between persons whose interests are adverse;
 That the party seeking the relief has a legal interest in the controversy; and
 That the issue invoked is ripe for judicial determination
Distinguish from interpleader
N.B. Interpleader – filed by person who claims no interest whatsoever in the subject matter.
Declaratory relief – party seeking relief has legal interest in the controversy
When remedy improper – where there is a breach of a contract, or violation of statute or right
 Ollada vs. CB (5 SCRA 297)
o A complaint for declaratory relief will not prosper if filed after a contract, statute or right has been
breached or violated.

o An action for declaratory relief should be filed before there has been a breach of contract, statute or
right. The rule is that an action for declaratory relief is proper only if adequate relief is not available
through the means of other existing forms of action or proceeding.
 Parties may then amend their pleadings accordingly

Conversion into ordinary action (Sec 6)
 If before the final termination of the case, a breach or violation of an instrument or a statute, executive order or
regulation ordinance, or any other governmental regulation should take place, the action may thereupon be converted
into an ordinary action, and the parties shall be allowed to file such pleadings as may be necessary or proper.
RTC has exclusive jurisdiction – SC has no jurisdiction over petitions for declaratory relief
 Any person interested under a:

Who may file petition (Sec 1)
o Deed
o Will
o Contract
 Or whose rights are affected by a:

o Other written instrument
o Statute
o Executive order or regulation
o Ordinance
 May, before breach or violation thereof,

o Any other governmental regulation
 Bring an action in the appropriate RTC

 To determine any question of construction or validity arising, and for a declaration of his rights or duties, thereunder.
 (2nd paragraph) An action may be brought under this Rule:
o For the reformation of an instrument
o To quiet title to real property or remove clouds therefrom
o To consolidate ownership under Art 1607 of the Civil Code
 All persons who have or claim any interest which would be affected by the declaration shall be made parties
Parties (Sec 2)
 No declaration shall prejudice the rights of persons not parties to the action, except as otherwise provided in these
Rules
 In any action which involves the validity of a statute, executive order or regulation, or any other governmental
Notice on Solicitor General (Sec 3)
regulation, the Solicitor General shall be notified by the party assailing the same and shall be entitled to be heard upon
such question.
 In any action involving the validity of a local government ordinance, the corresponding prosecutor or attorney of the
Local government ordinances (Sec 4)
 If such ordinance is alleged to be unconstitutional, the Solicitor General shall also be notified and entitled to be heard.
LGU involved shall be similarly notified and entitled to be heard.
 Except in actions falling under the second paragraph of Section 1 of this Rule, the court, motu proprio or upon
Court action discretionary (Sec 5)
motion, may refuse to exercise the power to declare rights and to construe instruments in any case where a decision
would not terminate the uncertainty or controversy which gave rise to the action, or in any case where the declaration
or construction is not necessary and proper under the circumstances.

Rule 64
Review of Judgments and Final Orders or Resolutions of COMELEC and COA
(Sections 1 to 9)
 Garces vs. CA (259 SCRA 99)

What may be reviewed by the Supreme Court
o The settled rule is that ―decision, rulings, order‖ of the Comelec that may be brought to the SC on
certiorari under Sec 7, Art IX-A are those that relate to the Comelec‘s exercise of its adjudicatory or
quasi-judicial powers involving ―elective regional, provincial, and city officials.‖
o Controversies involving an appointive, not an elective, official does not call for the certiorari jurisdiction
of the SC.
Motion for reconsideration of decision of COMELEC Division required; not of COMELEC En Banc
N.B. Sec 1 (d) of COMELEC Rules of Procedure = no MR of en banc ruling, resolution, order or decision except in
election cases.
N.B. MR of COMELEC Division ruling should first be filed with COMELEC En Banc, whose decision may be brought
on certiorari to SC. Except when division committed grave abuse of discretion, in which case the aggrieved party may
directly file a petition for certiorari with SC
 This Rule shall govern the review of judgments and final orders or resolutions of the Comelec and the COA
Scope (Sec 1)
 A judgment or final order or resolution of the Comelec and the COA may be brought by the aggrieved party to the
Mode of review (Sec 2)
SC on certiorari under Rule 65, except as hereinafter provided.
 Petition shall be filed within 30 days from notice of the judgment or final order or resolution sought to be reviewed.
Time to file petition (Sec 3)
 The filing of a motion for new trial or reconsideration of said judgment or final order or resolution, if allowed under
 If motion denied – aggrieved party may file the petition within the remaining period, but which shall not be less than
the procedural rules of the Commission concerned, shall interrupt the period herein fixed.
5 days in any event, reckoned from notice of denial

o Not less than 5 days in any event applies only to the following cases:
 Rule 12 Bill of Particulars
 Rule 16 Motion to Dismiss
 Rule 62 Interpleader
 Rule 64 Review of Judgments and Final Orders or Resolutions of the Comelec and COA
 Upon filing of the petition, petitioner shall pay to the clerk of court the docket and other lawful fees and deposit the
Docket and other lawful fees (Sec 4)
amount of P500 for costs.
 The petition shall be verified and filed in 18 legible copies.

Form and contents of petition (Sec 5)
 The petition shall:

o Name the aggrieved party as petitioner
o And shall join as respondents the Commission concerned and the person or persons interested in sustaining
the judgment, final order or resolution a quo
o State the facts with certainty
o Present clearly the issues involved
o Set forth the grounds and brief arguments relied upon for review
o Pray for judgment annulling or modifying the questioned judgment, final order or resolution
o Be accompanied by a clearly legible duplicate original or certified true copy of the judgment, final order or
resolution subject thereof, together with certified true copies of such material portions of the record as are
referred therein and other documents relevant and pertinent thereto. The requisite number of copies of the
petition shall contain plain copies of all documents attached to the original copy of the petition
o State the specific material dates showing that it was filed within the period fixed herein
o Contain a sworn certification against form shopping as provided in the third paragraph of section 3, Rule 46
o Be accompanied by proof of service of a copy thereof on the Commission concerned and on the adverse
 Failure of the petitioner to comply with any of the requirements shall be sufficient ground for the dismissal of the
party, and of the timely payment of docket and other lawful fees
 Findings of fact of the Commission supported by substantial evidence shall be final and non-reviewable
petition
 If the SC finds the petition sufficient in form and substance, it shall order the respondents to file their comments on
Order to comment (Sec 6)
 Court may also dismiss the petition if it was filed manifestly for delay, or the questions raised are too unsubstantial to
the petition within 10 days from notice thereof; otherwise, the Court may dismiss the petition outright.
warrant further proceedings.
 Comments of the respondents shall be filed in 18 legible copies

Comments of respondents (Sec 7)
 Original shall be accompanied by certified true copies of such material portions of the record as are referred therein
 The requisite number of copies of the comments shall contain plain copies of all documents attached to the original
together with other supporting papers
 No other pleading may be filed by any party unless required or allowed by the Court.
and a copy thereof shall be served on the petitioner.
 Filing of a petition for certiorari shall not stay the execution of the judgment or final order or resolution sought to be
Effect of filing (Sec 8)
reviewed, unless the SC shall direct otherwise upon such terms as it may deem just.
 Unless the Court sets the case for oral argument, or requires the parties to submit memoranda, the case shall be
Submission for decision (Sec 9)
deemed submitted for decision upon the filing of the comments on the petition, or of such other pleadings or papers
as may be required or allowed, or the expiration of the period to do so.
Rule 65
Prohibition and Mandamus
 When the proceedings of any tribunal, corporation, board, officer or person, whether exercising judicial, quasi-judicial
Prohibition (Sec 2)
or ministerial functions, are without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting
to lack or excess of jurisdiction, and there is no appeal or any other plain, speedy, and adequate remedy in the ordinary
 A person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying
course of law,
that judgment be rendered commanding the respondent to desist from further proceedings in the action or matter
 The petition shall likewise be accompanied by a certified true copy of the judgment, order or resolution subject
specified therein, or otherwise granting such incidental reliefs as law and justice may require.
thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum
shopping as provided in the third paragraph of section 3, Rule 46
 Vergara vs. Rugue (78 SCRA 312)

Nature and purpose
o The function of prohibition is to prevent the unlawful and oppressive exercise of legal authority and to
provide for a fair and orderly administration of justice. It is directed against proceedings that are done
without or in excess of jurisdiction, or with grave abuse of discretion, there being no appeal or other
plain, speedy and adequate remedy in the ordinary course of law.
 Holy Spirit Homeowners Association vs. Defensor (497 SCRA 581)

The writ of prohibition does not lie against the exercise of a quasi-legislative function
o A petition for prohibition is not the proper remedy to assail an IRR issued in the exercise of a quasi-
legislative function.
o Prohibition is an extraordinary writ directed against any tribunal, corporation, board, officer or person,
whether exercising judicial, quasi-judicial or ministerial functions, ordering said entity or person to desist
from further proceedings when said proceedings are without or in excess of said entity‘s or person‘s
jurisdiction, or are accompanied with grave abuse of discretion, and there is no appeal or any other plain,
speedy and adequate remedy in the ordinary course of law.
o Prohibition lies against judicial or ministerial functions, but not against legislative or quasi-legislative
functions.
o Generally, the purpose of a writ of prohibition is to keep a lower court within the limits of its jurisdiction
in order to maintain the administration of justice in orderly channels.
o Prohibition is the proper remedy to afford relief against usurpation of jurisdiction or power by an inferior
court, or when, in the exercise of jurisdiction in handling matters clearly within its cognizance the inferior
court transgresses the bounds prescribed to it by the law, or where there is no adequate remedy available
in the ordinary course of law by which such relief can be obtained.
 When any tribunal, corporation, board, officer or person

Mandamus (Sec 3)
o Unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from
an office, trust, or station, or
o Unlawfully excludes another from the use and enjoyment of a right or office to which such other is
entitled, and
 The person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and
o There is no other plain, speedy and adequate remedy in the ordinary course of law,
praying that judgment be rendered commanding the respondent, immediately or at some other time to be specified by
the court, to do the act required to be done to protect the rights of the petitioner, and to pay the damages sustained by
 The petition shall also contain a sworn certification of non-forum shopping as provided in the third paragraph of
the petitioner by reason of the wrongful acts of the respondent.
section 3, Rule 46.
 Sharp International Marketing vs. CA (201 SCRA 299)

Will not issue to compel a discretionary act
o Mandamus is not available to control discretion. The writ may issue to compel the exercise of
discretion but not the discretion itself. Mandamus can require action only but not specific action
where the act sought to be performed involves the exercise of discretion.
 Henares, Jr. vs. Land Transportation Franchising and Regulatory Board (505 SCRA 104)
Mandamus is available only to compel the doing of an act specifically enjoined by law as a duty
o It is settled that mandamus is employed to compel the performance, when refused, of a ministerial duty,
this being its main objective. It does not lie to require any one to fulfill contractual obligations or to
compel a course of conduct, nor to control or review the exercise of discretion.
o On the part of the petitioner, it is essential to the issuance of a writ of mandamus that he should have a
clear legal right to the thing demanded and it must be the operative duty of the respondent to perform
the act required. It never issues in doubtful cases.
o While it may not be necessary that the duty be absolutely expressed, it must however, be clear. The writ
will not issue to compel an official to do anything which is not his duty to do or which is his duty not to
do, or give to the applicant anything to which he is not entitled by law.
o The writ neither confers powers nor imposes duties. It is simply a command to exercise a power already
possessed and to perform a duty already imposed.
Exception – where there is grave abuse of discretion
 First Philippine Holdings vs. Sandiganbayan (253 SCRA 30)
o Ordinarily, mandamus will not prosper to compel a discretionary act. But where there is ―gross abuse
of discretion, manifest injustice or palpable excess of authority‖ equivalent to denial of a settled right
to which petitioner is entitled, and there is no other plain, speedy and adequate remedy, the writ shall
issue.
Common requisites (Secs 4 to 9)

1. Verified petition
 Not later than 60 days from notice of judgment, order or resolution

2. When and where to file petition (Sec 4)
 In case an MR or MNT is timely filed, w/n such motion is required, the petition shall be filed no later than 60
days counted from the notice of the denial of the motion
 If petition relates to an act or omission of an MTC or of a corporation, board, officer or person, it shall be
filed with the RTC exercising jurisdiction over the territorial area as defined by the SC. It may also be filed
with the CA or with the Sandiganbayan, w/n the same is in aid of the court‘s appellate jurisdiction.
 If the petition involves an act or an omission of a quasi-judicial agency, unless otherwise provided by law or
 In election cases involving an act or an omission of a MTC or RTC, the petition shall be filed exclusively with
these rules, the petition shall be filed with and be cognizable only by the CA.
the Comelec, in aid of its appellate jurisdiction
 Fortich vs. Corona (289 SCRA 624)

3. Jurisdiction to issue writ
o Under section 4, Rule 65, the SC, CA and RTC have original concurrent jurisdiction to issue a
writ of certiorari, prohibition and mandamus. But the jurisdiction of the 3 courts are also
delineated in that,
 If the challenged act relates to acts or omissions of a lower court or of a corporation,
board, officer or person, the petition must be filed with the RTC which exercises
jurisdiction over the territorial area as delineated by the SC.
 If it involves the act or omission of a quasi-judicial agency, the petition shall be filed
only with the CA, unless otherwise provided by law or the Rules of Court.
o The concurrence of jurisdiction is not, however, to be taken as according to parties seeking any
of the writs an absolute, unrestrained freedom of choice of the court to which the application
therefor will be directed. There is after all a hierarchy of courts. That hierarchy is determinative
of the venue of appeals, and should also serve as a general determinant of the appropriate forum
for petitions for the extraordinary writs.
o But the SC has the full discretionary power to take cognizance of the petition filed directly to it if
compelling reasons, or the nature and importance of the issues warrant.
o Pursuant to judicial policy, the SC takes primary jurisdiction over the present petition in the
interest of speedy justice and to avoid future litigations so as to promptly put an end to the
present controversy which has sparked national interest because of the magnitude of the
problem created by the issuance of the assailed resolution. Moreover, the assailed resolution is
wholly void and requiring the petitioners to file their petition first with the CA would only result
in a waste of time and money.
 When the petition filed relates to the acts or omissions of a judge, court, quasi-judicial agency, tribunal,
4. Who should be respondents (Sec 5)
corporation, board, officer or person – petitioner shall join as private respondent with such public
 It shall be the duty of such private respondents to appear and defend, both in his or their own behalf and in
respondent, the persons interested in sustaining the proceedings in the court
 The costs awarded in such proceedings in favor of the petitioner shall be against the private respondents only,
behalf of the public respondent affected by the proceedings
and not against the judge, court, quasi-judicial agency, tribunal, corporation, board, officer or person
 Unless otherwise specifically directed by the court where the petition is pending, the public respondents shall
impleaded as public respondent
 If the case is elevated to a higher court by either party, the public respondents shall be included therein as
not appear in or file an answer or comment to the petition or any pleading therein
 However, unless otherwise specifically directed by the court, they shall not appear or participate in the
nominal parties.
proceedings therein.
5. Contents of petition
6. Non-forum shopping certification
 If the petition is sufficient in form and substance to justify such process, the court shall issue an order requiring the
Order to comment (Sec 6)
 Such order shall be served on the respondents in such manner as the court may direct, together with a copy of the
respondent to comment on the petition within 10 days from receipt of a copy thereof.
petition and any annexes thereto.

 In petitions for certiorari before the SC and the CA, the provisions of section 2, Rule 56, shall be observed. Before
giving due course thereto, the court may require the respondents to file their comment to, and not a motion to
dismiss, the petition. Thereafter, the court may require the filing of a reply and such other responsive or other
pleadings as it may deem necessary and proper
 The court in which the petition is filed may issue orders expediting the proceedings, and it may also grant a temporary
Expediting proceedings; injunctive relief (Sec 7)
restraining order or a writ of preliminary injunction for the preservation of the rights of the parties pending such
 The petition shall not interrupt the course of the principal case, unless a temporary restraining order or a writ of
proceedings.
 The public respondent shall proceed with the principal case within 10 days from the filing of a petition for certiorari
preliminary injunction has been issued, enjoining the public respondent from further proceeding with the case.
with a higher court or tribunal, absent a temporary restraining order or a preliminary injunction, or upon its
 Failure of the public respondent to proceed with the principal case may be a ground for an administrative charge.
expiration.
 After the comment or other pleadings required by the court are filed, or the time for the filing thereof has expired, the
Proceedings after comment is filed (Sec 8)
 If, after such hearing or filing of memoranda or upon the expiration of the period for filing, the court finds that the
court may hear the case or require the parties to submit memoranda.
 However, the court may dismiss the petition if it finds the same patently without merit or prosecuted manifestly for
allegations of the petition are true, it shall render judgment for such relief to which the petitioner is entitled.
 In such event, the court may award in favor of the respondent, treble costs solidarily against the petitioner and
delay, or if the questions raised therein are too unsubstantial to require consideration.
counsel, in addition to subjecting counsel to administrative sanctions under Rules 139 and 139-B of the Rules of
 The Court may impose motu proprio, based on res ipsa loquitur2, other disciplinary sanctions or measures on erring
Court.
lawyers for patently dilatory and unmeritorious petitions for certiorari.
 A certified copy of the judgment rendered in accordance with the last preceding section shall be served upon the
Service and enforcement of order or judgment (Sec 9)
court, quasi-judicial agency, tribunal, corporation, board, officer or person concerned in such manner as the court may
direct, and disobedience thereto shall be punished as contempt. An execution may issue for any damages or costs
awarded in accordance with section 1 of Rule 39.
Rule 66
Quo Warranto
(Sections 1 to 12)
 Literally means ‗by what authority‘ and the object is to determine the right of a person to the use or exercise of a
Definition
franchise or office and to oust the holder from its enjoyment, if his claim is not well-founded, or if he has forfeited his
right to enjoy the office (Tecson vs. Comelec as cited in Riano)
 Lota vs. CA (2 SCRA 715)

Quo warranto and mandamus distinguished
o Distinguished
Quo Warranto Mandamus
Remedy to try the right to an office or franchise Only lies to enforce clear legal duties, not to try
and to oust the holder from its enjoyment disputed title
2 the thing speaks for itself – rebuttable presumption that defendant was negligent; the mere fact that the accident happened provided
character of accident and circumstances attending it lead reasonably to belief that in absence of negligence it would not have occurred and
that the thing which caused injury is shown to have been under management and control of defendant
o Hence, where there is usurpation or intrusion into an office, quo warranto is the proper remedy. But,
where the respondent, without claiming any right to an office, excludes the petitioner therefrom, the
remedy is mandamus, not quo warranto.
Period for filing – within one (1) year from date petitioner ousted from his position
 Galano vs. Roxas (67 SCRA 8)
o The unbending jurisprudence in this jurisdiction is to the effect that a petition for quo warranto and
mandamus affecting titles to public office must be filed within 1 year from the date the petitioner is
ousted from his position.
o While it may be desirable that administrative remedies be first resorted to, no one is compelled or bound
to do so; and as said remedies are neither prerequisite to nor bar the institution of quo warranto
proceedings, it follows that he who claims the right to hold a public office allegedly usurped by another
and who desires to seek redress in the courts, should file the proper judicial action within the
reglementary period.
 Cristobal vs. Melchor (78 SCRA 175)

Exception
o Laches does not attach by failure of respondent to join other employees in filing an action for quo
warranto within year from the time his cause of action to seek reinstatement to a public office arose
where during the pendency of the said case the respondent continued to press for his reinstatement
extrajudicially and more importantly, because said respondent can be expected to rely upon the
outcome of the case filed by his co-employees.
o Laches does not attach and failure to file quo warranto proceeding does not operate adversely against
a dismissed government employee where it was the act of responsible government officials which
contributed in the delay of the filing of complaint for reinstatement.
Rule 66 of the 1997 Rules of Civil Procedure does not apply to quo warranto cases against persons who usurp an office in a
 Calleja vs. Panday (483 SCRA 680)

private corporation.
o While actions of quo warranto against persons who usurp an office in a corporation, which were formerly
cognizable by the SEC under PD 902-A, have been transferred to the courts of general jurisdiction, this
does not change the fact that Rule 66 of the 1997 Rules of Civil Procedure does not apply to quo
warranto cases against persons who usurp an office in a private corporation.
o It is the Interim Rules of Procedure Governing Intra-Corporate Controversies under RA 8799 which
applies to the petitions for quo warranto filed before trial courts questioning the authority of persons
who assume office and act as a board of directors of a private corporation.
 An action for the usurpation of a public office, position or franchise may be commenced by a verified petition
Action by Government against individuals (Sec 1)
brought in the name of the Republic of the Philippines against:

a. A person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or franchise;
b. A public officer who does or suffers an act which, by the provision of law, constitutes a ground for the
forfeiture of his office;
c. An association which acts as a corporation within the Philippines without being legally incorporated or
without lawful authority to do so.
 The Sol Gen or a public prosecutor, when directed by the President of the Philippines, or when upon complaint or
When Solicitor General or public prosecutor must commence action (Sec 2)
otherwise he has good reason to believe that any case specified in Sec 1 can be established by proof, must commence
such action.
 The Sol Gen or a public prosecutor may, with the permission of the court in which the action is to be commenced,
When Solicitor General or public prosecutor may commence action with permission of court (Sec 3)
bring such an action at the request and upon the relation of another person; but in such case the officer bringing it
may first require an indemnity for the expenses and costs of the action in an amount approved by and to be deposited
in the court by the person at whose request and upon whose relation the same is brought.

 Upon application for permission to commence such action in accordance with Sec 3, the court shall direct that notice
When hearing had on application for permission to commence action (Sec 4)
 If permission is granted – court shall issue an order to that effect, copies of which shall be served on all interested
be given to the respondent so that he may be heard in opposition thereto; and
 The petition shall then be filed within the period ordered by the court.
parties, and
 A person claiming to be entitled to a public office or position usurped or unlawfully held or exercised by another may
When an individual may commence such an action (Sec 5)
bring an action therefor in his own name.
 When the action is against a person for usurping a public office, position or franchise – the petition shall set forth:
Parties and contents of petition against usurpation (Sec 6)
o The name of the person who claims to be entitled thereto

o With an averment of his right to the same
 All persons who claim to be entitled to the public office, position or franchise may be made parties, and their
o That the respondent is unlawfully in possession thereof
respective rights to such public office, position or franchise determined, in the same action.
 An action under the preceding six sections can be brought only in the SC, CA, or in the RTC exercising jurisdiction
Venue (Sec 7)
 But when the Solicitor General commences the action, it may be brought in a RTC in the City of Manila, in the CA,
over the territorial area where the respondent or any of the respondents resides
or in the SC.
 The court may reduce the period provided by these Rules for filing pleadings and for all other proceedings in the
Period for pleadings and proceedings may be reduced; action given precedence (Sec 8)
action in order to secure the most expeditious determination of the matters involved therein consistent with the rights
of the parties. Such action may be given precedence over any other civil matter pending in the court.
 When the respondent is found guilty of usurping, intruding into, or unlawfully holding or exercising a public office,
Judgment where usurpation found (Sec 9)
position or franchise, judgment shall be rendered that such respondent be ousted and altogether excluded therefrom,
 Such further judgment may be rendered determining the respective rights in and to the public office, position or
and that the petitioner or relator, as the case may be, recover his costs.
franchise of all the parties to the action as justice requires.
 If judgment be rendered in favor of the person averred in the complaint to be entitled to the public office he may,
Rights of persons adjudged entitled to public office; delivery of books and papers; damages (Sec 10)
after taking the oath of office and executing any official bond required by law, take upon himself the execution of the
office, and may immediately thereafter demand of the respondent all the books and papers in the respondent‘s
 If the respondent refuses or neglects to deliver any book or paper pursuant to such demand, he may be punished for
custody or control appertaining to the office to which judgment relates.
 The person adjudged entitled to the office may also bring action against the respondent to recover the damages
contempt as having disobeyed a lawful order of the court.
sustained by such person by reason of the usurpation.
 Nothing contained in this Rule shall be construed to authorize an action against a public officer or employee for his
Limitations (Sec 11)
ouster from office unless the same be commenced within 1 year after the cause of such ouster, or the right of the
 Nor to authorize an action for damages in accordance with the provisions of the next preceding section unless the
petitioner to hold such office or position, arose;
same be commenced within 1 year after the entry of the judgment establishing the petitioner‘s right to the office in
question.
 In an action brought in accordance with the provisions of this Rule, the court may render judgment for costs against
Judgment for costs (Sec 12)
either the petitioner, the relator, or the respondent, or the person or persons claiming to be a corporation, or may
apportion the costs, as justice requires.

Rule 67
Expropriation
(Sections 1 to 14)
 Eminent domain – one of the inherent powers of the state. It is the right to take or reassert dominion over property
Distinction between eminent domain and expropriation
within the state for public use or to meet a public exigency and is said to be an essential part of governance even in its
most primitive form and thus inseparable from sovereignty. (Air Transportation Office vs. Gopuco, Jr., as cited in
 Expropriation – the process by which the power of eminent domain is carried out.
Riano)
o A taking, as of privately owned property, by government under eminent domain. (Black‘s Law Dictionary)
o The commencement of a complaint for expropriation is necessary only when the owner does not agree to sell
his property or if he is willing to sell but does not agree with the price offered. (Riano)
Stages of expropriation
 Municipality of Binan vs. Garcia (180 SCRA 576)

Period to appeal from order of expropriation
o There are two stages in every action for expropriation.

1. Determination of the authority of the plaintiff to exercise the power of eminent domain and the
propriety of its exercise in the context of the facts involved in the suit.
2. Determination by the Court of the just compensation of the property sought to be taken.
o In actions of eminent domain, as in actions for partition, since no less than 2 appeals are allowed by law,
the period for appeal from an order of condemnation is 30 days counted from notice of said order and
not the ordinary period of 15 days prescribed for actions in general, conformably with the provision of
Sec 39, BP 129, in relation to par 19(b) of the Implementing Rules to the effect that in ―appeals in special
proceedings in accordance with Rule 109 of the Rules of Court and other cases wherein multiple appeals are
allowed, the period of appeal shall be 30 days, a record of appeal being required. x x x‖
 Just compensation – the full and fair equivalent of the property sought to be expropriated. The measure is not the
Meaning of just compensation
taker‘s gain but the owner‘s loss. The compensation, to be just, must be fair not only to the owner but also to the
taker. Even as undervaluation would deprive the owner of his property without due process, so too would its
overvaluation unduly favor him to the prejudice of the public. (NPC vs. De la Cruz, as cited in Riano)
Rep. Act No. 8974 mandates immediate payment of the initial just compensation prior to the issuance of the writ of
 Republic vs. Gingoyon (478 SCRA 474)

possession in favor of the Government.
o Rule 67 merely requires the Government to deposit with an authorized government depositary the
assessed value of the property for expropriation for it to be entitled to a writ of possession; The
staging of expropriation proceedings in this case with the exclusive use of Rule 67 would allow for
the Government to take over the NAIA 3 facilities in a fashion that directly rebukes our 2004
Resolution in Agan vs. PIATCO
o Even assuming that RA 8974 does not govern in this case, it does not necessarily follow that Rule 67
should then apply. After all, adherence to the letter of Sec 2, Rule 67 would in turn violate the
Court‘s requirement in the 2004 Resolution that there must first be payment of just compensation to
PIATCO before the Government may take over the property. It is the plain intent of RA 8974 to
supersede the system of deposit under Rule 67 with the scheme of ―immediate payment‖ in cases
involving national government infrastructure projects.
o RA 8974 plainly requires direct payment to the property owner, and not a mere deposit with the
authorized government depositary – without such direct payment, no writ of possession may be
obtained.
 Masikip vs. City of Pasig (479 SCRA 391)

Motion to dismiss is not permitted in a complaint for expropriation.
o Significantly, the rule allowing a defendant in an expropriation case to file a motion to dismiss in lieu of
an answer was amended by the 1997 Rules of Civil Procedure. Section 3, Rule 67 now expressly mandates
that any objection or defense to the taking of the property of a defendant must be set forth in an answer.
 Republic vs. Tagle (299 SCRA 549)

Writ of possession
o Respondent judge is required to issue a writ of possession in favor of petitioner, pursuant to Section 7 of
EO 1035.
o When the government or its authorized agent makes the required deposit, the trial court has a ministerial
duty to issue a writ of possession.
o The writ is both necessary and practical, because mere physical possession that is gained by entering the
property is not equivalent to expropriating it with the aim of acquiring ownership over, or even the right
to possess, the expropriated property.
 Robern Development Corporation vs. Quitain (315 SCRA 150)

Additional cases given by Justice de Leon:
o With the revision of the rules, the trial court‘s issuance of the writ of possession becomes ministerial,
once the provisional compensation mentioned in the 1997 Rule is deposited. Thus, in the instant
case, the trial court did not commit grave abuse of discretion when it granted the NPC‘s motion for
 Biglang-awa vs. Bacalla (345 SCRA 562)

the issuance of the writ, despite the absence of hearing on the amount of the provisional deposit.
o Although compliance with activities provided for in EO 1035 – conduct of feasibility studies,
information campaign and detailed engineering/surveys – should be made prior to the decision to
expropriate private property, the requirements for issuance of a writ of possession once the
expropriation case is filed, are expressly and specifically governed by Section 2 of Rule 67.
o The only requisites for authorizing immediate entry in expropriation proceedings are:
1. The filing of a complaint for expropriation sufficient in form and substance; and
2. The making of a deposit equivalent to the assessed value of the property subject to
expropriation, upon compliance with which the issuance of the writ of possession
becomes ―ministerial.‖
o The issuance of a writ of possession pursuant to Rule 67 alone is neither ―capricious‖ nor
―oppressive,‖ as the said rule affords owners safeguards against unlawful deprivation of their
property in expropriation proceedings, one of which is the deposit requirement which constitutes
advance payment in the event expropriation proceeds, and stands as indemnity for damages should
the proceedings fail of consummation.
o Considering that once deposit under Section 2 of Rule 67 has been made, the expropriator becomes
entitled to a writ of possession as a matter of right, and the issuance of the writ becomes ministerial
on the part of the trial court, no opposition on the part of the owners on the grounds now pleaded in
the instant case could have prevented such issuance.
 The right of eminent domain shall be exercised by

The complaint (Sec 1)
o The filing of a verified complaint which shall state with certainty

 the right and purpose of expropriation,
 describe the real or personal property sought to be expropriated, and
 join as defendants all persons owning or claiming to own, or occupying, any part thereof or interest
 If the title to any property sought to be expropriated appears to be in the Republic of the Philippines, although
therein, showing, so far as practicable, the separate interest of each defendant.
occupied by private individuals, or if the title is otherwise obscure or doubtful so that the plaintiff cannot with
accuracy or certainty specify who are the real owners, averment to that effect may be made in the complaint.
 Upon the filing of the complaint or at any time thereafter and after due notice to the defendant, the plaintiff shall have
Entry of plaintiff upon depositing value with authorized government depositary (Sec 2)
the right to take or enter upon the possession of the real property involved if he deposits with the authorized
government depositary an amount equivalent to the assessed value of the property for purposes of taxation to be held
 Such deposit shall be in money, unless in lieu thereof the court authorizes the deposit of a certificate of deposit of a
by such bank subject to the orders of the court.
government bank of the Republic of the Philippines payable on demand to the authorized government depositary.

 If personal property is involved, its value shall be provisionally ascertained and the amount to be deposited shall be
 After such deposit is made the court shall order the sheriff or other proper officer to forthwith place the plaintiff in
promptly fixed by the court.
possession of the property involved and promptly submit a report thereof to the court with service of copies to the
parties.
 If a defendant has no objection or defense to the action or the taking of his property,
Defenses and objections (Sec 3)
o 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.
 If a defendant has any objection to the filing of or the allegations in the complaint, or any objection or defense to the
Thereafter, he shall be entitled to notice of all proceedings affecting the same.
taking of his property,

o he shall serve his answer within the time stated in the summons.
o The answer shall specifically designate or identify the property in which he claims to have an interest,
state the nature and extent of the interest claimed, and adduce all his objections and defenses to the
taking of his property.
o No counterclaim, cross-claim or third-party complaint shall be alleged or allowed in the answer or any
 A defendant waives all defenses and objections not so alleged but the court, in the interest of justice, may permit
subsequent pleading.
 However, at the trial of the issue of just compensation, whether or not a defendant has previously appeared or
amendments to the answer to be made not later than ten (10) days from the filing thereof.
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.
 If the objections to and the defenses against the right of the plaintiff to expropriate the property are overruled, or
Order of expropriation (Sec 4)
when no party appears to defend as required by this Rule, 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
 A final order sustaining the right to expropriate the property may be appealed by any party aggrieved thereby. Such
property or the filing of the complaint, whichever came first.
 After the rendition of such an order, the plaintiff shall not be permitted to dismiss or discontinue the proceeding
appeal, however, shall not prevent the court from determining the just compensation to be paid.
except on such terms as the court deems just and equitable.
 Upon the rendition of the order of expropriation, the court shall appoint not more than three (3) competent and
Ascertainment of compensation (Sec 5)
disinterested persons as commissioners to ascertain and report to the court the just compensation for the property
 The order of appointment shall designate the time and place of the first session of the hearing to be held by the
sought to be taken.
 Copies of the order shall be served on the parties.

commissioners and specify the time within which their report shall be submitted to the court.
 Objections to the appointment of any of the commissioners shall be filed with the court within ten (10) days from
service, and shall be resolved within thirty (30) days after all the commissioners shall have received copies of the
objections.
 Before entering upon the performance of their duties, the commissioners shall take and subscribe an oath that they
Proceedings by commissioners (Sec 6)
will faithfully perform their duties as commissioners, which oath shall be filed in court with the other proceedings in
 Evidence may be introduced by either party before the commissioners who are authorized to administer oaths on
the case.
hearings before them, and the commissioners shall, unless the parties consent to the contrary, after due notice to the
parties to attend, view and examine the property sought to be expropriated and its surroundings, and may measure the
 The commissioners shall assess the consequential damages to the property not taken and deduct from such
same, after which either party may, by himself or counsel, argue the case.
consequential damages the consequential benefits to be derived by the owner from the public use or purpose of the

property taken, the operation of its franchise by the corporation or the carrying on of the business of the corporation
 But in no case shall the consequential benefits assessed exceed the consequential damages assessed, or the owner be
or person taking the property.
deprived of the actual value of his property so taken.
 The court may order the commissioners to report when any particular portion of the real estate shall have been passed
Report by commissioners and judgment thereupon (Sec 7)
upon by them, and may render judgment upon such partial report, and direct the commissioners to proceed with their
work as to subsequent portions of the property sought to be expropriated, and may from time to time so deal with
 The commissioners shall make a full and accurate report to the court of all their proceedings, and such proceedings
such property.
shall not be effectual until the court shall have accepted their report and rendered judgment in accordance with their
 Except as otherwise expressly ordered by the court, such report shall be filed within sixty (60) days from the date the
recommendations.
 Upon the filing of such report, the clerk of the court shall serve copies thereof on all interested parties, with notice
commissioners were notified of their appointment, which time may be extended in the discretion of the court.
that they are allowed ten (10) days within which to file objections to the findings of the report, if they so desire.
Action upon commissioners‘ report (Sec 8)
 Upon the expiration of the period of ten (10) days referred to in the preceding section, or even before the expiration
of such period but after all the interested parties have filed their objections to the report or their statement of
 For cause shown, it may recommit the same to the commissioners for further report of facts; or
agreement therewith, the court may, after hearing, accept the report and render judgment in accordance therewith; or,
 It may set aside the report and appoint new commissioners; or

 It may accept the report in part and reject it in part; and it may make such order or render such judgment as shall
secure to the plaintiff of the property essential to the exercise of his right of expropriation, and to the defendant just
compensation for the property so taken.
 If the ownership of the property taken is uncertain, or there are conflicting claims to any part thereof, the court may
Uncertain ownership; conflicting claims (Sec 9)
order any sum or sums awarded as compensation for the property to be paid to the court for the benefit of the person
 But the judgment shall require the payment of the sum or sums awarded to either the defendant or the court before
adjudged in the same proceeding to be entitled thereto.
the plaintiff can enter upon the property, or retain it for the public use or purpose if entry has already been made.
 Upon payment by the plaintiff to the defendant of compensation fixed by the judgment, with legal interest thereon
Rights of plaintiff after judgment and payment (Sec 10)
from the taking of the possession of the property, or after tender to him of the amount so fixed and payment of the
costs,
o The plaintiff shall have the right to enter upon the property expropriated and to appropriate it for the public
use or purpose defined in the judgment, or
 If the defendant and his counsel absent themselves from the court, or decline to receive the amount tendered, the
o To retain it should he have taken immediate possession thereof under the provisions of Section 2 hereof.
same shall be ordered to be deposited in court and such deposit shall have the same effect as actual payment thereof
to the defendant or the person ultimately adjudged entitled thereto.
 The right of the plaintiff to enter upon the property of the defendant and appropriate the same for public use or
Entry not delayed by appeal; effect of reversal (Sec 11)
 But if the appellate court determines that plaintiff has no right of expropriation, judgment shall be rendered ordering
purpose shall not be delayed by an appeal from the judgment.
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.
 The fees of the commissioners shall be taxed as a part of the costs of the proceedings.
Costs, by whom paid (Sec 12)
 All costs, except those of rival claimants litigating their claims, shall be paid by the plaintiff,
 Unless an appeal is taken by the owner of the property and the judgment is affirmed, in which event the costs of the
appeal shall be paid by the owner.

 The judgment entered in expropriation proceedings shall state definitely, by an adequate description, the particular
Recording judgment, and its effect (Sec 13)
 When real estate is expropriated, a certified copy of such judgment shall be recorded in the registry of deeds of the
property or interest therein expropriated, and the nature of the public use or purpose for which it is expropriated.
place in which the property is situated, and its effect shall be to vest in the plaintiff the title to the real estate so
described for such public use or purpose.
 The guardian or guardian ad litem of a minor or of a person judicially declared to be incompetent may, with the
Power of guardian in such proceedings (Sec 14)
approval of the court first had, do and perform on behalf of his ward any act, matter, or thing respecting the
expropriation for public use or purpose of property belonging to such minor or person judicially declared to be
incompetent, which such minor or person judicially declared to be incompetent could do in such proceedings if he
were of age or competent.
Rule 68
Foreclosure of Real Estate Mortgage
(Sections 1 to 8)
 Indispensable: Mortgagor and mortgagee.

Indispensable and necessary parties in foreclosure complaint
 Plaintiff – mortgagee
Modes of foreclosure of real estate mortgage

Judicial – Rule 68
 Used if there is no special power inserted in or attached to the REM contract allowing an EJF sale
Extrajudicial – Act No. 3135, as am. by Act No. 4118
 Used if there is a special power inserted in or attached to the REM contract allowing an EJF sale.
Modes of foreclosure of chattel mortgage

Judicial – Rule 68; Replevin under Rule 60 may be availed of to secure possession of property as preliminary to its sale
Extrajudicial – Section 14, Act No. 1508
 The right to extinguish the mortgage and retain ownership of the property by paying the debt. May be exercised even
Equity of redemption
after the foreclosure sale provided it is made before the sale is confirmed by order of the court. (GSIS vs. CFI as cited
 Limpin vs. IAC (166 SCRA 87)

in Riano)
o Right of redemption – understood in the sense of a prerogative to re-acquire mortgaged property after
registration of the foreclosure sale – exists only in the case of extrajudicial foreclosure. No such right is
recognized in a judicial foreclosure except only where the mortgagee is the PNB or a bank or banking
institution.
o Equity of redemption: The law declares that a judicial foreclosure sale, ―when confirmed by an order of
the court, x x x shall operate to divest the rights of all the parties to the action and to vest their rights in
the purchaser, subject to such rights of redemption as may be allowed by law.‖ Such rights exceptionally
―allowed by law‖ are those granted by the charter of the PNB and the General Banking Act. These laws
confer on the mortgagor, his successors in interest or any judgment creditor of the mortgagor, the right
to redeem the property sold on foreclosure – after confirmation by the court of the foreclosure sale –
which right may be exercised within a period of 1 year, counted from the date of registration of the
certificate of sale in the Registry of Property.
o Section 2, Rule 68 provides the mortgagor‘s equity of redemption which may be exercised even beyond
the 90-day period ―from the date of service of the order,‖ and even after the foreclosure sale itself,
provided it be before the order of confirmation of the sale. After such order of confirmation, no
redemption can be effected any longer.

No right of redemption in judicial foreclosure of real estate mortgage except when allowed by law
 There is a right of redemption if the foreclosure is in favor of banks as mortagees, whether the foreclosure be
Ex. Sec. 47, General Banking Law of 2000 (RA 8791)
 While the law mentions the redemption period to be ―one year after the sale of the real estate,‖ this has been
judicial or extrajudicial. This is explicitly provided in RA 8791
construed to be ―one year counted from the date of registration of the certificate of sale in the Registry of
Property.‖
 Rosales vs. Yboa (120 SCRA 869)

Right of redemption in extrajudicial foreclosure
o Requisites for a valid redemption of mortgaged property:

1. The redemption must be made within 12 months from the time of the registration of the sale in
the Office of the Register of Deeds;
2. Payment of the purchase price of the property involved, plus 1% interest per month thereon,
together with the amounts of assessments or taxes thereon, if any, paid by the purchaser after the
sale with the same rate of interests; and
3. Written notice of the redemption must be served on the officer who made the sale and a
duplicate filed with the RD of the province.
Filing of court action to enforce redemption has effect of preserving redemptioner‘s rights and ―freezing‖ expiration of one
 Banco Filipino Savings and Mortgage Bank vs. CA (463 SCRA 64)
year period.
o The right of redemption should be exercised within the specified time limit, which is one year from the
date of registration of the certificate of sale.
o In case of disagreement over the redemption price, the redemptioner may preserve his right of
redemption through judicial action which in every case must be filed within the one-year period of
redemption. The filing of the court action to enforce redemption, being equivalent to a formal offer to
redeem, would have the effect of preserving his redemptive rights and ―freezing‖ the expiration of the
one-year period.
Prescriptive period to file action for deficiency in extrajudicial foreclosure of real estate mortgage
- Ten (10) years (Arts. 1144 and 1142, Civil Code)
 De Vera vs. Agloro (448 SCRA 203)

Writ of possession is a non-litigious proceeding - no need for notice to adverse party
o The purchaser at the public auction, who has a right to possession that extends after the expiration of the
redemption period, becomes the absolute owner of the property when no redemption is made.
o The bare fact that the mortgagors were impleaded in the ex parte petition for a writ of possession filed by
the purchaser did not alter the summary nature of the proceedings in Act No. 3135.
o An ex parte petition for the issuance of a possessory writ under Section 7 of Act No. 3135 is not, strictly
speaking, a ―judicial process‖ as contemplated in Article 433 of the Civil Code – it is a non-litigious
proceeding authorized in an extrajudicial foreclosure of mortgage. x x x It is brought for the benefit of
one party only, and without notice to, or consent by any person adversely interested. It is a proceeding
where the relief is granted without an opportunity for the person against whom the relief is sought to be
heard. No notice is needed to be served upon persons interested in the subject property. Hence, there is
no necessity of giving notice to the petitioners since they had already lost all their rights in the property
when they failed to redeem the same.
o Even if the mortgagor appeals an order denying a petition assailing the writ of possession granted to the
buyer and the sale at public auction, the buyer remains in possession of the property pending resolution
of the appeal.
 PNB vs. Sanao Marketing Corp. (465 SCRA 287)

Writ of possession is like a writ of execution
o A writ of possession is a ―writ of execution employed to enforce a judgment to recover the possession of
land, commanding the sheriff to enter the land and give possession of it to the person entitled under the
judgment.‖
o A writ of possession may be issued under the following instances:
1. In land registration proceedings under Section 17 of Act 496;
2. In a judicial foreclosure, provided the debtor is in possession of the mortgaged realty and no
third person, not a party to the foreclosure suit, had intervened;
3. In an extrajudicial foreclosure of a real estate mortgage under Section 7 of Act No. 3135, as
amended by Act No. 4118; and
4. In execution sales (last paragraph of Section 33, Rule 39 of the Rules of Court).
 Sps. Arquiza vs. Court of Appeals (459 SCRA 753)

An action to invalidate the mortgage or the foreclosure sale is not a valid ground to oppose issuance of writ of possession.
o The judge to whom an application for writ of possession is filed need not look into the validity of the
mortgage or the manner of its foreclosure. In the issuance of a writ of possession, no discretion is left to
the trial court. Any question regarding the cancellation of the writ or in respect of the validity and
regularity of the public sale should be determined in a subsequent proceeding as outlined in Section 8 of
Act No. 3135.
 In an action for the foreclosure of a mortgage or other encumbrance upon real estate, the complaint shall set forth:
Complaint in action for foreclosure (Sec 1)
o The date and due execution of the mortgage;

o Its assignments, if any;
o The names and residences of the mortgagor and the mortgagee;
o A description of the mortgaged property;
o 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
o 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.
 If upon the trial in such action the court shall find the facts set forth in the complaint to be true – it shall render a
Judgment on foreclosure for payment or sale (Sec 2)
judgment containing the following matters:

o Ascertain the amount due to the plaintiff upon the mortgage debt or obligation, including interest and other
charges as approved by the court, and costs;
o A judgment for the sum so found due;
o An order that the amount found due be paid to the court or to the judgment obligee within a period of not
less than 90 days nor more than 120 days from the entry of judgment; and
o In default of such payment – property shall be sold at public auction to satisfy the judgment.
 The judgment of the court on the above matters is considered a final adjudication of the case and hence, is subject to
challenge by the aggrieved party by appeal or by other post-judgment remedies. (Riano)
 When the defendant, after being directed to do so as provided in the next preceding section, fails to pay the amount
Sale of mortgaged property; effect (Sec 3)
of the judgment within the period specified therein, the court, upon motion, shall order the property to be sold in the
 Such sale shall not affect the rights of persons holding prior encumbrances upon the property or a part thereof, and
manner and under the provisions of Rule 30 and other regulations governing sales of real estate under execution.
when confirmed by an order of the court, also upon motion, it shall operate to divest the rights in the property of all
the parties to the action and to vest their rights in the purchaser, subject to such rights of redemption as may be
 Upon the finality of the order of confirmation or upon the expiration of the period of redemption when allowed by
allowed by law.
law, the purchaser at the auction sale or last redemptioner, if any, shall be entitled to the possession of the property
 Said purchaser or last redemptioner may secure a writ of possession, upon motion, from the court which ordered the
unless a third party is actually holding the same adversely to the judgment obligor.
foreclosure
 The amount realized from the foreclosure sale of the mortgaged property shall, after deducting the costs of the sale,
Disposition of proceeds of sale (Sec 4)
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
 If there be no such encumbrancers or there be a balance or residue after payment to them, then to the mortgagor or
encumbrancers in the order of their priority, to be ascertained by the court, or
his duly authorized agent, or to the person entitled to it
 If the debt for which the mortgage or encumbrance was held is not all due as provided in the judgment, as soon as a
How sale to proceed in case the debt is not all due (Sec 5)
 Afterwards, as often as more becomes due for principal or interest and other valid charges, the court may, on motion,
sufficient portion of the property has been sold to pay the total amount and the costs due, the sale shall terminate; and
 But if the property cannot be sold in portions without prejudice to the parties, the whole shall be ordered to be sold in
order more to be sold.
the first instance, and the entire debt and costs shall be paid, if the proceeds of the sale be sufficient therefor, there
being a rebate of interest where such rebate is proper.
 If upon the sale of any real property as provided in Sec 5 there be a balance due to the plaintiff after applying the
Deficiency judgment (Sec 6)
proceeds of the sale, the court, upon motion, shall render judgment against the defendant for any such balance for
which, by the record of the case, he may be personally liable to the plaintiff, upon which execution may issue
 Otherwise, the plaintiff shall be entitled to execution at such time as the balance remaining becomes due under the
immediately if the balance is all due at the time of the rendition of the judgment;
 The deficiency judgment is in itself a judgment hence, also appealable (Riano)

terms of the original contract, which time shall be stated in the judgment.
 No independent action need be filed to recover the deficiency from the mortgagor. The deficiency judgment shall be
rendered upon motion of the mortgagee. The motion must be made only after the sale and after it is known that a
deficiency exists. Before that, any court order to recover the deficiency is void. (Gov‘t of P.I. vs. Torralba, as cited in
Riano)
 A certified copy of the final order of the court confirming the sale shall be registered in the register of deeds.
Registration (Sec 7)
 If no right of redemption exists – the certificate of title in the name of the mortgagor shall be cancelled, and a new
 Where a right of redemption exists – the certificate of title in the name of the mortgagor shall not be cancelled, but
one issued in the name of the purchaser.
the certificate of sale and the order confirming the sale shall be registered and a brief memorandum thereof made by
 In the event the property is redeemed – the deed of redemption shall be registered with the RD, and a brief
the RD upon the certificate of title.
 If the property is not redeemed – the final deed of sale executed by the sheriff in favor of the purchaser at the
memorandum thereof shall be made by the RD on said certificate of title.
foreclosure sale shall be registered with the RD; whereupon the certificate of title in the name of the mortgagor shall
be cancelled and a new one issued in the name of the
 The provisions of sections 31, 32 and 34 of Rule 39 shall be applicable to the judicial foreclosure of real estate
Applicability of other provisions (Sec 8)
mortgages under this Rule insofar as the former are not inconsistent with or may serve to supplement the provisions
of the latter.
Rule 69
Partition
(Sections 1 to 13)
 Villamor vs. CA (162 SCRA 574)

Partition defined
o Partition – a division between two or more persons of real or personal property which they own as
copartners, joint tenants or tenants in common, effected by the setting apart of such interests so that they
may enjoy and possess it in severalty.

o The purpose of partition is to put an end to the common tenancy of the land or co-ownership. It seeks a
severance of the individual interest of each joint owner vesting in each a sole estate in specific property
and giving to each one the right to enjoy his estate without supervision or interference from the other.
MTC may have jurisdiction in actions for partition

Real property - P20,000.00/P50,000.00
Personal property – P300,000.00/P400,000.00
Final order decreeing partition and accounting appealable (Sec 2)

Appeal period – 30 days
 If after the trial the court finds that the plaintiff has the right thereto, it shall order the partition of the real estate
among all the parties in interest. Thereupon the parties may, if they are able to agree, make the partition among
themselves by proper instruments of conveyance, and the court shall confirm the partition so agreed upon by all the
parties, and such partition, together with the order of the court confirming the same, shall be recorded in the registry
 A final order decreeing partition and accounting may be appealed by any party aggrieved thereby.
of deeds of the place in which the property is situated.
 Three stages in the action for partition each of which could be the subject of appeal:
Note:
o Order of partition where the propriety of partition is determined;

o Judgment as to the accounting of the fruits and income of the property;
 The action hence, admits multiple appeals and would require a record on appeal (Municipality of Binan vs. Garcia, as
o Judgment of partition
cited in Riano) [hence the 30-day appeal period]
Action for partition raises two issues

1. Whether plaintiff is co-owner of property
2. Assuming plaintiff is co-owner, how to divide the property between plaintiff and defendant or among the co-owners
Who are indispensable parties

All the co-owners (Rule 3, Sec 7)
 Alejandrino vs. CA (295 SCRA 536)

Who may effect partition
o Partition of the estate of a decedent may only be effected by:

1. The heirs themselves extrajudicially,
2. The court in an ordinary action for partition, or in the course of administration proceedings,
3. The testator himself, and
4. The third person designated by the testator
 If the decedent left no will and no debts and the heirs are all of age, or the minors are represented by their judicial or
Extrajudicial partition by heirs (Sec 1, Rule 74)
 The parties may, without securing letters of administration, divide the estate among themselves as they see fit by
legal representatives duly authorized for the purpose,
 Should they disagree, they may do so in an ordinary action of partition.

means of a public instrument filed in the office of the RD, and
 If there is only one heir, he may adjudicate to himself the entire estate by means of an affidavit filed in the office of
 The parties to an extrajudicial settlement, whether by public instrument or by stipulation in a pending action for
the RD.
partition, or the sole heir who adjudicates the entire estate to himself by means of an affidavit shall file, simultaneously
with and as a condition precedent to the filing of the public instrument, or stipulation in the action for partition, or of
the affidavit in the office of the RD, a bond with the said RD, in an amount equivalent to the value of the personal
property involved as certified to under oath by the parties concerned and conditioned upon the payment of any just
claim that may be filed under section 4 of this rule.

 It shall be presumed that the decedent left no debts if no creditor files a petition for letters of administration within 2
 The fact of the extrajudicial settlement or administration shall be published in a newspaper of general circulation in
years after the death of the decedent.
the manner provided in the next succeeding section; but no extrajudicial settlement shall be binding upon any person
who has not participated therein or had no notice thereof.
 The provisions of this Rule shall apply to partitions of estates composed of personal property, or of both real and
Partition of personal property (Sec 13)
personal property, in so far as the same may be applicable.
 A person having the right to compel the partition of real estate may do so as provided in this Rule, setting forth in his
Complaint in action for partition of real estate (Sec 1)
complaint the nature and extent of his title and an adequate description of the real estate of which partition is
demanded and joining as defendants all other persons interested in the property.
 If the parties are unable to agree upon the partition, the court shall appoint not more than 3 competent and
Commissioners to make partition when parties fail to agree (Sec 3)
disinterested persons as commissioners to make the partition, commanding them to set off to the plaintiff and to
each party in interest such part and proportion of the property as the court shall direct.
 Before making such partition, the commissioners shall take and subscribe an oath that they will faithfully perform
Oath and duties of commissioners (Sec 4)
 In making the partition, the commissioners shall view and examine the real estate, after due notice to the parties to
their duties as commissioners, which oath shall be filed in court with the other proceedings in the case.
 Shall hear the parties as to their preference in the portion of the property to be set apart to them and the comparative
attend at such view and examination, and
 Shall set apart the same to the parties in lots or parcels as will be most advantageous and equitable, having due regard
value thereof, and
to the improvements, situation and quality of the different parts thereof.
 When it is made to appear to the commissioners that the real estate, or a portion thereof, cannot be divided without
Assignment or sale of real estate by commissioners (Sec 5)
prejudice to the interests of the parties, the court may order it assigned to one of the parties willing to take the same,
provided he pays to the other parties such amounts as the commissioners deem equitable, unless one of the interested
parties asks that the property be sold instead of being so assigned, in which case the court shall order the
commissioners to sell the real estate at public sale under such conditions and within such time as the court may
determine.
 The commissioners shall make a full and accurate report to the court of all their proceedings as to the partition, or the
Report of commissioners; proceedings not binding until confirmed (Sec 6)
 Upon the filing of such report, the clerk of court shall serve copies thereof on all the interested parties with notice
assignment of real estate to one of the parties, or the sale of the same.
 No proceeding had before or conducted by the commissioners shall pass the title to the property or bind the parties
that they are allowed ten (10) days within which to file objections to the findings of the report, if they so desire.
until the court shall have accepted the report of the commissioners and rendered judgment thereon.
Action of the court upon commissioners‘ report (Sec 7)
 Upon the expiration of the period of ten (10) days referred to in the preceding section, or even before the expiration
of such period but after the interested parties have filed their objections to the report or their statement of agreement
 For cause shown, recommit the same to the commissioners for further report of facts; or
therewith, the court may, upon hearing, accept the report and render judgment in accordance therewith; 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.
 In an action for partition in accordance with this Rule, a party shall recover from another his just share of rents and
Accounting for rent and profits in action for partition (Sec 8)
profits received by such other party from the real estate in question, and the judgment shall include an allowance for
such rents and profits.

 The guardian or guardian ad litem of a minor or person judicially declared to be incompetent may, with the approval
Power of guardian in such proceedings (Sec 9)
of the court first had, do and perform on behalf of his ward any act, matter, or thing respecting the partition of real
estate, which the minor or person judicially declared to be incompetent could do in partition proceedings if he were of
age or competent.
 The court shall equitably tax and apportion between or among the parties the costs and expenses which accrue in the
Costs and expenses to be taxed and collected (Sec 10)
action, including the compensation of the commissioners, having regard to the interests of the parties, and execution
may issue therefor as in other cases.
 If actual partition of property is made, the judgment shall state definitely, by metes and bounds and adequate
The judgment and its effect; copy to be recorded in registry of deeds (Sec 11)
description, the particular portion of the real estate assigned to each party,
o The effect of the judgment shall be to vest in each party to the action in severalty the portion of the real
 If the whole property is assigned to one of the parties upon his paying to the others the sum or sums ordered by the
estate assigned to him.
court, the judgment shall state the fact of such payment and of the assignment of the real estate to the party making
the payment,
o The effect of the judgment shall be to vest in the party making the payment the whole of the real estate free
 If the property is sold and the sale confirmed by the court, the judgment shall state the name of the purchaser or
from any interest on the part of the other parties to the action.
purchasers and a definite description of the parcels of real estate sold to each purchaser,
o The effect of the judgment shall be to vest the real estate in the purchaser or purchasers making the payment
 A certified copy of the judgment shall in either case be recorded in the registry of deeds of the place in which the real
or payments, free from the claims of any of the parties to the action.
estate is situated, and the expenses of such recording shall be taxed as part of the costs of the action.
 Nothing in this Rule contained shall be construed so as to prejudice, defeat, or destroy the right or title of any person
Neither paramount rights nor amicable partition affected by this Rule (Sec 12)
claiming the real estate involved by title under any other person, or by title paramount to the title of the parties among
whom the partition may have been made; nor so as to restrict or prevent persons holding real estate jointly or in
common from making an amicable partition thereof by agreement and suitable instruments of conveyance without
recourse to an action.
 Partition presupposes the existence of a co-ownership over a property between two or more persons.
Notes from Riano:
 Rule allowing partition originates from Art 494 that no co-owner shall be obliged to remain in the co-ownership and
 Instances when a co-owner may not demand partition:

he may demand at any time the partition of the property owned in common.
o Agreement among the co-owners to keep the property undivided for a certain period of time but not
exceeding 10 years;
o Partition is prohibited by the donor or testator for a period not exceeding 20 years;
o Partition is prohibited by law;
o Property is not subject to a physical division and to do so would render it unserviceable for the use for which
it is intended;
 Prescription does not run in favor of a co-owner or co-heir against his co-owner or co-heirs as long as there is
o Condition imposed upon voluntary heirs before they can demand partition has not yet been fulfilled.
 Action for partition cannot be barred by prescription as long as the co-ownership exists.
recognition of the co-ownership expressly or impliedly.
 While action to demand partition does not prescribe, a co-owner may acquire ownership thereof by prescription
where there exists a clear repudiation of the co-ownership and the co-owners are apprised of the claim of adverse and
 Modes of partition:
exclusive ownership.
o By agreement of the parties; or

o Judicial proceedings under Rule 69.

Rule 70
Forcible Entry and Unlawful Detainer
(Sections 1 to 21)
Distinguish the different actions to recover possession of real property

1. Forcible entry and unlawful detainer (accion interdictal)
Forcible Entry Unlawful Detainer
One is deprived of physical possession of real property One illegally withholds possession after the expiration or
by means of force, intimidation, strategy, threats or termination of his right to hold possession under any
stealth (FISTS) contract, express or implied.
Possession of defendant is originally legal but became
Possession of defendant is illegal from the beginning illegal due to the expiration or termination of the right to
possess
The issue is which party has prior de facto possession
Action is summary in nature
Jurisdiction lies in the proper MTC or MeTC
Action must be brought within 1 year from the date of actual entry on the land, in case of forcible entry, and from the
date of last demand, in case of unlawful detainer
The issue is the right to physical possession
Real actions
2. Accion publiciana – plenary action to recover the right of possession which should be brought when dispossession
has lasted for more than one year. It is an ordinary civil proceeding to determine the better right of possession of
realty independently of title.
RTC has jurisdiction where cause of dispossession not among grounds for FEUD, or possession lost for more
 Natalia Realty vs. CA (391 SCRA 370)

than one year
o When the cause of dispossession is not among the grounds for forcible entry and unlawful
detainer, or when possession has been lost for more than 1 year and can no longer be maintained
under Rule 70 of the Rules of Court, the complaint should be for accion publiciana. The
objective of the parties in accion publiciana is to recover possession only, not ownership.
3. Accion reivindicatoria – involves not only possession, but ownership of the property. Two things must be alleged and
proven: (a) the identity of the property; and (b) plaintiff‘s title to it.
 Encarnacion vs. Amigo (502 SCRA 172)
o Accion reivindicatoria is an action for the recovery of ownership which must be brought in the
proper RTC.
o The material element that determines the proper action to be filed for the recovery of possession
of the property is the length of time of dispossession.
 FEUD must be filed within one year after the unlawful deprivation or withholding of
possession, in the proper MTC
o If dispossession has not lasted for more than one year, an ejectment proceeding is proper and
the inferior court acquires jurisdiction.
o If dispossession lasted for more than one year, the proper action is accion publiciana which
should be brought to the proper RTC.
o Accion publiciana is an ordinary civil proceeding to determine the better right of possession of
realty independently of title and refers likewise to an ejectment suit filed after the expiration of 1
year from the accrual of the cause of action or from the unlawful withholding of possession of
the realty.
 Quinagoran vs. Court of Appeals (531 SCRA 104)

The RTC does not have jurisdiction over all cases of recovery of possession regardless of the value of the property involved
o The doctrine that all cases of recovery of possession or accion publiciana lies with the RTC regardless of
the value of the property no longer holds true – as things now stand, a distinction must be made between
those properties the assessed value of which is below P20k, if outside Metro Manila, and P50k, if within.

 Atuel vs. Valdez (403 SCRA 517, 528)
o Jurisdiction over an accion publiciana is vested in a court of general jurisdiction. Specifically, the RTC
exercises exclusive original jurisdiction ―in all civil actions which involve x x x possession of real
property.‖
o However, if the assessed value of the real property involved does not exceed P50k in Metro Manila, and
P20k outside of Metro Manila, the MTC exercises jurisdiction over actions to recover possession of real
property. Moreover, the MTC exercises jurisdiction over all cases of forcible entry and unlawful detainer.
 Valdez, Jr. vs. Court of Appeals (489 SCRA 369)

When the complaint fails to aver facts constitutive of forcible entry or unlawful detainer
o To vest the court jurisdiction to effect the ejectment of an occupant, it is necessary that the complaint
should embody such a statement of facts as brings the party clearly within the class of cases for which the
statutes provide a remedy, as these proceedings are summary in nature.
o The complaint must show enough on its face the court jurisdiction without resort to parol testimony.
The jurisdictional facts must appear on the face of the complaint.
o When the complaint fails to aver facts constitutive of forcible entry or unlawful detainer, as where it does
not state how entry was affected or how and when dispossession started, the remedy should either be an
accion publiciana or an accion reividicatoria in the proper RTC.
Jurisdiction – Municipal Trial Court

Exception – estoppel by laches
 Velarma vs. CA (252 SCRA 406)
o The ejectment suit should have been filed before the MTC, and not the RTC. The issue of
ownership, however, had been specifically raised before the RTC by petitioner himself, who at the
same time did not move to dismiss the complaint for lack of jurisdiction. Instead, he filed his answer
and went to trial. Estoppel by laches has already set in at this point in time.
 Hilario vs. CA (260 SCRA 420)

Effect of claim of ownership on MTC jurisdiction
o At present, all forcible entry and unlawful detainer cases have to be tried pursuant to the Revised Rule on
Summary Procedure regardless of whether or not the issue of ownership of the subject property is alleged
by a party.
o As the law now stands, inferior courts retain jurisdiction over ejectment cases even if the question of
possession cannot be resolved without passing upon the issue of ownership subject to the caveat that the
issue posed as to ownership could be resolved by the court for the sole purpose of determining the issue
of possession.
o An adjudication made therein regarding the issue of ownership should be regarded as merely provisional
and therefore would not bar or prejudice an action between the same parties involving title to the land.
 Wilmon Auto Supply Corp. vs. CA (cited in Hilario)

Cases that do not prejudice ejectment suit
1. Injunction suits instituted in the RTC by defendants in ejectment actions in the MTC or other courts of
the first level do not abate the latter; and neither do proceedings on consignation of rentals.
2. Accion publiciana does not suspend an ejectment suit against the plaintiff in the former.
3. A writ of possession case where ownership is concededly the principal issue before the RTC does not
preclude nor bar the execution of judgment in an unlawful detainer suit where the only issue involved is
the material possession or possession de facto of the premises.
4. Action for quieting of title to property is not a bar to an ejectment suit involving the same property.
5. Suits for specific performance with damages do not affect ejectment actions.
6. Action for reformation of instrument (e.g. from deed of absolute sale to one of sale with pacto de retro)
does not suspend an ejectment suit between the same parties.
7. Action for reconveyance of property or accion reivindicatoria also has no effect on ejectment suits
regarding the same property.
8. Suits for annulment of sale, or title, or document affecting property do not operate to abate ejectment
actions respecting the same property.

 Amagan vs. Marayag (326 SCRA 581)

Exceptions:
o As a general rule, an ejectment suit cannot be abated or suspended by the mere filing before the RTC
of another action raising ownership of the property as an issue.
o As an exception, however, unlawful detainer actions may be suspended even on appeal, on
considerations of equity, such as when the demolition of petitioners' house would result from the
 Barnachea vs. CA (G.R. No. 150025)

enforcement of the MCTC judgment.
o As a rule, a pending civil action involving ownership of the same property does not justify the
suspension of the ejectment proceedings. Only in rare cases has this Court allowed a suspension of
the ejectment proceedings and one of these is in the case of Amagan vs. Marayag.
o In this case, petitioners are not parties to the civil action (for quieting of title) whose result they seek
to await and only a portion of the petitioners' house is apparently affected as the petitioners occupy
the lot adjoining the disputed property. Significantly, the height, width and breadth of the portion of
the house that would be affected by the execution of the RTC Branch 20 decision does not appear
anywhere in the records, thus, unavoidably inviting suspicion that the potential damage to the
petitioners is not substantial.
o More important than the fact of omission is its implication; the omission constitutes a missing link in
the chain of equitable reasons for suspension that the petitioners wish to establish. Thus, the
equitable consideration that drove us to rule as we did in Amagan does not obtain in the present
case.
o In the absence of a concrete showing of compelling equitable reasons at least comparable and under
circumstances analogous to Amagan, we cannot override the established rule that a pending civil
action for ownership shall not ipso facto suspend an ejectment proceeding. Additionally, to allow a
suspension on the basis of the reasons the petitioners presented in this case would create the
dangerous precedent of allowing an ejectment suit to be suspended by an action filed in another
 City of Naga vs. Asuncion (G.R. No. 174042)

court by parties who are not involved or affected by the ejectment suit.
o The judgment of the RTC against the defendant in an ejectment case is immediately executory.
Unlike Section 19, Rule 70 of the Rules, Section 21 does not provide a means to prevent execution;
hence, the court's duty to order such execution is practically ministerial. Section 21 of Rule 70
presupposes that the defendant in a forcible entry or unlawful detainer case is unsatisfied with the
judgment of the RTC and decides to appeal to a superior court. It authorizes the RTC to immediately
issue a writ of execution without prejudice to the appeal taking its due course. Nevertheless, it should
be stressed that the appellate court may stay the said writ should circumstances so require.
o Where supervening events (occurring subsequent to the judgment) bring about a material change in
the situation of the parties which makes the execution inequitable, or where there is no compelling
urgency for the execution because it is not justified by the prevailing circumstances, the court may
stay immediate execution of the judgment.
o We are convinced of the pressing need for a writ of preliminary injunction. x x x Grave and
irreparable injury will be inflicted on the City of Naga by the immediate execution of the June 20,
2005 RTC Decision. Foremost, as pointed out by petitioner, the people of Naga would be deprived
of access to basic social services. It should not be forgotten that the land subject of the ejectment
case houses government offices which perform important functions vital to the orderly operation of
the local government.
Forcible entry distinguished from unlawful detainer

Prior possession
Forcible entry – required
Unlawful detainer – not required
 Heirs of Rafael Magpily vs. De Jesus (474 SCRA 366)

Possession by tolerance
o Private respondent failed to discharge the burden of proving that he was an agricultural tenant of
Magpily and that the instant case involves an agrarian dispute cognizable by the DARAB. The MTC
thus lawfully took cognizance of the present controversy which involves the gratuitous occupation of
another‘s property which became unlawful by virtue of the owner‘s withdrawal of consent or tolerance to
such occupation.
o The rule is that possession by tolerance is lawful, but such possession becomes unlawful when the
possessor by tolerance refuses to vacate upon demand made by the owner. A person who occupies the
land of another at the latter‘s tolerance or permission, without any contract between them, is necessarily
bound by an implied promise to vacate upon demand, failing which, a summary action for ejectment is
the proper remedy.
When to count one-year period

Forcible entry – from actual entry except when there is stealth
 Ong vs. Parel (355 SCRA 691)
o The one year period within which to bring an action for forcible entry is generally counted from the
date of actual entry on the land, except that when the entry was made through stealth, the one year
period is counted from the time the plaintiff learned thereof.
o Stealth – any secret, sly or clandestine act to avoid discovery and to gain entrance into or remain
within residence of another without permission.
Unlawful detainer – from last demand to vacate
 Labastida vs. CA (287 SCRA 662)
o In case several demands to vacate are made, the period is reckoned from the date of last demand. In
this case, several demands to vacate were alleged to have been made by private respondents, the last
of which was dated February 20, 1983. As the complaint was filed on December 3, 1983, that is,
within one year from February 20, 1983, it is clear that the case should have been brought in the
MTC. The RTC would have jurisdiction if the deprivation of possession had been committed
through other means than those enumerated in Rule 70, or if the period of dispossession under Rule
70 has lasted for more than a year.
Exception: date of the original demand if the subsequent demands are merely in the nature of reminders or
 Racaza vs. Gozum (490 SCRA 313)

reiterations of the original demand.
o Demand or notice to vacate is not a jurisdictional requirement when the action is based on the
expiration of the lease.
o Subsequent demands which are merely in the nature of reminders or reiterations of the original
demand do not operate to renew the one-year period within which to commence the ejectment
suit considering that the period will still be reckoned from the date of the original demand.
Damages that can be recovered – fair rental value or the reasonable compensation for the use and occupation of the leased
 Dumo vs. Espinas (480 SCRA 53)

property
o Considering that the only issue raised in ejectment is that of rightful possession, damages which could be
recovered are those which the plaintiff could have sustained as a mere possessor, or those caused by the
loss of the use and occupation of the property, and not the damages which he may have suffered but
which have no direct relation to his loss of material possession.
Summary nature of FEUD
 Section 1.A.1: This rule shall govern the summary procedure in the MeTC, MTCC, MTC, and the MCTC in the
See Rule on Summary Procedure
following cases falling within their jurisdiction: 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 P20,000.00.
Judgment immediately executory
 If judgment is rendered against the defendant, execution shall issue immediately upon motion, unless an appeal
When stayed (Sec 19)
has been perfected and the defendant to stay execution 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, and unless, 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
 In the absence of a contract, he shall deposit with the Regional Trial Court the reasonable value of the use and
judgment of the Municipal Trial Court.
occupation of the premises for the preceding month or period at the rate determined by the judgment of the
 The supersedeas bond shall be transmitted by the Municipal Trial Court, with the other papers, to the clerk of the
lower court on or before the tenth day of each succeeding month or period.
 All amounts so paid to the appellate court shall be deposited with said court or authorized government depositary
Regional Trial Court to which the action is appealed.
bank, and shall be held there until the final disposition of the appeal, unless the court, by agreement of the
interested parties, or in the absence of reasonable grounds of opposition to a motion to withdraw, or for
 Should the defendant fail to make the payments above prescribed from time to time during the pendency of the
justifiable reasons, shall decree otherwise.
appeal, the appellate court, upon motion of the plaintiff, and upon proof of such failure, shall order the execution
of the judgment appealed from with respect to the restoration of possession, but such execution shall not be a bar
 After the case is decided by the Regional Trial Court, any money paid to the court by the defendant for purposes
to the appeal taking its course until the final disposition thereof on the merits.
of the stay of execution shall be disposed of in accordance with the provisions of the judgment of the Regional
 In any case wherein it appears that the defendant has been deprived of the lawful possession of land or building
Trial Court.
pending the appeal by virtue of the execution of the judgment of the Municipal Trial Court, damages for such
deprivation of possession and restoration of possession may be allowed the defendant in the judgment of the
Regional Trial Court disposing of the appeal.
 The judgment of the Regional Trial Court against the defendant shall be immediately executory, without prejudice
Cannot be stayed (Sec 21)
to a further appeal that may be taken therefrom.
 Vda de Salazar vs. CA (250 SCRA 305)

Ejectment case survives death of defendant
o Ejectment being an action involving recovery of real property is a real action which is not extinguished by
the defendant‘s death.
o An ejectment case survives the death of a party which death did not extinguish the deceased‘s civil
personality. More significantly, a judgment in an ejectment case is conclusive between the parties and
their successors in interest by title subsequent to the commencement of the action.
 Subject to the provisions of the next succeeding section, a person deprived of the possession of any land or building
Who may institute proceedings, and when (Sec 1)
by force, intimidation, threat, strategy, or stealth, or a 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, or the legal representatives or assigns of any such lessor,
vendor, vendee, or other person, may, at any time within one (1) year after such unlawful deprivation or withholding
of possession, bring an action in the proper Municipal Trial Court against the person or persons unlawfully
withholding or depriving of possession, or any person or persons claiming under them, for the restitution of such
possession, together with damages and costs.
 Unless otherwise stipulated, such action by the lessor shall be commenced only after demand to pay or comply with
Lessor to proceed against lessee only after demand (Sec 2)
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.
 Except in cases covered by the agricultural tenancy laws or when the law otherwise expressly provides, all actions for
Summary procedure (Sec 3)
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.
 The only pleadings allowed to be filed are the complaint, compulsory counterclaim and cross-claim pleaded in the
Pleadings allowed (Sec 4)
answer, and the answers thereto. All pleadings shall be verified.
 The court may, from an examination of the allegations in the complaint and such evidence as may be attached thereto,
Action on complaint (Sec 5)
 If no ground for dismissal is found, it shall forthwith issue summons.

dismiss the case outright on any of the grounds for the dismissal of a civil action which are apparent therein.
 Within ten (10) days from service of summons, the defendant shall file his answer to the complaint and serve a copy
Answer (Sec 6)
 Affirmative and negative defenses not pleaded therein shall be deemed waived, except lack of jurisdiction over the
thereof on the plaintiff.
 Cross-claims and compulsory counterclaims not asserted in the answer shall be considered barred.
subject matter.
 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.
 Should the defendant fail to answer the complaint within the period above provided, the court, motu proprio or on
Effect of failure to answer (Sec 7)
motion of the plaintiff, shall render judgment as may be warranted by the facts alleged in the complaint and limited to
 The court may in its discretion reduce the amount of damages and attorney‘s fees claimed for being excessive or
what is prayed for therein.
otherwise unconscionable, without prejudice to the applicability of section 3 (c), Rule 9 if there are two or more
defendants.
 Not later than thirty (30) days after the last answer is filed, a preliminary conference shall be held.
Preliminary conference; appearance of parties (Sec 8)
 The provisions of Rule 18 on pre-trial shall be applicable to the preliminary conference unless inconsistent with the
 The failure of the plaintiff to appear in the preliminary conference shall be cause for the dismissal of his complaint.
provisions of this Rule.
 The defendant who appears in the absence of the plaintiff shall be entitled to judgment on his counterclaim in
 All cross-claims shall be dismissed.

accordance with the next preceding section.
 If a sole defendant shall fail to appear, the plaintiff shall likewise be entitled to judgment in accordance with the next
 This procedure shall not apply where one of two or more defendants sued under a common cause of action who had
preceding section.
 No postponement of the preliminary conference shall be granted except for highly meritorious grounds and without
pleaded a common defense shall appear at the preliminary conference.
prejudice to such sanctions as the court in the exercise of sound discretion may impose on the movant.
 Within five (5) days after the termination of the preliminary conference, the court shall issue an order stating the
Record of preliminary conference (Sec 9)
matters taken up therein, including but not limited to:
1. Whether the parties have arrived at an amicable settlement, and if so, the terms thereof;
2. The stipulations or admissions entered into by the parties;
3. 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;
4. A clear specification of material facts which remain controverted; and
5. Such other matters intended to expedite the disposition of the case.

 Within ten (10) days from receipt of the order mentioned in the next preceding section, the parties shall submit the
Submission of affidavits and position papers (Sec 10)
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.
 Within thirty (30) days after receipt of the affidavits and position papers, or the expiration of the period for filing the
Period for rendition of judgment (Sec 11)
 However, should the court find it necessary to clarify certain material facts, it may, during the said period, issue an
same, the court shall render judgment.
order specifying the matters to be clarified, and require the parties to submit affidavits or other evidence on the said
 Judgment shall be rendered within fifteen (15) days after the receipt of the last affidavit or the expiration of the period
matters within ten (10) days from receipt of said order.
 The court shall not resort to the foregoing procedure just to gain time for the rendition of the judgment.
for filing the same.
 Cases requiring referral for conciliation, where there is no showing of compliance with such requirement, shall be
Referral for conciliation (Sec 12)
dismissed without prejudice, and may be revived only after that requirement shall have been complied with.
 The following petitions, motions, or pleadings shall not be allowed:

Prohibited pleadings and motions (Sec 13)
1. Motion to dismiss the complaint except on the ground of lack of jurisdiction over the subject matter, or failure to
comply with section 12;
2. Motion for a bill of particulars;
3. Motion for new trial, or for reconsideration of a judgment, or for reopening of trial;
4. Petition for relief from judgment;
5. Motion for extension of time to file pleadings, affidavits or any other paper;
6. Memoranda;
7. Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court;
8. Motion to declare the defendant in default;
9. Dilatory motions for postponement;
10. Reply;
11. Third-party complaints;
12. Interventions.
 The affidavits required to be submitted under this Rule shall state only facts of direct personal knowledge of the
Affidavits (Sec 14)
 A violation of this requirement may subject the party or the counsel who submits the same to disciplinary action, and
affiants which are admissible in evidence, and shall show their competence to testify to the matters stated therein.
shall be cause to expunge the inadmissible affidavit or portion thereof from the record.
 The court may grant preliminary injunction, in accordance with the provisions of Rule 58 hereof, to prevent the
Preliminary injunction (Sec 15)
 A possessor deprived of his possession through forcible entry or unlawful detainer may, within five (5) days from the
defendant from committing further acts of dispossession against the plaintiff.
filing of the complaint, present a motion in the action for forcible entry or unlawful detainer for the issuance of a writ
 The court shall decide the motion within thirty (30) days from the filing thereof.
of preliminary mandatory injunction to restore him in his possession.
 When the defendant raises the defense of ownership in his pleadings and the question of possession cannot be
Resolving defense of ownership (Sec 16)
resolved without deciding the issue of ownership, the issue of ownership shall be resolved only to determine the issue
of possession.
 If after trial the court finds that the allegations of the complaint are true, it shall render judgment in favor of the
Judgment (Sec 17)
plaintiff for the restitution of the premises, the sum justly due as arrears of rent or as reasonable compensation for the
use and occupation of the premises, attorney‘s fees and costs.
 If it finds that said allegations are not true, it shall render judgment for the defendant to recover his costs. If a
counterclaim is established, the court shall render judgment for the sum found in arrears from either party and award
costs as justice requires.
 The judgment rendered in an action for forcible entry or detainer shall be conclusive with respect to the possession
Judgment conclusive only on possession; not conclusive in actions involving title or ownership (Sec 18)
 Such judgment shall not bar an action between the same parties respecting title to the land or building.
only and shall in no wise bind the title or affect the ownership of the land or building.
 The judgment or final order shall be appealable to the appropriate Regional Trial Court which shall decide the same
on the basis of the entire record of the proceedings had in the court of origin and such memoranda and/or briefs as
may be submitted by the parties or required by the Regional Trial Court.
 Upon motion of the plaintiff, within ten (10) days from the perfection of the appeal to the Regional Trial Court, the
Preliminary mandatory injunction in case of appeal (Sec 20)
latter may issue a writ of preliminary mandatory injunction to restore the plaintiff in possession if the court is satisfied
that the defendant‘s appeal is frivolous or dilatory, or that the appeal of the plaintiff is prima facie meritorious.
Rule 71
Contempt
(Sections 1 to 12)
 Contempt – disobedience to the court by acting in opposition to its authority, justice and dignity. It signifies not only
Contempt defined
a willful disregard or disobedience of the court‘s orders but also conduct tending to bring the authority of the court
and the administration of law into disrepute or, in some manner to impede the due administration of justice. (Siy vs.
 Contempt – some act or conduct which tends to interfere with the business of the court, by a refusal to obey some
NLRC, as cited in Riano)
lawful order of the court, or some act of disrespect to the dignity of the court which in some ways tends to interfere
with or hamper the orderly proceedings of the court and thus lessens the general efficiency of the same – simply put,
 A contempt proceeding is not a civil action, but a separate proceeding of a criminal nature in which the court
it is despising of the authority, justice, or dignity of the court. (Español vs. Formoso)
exercises limited jurisdiction – thus, the modes of procedure and the rules of evidence in contempt proceedings are
 Function of contempt proceedings: (Regalado vs. Go, as cited in Riano)

assimilated as far as practicable to those adapted to criminal prosecutions. (Español vs. Formoso)
 Vindication of public interest by punishment of contemptuous conduct; and

 Coercion to compel the contemnor to do what the law requires him to uphold the power of the Court, and
also to secure the rights of the parties to a suit awarded by the court.
Distinction between
Direct and indirect contempt (Español vs. Formoso)
Direct Contempt Indirect Contempt
Indirect or constructive contempt is one perpetrated outside
of the sitting of the court and may include misbehavior of an
officer of a court in the performance of his official duties or
Direct contempt is a contumacious act done facie curiae and in his official actions, disobedience of or resistance to a lawful
may be punished summarily without hearing – one may be writ, process, order, judgment, or command of a court, or
summarily adjudged in contempt at the very moment or at the injunction granted by a court or judge, any abuse or any
very instance of the commission of the act of contumely. unlawful interference with the process or proceedings of a
court not constituting direct contempt, or any improper
conduct tending directly or indirectly to impede, obstruct or
degrade the administration of justice.
Criminal and civil contempt (Riano)

Criminal Contempt Civil Contempt
Conduct directed against the authority and dignity of the Failure to do something ordered to be done by a court or a
court or a judge acting judicially; an obstructing of the judge for the benefit of the opposing party therein and is
administration of justice which tends to bring the court into therefore, an offense against the party in whose behalf the
disrepute or disrespect. violated order was made.
Purpose is to punish. To vindicate the authority of the court Purpose is to compensate for the failure to do something
and protect its outraged dignity. ordered by the court for the benefit of a party.
Conducted in accordance with the principles and rules
applicable to criminal case, in so far as such procedure is Generally held to be remedial and civil in nature, for the
consistent with the summary nature of contempt proceedings. enforcement of some duty, and essentially a remedy resorted
The strict rules that govern criminal prosecutions apply to to, to preserve and enforce the rights of a private party to an
prosecutions for criminal contempt that the accused is to be action and to compel obedience to a judgment or decree
afforded many of the protections provided in regular criminal intended to benefit such a party litigant. The rules of
cases and that proceedings under statutes governing them are procedure governing contempt proceedings or criminal
to be strictly construed. However, criminal proceedings are prosecutions, ordinarily are inapplicable to civil contempt
not required to take any particular form as long as the proceedings.
substantial rights of the accused are preserved.
Two ways of initiating indirect contempt proceedings (Sec 4)
 Accompanied by supporting particulars and certified true copies of documents or papers involved therein.
1. Through a verified petition
 Comply with requirements or filing of initiatory pleadings for civil actions in the court concerned.
 Since it is considered an initiatory pleading and must comply with requirements for filing of initiatory
pleadings, it must contain a certification of non-forum shopping
2. Initiated by the court motu proprio by order or formal charge requiring the respondent to show cause why he should
 If the contempt charges arose out of or are related to a principal action pending in the court, the petition for
not be punished for contempt.
contempt shall allege that fact but said petition shall be docketed, heard and decided separately, unless the court in its
discretion orders the consolidation of the contempt charge and the principal action for joint hearing and decision.
Remedies
 Person adjudged in direct contempt may not appeal. His remedy is a petition for certiorari or prohibition directed
Direct contempt (Sec 2)
 Pending the resolution of the petition for certiorari or prohibition, the execution of the judgment for direct
against the court which adjudged him in direct contempt.
contempt shall be suspended.

o However, suspension shall take place only if the person adjudged in contempt files a bond fixed by the
court which rendered the judgment.
o This bond is conditioned upon his performance of the judgment should the petition be decided against
him.
 Person adjudged in indirect contempt may appeal from the judgment or final order of the court in the same
Indirect contempt (Sec 11)
 Appeal will suspend the judgment only if the person adjudged in contempt files a bond fixed by the court which
manner as in criminal cases.
 This bond is conditioned upon his performance of the judgment should the petition be decided against him.
rendered the judgment.
 Judge Dolores Español vs. Atty. Benjamin Formoso (525 SCRA 216)
Use of falsified and forged documents constitutes indirect contempt not direct contempt
o The use of falsified and forged documents is a contumacious act. However, it constitutes indirect
contempt not direct contempt. Pursuant to the above provision, such act is an improper conduct which
degrades the administration of justice.
o In Santos vs. CFI of Cebu, Branch VI, we ruled that the imputed use of a falsified document, more so
when the falsity of the document is not apparent on its face, merely constitutes indirect contempt, and as
such is subject to defenses as the accused may raise in the proper proceedings. Thus, following Section 3,
Rule 71, a contemner may be punished only after a charge in writing has been filed, and an opportunity
has been given to the accused to be heard by himself and counsel.
 Any of the following acts constitutes direct contempt:

Direct contempt punished summarily (Sec 1)
1. Misbehavior in the presence of or so near the court as to obstruct or interrupt the proceedings before the
same;
2. Disrespect toward the court;
3. Offensive personalities towards others;
4. Refusal to be sworn as a witness or to answer as a witness;
5. Refusal to subscribe an affidavit or deposition when lawfully required to do so.
 No formal proceeding is required to cite a person in direct contempt. The court may summarily adjudge one in direct
6. Acts of a party or a counsel which constitute willful and deliberate forum shopping (Rule 7, Sec 5)
 Penalty depends upon the court against which the act was committed:
contempt.
o RTC or a court of equivalent or higher rank – fine not exceeding P2,000.00 or imprisonment not exceeding
10 days, or both.
o Lower court – fine not exceeding 200 pesos or imprisonment not exceeding 1 day or both.
 After a charge in writing has been filed, and an opportunity given to the respondent to comment thereon within such
Indirect contempt to be punished after charge and hearing (Sec 3)
period as may be fixed by the court and to be heard by himself or counsel, a person guilty of any of the following acts
may be punished for indirect contempt:
a. Misbehavior of an officer of a court in the performance of his official duties or in his official transactions;
b. Disobedience of or resistance to a lawful writ, process, order, or judgment of a court, including the act of a
person who, after being dispossessed or ejected from any real property by the judgment or process of any
court of competent jurisdiction, enters or attempts or induces another to enter into or upon such real
property, for the purpose of executing acts of ownership or possession, or in any manner disturbs the
possession given to the person adjudged to be entitled thereto;
c. 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;
d. Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of
justice;
e. Assuming to be an attorney or an officer of a court, and acting as such without authority;
f. Failure to obey a subpoena duly served;
g. The rescue, or attempted rescue, of a person or property in the custody of an officer by virtue of an order or
 But nothing in this section shall be so construed as to prevent the court from issuing process to bring the respondent
process of a court held by him.
into court, or from holding him in custody pending such proceedings.
 Penalty depends upon the court against which the act was committed:
Punishment for indirect contempt (Sec 7)
o RTC or a court of equivalent or higher rank – fine not exceeding P30,000.00 or imprisonment not exceeding
6 months, or both.
o Lower court – fine not exceeding P5,000.00 or imprisonment not exceeding 1 month or both.
 If the contempt consists in the violation of a writ of injunction, temporary restraining order or status quo order, he
may also be ordered to make complete restitution to the party injured by such violation of the property involved or
 The writ of execution, as in ordinary civil actions, shall issue for the enforcement of a judgment imposing a fine unless
such amount as may be alleged and proved.
the court otherwise provides.
Where charges to be filed (Sec 5)

 Depends upon the court against which the act was committed:
o RTC or a court of equivalent or higher rank – with such court

o Lower court – with the RTC of the place in which the lower court is sitting; but the proceedings may also be
instituted in such lower court subject to appeal to the RTC of such place in the same manner as provided in
section 2 of this Rule.
 If the hearing is not ordered to be had forthwith, the respondent may be released from custody upon filing a bond, in
Hearing; release on bail (Sec 6)
 On the day set therefor, the court shall proceed to investigate the charge and consider such comment, testimony or
an amount fixed by the court, for his appearance at the hearing of the charge.
defense as the respondent may make or offer.
 A respondent in a contempt charge must be served with a copy of the petition.

Notes:
 Unlike in civil actions, the court does not issue summons on the respondent.
 While the respondent is not required to file a formal answer, the court must set the contempt charge for hearing on a
 If he fails to appear on that date after due notice without justifiable reason, the court may order his arrest, just like the
fixed date and time on which the respondent must make his appearance to answer the charge.
accused in a criminal case who fails to appear when so required. The court does not declare the respondent in default.
 When a respondent released on bail fails to appear on the day fixed for the hearing, the court may issue another order
Proceeding when party released on bail fails to answer (Sec 9)
 If the bond be proceeded against, the measure of damages shall be the extent of the loss or injury sustained by the
of arrest or may order the bond for his appearance to be forfeited and confiscated, or both; and,
aggrieved party by reason of the misconduct for which the contempt charge was prosecuted, with the costs of the
 If there is no aggrieved party, the bond shall be liable and disposed of as in criminal cases.
proceedings, and such recovery shall be for the benefit of the party injured.
 The court which issued the order imprisoning a person for contempt may discharge him from imprisonment when it
Court may release respondent (Sec 10)
appears that public interest will not be prejudiced by his release.
 When the contempt consists in the refusal or omission to do an act which is yet in the power of the respondent to
Imprisonment until order obeyed (Sec 8)
perform, he may be imprisoned by order of the court concerned until he performs it.
 This may be resorted to where the attendant circumstances are such that the non-compliance with the court order is
Notes:
 It is only the judge who orders the confinement of a person for contempt of court who could issue the Order of
an utter disregard of the authority of the court which has then no other recourse but to use its coercive power.
Release.
 The rules on contempt under Rule 71 apply to contempt committed against persons or entities exercising quasi-
Contempt against quasi-judicial entities (Sec 12)
judicial functions or in case there are rules for contempt adopted for such bodies or entities pursuant to law, Rule 71
 Quasi-judicial bodies that have the power to cite persons for indirect contempt pursuant to Rule 71 can only do so by
shall apply suppletorily.
initiating them in the proper RTC. It is not within their jurisdiction and competence to decide indirect contempt
 The RTC of the place wherein the contempt has been committed shall have jurisdiction over the charges for indirect
cases.
contempt that may be filed.

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Civil Procedure | Justice de Leon

Petition for Relief from Judgments, Orders or Other Proceedings

Grounds and nature (Secs 1, 2)

 FAME – fraud, accident, mistake, excusable negligence

 These two periods must concur.

 Escueta vs. Lim (512 SCRA 411)

 Showing the FAME relied upon, and

 Facts constituting the petitioner‘s good and substantial cause of action

 If not sufficient in form and substance to justify relief

K Suarez | 2D 2008 Page 1 of 68

 When necessary for the preservation of the rights of the parties

upon the property of the petitioner

 Court shall hear the petition and if after such hearing,

a timely and proper appeal had been made

 Alvendia vs. IAC (181 SCRA 282)

K Suarez | 2D 2008 Page 2 of 68

 People vs. Bitanga (525 SCRA 623)

 Fraginal vs. Paranal (516 SCRA 530)

 Grande vs. University of the Philippines (502 SCRA 67)

 Cosmic Lumber Corp. vs. CA (265 SCRA 166)

 If based on lack of jurisdiction – before it is barred by laches or estoppel

 Marcelino vs. CA, (210 SCRA 444)

action or defense and a certificate of non-forum shopping.

 Islamic Da'Wah Council of the Phils. vs. CA (178 SCRA 178)

 Procedure in ordinary civil cases shall be observed

original action until the finality of the judgment of annulment.

K Suarez | 2D 2008 Page 4 of 68

Constitutional provisions on judicial power

 Who may file:

o File a verified petition in the proper court,

 Jamer vs. NLRC (278 SCRA 632)

K Suarez | 2D 2008 Page 5 of 68

 Day vs. RTC of Zamboanga City (191 SCRA 610)

 Romy’s Freight Service vs. Castro (490 SCRA 165)

 Gerardo vs. De la Pena (192 SCRA 691)

No appeal, nor any plain, speedy and adequate remedy

 Fajardo vs. Bautista (232 SCRA 292)

 Lansang, Jr. vs. CA (184 SCRA 230)

 Jaca vs. Davao Lumber Co. (113 SCRA 107)

 Tan vs. CA (275 SCRA 568)

 Without such leave – after an answer has been served,

 Depositions shall be taken only in accordance with these Rules.

K Suarez | 2D 2008 Page 8 of 68

him or by any other party

 Within the Philippines, depositions may be taken before

 In a foreign state or country, depositions may be taken

be addressed to the appropriate judicial authority in the foreign country.

 No deposition shall be taken before a person:

 After notice is served for taking a deposition by oral examination,

 All objections made at the time of the examination to:

 Evidence objected to shall be taken subject to the objections.

 Upon a showing that the examination is being conducted

K Suarez | 2D 2008 Page 10 of 68

necessary to make a notice for an order.

upon the party proposing to take the deposition.

 the court in which the action is pending,

Rule 24 – Depositions Before Action or Pending Appeal

K Suarez | 2D 2008 Page 12 of 68

 The motion shall state