PROVISIONAL REMEDIES

RULE 57 PRELIMINARY ATTACHMENT

A.
B.
C.
D.
E.

Grounds for the issuance

Requisites
Issuance and contents of order of attachment; affidavit; and bond
Rule on prior or contemporaneous service of summons
Manner of attaching real and personal property; when property attached is
claimed by third person
F. Discharge of attachment and counterbond
G. Satisfaction of judgment out of property attached.

CASES
1. BF Homes (Oct 3, 1990)
Preliminary Attachment must stand despite the suspension of
proceedings in RTC. The writ was issued prior to the creation of
management committee and must be regarded as an undue
advantage of Mendoza and ROA and other BF Homes Creditors.
The appointment of rehabilitation receiver who took control and
custody of BF has not secured the claims of ROA
Attachment is in the nature of in rem proceedings, against a particular
property
Attachment lien continues until the debt is paid or sale is had under
execution, or until judgment is satisfied, or the attachment discharged
or vacated in some manner provided by law
No notice to the adverse party or hearing of the applicant is required.
2. Chuidian (jan. 19, 2001)
3. Consolidated Bank (May 29, 1991)
A writ of attachment may be ordered issued even ex parte provided
there is compliance with Sec. 3 of Rule 57
The judge has full discretion in considering the evidence and the
insufficiency or sufficiency of an affidavit depends upon the amount of
credit given to it by the judge.
The merits of the complaint are nto triable ina motion ot discharge an
attachment, otherwise an applicant for the dissolution of the writ could
force a trial of the merits of the case on the strength alone of the
motion.
4. Davao Light (Dec. 29, 1991)
5. Mangila (August 12, 2002)
6. Mialhe (July 11, 1986)
7. Mindanao (Apr 18, 1989)

No notice or hearing is required to averse party but ot motion to quash

the writ needs notice to the applicant after hearing
Objection to the impropriety or irregularity of the writ may no longer be
invoked once a counterbond is filed.
8. Onate (feb 23,1985)
9. Quasha vs. Juan (Nov. 19, 1982)
When a court acquires jurisdiction over the res as in action quasi in
rem, a writ of preliminary attachment is no longe necessary in order
that jurisdiction may be obtained. REASON:When a lien already exist, it
is equivalent to attachment.
10.Traders Royal Bank (Oct. 31, 1984)
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 its
attaching creditor posts an indemnity bond, to file a separate and
independent action
GR: The court cannot interfere by injunction with the judgment of a
court with concurrent or coordinate jurisdiction having equal power to
grant injunctive relief, applied in cases where not 3 rd party claimant is
involved, in order to prevent one court from nullifying the judgment or
process of another court.

RULE 58 PRELIMINARY INJUNCTION

Preliminary Injunction
Section 1 A preliminary injunction is an order granted at any stage of an action or
proceeding prior to the judgment or final order, requiring a party or a court, agency
or a person to refrain from a particular act or acts. It may also require the
performance of a particular act or acts, in which case it shall be known as
preliminary mandatory injunction.
Section 9 When final injunction granted. If after the trial of the action it appears
that the applicant is entitled to have the act or acts complained of permanently
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 or
confirming the preliminary mandatory injunction.
Q: What does injunction order a party to whom it is issued?
1. to do
2. to refrain from doing from doing a particular
act.
Q: What is the nature of preliminary injunction?
1. An action in itself to restrain or to command
2. A provisional remedy, incident in the main action

3. It operates in personam, requiring a person to whom it is issued to do or

refrain
Q: To whom is preliminary injunction intended?
A: A party or a court, agency or person, impleaded as respondent in a higher court
or a non-party whose acts are involved in the proceeding
Q: What is the primary purpose of injunction?
A: To preserve status quo ante(the last actual, peaceable, uncontested status which
precedes the pending controversy)
Q: What are the kinds of injunction?
1. Preliminary injunction = order granted at ANY STAGE of an action prior to
final judgment
2. Final injunction = issued in the judgment in the case permanently
restraining the defendant or making the preliminary injunction permanent
3. Preventive or Prohibitive = refrains a person from doing a particular act
4. Mandatory= requires the performance of a particular act
Q: What are the requisites of mandatory injunction?
1. The invasion of the right is material and substantial
2. The right of the complainant is clear and unmistakable
3. There is an urgent and paramount necessity for the writ to prevent serious
damage.
4. The effect of mandatory injunction would not be to create a new relation
between the parties
Q: How can one be entitled to an injunctive writ?
A: There should be a clear showing of the right claimed by the applicant, although
no conclusive proof is necessary at that stage but must at least be shown that it
exists.

Q: What is a preventive preliminary injunction?

A: it is an order granted at any stage of an action prior to final judgment, requiring a
person from doing a particular act.
Q: What is preliminary injunction, as an ancillary remedy?
A: Resorted to by the party to protect his right and to no other reason, it is not a
cause of action in itself but merely an adjunct to a main cause.
Q: Can a person not a party to the main suit be bound by an ancilliary
writ?
A:No, because he cannot be affected by a proceeding to which he is a stranger.

Distinguish between injunction and prohibition

Injunction
Prohibition
Directed against a party in the Directed against a court, tribunal
action
or
person
exercising
judicial
powers
Does not involve the jurisdiction of It may be on the ground of lack/
the court
excess or jurisdiction
May be the main action itself or It is always the main action
just a provisional remedy in the
main action
Q: Why should the court avoid issuing a writ?
A: Because in effect, it disposes the main case without trial, and there will be
nothing left for the lower court to try except damages.
Q: In the issuance of the writ, what should the court observe?
1. In exercise of its discretion, the court should observe extreme caution , also in
its denial
2. Should not summarily issue without hearing and judicious evaluation
Q: May the court grant a second application for preliminary injunction?
A: It rests upon the sound discretion of the court. It will ordinarily be denied unless
it is based on facts unknown at the time of the first application. The reason being,
to avoid multiplicity of suits. However, if the second application is to operate on the
same act to be enjoined, it will be denied, but not when relief is sought against a
different act.
Q: Can a party file for a preliminary mandatory injunction to take disputed
property out of possession and control of one party and deliver the same?
A: No, rather file a pendente lite (while the suit is pending) only in cases of extreme
urgency where:
1. The right to the possession of the property is very clear
2. Where considerations of relative inconvenience bear strongly in favor of the
complainant
3. There was willful and unlawful invasion of the rights over his protest and
remonance
4. The injury being continuing one
5. Where the effect of preliminary mandatory injunction is to reestablish and
maintain a pre-existing and continuing relationship between the parties.
Sec. 2 Who may grant preliminary injunction A preliminary injunction may be
granted by the court where the action or proceeding is pending. If the action or
proceeding is pending in the CA or in the SC, it may be issued by said court or any
member thereof.

Q: When can the SC issue preliminary writ?

1. In cases on appeal before it
2. When the original actions commenced therein.
Q: Which court has jurisdiction over original action for injunction?
A: The RTC or the CA
Q: Can the CA issue auxiliary writs?
A: Yes, by virtue of BP 129, which provides that the CA can issue whether or not
these are in aid of its appellate jurisdiction, provided that the auxiliary writ cannot
be issued if the judgment of the lower court has already become final and executor.
Q: What are other instances wherein RTC can issue the writ of preliminary
injunction?
A: In cases pending before it and those pending within the lower courts territorial
jurisdiction provided:
1. To restrain acts only to those being or about to be committed within its
jurisdiction
2. As to prohibitive writs, it is limited only within their respective provinces or
districts.
3. To telephone companies for breach of contract.
Q: In what instances the preliminary injunction cannot be issued by RTC?
A: These are:
1. As to ULP, it could not if the case is pending in the CIR, except as provided in
Article 218 and 264
2. Against Social Security Commission
3. Those within the jurisdiction of SEC
4. It could not interfere with the judgment of a court of concurrent or coordinate
jurisdiction
Q: Can the inferior court issue injunction in cases of unlawful detainer?
A: No, only in forcible entry cases.
Q: How can the preliminary injunction be challenged?
A: By Certiorari
Q: How can the judgment of permanent injunction be challenged?
A: By an appeal
Q: What are instances which any court of the Philippines does not have
any jurisdiction to issue TRO, preliminary or mandatory injunction?
1. Any action involving proper administrative official or body on concessions
2. Licenses
3. Permits

4. Patents
5. Public grants in connection with the disposition, exploitation, exploration or
devt or natres
6. Injunctions against financial institutions PD 385
Q: Which court has jurisdiction to issue TRO, PI, PMI against the
government?
A: No other court, except the Supreme Court.
Q: Can the sheriff be enjoined
Section 3 Grounds for issuance of preliminary injunction
a. 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
b. That the commission, continuance or non-performance of the act or acts
complained of during the litigation would probably work injustice to the
applicant
c. 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
Q: Can injunction lie to restrain the enforcement of a law alleged to be
unconstitutional?
A: Generally NO, except when it results in injury to rights in private property
Q: What are acts contemplated by injunction?
A: Acts to be committed, is committing but not those already consummated
Q: What is the exception to the acts already consummated?
A: If the acts are continuing in nature and were in derogation of the plaintiffs right
at the outset
Sec. 4 Verified application and bond for preliminary injunction or TRO A
preliminary injunction or TRO may be granted only when:
1. The application in the action or proceeding is VERIFIED, and shows facts
entitling the applicant to the relief demanded
2. Unless exempted by the court, the applicant files with the court where the
action of proceeding is pending, a BOND executed in an amount fixed by the
court, that the applicant will pay to the party damages he may sustain by
reason of the injunction, if the court decides the applicant is not entitled.
Upon approval, the writ shall be issued.
3. When the application for a writ or Preliminary Injunction or TRO is included in
a complaint or any initiatory pleading, the case, if filed with the multiple sala
court, shall be raffled only after notice to and in the presence of the

adverse party or the person to be enjoined. Such notice shall be

preceded or contemporaneously accompanied by service of summons,
together with the copy of the complaint or initiatory pleading and the
applicants affidavits 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 there from or is a nonresident thereof,
the requirement of prior or contemporaneous service of summons shall not
apply.
4. 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 sheriffs return of service and or the
records are received by the branch selected by raffle and to which the
records shall be transmitted immediately.
Q: How is restraining order different from injunction?
A: Restraining order = intended only as a restraint upon the defendant until the
propriety of granting an injunction, temporary or perpetual, can be determined and
it does no more than restrain the proceedings until such determination.
= it is intended as a restraint upon defendant until the propriety of granting
an injunction pendent lite can be determined.
= merely temporary or provisional.
Sec. 5 Preliminary injunction not granted without notice, exception:
Q: What are needed for the granting of preliminary injunction?
A: No preliminary injunction shall be granted:
1. Without hearing
2. Without prior notice to the party sought to be enjoined.
Q: What facts should appear in the affidavit?
1. That a great or irreparable injury would result to the applicant before the
matter can be heard on notice
Q: How long is the prelim.injunction effective?
A: 20 days from notice. The court shall then order the party to show cause, at a
specified time and place, why the injunction should not be granted or whether or
not the prelim. Injunction shall be granted and issue the said order.
Q: May an ex parte temporary restraining order be issued?
A: Yes, if the matter is of extreme urgency and the applicant will suffer grave
injustice and irreparable injury.
Q: Who issues an ex parte TRO?

A: The executive judge of a multiple sala court or the presiding judge of a single sala
court
Q: How long is this effective?
A: It shall be effective for 72 hours from issuance provided service of summons and
documents are accomplished
Q: What should the judge do during the 72 hour period?
A: He shall conduct a summary hearing to determine whether it shall be extended
until the application for the preliminary injunction
Q: Is the 72 hour period excluded from the 20 day period?
A: NO, the total period shall not exceed 20 days, including the 72 hours.
Q: May the TRO be extended?
A: No, it is not extendible, and no court shall have the authority to extend or renew
on the same ground
Q: If issued by the CA, how long is it effective?
A: 60 days from notice to the party sought to be enjoined.
Q: How about if issued by the SC?
A: It shall be effective until further orders.
Q: Is a bond required for the issuance of a restraining order
A: No bond is required
Q: Is judicial declaration needed to terminate the TRO?
A: No, it automatically terminates
Q: When can the court issue another restraining order?
A: When it is based on the different ground
Q: What are the requisites in issuing an ex parte TRO?
1. It is effective for 72 hours only
2. Compliance with service of summons and documents
3. Summary hearing to determine whether to extend the TRO pending the
application for P.Injunction.
Q: What is meant by irreparable injury?
A: The constant and frequent recurrence that no fair or reasonable redress can be
had, or is not susceptible of mathematical computation

Q: Is posting a bond required in filing an action for prohibition with

preliminary injunction against a judge?
A: No, since no private party will be prejudiced
Q: Who determines the amount of bond?
A: The court in its sound discretion.
Sec. 6 Grounds for objection to, or for motion of dissolution of, injunction or
restraining order
Q: When may the application for injunction or restraining order be denied?
1. Upon showing of insufficiency
2. On other grounds upon affidavits of the party
3. When it shows that the issuance would cause irreparable damage to the
party
4. When the applicant can be fully compensated for such damages as he may
suffer
5. When he posts a bond
Sec. 7 Service of copies of bonds; effect of disapproval of same
Q: What should the party filing a bond do?
A: He shall serve a copy of the bond on the other party
Q: When can the applicants injunction shall be dissolved?
1. The bond is insufficient
2. The sureties fail to justify
3. When the bond approved after justification was not filed
Q: When can the injunction of the adverse party be granted or restored
1. The bond is insufficient
2. The sureties fail to justify
3. The same was not filed after justification
Sec. 8 Judgment to include damages against party and sureties At the trial, the
amount of damages to be awarded to either party, upon the bond of the adverse
party, shall be claimed, ascertained, and awarded under the same procedure
prescribed in Rule 57 Sec.20
Q: How to file for damages on account of improper, irregular, or excessive
attachment?
1. Filed before the trial or before appeal is perfected or before judgment has
become executor
2. Due notice to oblige and his sureties
3. Proper hearing

Q: When can the party against whom attachment was issued claim
damages?
A: 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 sureties
before the judgment becomes executor
Q: Can the adverse party claim damages on the attachment bond if he was
in good faith?
A: No if proved the attaching creditor acted in good faith.

CASES
1. Boncodin sept 27, 2006
2. Brocka Dec. 10, 1990
3. Buyco Dec. 21, 2009
4. Cereno Apr. 15, 1988
5. EPZA Apr. 14, 1992
6. Filmetals July 15, 2005
7. New Sounds Apr 2, 2009
8. PPA Dec. 23, 2008
9. Tanduay Aug 14, 2009
10.Yu Jan 21, 1993

RULE 59 RECEIVERSHIP
RECEIVERSHIP
Sec. 1 Appointment of receiver
Q: What are the requisites in the appointment?
1. Upon verified application
2. Other proofs as the court may require
Q: Who grants the application?
A: CA, SC or a member thereof
Q: What are the cases when a receiver is appointed?
1. The party applying has an interest in the property or fund, which is the subject of the action, and
it is in danger of being (LRM) lost, removed, or materially injured unless one is appointed to
administer and preserve
2. In an action by the mortgagee for closure of a mortgage that
a. the property is in danger of being dissipated or materially injured and
b. the value is insufficient to discharge the debt
c. as stipulated in the contract of mortgage
3. After judgment:
a. To preserve the property during the pendency of appeal

b. To dispose accdng to judgment

c. To aid execution when it has been returned unsatisfied
d. Judgment obligor refuses to apply his property in satisfaction of the judgment
e. To carry the judgment into effect
4. When the appointment is the most convenient and feasible means of preserving, administering or
disposing of the property in litigation
Q: During pendency of appeal, may the court allow application for appointment of receiver?
A: Yes, it should be filed in and decided by the court of origin and the receiver appointed to be subject to
the control of said court.
Q: May receivership be a principal action itself?
A: Yes, but it can also be an ancilliary remedy if a principal action is indicated under the circumstances of
the case
Q:Who is a receiver?
A: Appointed by the court in behalf of all the parties to an action for the purpose of preserving the
property involved in the suit and to protect the right of all the parties under the direction of the court
Q: As a rule, who are persons who cannot be appointed as a receiver?
1. A party to a litigation, unless consented by the other party
2. Clerk of court
Q: Can the RTC appoint a receiver?
A: Yes in matters which does not involve any matter litigated by the appel
Q: What are RTCs jurisdiction in receivership?
1. Determination of the property under receivership
2. Power to issue orders for the protection and preservation of the rights of the parties
Q: When is receivership not the proper remedy?
1. where the action is merely to obtain a money judgment on unpaid credits and not to enforce a
lien upon specific property
2. Where the rights of the parties, one of whom is in possession of the property, depend on the
determination of their respective claims to the title (unless in danger of being lost or damaged)
Q: What is the proceeding for the appointment of receiver?
1. Verified motion = if the receivership sought is only an incident in the main action
2. Verified petition = alleging all facts justifying the appointment of a receiver
Q: Do inferior courts have jurisdiction?
A: Yes, pursuant to BP Bld.129, all inferior courts have jurisdiction to appoint a receiver IF the main case
is within their jurisdiction.
Q: At what stage of the proceeding can receivership be availed of?

A: Even after the judgment has become final and executory, or in aid of execution to carry the judgment
into effect.
The appointment during pendency is interlocutory and cannot be compelled by mandamus, but
certiorari will lie if there was grave abuse of discretion.
Sec.2
1.
2.
3.
4.

BOND
Before issuing an order appointing a receiver
To file a bond executed against the party whom the application is presented
Amount fixed by court (in the event there is insufficient cause)
At any time after the appointment, the court may require an additional bond as further security for
such damages.

Sec. 3 DENIAL OF APPLICATION OR DISCHARGE OF RECEIVER

1. When the adverse party files a bond executed to the applicant, in an amount fixed by court to the
effect that he will pay the applicant all damages by reason of acts, omissions and other matters
specified in the application as ground for such appointment
2. If shown that his appointment was obtained without sufficient cause.
Sec. 4 OATH AND BOND OF RECEIVER
Before entering upon his duties, the receiver shall:
1. Take an oath to perform them faithfully
2. File a bond in the sum the court may direct, to the effect that he will faithfully discharge his
duties and obey the orders of the court.
Sec. 5 SERVICE OF COPIES OF BONDS, EFFECT OF DISAPPROVAL OF SAME
Q: When may receivership be denied or lifted?
1. If the appointment sought or granted is without sufficient cause, as there is no necessity therefor
or it is not a proper case for receivership
2. If the adverse party files a sufficient bond to answer for damages
3. Where the bond posted by the applicant for the grant of receivership is insufficient
4. If the bond of the receiver is insufficient
Sec. 6 GENERAL POWERS OF RECEIVER
Subject to the control of the court in which the action is pending, the receiver shall have the power to:
1. Bring and defend actions in his own name
2. Take and keep possession of the property in controversy
3. Receive rents
4. Collect debts due to himself as receiver or to the fund, property, estate, person or corporation of
which he is the receiver
5. Compound for and compromise the same
6. Make transfers
7. Pay outstanding debts
8. Divide the money and other property that shall remain among the persons legally entitled to
receive the same
9. Do such acts respecting the property as the court may authorize

Q: Can the funds in the hands of the receiver be invested?

A: Yes, only by order of the court upon the written consent of all the parties to the action
Q: Can the receiver file an action or be filed against?
A: only if theres leave of court, to enhance the supervisory power and control by the court over the
receiver, and to forestall interference
Q: Can receivership be effected with respect to property in custodia legis?
A: No, but where the property is in the custody of an administrator or executor in danger of imminent loss
or injury, a receiver there over may be appointed by the probate court.
Sec. 7 LIABILITY FOR REFUSAL OR NEGLECT TO DELIVER PROPERTY TO RECEIVER
1. Damages
2. Contempt
Reason: to obviate from the disrespectful practice of trifling with court orders by withholding cooperation
from the receiver intentionally or through neglect.
Sec. 8 TERMINATION OF RECEIVERSHIP
1. The court motu proprio or on motion of either party
2. The necessity for a receiver no longer exists
3. Due notice to interested parties
4. Hearing
5. Shall settle accounts of the receiver
6. Direct the delivery of the funds to the person entitled to receive them
7. Order the discharge
COMPENSATION OF RECEIVER
1. If the circumstances warrant, to be taxed as costs against the defeated party or apportioned as
justice requires
Sec. 9 JUDGMENT TO INCLUDE RECOVERY AGAINST SURETIES
Claimed, ascertained and granted under the same procedure as prescribed in section 20 of rule 57.
Q: What if damages were sustained by malfeasance of the receiver
A: The recovery for damages shall be against the bond of the receiver and may be recovered in a separate
action, not by mere motion in the case wherein the receivership was granted.
Cases
1. Abrigo
2. Alcantara

3. Bona plata
4. Chaves
5. Descalar
6. Vivares
7. Villanueva
8. Mallari
9. Sanson
10.Ylarde
11.alcantara

RULE 60 REPLEVIN
REPLEVIN
Sec. 1 A party praying for the recovery of possession of personal property may, at
the commencement of the action or at any time before answer, apply for an order
for the delivery of such property to him, in the manner hereinafter provided.
Q: When is replevin available?
A: When the purpose of the action is to recover the possession of personal property
unjustly detained
Q: When is it applied?
1. At the commencement of the action
2. At any time before answer
Distinction between replevin and attachment
Replevin
Available only where the principal relief
sought in the action is the recovery of
possession of personal property
When the defendant is in the actual or
constructive possession of the
personalty
Extends only to personal property
capable of manual delivery
Available to recover personal property
even if the same is not being concealed,
removed or disposed of.
Cannot be availed if the property is in
custodia legis

Attachment
Available even if the recovery of
personal property is only an incidental
relief
May be resorted to even if the personal
property is in the custody of a third
person
Extends to kinds of property whether
real, personal or incorporeal
The property is presupposed to be
concealed, removed or disposed of to
prevent being found
Can be resorted to even if the property is
in custodia legis

Sec. 2 The applicant must show by his own affidavit or that of some other person
who personally knows the facts:

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 custodial egis, or if so seized, that it is
exempt or should be released from such seizure or custody and
d. The actual market value of the property
The applicant must also give a bond, executed to the adverse party in double
the value of the property as stated in the affidavit aforementioned, for the
return of the property to the adverse party if the return thereof be adjudged,
and for the payment to the adverse party of such sum as he may recover
from the applicant in the action.
Q: What is the amount of the bond to be posted in replevin
A: The bond to be posted by the applicant must be double the value of the property
sought to be recovered.
Q: What about the amount in attachment, injunction, receivership?
A: the amount is to be determined by the court
Sec. 3 When is the order of replevin granted?
A: upon the filing of affidavit and approval of the bond, describing the personal
property wrongfully detained, requiring the sheriff to take such property into the
custody.
Sec. 4 What is the duty of the sheriff?
A: upon receipt of order, the sheriff must:
1. Serve copy to the adverse party, together with the affidavit and bond
2. Take the property
3. Retain the said property.
Q: What if the property or any part thereof is concealed in a building or enclosure?
A: The sheriff must publicly demand its delivery, and if it be not delivered, he must
cause the building or enclosure to be broken open and take the property into his
possession
Q: What should the sheriff do if he has already taken the said property?
A: He must keep it in a secure place and deliver it to the party entitled upon
receiving his fees and expenses for taking and keeping the same

Sec. 5 Return of property

Q: What should the adverse party do in order to recover the property taken under
the writ of replevin?
A: The defendant must post a redelivery bond and serve a copy of such bond on the
plaintiff within 5 days from the taking by the officer
Q: When is the defendant entitled to the return of the property taken?
1. When he seasonably posts a redelivery bond
2. The plaintiffs bond is insufficient or defective or not replaced with a proper
bond
3. The property is not delivered to the plaintiff for any reason
Sec. 7 Proceeding where property claimed by third person
a. Make an affidavit of his title thereto, stating the grounds
b. Serve copy to the sheriff and the applicant
c. File a bond approved by the court to indemnify the 3 rd party claimant in a sum
notless that the value of the property under replevin.
Q: Can the sheriff be liable in any event?
A: No, the sheriff shall not be liable for damages for the taking or keeping of such
property, if such bond shall be filed.
Q: What if the replevin is issued in favor of the republic?
A: He shall be represented by the OSG, and the actual damages adjudged shall be
paid by the National Treasurer out of the funds to be appropriated for the purpose
Sec. 8 Return of papers
Q: When should the sheriff file the order with the court after taking the property
A: Within 10 days after taking the property
Q: Who acquires absolute title to the property?
A: No one, even the plaintiff or the defendant, as they only hold the property subject
to the final judgment in the action.
Q: Sec. 9 requires judgment in a replevin to be?
A: In the ALTERNATIVE that is
a. For the delivery of the property to the party entitled to it
b. The value of the property in case the same cannot be delivered plus
damages.

The property may be refused acceptance if not in good condition, even if said
party had asked for such delivery pendent lite.
Q: Is the writ of replevin limited to the jurisdiction of the trial court?
A: No, the writ may be served anywhere in the Philippines, the jurisdiction of the
court to hear and decide a case should not be confused with its power to issue writs
and processes pursuant to and in the exercise of said jurisdiction
Q: What is the purpose of replevin bond?
A: to indemnify the defendant against any loss that he may suffer by being
compelled to surrender the possession of the disputed property pending trial of the
action.
Cases
1. Arabesque vs PNOC
2. BA Finance vs Reyes
3. Rivera V vargas
4. Navarro vs Escobido
5. Sebastian v Valino
6. Filinvest v CA
7. Dy vs CA
8. Vda de Danao vs Ginete
9. Sergs vs PCI Leasing
10.Hao vs Andres
Citibank vs CA

A replevin bond is intended to indemnify the defendant against any loss that
he may suffer by reason of its being compelled to surrender the possession of
the disputed property pending trial of the action.

RULE 61 SUPPORT PENDENTE LITE

When to file?
a. At the commencement of the proper action or proceeding, OR
b. At any time prior to the judgment or final order
What to file?
a. A verified application for support pendent lite containing:
The grounds for the claim
Financial conditions of both parties
Affidavits, depositions or other authentic documents in support

Who may file?

The plaintiff, OR
Any party in the action who may have grounds to apply for the same
When shall the adverse party file comment?
5 days UNLESS a different eriod is fixed by the court
When will the hearing be held:

After the comment is filed, or after the expiration ofhte time for its filing, the
hearing shall be set not more than 3 days thereafter.

Why not grant support pendente lite?

What

The right to support is put in issue by the pleadings

There arises a controversy
should the court determine if it grants the relief sought:
Fix the amount of money to be provisionally paid or other forms of support
Determine the necessities of the applicants
The means of the adverse party
The terms of payment or mode for providing the support.
(if it denies=the case shall be tried and decided as early as possible)

What if the adverse party fails to comply with the order:

The court shall motu porprio or upon motion issue an order of execution
without prejudice to his liability for contempt

What if the adverse party refuses or fails to do so:

Any third person who furnishes support may after due notice and hearing,
obtain a writ of execution to enforce his right of reimbursement against the
adverse party.
Support pendent lite is interlocutory and one for support, it may be modified at
any stage of the proceedings. Being provisional in nature, the actual amount
and terms of its payment shall be determined in the final judgment.
If the judgment is discontinued because judgment is in favor of the defendant:
The court shall make restitution of the amounts unjustifiedly received.
Can the court grant support even if no application is made:
Yes, provided that the basis for the right to such support has been proven in
the trial court although such findings are on appeal.
How do the courts determine the amount:
It is sufficient that the court ascertain the kind and amount of evidence which
it may deem sufficient to enable it to just resolve the application.
In what instance will the trial court lose jurisdiction over the case and thereafter
cannot issue an order for execution pending appeal:

The plaintiff did not ask for support pendent lite and the appeal was duly
perfected by the defendant from the judgment therein.
When can the widow/minor/incapacitated children receive allowance:
Even during the settlement of the estate.
When can the accused be ordered to provide support pendent lite:
In criminal actions where the civil liability includes support for the offspring as
a consequence of a crime and the civil aspect thereof has not been waived,
reserved or instituted prior to its filing.
Who may file the application, and in what order:
By the offended party
Her parents
Grandparents or guardian
The State
What are the remedies of the party who was erroneously compelled to give support:
He can apply for an order for such reimbursement by the recipient of motion
in the trial court
He can file an action for reimbursement against the person legally obliged to
give support
1.
2.
3.
4.
5.
6.
7.
8.
9.

Ramos vs Cao
Mangoba vs Macaraeg
Torres vs Teodor
Baito vs Sarmiento
Reyes vs Ynez
San Juan Vs. Valesnzuela
Gandiongco
Gan vs Reyes
Lam vs Chua

SPECIAL CIVIL ACTIONS

RULE 62 INTERPLEADER
Proper when:
1. Theres conflicting claims upon same subject matter against a person who
claims no interest OR
2. An interest which in whole or in part is not disputed by the claimants
How done:
1. File a complaint
2. The court shall issue order to interplead (court may order payment/delivery
to court of the subject matter)
3. Summon conflicting claimants and serve copy of complaint and the order

4. Answer the pleadings, conduct pre-trial and determine rights and claims
Grounds for dismissal of motion:
1. Impropriety
2. Rule 16
The period to answer shall be tolled. If denied, the movant may file his answer not
less than 5 days from denial
Time to answer:
1. Upon service of summons 15 days. Failure will cause:
a. Declaration of default
b. Render judgment barring him from any claim
What can parties in interpleader file:
1. Counterclaims-a claim which a defending party have against the opposing
party
2. Cross-claims- a party against a co-party
3. Third party complaints
4. Responsive pleadings
Docket fees are filed by the party who filed the complaint, will constitute a lien or
charge upon the SM
Intervention1. he has legal interest in the matter in litigation,
2. with leave of court;
3. done before judgment
4. 15 days
What is the extent of the jurisdiction of inferior courts/MTC
They have jurisdiction where the amount is within their jurisdiction
What is the jurisdiction of the RTC
1.
2.
3.
4.

Recovery of title to real property

Specific performance
Annulment
Rescission of contract

When is interpleader not available

1. In resolving issue of breach of undertaking
2. There are no conflicting claims among the defendants, their respective claims
being separate and distinct no cause of action.

When to file:
Within reasonable time, otherwise barred by laches.
Leonardo Ocampo vs Leonora Tirona
FACTS:
A parcel of land was bought by petitioner. Respondent Tirona occupied a
portion of the land as lessee. Petitioner received a letter stating among others, that, in view
of the fact that the subject premises was declared under area for priority development,
respondent is invoking her right of first refusal. Respondent further asserted that with
reference to such, she will temporarily stop paying her monthly rentals until the National
Housing Authority has processed the pertinent papers concerning the amount due to
petitioner by reason of the implementation of the above law. Petitioner demanded payment
of the rentals and that respondent vacate the premises which the latter refused.
Accordingly, a complaint for unlawful detainer and damages was filed by petitioner.
Respondent asserted in her answer that the original owners of the land could not transfer
ownership to petitioner since they had executed a deed of conveyance and waiver in favor
of one Maria Lourdes Breton-Mendiola making her the lessor. In is further noted that TCT of
said land has not been registered under petitioners name. Trial court, however, rendered
judgment in favor of petitioner, which was set aside on appeal to the Court of Appeals.
ISSUE: Whether or not the action for interpleader is proper.
HELD:
Quite notably, an interpleader is regarded as a remedy whereby a person who
has property in his possession, or an obligation to be rendered, without claiming any right in
both, or claims an interest which is not disputed by the conflicting claimants, comes to court
and asks that the persons who claim such property or who consider themselves entitled to
demand compliance with the obligation, be required to litigate among themselves. In this
case, an action for interpleader may be proper when the lessee does not know the person to
whom to pay rentals due to conflicting claims on the property. In order to determine finally
who is entitled to one or the other thing. The remedy is afforded to protect a person against
a double vexation in respect of one liability. In the case at bar, no action for interpleader was
even initiated by respondent. Her good faith is put in question in respondents preference for
Mendiola. Tirona should have used reasonable diligence in hailing the contending claimants
to court. Tirona need not have awaited actual institution of a suit by Ocampo against her
before filing for an interpleader.

WackWack Golf and Country Club vs Lee E. Won

The action of interpleader under section 120 of the Code of Civil Procedure, is
a remedy whereby a person who has personal property in his possession, or
an obligation to render wholly or partially, without claiming any right to
either, comes to court and asks that he persons who claim the said personal
property or who consider themselves entitled to demand compliance with the
obligation, be reguired to litigate among themselves in order to determine
finally who is entitled to one or the other thing. The remedy is afforded to
protect a person not against double liability but against double vexation in
respect of one liability

The remedy of interpleader is available regardless of the nature of the subject

matter of the controversy
A stakeholder should use reasonable diligence to hale the contending
claimandts to court. He need nto await actual institution of independent suits
against him before filing a bill of interpleader. He should file an action of
interpleader withina reasonable time after a dispute has arisen without
waiting to be sued by either of the contending claimants. Otherwise, he may
be barred by laches or undue delay.
An action of interpleader is too late when filed after judgment has been
rendered against him in favor of one of the contending claimants, especially
where he had notice of the conflicting claims prior to the rendition of the
judgment and neglected the opportunity to implead the adverse claimants in
the suit where judgment was entered. Because once judgment is obtained
against him by one claimant he becomes liable to the latter.
Before a person will be deemed to be in a position to ask for an order of
interpleader, he must be prepared to show that he has not become
independently liable to any of the claimants
A successful litigant cannot late be impleaded by his defeated adversary in
an interpleader suit and compelled to prove his claim anew against other
adverse claimants, as that would in effect be a collateral attack upon the
judgment.

1. De Jesus vs Sociedad
Mesina vs IAC

A person who became the holder of a cashiers check as endorsed by the

person who stole it and who refused to say how and why it was passed to him
is not a holder in due course. The holder of a cashiers check who is not a
holder in due course cannot enforce such check against the issuing bank
which dishonors the same.
The bank from whom a cahiers check was bought and which is aware of the
facts surrounding its loss has the right to refuse to pay the same when
presented by a holder who was not the one who bought the check from the
bank.
Interpleader is an issuing banks proper remedy where purchaser of cashiers
check claims it was lost and another has presented it for payment.
An order to the parties named in the petition for interpleader to file answer is
an order to interplead. Non-answering party liable to be declared in default.

RULE 63 DECLARATORY RELIEF AND SIMILAR REMEDIES

Who may file petition:

1. Any person interested under a (DWCO) deed, will contract or other written
instrument or whose rights are affected by a statute, EO, regulation, or
ordinance
2. Reformation of instrument
3. Quiet title
4. Remove clouds
When to file: Before breach or violation thereof
Where: RTC
Why: determine any question of constructive/validity arising and for a declaration
of his rights and duties.
Notice to SolGen and entitled to be heard
When it involves validity fo a statue, EO, regulation
Local Government Ordinance
1. Give notice to corresponding prosecutor/attorney of LGU
2. If unconstitutional give notice to SolGen who will require notice and hearing.
Requisites of action for declaratory relief
1. SM is a deed, will, contract, stature, EO or ordinance
2. Terms and validity are doubtful, and require judicial construction
3. No breach of documents in question
4. Actual justiciable controversy or ripening of seeds
5. Ripe for judicial determination
6. Adequate relief not available through other means or other forms of action or
proceedings
Declaratory relief not available in
1. Declaration of citizenship
2. Validity or construction of registration certificate
3. Court decision
Meaning of Ripening seeds
There is a threatened litigation in the immediate future, which is imminent
and inevitable unless prevented
When the court will not entertain/ discretionary
1. When a decision would not terminate the uncertainty/controversy
2. When the declaration is not necessary and proper
3. When the relief sought would be determinative of issues rather than a
construction of definite stated rights, status, and other relations.
4. When it involves third party complaint, since no relief is sought
Conversion to ordinary action
If before final termination of the case, a breach/ violation should take place
arising from the disputed EO, will, deed, etc
If the petition has far reaching implications and it raises questions that should
be resolved, it may be treated as one for mandamus or prohibition.

Salvacion vs. Central bank

GR: Court has no original and exclusive jurisdiction over a petition for a declaratory relief
EXN:
a. petition has far reaching implications and
b. raises questions that should be resolved
In fine, the application of law depends on teh extent of justice. When the statute is silent or
ambiguous, this is one of those fundamental solutions that would respond to the vehement
urge of conscience.

1. Cutaran
2. Degala vs Reyes

RULE 64 REVIEW OF JUDGMENTS AND FINAL

ORDERS OR RESOLUTIONS OF COMELEC AND COA
Mode of Review: On certiorari Rule 65
Venue: SC- decisions of Comelec and COA
CA decisions of Civil Service Commissions
Time to file: 30 days from notice of judgment
If denied: file a petition not less than 5days reckoned from notice of denial. Filing
of a motion for a new trial interrupts the period herein fixed.
What to pay: docket fees of P500 for costs.
Requirements/Form/Contents of Petition
1. File a verified petition in 18 copies containing:
a. Name of the aggrieved
b. Respondent Commission
c. Person interested
d. Statement of facts, issues, grounds, arguments, and prayer
2. Clearly legible duplicate original or certified true copy of the judgment and
certified true copies of such material portions of the record
3. The petition shall contain plain copies of all documents attached to the
original copy of said petition
4. Statement of specific material dates to show it was filed within period fixed
5. Sworn certification against forum shopping.
6. Proof of service of a copy on the commission concerned, the adverse party,
and the timely payment of docket fees.
Findings of commission supported by substantial evidence shall be final and nonreviewable. Non-compliance with the requirements shall be a ground for
dismissal.
Steps:
1. File a petition
2. If sufficient, the SC shall order respondents to file comments within 10 days.

3. The comment shall be filed in 18 legible copies, certified true copies of such
material portions of the record, supporting papers, plain copies of all
documents attached to the original
4. The case shall be submitted for decision upon filing of the comments on the
petition UNLESS the Court sets the case for oral arguments.
Grounds for dismissal
1. If the comment is not filed within 10 days
2. If it was filed manifestly for delay
3. The question raised is too unsubstantial to warrant further proceedings.
No other pleading may be filed by any party unless required or allowed by the
Court. The filing of a petition for certiorari shall not stay the execution of the
judgment, final order or resolution UNLESS SC direct otherwise.

Mison vs Dario

Jurisdiction of SC over cases emanating from CSC is limited to complaints of

lack or excess of jurisdiction or grave abuse of discretion tantamount to lack
or excess of jurisdiction, complaints that justify certiorari under Rule 65
When RA 6656 states judgment of CSC as final and executor and hence,
unappealable, under Rule 65, certiorari precisely lies in the absence of an
appeal
Aggrieved party has 30 days to challenge decision of CSC reckoned from
receipt of denial of the motion for reconsideration
Judgment of the commission may be brought to the SC through certiorari
alone under Rule 65

ABS v Comelec
Repol vs Comelec

Interlocutory orders merely rule on an incidental issue and do not terminate

or finally dispose of the case as they leave something to be done before it is
finally decided on the merits. Therefore the motion should be resolved and
the aggrieved party should not:
a. File a motion for reconsideration for certification to the Comelec en banc
b. Nor elevate to this Court via a petition for certiorari.
The comelec en banc shall decide motion for reconsideration only of
decisions of a Division. The status quo ante order being interlocutory shall
first be resolved.

RULE 65 CERTIORARI PROHIBITION AND

MANDAMUS
Angchangco
Mandamus is a writ commanding a tribunal, corporation, board or person to do the act
required to be done when it or he unlawfully neglects the performance of an act which the
law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully
excludes another from the use and enjoyment of a right or office to which such other is
entitled, there being no other plain, speedy and adequate remedy in the ordinary course of
law
Mandamus is employed to compel the performance, when refused, of a ministerial duty, this
being its chief use and not a discretionary duty. It is nonetheless lifewise available to
compel action, when refused, in matters involving judgment and discretion, but not to direct
the exercise of judgment or discretion in a particular way or the retraction or reversal of an
action already taken in the exercise of either.
In the performance of an official duty or act involving descretion, the corresponding official
cna only be directed by mandamuns to act, but not to act one way or the other. However,
this rule admits of exceptions such as in cases where there is gross abuse of discretion,
manifest injustice, or palpable excess of authority.
The inordinate delay of more than 6 years by the ombudsman in resolving the criminal
complaints against petioner to be violative of his constitutionally guaranteed right ot due
process and to a speedy disposition of the cases against him, thus warranting the dismissal
of said criminal cases

RULE 66 QUO WARRANTO

1. Abaya vs Alvear
2. Lacson vs Romero
Garcia vs Perez

In a quo warranto proceeding involving title to a public office, the petitioner

must show that he is entitled thereto not merely that she has a preferential
right to be appointed to the office in question.
No individual can bring a civil action relating to usurpation of the public office
without averring that he has a right to the same; and at any stage of the
proceedings, if it be shown that such individual has no right, the action may
be dismissed because there is no legal ground.

The pendency of an administrative remedy does not suspend the period

within which to file the petition for quo warranto which commences from the
appointment of the respondent.
While it may be desirable or bound to do so and as said remedies neither are
pre-requisite to nor bar the institution of quo warranto proceedings, it follows
that he person who claims must file the proper judicial action within the
reglementary period.

RULE 67 EXPROPRIATION
NAPOCOR vs Jocson
The 2 stages in every action of expropriation are:
a. 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. It ends with an order, if not of dismissal of the action , of
condemnation declaring that the plaintiff has a lawful right to take the
property sought to be condemned for the public use or purpose described in
the complaint, upon the payment of the just compensation to be determined
as of the date of the filing of the complaint.
b. An order of dismissal, if this be ordained, would be a final one, since it finally
disposes of the action and leaves nothing more to be done by the court on
the merits. So too, would an order of condemnation be a final one, as
provided by the rules, no objection to the exercise of the right of
condemnation shall be filed or heard.
c. The second phase is the determination by the court of the just
compensation for the property sought to be taken, determined based on the
evidence before and the findings of the three commissioners would be final

Binan vs Garcia
Benguet vs Republic

The filing of expropriation proceedings recognizes the fact that the petitioners
property is no longer part of public domain. The power of eminent domain
refers to the powe of the government to take private property for public use.
If mineral claims are public, there would be no need to expropriate them. The
mineral claims of th petitioner are not being transferred to another mining
company or to a public entity interested in the claims as such.
The land where the mineral claims were located is needed for the PMA, a
public use completely unrelated to mining. The fact that the location of a
mining claim has been perfected does not bar the Governments exercise of
its power of eminent domain. The right of Eminent domain covers all forms

of private property, tangible or intangible and includes rights which are

attached to the land
After the party whose mineral land is being expropriated has shifted its
position to the issue only of just compensation, it cannot later claim that its
motion to dismiss should have been resolved first before entry of
condemnation order
The legal interest should have been provided by the government from the
time it took over the petitioners mining claims until payment is made by the
Government.
The compensation should not be ridiculously low.
d. RA 8975

RULE 68 FORECLOSURE OF REAL ESTATE

MORTGAGE
Gravina vs CA 1993

Supreme Court bound by findings of CA on publication and receipt of notices

Sec. 3 of Act No. 3135 Mortgage Law requires only the posting of the notices
of sale in three public places and the publication of the same in a newspaper
of general circulation. Personal notice is not required.
Foreclosing creditor bank not prohibited to sell foreclosed assets to its
employees.

Ouano vs CA 2003

The publication of notice of mortgage foreclosure sales must be strictly

complied with, and that even slight deviations there from will invalidate the
notice and render the sale at least voidable. Failure to advertise a mortgage
foreclosure sale in compliance with statutory requirements constitutes a
jurisdictional defect invalidating the sale. The defect renders the sale
absolutely void and not title passes.
Republication is necessary for the validity of a postponed extrajudicial
foreclosure sale. Where required by the stature or by the terms of the
foreclosure decree, public notice of the place and time of the mortgage
foreclosure sale must be given, a statute requiring it being held applicable to
subsequent sales as well as to the first advertised sale of the property.
Publication is required to give the foreclosure sale a reasonably wide publicity
such that those interested might attend the public sale, waiver of this would
result in converting into a private sale what ought to be a public auction
The mortgagees right to foreclose a mortgage must be exercised according
to the clear mandate of the law. The mortgagees inaction on the scheduled
date of sale and belated filing of requests to postpone may be deemed as an
abandonment of the petition to foreclose it filed with the sheriff, making its
right to foreclose based on said petition to have lapsed.

Sec. 24 Rule 39 authorizes the adjournment of the execution sale by

agreement of the parties and nowhere does it state that republication and
reposting of notice for the postponed sale may be waived.
Where the records do not show that the mortgagor requested the
postponement of the sale without need of republication and reposting of
notice of sale, he could not be deemed to have committed an act that would
estop him from questioning the validity of the foreclosure sale for noncompliance with the mortgage law.
Estoppels cannot give validity to an act that is prohibited by law or one that is
against public policy, and neither can the defense of illegality be waived.
An action or defense for the declaration of the inexistence of a contract does
not prescribe.

Yulienco vs CA

A petition for a writ of possession lies in the court of the province, city, or
municipality where the property subject thereof is situated, to give him
possession thereof during the redemption period, furnishing bond in an
amount equivalent to the use of the property for a period of 12 months, to
indemnify the debtor in case it be shown that the sale was made without
violating the mortgage or without complying with the requirements of this
act.
An action for injunction, reformation, and damages does not raise an issue
that constitutes a prejudicial question in relation to a petition for a writ of
possession.
The mortgagor has only one year after registration of sale with the
RD within which to redeem the foreclosed real estate, after which period he
loses all his interests over it.
After consolidation of title in the buyers name, for failure of the mortgagor to
redeem, the writ of possession becomes a matter of right.
Until the foreclosure sale of the property in question is annulled by a court of
competent jurisdiction, the mortgagor is bereft of valid title and right to
prevent the issuance of a writ of possession in favor of the buyer.

RULE 69 PARTITION
Q: Who may file a complaint in an action for partition of real estate?
A: A person having the right to compel the partition of real estate
Q: Where should the action be filed?
A: IN the CFI of the provincewhere the property or a part thereof is situated.
Q: Where should the action be file dif several distinct parcels of land are
situated in different provinces?
A: The venue may be in any of the said provinces

Q: Does the action to partition prescribe?

A: No UNLESS where one of the interested parties openly and adversely occupies
the property without recognizing the co-ownership.
Q:What should the complaint contain?
1. The nature and extent of his title and
2. an adequate description of the real estate which partition is demanded and
3. joining as defendants all other persons interested in the property
Q: When will the court order the partition of the real estate?
1. If the court finds that the plaintiff has the right thereto, it shall order the
partition of the real estate among all parties in interest.
2. The parties may make the partition among themselves by proper instruments
of conveyance, which the court shall confirm,
3. and shall be recorded in the registry of deeds of the place in which the
property is situated.
Q: What if the parties fail to agree?
A: The court shall appoint not more than 3 competent and disinterested persons as
commissioners to make the partition, commanding them to set off to the plaintiff
such part as the court may direct. (However, reference to the commissioners is
discretionary with the court Rule 32)
Q: What are the duties of the commissioners?
1. Take and subscribe an oath that they will faithfully perform their duties
2. File the oath in court
3. View and examine the real estate
4. Hear the parties
5. Set apart the same to the parties as will be most advantageous and equitable
(The commissioners does not have the power to inquire into the question of
ownership or right to the possession of the property, nor of claims to title or right
of possession by 3rd persons)
Q: What should be done if the real estate cannot be divided?
A: The court may order it assigned to one ot the parties PROVIDED he pays the
other parties amounts as the commissioners deem equitable PROVIDED FURTHER
that if one party asks it to be sold, the estate shall be sold at public sale.
Q: What can the aggrieved party do in case of unfavorable decision?
A: The final order may be appealed
Q: What are the ways of partition?
1. Voluntarily effected by agreement
2. Compulsorily under this rule.
Q: What should the interested parties do after the commissioners have
submitted the full and accurate report to the clerk of court?
A: The interested parties have 10 days within which to file objections. The
proceeding shall not be binding until the court shall have accepted the report of the
commissioners and rendered judgment.

Q: What is the action of the court upon commissioners report?

1. The court may upon hearing, accept the report and render judgment, OR
2. Recommit the same for further report of facts OR
3. Set aside the report and appoint new commissioners
4. Make such order and render such judgment as shall effectuate a fair and just
partition of the estate.
Q: What can a party recover from another from the real estate in
question?
A: His just share of rents and profits
Q: Who can represent the minor or person judicially declared
incompetent?
A: The guardian or guardian ad litem, with the approval of the court may do and
perform on behalf of his ward respecting the partition
Q: What can the court impose upon the parties to pay?
A: costs, expenses, including the compensation of the commissioners
Q: What shall the judgment contain?
1. In case of actual partition
The metes and bounds and adequate description, the particular portion of
the real estate assigned to each party and the effect of the judgment shall be
to vest in each party to the action in severalty the portions of the real estate
assigned to him
2. In case the whole property is assigned to one of the parties
the judgment shall state the fact of such payment and of the assignment of
real estate to the party making the payment
3. If the property is sold and the sale is confirmed by the court
the judgment shall state the name of the purchaser
Q: Where should the certified copy of the judgment be recorded?
A: In the registry of deeds of the place where the property is situated.

Nothing in this rule contained shall be construed so as to prejudice, defeat, or

destroy the right or title of any person 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
This rule also applies to partitions of estates composed of personal property
or both real and personal property.

4. Russel vs Vestil 1999

5. Miranda vs Co 1976
Quimpo vs. Abad (2008)

Well entrenched is the rule that the scs role in a petition under rule 45 is limited to
reviewingor reversing errors of law allegedly committed by the appellate court. Factual
findings of the trial court especially when affirmed by the CA are conclusive on the parties.
Since such findings are generally not reviewable, this court is not duty bound to analyze and
weigh all over agains the evidence already considered in the proceeedings below, unless the
factual findings complained of are devoid of support from the evidence on record or the
assailed judgment is based on a misapprehension of facts. Petitioners fail to convince that
the CA committed reversible error in affirming hte trial court and in giving no weight to the
pieces of evidence they presented.
A deed of sale, in which the stated consideration has not been paid is false contract. That is
void ab initio. The contract of purchase and sale is null and void and produces not effect
whatsoever where it appears that the same is without cause or consideration which should
have been the motive thereof, or hte purchase price which appears thereon as paid but
which in fact has never been paid by the purchaser to the vendor.
Partition may be inferred from circumstances sufficiently strong to support the presumption.
Thus, after a long possession in severalty, a deed of partition may be presumed. It has been
held that recitals in deeds, possession and occupation of land, improvements made thereon
for a long series of years and acquiescence for 60 years, furnish sufficient evidence that
there was an actual partition of land either by deed or by proceedings in the probate court,
which had been lost and not recorded.
Jurisprudence is replete with ruling that any co-owner may demand anytime the partition of
the common property unless a co-owner has repudiated the co-ownership. This action for
partition does nto prescribe and is not subject to laches

RULE 70 FORCIBLE ENTRY AND UNLAWFUL

DETAINER
1. Hilario vs CA 1996
Ong vs Parel 2001

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 when
entry was made through stealth, counted from the time the plaintiff learned
thereof
Unlawful detainer one unlawfully withholds possession thereof after the
expiration or termination of his right to hold possession under any contract
express or implied
The petitioner must allege that he was previously in possession of the land.

CANIZA V. CA
What determines the nature of an action as well as which court has jurisdiction over
it are the allegations of the complaint and the character of relief sought

Unlawful detainer- it is sufficient if it alleges that the withholding of possession or the

refusal to vacate is unlawful
An owners act of allowing another to occupy her house, rent free, does not create a
permanent and indefeasible right of possession in the latters favor.
The court ruled that a person who occupies the land of another at the latters
tolerance or permission without any contract between them is bound by implied
promise that he will vacate upon demand, failing which, summary action for
ejectment is the proper remedy.
Where there had been more than one demand to vacate, the one year period for
filing the complaint for unlawful detainer must be reckoned from the DATE OF LAST
DEMAND, the reason being that the lessor has the option to waive his right of action
based on previous demands and let the lessee remain meanwhile in the premises
A judicial guardian is clothed with authority to withdraw the wards earlier express
permission given to third persons to occupy a certain property.

RULE 71 CONTEMPT
Q: What may be punished as contempt?
1. A person guilty of misbehavior in the presence of or so near a court as to
obstruct or interrupt the proceedings before the same
2. Disrespect toward the court
3. Offensive personalities toward others
4. Refusal to be sworn or to answer as a witness
5. Refusal to subscribe an affidavit or deposition when lawfully required to do so
Q: What is the fine?
A: Not exceeding 2 thousand pesos or imprisonment of not exceeding 10 days or
both, if it be a RTC or a court of equivalent or higher rank
Q: What if it is committed against a lower court?
A: The fine is not exceeding 200 pesos or imprisonment not exceeding one day or
both.
Q: What are the classifications of contempt?
1. Direct contempt or contempt in facie curiae = committed in the if said
pleadings are submitted before the same judge, it is direct contempt.
2. Indirect contempt = is not committed in the presence of a court and can be
punished only after hearing. The use of contemptuous language against a
particular judge in pleadings presented in another court constitutes indirect
contempt.
3. Criminal contempt = to vindicate public authority. It is conduct directed
against the dignity or authority of the court

4. Civil contempt = to protect and enforce the civil right and remedies of the
litigants. It is the failure to do something ordered by the court for the benefit
of a party
Q: What are some principles involving contempt?
1. Contempt is punitive hence, criminal in nature, and the procedural and
evidentiary rules in criminal actions are applied.
2. Doubts should be resolved in favor of the person charged with contempt
3. Courts should be slow to punish contempt and should be exercised upon
preservative and not on vindictive principle.
4. A respondent in a contempt charge is not required to file a formal answer
similar to that in ordinary civil actions.
Q: What are the remedies of the person adjudged in direct contempt?
1. He may not appeal there from, BUT may avail himself of the remedies of
certiorari or prohibition.
2. The execution of judgment shall be suspending pending resolution of the
petition, PROVIDED such person files a bond fixed by court AND conditioned
that he will abide by and perform the judgment should the petition be
decided against him.
Q: When can habeas corpus be availed of?
A: Only in extreme cases in view of the fact that there is a judicial order of
commitment and certiorari may lie.
Q: May the remedies be availed of simultaneously?
A: No, since certiorari and prohibition presupposes that there is no other plain,
speedy and adequate remedy in the ordinary course of law
Q: When can a person be punished for indirect contempt?
1. After a charge in writing has been filed
2. An opportunity given to the respondent to comment thereon within such
period as may be fixed by the court
3. To be heard by himself or counsel
4. And has committed the following acts:
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
such real property, for the purpose fo 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 nto constituting direct contempt
d. Any improper conduct tending, directly or indirectly, to impede, obstruct,
or degrage the administration of justice

e. Assuming to be an attorney or an officer of a court, and acting such

without authority
f. Failure to obey a subpoena duly served
g. The rescue, or attempted rescue, of a person or property I the custody of
an officer by virtue of an order or process of a court held by him
Q: What if the hearing is not ordered to be had, what becomes of the
respondent?
A: he will be released upon filing a bond. On the day set for the hearing, the court
shall proceed to investigate the charge and consider such comment, testimony or
defense as the respondent may make or offer.
Q: What is the fine if adjudged guilty of indirect contempt committed
against RTC or a court of equivalent rank?
A: Fine not exceeding 30,000 OR imprisonment not exceeding 6 months.
Q: Guilty of contempt against a lower court, the penalty is?
A: A fine not exceeding five thousand pesos or imprisonment not exceeding 1 month
or both.
Q: What if the person refuses or omits to do an act within his power to
perform?
A: He may be imprisoned by order of the court concerned until he performs it.
Q: What if the respondent failed to appear on the day of the hearing, when
he was released on bail?
A: the court may issue another order of arrest or may order the bond for his
appearance to be forfeited and confiscated, or both; and if the bond be proceeded
against, the measure of damages shall be the extent of the loss or injury sustained
by the aggrieved party by reason of the misconduct for which the contempt charge
was prosecuted, with the cost of the proceedings and such recovery shall be for the
benefit of the injured party. If there is no aggrieved party, the bond shall be liable
and disposed of as in criminal cases.
Q: When can the court release the respondent?
A: When it appears that public interest will not be prejudiced by his release.
Q: Can the final order be appealed to the proper court in case of indirect
contempt?
A: Yes, but the execution of the judgment shall not be suspended until a bond is
filed, in an amount fixed by the court from which the appeal is taken, conditioned
that if the appeal be decided against him he will abide by and perform the
judgment.
Q: How is appeal from municipal courts to the CFI done in contempt
proceedings?
A: By filing a notice of appeal within 15 days from promulgation of judgment, with
such period interrupted by a motion for new trail seasonably filed.
Q: What can a plaintiff do if the person is absolved in contempt?

A: He cannot appeal, unless there has been no adjudication on the merits but only a
dismissal on motion of the person charged based on jurisdictional grounds.
Q: Can there be contempt against quasi-judicial bodies?
A: Generally NO,acts or violations cannot be punished as contumacious unless the
governing law specifically defines such violation as contempt of court.
Q: What are acts considered as contempt against quasi-judicial entitites?
1. A person, without lawful excuse, fails to appear, make oathe, give testimony
or produce documents when required to do so by the official body.
Q: How can a person be punished for contempt against a quasi-judicial
body?
A: Upon application of the official or body with the RTC for the corresponding
sanctions.
Ang vs Castro (136-453)
People vs Godoy (243-64)
ZALDIVAR vs Sandiganbayan
a Motion dated 9 February 1988, to Cite in Contempt filed by petitioner Enrique A.
Zaldivar against public respondent Special Prosecutor (formerly Tanodbayan) Raul M.
Gonzalez, in connection with G.R. Nos. 79690-707 and G.R. No. 80578.
a Resolution of this Court dated 2 May 1988 requiring respondent Hon. Raul Gonzalez
to show cause why he should not be punished for contempt and/or subjected to
administrative sanctions for making certain public statements.
Whether or not the statements made by respondent Gonzalez may reasonably be
regarded by this Court as contumacious or as warranting exercise of the disciplinary
authority of this Court over members of the Bar.
Ruling: This Court is compelled to hold that the statements here made by respondent
Gonzalez clearly constitute contempt and call for the exercise of the disciplinary
authority of the Supreme Court.
Two inherent powers of the Court:
Power to punish for contempt
Power to discipline attorneys
Contempt of court may be committee both by lawyers and non-lawyers, both in and
out of court. Frequently, where the contemnor is a lawyer, the contumacious conduct
also constitutes professional misconduct which calls into play the disciplinary
authority of the Supreme Court.
The Supreme Court, as regulator and guardian of the legal profession, has plenary
disciplinary authority over attorneys.
it is a constitutional mandate to regulate admission of practice of law, which
includes as well authority to regulate the practice itself of law.
The Court ruled that respondent Atty. Raul M. Gonzales is guilty of both of contempt
of court in facie curiae and of gross misconduct as an officer of the court and
member of the Bar.
Respondent's statements, especially the charge that the Court deliberately rendered
an erroneous and unjust decision in the Consolidated Petitions, necessarily implying
that the justices of this Court betrayed their oath of office, merely to wreak
vengeance upon the respondent here, constitute the grossest kind of disrespect for
the Court.

 Such statements very clearly debase and degrade the Supreme Court and, through
the Court, the entire system of administration of justice in the country.

AURILLO VS RABI ( ENUMERATION OF EXEMPTION TO THE EXHAUSTION OF ADMIN

REMEDIES)

On the first issue, the general rule is that an aggrieved party is mandated to first exhaust all
administrative remedies before filing a judicial action for redress from acts of administrative
bodies or offices in the performance of their quasi-judicial functions; otherwise, said action
may be dismissed for prematurity. 13 However, the principle is not without exceptions. The
aggrieved party may validly resort to immediate judicial action where the (a) question raised
is purely legal; (b) when the act complained of is patently illegal; (c) when there is an urgent
need for judicial intervention;14 (d) when the disputed act is performed without jurisdiction or
in excess of jurisdiction; (e) the administrative remedy does not provide for a plain, speedy
and adequate remedy; and (f) when due process is disregarded.

PEI-USIP-PPQ=patently illegal, estoppels,purely legal, urgency, small claims, irreparable

damage, plain speedy, public interest, private land, quo waranto.

7. repol vs comelec
Interlocutory orders merely rule on an incidental issue and do not terminate or finally
dispose of the case as they leave something to be done before it is finally decided on the
merits. Therefore the motion should resolve and the aggrieved party should not:
a. file a motion for reconcideration for certification to the comelec en banc
b. elevate to this court via a petition for certiorari
the comelec en banc shall decide motion for reconsideration only of the decision of a
division.. the status quo anter order being interlocutory should first be resolved.

8. salvacion vs. Central bank

Court has no original and exclusive jurisdiction over a petition for a declaratory relief
EXN:
c. petition has far reaching implications and
d. raises questions that should be resolved

in fine, the application of law depends on teh extent of justice. When the statute is silent or
ambiguous, this is one of those fundamental solutions that would respond to the vehement
urge of conscience

9. lacson vs romero
10. municipality of binan vs Garcia may 8, 1992
11. ouano vs ca 398-425