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1) In case of a judgment or final order upon a specific
EXAMINATION OF OBLIGOR OF JUDGMENT thing, the judgment or final order is conclusive upon
OBLIGOR (SEC. 37) the title to the thing; and
2) In case of a judgment or final order against a person,
When the return of a writ of execution against the the judgment or final order is presumptive evidence
property of a judgment obligor shows that the judgment of a right as between the parties and their successors
remains unsatisfied, in whole or in part, and upon proof in interest by a subsequent title. In either case, the
to the satisfaction of the court which issued the writ, that judgment or final order may be repelled by evidence
person, corporation, or other juridical entity has property of a want of jurisdiction, want of notice to the party,
of such judgment obligor or is indebted to him, the court collusion, fraud, or clear mistake of law or fact.
may, by an order, require such person, corporation, or
other juridical entity, or any officer or member thereof, to A foreign judgment on the mere strength of its
appear before the court or a commissioner appointed by promulgation is not yet conclusive, as it can be annulled
it, at a time and place within the province or city where on the grounds of want of jurisdiction, want of notice to
such debtor resides or is found, and be examined the party, collusion, fraud, or clear mistake of law or fact.
concerning the same.
It is likewise recognized in Philippine jurisprudence and
The service of the order shall bind all credits due the international law that a foreign judgment may be barred
judgment obligor and all money and property of the from recognition if it runs counter to public policy.
judgment obligor in the possession or in control of such
person, corporation, or juridical entity from the time of
service; and the court may also require notice of such
proceedings to be given to any party to the action in such PROVISIONAL REMEDIES (Rules 57-61)
manner as it may deem proper.

EFFECT OF JUDGMENT OR FINAL ORDERS: RES

JUDICATA (SEC. 47) NATURE OF PROVISIONAL REMEDIES

In case of a judgment or final order against a specific Provisional remedies are temporary, auxiliary, and
thing, or in respect to the probate of a will, or the ancillary remedies available to a litigant for the protection
administration of the estate of a deceased person, or in and preservation of his rights while the main action is
respect to the personal, political, or legal condition or pending. They are writs and processes which are not
status of a particular person or his relationship to another, main actions and they presuppose the existence of a
the judgment or final order is conclusive upon the title to principal action.
the thing, the will or administration, or the condition,
status or relationship of the person; however, the probate Provisional remedies are resorted to by litigants for any of
of a will or granting of letters of administration shall only the following reasons:
be prima facie evidence of the truth of the testator or 1) To preserve or protect their rights or interests
intestate; while the main action is pending;
2) To secure the judgment;
In other cases, the judgment or final order is, with respect 3) To preserve the status quo; or
to the matter directly adjudged or as to any other matter 4) To preserve the subject matter of the action.
that could have been raised in relation thereto, conclusive
between the parties and their successors in interest by title Provisional remedies specified under the rules are:
subsequent to the commencement of the action or special 1. Preliminary attachment (Rule 57);
proceeding, litigating for the same thing and under the 2. Preliminary injunction (Rule 58);
same title and in the same capacity; and 3. Receivership (Rule 59);
4. Replevin (Rule 60); and
In any other litigation between the same parties or their 5. Support pendent lite (Rule 61).
successors in interest, that only is deemed to have been
adjudged in a former judgment or final order which JURISDICTION OVER PROVISIONAL REMEDIES
appears upon its face to have been so adjudged, or which
was actually and necessarily included therein or necessary The court which grants or issues a provisional remedy is
thereto. the court which has jurisdiction over the main action.
Even an inferior court may grant a provisional remedy in
ENFORCEMENT AND EFFECT OF FOREIGN an action pending with it and within its jurisdiction.
JUDGMENTS OR FINAL ORDERS (SEC. 48)
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person owes the defendant. Garnishment does not
PRELIMINARY ATTACHMENT (RULE 57) involve actual seizure of property which remains in the
hands of the garnishee. It simply impounds the property
in the garnishee’s possession and maintains the status quo
Preliminary attachment is a provisional remedy issued until the main action is finally decided. Garnishment
upon order of the court where an action is pending to be proceedings are usually directed against personal
levied upon the property of the defendant so the property property, tangible or intangible and whether capable of
may be held by the sheriff as security for the satisfaction manual delivery or not.
of whatever judgment may be rendered in the.
(c) LEVY ON EXECUTION – writ issued by the court
When availed of and is granted in an action purely in
after judgment by which the property of the judgment
personam, it converts the action to one that is quasi in
obligor is taken into custody of the court before the sale of
rem. In an action in rem or quasi in rem, jurisdiction over
the property on execution for the satisfaction of a final
the res is sufficient. Jurisdiction over the person of the
judgment. It is the preliminary step to the sale on
defendant is not required.
execution of the property of the judgment debtor.
There is no separate action called preliminary
ð The grant of the remedy is addressed to the
attachment. It is availed of in relation to a principal
discretion of the court whether or not the
action.
application shall be given full credit is
discretionary upon the court. In determining the
Preliminary attachment is designed to:
propriety of the grant, the court also considers
1) Seize the property of the debtor before final
the principal case upon which the provisional
judgment and put the same in custodial egis even
remedy depends.
while the action is pending for the satisfaction of
a later judgment.
GROUNDS FOR ISSUANCE OF WRIT OF
2) To enable the court to acquire jurisdiction over
ATTACHMENT
the res or the property subject of the action in
cases where service in person or any other service
to acquire jurisdiction over the defendant cannot At the commencement of the action or at any time before
be affected. entry of judgment, a plaintiff or any proper party may
have the property of the adverse party attached as security
Three stages in the grant of the Preliminary Attachment for the satisfaction of any judgment that may be
1) The court issues the order granting the recovered in the following cases:
application 1) In an action for the recovery of a specified
2) The writ of attachment issues pursuant to the amount of money or damages, other than moral
order granting the writ and exemplary, on a cause of action arising from
3) The writ if implemented law, contract, quasi-contract, delict or quasi-
delict against a party who is about to depart from
For the 2 initial stages, it is not necessary that jurisdiction the Philippines with intent to defraud his
over the person of the defendant be first obtained. creditors;
However, once the implementation of the writ 2) In an action for money or property embezzled or
commences, the court must have acquired jurisdiction fraudulently misapplied or converted to his own
over the defendant for without such jurisdiction, the court use by a public officer, or an officer of a
has no power or authority to act in any manner against corporation, or an attorney, factor, broker, agent
the defendant. or clerk, in the course of his employment as such,
or by any other person in a fiduciary capacity, or
PRELIMINARY ATTACHMENT HAS for a willful violation of duty;
THREE TYPES 3) In an action to recover the possession of property
unjustly or fraudulently taken, detained or
converted, when the property, or any party
(a) PRELIMINARY ATTACHMENT – one issued at
thereof, has been concealed, removed, or
the commencement of the action or at any time before disposed of to prevent its being found or taken by
entry of judgment as security for the satisfaction of any the applicant or an authorized person;
judgment that may be recovered. Here the court takes 4) In an action against a party who has been guilty
custody of the property of the party against whom of a fraud in contracting the debt or incurring the
attachment is directed. obligation upon which the action the action is
brought, or in the performance thereof;
(b) GARNISHMENT – plaintiff seeks to subject either 5) In an action against a party who has removed or
the property of defendant in the hands of a third person disposed of his property, or is about to do so,
(garnishee) to his claim or the money which said third with intent to defraud his creditors; or
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6) In an action against a party who does not reside accompanied by the service of summons, copy of the
and is not found in the Philippines, or on whom complaint, application and affidavit of the
summons may be served by publication (Sec. 1). attachment and the bond in favor of the adverse
party.
REQUISITES F The failure to acquire jurisdiction over the person of
the adverse party shall render the implementation of
The issuance of an order/writ of execution requires the the writ void.
following:
1) The case must be any of those where preliminary Exceptions to the requirement:
attachment is proper; 1) Where the summons could not be served
2) The applicant must file a motion whether ex parte personally or by substituted service despite
or with notice and hearing; diligent efforts;
3) The applicant must show by affidavit (under oath) 2) The defendant is a resident of the Philippines
that there is no sufficient security for the claim who is temporarily out of the country;
sought to be enforced; that the amount claimed 3) The defendant is a non-resident; or
in the action is as much as the sum of which the 4) The action is one in rem or quasi in rem (Sec. 5).
order is granted above all counterclaims; and
4) The applicant must post a bond executed to the MANNER OF ATTACHING REAL AND
adverse party. PERSONAL PROPERTY
ü This is called an ATTACHMENT
BOND, which answers for all damages The sheriff enforcing the writ shall without delay and
incurred by the party against whom the with all reasonable diligence attach, to await judgment
attachment was issued and sustained by and execution in the action, only so much of the property
him by reason of the attachment. in the Philippines of the party against whom the writ is
issued, not exempt from execution, as may be sufficient
ISSUANCE AND CONTENTS OF ORDER OF to satisfy the applicant's demand.
ATTACHMENT
In attaching REAL PROPERTY, or growing crops
An order of attachment may be issued either ex parte or thereon or any interest therein, a copy of the order shall
upon motion with notice and hearing by the court in be filed with the registry of deeds along with a description
which the action is pending, or by the CA or the SC. of the property attached and by leaving a copy of such
order with the occupant of the property, if any or such
It may issue ex parte and even before the summons is other person or his agent if found within the province.
served upon the defendant. However, the writ may not be
enforced and validly implemented unless preceded or In attaching PERSONAL PROPERTY capable of
simultaneously served with the summons, a copy of the manual delivery - by taking and safely keeping it in his
complaint, application for attachment, the order of custody after issuing the corresponding receipt therefor.
attachment and the attachment bond.
As to STOCKS OR SHARES, or an interest thereon, by
AFFIDAVIT AND BOND leaving with the president or managing agent of the
company, a copy of the writ, and a notice stating that the
The order of attachment shall be granted only when it stock or interest of the party against whom the
appears by the affidavit of the applicant that the requisites attachment is issued is attached in pursuance of such writ.
for a grant of attachment are present.
DEBTS AND CREDITS, including bank deposits,
The applicant must thereafter give a bond executed to the financial interest, royalties, commissions and other
adverse party in the amount fixed by the court in its order personal property not capable of manual delivery shall be
granting the issuance of the writ, conditioned that the attached by leaving with the person owing such debts, or
latter will pay all the costs which may be adjudged to the in possession or control of such credits or other personal
adverse party and all damages which he may sustain by property, or with his agent, a copy of the writ, and notice
reason of the attachment, if the court shall finally adjudge that such properties are attached.
that the applicant was not entitled thereto
As to interest of the party against whom attachment is
RULE ON PRIOR OR CONTEMPORANEOUS issued in property BELONGING TO THE ESTATE OF
SERVICE OF SUMMONS THE DECEDENT are attached by giving a copy of the
writ and notice to the executor or administrator and the
office of the clerk of court where is the estate is being
F Enforcement of the writ or preliminary attachment
settled.
must be preceded by contemporaneously
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If the property to be attached is IN CUSTODIA LEGIS, a 2) The bond of the attaching creditor is insufficient;
copy of the writ shall be filed with the proper court or or
quasi-judicial agency, and notice of the attachment served 3) The attachment is excessive and must be
upon the custodian of such property. discharged as to the excess; or
4) The property is exempt from execution, and as
WHEN PROPERTY ATTACHED IS CLAIMED BY such is also exempt from preliminary
THIRD PERSON attachment.
ð “Improperly” (e.g. writ of attachment was not based
The third party may resort to any of the following on the grounds in Sec. 1)
remedies which are cumulative and thus could be
resorted independently and separately from the others: ð “Irregularly” (e.g. writ of attachment was executed
a) He may avail of the remedy of terceria - by without previous or contemporaneous service of
making an affidavit of his title thereto or his right summons)
to possession thereof, stating the grounds of such
right or title. The affidavit must be served upon SATISFACTION OF JUDGMENT OUT OF
the sheriff and the attaching party. The sheriff PROPERTY ATTACHED
shall not be bound to keep the property under
attachment except if the attaching party files a If judgment is rendered in favor of the attaching party and
bond approved by the court. execution issued, the sheriff may cause the judgment to
b) The third person may invoke the court’s be satisfied out of the property attached, if it be sufficient
authority in the same case and move for a for that purpose.
summary hearing on his claim to decide if the
sheriff has acted correctly or not.
c) The third party may file a separate action to PRELIMINARY INJUNCTION (RULE 58)
nullify the levy with damages resulting from the
unlawful levy and seizure. This action may be
ð Can be provisional remedy and can also an
totally distinct from the case in which the
action
attachment was issued.

HOW TO PREVENT THE ATTACHMENT DEFINITIONS AND DIFFERENCES:

PRELIMINARY INJUNCTION AND TEMPORARY
RESTRAINING ORDER
The party whose property is sought to be attached, my
prevent the attachment by doing either of two things:
1) By depositing with the court an amount equal to A preliminary injunction is an order granted at any stage
the value of the property to be attached; or of an action or proceeding prior to the judgment or final
2) By giving a counter bond executed to the order, requiring a party or a court, agency or a person to
applicant, in an amount equal to the bond posted either refrain (prohibitory) from or to perform (mandatory)
by the latter to secure the attachment. a particular act or acts during the pendency of the action.

DISCHARGE OF ATTACHMENT AND THE Temporary restraining order (TRO) is issued is an order
COUNTER-BOND to maintain the status quo between and among the parties
until the determination of the prayer for a writ of
preliminary injunction. The status quo is the last, actual,
If the attachment has already been enforced, the party
peaceable and uncontested situation which precedes a
whose property has been attached may file a MOTION to
controversy.
discharge the attachment. This motion shall be with
notice and hearing. After due notice and hearing, the
The judge may issue a TRO with a limited life of 20 days
court shall discharge the attachment if the movants makes
from date of issue. If before the expiration of the 20 day
a CASH DEPOSIT or files a COUNTER-BOND
period, the application for preliminary injunction is
executed to the attaching party with the clerk of court
denied, the TRO would be deemed automatically
where the application is made.
vacated. If no action is taken by the judge within the 20
day period, the TRO would automatically expire on the
Attachment may likewise be discharged without the need
20th day by the sheer force of law, no judicial declaration
for filing of a counter-bond. This is possible when the
to that effect being necessary.
party whose property has been attached files a motion to
set aside or discharge the attachment and during the
A writ of preliminary injunction cannot be granted
hearing of the motion, he proves that:
without notice and hearing. A TRO may be granted ex
1) The attachment was improperly or irregularly
parte if it shall appear from facts shown by affidavits or
issued or enforced; or
by the verified application that great or irreparable injury
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would result to the applicant before the matter can be INJUNCTION
heard on notice, the court in which the application for
preliminary injunction was made my issue a TRO ex 1) The applicant is entitled to the relief demanded, and
parte for a period not exceeding 20 days from service to the whole or part of such relief consists in restraining
the party sought to be enjoined. the commission or continuance of the act or acts
complained of, or in requiring the performance of an
REQUISITES act or acts either for a limited period or perpetually;
or
1) There must be a verified petition, 2) The commission, continuance or non-performance of
2) The application must establish that he has a right of the act or acts complained of during the litigation
relief or a right to be protected and that the act would probably work injustice to the applicant; or
against which the injunction is sought violates such 3) A party, court, agency or a person is doing,
right, threatening or is attempting to do, or is procuring or
3) The applicant must establish that there is a need to suffering to be done, some act or acts probably in
restrain the commission of the continuance of the violation of the rights of the applicant respecting the
acts complained of and if not enjoined would work subject of the action or proceeding, and tending to
injustice to him, render the judgment ineffectual.
4) A bond must be posted, unless otherwise exempted
by the court. GROUNDS FOR OBJECTION TO OR FOR THE
5) The threatened injury must be incapable of pecuniary DISSOLUTION OF INJUNCTION OR
estimation. RESTRAINING ORDER

KINDS OF INJUNCTION 1) Upon showing of insufficiency of the application;

2) Other grounds upon affidavit of the party or person
PROHIBITORY – its purpose is to prevent a person enjoined;
from the performance of a particular act which has not 3) Appears after hearing that irreparable damage to the
yet been performed. party or person enjoined will be caused while the
1) Preliminary – secured before the finality of applicant can be fully compensated for such damages
judgment. as he may suffer, and the party enjoined files a
2) Final – issued as a judgment, making the counter-bond;
injunction permanent. It perpetually restrains a 4) Insufficiency of the bond;
person from the continuance or commission of 5) Insufficiency of the surety or sureties.
an act and confirms the previous preliminary
injunction. It is one included in the judgment as DURATION OF TRO
the relief or part of the relief granted as a result of
the action, hence, granted only after trial and no The lifetime of a TRO is 20 days, which is non-extendible
bond is required. (AM 02-02-07-SC).

MANDATORY – its purpose is to require a person to If it is shown that the applicant would suffer great or
perform a particular positive act which has already been irreparable injury before the application for the writ of
performed and has violated the rights of another. injunction can be heard, the court may issue a temporary
a) Preliminary restraining order (TRP) ex parte which shall be effective
b) Final for a period not exceeding twenty (20) days from service
Requisites for the issuance of mandatory on the party sought to be enjoined. Within the said
preliminary injunction twenty-day period, the court must order said party to
(a) The invasion of the right is material and show cause why the injunction should not be granted,
substantial; determine within the same period whether or not the
(b) The right of a complainant is clear and preliminary injunction shall be granted, and accordingly
unmistakable; issue the corresponding order.
(c) There is an urgent and permanent necessity for
the writ to prevent serious damage. If the matter is of extreme urgency and the applicant will
suffer grave injustice and irreparable injury, the executive
WHEN WRIT MAY BE ISSUED judge of a multiple-sala court or the presiding judge of a
single sala court may issue ex parte a temporary
It may be issued at any stage prior to the judgment or restraining order effective for only seventy-two (72)
final order. hours. Within such period, the judge shall conduct a
summary hearing to determine whether the temporary
GROUNDS FOR ISSUANCE OF PRELIMINARY restraining order shall be extended to 20 days. The 72
hours shall be included in the maximum 20 day period.
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If a TRO is by the Court of Appeals or a member thereof, It is not available where

it shall be effective for sixty (60) days from notice to a) the summons could not be served personally or
service party to be enjoined. by substituted service despite diligent efforts or
b) where the adverse party is a resident of the
If a TRO is issued by the Supreme Court or a member Philippines temporarily absent therefrom or is a
thereof, it shall be effective until further orders. non-resident thereof.

BAN OF TRO OR WRIT OF INJUNCTION IN SUMMARY/STAGES OF INJUNCTION

CASES INVOLVING GOVERNMENT
INFRASTRUCTURE PROJECTS: RA 8975 (1) SEVENTY-TWO (72) HOUR TEMPORARY
RESTRAINING ORDER
No court except the SC shall issue any or preliminary a) If the matter is of extreme urgency and the
injunction or preliminary mandatory injunction against applicant will suffer grave injustice and
the government or it subdivisions, officials or any person irreparable injury;
or entity whether public or private acting under the b) Issued by executive judge of a multi-sala court or
government direction, to restrain, prohibit or compel the the presiding judge of a single-sala court;
following acts: c) Thereafter must
1) Acquisition, clearance and development of the i. Serve summons and other documents
right of way and/or site or location of any ii. Conduct summary hearing to determine
government project, whether the TRO shall be extended to
2) Bidding or awarding of a contract or project of 20 days until the application for
the national government, preliminary injunction can be heard.
3) Commencement, prosecution, execution,
implementation, operation of any such contract (2) TWENTY (20) DAY TRO
or project, a) If it shall appear from the facts shown by
4) Termination or rescission of any such affidavits or by the verified application that great
contract/project and or irreparable injury would result to the applicant
5) The undertaking or authorization of any other before the matter can be heard on notice;
lawful activity necessary for such contract or b) If application is included in initiatory pleading:
project. 1. Notice of raffle shall be preceded, or
ü Any TRO, preliminary injunction and contemporaneously accompanied, by
preliminary mandatory injunction issued in service of summons, together with a
violation of the above prohibition shall be void. copy of the complaint or initiatory
pleading and the applicant‘s affidavit
Exceptions to the prohibition: and bond, upon the adverse party in the
a) In cases of extreme urgency; Philippines;
b) If it involves constitutional issue; 2. Raffled only after notice to and in the
c) Grave injustice and irreparable injury presence of the adverse party or the
will arise unless a TRO is issued. person to be enjoined.
c) Issued with summary hearing (to determine
ü In one case, the SC said that injunction is not whether the applicant will suffer great or
available to stop infrastructure projects of the irreparable injury) within 24 hours after sheriff‘s
government including arrastre and stevedoring return of service and/or records are received by
operations. the branch selected by raffle;
d) Within 20-day period, the court must order said
RULE ON PRIOR OR CONTEMPORANEOUS person to show cause why the injunction should
SERVICE OF SUMMONS IN RELATION TO not be granted, and determine whether or not the
ATTACHMENT preliminary injunction shall be granted, and
accordingly issue the corresponding order;
When an application for a writ of preliminary injunction e) Including the original 72 hours, total effectivity
or TRO is made in a complaint or other initiatory of TRO shall:
pleading, the case, if filed in a multi-sala court, shall be 1. Not exceed 20 days, if issued by an RTC
raffled only after notice to and in the presence of the or MTC;
adverse party. In any event, such notice shall be preceded 2. Not exceed 60 days, if issued by the CA
or contemporaneously accompanied by a service of or a member thereof;
summons, together with a copy of the complaint or 3. Until further orders, if issued by the SC.
initiatory pleading and the applicant’s affidavit and bond,
upon the adverse party in the Philippines.
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f) TRO is automatically vacated upon expiration of Upon a verified application, one or more receivers of the
the period and without granting of preliminary property subject of the action or proceeding may be
injunction; appointed by the court where the action is pending or by
g) Effectivity is not extendible without need of any the Court of Appeals or by the Supreme Court, or a
judicial declaration to that effect; member thereof, in the following cases:
h) No court shall have authority to extend or renew 1. The party applying for the appointment of a
the same on the same ground for which it was receiver has an interest in the property or fund
issued. which is the subject of the action or proceeding,
and that such property or fund is in danger of
(3) PRELIMINARY INJUNCTION being lost, or materially injured unless a receiver
a) Hearing and prior notice to the party sought to be appointed to administer and preserve it;
be enjoined; 2. In an action by the mortgagee for the foreclosure
b) If application is included in initiatory pleading: of a mortgage that the property is in danger of
1. Notice of raffle shall be preceded, or being wasted or dissipated or materially injured,
contemporaneously accompanied, by and that its value is probably insufficient to
service of summons, together with a discharge the mortgage debt, or that the parties
copy of the complaint or initiatory have so stipulated in the contract of mortgage;
pleading and the applicant's affidavit 3. After judgment, to preserve the property during
and bond, upon the adverse party in the the pendency of an appeal, or to dispose of it
Philippines. according to the judgment, or to aid execution
2. Raffled only after notice to and in the when the execution has been returned unsatisfied
presence of the adverse party or the or the judgment obligor refuses to apply his
person to be enjoined property in satisfaction of the judgment, or
c) Applicant posts a bond otherwise to carry the judgment into effect;
4. Whenever in other cases it appears that the
(4) FINAL INJUNCTION appointment of a receiver is the most convenient
• Note that a bond is required only in preliminary and feasible means of preserving, administering,
injunctions, but is not required in TROs. After or disposing of the property in litigation.
lapse of the 20 day TRO, the court can still grant
a preliminary injunction. REQUISITES
• Note that irreparable injury is always a requisite
in TROs. But in the 72 hour TRO, grave injustice 1) Verified application;
must also be shown. In the 20 day TRO, the 2) Appointed by the court where the action is pending,
ground is great or irreparable injury. Without a or by the CA or by the SC, or a member thereof;
preliminary injunction, a TRO issued by the CA ð During the pendency of an appeal, the appellate
expires without necessity of court action. court may allow an application for the
appointment of a receiver to be filed in and
ð Only SC ca issue a Status Quo Order decided by the court of origin and the receiver
appointed to be subject to the control of said
court.
3) Applicant’s bond conditioned on paying the adverse
RECEIVERSHIP (RULE 59) party all damages he may sustain by the appointment
of the receiver in case the appointment is without
sufficient cause;
ð Can be applied even judgment is final and executory 4) Receiver takes his oath and files his bond.
ð Receivership is a provisional remedy wherein the
court appoints a representative to preserve, REQUIREMENTS BEFORE ISSUANCE OF AN
administer, dispose of and prevent the loss or ORDER
dissipation of the real or personal property during the
pendency of an action.
1) Before issuing the order appointing a receiver the
ð It may be the principal action itself or a mere
court shall require the applicant to file a bond
provisional remedy; it can be availed of even after the
executed to the party against whom the application is
judgment has become final and executory as it may
presented, in an amount to be fixed by the court, to
be applied for to aid execution or carry judgment into
the effect that the applicant will pay such party all
effect.
damages he may sustain by reason of the
appointment of such receiver in case the applicant
CASES WHEN RECEIVER MAY BE APPOINTED
shall have procured such appointment without
sufficient cause; and
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2) The court may, in its discretion, at any time after the
appointment, require an additional bond as further REPLEVIN (RULE 60)
security for such damages.

GENERAL POWERS OF A RECEIVER It is a proceeding by which the owner or one who has a
general or special property in the thing taken or detained
seeks to recover possession in specie, the recovery of
1) To bring and defend, in such capacity, actions in his
damages being only incidental.
own name
2) To take and keep possession of the property in
Replevin may be a main action or a provisional remedy.
controversy
As a principal action its ultimate goal is to recover
3) To receive rents
personal property capable of manual delivery wrongfully
4) To collect debts due to himself as receiver or to the
detained by a person. Used in this sense, it is a suit in
fund, property, estate, person, or corporation of
itself.
which he is the receiver
5) To compound for and compromise the same
It is a provisional remedy in the nature of possessory
6) To make transfer
action and the applicant who seeks immediate possession
7) To pay outstanding debts
of the property involved need not be the holder of the
8) To divide the money and other property that shall
legal title thereto. It is sufficient that he is entitled to
remain among the persons legally entitled to receive
possession thereof.
the same
9) To do such acts respecting the property as the court
WHEN MAY WRIT BE ISSUED
may authorize.
10) However, funds in the hands of a receiver may be
invested only by order of the court upon the written a) The provisional remedy of replevin can only be
consent of all the parties to the action. No action may applied for before answer.
be filed by or against a receiver without leave of the b) A party praying for the recovery of possession of
court which appointed him. personal property may, at the commencement of the
action or at any time before answer, apply for an
TWO (2) KINDS OF BONDS order for the delivery of such property to him.

REQUISITES
1) Applicant’s Bond (for appointment of receiver) – To
pay the damages the adverse party may sustain by
The applicant must show by his own affidavit or that of
reason of appointment of receiver; and
some other person who personally knows the facts:
2) Receiver’s Bond (of the appointed receiver, aside
1) A party praying for the provisional remedy must
from oath) – To answer for receiver’s faithful
file an application for a writ of replevin. His
discharge of his duties.
application must be filed at the commencement
3) Counter Bond
of the action or at any time before the defendant
answers, and must contain an affidavit
TERMINATION OF RECEIVERSHIP particularly describing the property to which he
entitled of possession.
Whenever the court, motu proprio or on motion of either 2) The affidavit must state that the property is
party, shall determine that the necessity for a receiver no wrongfully detained by the adverse party,
longer exists, it shall, after due notice to all interested alleging therein the cause of the detention. It
parties and hearing, settle the accounts of the receiver, must also state that the property has not been
direct the delivery of the funds and other property in his destrained or taken for tax assessment or a fine
possession to the person adjudged to be entitled to receive pursuant to law, or seized under a writ of
them, and order the discharge of the receiver from further execution or preliminary attachment, or
duty as such. otherwise placed in custodia legis. If it has been
seized, then the affidavit must state that it is
The court shall allow the receiver such reasonable exempt from such seizure or custody.
compensation as the circumstances of the case warrant, to 3) The affidavit must state the actual market value
be taxed as costs against the defeated party, or of the property; and
apportioned, as justice requires. 4) The applicant must give a bond, executed to the
adverse party and double the value of the
Receivership shall also be terminated when: property.
a) its continuance is not justified by the facts and
circumstances of the case; or AFFIDAVIT AND BOND; REDELIVERY BOND
b) court is convinced that the powers are abused.
 2011  Bar  Examinations   82  
BERT  –  NOTES  in  REMEDIAL  LAW  
 
Affidavit, alleging: applicant UNLESS the applicant on demand of said
a) That the applicant is the owner of property sheriff, shall file a bond approved by the court to
claimed, describing it or entitled to its possession; indemnify the third-party claimant in the sum not less
b) That the property is wrongfully detained by the than the value of the property.
adverse party, alleging cause of its detention;
c) That the property has not been distrained or The sheriff shall not be liable for damages, for the taking
taken for tax assessment or fine or under writ of or keeping of such property, to any such third-party
execution/attachment or placed under custodia claimant if such bond shall be filed.
legis or if seized, that it is exempt or should be
released; and
d) The actual market value of the property.

Bond, which must be double the value of property, to SPECIAL CIVIL ACTIONS (Rules 62 – 71)
answer for the return of property if adjudged and pay for
such sum as he may recover from the applicant.

It is required that the redelivery bond be filed within the NATURE OF SPECIAL CIVIL ACTIONS
period of 5 days after the taking of the property. The rule
is MANDATORY. Special civil actions are basically ordinary civil
proceedings; what makes them special are the distinct
SHERIFF’S DUTY IN THE IMPLEMENTATION OF peculiarities inherent in their very nature not found in
THE WRIT; WHEN PROPERTY IS CLAIMED BY ordinary civil actions.
THIRD PARTY
They are actions in themselves, but possessing special
Upon receiving such order, the sheriff must serve a copy matters that required special procedures. For this reason,
on the adverse party, together with a copy of the these proceedings are classified as special civil actions.
application, affidavit and bond, and must take the
property and retain it in his custody. Sec. 1, Rule 62 provides that rules provided for ordinary
civil actions are applicable in special civil proceedings,
If the property be concealed in a building or enclosure, which are not inconsistent with or may serve to
the sheriff must demand its delivery, and if it be not supplement the provisions of the rules relating to such
delivered, he must cause the building or enclosure to be special civil actions.
broken open and take the property into his possession.
ORDINARY CIVIL ACTIONS VERSUS SPECIAL
If within five (5) days after the taking of the property by CIVIL ACTIONS
the sheriff, the adverse party does not object to the
sufficiency of the bond or if the adverse party so objects Although both types of actions are governed by the rules
and the court affirms its approval of the applicant's bond for ordinary civil actions, there are certain rules that are
or approves a new bond, or if the adverse party requires applicable only to specific special civil actions. The fact
the return of the property but his bond is objected to and that an action is subject to special rules other than those
found insufficient and he does not file an approved bond, applicable to ordinary civil actions is what makes a civil
the property shall be delivered to the applicant. action special.

If for any reason the property is not delivered to the An ordinary civil action must be based on a CAUSE OF
applicant, the sheriff must return it to the adverse party. ACTION. This means that the defendant must have
performed an act or omitted to do an act in violation of
A 3rd party claimant may vindicate his claim to the the rights of another. These definitions do not fit the
property, and the applicant may claim damages against requirements of a cause of action in certain special civil
such 3rd party, in the same or separate action. actions.

A claim on the indemnity bond should be filed within 120 ü The cause of action as defined and required of an
days from posting of such bond. ordinary civil action finds no application to the
special civil action of declaratory relief. It finds no
If the property taken is claimed by a third person and application also in a complaint for interpleader. In
make an affidavit of his title or right to the possession this action, the plaintiff may file a complaint even if
thereof and serves such affidavit upon the sheriff while he has sustained no actual transgression of his rights.
the latter has possession of the property and a copy In fact, he actually has no interest in the subject
thereof upon the applicant, the sheriff shall not be bound matter of the action. This is not so in an ordinary
to keep the property under replevin or deliver it to the civil action.