JURISTS BAR REVIEW CENTER™ January 9, 2013, 688 SCRA 330,

POINTERS ON PROVISIONAL 340)

REMEDIES & SPECIAL CIVIL
ACTIONS The ancillary nature of provisional
ATTY. VOLTAIRE T. DUANO, LL.M. remedies means that they are
SSC-R Law: Ll.B. Valedictorian; adjunct to the main suit.
SSC-R Graduate School of Law: (Philippine National Bank v. Court
Benemeritus (Magna Cum Laude ) of Appeals, 353 Phil. 473, 479
[1998]) Consequently, it is not
uncommon that the issues in the
I. PROVISIONAL REMEDIES main action are closely
intertwined, if not identical, to the
A. Nature, purpose, and allegations and counter-
jurisdiction over provisional allegations of the opposing
remedies parties in support of their contrary
positions concerning the propriety
or impropriety of the provisional
Concept of provisional and ancillary relief. (Hutchison Ports Phil. Ltd.
remedies, purpose v. Subic Bay Metropolitan
Authority, et al., 393 Phil. 843,
GMA Network, Inc. v. National 859 [2000])
Telecommunications Commission, G.R.
No. 181789, February 03, 2016
explained the concept of provisional Jurisdiction on preliminary
reliefs or remedies as follows: attachment

Provisional reliefs or remedies 1. The courts which grants or issues

are writs and processes that are a provisional remedy is the court which
available during the pendency of has jurisdiction over the main action.
the action. (V. Francisco, The Even an inferior court may grant a
Revised Rules of Court in the provisional remedy in an action pending
Philippines: Provisional with it and within its jurisdiction. The
Remedies, p. 1 [1985]) A litigant court where the case is pending could
may avail of provisional remedies be the Municipal Courts (MeTC, MTC
to preserve and protect certain and MCTC) and the Regional Trial
rights and interests pending the Courts or the Supreme Court under
issuance of the final judgment in Section 1, Rule 45.
the case. (Ibid.) These remedies
are provisional because they are
temporary measures availed of 2. Jurisdiction of MeTC, MTC and
during the pendency of the MCTC on provisional remedies
action; they are ancillary because
they are mere incidents in and The jurisdiction of Metropolitan
are dependent on the result of Trial Courts, Municipal Trial
the main action. (Calderon v. Courts and Municipal Circuit Trial
Roxas, et al., G.R. No. 185595, Courts involving provisional

Page 1 of 113
remedies is supported by Batas That where there are
Pambansa Blg. 129, as amended several claims or causes
by Republic Act No. 7691, as of actions between the
follows: same or different parties,
embodied in the same
Sec. 33. Jurisdiction of complaint, the amount of
Metropolitan Trial Courts, the demand shall be the
Municipal Trial Courts and totality of the claims in all
Municipal Circuit Trial Courts in the causes of action,
Civil Cases.—Metropolitan Trial irrespective of whether the
Courts, Municipal Trial Courts, causes of action arose out
and Municipal Circuit Trial Courts of the same or different
shall exercise: transactions; (as amended
by Sections 3 and 5 of RA
(1) Exclusive original 7691)
jurisdiction over civil
actions and probate
proceedings, testate and 3. The Supreme Court
intestate, including the
grant of provisional A party desiring to appeal by certiorari
remedies in proper cases, from a judgment or final order or
where the value of the resolution of the Court of Appeals, the
personal property, estate, Sandiganbayan, the Court of Tax
or amount of the demand Appeals, the Regional Trial Court or
does not exceed Three other courts whenever authorized by
hundred thousand pesos law, may file with the Supreme Court a
(P300,000.00) or, in Metro verified petition for review on certiorari.
Manila where such The petition may include an application
personal property, estate, for a writ of preliminary injunction or
or amount of the demand other provisional remedies and shall
does not exceed Four raise only questions of law which must
hundred thousand pesos be distinctly set forth. The petitioner may
(P400,000.00), exclusive seek the same provisional remedies by
of interest, damages of verified motion filed in the same action
whatever kind, attorney‟s or proceeding at anytime during its
fees, litigation expenses, pendency, (Section1, Rule 45 as
and costs, the amount of amended by A.M. No. 07- 7-12-sc,
which must be specifically December 12, 2007)
alleged: Provided, That
interest, damages of
whatever kind, attorney‟s
fees, litigation expenses,
and costs shall be
included in the
determination of the filing
fees: Provided, further,

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B. PROVISIONAL REMEDIES

As provided under the Rules of Court,

the following are the five (5) provisional
remedies:

1. Preliminary attachment under

Rule 57
2. Preliminary Injunction under
Rule 58
3. Receivership under Rule 59
4. Delivery of personal property
or Replevin under Rule 60
5. Support pendente lite under
Rule 61

Page 3 of 113
1. PRELIMINARY ATTACHMENT 1.3 Two-fold purpose of
attachment according to
jurisprudence
1.1 Preliminary attachment,
defined Two-fold purpose of attachment

In Tsuneishi Heavy Industries (CEBU), The purposes of preliminary attachment

Inc. v. MIS Maritime Corporation, G. R. are:
No. 193572, April 4, 2018 explained the
concept as: A writ of preliminary
(1) to seize the property of the
attachment is a provisional remedy
debtor in advance of final
issued by a court where an action is
judgment and to hold it for
pending. In simple terms, a writ of
purposes of satisfying said
preliminary attachment allows the levy
judgment, as in the grounds
of a property which shall then be held by
stated in paragraphs (a) to (e)
the sheriff. This property will stand as
of Section 1, Rule 57 of the
security for the satisfaction of the
Rules of Court; or
judgment that the court may render in
(2) to acquire jurisdiction over the
favor of the attaching party.
action by actual or
constructive seizure of the
property in those instances
1.2 Writ of attachment, defined
where personal or substituted
service of summons on the
Specifically, attachment is a juridical
defendant cannot be effected,
institution intended to secure the
as in paragraph (f) of the
outcome of the trial, i.e., the satisfaction
same provision.” (Philippine
of the pecuniary obligation really
Commercial International
contracted by a person or believed to
Bank v. Alejandro, G.R. No.
have been contracted by him, either by
175587, September 21, 2007,
virtue of a civil obligation emanating
533 SCRA 738, 751-752)
from contract or from law, or by virtue of
some crime or misdemeanor that he
might have committed. It is enforced 1.4 Grounds upon which
through a writ which is the process attachment may issue
issued at the institution or during the
progress of an action commanding the Grounds upon which attachment may
sheriff or other proper officer to attach issue. — At the commencement of the
property, rights, credits, or effects of action or at any time before entry of
defendant to satisfy the demand of the judgment, a plaintiff or any proper party
plaintiff. [Italics ours supplied] (Sta. Ines may have the property of the adverse
Melale Forest Products Corporation v. party attached as security for the
Macaraig, Jr., 299 SCRA 491, 515 satisfaction of any judgment that may be
[1998]) recovered in the following cases:

a) In an action for the recovery of a

specified amount of money or

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 damages, other than moral and 1.5 When to issue an order
exemplary, on a cause of action granting the issuance of writ of
arising from law, contract, quasi- attachment
contract, delict or quasi-delict
against a party who is about to When to issue order of attachment
depart from the Philippines with
intent to defraud his creditors; An order of attachment may be issued
b) In an action for money or either:
property embezzled or
fraudulently misapplied or
converted to his own use by a 1. ex parte; or
public officer, or an officer of a 2. upon motion with notice and
corporation, or an attorney, hearing. (Section 2, Rule 57)
factor, broker, agent, or clerk, in
the course of his employment as
such, or by any other person in a
fiduciary capacity, or for a willful 1.6 Rule on ex-parte issuance of
violation of duty; writ of attachment
c) In an action to recover the
possession of property unjustly or
fraudulently taken, detained or The case of Davao Light and Power,
converted, when the property, or Co., Inc. v. Court of Appeals, G.R. No.
any part thereof, has been 93262, November 29, 1991, 204 SCRA
concealed, removed, or disposed 343, laid down the rules on the issuance
of to prevent its being found or of writ of attachment ex-parte:
taken by the applicant or an
authorized person; “x x x
d) In an action against a party who
has been guilty of a fraud in Rule 57 in fact speaks of the grant of the
contracting the debt or incurring remedy “at the commencement of the
the obligation upon which the action or at any time thereafter.” The
action is brought, or in the phrase, “at the commencement of the
performance thereof; action,” obviously refers to the date of
e) In an action against a party who the filing of the complaint — which, as
has removed or disposed of his above pointed out, is the date that
property, or is about to do so, marks “the commencement of the
with intent to defraud his action;” and the reference plainly is to a
creditors; or time before summons is served on the
f) In an action against a party who defendant, or even before summons
does not reside and is not found issues.
in the Philippines, or on whom
summons may be served by What the rule is saying quite clearly is
publication. (Section1, Rule 57) that after an action is properly
commenced — by the filing of the
complaint and the payment of all
requisite docket and other fees — the

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plaintiff may apply for and obtain a writ
of preliminary attachment upon
fulfillment of the pertinent requisites laid
down by law, and that he may do so at 1.7 Rules to dissolve or discharge
any time, either before or after service of a preliminary attachment or
summons on the defendant. And this garnishment
indeed, has been the immemorial
practice sanctioned by the courts: for The following are the rules on how to
the plaintiff or other proper party to dissolve or discharge a preliminary
incorporate the application for attachment or garnishment:
attachment in the complaint or other
appropriate pleading (counter-claim,
cross-claim, third- party claim) and for a) the debtor has made the requisite
the Trial Court to issue the writ ex-parte cash deposit or has posted a
at the commencement of the action if it counter-bond or; (Rules of Court,
finds the application otherwise sufficient Rule 57, Sections 2, 5 and 12)
in form and substance. b) the attachment was improperly or
irregularly issued (Rules of Court,
. . . The only pre-requisite is that the Rule 57, Sec. 13) as where there
Court be satisfied, upon consideration of is no ground for attachment, or
“the affidavit of the applicant or of some the affidavit and/or bond filed
other person who personally knows the therefor are defective or
facts, that a sufficient cause of action insufficient;
exists, that the case is one of those c) the attachment is excessive, but
mentioned in Section 1 (Rule 57), that the discharge shall be limited to
there is no other sufficient security for the excess; (Rules of Court, Rule
the claim sought to be enforced by the 57, Sec. 13)
action, and that the amount due to the d) the property attachment is
applicant, or the value of the property exempt from preliminary
the possession of which he is entitled to attachment; (Rules of Court, Rule
recover, is as much as the sum for 57, Sections 2 and 5) or
which the order (of attachment) is e) the judgment is rendered against
granted above all legal counterclaims.” If the attaching creditor. (Rules of
the court be so satisfied, the “order of Court, Rule 57, Sec. 19)
attachment shall be granted,” and the
writ shall issue upon the applicant‟s
posting of “a bond executed to the 1.8 Property in custodia legis can
adverse party in an amount to be fixed be attached
by the judge, not exceeding the
plaintiff‟s claim, conditioned that the The provisions of the Rules of Court,
latter will pay all the costs which may be specifically last paragraph of Section 7,
adjudged to the adverse party and all Rule 57, provides for the procedure to
damages which he may sustain by be followed in case what is attached is
reason of the attachment, if the court in custodia legis. Thus, it is clear that
shall finally adjudge that the applicant property under custodia legis is now
was not entitled thereto.” attachable, subject to the mode set forth

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in said rule. The last paragraph of the litigation. (National Power
said provision provides as follows: Corporation v. Philippine
Commercial and Industrial
If the property sought to be attached is Bank, G. R. No. 171176,
in custodia legis, a copy of the writ of September 4, 2009, 598
attachment shall be filed with the proper SCRA 326, 336)
court or quasi-judicial agency, and 2. Levy on execution — It is a
notice of the attachment served upon writ issued by a court after
the custodian of such property. (Section judgment by which the
7(e), Rule 57) property of the defendant is
taken into the custody of the
court for the satisfaction of a
1.9 Distinction between judgment that the plaintiff has
garnishment and attachment secured from the court.
3. Warrant of seizure — It is an
Garnishment has been defined as a order issued by a court
specie of attachment for reaching commanding the sheriff to
credits belonging to the judgment debtor take possession of the
and owing to him from a stranger to the personal property, subject
litigation. (National Power Corporation v. matter of the action, alleged to
Philippine Commercial and Industrial be wrongfully detained by
Bank, G. R. No. 171176, September 4, defendant.
2009, 598 SCRA 326, 336) A writ of 4. Warrant of distraint and
attachment is substantially a writ of levy — This is a writ issued
execution except that it emanates at the by any of the quasi-judicial
beginning, instead of at the termination, bodies like the Social Security
of a suit. It places the attached Commission or the Bureau of
properties in custodia legis, obtaining Internal Revenue, against the
pendente lite a lien until the judgment of properties of a person for its
the proper tribunal on the plaintiff‟s failure to remit the premiums
claim is established, when the lien of its employees covered by
becomes effective as of the date of the the Social Security Act, or for
levy. (Santos v. Aquino, Jr., G. R. Nos. failure of a property owner to
86181-82, January 13, 1992, 205 SCRA pay his income or property
127, 133-134) taxes.

1.10 Other species of attachment 1.11 Proceedings where property

claimed by third person

1. Garnishment - has been

defined as a specie of Rule on third party claim
attachment for reaching
credits belonging to the Under Section 14, Rule 57, the remedy
judgment debtor and owing to of a third person claiming to be the
him from a stranger to the owner of an attached property are

Page 7 of 113
limited to the following: (1) filing with the (4) the action is one in rem or
Sheriff a third-party claim, in the form of quasi in rem. (last paragraph
an affidavit, per the first paragraph of Section 5, Rule 57)
Section 14; (2) intervening in the main
action, with prior leave of court, per the
second paragraph of Section 14, which
allows a third person to vindicate his/her 1.13 Procedure to claim for
claim to the attached property in the damages due to improper, irregular
“same x x x action”; and (3) filing a or excessive attachment
separate and independent action, per
the second paragraph of Section 14, Procedure to claim damages on account
which allows a third person to vindicate of improper, irregular or excessive
his/her claim to the attached property in attachment
a “separate action.” (first sentence,
Section 14, Rule 57)
a. When to apply for damages
1.12 Prior or contemporaneous before the trial court
service of summons is required
before levy on attachment The application for damages the against
attaching party and his surety or
No levy on attachment pursuant to the sureties on account of improper,
writ issued under section 2 hereof shall irregular or excessive attachment must
be enforced unless it is preceded, or be filed: (1) before the trial; or (2) before
contemporaneously accompanied, by appeal is perfected; or (3) before the
service of summons, together with a judgment becomes executory; and (4)
copy of the complaint, the application for with due notice to the attaching party
attachment, the applicant’s affidavit and and his surety or sureties setting forth
bond, and the order and writ of the facts showing his right to damages
attachment, on the defendant within the and the amount thereof. (first paragraph,
Philippines. (Section 5, Rule 57) Section 20, Rule 57)

The requirement of prior or

Effect if bond or deposit is insufficient or
contemporaneous service of summons
fail to satisfy award
shall not apply in four instances:
Should the bond or deposit given by the
(1) where the summons could not attaching party be insufficient or fail to
be served personally or by fully satisfy the award nothing shall
substituted service despite prevent the party against whom the
diligent efforts, or attachment was issued from recovering
(2) the defendant is a resident of in the same action the damages
the Philippines temporarily awarded to him from any property of the
absent therefrom, or attaching party not exempt from
(3) the defendant is a non- execution. (last paragraph, Section 20,
resident of the Philippines, or Rule 57)

Page 8 of 113
 In Rivera v. Talavera, G. R. Nos.
L-16280 and L-16805, May 30,
When can the trial court award 1961, the Supreme Court held:
damages and where included xxx. 2) That where such
application is seasonably made
The court may award damages only to the appellate court, the latter
after proper hearing and included in the must either proceed to hear and
judgment on the main case. (first decide the application or refer the
paragraph, second sentence, Section application to the trial court and
20, Rule 57) allow it to hear and decide the
same;”

b. When to apply for damages

before the appellate court
1.14 Party against whom
If the judgment of the appellate court be attachment was issued is entitled to
favorable to the party against whom the damages even if judgment is against
attachment was issued he must claim him
damages sustained during the
pendency of the appeal. (second In interpreting Section 20, Rule 57, the
paragraph, Section 20, Rule 57) Supreme Court in the case of Zaragoza
v. Fidelino, G. R. No. L- 29723, July 14,
1988, held that damages may be had by
the party thus prejudiced by the
How to claim damages before the wrongful attachment, even if the
appellate court judgment be adverse to him. The Court
said:
By filing an application in the appellate
court, with notice to the party in whose “It thus sums indeed that the first
favor the attachment was issued or his sentence of Section 20 precludes
surety or sureties before the judgment of recovery of damages by a party
the appellate court becomes executory. against whom an attachment is
(second paragraph, Section 20, Rule issued and enforced if the
57) judgment be adverse to him. This
is not however correct. Although
a party be adjudged liable to
When trial court to hear and decide another, if it be established that
claim for damages filed before appellate the attachment issued at the
court latter‟s instance was wrongful
and the former had suffered
The appellate court may allow the injury thereby, recovery for
application to be heard and decided by damages may be had by the
the trial court. (second paragraph, party thus prejudiced by the
second sentence, Section 20, Rule 57) wrongful attachment, even if the
judgment be adverse to him.
Slight reflection will show the

Page 9 of 113
validity of this proposition. For it
is entirely possible for a plaintiff
to have a meritorious cause of
action against a defendant but
have no proper ground for a
preliminary attachment. In such a
case, if the plaintiff nevertheless
applies for and somehow
succeeds in obtaining an
attachment, but is subsequently
declared by final judgment as not
entitled thereto, and the
defendant shows that he has
suffered damages by reason of
the attachment, there can be no
gainsaying that indemnification is
justly due the latter.”

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2. PRELIMINARY INJUNCTION distinctions between the main action for
injunction from the provisional or
ancillary remedy of preliminary
A preliminary injunction is an order injunction as follows:
granted at any stage of an action or
proceeding prior to the judgment or final “Injunction is a judicial writ,
order requiring a party or a court, process or proceeding whereby a
agency or a person to refrain from a party is ordered to do or refrain
particular act or acts. It may also require from doing a certain act. It may
the performance of a particular act or be the main action or merely a
acts, in which case it shall be known as provisional remedy for and as an
a preliminary mandatory injunction. incident in the main action. The
(Section 1, Rule 58) Court has distinguished the main
action for injunction from the
provisional or ancillary remedy of
preliminary injunction, thus:
2.1 Kinds of injunction
The main action for injunction is
There are generally two kinds of distinct from the provisional or
preliminary injunction: (1) a prohibitory ancillary remedy of preliminary
injunction which commands a party to injunction which cannot exist
refrain from doing a particular act; and except only as part or an incident
(2) a mandatory injunction which of an independent action or
commands the performance of some proceeding. As a matter of
positive act to correct a wrong in the course, in an action for injunction,
past. (Levi Strauss & Co. v. Clinton the auxiliary remedy of
Apparelle, Inc., G.R. No. 138900, 20 preliminary injunction, whether
September 2005, 470 SCRA 236, 252) prohibitory or mandatory, may
issue. Under the law, the main
While a final injunction under Section 9, action for injunction seeks a
Rule 58 is one issued by the court after judgment embodying a final
the trial of the action perpetually injunction which is distinct from,
restraining the party or person enjoined and should not be confused with,
from the commission or continuance of the provisional remedy of
the act or acts of confirming the preliminary injunction, the sole
preliminary mandatory injunction. object of which is to preserve the
status quo until the merits can be
heard. A preliminary injunction is
2.2 Distinctions between the main granted at any stage of an action
action for injunction from provisional or proceeding prior to the
or ancillary remedy of preliminary judgment or final order. It persists
injunction until it is dissolved or until the
termination of the action without
The case of Garayblas v. Atienza, Jr., the court issuing a final
G.R. No. 149493, June 22, 2006, 492 injunction.” (492 SCRA 217-218)
SCRA 202 is instructive as to the

Page 11 of 113
 proceeding. As a matter of course, in an
2.3 Distinctions between action for injunction, the auxiliary
preliminary injunction and final remedy of preliminary injunction,
injunction whether prohibitory or mandatory, may
issue. Under the present state of the
law, the main action of injunction seeks
The distinctions between preliminary a judgment embodying a final injunction
injunction and final injunction has been which is distinct from, and should not be
laid down in Urbanes, Jr. v. Court of confused with the provisional remedy of
Appeals, G.R. No. 117964, March 28, preliminary injunction, the sole object of
2001 as follows: which is to preserve the status quo until
the merits can be heard. (Manila
“Rule 58 of the Rules of Court provides Banking Corporation v. Court of
for both preliminary and permanent Appeals, 187 SCRA 138 [1998])
injunction. A preliminary injunction is
defined in Section 1 thereof as:
A writ of preliminary injunction is
“(A)n order granted at any stage generally based solely on initial and
of an action prior to the judgment incomplete evidence. The evidence
or final order, requiring a party or submitted during the hearing on an
a court, agency or a person to application for a writ of preliminary
refrain from a particular act or injunction is not conclusive or complete
acts.” for only a “sampling” is needed to give
the trial court an idea of the justification
On the other hand, Section 9 of for the preliminary injunction pending
the same rule defines a the decision of the case on the merits.
permanent injunction in this wise: (Olalia v. Hizon, 196 SCRA 665 [1991])
As such, the findings of fact and opinion
“x x x. If after the trial of the of a court when issuing the writ of
action it appears that the preliminary injunction are interlocutory in
applicant is entitled to have the nature and made even before the trial
act or acts complained of on the merits is commenced or
permanently enjoined, the court terminated. There are vital facts that
shall grant a final injunction have yet to be presented during the trial
perpetually restraining the party which may not be obtained or presented
or person enjoined from the during the hearing on the application for
commission or continuance of the the injunctive writ. The trial court needs
act or acts or confirming the to conduct substantial proceedings in
preliminary mandatory order to put the main controversy to
injunction.” rest. (Sto. Tomas University Hospital v.
Surla, 294 SCRA 382 [1998]) It does not
By their very definitions, the action for necessarily proceed that when a writ of
injunction is distinct from the ancillary preliminary injunction is issued, a final
remedy of preliminary injunction which injunction will follow.” (La Vista Asso.,
cannot exist except only as part or an Inc. v. Court of Appeals, 278 SCRA 498
incident of an independent action or [1997])

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2.4 Grounds for issuance of
preliminary injunction 2. Well-settled is the rule that an
injunction cannot be issued to
A preliminary injunction may be granted transfer possession or control of
when it is established: a property to another when the
legal title is in dispute between
the parties and the legal title has
a) That the applicant is entitled to not been clearly established.
the relief demanded, and the (Cortez-Estrada v. Heirs of
whole or part of such relief Samut, 491 Phil. 458 [2005];
consists in restraining the Borbajo v. Hidden View
commission or continuance of the Homeowners, Inc., 490 Phil. 724
act or acts complained of, or in [2005])
requiring the performance of an
act or acts either for a limited
period or perpetually; 3. Also in The Heirs of the Late
b) That the commission, Spouses Laura T Yadno and
continuance or non-performance Pugsong Mat-an versus Heirs of
of the act or acts complained of the Late Spouses Mauro and
during the litigation would Elisa Anchales, G.R. No. 174582,
probably work injustice to the October 11, 2012, it was held:
applicant; or “The long standing doctrine is
c) That a party, court, agency or a that no court has the power to
person is doing, threatening, or is interfere by injunction with the
attempting to do, or is procuring judgments or decrees of a court
or suffering to be done some act of concurrent or coordinate
or acts probably in violation of the jurisdiction. The various trial
rights of the applicant respecting courts of a province or city,
the subject of the action or having the same or equal
proceeding, and tending to authority, should not, cannot, and
render the judgment ineffectual. are not permitted to interfere with
(Section 3, Rule 58) their respective cases, much less
with their orders or judgments. A
contrary rule would obviously
2.5 When injunction is not allowed lead to confusion and seriously
hamper the administration of
The injunction is not allowed in the justice.
following cases:

4. The existence of a right to be

1. Prohibition against protected by the injunctive relief
TRO/injunction on freeze order is indispensable. In City
except issued by the Supreme Government of Butuan v.
Court as provided in the third Consolidated Broadcasting
paragraph of Section 10 of RA System (CBS), Inc., G.R. No.
9160, as amended by RA 10365; 157315, December 1, 2010, 636
Page 13 of 113
SCRA 320 the Court elaborated means a right clearly
on this requirement, viz: founded on or granted by
law or is enforceable as a
matter of law. (City
As with all equitable Government of Butuan v.
remedies, injunction must Consolidated Broadcasting
be issued only at the System (BS), Inc., G.R.
instance of a party who No. 157315, December 1,
possesses sufficient 2010, 636 SCRA 320,
interest in or title to the 336-337) [Bold emphasis
right or the property supplied])
sought to be protected. It
is proper only when the
applicant appears to be 5. njunction is likewise prohibited
entitled to the relief under Sections 55 and 68 of
demanded in the Republic Act No. 6657 known as
complaint, which must the Comprehensive Agrarian
aver the existence of the Reform Law of 1998;
right and the violation of
the right, or whose 6. Although the general rule is to the
averments must in the effect that a writ of preliminary
minimum constitute a injunction cannot be issued
prima facie showing of a against acts already fait
right to the final relief accompli, (Philippine National
sought. Accordingly, the Bank v. Court of Appeals, 353
conditions for the issuance Phil. 473, 479 [1998])
of the injunctive writ are:
(a) that the right to be 7. Angeles City v. Angeles City
protected exists prima Electric Corporation, G.R. No.
facie; (b) that the act 166134, June 29, 2010: A
sought to be enjoined is principle deeply embedded in our
violative of that right; and jurisprudence is that taxes being
(c) that there is an urgent the lifeblood of the government
and paramount necessity should be collected promptly,
for the writ to prevent (Filipino Metals Corp. v.
serious damage. An Secretary of the Dept. of Trade
injunction will not issue to and Industry, 502 Phil. 191, 198
protect a right not in esse, (2005)) without unnecessary
or a right which is merely hindrance (Republic v. Caguioa,
contingent and may never G.R. No. 168584, October 15,
arise; or to restrain an act 2007, 536 SCRA 193, 223-224)
which does not give rise to or delay. (Valley Trading Co., Inc.
a cause of action; or to v. Court of First Instance of
prevent the perpetration of Isabela, Branch II, supra at 500)
an act prohibited by In line with this principle, the
statute. Indeed, a right, to National Internal Revenue Code
be protected by injunction, of 1997 (NIRC) expressly

Page 14 of 113
 provides that no court shall have In resolving the issue of whether or not
the authority to grant an the CA erred in finding no grave abuse
injunction to restrain the of discretion on the part of the RTC
collection of any national internal when it granted the respondents‟
revenue tax, fee or charge application for the issuance of a writ of
imposed by the code. preliminary injunction, the Supreme
(NATIONAL INTERNAL Court in Philippine National Bank v.
REVENUE CODE OF 1997, Castalloy Technology Corporation, G.R.
Section 218) An exception to this No. 178367, March 19, 2012 said:
rule obtains only when in the
opinion of the Court of Tax xxx
Appeals (CTA) the collection
thereof may jeopardize the Further to this, the Court‟s intent
interest of the government and/or to depart from the broad
the taxpayer. (Section 11 of RA application of the Almeda ruling
1125, as amended by Section 9 to foreclosure proceedings is
of RA 9282) clear from its issuance on
8. Decision of Ombudsman in February 20, 2007 of an En Banc
administrative cases is Resolution in A.M. No. 99-10-05-
immediately executory as held in 0, Re: Procedure in Extrajudicial
the case of Facura v. Court of or Judicial Foreclosure of Real
Appeals, G.R. No. 166495, Estate Mortgages. The resolution
February 16, 2011: The issue of embodies the additional
whether or not an appeal of the guidelines intended to aid courts
Ombudsman decision in an in foreclosure proceedings,
administrative case carries with it specifically limiting the instances,
the immediate suspension of the and citing the conditions, when a
imposed penalty has been laid to writ against foreclosure of a
rest in the recent resolution of the mortgage may be issued, to wit:
case of Ombudsman v.
Samaniego, G.R. No. 175573,
October 5, 2010, where this o No temporary restraining order or
Court held that the decision of the writ of preliminary injunction
Ombudsman is immediately against the extrajudicial
executory pending appeal and foreclosure of real estate
may not be stayed by the filing of mortgage shall be issued on the
an appeal or the issuance of an allegation that the loan secured
injunctive writ; by the mortgage has been paid or
is not delinquent unless the
9. Injunction against extrajudicial application is verified and
foreclosure in accordance with supported by evidence of
Resolution in A.M. No. 99-10-05- payment.
0, Re: Procedure in Extrajudicial o No temporary restraining order or
or Judicial Foreclosure of Real writ of preliminary injunction
Estate Mortgages against the extrajudicial
foreclosure of real estate
mortgage shall be issued on the

Page 15 of 113
 allegation that the interest on the payment, there is even more reason for
loan is unconscionable, unless a court not to issue an injunctive writ
the debtor pays the mortgagee at when the debtors or mortgagors readily
least twelve percent per annum admit default in the payment of the
interest on the principal obligation secured loan, as in this case.
as stated in the application for
foreclosure sale, which shall be
updated monthly while the case
is pending. 10. SEC. 10. Prohibition against
o Where a writ of preliminary temporary restraining order
(TRO) and preliminary injunction.
injunction has been issued
—Except the Supreme Court, no
against a foreclosure of
court can issue a TRO or writ of
mortgage, the disposition of the
preliminary injunction against
case shall be speedily resolved.
lawful actions of government
To this end, the court concerned
agencies that enforce
shall submit to the Supreme
environmental laws or prevent
Court, through the Office of the
violations thereof. (A.M. No. 09-6-
Court Administrator, quarterly
8-SC, Rules of Procedure for
reports on the progress of the
Environmental Cases)
cases involving ten million pesos
and above.
11. Under Rule 3.18. (B) of A.M. No.
o All requirements and restrictions
07-11-08-SC, the Special Rules
prescribed for the issuance of a of Court on Alternative Dispute
temporary restraining order/writ Resolution, provides: No
of preliminary injunction, such as injunction of arbitration
the posting of a bond, which shall proceedings.—The court shall not
be equal to the amount of the enjoin the arbitration proceedings
outstanding debt, and the time during the pendency of the
limitation for its effectivity, shall petition. Judicial recourse to the
apply as well to a status quo court shall not prevent the arbitral
order. tribunal from continuing the
proceedings and rendering its
From these guidelines, it is evident that award.
a disagreement between the parties as
to the amount of the secured loan that
remains unpaid shall not, by itself, 12. Injunction is prohibited during the
warrant the issuance of an injunctive pendency of a special civil action
writ to enjoin foreclosure. The guidelines for certiorari under the Special
speak of strict exceptions and Rules of Court on Alternative
conditions. Even an allegation of Disputre Resolution (A.M. No. 07-
unconscionable interest being imposed 11-08-SC);
on the loan by the mortgagee shall no
longer suffice to support an injunction.
Furthermore, if under this resolution a 13. No injunction allowed on
debtor can no longer seek an injunctive protection orders under Republic
writ by the unsubstantiated claim of full Act No. 9262 (Garcia v. Drilon,

Page 16 of 113
 G.R. No. 179267, June 25, (3) There is an urgent need for
2013 ) the writ to prevent irreparable
injury to the applicant; and
(4) No other ordinary, speedy,
and adequate remedy exists
to prevent the infliction of
2.6 Grounds to prove before a writ irreparable injury.
of preliminary injunction will issue [Underscoring supplied]
In The Incorporators of Mindanao It bears stressing that to be entitled to
Institute Inc. v. The United Church of an injunctive writ, the right to be
Christ, G.R. No. 171765, March 21, protected and the violation against that
2012, 668 SCRA 637, the Supreme right must be shown. A writ of
Court ruled on the grounds to prove preliminary injunction may be issued
before a writ of preliminary injunction will only upon clear showing of an actual
issue as follows: existing right to be protected during the
pendency of the principal action.
(Equitable PCI Bank, Inc. v. OJ-Mark
“Significantly, Section 3, Rule 58 of the Trading, Inc., G.R. No. 165950, August
Rules of Court, enumerates the grounds 11, 2010, 628 SCRA 79, 88, citing
for the issuance of a writ of preliminary Borromeo v.
injunction: Court of Appeals, G.R. No. 169846,
March 28, 2008, 550 SCRA 269, 280;
xxx Lim v. Court of Appeals, 517 Phil. 522,
527 [2006]) When the complainant‟s
Based on the foregoing provision, the right or title is doubtful or disputed, he
Court in St. James College of does not have a clear legal right and,
Parañaque v. Equitable PCI Bank G.R. therefore, the issuance of injunctive
No. 179441, August 9, 2010, 627 SCRA relief is not proper. (Barayuga v.
328, 344, citing Biñan Steel Corporation Adventist University of the Philippines,
v. Court of Appeals, 439 Phil. 688, 703- G.R. No. 168008, August 17, 2011)
704 (2002); Hutchison Ports Philippines
Ltd. v. Subic Bay Metropolitan Authority,
393 Phil. 843, 859 (2000) ruled that the 2.7 Preliminary injunction not
following requisites must be proved granted without notice and exception
before a writ of preliminary injunction will
issue:
A writ preliminary injunction cannot be
issued ex-parte
(1) The applicant must have a
clear and unmistakable right
No preliminary injunction shall be
to be protected, that is, a right
granted without hearing and prior
in esse;
notice to the party or person
(2) There is a material and
sought to be enjoined. (first
substantial invasion of such
paragraph, first sentence of
right;
Section 5, Rule 58).

Page 17 of 113
When to issue ex-parte temporary Subject to the provisions of the
retraining order (TRO) preceding section (section 4 [c], Rule 58
), which means if application is filed in a
If it shall appear from facts shown by multiple-sala court, the executive judge
affidavits or by the verified application of a multiple-sala court or the presiding
that great or irreparable injury would judge of a single sala court may issue
result to the applicant before the matter ex parte a temporary restraining order.
can be heard on notice. (first paragraph, (second paragraph, first sentence of
second sentence of Section 5, Rule 58) Section 5, Rule 58)

Who issues an ex-parte TRO Under what circumstance

The court to which the application for

1. If the matter is of extreme
preliminary injunction was made may
urgency; and
issue ex-parte a temporary restraining
2. The applicant will suffer grave
order. (first paragraph, second sentence
injustice and irreparable
of Section 5, Rule 58)
injury. (second paragraph,
first sentence of Section 5,
Effectivity of TRO issued ex parte
Rule 58)
To be effective only for a period of
twenty (20) days from service on the
party or person sought to be enjoined, Effectivity of TRO issued by executive
except as herein provided. (first judge of multiple sala or judge of single
paragraph, second sentence of Section sala
5, Rule 58)
Requirement within twenty-day (20) Effective for only seventy-two (72) hours
period from issuance. The service of summons
and the documents to be served
Within the said twenty-day (20) period, therewith shall immediately be complied.
the court must order said party or (second paragraph, first sentence of
person to show cause, at a specified Section 5, Rule 58)
time and place, why the injunction
should not be granted and determine
within the same period whether or not Requirement within seventy-two (72)
the preliminary injunction shall be hours
granted, and accordingly issue the
corresponding order. (first paragraph, Within the aforesaid seventy-two (72)
third sentence of Section 5, Rule 58) hours, the judge before whom the case
is pending shall conduct a summary
hearing to determine whether the
temporary restraining order shall be
Who issues the ex parte temporary extended until the application for
restraining order preliminary injunction can be heard.

Page 18 of 113
(second paragraph, second sentence of sixty (60) days from service on the party
Section 5, Rule 58) or person sought to be enjoined. (fourth
paragraph of Section 5, Rule 58)

Total period of effectivity of temporary

restraining order By Supreme Court

In no case shall the total period of A restraining order issued by the

effectivity of the temporary restraining Supreme Court or a member thereof
order exceed twenty (20) days, including shall be effective until further orders.
the original seventy-two hours provided (fourth paragraph of Section 5, Rule 58)
herein. (second paragraph, third
sentence of Section 5, Rule 58)
Period to decide the main case

Effect if application for preliminary The trial court, Court of Appeals,

injunction is denied or not resolved Sandiganbayan or Court of Tax
Appeals that issued a writ of
In the event that the application for preliminary injunction against a
preliminary injunction is denied or not lower court, board, officer or
resolved within the said period, the quasi-judicial agency shall decide
temporary restraining order is deemed the main case or petition within
automatically vacated. (third paragraph, six (6) months from the issuance
first sentence of Section 5, Rule 58) of the writ. (last paragraph of
Section 5, Rule 57)

Temporary restraining order is not

extendible
2.8 Meaning of temporary
The effectivity of a temporary restraining restraining order
order is not extendible without need of
any judicial declaration to that effect and Temporary restraining order is an
no court shall have authority to extend interlocutory order issued in a case to
or renew the same on the same ground maintain the subject matter of the
for which it was issued. (third paragraph, controversy in status quo until hearing of
second sentence of Section 5, Rule 58) the main petition is held. (Board of
Transportation v. Castro 125 SCRA
Effectivity of TRO issued by the Court of 410)
Appeals and Supreme Court

2.9 Distinction of temporary

By Court of Appeals restraining order from preliminary
injunction
If issued by the Court of Appeals or a
member thereof, the temporary While a temporary restraining order is
restraining order shall be effective for similar to a preliminary injunction in that

Page 19 of 113
it also restrains the performance of an and uncontested state of things which
act as in a preliminary injunction, the preceded the controversy. This was
difference between the two, however, is resorted to when the projected
that a temporary restraining order is only proceedings in the case made the
a temporary restraint to maintain the conservation of the status quo desirable
status quo which is issued without or essential, but the affected party
notice to defendant to prevent great or neither sought such relief or the
irreparable injury while a preliminary allegations in his pleading did not
injunction which can be issued only sufficiently make out a case for a
upon due notice to the defendant can temporary restraining order. The status
either be a restraint or a requirement to quo order was thus issued motu proprio
perform a particular act. (Section 1 of on equitable considerations. Also, unlike
Rule 58 in relation to Section 5 of Rule a temporary restraining order or a
58) preliminary injunction, a status quo
order is more in the nature of a cease
In this regard, the law allows a and desist order, since it neither directs
temporary restraining order in an the doing or undoing of acts as in the
application for injunction if it shall case of prohibitory or mandatory
appear from the facts shown by injunctive relief. The further distinction is
affidavits or by the verified complaint provided by the present amendment in
that great or irreparable injury would the sense that, unlike the amended rule
result to the applicant before the matter on restraining orders, a status quo order
can be heard on notice but this does not require the posting of a bond.”
temporary restraining order shall be (citing F.D. REGALADO, I Remedial
effective only for a period of twenty (20) Law Compendium 651 [6th Revised Ed.,
days from service on the party or person 1997]).
sought to be enjoined. (Section 5 of
Rule 58). In other words, temporary
restraining order may be issued before a
writ of preliminary injunction can be 2.11 Status quo ante order has “the
issued. nature of a temporary restraining
order”

2.10 Distinction of temporary But in Llamzon v. Logronio, G.R. No.

restraining order and status quo 167745, June 26, 2007 the Supreme
order Court held that: “Indeed, this Court has
ruled that a status quo ante order has
In Garcia v. Mojica, G.R. No. 13904, “the nature of a temporary restraining
September 10, 1999 the Supreme Court order.”
had the occasion to discuss the
distinction between a TRO and status
quo order as follows: “There have been
instances when the Supreme Court has 2.12 Violation of TRO is indirect
issued a status quo order which, as the contempt of court
very term connotes, is merely intended
to maintain the last, actual, peaceable

Page 20 of 113
A violation of a temporary restraining
order constitute indirect contempt under
Section 3 of Rule 71 of the Revised
Rules of Civil Procedure
(Rule 58)

Page 21 of 113
3. Receivership does not require such protection or
preservation, the remedy is not
receivership. (Commodities Storage &
3.1 MEANING OF A RECEIVER Ice Plant Corp. v. Court of Appeals,
G.R. No. 125008, June 19, 1997, 274
The Supreme Court citing Normandy v. SCRA 439, 446-447)
Duque, 29 SCRA 385, 391 [1969]; Cia.
General de Tabacos v. Gauzon, 20 Phil. 3.3 Appointment of receiver
261, 267-268 [1911] in Commodities
Storage & Ice Plant Corp. v. Court of Upon a verified application, one or more
Appeals, G.R. No. 125008, June 19, receivers of the property subject of the
1997, 274 SCRA 439, 446-447 defined action or proceeding may be appointed
receiver as: by the court where the action is pending
or by the Court of Appeals or by the
“A receiver is a person appointed Supreme Court, or a member thereof, in
by the court in behalf of all the the following cases:
parties to the action for the
purpose of preserving and
(a) When it appears from the verified
conserving the property in
application, and such other proof
litigation and prevent its possible
as the court may require, that the
destruction or dissipation, if it
party applying for the
were left in the possession of any
appointment of a receiver has an
of the parties. (Normandy v.
interest in the property or fund
Duque, 29 SCRA 385, 391
which is the subject of the action
[1969]; Cia. General de Tabacos
or proceeding, and that such
v. Gauzon, 20 Phil. 261, 267-268
property or fund is in danger of
[1911]) The appointment of a
being lost, removed, or materially
receiver is not a matter of
injured unless a receiver be
absolute right. It depends upon
appointed to administer and
the sound discretion of the court
preserve it;
(Calo and San Jose v. Roldan, 76
(b) When it appears in an action by
Phil. 445, 453 [1946]; Mendoza v.
the mortgagee for the foreclosure
Arellano, 36 Phil. 59, 63-64
of a mortgage that the property is
[1917]) and is based on facts and
in danger of being wasted or
circumstances of each particular
dissipated or materially injured,
case.” (Duque v. CFI of Manila,
and that its value is probably
13 SCRA 420, 423 [1965]; Ralla
insufficient to discharge the
v. Alcasid, supra, at 625; Lama v.
mortgage debt, or that the parties
Apacible, 79 Phil. 68, 73-74
have so stipulated in the contract
[1947])
of mortgage;
(c) After judgment, to preserve the
property during the pendency of
3.2 Purpose of receivership
an appeal, or to dispose of it
according to the judgment, or to
Its object is the prevention of imminent
aid execution when the execution
danger to the property. If the action
has been returned unsatisfied or

Page 22 of 113
 the judgment obligor refuses to
apply his property in satisfaction
of the judgment, or otherwise to
carry the judgment into effect;
(d) Whenever in other cases it
appears that the appointment of a
receiver is the most convenient
and feasible means of
preserving, administering, or
disposing of the property in
litigation.

During the pendency of an appeal, the

appellate court may allow an application
for the appointment of a receiver to be
filed in and decided by the court of origin
and the receiver appointed to be subject
to the control of said court. (Section 1,
Rule 59)

Page 23 of 113
4. REPLEVIN replevin.” The term therefore may
refer either to the action itself, for
the recovery of personality, or the
4.1 REPLEVIN, DEFINED provisional remedy traditionally
associated with it, by which
Tillson v. Court of Appeals, G.R. No. possession of the property may
89870, May 28, 1991, 197 SCRA 587, be obtain[ed] by the plaintiff and
597-598, discusses the term replevin as retained during the pendency of
follows: the action. (Emphasis and
underscoring supplied; citations
The term replevin is popularly omitted)
understood as “the return to or
recovery by a person of goods or
chattels claimed to be wrongfully 4.2 REPLEVIN CAN BE A
taken or detained upon the PRINCIPAL REMEDY AND
person‟s giving security to try the PROVISIONAL RELIEF
matter in court and return the
goods if defeated in the action;” Broadly understood in this jurisdiction,
“the writ by or the common-law replevin is both a form of principal
action in which goods and remedy and of provisional relief. It may
chattels are replevied,” i.e., taken refer either to the action itself, i.e., to
or gotten back by a writ for regain the possession of personal
replevin;” and to replevy, means chattels being wrongfully detained from
to recover possession by an the plaintiff by another, or to the
action of replevin; to take provisional remedy that would allow the
possession of goods or chattels plaintiff to retain the thing during the
under a replevin order. Bouvier‟s pendency of the action and to hold it
Law Dictionary defines replevin pendente lite. (BA Finance Corporation
as “a form of action which lies to v. CA, 327 Phil. 716, 724-725 (1996).
regain the possession of personal See also Tillson v. Court of Appeals, id.;
chattels which have been taken Bouvier’s Dictionary, Third (Rawle’s)
from the plaintiff unlawfully x x x, Revision, Vol. 2; Black’s Law Dictionary,
(or as) the writ by virtue of which Sixth Edition, p. 1299) The action is
the sheriff proceeds at once to primarily possessory in nature and
take possession of the property generally determines nothing more than
therein described and transfer it the right of possession. (BA Finance
to the plaintiff upon his giving Corporation v. CA, 327 Phil. 716, 725
pledges which are satisfactory to [1996])
the sheriff to prove his title, or
return the chattels taken if he fail
so to do; the same authority 4.3 Who can avail replevin
states that the term, “to replevy”
means “to re-deliver goods which A party praying for the recovery
have been distrained to the of possession of personal
original possessor of them, on his property. (Section 1, Rule 60)
giving pledges in an action of

Page 24 of 113
 (c) That the property has not been
4.4 Stage to avail replevin distrained or taken for a tax
assessment or a fine pursuant to
Recovery of possession of personal law, or seized under a writ of
property can be availed: execution or preliminary
attachment, or otherwise placed
under custodia legis, or if so
1. at the commencement of the seized, that it is exempt from
action; or such seizure or custody; and
2. at any time before answer. (d) The actual market value of the
(Section 1, Rule 60) property.

2. The applicant must also give a

bond, executed to the adverse party in
4.5 Mechanics to file replevin double the value of the property as
stated in the affidavit attached to the
The mechanics could refer either to the complaint. (Section 2, Rule 60). In
action itself, i.e., to regain the practice the allegations regarding
possession of personal chattels being jurisdictional facts of the complaint and
wrongfully detained from the plaintiff by the affidavit are the same. The affidavit
another, or to the provisional remedy should be attached to the complaint.
that would allow the plaintiff to retain the
thing during the pendency of the action
and to hold it pendente lite B. If it refers to the provisional
remedy that would allow the
plaintiff to retain the thing during
A. If it refers to the action itself, i.e., the pendency of the action and to
to regain the possession of hold it pendente lite, the
personal chattels being procedures are as follows:
wrongfully detained from the
plaintiff by another, the
procedures are as follows: 1. At the commencement of the
action or at any time before answer a
party praying for the recovery of
1. By filing a complaint for replevin possession of personal property can
alleging the following jurisdictional facts: apply for an order for the delivery of
such property and must show by his
(a) That the applicant is the owner of own affidavit or some other person who
the property claimed, particularly personally knows the facts the following
describing it, or is entitled to the jurisdictional facts:
possession thereof;
(b) That the property is wrongfully
a. That the applicant is the owner of
detained by the adverse party,
the property claimed, particularly
alleging the cause of detention
describing it, or is entitled to the
thereof according to the best of
possession thereof;
his knowledge, information, and
belief;
Page 25 of 113
 b. That the property is wrongfully
detained by the adverse party,
alleging the cause of detention
thereof according to the best of 4.6 Rule on return of property
his knowledge, information, and
belief; Effect if adverse party object to the
c. That the property has not been sufficiency of applicant’s bond
distrained or taken for a tax
assessment or a fine pursuant to The adverse party cannot
law, or seized under a writ of immediately require the return of
execution or preliminary the property if he objects to the
attachment, or otherwise placed sufficiency of the applicant‟s
under custodia legis, or if so bond, or of the surety or sureties
seized, that it is exempt from thereon. (Section 5, Rule 60)
such seizure or custody; and
d. The actual market value of the Effect if he does not object to the sufficiency
property. of applicant’s bond

But if he does not so object, he

2. The applicant must also give a
may, at any time before the
bond, executed to the adverse party in
delivery of the property to the
double the value of the property as
applicant, require the return
stated in the affidavit aforementioned,
thereof, by filing with the court
for the return of the property to the
where the action is pending a
adverse party if such return be
bond executed to the applicant
adjudged, and for the payment to the
and by serving a copy of such
adverse party of such sum as he may
bond on the applicant. (Section 5,
recover from the applicant in the action.
Rule 60)
(Section 2, Rule 60)

Amount of adverse party’s bond

Amount and purpose of applicant’s bond
The amount is in double the value of the
Amount of bond
property as stated in the applicant‟s
The amount of applicant‟s bond
affidavit. (Section 5, Rule
is double the value of the
60)
property as stated in the affidavit
of merit. (last paragraph, Section
Purpose of adverse party’s bond
2, Rule 60)

Purpose of bond 1. For the delivery of the

property to the
For the payment to the adverse applicant, if such
party of such sum as he may delivery be adjudged;
recover from the applicant in the 2. And for the payment of
action. (last paragraph, Section 2, such sum to him as
Rule 60) may be recovered

Page 26 of 113
 against the adverse the adverse party so
party. (Section 5, Rule objects and the court
60) affirms its approval of
the applicant’s bond or
approves a new bond;
4.7 Effect of filing a redelivery
3. or if within five (5) days
bond under Sections 5 and 6 of Rule
after the taking of the
60
property by the sheriff
the adverse party
It is clear from Sections 5 and 6 of Rule
requires the return of
60 that a defendant in a replevin suit
the property but his
may demand return of possession of the
bond is objected to and
property replevied by filing a redelivery
found insufficient and
bond within the periods specified in
he does not forthwith
Sections 5 and 6 of Rule 60. Under
file an approved bond;
Section 5, petitioner may “at any time
before the delivery of the property to the If for any reason the property is not
applicant “ require the return of the delivered to the applicant, the sheriff
property; in Section 6, he may do so, must return it to the adverse party.
“within five (5) days after the taking of (Section 6, Rule 60)
the property by the officer.” Both these
periods are mandatory in character.
(Bachrach Motor Co., Inc. v. Albert, 60 4.9 The five day period is
Phil. 308 [1934]) mandatory

In Spouses Bautista v. Sulla, A.M. No.

4.8 Disposition of property by P-04-1920, August 17, 2007, the
sheriff Supreme Court held the mandatory
character of the five day period for the
When property to be delivered to defendant to post a counter-bond and
applicant serving the same to the plaintiff as
follows:
In the following instances, the property
shall be delivered to the applicant: “Under Section 5, complainants
may require the return of the
vehicle by (1) posting a counter-
1. if within five (5) days
bond in double the value of the
after the taking of the
vehicle and (2) serving Glor with
property by the sheriff
a copy of the counter-bond. Both
the adverse party does
requirements must be complied
not object to the
with before the vehicle is
sufficiency of the bond,
delivered to Glor. Put differently:
or of the surety or
sureties thereon;
If a defendant in a replevin action
2. or if within five (5) days
wishes to have the property taken
after the taking of the
by the sheriff restored to him, he
property by the sheriff
should within five days from such

Page 27 of 113
 taking, (1) post a counter-bond in
double the value of said property,
and (2) serve plaintiff with a
copy thereof, both requirements 4.10 Purpose of five-day period
— as well as compliance under Section 6, Rule 60
therewith within the five- day
period mentioned — being The purpose of the five day period was
mandatory. x x x likewise discussed in Spouses Bautista
v. Sulla, A.M. No. P-04- 1920, August
Conformably, a defendant in a 17, 2007: “Under the Rules of Court, the
replevin suit may demand the sheriff should not immediately deliver
return of possession of the the property seized under a writ of
property replevined by filing a replevin to the plaintiff. This is because
redelivery bond executed to the defendants have every right to be
plaintiff in double the value of the respected in their possession and may
property as stated in the not be deprived of it without due
plaintiff‟s affidavit within the process. The purpose of the five-day
period specified in Sections 5 and period in Section 6 is to give defendants
6. (Citibank, N.A. v. Court of in a replevin case a chance to require
Appeals, 364 Phil. 328, 348 the return of the property by filing a
[1999]) counter-bond. In Pardo v. Velasco, A.M.
No. P-90-408, 7 August 1992, 212
Under Section 6, the vehicle shall SCRA 323, 328-329, this Court held
be delivered to Glor only under that:
the following instances:
Respondent as an officer of the
1. If within five days after the Court is charged with certain
taking of the vehicle, ministerial duties which must be
complainants do not object to performed faithfully to the letter.
the sufficiency of the bond or Every provision in the Revised
of the surety or sureties Rules of Court has a specific
thereon; reason or objective. In this case,
2. If within five days after the the purpose of the five (5) days is
taking of the vehicle, to give a chance to the defendant
complainants object to the to object to the sufficiency of the
sufficiency of the bond and bond or the surety or sureties
the trial court affirms its thereon or require the return of
approval of Glor‟s bond or the property by filing a
approves a new bond; or counter[-]bond.
3. If within five days after the
taking of the vehicle, In Sebastian v. Valino, A.M. No. P-91-
complainants require the 549, 5 July 1993, 224 SCRA 256, 259
return of the vehicle and their this Court held that:
bond is objected to and found
insufficient and they do not Under the Revised Rules of
forthwith file an approved Court, the property seized under
bond.”

Page 28 of 113
a writ of replevin is not to be
delivered immediately to the
plaintiff. The sheriff must retain it
in his custody for five days and
he shall return it to the defendant,
if the latter, as in the instant case,
requires its return and files a
counter[-]bond (Sec. 4, Rule 60,
Revised Rules of Court).
(Emphasis ours)

Page 29 of 113
QUAMTO 2018 attachment served upon the
custodian of such property (Sec. 7,
last par., Rule 57).
PRELIMINARY ATTACHMENT

Q: May damages be claimed by a party

Q: The plaintiff obtained a writ of prejudiced by a wrongful attachment even if
preliminary attachment upon a bond of P1 the judgment is adverse to him? Explain.
million. The writ was levied on the (1999 Bar)
defendant’s property, but it was discharged A: Yes, damages may be claimed by
upon the posting by the defendant of a a party prejudiced by a wrongful
counterbond in the same amount of P1 attachment even if the judgment is
million. After trial, the court rendered adverse to him. This is authorized by
judgment finding that the plaintiff had no the Rules. A claim for damages may
cause of action against the defendant and be made on account of improper,
that he had sued out the writ of attachment irregular or excessive attachment,
maliciously. Accordingly, the court which shall be heard with notice to
dismissed the complaint and ordered the the adverse party and his surety or
plaintiff and its surety to pay jointly to the sureties (Sec. 20, Rule 57; Javellana
defendant P1.5 million as actual damages, v. D. O. Plaza Enterprises Inc.,G.R.
P0.5 million as moral damages and P0.5 No. L-28297, March 30, 1970).
million as exemplary damages. Evaluate the
soundness of the judgment from the point of
view of procedure. (2002 Bar Q: May a writ of preliminary attachment be
A: The judgment against the surety issued ex parte? Briefly state the reason(s)
is not sound if due notice was not for your answer. (2001 Bar)
given to him of the applicant for A: YES, an order of attachment may
damages (Sec 20, Rule 57). be issued exparte or upon motion
Moreover, the judgment against the with notice and hearing (Sec. 2, Rule
surety cannot exceed the amount of 57). The reason why the order may
its counterbond of P1 million. be issued exparte is that requiring
notice to the adverse party and a
hearing would defeat the purpose of
Q: In a case, the property of an incompetent the provisional remedy and enable
under guardianship was in custodia legis. the adverse party to abscond or
Can it be attached? Explain. (1999 Bar) dispose of his property before a writ
of attachment issues (Mindanao
Savings and Loan Association, Inc.
A: Although the property of an v. Court of Appeals,G.R. No. 84481,
incompetent under guardianship is in April 18, 1989).
custodia legis, it may be attached as
in fact it is provided that in such
case, a copy of the writ of Q: May a preliminary injunction be issued ex
attachment shall be filed with the parte? Why? (2001 Bar)
proper court and notice of the

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 A: No, a writ of preliminary injunction 1. The fact that the writ of attachment
may not be issued ex parte. As was served ahead of the summons
provided in the Rules, no preliminary did not affect the jurisdiction of the
injunction shall be granted without court over his person. It makes the
hearing and prior notice to the party writ, unenforceable (Sec. 5, Rule
or person sought to be enjoined 57). However, all that is needed to
(Sec. 5, Rule 58). The reason is that be done is to reserve the writ (Onate
a preliminary injunction may cause v. Abrogar, G.R. No. 197393,
grave and irreparable injury to the February 23, 1985).
party enjoined. 2. The writ was improperly
implemented. Serving a notice of
garnishment, particularly before the
Q: Katy filed an action against Tyrone for summons is served, is not proper. It
collection of the sum of P1 million in the should be a copy of the writ of
RTC, with an ex-parte application for a writ attachment that should be served on
of preliminary attachment. Upon posting of the defendant, and a notice that the
an attachment bond, the court granted the bank deposits are attached pursuant
application and issued a writ of preliminary to the writ (Sec. 7[d], Rule 57).
attachment. Apprehensive that Tyrone 3. The writ was improvidently issued if
might withdraw his savings deposit with the indeed it can be shown that the
bank, the sheriff immediately served a obligation was already fully paid.
notice of garnishment on the bank to The writ is only ancillary to the main
implement the writ of preliminary action (Sec. 13, Rule 57). The
attachment. The following day, the sheriff alleged payment of the account
proceeded to Tyrone’s house and served cannot serve as a ground for
him the summons, with copies of the resolving the improvident issuance
complaint containing the application for writ of the writ, because this matter
of attachment, Katy’s affidavit, order of delves into the merits of the case,
attachment, writ of preliminary attachment and requires full-blown trial.
and attachment bond. Within fifteen (15) Payment, however, serves as a
days from service of the summons, Tyrone ground for a motion to dismiss.
filed a motion to dismiss and to dissolve the
writ of preliminary attachment on the
following grounds: (i) the court did not
acquire jurisdiction over his person because
Q: Distinguish attachment from
the writ was served ahead of the summons;
garnishment. (1999 Bar)
(ii) the writ was improperly implemented;
and (iii) said writ was improvidently issued
because the obligation in question was
already fully paid. Resolve the motion with A: Attachment and garnishment are
reasons. (2005 Bar) distinguished from each other as
follows: Attachment is a provisional
A: The motion to dismiss and to dissolve remedy that effects a levy on
the writ of preliminary attachment should property of a party as security for the
be denied. satisfaction of any judgment that
may be recovered, while
garnishment is a levy on debts due

Page 31 of 113
 the judgment obligor or defendant the judgment. If not, the report shall
and other credits, including bank state how much funds or credits the
deposits, royalties and other garnishee holds for the judgment
personal property not capable of obligor (Section 9[c], Rule 39).
manual delivery under a writ of
execution or a writ of attachment.
Levy on execution is a manner of
satisfying or executing judgment
Q: Briefly discuss/differentiate the following where the sheriff may sell property
kinds of Attachment: preliminary of the judgment obligor if he is
attachment, garnishment, levy on execution, unable to pay all or part of the
warrant of seizure and warrant of distraint obligation in cash, certified bank
and levy. (2012 Bar) check or any other manner
acceptable to the obligee. If the
A: Preliminary attachment is a
obligor does not chose which among
provisional remedy under Rule 57 of
his property may be sold, the sheriff
the Rules of Court. It may be sought
shall sell personal property first and
at the commencement of an action
then real property second. He must
or at any time before entry of
sell only so much of the personal or
judgment where property of an
real property as is sufficient to
adverse party may be attached as
satisfy judgment and other lawful
security for satisfaction of any
fees (Sec. 9 [b], Rule 39).
judgment, where this adverse party
is about to depart from the
Philippines, where he has intent to
defraud or has committed fraud, or is Warrant of seizure is normally
not found in the Philippines. An applied for with a search warrant, in
affidavit and a bond is required criminal cases. The warrant of
before the preliminary attachment seizure must particularly describe
issues. It is discharged upon the things to be seized. While it is
payment of a counter bond. true that the property to be seized
under a warrant must be particularly
described therein and no other
property can be taken thereunder,
Garnishment is a manner of
yet the description is required to be
satisfying or executing judgment
specific only insofar as the
where the sheriff may levy debts,
circumstances will ordinarily allow.
credits, royalties, commissions, bank
An application for search and
deposits and other personal property
seizure warrant shall be filed with
not capable of manual delivery that
the following: (a) Any court within
are in the control or possession of
whose territorial jurisdiction a crime
third persons and are due the
was committed; (b) For compelling
judgment obligor. Notice shall be
reasons stated in the application,
served on third parties. The third
any court within the judicial region
party garnishee must make a written
where the crime was committed if
report on whether or not the
the place of the commission of the
judgment obligor has sufficient funds
crime is known, or any court within
or credits to satisfy the amount of
the judicial region where the warrant

Page 32 of 113
 shall be enforced. However, if the
criminal action has already been
Q: Bayani, an overseas worker based in
filed, the application shall only be
Dubai, issued in favor of Agente, a special
made in the court where the criminal
power of attorney to sell his house and lot.
action is pending.
Agente was able to sell the property but
failed to remit the proceeds to Bayani, as
agreed upon. On his return to the
Warrant of distraint and levy is Philippines, Bayani, by way of a demand
remedy available to local letter duly received by Agente sought to
governments and the BIR in tax recover the amount due him. Agente failed
cases to satisfy deficiencies or to return the amount as he had used it for
delinquencies in inheritance and the construction of his own house. Thus,
estate taxes, and real estate taxes. Bayani filed an action against Agente for
Distraint is the seizure of personal sum of money with damages. Bayani
property to be sold in an authorized subsequently filed an ex-parte motion for
auction sale. Levy is the issuance of the issuance of a writ of preliminary
a certification by the proper officer attachment duly supported by an affidavit.
showing the name of the taxpayer The court granted the ex-parte motion and
and the tax, fee, charge or penalty issued a writ of preliminary attachment upon
due him. Levy is made by writing Bayani’s posting of the required bond.
upon said certificate the description Bayani prayed that the court’s sheriff be
of the property upon which levy is deputized to serve and implement the writ of
made. attachment. On November 19, 2013, the
Sheriff served upon Agente the writ of
attachment and Agente levied on the latter’s
Q: A sues B for collection of a sum of house and lot. On November 20, 2013, the
money. Alleging fraud in the contracting of Sheriff served upon Agente summons and a
the loan, A applies for preliminary copy of the complaint. On November 22,
attachment with the court. The Court issues 2013, Agente filed an Answer with Motion to
the preliminary attachment after A files a Discharge the Writ if Attachmentalleging
bond. While summons on B was yet that at the time the writ of preliminary
unserved, the sheriff attached B's attachment was issued, he has not been
properties. Afterwards, summons was duly served with summons and, therefore, it was
served on B. B moves to lift the attachment. improperly issued. (2014)
Rule on this. (2012 Bar)
a. Is Agente correct?

A: I will grant the motion since no

levy on attachment pursuant to the A: No. Agente is not correct. Section
writ shall be enforced unless it is 2, Rule 57 provides that a writ of
preceded or contemporaneously attachment may be issued ex parte
accompanied by service of or upon motion with notice and
summons. There must the prior or hearing by the Court in which the
contemporaneous service of action is pending. Under the Rules,
summons with the writ of attachment the applicant of the writ is only
(Sec. 5, Rule 57). required to (i) submit an affidavit and
(ii) post a bond before the court can

Page 33 of 113
 validly issue the writ of attachment. quo order maybe issued motu
The Rules do not require prior proprio on equitable considerations,
service of summons for the proper and does not require the posting of a
issuance of a writ of attachment. bond. Unlike a temporary restraining
(Sofia Torres v. Nicanor Satsatin, order or a preliminary injunction, a
G.R. No. 166759, November 25, status quo order is more in the
2009). Accordingly, the issuance of nature of a cease and desist order,
the writ of attachment is valid since it neither directs the doing or
notwithstanding the absence of a undoing of acts as in the case of
prior service of summons to Agnete. prohibitory or mandatory injunctive
relief (Garcia v. Mojica,G.R. No.
139043. September 10, 1999).
b. Was the writ of preliminary attachment
properly executed? (2014 Bar)
Q: What are the requisites for the issuance
of (a) a writ of preliminary injunction; and (b)
A: No. The writ of preliminary a final writ of injunction? (2006 Bar)
attachment was not properly
executed. Although a writ of
attachment may issue even before A: A: The requisites for the issuance
summons is served upon the of a writ of preliminary injunction are:
defendant, the same, however, may (1) a right in esse or a clear and
not bind and affect the defendant unmistakable right to be protected;
until jurisdiction over his person is (2) a violation of that right; (3) that
obtained (Davao Light and Power there is an urgent and permanent
Co., Inc. v. Court of Appeals,G.R. act and urgent necessity for the writ
No. 93262 December 29, 1991). to prevent serious damage (Tayag v.
Thus, the writ of preliminary Lacson, G.R. No. 134971, March 25,
attachment must only be served 2004).
simultaneous or at least after the
service of summons to the
defendant(Sofia Torres v, Nicanor A final writ of injunction may be
Satsatin, G.R. No. 166759, granted if after trial of the action, it
November 25, 2009). Preliminary appears that the applicant is entitled
Injunction to have the act or acts complained of
permanently enjoined (Sec. 9, Rule
58).
Q: Define a temporary restraining order
(TRO). Differentiate a TRO from a status
quo order. (2006 Bar) Q: Distinguish between injunction as an
ancillary remedy and injunction as a main
action. (2006 Bar)
A: A temporary restraining order is
issued upon application of a party
and upon the posting of the required A: Injunction as an ancillary remedy
bond. On the other hand, a status presupposes the existence of a

Page 34 of 113
 principal or a main action (Vallangca Departure Order should be filed; (3)
v. Court of Appeals,G.R. No. 55336, then, the airline company should be
May 4, 1989). Its main function is to requested to cancel the ticket issued
preserve the status quo until the to Dina.
merits can be heard and resolved
(Urbanes v. Court of Appeals, G.R.
No. 117964, March 28, 2001). b. Suppose an Information is filed against
Dina on August 12, 2008 and she is
immediately arrested. What pieces of
On the other hand, an injunction as electronic evidence will Dante have to
the main action is brought secure in order to prove the fraudulent
specifically to obtain a judgment online transaction? (2010 Bar)
perpetually restraining or
commanding the performance of an
act after trial (Del Mar v. A: He will have to present (a) his
PAGCOR,G.R. No. 138298, report to the bank that he lost his
November 29, 2000). credit card; (b) that the ticket was
purchased after the report of the lost
add; and (c) the purchase of one-
Q: While window-shopping at the mall on way ticket.
August 4, 2008, Dante lost his organizer
including his credit card and billing
statement. Two days later, upon reporting Dante should bring an original (or an
the matter to the credit card company, he equivalent copy) printout of: 1)the
learned that a one-way airplane ticket was online ticket purchase using his
purchased online using his credit card for a credit card; 2) the phone call log to
flight to Milan in mid- August 2008. Upon show that he already alerted the
extensive inquiry with the airline company, credit card company of his loss; and
Dante discovered that the plane ticket was 3) his credit card billing statement-
under the name of one Dina Meril. Dante bearing the online ticket transaction.
approaches you for legal advice.

Q: Can a suit for injunction be aptly filed

a. What is the proper procedure to prevent with the Supreme Court to stop the
Dina from leaving the Philippines? president of the Philippines from entering
into a peace agreement with the National
Democratic Front? (2003 Bar)
A: The filing of an appropriate
criminal action cognizable by the
RTC against Dina and the filing in A: A suit for injunction cannot aptly
said criminal action a Motion for the be filed with the Supreme Court to
issuance of a Hold Departure Order; stop the President of the Philippines
(2) thereafter, a written request with from entering into a peace
the Commissioner of the Bureau of agreement with the National
Immigration for a Watch List Order Democratic Front, which is a purely
pending the issuance of the Hold political question (Madarang v.

Page 35 of 113
 Santamaria,G.R. No. L13316, but in no case beyond 20 days,
December 11, 1917). The President including the original 72hour period
of the Philippines is immune from (Sec. 5, Rule 58).
suit.

Q: May a justice of a Division of the Court of

Q: May the RTC issue injunction without Appeals issue a TRO? (2006 Bar)
bond? (2006 Bar)

A: Yes, a Justice of a Division of the

A: Yes, if the injunction issued is a Court of Appeals may issue a TRO,
final injunction. Generally, however, as authorized under Rule 58 and by
a preliminary injunction may not be Section 5, Rule VI of the Internal
issued without the posting of a bond, Rules of Court of Appeals which
unless exempted by the trial court additionally requires that the action
(Sec. 4 [b], Rule 58) or otherwise shall be submitted on the next
provided for by law. working day to the absent members
of the division for their ratification,
modification or recall (Heirs of the
Q: An application for a writ of preliminary late Justice Jose B.L. Reyes v. Court
injunction with a prayer for a temporary of Appeals, G.R. Nos. 135180-81;
restraining order is included in a complaint 135425-26, August 16, 2000).
and filed in a multi-sala RTC consisting of
Branches 1,2,3 and 4. Being urgent in
nature, the Executive Judge, who was Q: A temporary restraining order
sitting in Branch 1, upon the filing of the (TRO) was issued on September 20, 2017
aforesaid application immediately raffled the by the RTC against defendant Jeff enjoining
case in the presence of the judges of him from entering the land of Regan, the
Branches 2,3 and 4. The case was raffled to plaintiff. On October 9, 2017, upon
Branch 4 and judge thereof immediately application of Regan, the trial court,
issued a temporary restraining order. Is the allegedly in the interest of justice, extended
temporary restraining order valid? Why? the TRO for another 20 days based on the
(2001, 2006 Bar) same ground for which the TRO was
issued. On October 15, 2017, Jeff entered
the land subject of the TRO. May Jeff be
A: No. It is only the Executive Judge liable for contempt of court? Why? (2017
who can issue immediately a Bar)
temporary restraining order effective
only for seventy-two (72) hours from
issuance. No other Judge has the A: No, Jeff may not be liable
right or power to issue a temporary for contempt. Under the Rule on
restraining order ex parte. The Preliminary Injunction, a TRO is
Judge to whom the case is assigned effective only for a period of 20 days
will then conduct a summary hearing from service on the person sought to
to determine whether the temporary be enjoined. It is deemed
restraining order shall be extended, automatically vacated if the

Page 36 of 113
 application for preliminary injunction being wasted or dissipated or materially
is denied or not resolved within the injured and that its value is probably
said period and no court shall have insufficient to discharge the mortgage
the authority to extend or renew the debt (Sec. 1 [b], Rule 59).
TRO on the same ground for which it
was issued. [S5 R58] Here the
extension of the TRO by the RTC REPLEVIN
was invalid since it was for the same
ground for which the TRO was
issued. Hence the TRO was Q: What is replevin? (1999 Bar)
deemed automatically vacated and
thus Jeff may not be liable for
contempt for ignoring it. A: Replevin or delivery of personal property
consists in the delivery, by order of the court, of
personal property by the defendant to the
plaintiff, upon the filing of a bond (Calo v.
RECEIVERSHIP
Roldan, G.R. No. L-252, March 30, 1946).

Q: Joaquin filed a complaint against Jose SUPPORT PENDENTE LITE

for the foreclosure of a mortgage of a
furniture factory with a large number of
machinery and equipment. During the
Q: Before the RTC, A was charged with rape of
pendency of the foreclosure suit, Joaquin
his 16-year old daughter. During the pendency
learned from reliable sources that Jose was
of the case, the daughter gave birth to a child
quietly and gradually disposing of some of allegedly as a consequence of the rape.
his machinery and equipment to a Thereafter, she asked the accused to support
businessman friend who was also engaged the child, and when he refused, the former filed
in furniture manufacturing such that from a petition for support pendente lite. The
confirmed reports Joaquin gathered, the accused, however, insists that he cannot be
machinery and equipment left with Jose made to give such support arguing that there is
were no longer sufficient to answer for the as yet no finding as to his guilt. Would you agree
latter’s mortgage indebtedness. In the with the trial court if it denied the application for
meantime, judgment was rendered by the court support pendent lite? Explain. (1999, 2001)
in favor of Joaquin but the same is not yet final.
Knowing what Jose has been doing. If you were
Joaquin’s lawyer, what action would you take to A: No. The provisional remedy of
preservewhatever remaining machinery and support pendente lite may be granted by
equipment are left with Jose? Why? (2001 Bar) the RTC in the criminal action for rape.
In criminal actions where the civil liability
A: To preserve whatever remaining
includes support for the offspring as a
machinery and equipment are left with
Jose, Joaquin's lawyer should file a consequence of the crine and the
verified application for the appointment civil aspect thereof has not been
by the court of one or more receivers. waived, reserved or instituted prior
The Rules provide that receivership is to its filing, the accused may be
proper in an action by the mortgagee for ordered to provide support pendente
the foreclosure of a mortgage when it lite to the child born to the offended
appears that the property is in danger of

Page 37 of 113
party allegedly because of the crime
(Sec. 6, Rule 61, Rules of Court).

Page 38 of 113
II. SPEICIAL CIVIL a. Jurisdiction

ACTIONS Jurisdiction on the complaint for

interpleader lies with the Regional Trial
Court (RTC) and the Municipal Trial
1. Interpleader Court (MTC) and Metropolitan Trial
Court (MeTC) depending on the
The legal civil remedy of interpleader assessed value of the property,
has been defined by the Honorable personal and real, involved.
Supreme Court in the case of Alvarez v.
Common-wealth, G.R. No. 45315, As conferred by law, the jurisdiction are
February 25, 1938 in this wise: as follows:

“The action of interpleader is a

1. Municipal Trial Court (MTC),
remedy whereby a person who
Metropolitan Trial Court (MeTC)
has personal property in his
— where the value of the claim or
possession, or an obligation to
the personal property does not
render wholly or partially, without
exceed P300,000.00 outside of
claiming any right in both, comes
Metro Manila (Municipal Trial
to court and asks that the
Court [MTC])or P400,000.00 in
persons who claim the said
Metro Manila (Metropolitan Trial
personal property or who
Court [MeTC]) or where the value
consider themselves entitled to
of the real property does not
demand compliance with the
exceed P20,000.00 outside Metro
obligation, be required to litigate
Manila (Municipal Trial Court
among themselves, in order to
[MTC]) or P50,000.00 in Metro
determine finally who is entitled
Manila (Metropolitan Trial Court
to one or the other thing. The
[MeTC]).
remedy is afforded not to protect
a person against a double liability
2. Regional Trial Court (RTC) — If
but to protect him against a
the value exceeds the above
double vexation in respect of one
amounts or if the subject matter
liability. When the court orders
incapable of pecuniary estimation
that the claimants litigate among
is exclusively within the
themselves, there arises in reality
jurisdiction of the Regional Trial
a new action and the former are
Court. (Judiciary Act of 1980; BP
styled interpleaders, and in such
Blg. 129 [Section 19 (1), (2),
a case the pleading which
Section 33(3)] as amended by
initiates the action is called a
RA 7691)
complaint of interpleader and not
a cross-complaint.”
b. Venue

1.1 Jurisdiction and venue of the The venue of special civil action is
complaint for interpleader governed by the general rules on venue
Rule 4 of the 1997 Rules on Civil

Page 39 of 113
Procedure unless otherwise provided in
the particular rule governing special civil Action to be filed by and against whom
action. Thus, the following are the rules
on venue: The party against whom a conflicting
claims are asserted may bring an action
against the conflicting claimants.
Where the subject matter is a real (Section 1, Rule 62)
property:

In the court which has jurisdiction over Purpose of filing the action against the
the area wherein the real property conflicting claimants
involved, or a portion thereof, is
situated. (Section 1, Rule 4) To compel them to interplead and
litigate their several claims among
themselves. (Section 1, Rule 62)
Where the subject matter is a personal
property:

Where the plaintiff or any of the principal

plaintiff resides or where the defendant
or any of the principal defendants
resides at the option of the plaintiff.
(Section 2, Rule 4)

1.2 When interpleader is proper

Indispensable elements/requirements:

Whenever “conflicting claims upon the

same subject matter are or may be
made” against a person “who claims no
interest whatever in the subject matter,
or an interest which in whole or in part is
not disputed by the claimants”. (Section
1, Rule 62) The provision simply means
that there is a party, against whom a
conflicting claims are asserted, (a) who
claims no interest whatsoever in whole
or in part upon the same subject matter,
or
(b) an interest which in whole or in part
is not disputed by the claimants.

Page 40 of 113
2. Declaratory relief Before breach or violation thereof bring
an action in the appropriate Regional
Declaratory relief is defined as an action Trial Court. (Section 1, Rule 63). Under
by any person interested in a deed, will, the Judiciary Act of 1980; BP Blg. 129
contract or other written instrument, [Section 19 (2), Section 33(3)], as
executive order or resolution, to amended by Republic Act No. 7691, if
determine any question of construction the subject matter is incapable of
or validity arising from the instrument, pecuniary estimation jurisdiction is
executive order or regulation, or statute, exclusively conferred to the Regional
and for a declaration of his rights and Trial Court. A petition for declaratory
duties thereunder. The only issue that relief is an action which is incapable of
may be raised in such a petition is the pecuniary estimation. Thus, the
question of construction or validity of the exclusive and original jurisdiction is with
provisions in an instrument or statute. the Regional Trial Court. However, this
(Ferrer, Jr. vs. Roco, Jr., G.R. No. jurisdiction of the Regional Trial Court
174129, July 5, 2010) on petition for declaratory relief refers
only to the first paragraph of Section 1,
Rule 63. This is because by established
jurisprudence the Supreme Court
2.1 Remedies and who may file distinguished the first and second
petition for declaratory relief paragraph of Section 1, Rule 63 in so far
as the determination of jurisdiction is
The remedies under Rule 63 are as concerned.
follows:

1. Declaratory relief; 2.3 Distinction between the first

2. An action for: and the second paragraphs of
a. the reformation of an Section 1, Rule 63
instrument;
b. to quiet title to real In holding that the RTC correctly made a
property or remove clouds distinction between the first and the
therefrom, second paragraphs of Section 1, Rule
c. or to consolidate 63 of the Rules of Court, the Supreme
ownership under Article Court held in Malana v. Tappa, G.R.
1607 of the Civil Code, 181303, September 17, 2009 as follows:
may be brought under this
Rule. (Section 1, Rule 63) The first paragraph of Section 1,
Rule 63 of the Rules of Court,
describes the general
circumstances in which a person
may file a petition for declaratory
2.2 When and where (jurisdiction) relief, to wit:
to file
Any person interested under a
deed, will, contract or other

Page 41 of 113
 written instrument, or whose need of execution to carry the judgment
rights are affected by a statute, into effect. (Regalado, REMEDIAL LAW
executive order or regulation, COMPENDIUM (6th revised ed.), p.
ordinance, or any other 692.)
governmental regulation may,
before breach or violation thereof, To determine which court has
bring an action in the appropriate jurisdiction over the actions identified in
Regional Trial Court to determine the second paragraph of Section 1, Rule
any question of construction or 63 of the Rules of Court, said provision
validity arising, and for a must be read together with those of the
declaration of his rights or duties, Judiciary Reorganization Act of 1980, as
thereunder. (Emphasis ours.) amended.

As the afore-quoted provision states, a It is important to note that Section 1,

petition for declaratory relief under the Rule 63 of the Rules of Court does not
first paragraph of Section 1, Rule 63 categorically require that an action to
may be brought before the appropriate quiet title be filed before the RTC. It
RTC. repeatedly uses the word “may” — that
an action for quieting of title “may be
Section 1, Rule 63 of the Rules of brought under [the] Rule” on petitions for
Court further provides in its declaratory relief, and a person desiring
second paragraph that: to file a petition for declaratory relief
“may x x x bring an action in the
An action for the reformation of appropriate Regional Trial Court.” The
an instrument, to quiet title to real use of the word “may” in a statute
property or remove clouds denotes that the provision is merely
therefrom, or to consolidate permissive and indicates a mere
ownership under Article 1607 of possibility, an opportunity or an option.
the Civil Code, may be brought (De Ocampo v. Secretary of Justice,
under this Rule. (Emphasis ours.) G.R. No. 147932, 25 January 2006, 480
SCRA 71, 80; Melchor v.
The second paragraph of Section 1, Gironella, 491 Phil. 653, 658-659
Rule 63 of the Rules of Court (2005); Social Security Commission v.
specifically refers to (1) an action for the Court of Appeals, 482 Phil. 449,
reformation of an instrument, recognized 462 [2004])
under Articles 1359 to 1369 of the Civil
Code; (2) an action to quiet title, In contrast, the mandatory provision of
authorized by Articles 476 to 481 of the the Judiciary Reorganization Act of
Civil Code; and (3) an action to 1980, as amended, uses the word
consolidate ownership required by “shall” and explicitly requires the MTC to
Article 1607 of the Civil Code in a sale exercise exclusive original jurisdiction
with a right to repurchase. These three over all civil actions which involve title to
remedies are considered similar to or possession of real property where the
declaratory relief because they also assessed value does not exceed
result in the adjudication of the legal P20,000.00, thus:
rights of the litigants, often without the

Page 42 of 113
 Justice Society, G.R. No.
Section 33. Jurisdiction of 159357, 28 April 2004, 428
Metropolitan Trial Courts, SCRA 283, 294) Since the
Municipal Trial Courts and purpose of an action for
Municipal Circuit Trial Courts in declaratory relief is to secure an
Civil Cases.—Metropolitan Trial authoritative statement of the
Courts, Municipal Trial Courts rights and obligations of the
and Municipal Circuit Trial Courts parties under a statute, deed, or
shall exercise: contract for their guidance in the
enforcement thereof, or
xxxx compliance therewith, and not to
settle issues arising from an
(3) Exclusive original alleged breach thereof, it may be
jurisdiction in all civil actions entertained only before the
which involve title to, possession breach or violation of the statute,
of, real property, or any interest deed, or contract to which it
therein where the assessed value refers. A petition for declaratory
of the property or interest therein relief gives a practical remedy for
does not exceed Twenty ending controversies that have
thousand pesos (P20,000.00) or, not reached the state where
in civil actions in Metro Manila, another relief is immediately
where such assessed value does available; and supplies the need
not exceeds Fifty thousand pesos for a form of action that will set
(P50,000.00) exclusive of controversies at rest before they
interest, damages of whatever lead to a repudiation of
kind, attorney‟s fees, litigation obligations, an invasion of rights,
expenses and costs: x x x and a commission of wrongs.
(Emphasis ours.) (Manila Electric Company v.
Philippine Consumers
As found by the RTC, the Foundation, Inc., 425 Phil. 65, 82
assessed value of the subject (2002); Rosello-Bentir v. Leanda,
property as stated in Tax 386 Phil. 802, 813-814 [2000])
Declaration No. 02- 48386 is only
P410.00; therefore, petitioners‟
Complaint involving title to and
possession of the said property is
within the exclusive original
jurisdiction of the MTC, not the
RTC.

Furthermore, an action for

declaratory relief presupposes
that there has been no actual
breach of the instruments
involved or of rights arising
thereunder. (Velarde v. Social

Page 43 of 113
3. Review of judgments and final 3.6 The constitutional basis of the
orders or resolutions of the mode of review
COMELEC and COA
The Constitutional basis of the mode of
review of the judgment and final orders
or resolutions of the Commission on
3.1 When Rule 64 is applicable Elections and Commission on Audit is
mandated under Section 7, Article IX of
This Rule shall govern the review the 1987 Constitution as follows:
of judgments and final orders or
resolutions of the Commission on Sec. 7. Each Commission shall
Elections and the Commission on decide by a majority vote of all its
Audit. (Rule 64, Section 1) Members any case or matter
brought before it within sixty days
from the date of its submission
for decision or resolution. A case
3.2 Mode of review or matter is deemed submitted for
decision or resolution upon the
Petition for Certiorari under Rule filing of the last pleading, brief, or
65, except as hereinafter memorandum required by the
provided. (Section 2, Rule 64) rules of the Commission or by the
Commission itself. Unless
otherwise provided by this
3.3 Subject matter of the review Constitution or by law, any
A judgment or final order or decision, order, or ruling of each
resolution of the: Commission may be brought to
the Supreme Court on certiorari
by the aggrieved party within
1. Commission on Elections; and thirty days from receipt of a copy
2. Commission on Audit (Section thereof.
2, Rule 64)

3.4 Initiated by whom

By the aggrieved party. (Section

2, Rule 64)

3.5 Where to file

Supreme Court. (Rule 64,

Section 2)

Page 44 of 113
4. Certiorari under Rule 65

What to accompany the petition

Directed against whom
The petition shall be accompanied by:
Any tribunal, board or officer exercising
judicial or quasi-judicial functions.
1. a certified true copy of the
(Section 1, Rule 65)
judgment, order or resolution
subject thereof;
Under what circumstance to be initiated
2. copies of all pleadings and
documents relevant and
1. When any tribunal, board or pertinent thereto; and
officer exercising judicial or 3. a sworn certification of non-
quasi-judicial functions acted forum shopping as provided in
without or in excess its or his the third paragraph of section
jurisdiction, or with grave 3, Rule 46. (Section 1, Rule
abuse of discretion amounting 65)
to lack or excess of
jurisdiction; and
Requirements of petition for
2. There is no appeal, or any
certiorari under Rule 65
plain, speedy, and adequate
remedy in the ordinary course
In Tan v. Spouses Antazo, G.R. No.
of law. (Section 1, Rule 65)
187208, February 23, 2011 cited the
clear application of the requisites for the
Who May Initiate issuance of a writ of certiorari under
Rule 65:
A person aggrieved
thereby. (Section 1, Rule 65) A petition for certiorari under Rule
65 of the Rules of Court is a
pleading limited to correction of
How initiated errors of jurisdiction or grave
abuse of discretion amounting to
By a verified petition in the proper lack or excess of jurisdiction. Its
court. (Section 1, Rule 65) principal office is to keep the
inferior court within the
parameters of its jurisdiction or to
What to allege in the petition prevent it from committing such a
grave abuse of discretion
By alleging the facts with certainty and amounting to lack or excess of
praying that: (a) judgment be rendered jurisdiction. It may issue only
annulling or modifying the proceedings when the following requirements
of such tribunal, board or officer; and (b) are alleged in and established by
granting such incidental reliefs as law the petition: (1) that the writ is
and justice may require. (Section 1, directed against a tribunal, a
Rule 65) board or any officer exercising

Page 45 of 113
 judicial or quasi-judicial functions; Section 9 of Batas Pambansa Blg. 129,
(2) that such tribunal, board or as amended, known as The Judiciary
officer has acted without or in Act of 1980 provides:
excess of jurisdiction, or with
grave abuse of discretion Section 9. Jurisdiction.—The Court of
amounting to lack or excess of Appeals shall exercise:
jurisdiction; and (3) that there is
no appeal or any plain, speedy 1. Original jurisdiction to issue writs of
and adequate remedy in the mandamus, prohibition, certiorari,
ordinary course of law. habeas corpus, and quo warranto, and
(Equitable-PCI Bank Inc. v. auxiliary writs or processes, whether or
Apurillo, G.R. No. 168746, 5 not in aid of its appellate jurisdiction;
November 2009, 605 SCRA 30,
42-43 citing People v. Court of
Appeals, 468 Phil. 1, 10 (2004); c. The Regional Trial Court
Salvacion v. Sandiganbayan,
G.R. No. 175006, 27 November Section 21 of Batas Pambansa Blg. 129,
2008, 572 SCRA 163, 180-181) as amended, known as The Judiciary
Act of 1980 provides:

Original jurisdiction to issue writs of Section 21. Original jurisdiction in

mandamus, prohibition, certiorari other cases.—Regional Trial Courts
shall exercise original jurisdiction:
The following are the rules on original (1) In the issuance of writs of certiorari,
jurisdictions to issue writs of certiorari, prohibition, mandamus, quo warranto,
prohibition and mandamus: habeas corpus and injunction which
may be enforced in any part of their
a. The Supreme Court respective regions; and

Article VIII, Section 5 paragraph 1 of the d. Sandiganbayan

1987 Constitution provides:
“The Sandiganbayan shall have
Section 5. The Supreme Court shall exclusive original jurisdiction over
have the following powers: petitions for the issuance of the writs of
mandamus, prohibition, certiorari,
1. Exercise original jurisdiction over habeas corpus, injunctions, and other
cases affecting ambassadors, other ancillary writs and processes in aid of its
public ministers and consuls, and over appellate jurisdiction and over petitions
petitions for certiorari, prohibition, of similar nature, including quo
mandamus, quo warranto, and habeas warranto, arising or that may arise in
corpus. cases filed or which may be filed under
Executive Order Nos. 1, 2, 14 and 14-A,
issued in 1986: Provided, That the
b. The Court of Appeals jurisdiction over these petitions shall not
be exclusive of the Supreme Court.
(See paragraph 4, Section 4 of

Page 46 of 113
Presidential Decree 1606 as amended the Court of Appeals in strict
by Republic Act No. 8249) observance of the doctrine on the
hierarchy of courts as the appropriate
forum for the relief desired. Thus, the
Concurrent jurisdiction on certiorari Court said:
and doctrine of hierarchy of courts

In holding that the Court, the Court of Appeal and Certiorari Distinguished
Appeals and the Regional Trial Courts
have concurrent jurisdiction to issue a Between an appeal and a petition for
writ of certiorari is subject to the doctrine certiorari, there are substantial
of hierarchy of courts the Supreme distinctions which shall be explained
Court in A.L. Ang Network below.
v. Mondejar, G.R. No. 200804, January
22, 2014 said: As to the Purpose. Certiorari is a
remedy designed for the correction of
To be sure, the Court, the Court errors of jurisdiction, not errors of
of Appeals and the Regional Trial judgment. (Land Bank of the Philippines
Courts have concurrent v. Court of Appeals, supra, per Callejo
jurisdiction to issue a writ of Sr., J.; Microsoft Corporation v. Best
certiorari. (Rayos v. The City of Deal Computer Center Corporation, 389
Manila, G.R. No. 196063, SCRA 615, 620, September 24, 2002;
December 14, 2011, 662 SCRA Bimeda v. Perez, 93 Phil. 636, 639,
684, 689) Such concurrence of August 26, 1953)
jurisdiction, however, does not
give a party unbridled freedom to The case of Madrigal Transport Inc. v.
choose the venue of his action Lapanday Holding Corporation, G.R.
lest he ran afoul of the doctrine of No. 156067, August 11, 2004 also
hierarchy of courts. Instead, a provided the following distinctions:
becoming regard for judicial
hierarchy dictates that petitions As to the Manner of Filing. Over an
for the issuance of writs of appeal, the CA exercises its appellate
certiorari against first level courts jurisdiction and power of review. Over a
should be filed with the Regional certiorari, the higher court uses its
Trial Court, and those against the original jurisdiction in accordance with
latter, with the Court of Appeals, its power of control and supervision over
before resort may be had before the proceedings of lower courts. (Atty.
the Court. This procedure is also Paa v. Court of Appeals, 347 Phil. 122,
in consonance with Section 4, 136, December 4, 1997 (citing Florenz
Rule 65 of the Rules of Court. D. Regalado, Remedial Law
Compendium [6th ed. 1997], pp. 543-
Also in St. Martin Funeral Home v. 544, comparing an appeal by certiorari
National Labor Relations Commission, under Rule 45 with a petition for
G.R. No. 130866, September 16, 1998, certiorari; such comparison is also
all petitions for certiorari of the decisions applicable here).) An appeal is thus a
of the NLRC should be initially filed in continuation of the original suit, while a

Page 47 of 113
petition for certiorari is an original and appeal by certiorari, the petition should
independent action that was not part of be filed also within fifteen days from the
the trial that had resulted in the rendition notice of judgment or final order, or of
of the judgment or order complained of. the denial of the petitioner‟s motion for
(Sy v. Commission on Settlement of new trial or motion for reconsideration.
Land Problems, 417 Phil. 378, 393, (§2, Rule 45 of the Rules of Court)
September 12, 2001) The parties to an
appeal are the original parties to the On the other hand, a petition for
action. In contrast, the parties to a certiorari should be filed not later than
petition for certiorari are the aggrieved sixty days from the notice of judgment,
party (who thereby becomes the order, or resolution. (§1, Rule 65 of the
petitioner) against the lower court or Rules of Court) If a motion for new trial
quasi-judicial agency, and the prevailing or motion for reconsideration was timely
parties (the public and the private filed, the period shall be counted from
respondents, respectively). (Atty. Paa v. the denial of the motion.
Court of Appeals,; Yasuda v. Court of
Appeals, 386 Phil. 594, 602, April 12, As to the Need for a Motion for
2000) Reconsideration. A motion for
reconsideration is generally required
As to the Subject Matter. Only prior to the filing of a petition for
judgments or final orders and those that certiorari, in order to afford the tribunal
the Rules of Court so declare are an opportunity to correct the alleged
appealable. (§1, Rule 41 of the Rules of errors. Note also that this motion is a
Court.) Since the issue is jurisdiction, an plain and adequate remedy expressly
original action for certiorari may be available under the law. (Spouses
directed against an interlocutory order of Samson
the lower court prior to an appeal from v. Lenjul Realty Corporation, supra;
the judgment; or where there is no Interorient Maritime Enterprises, Inc. v.
appeal or any plain, speedy or adequate NLRC, 330 Phil. 493, 502, September
remedy. (Atty. Paa v. Court of Appeals) 16, 1996; Butuan Bay Wood Export
Corp. v. Court of Appeals, 97 SCRA
As to the Period of Filing. Ordinary 297, 305, April 28, 1980. See
appeals should be filed within fifteen exceptions to this rule in Gonzales Jr. v.
days from the notice of judgment or final Intermediate Appellate Court, 216 Phil.
order appealed from. (§3, Rule 41 of the 438, 444, August 28, 1984) Such motion
Rules of Court) Where a record on is not required before appealing a
appeal is required, the appellant must judgment or final order. (Atty. Paa v.
file a notice of appeal and a record on Court of Appeals, supra.)
appeal within thirty days from the said
notice of judgment or final order. A
petition for review should be filed and Motion for Reconsideration is a
served within fifteen days from the condition sine qua non; exceptions
notice of denial of the decision, or of the
petitioner‟s timely filed motion for new The Supreme Court in Republic of the
trial or motion for reconsideration. (§1, Philippines v. Bayao, G.R. No. 179492,
Rule 42 of the Rules of Court) In an June 5, 2013 held that a motion for

Page 48 of 113
reconsideration is a condition sine qua questions raised in the certiorari
non for filing of a Petition for Certiorari proceedings have been duly
subject to certain exceptions: raised and passed upon by the
lower court, or are the same as
The settled rule is that a Motion those raised and passed upon in
for Reconsideration is a condition the lower court; (c) where there is
sine qua non for the filing of a an urgent necessity for the
Petition for Certiorari. resolution of the question and
(Commissioner of Internal any further delay would prejudice
Revenue v. Court of Tax the interests of the Government
Appeals, G.R. No. 190680, or of the petitioner or the subject
September 13, 2012; Medado v. matter of the action is perishable;
Heirs of Consing, G.R. No. (d) where, under the
186720, February 8, 2012, 665 circumstances, a motion for
SCRA 534, 548 citing Pineda v. reconsideration would be
Court of Appeals, G.R. No. useless; (e) where petitioner was
181643, November 17, 2010, 635 deprived of due process and
SCRA 274, 281-282) Its purpose there is extreme urgency for
is to grant an opportunity for the relief; (f) where, in a criminal
court to correct any actual or case, relief from an order of
perceived error attributed to it by arrest is urgent and the granting
re-examination of the legal and of such relief by the trial court is
factual circumstances of the improbable; (g) where the
case. (Commissioner of Internal proceedings in the lower court
Revenue v. Court of Tax are a nullity for lack of due
Appeals, supra) process; (h) where the
proceeding were ex parte or in
This rule admits well-defined exceptions which the petitioner had no
as follows: opportunity to object; and (i)
where the issue raised is one
Concededly, the settled rule is purely of law or where public
that a motion for reconsideration interest is involved. (Siok Ping
is a condition sine qua non for Tang v. Subic Bay Distribution,
the filing of a petition for Inc., G.R. No. 162575, December
certiorari. Its purpose is to grant 15, 2010, 638 SCRA 457, 469-
an opportunity for the court to 470. See also Republic v.
correct any actual or perceived Pantranco North Express et al.,
error attributed to it by the re- G.R. No. 178593, February 15,
examination of the legal and 2012, 666 SCRA 199, 205-206.
factual circumstances of the See also Domdom v.
case. The rule is, however, Sandiganbayan, G.R. Nos.
circumscribed by well-defined 182382-83, February 24, 2010,
exceptions, such as (a) where the 613 SCRA 528, 532-533 citing
order is a patent nullity, as where Tan v. Court of Appeals, 341 Phil.
the court a quo has no 570, 576-578 [1997]) (Emphasis
jurisdiction; (b) where the provided)

Page 49 of 113
 concerned. Nothing more
remains to be done by the Court
DISTINCTION BETWEEN A FINAL except to await the parties’ next
JUDGMENT OR ORDER AND AN move (which among others, may
INTERLOCUTORY ORDER consist of the filing of a motion for
new trial or reconsideration, or
The Supreme Court in explaining the the taking of an appeal) and
distinction between a final judgment or ultimately, of course, to cause the
order, on one hand, and an interlocutory execution of the judgment once it
order, held in Heirs of Spouses Reterta becomes ‘final’ or, to use the
v. Spouses Loez, G.R. No. 159941, established and more distinctive
August 17, 2011 as follows: term, ‘final and executory.’

The fundamental distinction xxx

between a final judgment or
order, on one hand, and an Conversely, an order that does
interlocutory order, on the other not finally dispose of the case,
hand, has been outlined in and does not end the Court‟s
Investments, Inc. v. Court of task of adjudicating the parties‟
Appeals, G.R. No. L-60036, 27 contentions and determining their
January 1987, 147 SCRA 334, rights and liabilities as regards
339-341 viz: each other, but obviously
indicates that other things remain
The concept of ‘final’ judgment, to be done by the Court, is
as distinguished from one which „interlocutory,‟ e.g., an order
has ‘become final’ (or ‘executory’ denying a motion to dismiss
as of right [final and executory]), under Rule 16 of the Rules, or
is definite and settled. A ‘final’ granting a motion for extension of
judgment or order is one that time to file a pleading, or
finally disposes of a case, leaving authorizing amendment thereof,
nothing more to be done by the or granting or denying
Court in respect thereto, e.g., an applications for postponement, or
adjudication on the merits which, production or inspection of
on the basis of the evidence documents or things, etc. Unlike
presented at the trial declares a „final‟ judgment or order, which
categorically what the rights and is appealable, as above pointed
obligations of the parties are and out, an „interlocutory‟ order may
which party is in the right; or a not be questioned on appeal
judgment or order that dismisses except only as part of an appeal
an action on the ground, for that may eventually be taken
instance, of res judicata or from the final judgment rendered
prescription. Once rendered, the in the case.
task of the Court is ended, as far
as deciding the controversy or
determining the rights and
liabilities of the litigants is

Page 50 of 113
DISTINCTION BETWEEN RULE 65
AND RULE 64 When the proceedings of any tribunal,
corporation, board, officer or person,
In Pates v. COMELEC, G.R. No. whether exercising judicial, quasi-
184915, June 30, 2009, the High Court judicial or ministerial functions are:
explained the distinction between Rule
65 and 64 in this manner:
1. without or in excess of its or
Rule 64, however, cannot simply his jurisdiction, or with grave
be equated to Rule 65 even if it abuse of discretion amounting
expressly refers to the latter rule. to lack or excess of
They exist as separate rules for jurisdiction; and
substantive reasons as discussed 2. there is no appeal or any
below. Procedurally, the most other plain, speedy, and
patent difference between the adequate remedy in the
two — i.e., the exception that ordinary course of law.
Section 2, Rule 64 refers to — is (Section 2, Rule 65)
Section 3 which provides for a
special period for the filing of
petitions for certiorari from Who may initiate
decisions or rulings of the
COMELEC en banc. The period A person aggrieved thereby. (Section 2,
is 30 days from notice of the Rule 65)
decision or ruling (instead of the
60 days that Rule 65 provides),
with the intervening period used How to initiate
for the filing of any motion for
reconsideration deductible from By filing a verified petition in the proper
the originally-granted 30 days court. (Section 2, Rule 65)
(instead of the fresh period of 60
days that Rule 65 provides).
What to allege in the petition

PETITION FOR PROHIBITION. By alleging the facts with certainty and

praying that judgment be rendered
Directed against whom commanding the respondent to desist
from further proceedings in the action or
Any tribunal, corporation, board, officer matter specified therein, or otherwise
or person, whether exercising judicial, granting such incidental reliefs as law
quasi-judicial or and justice may require. (Section 2,
ministerial functions. (Section 2, Rule Rule 65)
65)

Under what circumstance can be What to accompany the petition

initiated

Page 51 of 113
The petition shall be accompanied by: Under what circumstance can be
initiated
1. a certified true copy of the When any tribunal, corporation, board,
judgment, order or resolution officer or person:
subject thereof, copies of all
pleadings and documents
relevant and pertinent thereto, 1. unlawfully neglects the
and performance of an act which
2. a sworn certification of non- the law specifically enjoins as
forum shopping as provided in a duty resulting from an office,
the third paragraph of section trust, or station; or
3, Rule 46. (Section 2, Rule 2. unlawfully excludes another
65) from the use and enjoyment
of a right or office to which
such other is entitled; and
Requisites of writs of prohibition 3. there is no other plain, speedy
and adequate remedy in the
In Rivera v. Espiritu, G.R. No. 135547, ordinary course of law.
January 23, 2002, the requisites of writs (Section 3, Rule 65)
of prohibition was provided:

For writs of prohibition, the

requisites are: (1) the impugned Who can initiate
act must be that of a “tribunal,
corporation, board, officer, or The person aggrieved thereby. (Section
person, whether exercising 3, Rule 65)
judicial, quasi-judicial or
ministerial functions;” and (2)
there is no plain, speedy, and How to initiate
adequate remedy in the ordinary
course of law.” (1997 Rules of By filing a verified petition in the proper
Civil Procedure, Rule 65, Sec. 2) court. (Section 3, Rule 65)

What to allege in the petition

PETITION FOR MANDAMUS. By alleging:

Directed against whom 1. the facts with certainty; and

2. praying that judgment be
Any tribunal, corporation, board, officer rendered commanding the
or person. (Section 3, Rule 65) respondent, immediately or at
some other time to be
specified by the court, to do
the act required to be done to

Page 52 of 113
 protect the rights of the
petitioner, and
3. to pay the damages sustained
by the petitioner by reason of
the wrongful acts of the
respondent.
4. the petition shall also contain
a sworn certification of non-
forum shopping as provided in
the third paragraph of section
3, Rule 46. (Section 3, Rule
65)

Page 53 of 113
5. QUO WARRANTO Guingona, G.R. No. 134577, November
18, 1998 as follows:

5.1 Action by Government against A quo warranto proceeding is the

individuals proper legal remedy to determine
the right or title to the contested
public office and to oust the
What action by Government holder from its enjoyment. (Lota
v. Court of Appeals, 2 SCRA 715,
An action for the usurpation of a 718, June 30, 1961) The action
public office, position or may be brought by the solicitor
franchise. (Section 1, Rule 66) gen-eral or a public prosecutor (§
2, Rule 66, Rules of Court) or any
person claiming to be entitled to
How commenced and in whose name the public office or position
usurped or unlawfully held or
May be commenced by a verified exercised by another. (§ 5, Rule
petition brought in the name of 66, Rules of Court; See also
the Republic of the Philippines. Municipality of San Narciso,
(Section 1, Rule 66) Quezon v. Mendez Sr., 239
SCRA 11, 18, December 6,1994;
Against whom Against: Tarrosa v. Singson, 232 SCRA
553, 557, May 25, 1994) The
action shall be brought against
(a) A person who usurps, intrudes the person who allegedly
into, or unlawfully holds or usurped, intruded into or is
exercises a public office, position unlawfully holding or exercising
or franchise; such office. (§ 1, Rule 66, Rules
(b) A public officer who does or of Court)
suffers an act which, by the
provision of law, constitutes a In order for a quo warranto
ground for the forfeiture of his proceeding to be successful, the
office; or person suing must show that he
(c) An association which acts as a or she has a clear right to the
corporation within the Philippines contested office or to use or
without being legally incorporated exercise the functions of the
or without lawful authority so to office allegedly usurped or
act. (Section 1, Rule 66) unlawfully held by the
respondent. (Batario, Jr. v.
Parentela, Jr., 9 SCRA 601,
5.2 Nature of quo warranto November 29, 1963; Caraon-
proceeding as a legal remedy Medina v. Quizon, 18 SCRA 562,
October 29, 1966)
The Supreme Court explained quo
warranto proceeding as a legal remedy
in the case of Defensor- Santiago v.

Page 54 of 113
5.3 Distinction between quo 1. When directed by the
warranto and mandamus President of the Philippines,
or
In Lota v. Court of Appeals. G.R. No. L- 2. When upon complaint or
14803, June 30, 1961 the Supreme otherwise he has good reason
Court discussed the distinction between to believe that any case
quo warranto and mandamus as follows: specified in the preceding
section can be established by
While quo warranto and proof. (Section 2, Rule 66)
mandamus are often concurrent
remedies, however, there exists a
clear distinction between the two.
The authorities are agreed that 5.5 When Solicitor General or
quo warranto is the remedy to try public prosecutor may commence
the right to an office or franchise action
and to oust the holder from its
enjoyment, while mandamus only When to commence with the permission
lies to enforce clear legal duties, of court
not to try disputed titles, 38 C.J.
546; 2 Moran, Comments on the At the request and upon the
Rules of Court, 1957 ed., 200; relation of another person, the
that where there is usurpation or Solicitor General or a public
intrusion into an office, quo prosecutor may, with the
warranto is the proper remedy, permission of the court in which
Lino Luna v. Rodriguez, 36 Phil. the action is to be commenced,
491; and that where the bring such an action. (Section 3,
respondent, without claiming any Rule 66)
right to an office, excludes the
petitioner therefrom, the remedy Requirement before commencing the
is mandamus, not quo warranto action
Manalo v. Sevilla, 24 Phil. 609;
Lino Luna v. Rodriguez, supra. But in such case the officer bringing it
may first require an indemnity for the
expenses and costs of the action in an
5.4 When Solicitor General or amount approved by and to be
public prosecutor must commence deposited in the court by the person at
action whose request and upon whose relation
the same is brought. (Section 3, Rule
When commenced by the Solicitor 66)
General or public prosecutor

The Solicitor General or a public Relator, defined

prosecutor must commence the action:
A relator is a the person referred in
Section 3 in relation to Section 4 of Rule
66 of the Rules on Civil Procedure.

Page 55 of 113
 filed within the period ordered by the
Relator, female relatrix, (Latin for court. (Section 4, Rule 66)
“narrator”) is the legal term meaning a
private person at whose relation or on
whose behalf an application for a quo
warranto or mandamus is filed. (A 5.7 When an individual may
Dictionary of Modern Legal Usage. commence such an action
Copyright (c) 1990 Bryan A. Garner,
Oxford University Press, Inc.) The When an individual to commence a quo
relator appears as one beneficially warranto action in his own name
interested, but the action is maintained
on his behalf. The relator furnishes the A person claiming to be entitled to a
knowledge or facts on which an public office or position usurped or
information or a proceeding in quo unlawfully held or exercised by another
warranto is based. Such a proceeding is may bring an action therefor in his own
usually in the name of the state, ex rel. name. (Section 5, Rule 66)
(ex relatione = “[arising] out of the
narration”) of the relator, and so is called
an “ex rel. action”.
(http://en.wikipedia.org/wiki/ 5.8 Action commenced by OSG or
Relator_%28law%29 visited last fiscal or by an individual in his own
December 8, 2014) name

The parties who can commence a quo

5.6 When hearing had on warranto proceedings was clearly
application for permission to explained in Feliciano v. Villasin,
commence action G.R. No. 174929, June 27, 2008 as
follows:

When notice to be given to respondent It is well-established that Quo

Warranto proceedings determine
Upon application for permission to the right of a person to the use or
commence such action in accordance exercise of a franchise or an
with the next preceding section, the office and to oust the holder from
court shall direct that notice be given to its enjoyment, if the latter‟s claim
the respondent so that he may be heard is not well- founded, or if he has
in opposition thereto. (Section 4, Rule forfeited his right to enjoy the
66) privilege. According to the Rules
of Procedure:
Effect if permission is granted
The action may be commenced
for the Government by the
If permission is granted, the court shall Solicitor General or the fiscal
issue an order to that effect, copies of against a person who usurps,
which shall be served on all interested intrudes into, or unlawfully holds
parties, and the petition shall then be or exercises a public office,

Page 56 of 113
 position or franchise; a public Being a collateral attack on a
officer whose acts constitute a public officer‟s title, the present
ground for the forfeiture of his petition for certiorari and
office; or against an association prohibition must be dismissed.
which acts as a corporation
without being legally incorporated The title to a public office may not
or without lawful authority to so be contested except directly, by
act. (Rules of Court, Rule 66, quo warranto proceedings; and it
Section 1) cannot be assailed collaterally,
(Gonzales v. COMELEC, et al.,
The action may also be instituted 129 Phil 7, 29 [1967]) even
by an individual in his own name through mandamus (Pilar v. Sec.
who claims to be entitled to the of the DPWTC, et al., 125 Phil.
public office or position usurped 766 [1967]) or a motion to annul
or unlawfully held or exercised by or set aside order. (Gamboa, et
another. (Rules of Court, Rule 66, al. v. CA, et al., 194 Phil. 624
Section 1) (Emphasis supplied.) [1981]) In Nacionalista Party v.
De Vera, 85 Phil. 126 (1949) the
Court ruled that prohibition does
5.9 The private person suing must not lie to inquire into the validity
show a clear right to the contested of the appointment of a public
office officer.

The High Court explained in Topacio v. xxx

Ong, G.R. No. 179895, December 18,
2005 that for a quo warranto petition to Even if the Court treats the case
be successful, the private person suing as one for quo warranto, the
must show a clear right to the contested petition is, just the same,
office and not even a mere preferential dismissible.
right to be appointed thereto. Thus, the
Court held: A quo warranto proceeding is the
proper legal remedy to determine
While denominated as a petition the right or title to the contested
for certiorari and prohibition, the public office and to oust the
petition partakes of the nature of holder from its enjoyment. (Sec.
a quo warranto proceeding with Defensor Santiago v. Sen.
respect to Ong, for it effectively Guingona, Jr., 359 Phil. 276, 302
seeks to declare null and void his [1998]) It is brought against the
appointment as an Associate person who is alleged to have
Justice of the Sandiganbayan for usurped, intruded into, or
being unconstitutional. While the unlawfully held or exercised the
petition professes to be one for public office, (Rules of Court,
certiorari and prohibition, Rule 66, Sec. 1) and may be
petitioner even adverts to a “quo commenced by the Solicitor
warranto” aspect of the petition. General or a public prosecutor,
as the case may be, or by any

Page 57 of 113
 person claiming to be entitled to arose, nor to authorize an action for
the public office or position damages in accordance with the
usurped or unlawfully held or provisions of the next preceding section
exercised by another. (Rules of unless the same be commenced within
Court, Rule 66, Sec. 5) one (1) year after the entry of the
judgment establishing the petitioner’s
Nothing is more settled than the right to the office in question. (Section
principle, which goes back to the 11, Rule 66)
1905 case of Acosta v. Flor, 5
Phil. 18 (1905) reiterated in the
recent 2008 case of Feliciano v.
Villasin, G.R. No. 174929, June
27, 2008, 556 SCRA 348 that for
a quo warranto petition to be
successful, the private person
suing must show a clear right to
the contested office. In fact, not
even a mere preferential right to
be appointed thereto can lend a
modicum of legal ground to
proceed with the action. (Vide
Garcia v. Perez, 188 Phil. 43, 47
[1980])

In the present case, petitioner presented

no sufficient proof of a clear and
indubitable franchise to the office of an
Associate Justice of the
Sandiganbayan. He in fact concedes
that he was never entitled to assume the
office of an Associate Justice of the
Sandiganbayan.

5.10 Limitations

When to commence the action

Nothing contained in this Rule shall be

construed to authorize an action against
a public officer or employee for his
ouster from office unless the same be
commenced within one (1) year after the
cause of such ouster, or the right of the
petitioner to hold such office or position,

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6. Expropriation
In City of Manila v. Te, G.R. No.
169263, September 21, 2011, the
6.1 Eminent domain how exercised Supreme Court explained the two-
pronged proceeding involved in
The right of eminent domain shall expropriation as follows:
be exercised by the filing of a
verified complaint. (Section 1, Expropriation is a two-pronged
Rule 67) proceeding: first, the
determination of the authority of
the plaintiff to exercise the power
6.2 Allegations to be stated in the and the propriety of its exercise in
complaint the context of the facts which
terminates in an order of
The verified complaint shall state with dismissal or an order of
certainty: condemnation affirming the
plaintiff‟s lawful right to take the
property for the public use or
1. the right and purpose of purpose described in the
expropriation; complaint and second, the
2. describe the real or personal determination by the court of the
property sought to be just compensation for the
expropriated, and property sought to be
3. join as defendants all persons expropriated. (Abad v. Fil-Homes
owning or claiming to own, or Realty and Development
occupying, any part thereof or Corporation, G.R. No. 189239,
interest therein, showing, so November 24, 2010, 636 SCRA
far as practicable, the 247, 255, citing Lintag v. National
separate interest of each Power Corporation, G.R. No.
defendant. 158609, July 27, 2007, 528
4. If the title to any property SCRA 287)
sought to be expropriated
appears to be in the Republic In the case of Barangay San Roque,
of the Philippines, although Talisay Cebu vs. Hier of Francisco
occupied by private Pastor, G.R. No. 138896, June 20, 2000
individuals, or if the title is citing National Power Corporation v.
otherwise ob-scure or doubtful Jocson, 206 SCRA 520, 536, February
so that the plaintiff cannot with 25, 1992, per Davide Jr., J the Supreme
accuracy or certainty specify Court ruled that expropriation
who are the real owners, proceedings have two phases:
averment to that effect shall
be made in the complaint. “The first is concerned with the
(Section 1, Rule 67) determination of the authority of
the plaintiff to exercise the power
6.3 Expropriation is a two-pronged of eminent domain and the
proceeding propriety of its exercise in the

Page 59 of 113
context of the facts involved in 6.4 Guidelines for Expropriation
the suit. It ends with an order, if Proceedings under RA 8974
not of dismissal of the action, „of
condemnation declaring that the Whenever it is necessary to acquire real
plaintiff has a lawful right to take property for the right-of-way or location
the property sought to be for any national government
condemned, for the public use or infrastructure project through
purpose described in the expropriation, the appropriate
complaint, upon the payment of implementing agency shall initiate the
just compensation to be expropriation proceedings before the
determined as of the date of the proper court under the following
filing of the complaint.‟ An order guidelines:
of dismissal, if this be ordained,
would be a final one, of course,
since it finally disposes of the (a) Upon the filing of the complaint,
action and leaves nothing more and after due notice to the
to be done by the Court on the defendant, the implementing
merits. So, too, would an order of agency shall immediately pay the
condemnation be a final one, for owner of the property the amount
thereafter as the Rules expressly equivalent to the sum of (1) one
state, in the proceedings before hundred percent (100%) of the
the Trial Court, „no objection to value of the property based on
the exercise of the right of the current relevant zonal
condemnation (or the propriety valuation of the Bureau of
thereof) shall be filed or heard.‟ Internal Revenue (BIR); and (2)
the value of the improvements
“The second phase of the and/or structures as determined
eminent domain action is under Section 7 hereof;
concerned with the determination (b) In provinces, cities, municipalities
by the court of the just and other areas where there is no
compensation for the property zonal valuation, the BIR is hereby
sought to be taken.‟ This is done mandated within the period of
by the Court with the assistance sixty (60) days from the date of
of not more than three (3) the expropriation case, to come
commissioners. The order fixing up with a zonal valuation for said
the just compensation on the area; and
basis of the evidence before, and (c) In case the completion of a
findings of, the commissioners government infrastructure project
would be final, too. It would finally is of utmost urgency and
dispose of the second stage of importance, and there is no
the suit, and leave nothing more existing valuation of the area
to be done by the Court regarding concerned, the implementing
the issue. x x x‟” agency shall immediately pay the
owner of the property its
proffered value taking into
consideration the standards
prescribed in Section 5 hereof.

Page 60 of 113
 Procedure. On the part of local
Upon compliance with the guidelines government units, expropriation
abovementioned, the court shall is also governed by Section 19 of
immediately issue to the implementing the Local Government Code.
agency an order to take possession of Accordingly, in expropriation
the property and start the proceedings, the requisites for
implementation of the project. authorizing immediate entry are
as follows: (1) the filing of a
Before the court can issue a Writ of complaint for expropriation
Possession, the implementing agency sufficient in form and substance;
shall present to the court a certificate of and (2) the deposit of the amount
availability of funds from the proper equivalent to 15 percent of the
official concerned. fair market value of the property
to be expropriated based on its
In the event that the owner of the current tax declaration. (Biglang-
property contests the implementing awa v. Bacalla, 345 SCRA 562,
agency‟s proffered value, the court shall November 22, 2000)
determine the just compensation to be
paid the owner within sixty (60) days
from the date of filing of the
expropriation case. When the decision
of the court becomes final and
executory, the implementing agency
shall pay the owner the difference
between the amount already paid and
the just compensation as determined by
the court. (Section 4, RA 8974)

6.5 Requisites of expropriation

under Section 19 of the Local
Government Code

In Bardillon v. Barangay Masili of

Calamba Laguna, G.R. No. 146886,
April 30, 2003, in explaining the
requisites for the legality of entry into
premises the Supreme Court held:

The requirements for the

issuance of a writ of possession
in an expropriation case are
expressly and specifically
governed by Section 2 of Rule 67
of the 1997 Rules of Civil

Page 61 of 113
7. Foreclosure of real estate
mortgage 7.2 The Judgment on foreclosure
for payment or sale

What constitute judgment on foreclosure

7.1 Concept of foreclosure of
mortgage If upon the trial in such action the court
shall find the facts set forth in the
The concept of foreclosure has been complaint to be true it shall ascertain:
discussed by the Supreme Court in
Magna Financial Services, Group, Inc.
1. the amount due to the plaintiff
v. Colarina, G.R. No. 158635,
upon the mortgage debt or
December 9, 2005:
obligation, including interest
and other charges as
Foreclosure is one of the
approved by the court, and
remedies available to a
costs; and
mortgagee by which he subjects
2. shall render judgment for the
the mortgaged property to the
sum so found due; and
satisfaction of the obligation to
3. order that the same be paid to
secure that for which the
the court or to the judgment
mortgage was given. Foreclosure
obligee within a period of not
may be effected either judicially
less than ninety (90) days nor
or extrajudicially, that is, by
more than one hundred
ordinary action or by foreclosure
twenty (120) days from the
under power of sale contained in
entry of judgment; and
the mortgage. It may be effected
4. that in default of such
by the usual methods, including
payment the property shall be
sale of goods at public auction.
sold at public auction to
(59 C.J.S. 482 cited in De Leon
satisfy the judgment. (Section
Credit Transaction, 1995 Ed., p.
2, Rule 67)
384) Extrajudicial foreclosure, as
chosen by the petitioner, is
attained by causing the
mortgaged property to be seized 7.3 Extrajudicial foreclosure and
by the sheriff, as agent of the Judicial foreclosure distinguished
mortgagee, and have it sold at
public auction in the manner The first is extrajudicial and summary in
prescribed by Section 14 of Act nature while the second is a court
No. 1508, or the Chattel action. (Prudential Bank v.
Mortgage Law. (Bataan Martinez, G.R. No. L-51768, September
Hardwood Corporation v. Dy Pac 4, 1990)
and Co., G.R. No. L- 29492, 29
February 1972, 43 SCRA 450) The first is governed by Rule 68,
This rule governs extrajudicial Rules of Court while the second
foreclosure of chattel mortgage. is governed by Act No. 3135.

Page 62 of 113
 In the first while Act No. 3135, as sale — exists only in the case of
amended (re extrajudicial the extrajudicial foreclosure of the
foreclosure) discloses nothing as mortgage. No such right is
to the mortgagee‟s right to recognized in a judicial
recover such deficiency. But foreclosure except only where the
there is no provision thereunder mortgagee is the Philippine
which expressly or impliedly National Bank or a bank or
prohibits such recovery while in banking institution.
the second deficiency judgment
is rendered by the court under Where a mortgage is foreclosed
Section 6 Rule 68. extrajudicially, Act 3135 grants to
the mortgagor the right of
In the first there is right of redemption within one (1) year
redemption while in the second from the registration of the
there is only equity of redemption sheriff‟s certificate of foreclosure
except when the mortgagee is a sale.
bank, quasi-bank or trust entity
under Section 47 of Republic Act Where the foreclosure is judicially
No. 8791 known as The General effected, however, no equivalent
Banking Law of 2000 right of right of redemption exists. The
redemption exists. law declares that a judicial
foreclosure sale, „when
confirmed by an order of the
7.4 Distinction between equity of court, x x shall operate to divest
redemption and right of redemption the rights of all the parties to the
action and to vest their rights in
In Huerta Alba Resort, Inc. v. Court of the purchaser, subject to such
Appeals, G.R. No. 128567, September rights of redemption as may be
1, 2000, the Supreme Court ruled on the allowed by law.’ Such rights
distinction between the equity of exceptionally „allowed by law‟
redemption and right of redemption, (i.e., even after confirmation by
citing the case of Gregorio Y. Limpin vs. an order of the court) are those
Intermediate Appellate Court, 166 granted by the charter of the
SCRA 87 comes to the fore. Held the Philippine National Bank (Acts
Court in the said case: No. 2747 and 2938), and the
General Banking Act (R.A. 337).
“The equity of redemption is, to These laws confer on the
be sure, different from and should mortgagor, his successors in
not be confused with the right of interest or any judgment creditor
redemption. of the mortgagor, the right to
redeem the property sold on
The right of redemption in relation foreclosure — after confirmation
to a mortgage — understood in by the court of the foreclosure
the sense of a prerogative to re- sale — which right may be
acquire mortgaged property after exercised within a period of one
registration of the foreclosure (1) year, counted from the date of

Page 63 of 113
registration of the certificate of sold to realize the
sale in the Registry of Property. mortgage debt and costs.‟

But, to repeat, no such right of This is the mortgagor‟s equity (not right)
redemption exists in case of of redemption which, as above stated,
judicial foreclosure of a mortgage may be exercised by him even beyond
if the mortgagee is not the PNB the 90-day period „from the date of
or a bank or banking institution. service of the order,‟ and even after the
In such a case, the foreclosure foreclosure sale itself, provided it be
sale, „when confirmed by an before the order of confirmation of the
order of the court. x x shall sale. After such order of confirmation,
operate to divest the rights of all no redemption can be effected any
the parties to the action and to longer.” (166 SCRA 93-95)
vest their rights in the purchaser.‟ (Underscoring supplied)
There then exists only what is
known as the equity of
redemption.This is simply the
right of the defendant mortgagor 7.5 One (1) year period reckoned
to extinguish the mortgage and from registration of certificate of sale
retain ownership of the property
by paying the secured debt within There is no dispute that in extrajudicial
the 90-day period after the foreclosures under Act 3135, the debtor
judgment becomes final, in or his or her successors-in- interest may
accordance with Rule 68, or even redeem the property within one year.
after the foreclosure sale but prior This redemption period should be
to its confirmation. reckoned from the date of registration of
the certificate of sale. (Development
Section 2, Rule 68 Bank of the Philippines v. Gagarani,
provides that -‟ x x If upon G.R. No. 172248, September 17, 2008
the trial x x the court shall citing Belisario v. Intermediate Appellate
find the facts set forth in Court, G.R. No. 73503, 30 August 1988,
the complaint to be true, it 165 SCRA 101, 107, citing PNB v. CA,
shall ascertain the amount et al., G.R. L-30831 and L-31176, Nov.
due to the plaintiff upon 21, 1979, 94 SCRA 357, 371)
the mortgage debt or
obligation, including
interest and costs, and
shall render judgment for 7.6 Period of right of redemption
the sum so found due and of juridical persons in extrajudicial
order the same to be paid foreclosure
into court within a period of
not less than ninety (90) In Goldenway Merchandising
days from the date of the Corporation v. Equitable PCI Bank; G.R.
service of such order, and No. 195540, March 13, 2013, the
that in default of such Supreme Court explained that under
payment the property be Section 47 of RA 8791 an exception is

Page 64 of 113
thus made in the case of juridical immediately foreclose the
persons to exercise the right of mortgage judicially in accordance
redemption from the date of foreclosure with the Rules of Court, or
sale, and expires upon registration of extrajudicially in accordance with
the certificate of sale or three months Act No. 3135, as amended.
after foreclosure, whichever is earlier.
Thus, the Supreme Court said: However, Section 47 of R.A. No.
8791 otherwise known as “The
The law governing cases of General Banking Law of 2000”
extrajudicial foreclosure of which took effect on June 13,
mortgage is Act No. 3135,14 as 2000, amended Act No. 3135.
amended by Act No. 4118. Said provision reads:
Section 6 thereof provides:
SECTION 47. Foreclosure of Real
SEC. 6. In all cases in which an Estate Mortgage.—In the event of
extrajudicial sale is made under foreclosure, whether judicially or
the special power hereinbefore extrajudicially, of any mortgage on real
referred to, the debtor, his estate which is security for any loan or
successors-in interest or any other credit accommodation granted,
judicial creditor or judgment the mortgagor or debtor whose real
creditor of said debtor, or any property has been sold for the full or
person having a lien on the partial payment of his obligation shall
property subsequent to the have the right within one year after the
mortgage or deed of trust under sale of the real estate, to redeem the
which the property is sold, may property by paying the amount due
redeem the same at any time under the mortgage deed, with interest
within the term of one year from thereon at the rate specified in the
and after the date of the sale; mortgage, and all the costs and
and such redemption shall be expenses incurred by the bank or
governed by the provisions of institution from the sale and custody of
sections four hundred and sixty- said property less the income derived
four to four hundred and sixty-six, therefrom. However, the purchaser at
inclusive, of the Code of Civil the auction sale concerned whether in a
Procedure,15 in so far as these judicial or extrajudicial foreclosure shall
are not inconsistent with the have the right to enter upon and take
provisions of this Act. possession of such property
immediately after the date of the
The one-year period of confirmation of the auction sale and
redemption is counted from the administer the same in accordance with
date of the registration of the law. Any petition in court to enjoin or
certificate of sale. In this case, restrain the conduct of foreclosure
the parties provided in their real proceedings instituted pursuant to this
estate mortgage contract that provision shall be given due course only
upon petitioner‟s default and the upon the filing by the petitioner of a
latter‟s entire loan obligation bond in an amount fixed by the court
becoming due, respondent may conditioned that he will pay all the

Page 65 of 113
damages which the bank may suffer by foreclosure sale, and expires
the enjoining or the restraint of the upon registration of the certificate
foreclosure proceeding. of sale or three months after
foreclosure, whichever is earlier.
Notwithstanding Act 3135, juridical There is likewise no retroactive
persons whose property is being sold application of the new redemption
pursuant to an extrajudicial foreclosure, period because Section 47
shall have the right to redeem the exempts from its operation those
property in accordance with this properties foreclosed prior to its
provision until, but not after, the effectivity and whose owners
registration of the certificate of shall retain their redemption
foreclosure sale with the applicable rights under Act No. 3135.
Register of Deeds which in no case xxx
shall be more than three (3) months The right of redemption being
after foreclosure, whichever is earlier. statutory, it must be exercised in
Owners of property that has been sold the manner prescribed by the
in a foreclosure sale prior to the statute, (See Mateo v. Court of
effectivity of this Act shall retain their Appeals, 99 Phil. 1042 [1956])
redemption rights until their expiration. and within the prescribed time
(Emphasis supplied.) limit, to make it effective.
Furthermore, as with other
Under the new law, an exception individual rights to contract and to
is thus made in the case of property, it has to give way to
juridical persons which are police power exercised for public
allowed to exercise the right of welfare. (Beltran v. Secretary of
redemption only “until, but not Health, supra note 18, at 587,
after, the registration of the citing Vda. de Genuino v. Court
certificate of foreclosure sale” of Agrarian Relations, No. L-
and in no case more than three 25035, February 26, 1968, 22
(3) months after foreclosure, SCRA 792, 796-797)
whichever comes first. (See A.M.
No. 99-10- 05-0 Re: Procedure in
Extra-Judicial Foreclosure of
Mortgages, August 7, 2001
[Unsigned Resolution]) 7.7 Reckoning period of equity of
xxx redemption

Section 47 did not divest juridical The reckoning period of equity of

persons of the right to redeem redemption was explained in Spouses
their foreclosed properties but Publico v. Bautista, G.R. No. 174096,
only modified the time for the July 20, 2010 as follows:
exercise of such right by reducing
the one-year period originally Clutching at straws, petitioners
provided in Act No. 3135. The claim that they were deprived of
new redemption period the equity of redemption when
commences from the date of the trial court failed to state the

Page 66 of 113
 period within which they could whose real property has
redeem. The Court of Appeals, been sold for the full or
however, did specify a period of partial payment of his
“ninety (90) days from finality of obligation shall have the
judgment” to pay the adjudged right within one year after
amount. This is in consonance the sale of the real estate,
with the period mentioned by to redeem the property by
Section 2, Rule 68 of the 1997 paying the amount due
Rules of Civil Procedure. (Sec. 2 under the mortgage deed,
of Rule 68 of the Rules of Civil with interest thereon at the
Procedures) While the trial court rate specified in the
did not use the phrase “entry of mortgage, and all the
judgment” as the reckoning point costs and expenses
for the redemption period, the incurred by the bank or
Rules provide that the date of institution from the sale
finality of the judgment shall be and custody of said
deemed to be the date of its property less the income
entry. (Sec. 2 of Rule 36 of the derived therefrom.
Rules of Civil Procedure)
b. Extrajudicial foreclosure
— There is equity of
redemption. According to
7.8 Rule on period of redemption the second paragraph of
Section 47 of Republic Act
Redemption period: No. 8791 known as The
General Banking Law of
2000, “Notwithstanding Act
1. When the mortgagor is a juridical 3135, juridical persons
person and mortgagee is a bank, quasi- whose property is being
bank or trust entity sold pursuant to an
extrajudicial foreclosure,
shall have the right to
a. Judicial foreclosure — redeem the property in
There is right of accordance with this
redemption. According to provision until, but not
the first paragraph of after, the registration of the
Section 47 of Republic Act certificate of foreclosure
No. 8791 known as The sale with the applicable
General Banking Law of Register of Deeds which in
2000 in the event of no case shall be more
foreclosure, whether than three (3) months after
judicially or extrajudicially, foreclosure, whichever is
of any mortgage on real earlier. “The new
estate which is security for redemption period
any loan or other credit commences from the date
accommodation granted, of foreclosure sale,and
the mortgagor or debtor

Page 67 of 113
 expires upon registration to the first paragraph of Section
of the certificate of sale or 47 of Republic Act No. 8791
three months after known as The General Banking
foreclosure, whichever is Law of 2000 in the event of
earlier.” (Goldenway foreclosure, whether judicially or
Merchandising extrajudicially, of any mortgage
Corporation vs. Equitable on real estate which is security
PCI Bank, G.R. No. for any loan or other credit
195540, March 13,2013) accommodation granted, the
mortgagor or debtor whose real
property has been sold for the full
2. When the mortgagor is an or partial payment of his
individual (non-juridical person) and obligation shall have the right
mortgagee is a bank, quasi-bank or trust within one year after the sale of
entity the real estate, to redeem the
property by paying the amount
(a) Judicial foreclosure — There is due under the mortgage deed,
right of redemption. According to with interest thereon at the rate
the first paragraph of Section 47 specified in the mortgage, and all
of Republic Act No. 8791 known the costs and expenses incurred
as The General Banking Law of by the bank or institution from the
2000 in the event of foreclosure, sale and custody of said property
whether judicially or less the income derived
extrajudicially, of any mortgage therefrom.
on real estate which is security
for any loan or other credit
accommodation granted, the
mortgagor or debtor whose real 7.9 Right of redemption in judicial
property has been sold for the full foreclosure
or partial payment of his
obligation shall have the right As a rule, there is no right of redemption
within one year after the sale of in judicial foreclosure under Rule 69 but
the real estate, to redeem the only equity of redemption. This is simply
property by paying the amount the right of the defendant mortgagor to
due under the mortgage deed, extinguish the mortgage and retain
with interest thereon at the rate ownership of the property by paying the
specified in the mortgage, and all secured debt within the 90-day period
the costs and expenses incurred nor more than 120 days from the entry
by the bank or institution from the of judgment (Rule 68, Section 2) or even
sale and custody of said property after foreclosure sale but prior to
less the income derived confirmation of sale (Huerta Alba
therefrom. Resort, Inc. v. Court of Appeals, G.R.
No. 128567, September 1, 2000).
However, when the mortgagee is a
(b) Extrajudicial foreclosure — There bank, quasi-bank or trust entity in the
is right of redemption. According event of foreclosure, whether judicially

Page 68 of 113
or extrajudicially, of any mortgage on Upon the finality of the order of
real estate which is security for any loan confirmation or upon the
or other credit accommodation granted, expiration of the period of
the mortgagor or debtor whose real redemption when allowed by law,
property has been sold for the full or the purchaser at the auction sale
partial payment of his obligation shall or last redemptioner, if any, shall
have the right within one year after the be entitled to the possession of
sale of the real estate, to redeem the the property unless a third party
property by paying the amount due is actually holding the same
under the mortgage deed, with interest adversely to the judgment
thereon at the rate specified in the obligor. The said purchaser or
mortgage, and all the costs and last redemptioner may secure a
expenses incurred by the bank or writ of possession, upon motion,
institution from the sale and custody of from the court which ordered the
said property less the income derived foreclosure. (second paragraph
therefrom. [Underscore supplied] of Section 3, Rule 68)
(Section 47 of Republic Act No. 8791
known as The General Banking Law of
2000)
7.11 Sale of mortgaged property;
effect

7.10 When purchaser can enter and Effect of defendant’s failure to pay
take possession of property under within the period
RA 8791
When the defendant, after being
directed to do so fails to pay the amount
a. Mortgagee is a bank, quasi- of the judgment within a period of not
bank, trust entity less than ninety (90) days nor more than
one hundred twenty (120) days from the
The purchaser at the auction sale entry of judgment, the court, upon
concerned whether in a judicial or motion, shall order the property to be
extra-judicial foreclosure shall sold in the manner and under the
have the right to enter upon and provisions of Rule 39 and other
take possession of such property regulations governing sales of real
immediately after the date of the estate under execution. (Section 3, Rule
confirmation of the auction sale 68)
and administer the same in
accordance with law. (Section 47
of Rule 8791, The General Effect of sale of the property mortgaged
Banking Law of 2000)
The effect of the sale of the property
b. Mortgagee is not a bank, mortgaged are as follows:
quasi-bank or trust entity

Page 69 of 113
1. Such sale shall not affect the
rights of persons holding prior When entitled to possession of property
encumbrances upon the property foreclosed
or a part thereof, and
Upon the finality of the order of
confirmation or upon the
2. When confirmed by an order of expiration of the period of
the court, also upon motion, it redemption when allowed by
shall operate to divest the rights law. (last paragraph, Section 3,
in the property of all the parties to Rule 68)
the action and to vest their rights
in the purchaser, subject to such
rights of redemption as may be Exception
allowed by law.
Unless a third party is actually
holding the same adversely to
3. Upon the finality of the order of the judgment obligor. (last
confirmation or upon the paragraph, Section 3, Rule 68)
expiration of the period of
redemption when allowed by law,
the purchaser at the auction sale
or last redemptioner, if any, shall How to effect possession of property
be entitled to the possession of foreclosed
the property unless a third party
is actually holding the same The said purchaser or last redemptioner
adversely to the judgment may secure a writ of possession, upon
obligor. The said purchaser or motion, from the court which ordered the
last redemptioner may secure a foreclosure. (last paragraph, Section 3,
writ of possession, upon motion, Rule 68)
from the court which ordered the
foreclosure. (Section 3, Rule 68)

7.12 Rule on issuance of writ of

possession
Effect of finality of the order of
confirmation or expiration of period to
redeem In Spouses Fortaleza v. Spouses
Lapitan, G.R. No. 178288, August 15,
Who is entitled to possession of 2012, the Supreme Court explained the
property foreclosed rules on issuance of writ of possession
in this way:
The purchaser at the auction
sale or last redemptioner, if Spouses Fortaleza claim that the
any, shall be entitled to the RTC grievously erred in ignoring
possession of the property. (last the apparent nullity of the
paragraph, Section 3, Rule 68)
Page 70 of 113
mortgage and the subsequent It was spouses Fortaleza
foreclosure sale. For them, the themselves as debtors-
RTC should have heard and mortgagors who are occupying
considered these matters in the subject property. They are not
deciding the case on its merits. even strangers to the foreclosure
They relied on the cases of proceedings in which the ex parte
Barican (245 Phil. 316 [1988]) writ of possession was applied
and Cometa (235 Phil. 569 for. Significantly, spouses
[1987]) in taking exception to the Fortaleza did not file any direct
ministerial duty of the trial court to action for annulment of the
grant a writ of possession. But foreclosure sale of the subject
the cited authorities are not on all property. Also, the peculiar
fours with this case. In Barican, circumstance of gross
we held that the obligation of a inadequacy of the purchase price
court to issue a writ of is absent.
possession ceases to be
ministerial if there is a third party Accordingly, unless a case falls
holding the property adversely to under recognized exceptions
the judgment debtor. Where such provided by law (RULES OF
third party exists, the trial court COURT, Rule 39, Section 35,
should conduct a hearing to which is made applicable to the
determine the nature of his extrajudicial foreclosure of real
adverse possession. And in estate mortgages by Section 6 of
Cometa, there was a pending Act 3135) and jurisprudence,
action where the validity of the (See Metropolitan Bank and Trust
levy and sale of the properties in Co. v. Lamb Construction
question were directly put in Consortium Corporation, G.R.
issue which this Court found pre- No. 170906, November 27, 2009,
emptive of resolution. For if the 606 SCRA 159; Cometa v.
applicant for a writ of possession Intermediate Appellate Court,
acquired no interest in the supra; Sulit v. Court of Appeals,
property by virtue of the levy and 335 Phil. 914 [1997]) we maintain
sale, then, he is not entitled to its the ex parte, non-adversarial,
possession. Moreover, it is summary and ministerial nature
undisputed that the properties of the issuance of a writ of
subject of said case were sold at possession as outlined in Section
an unusually lower price than 7 of Act No. 3135, as amended
their true value. Thus, equitable by Act No. 4118, which provides:
considerations motivated this
Court to withhold the issuance of SECTION 7. In any sale made under
the writ of possession to prevent the provisions of this Act, the purchaser
injustice on the other party. may petition the Court of First Instance
of the province or place where the
Here, there are no third parties property or any part thereof is situated,
holding the subject property to give him possession thereof during
adversely to the judgment debtor. the redemption period, furnishing bond

Page 71 of 113
in an amount equivalent to the use of the right to a writ of possession
the property for a period of twelve prescribe? Supreme Court said:
months, to indemnify the debtor in case
it be shown that the sale was made Petitioners assail the CA‟s ruling
without violating the mortgage or without that the issuance of a writ of
complying with the requirements of this possession does not prescribe.
Act. Such petition shall be made under They maintain that Articles 1139,
oath and filed in form of an ex parte (Civil Code, Article 1139. Actions
motion x x x and the court shall, upon prescribe by the mere lapse of
approval of the bond, order that a writ of time fixed by law.) 1149, (Civil
possession issue, addressed to the Code, Article 1149. All other
sheriff of the province in which the actions whose periods are not
property is situated, who shall execute fixed in this Code or in other laws
said order immediately. (Emphasis must be brought within five years
supplied.) from the time the right of action
accrues.) and 1150 (Civil Code,
Under the provision cited above, Article 1150. The time for
the purchaser in a foreclosure prescription for all kinds of
sale may apply for a writ of actions, when there is no special
possession during the provision which ordains
redemption period. Notably, in otherwise, shall be counted from
this case, the one-year period for the day they may be brought.) of
the spouses Fortaleza to redeem the Civil Code regarding
the mortgaged property had prescriptive periods cover all
already lapsed. Furthermore, kinds of action, which necessarily
ownership of the subject property include the issuance of a writ of
had already been consolidated possession. Petitioners posit that,
and a new certificate of title had for purposes of the latter, it is the
been issued under the name of five-year prescriptive period
the spouses Lapitan. Hence, as provided in Article 1149 of the
the new registered owners of the Civil Code which applies because
subject property, they are even Act No. 3135 itself did not provide
more entitled to its possession for its prescriptive period. Thus,
and have the unmistakable right Veterans Bank had only five
to file an ex parte motion for the years from September 12, 1983,
issuance of a writ of possession. the date when the Certificate of
Sale was issued in its favor, to
move for the issuance of a writ of
possession.
7.13 Prescription of the right to a
writ of possession We cannot accept petitioners‟
contention. We have held before
In Spouses Edralin v. Philippine that the purchaser‟s right “to
Veterans Bank, G.R. No. 168523, March request for the issuance of the
9, 2011 in resolving the question: Does writ of possession of the land
never prescribes.” (Spouses

Page 72 of 113
 Paderes v. Court of Appeals, 502 whose property has been previously
Phil. 76, 97 (2005), citing Rodil v. foreclosed and sold. x x x
Judge Benedicto, 184 Phil. 108
[1980]) “The right to possess a xxxx
property merely follows the right
of ownership,” (Metropolitan Bank Moreover, with the rule that the
and Trust Co. v. Santos, G.R. No. expiration of the 1-year redemption
157867, December 15, 2009, 608 period forecloses the obligors‟ right to
SCRA 222, 234) and it would be redeem and that the sale thereby
illogical to hold that a person becomes absolute, the issuance
having ownership of a parcel of thereafter of a final deed of sale is at
land is barred from seeking best a mere formality and mere
possession thereof. In Calacala confirmation of the title that is already
v. Republic of the Philippines, vested in the purchaser. x x x (Id. at
502 Phil. 680 (2005) the Republic 689-691)
was the highest bidder in the
public auction but failed for a long Moreover, the provisions cited by
period of time to execute an petitioners refer to prescription of
Affidavit of Consolidation and to actions. An action is “defined as
seek a writ of possession. an ordinary suit in a court of
Calacala insisted that, by such justice, by which one party
inaction, the Republic‟s right over prosecutes another for the
the land had prescribed, been enforcement or protection of a
abandoned or waived. The right, or the prevention or redress
Court‟s language in rejecting of a wrong.” (Metropolitan Bank
Calacala‟s theory is illuminating: and Trust Co. v. Santos, supra
note 55 at 236, citing Ancheta v.
[T]he Republic‟s failure to execute the Metropolitan Bank and Trust
acts referred to by the petitioners within Company, Inc., 507 Phil. 161
ten (10) years from the registration of [2005]) On the other hand “[a]
the Certificate of Sale cannot, in any petition for the issuance of the
way, operate to restore whatever rights writ, under Section 7 of Act No.
petitioners‟ predecessors-in-interest had 3135, as amended, is not an
over the same. For sure, petitioners ordinary action filed in court, by
have yet to cite any provision of law or which one party „sues another for
rule of jurisprudence, and we are not the enforcement or protection of
aware of any, to the effect that the a right, or prevention or redress
failure of a buyer in a foreclosure sale to of a wrong.‟ It is in the nature of
secure a Certificate of Final Sale, an ex parte motion [in] which the
execute an Affidavit of Consolidation of court hears only one side. It is
Ownership and obtain a writ of taken or granted at the instance
possession over the property thus and for the benefit of one party,
acquired, within ten (10) years from the and without notice to or consent
registration of the Certificate of Sale will by any party adversely affected.
operate to bring ownership back to him Accordingly, upon the filing of a
proper motion by the purchaser in

Page 73 of 113
 a foreclosure sale, and the 7.15 Deficiency judgment, defined
approval of the corresponding
bond, the writ of possession It refers to judgment for any unpaid
issues as a matter of course and balance of the obligation, which remains
the trial court has no discretion after foreclosure of mortgage, judicial or
on this matter.” (Metropolitan extrajudicial, which a creditor may
Bank and Trust Co. v. Bance, secure from the court. (Phil. Bank of
G.R. No. 167280, April 30, 2008, Commerce v. de Vera, 6 SCRA 1026
553 SCRA 507, 515-516. [1962]) In extrajudicial foreclosure of
Emphasis supplied) mortgage, where the proceeds of the
sale are insufficient to pay the debt, the
mortgagee has the right to recover the
deficiency from the debtor (Prudential
Bank v. Martinez, 189 SCRA 612
7.14 Deficiency judgment [1990]). In a foreclosure, the deficiency
is determined by simple arithmetical
computation immediately after
Effect of deficiency foreclosure (United Planters Sugar
Milling Co., Inc. (UPSUMCO) v. CA, 527
If upon the sale of any real property SCRA 336 [2007])
there be a balance due to the plaintiff
after applying the proceeds of the sale
upon motion the court shall:
7.16 Prescription of an action to
recover deficiency
1. render judgment against the
defendant for any such balance In Quirino Gonzales Logging
for which, by the record of the Concessionaire v. Court of Appeals,
case, he may be personally G.R. No. 126568, April 30, 2003, the
liable to the plaintiff, upon which Supreme Court explained the nature of
execution may issue immediately an action to recover deficiency and its
if the balance is all due at the prescriptive period in this wise:
time of the rendition of the
judgment; With respect to the first to the fifth
causes of action, as gleaned from
the complaint, the Bank seeks
2. otherwise the plaintiff shall be the recovery of the deficient
entitled to execution at such time amount of the obligation after the
as the balance remaining foreclosure of the mortgage.
becomes due under the terms of Such suit is in the nature of a
the original contract, which time mortgage action because its
shall be stated in the judgment. purpose is precisely to enforce
(Section 6, Rule 68) the mortgage contract. (Caltex
Philippines, Inc. v. Intermediate
Appellate Court, 176 SCRA 741,
754 [1989]) A mortgage action

Page 74 of 113
prescribes after ten years from hence, the action on its first to
the time the right of action fifth causes had by then
accrued. (Civil Code, Article prescribed. No other conclusion
1142. The right of action accrues can be reached even if the suit is
when there exists a cause of considered as one upon a written
action, which consists of 3 contract or upon an obligation to
elements, namely: a) a right in pay the deficiency which is
favor of the plaintiff by whatever created by law, (Id.) the
means and under whatever law it prescriptive period of both being
arises or is created; b) an also ten years. (Civil Code, Art.
obligation on the part of 1144)
defendant to respect such right;
and c) an act or omission on the
part of such defendant violative of
the right of the plaintiff 7.17 When no deficiency allowed
(Parañaque Kings Enterprises,
Inc. v. Court of Appeals, 268 In the following cases, deficiency
SCRA 727, 739 [1997]; Espaňol judgment is not allowed:
v. Chairman, Philippine Veterans
Administration, 137 SCRA 314,
318 [1985] [citations omitted]) 1. Recto Law — In a contract of
The law gives the mortgagee the sale of personal property the price of
right to claim for the deficiency which is payable in installments, the
resulting from the price obtained vendor may exercise any of the
in the sale of the property at following remedies:
public auction and the
outstanding obligation at the time xxx
of the foreclosure proceedings. (3) Foreclose the chattel
(DBP v. Tomeldan, 101 mortgage on the thing sold, if one
SCRA171, 174 (1980) (citations has been constituted, should the
omitted); See also Development vendee‟s failure to pay cover two
Bank of the Philippines v. Mirang, or more installments. In this case,
66 SCRA 141, 144-145 [1975], he shall have no further action
citing Philippine Bank of against the purchaser to recover
Commerce v. Tomas de Vera 6 any unpaid balance of the price.
SCRA 1026 [1962]) In the Any agreement to the contrary
present case, the Bank, as shall be void. (Article 1484, Civil
mortgagee, had the right to claim Code)
payment of the deficiency after it
had foreclosed the mortgage in 2. Mortgage debt due from estate
1965. (See id) In other words, the — A creditor holding a claim against the
prescriptive period started to run deceased secured by mortgage or other
against the Bank in 1965. As it collateral security may:
filed the complaint only on
January 27, 1977, more than ten
years had already elapsed, 1. Abandon the security and
prosecute his claim in the

Page 75 of 113
 manner provided in this rule,
and share in the general
distribution of the assets of
the estate;
2. or he may foreclose his
mortgage or realize upon his
security, by action in court,
making the executor or
administrator a party
defendant, and if there is a
judgment for a deficiency,
after the sale of the
mortgaged premises, or the
property pledged, in the
foreclosure or other
proceeding to realize upon the
security, he may claim his
deficiency judgment in the
manner provided in the
preceding section;
3. or he may rely upon his
mortgage or other security
alone, and foreclosure the
same at any time within the
period of the statute of
limitations, and in that event
he shall not be admitted as a
creditor, and shall receive no
share in the distribution of the
other assets of estate; but
nothing herein contained shall
prohibit the executor or
administrator from redeeming
the property mortgaged or
pledged, by paying the debt
for which it is held as security,
under the direction of the
court, if the court shall
adjudge it to be for the best
interest of the estate that such
redemption shall be made.
(Section 7, Rule 86)

Page 76 of 113
8. Partition In partition, the court must first
determine the existence of co-
ownership. The action will not lie
8.1 Complaint in action for if the plaintiff has no proprietary
partition of real estate interest in the subject property.
Indeed, the rules (Section 1, Rule
69 of the Rules of Civil
What to allege in complaint for partition Procedure) require him to set
forth in his complaint the nature
A person having the right to compel the and extent of his title to the
partition of real estate may do so as property. It would be premature
setting forth in his complaint: to order partition until the
question of ownership is first
definitely resolved. (Catapusan v.
1. the nature and extent of his Court of Appeals, 332 Phil. 586,
title and an adequate 590 (1996); Ocampo v. Ocampo,
description of the real estate 471 Phil. 519, 533-534 [2004])
of which partition is
demanded and In this jurisdiction, an action for
2. joining as defendants all other partition is comprised of two
persons interested in the phases: first, the trial court, after
property. (Section 1, Rule 69) determining that a co-ownership
Parties in complaint for in fact exists and that partition is
partition proper, issues an order for
partition; and, second, the trial
court promulgates a decision
Party to file partititon (Plaintiff) confirming the sketch and
subdivision of the properties
A person having the right to compel the submitted by the parties (if the
partition of real estate. (Section 1, Rule parties reach an agreement) or
69) by the appointed commissioners
(if the parties fail to agree), as the
Defendants in action for partition case may be. (Sepulveda, Sr. v.
Pelaez, G.R. No. 152195, 31
All other persons interested in the January 2005, 450 SCRA 302,
property. (Section 1, Rule 69) 312, citing Vda. de Daffon v.
Court of Appeals, 436 Phil. 233,
241 (2002); Maglucot-aw v.
8.2 Partition and its two phases Maglucot, 385 Phil. 720, 730-731
(2000])
In Dela Cruz vs. Dela Cruz G.R. No.
192383, December 4, 2013, in The delineations of these two phases
explaining the action for partition and its have already been thoroughly discussed
two phases the Supreme Court said: by this Court in several cases where it
explained:

Page 77 of 113
The first phase of a partition been accorded opportunity to be
and/or accounting suit is taken up heard thereon, and an award for
with the determination of whether the recovery by the party or
or not a co-ownership in fact parties thereto entitled of their
exists, (i.e., not otherwise legally just share in the rents and profits
proscribed) and may be made by of the real estate in question.
voluntary agreement of all the Such an order is, to be sure, final
parties interested in the property. and appealable. (Maglucot-aw v.
This phase may end with a Maglucot, 385 Phil. 720, 730- 731
declaration that plaintiff is not [2000])
entitled to have a partition either
because a co-ownership does not
exist, or partition is legally
prohibited. It may end, upon the 8.3 Substantive law on partition
other hand, with an adjudgment
that a co-ownership does in truth The Civil Code provides the following
exist, partition is proper in the provisions on the right to demand
premises and an accounting of partition:
rents and profits received by the
defendant from the real estate in
1. No co-owner shall be obliged to
question is in order. In the latter
remain in the co-ownership. Each
case, the parties may, if they are
co-owner may demand at any
able to agree, make partition
time the partition of the thing
among themselves by proper
owned in common, insofar as his
instruments of conveyance, and
share is concerned.
the court shall confirm the
a. Nevertheless, an agreement
partition so agreed upon. In either
to keep the thing undivided for
case — i.e., either the action is
a certain period of time, not
dismissed or partition and/or
exceeding ten years, shall be
accounting is decreed — the
valid. This term may be
order is a final one, and may be
extended by a new
appealed by any party aggrieved
agreement.
thereby.
b. A donor or testator may
The second phase commences
prohibit partition for a period
when it appears that “the parties
which shall not exceed twenty
are unable to agree upon the
years. Neither shall there be
partition” directed by the court. In
any partition when it is
that event, partition shall be done
prohibited by law.
for the parties by the court with
the assistance of not more than
three (3) commissioners. This c. No prescription shall run in
second stage may well also deal favor of a co-owner or co-heir
with the rendition of the against his co-owners or co-
accounting itself and its approval heirs so long as he expressly
by the court after the parties have or impliedly recognizes the

Page 78 of 113
 co-ownership. (Article 494, causes for which partnership
Civil Code) is dissolved takes place, or
when the court finds for
compelling reasons that divi-
2. Notwithstanding the provisions of sion should be ordered, upon
the receding article, the co- petition of one of the co-heirs.
owners cannot demand a (Article 1083, Civil Code)
physical division of the thing
owned in common, when to do so 6. Voluntary heirs upon whom
would render it unserviceable for some condition has been
the use for which it is intended. imposed cannot demand a
But the co-ownership may be partition until the condition has
terminated in accordance with been ful-filled; but the other co-
article 498. (Article 495, Civil heirs may demand it by giving
Code) sufficient security for the rights
which the former may have in
3. Partition may be made by case the condition should be
agreement between the parties or complied with, and until it is
by judicial proceedings. Partition known that the condition has not
shall be governed by the Rules of been fulfilled or can never be
Court insofar as they are complied with, the partition shall
consistent with this Code. (Article be understood to be provisional.
496, Civil Code) (Article 1084, Civil Code)

4. Whenever the thing is essentially

indivisible and the co-owners 8.4 JURISDICTION
cannot agree that it be allotted to
one of them who shall indemnify Jurisdiction on the complaint for partition
the others, it shall be sold and its lies with the Regional Trial Court (RTC)
proceeds distributed. (Article 498, and the Municipal Trial Court (MTC) and
Civil Code) Metropolitan Trial Court (MeTC)
depending on the assessed value of the
5. Every co-heir has a right to property, personal and real, involved.
demand the division of the estate
unless the testator should have
expressly forbidden its partition, As conferred by law, the jurisdiction are
in which case the period of as follows:
indivision shall not exceed twenty
years as provided in article 494.
This power of the testator to 1. Municipal Trial Court (MTC),
prohibit division applies to the Metropolitan Trial Court
legitime. (MeTC) — where the value of
the claim or the personal
a. Even though forbidden by the prop-erty does not exceed
testator, the co-ownership P300,000.00 outside of Metro
terminates when any of the Manila (Municipal Trial Court

Page 79 of 113
 [MTC])or P400,000.00 in
Metro Manila (Metropolitan Where the plaintiff or any of the
Trial Court [MeTC]) or where principal plaintiff resides or where
the value of the real property the defendant or any of the
does not exceed P20,000.00 principal defendants resides at
outside Metro Manila the option of the plaintiff. (Section
(Municipal Trial Court [MTC]) 2, Rule 4)
or P50,000.00 in Metro Manila
(Metropolitan Trial Court
[MeTC]).

2. Regional Trial Court (RTC) —

If the value exceeds the
above amounts or if the
subject matter incapable of
pecuniary estimation is
exclusively within the
jurisdiction of the Regional
Trial Court. (Judiciary Act of
1980; BP Blg. 129 [Section 19
(1), (2), Section 33(3)] as
amended by RA 7691)

8.5 VENUE

The venue of special civil action is

governed by the general rules on venue
under Rule 4 of the 1997 Rules on Civil
Procedure unless otherwise provided in
the particular rule governing special civil
action.
Thus, the following are the rules on
venue:

Where the subject matter is a real

property:
In the court which has jurisdiction
over the area wherein the real
property involved, or a portion
thereof, is situated. (Section 1,
Rule 4)

Where the subject matter is a personal

property:

Page 80 of 113
9. Forcible entry and unlawful
detainer
Prescriptive period to bring the action

At any time within one (1) year after

9.1 Who may institute such unlawful deprivation or withholding
proceedings, and when of possession bring an action. (Section
1, Rule 70)
Who may file the proceedings

Where to file
a. Person to file forcible entry
In the proper Municipal Trial
A person deprived of the Court. (Section 1, Rule 70)
possession of any land or
building. (Section 1, Rule 70)
Against whom
How possession was deprived
Against the person or persons
By force, intimidation, threat, unlawfully withholding or
strategy, or stealth. (Section 1, depriving of possession, or any
Rule 70) person or persons claiming under
them. (Section 1, Rule 70)

Who may file the proceedings

Reliefs

b. Person to file unlawful detainer For the restitution of such

possession together with
A lessor, vendor, vendee, or damages and costs. (Section 1,
other person or legal Rule 70)
representatives or assigns of
such lessor, vendor, vendee, or
other person. (Section 1, Rule 9.2 Three kinds of actions to
70) judicially recover possession of real
property
How possession was unlawfully withheld
According to the Supreme Court in
Against whom the possession of Bokingko v. Court of Appeals, G.R. No.
any land or building is unlawfully 161739, May 4, 2006, there are three
withheld after the expiration or kinds of actions to judicially recover
termination of the right to hold possession of real property and these
possession, by virtue of any are distinguished in this wise:
contract, express or implied.
(Section 1, Rule 70) What really distinguishes an
action for unlawful detainer from

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 a possessory action (accion Municipal Trial Courts
publiciana) and from a and Municipal Circuit Trial
reinvindicatory action (accion Courts in civil cases.—
reinvindicatoria) is that the first is Metropolitan Trial Courts,
limited to the question of Municipal Trial Courts, and
possession de facto. An unlawful Municipal Circuit Trial
detainer suit (accion interdictal) Courts shall exercise:
together with forcible entry are
the two forms of an ejectment suit xxxx
that may be filed to recover
possession of real property. (2) Exclusive original
Aside from the summary action of jurisdiction over cases of
ejectment, accion publiciana or forcible entry and unlawful
the plenary action to recover the detainer: Provided, That
right of possession and accion when, in such cases, the
reinvindicatoria or the action to defendant raises the
recover ownership which includes question of ownership in
recovery of possession, make up his pleadings and the
the three kinds of actions to question of possession
judicially recover possession. cannot be resolved without
(Ganila v.Court of Appeals, G.R. deciding the issue of
No. 150755, June 28, 2005, 461 ownership, the issue of
SCRA 435, 445) ownership shall be
resolved only to determine
the issue of possession.

9.3 Jurisdiction of actions to Thus exclusive, original jurisdiction over

judicially recover possession of real ejectment proceedings (accion
property interdictal) is lodged with the first level
courts. This is clarified in Section 1,
In Dela Cruz v. Court of Appeals, G.R. Rule 70 of the 1997 Rules of Civil
No. 139442, December 6, 2006, the Procedure that embraces an action for
Supreme Court held on the jurisdiction forcible entry (detentacion), where one
of actions to judicially recover is deprived of physical possession of
possession of real property as follows: any land or building by means of force,
intimidation, threat, strategy, or stealth.
Section 33 of Chapter III — on In actions for forcible entry, three (3)
Metropolitan Trial Courts, requisites have to be met for the
Municipal Trial Courts, and municipal trial court to acquire
Municipal Circuit Trial Courts of jurisdiction. First, the plaintiffs must
B.P. No. 129 (The Judiciary allege their prior physical possession of
Reorganization Act of 1980) the property. Second, they must also
provides: assert that they were deprived of
possession either by force, intimidation,
Section 33. Jurisdiction of threat, strategy, or stealth. Third, the
Metropolitan Trial Courts, action must be filed within one (1) year

Page 82 of 113
from the time the owners or legal (2) In all civil actions which
possessors learned of their deprivation involve the title to, or possession
of physical possession of the land or of, real property, or any interest
building. therein, except actions for
forcible entry into and unlawful
The other kind of ejectment proceeding detainer of lands or buildings,
is unlawful detainer (desahucio), where original jurisdiction over which is
one unlawfully withholds possession of conferred upon Metropolitan Trial
the subject property after the expiration Courts, Municipal Trial Courts
or termination of the right to possess. and Municipal Circuit Trial
Here, the issue of rightful possession is Courts.
the one decisive; for in such action, the
defendant is the party in actual Two (2) kinds of action to recover
possession and the plaintiff‟s cause of possession of real property which fall
action is the termination of the under the jurisdiction of the RTC are:
defendant‟s right to continue in (1) the plenary action for the recovery of
possession. (Sumulong v. Court of the real right of possession (accion
Appeals, G.R. No. 108817, May 10, publiciana) when the dispossession has
1994, 232 SCRA 372, 383) The lasted for more than one year or when
essential requisites of unlawful detainer the action was filed more than one (1)
are: (1) the fact of lease by virtue of a year from date of the last demand
contract express or implied; (2) the received by the lessee or defendant;
expiration or termination of the and (2) an action for the recovery of
possessor‟s right to hold possession; (3) ownership (accion reivindicatoria) which
withholding by the lessee of the includes the recovery of possession.
possession of the land or building after
expiration or termination of the right to These actions are governed by the
possession; (4) letter of demand upon regular rules of procedure and
lessee to pay the rental or comply with adjudication takes a longer period than
the terms of the lease and vacate the the summary ejectment suit.
premises; and (5) the action must be
filed within one (1) year from date of last
demand received by the defendant.
9.4 VENUE OF EJECTMENT
On the other hand, Section 19, of CASES
Chapter II of B.P. No. 129 on Regional
Trial Courts provides: The rule on venue involving ejectment
cases can be found in Rule 4 of the
Section 19. Jurisdiction in civil Rules on Civil Procedure, providing as
cases.—Regional Trial Courts follows:
shall exercise exclusive original
jurisdiction: Venue of real actions.—Actions
affecting title to or possession of
xxxx real property, or interest therein,
shall be commenced and tried in
the proper court which has

Page 83 of 113
 jurisdiction over the area wherein 601 SCRA 147, 156) In ejectment
the real property involved, or a cases, the complaint should
portion thereof, is situated. embody such statement of facts
as to bring the party clearly within
the class of cases under Section
Forcible entry and detainer 1, Rule 70 of the 1997 Rules of
actions shall be commenced and Civil Procedure, as amended.
tried in the municipal trial court of
the municipality or city wherein There are two entirely distinct
the real property involved, or a and different causes of action
portion thereof, is situated. (Rule under the aforequoted rule, to wit:
4, Section 1) (1) a case for forcible entry,
which is an action to recover
When Rule not applicable.— possession of a property from the
defendant whose occupation
thereof is illegal from the
This Rule shall not apply. beginning as he acquired
possession by force, intimidation,
threat, strategy or stealth; and (2)
a. In those cases where a specific a case for unlawful detainer,
rule or law provides otherwise; or which is an action for recovery of
b. Where the parties have validly possession from the defendant
agreed in writing before the filing whose possession of the property
of the action on the exclusive was inceptively lawful by virtue of
venue thereof. (Rule 4, Section 4) a contract (express or implied)
with the plaintiff, but became
illegal when he continued his
possession despite the
9.5 The distinct and different termination of his right
causes of action under Rule 70 thereunder.[Italics ours supplied]
Section 1

In Sarmienta v. Manalite Homeowners

Association, Inc., G.R. No. 182953, 9.6 Effect of owner‟s demand to
October 11, 2010, the Supreme Court vacate and tenant‟s refusal to do so
ruled on the distinct and different causes
of action under Rule 70, Section 1 as In Siapian v. Court of Appeals, G.R. No.
follows: 111928, March 1, 2000, the Supreme
Court explained:
Well settled is the rule that what
determines the nature of the For the purpose of bringing an
action as well as the court which ejectment suit, two requisites
has jurisdiction over the case are must concur: (1) there must be
the allegations in the complaint. failure to pay rent or comply with
(Canlas v. Tubil, G.R. No. the conditions of the lease, and
184285, September 25, 2009, (2) there must be demand both to

Page 84 of 113
 pay or to comply and vacate relationship under a lease
within the periods specified in contract, which does not exist in
Section 2, Rule 70 [of the 1964 this case. Further, the rule
Rules of Court] namely 15 days applies only in instances where
in case of lands and 5 days in the grounds relied upon for
case of buildings. The first ejectment are non-payment of
requisite refers to the existence rentals or violation of the
of the cause of action for unlawful conditions of the lease, as the
detainer while the second refers case may be. In those cited
to the jurisdictional requirement situations, notice to vacate is
of demand in order that said crucial. (Arquelada v. Philippine
cause of action may be pursued. Veterans Bank, G.R. No. 139137,
(Cetus Development Inc. vs. CA, 31 March 2000, 329 SCRA 536,
176 SCRA 72, 80 [1989]) It is 547) A demand is a pre- requisite
therefore clear that before the to an action for unlawful detainer,
lessor may institute such action, when the action is based on
he must make a demand upon “failure to pay rent due or to
the lessee to pay or comply with comply with the conditions of his
the conditions of the lease and to lease,” but not where the action is
vacate the premises. It is the to terminate the lease because of
owner‟s demand for the tenant to the expiration of its term. (Co
vacate the premises and the Tiamco v. Diaz, No. L-7, 22
tenant‟s refusal to do so which January 1946, 75 Phil 672, 677)
makes unlawful the withholding of
possession. Such refusal violates
the owner‟s right of possession
giving rise to an action for
unlawful detainer. (Dio vs. 9.8 Demand to vacate not
Concepcion, 296 SCRA 579, 590 jurisdictional when ground is
[1998]) expiration of term of lease

In Tubiano v. Razo, G.R. No. 132598,

9.7 When demand to vacate is July 13, 2000, it was held that demand
prerequisite in action for unlawful to vacate is not a jurisdictional
detainer requirement when the ground for
ejectment is expiration of term of the
In Lanuza v. Muñoz, G.R. No. 147372, lease contract. Thus, the High Court
May 27, 2004, the Supreme Court said:
explained when demand is a
prerequisite in action for unlawful “xxx The averment that the lease
detainer as follows: was on a month-to-month basis is
equivalent to an allegation that
An examination of Section 2, the lease expired at the end of
Rule 70, readily shows that the every month. It is therefore
rule is applicable only where immaterial that rents had not
there is a lessor-lessee been paid since July, 1955, since

Page 85 of 113
what made petitioner liable for 9.9 The one-year period to bring
ejectment was the expiration of an action for forcible entry when
the lease. This being the case, counted
demand to vacate was
unnecessary. As this Court The one-year period within which to
explained in Co Tiamco v. Diaz, bring an action for forcible entry is
78 Phil. 672 (1946), Rule 70, generally counted from the date of
section 2 requires previous actual entry on the land, except that
demand only when the action is when the entry is through stealth, the
„for failure to pay rent due or to one-year period is counted from the time
comply with the conditions for his the plaintiff learned thereof. (Nuñez v.
lease.‟ Where the action is to Slteas Phoenix Solutions, G.R. No.
terminate the lease because of 180542, April 12,2010 citing Ong v.
the expiration of its term, no such Parel, 407 Phil. 1045, 1053 [2001])
demand is necessary. In the
latter case upon the expiration of
the term of the lease, the landlord
may go into the property and 9.10 The one-year period to bring
occupy it, and if the lessee an action for unlawful detainer
refuses to vacate the premises,
an action for unlawful detainer The Supreme Court in Republic of the
may immediately be brought Philippines v. Sunvar Realty
against him even before the Development Corporation, G.R. No.
expiration of the fifteen or five 194880, June 20, 2012, citing Delos
days provided in Rule 70, section Reyes v. Spouses Odenes, G.R. No.
2. 178096, 23 March 2011, 646 SCRA
328, 334, citing Valdez, Jr. v. CA, 523
Accordingly, upon the expiration Phil. 39, 46 (2006) defined the nature
of the lease in this case, and scope of an unlawful detainer suit,
petitioner became a deforciant as follows:
unlawfully withholding possession
of the property. There was no Unlawful detainer is an action to
need for a demand to be served recover possession of real
on him, except to negate any property from one who illegally
inference that respondent, as withholds possession after the
lessor, had agreed to an expiration or termination of his
extension of the term of the lease right to hold possession under
under article 1687 of the Civil any contract, express or implied.
Code.” (Racaza vs. Susana The possession by the defendant
Realty, Inc., 18 SCRA 1176, in unlawful detainer is originally
1177) legal but became illegal due to
the expiration or termination of
the right to possess. The
proceeding is summary in nature,
jurisdiction over which lies with
the proper MTC or metropolitan

Page 86 of 113
 trial court. The action must be
brought up within one year from
the date of last demand, and the 9.12 Effect of several demands
issue in the case must be the
right to physical possession. In case several demands to vacate are
(Emphasis supplied.) made, the period is reckoned from the
date of the last demand. (Republic of
the Philippines v. Sunvar Realty
9.11 Effect of subsequent demands Development Corporation, G.R. No.
in reminders of the original demand 194880, June 20, 2012 citing Labastida
v. Court of Appeals, 351 Phil. 162
The Supreme Court in Republic of the (1998), citing Sy Oh v. Garcia, 28 SCRA
Philippines v. Sunvar Realty 735 (1969) and Calubayan v. Pascual,
Development Corporation, G.R. No. 128 Phil. 160 [1967])
194880, June 20, 2012, explained the
effect of subsequent demand as mere
reminders of the original demand as 9.13 Effect when dispossession
follows: lasted for more than one year

In the past, the Court ruled that “On the other hand, accion
subsequent demands that are publiciana is the plenary action to
merely in the nature of reminders recover the right of possession
of the original demand do not which should be brought in the
operate to renew the one-year proper regional trial court when
period within which to commence dispossession has lasted for
an ejectment suit, considering more than one year. It is an
that the period will still be ordinary civil proceeding to
reckoned from the date of the determine the better right of
original demand. (Racaza v. possession of realty
Gozum, 523 Phil. 694 (2006), independently of title. In other
citing Desbarats v. Laureano, 124 words, if at the time of the filing of
Phil. 704 [1966]) If the the complaint, more than one
subsequent demands were year had elapsed since
merely in the nature of reminders defendant had turned plaintiff out
of the original demand, the one- of possession or defendant‟s
year period to commence an possession had become illegal,
ejectment suit would be counted the action will be, not one of
from the first demand. (Spouses forcible entry or illegal detainer,
Cruz v. Spouses Torres, 374 Phil. but an accion publiciana.”
529 (1999), citing Pacis v. Court (Republic of the Philippines v.
of Appeals, G.R. No. 102676, 03 Sunvar Realty Development
February 1992, min. res., cited in Corporation, G.R. No. 194880,
Summary of 1992 Supreme Court June 20, 2012 citing Canlas v.
Rulings, Part III, by Atty. Daniel Tubil, G.R. No. 184285, 25
T. Martinez, p. 1847; Desbarats September 2009, 601 SCRA 147,
v. de Laureano, supra) 157)

Page 87 of 113
Page 88 of 113
10. Contempt By a fine not exceeding two hundred
pesos or imprisonment not exceeding
one (1) day, or both. (Section 1, Rule
10.1 Direct contempt punished 71)
summarily

Acts constituting direct contempt 10.2 Definition, nature and purpose

of contempt of court
Direct contempt are as follows:
In Lorenzo Shipping Corporation v.
Distribution Management Association of
1. Misbehavior in the presence the Philippines, G.R. No. 155849,
of or so near a court as to August 31, 2011 the Supreme Court
obstruct or interrupt the made an exhaustive discussions about
proceedings before the same, contempt as follows:
including disrespect toward
the court, offensive Contempt of court has been
personalities toward others; defined as a willful disregard or
2. Or refusal to be sworn or to disobedience of a public
answer as a witness, or to authority. In its broad sense,
subscribe an affidavit or contempt is a disregard of, or
deposition when lawfully disobedience to, the rules or
required to do so. (Section 1, orders of a legislative or judicial
Rule 71) body or an interruption of its
proceedings by disorderly
Effect of direct contempt behavior or insolent language in
its presence or so near thereto as
A person guilty of direct contempt to disturb its proceedings or to
may be summarily adjudged in impair the respect due to such a
contempt by such court. (Section body. In its restricted and more
1, Rule 71) usual sense, contempt
comprehends a despising of the
authority, justice, or dignity of a
Punishment for direct contempt court. (17 CJS, Contempt, § 1)
The phrase contempt of court is
If it be a Regional Trial Court or a court generic, embracing within its
of equivalent or higher rank legal signification a variety of
different acts. (17 CJS,
By a fine not exceeding two thousand Contempt, § 2)
pesos or imprisonment not exceeding xxx
ten (10) days, or both; Contempt of court is of two kinds,
namely: direct contempt, which is
If it be a lower court committed in the presence of or
so near the judge as to obstruct
him in the administration of

Page 89 of 113
justice; and constructive or charged to appear and show
indirect contempt, which consists cause why he should not be
of willful disobedience of the punished when the judge is
lawful process or order of the without personal knowledge of
court. (Narcida v. Bowen, 22 Phil. the misbehavior and is informed
365) of it only by a confession of the
contemnor or by testimony under
The punishment for the first is oath of other persons. (Re Savin,
generally summary and 131 US 267)
immediate, and no process or
evidence is necessary because In contrast, the second usually
the act is committed in facie requires proceedings less
curiae. [I Bouvier’s Law summary than the first. The
Dictionary, (Rawle’s Third proceedings for the punishment
Revision) Eighth Edition, p. 651, of the contumacious act
citing Wasserman v. United committed outside the personal
States, 161 Fed. 722, 88 C.C.A. knowledge of the judge generally
582; Garrigan v. United States, need the observance of all the
163 Fed. 16, 89 C.C.A. 494, 23 elements of due process of law,
L.R.A. (N.S.) 1295. In facie curiae that is, notice, written charges,
literally means in the face of the and an opportunity to deny and to
court, that is, in the presence of defend such charges before guilt
the court. There ought to be no is adjudged and sentence
question that courts have the imposed. (Provenzale v.
power by virtue of their very Provenzale, 90 N.E. 2d 115, 339
creation to impose silence, Ill. App. 345; People ex rel.
respect, and decorum in their Andrews v. Hassakis, 129 N.E.
presence, submission to their 2d 9, 6 Ill. 2d 463; Van
lawful mandates, and to preserve Sweringen v. Van Sweringen,
themselves and their officers 126 A. 2d 334, 22 N.J. 440, 64
from the approach and insults of A.L.R. 2d 593; Ex parte Niklaus,
pollution (Anderson v. Dunn, 6 13 N.W. 2d 655, 144 Neb. 503;
Wheat 204)] People ex rel. Clarke v.
Truesdell, 79 N.Y.S. 2d 413)
Also, contemptuous acts
committed out of the presence of Plainly, therefore, the word
the court, if admitted by the summary with respect to the
contemnor in open court, may be punishment for contempt refers
punished summarily as a direct not to the timing of the action with
contempt, (People v. Gholson, reference to the offense but to
106 N.E. 2d 333; People v. the procedure that dispenses with
Hagopian, 37 N.E. 2d 782, 408 the formality, delay, and
Ill. 618; People v. Pomeroy, 90 digression that result from the
N.E. 2d 102, 405 Ill. 175) issuance of process, service of
although it is advisable to complaint and answer, holding
proceed by requiring the person hearings, taking evidence,

Page 90 of 113
 listening to arguments, awaiting whether the proceedings are civil or
briefs, submission of findings, criminal. In general, the character of the
and all that goes with a contempt of whether it is criminal or civil
conventional court trial. (Sacher is determined by the nature of the
v. United States, N.Y., 72 S. Ct. contempt involved, regardless of the
451, 343 US 1) cause in which the contempt arose, and
by the relief sought or dominant
A distinction between in-court purpose. [Lamb v. Cramer, 285 US 217
contempts, which disrupt court (the purpose of the punishment rather
proceedings and for which a hearing than the character of the act punished
and formal presentation of evidence are determines whether the proceeding to
dispensed with, and out-of-court punish is for a civil or a criminal
contempts, which require normal contempt); McCrone v. United States,
adversary procedures, is drawn for the 307 US 61 (a contempt is considered
purpose of prescribing what procedures civil when the punishment is wholly
must attend the exercise of a court‟s remedial, serves only the purpose of the
authority to deal with contempt. The complainant, and is not intended as a
distinction does not limit the ability of deterrent to offenses against the public);
courts to initiate contempt prosecutions Hicks v. Feiock, 485 US 624 (in a
to the summary punishment of in-court proceeding for civil contempt, the
contempts that interfere with the judicial punishment is remedial and for the
process. (Young v. United States, 481 benefit of the complainant, while in a
US 787) proceeding for criminal contempt, the
sentence is punitive and for the
xxx vindication of the court’s authority;
conclusions about the purposes for
Proceedings for contempt are sui which relief is imposed are properly
generis, in nature criminal, but may be drawn from an examination of the
resorted to in civil as well as criminal character of the relief itself; if the relief
actions, and independently of any provided is a fine, it is remedial when it
action. (Bessette v. M.B. Conkey Co., paid to the complainant or where it can
194 US 324) They are of two classes, be avoided by performing an affirmative
the criminal or punitive, and the civil or act required by the court’s order, but is
remedial. A criminal contempt consists punitive when it is paid to the court)] The
in conduct that is directed against the proceedings are to be regarded as
authority and dignity of a court or of a criminal when the purpose is primarily
judge acting judicially, as in unlawfully punishment, and civil when the purpose
assailing or discrediting the authority is primarily compensatory or remedial.
and dignity of the court or judge, or in (17 CJS, Contempt, §62 [4]) Where the
doing a duly forbidden act. A civil dominant purpose is to enforce
contempt consists in the failure to do compliance with an order of a court for
something ordered to be done by a the benefit of a party in whose favor the
court or judge in a civil case for the order runs, the contempt is civil; where
benefit of the opposing party therein. the dominant purpose is to vindicate the
(Perkins v. Director of Prisons, 58 Phil. dignity and authority of the court, and to
271) It is at times difficult to determine protect the interests of the general

Page 91 of 113
public, the contempt is criminal. complete statement of the present
(Philadelphia Marine Trade Association status thereof; and (c) if he should
v. International Longshoremen’s thereafter learn that the same or similar
Association, Local Union No. 1291, 140 action or claim has been filed or is
A.2d 814, 392 Pa. 500) Indeed, the pending, he shall report that fact within
criminal proceedings vindicate the five (5) days therefrom to the court
dignity of the courts, but the civil wherein his aforesaid complaint or
proceedings protect, preserve, and initiatory pleading has been filed.
enforce the rights of private parties and
compel obedience to orders, judgments Failure to comply with the foregoing
and decrees made to enforce such requirements shall not be curable by
rights. (I Bouvier’s Law Dictionary, mere amendment of the complaint or
(Rawle’s Third Revision) Eighth Edition, other initiatory pleading but shall be
p. 653, citing Wasserman v. United cause for the dismissal of the case
States, 161 Fed. 722, 88 C.C.A. 582; without prejudice, unless otherwise
Garrigan v. United States, 163 Fed. 16, provided, upon motion and after
89 hearing. The submission of a false
C.C.A. 494, 23 L.R.A. (N.S.) 1295) certification or non- compliance with any
of the undertakings therein shall
constitute indirect contempt of court,
without prejudice to the corresponding
administrative and criminal actions. If
the acts of the party or his counsel
10.3 Other provisions on contempt clearly constitute willful and deliberate
forum shopping, the same shall be
The other provisions on contempt are as ground for summary dismissal with
follows: prejudice and shall constitute direct
contempt, as well as a cause for
administrative sanctions.
1. Rule 7, Section 5 of the 1997
Rules of Civil Procedure
2. Rule 21, Section 9 of the 1997
Section 5. Certification against forum Rules of Civil Procedure
shopping.—The plaintiff or principal
party shall certify under oath in the
complaint or other initiatory pleading Section 9. Contempt.—Failure by any
asserting a claim for relief, or in a sworn person without adequate cause to obey
certification annexed thereto and a subpoena served upon him shall be
simultaneously filed therewith: (a) that deemed a contempt of the court from
he has not theretofore commenced any which the subpoena is issued. If the
action or filed any claim involving the subpoena was not issued by a court, the
same issues in any court, tribunal or disobedience thereto shall be punished
quasi-judicial agency and, to the best of in accordance with the applicable law or
his knowledge, no such other action or Rule.
claim is pending therein; (b) if there is
such other pending action or claim, a

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3. Rule 29, Section 2 of the 1997 receiver all the property, money, books,
Rules of Civil Procedure deeds, notes, bills, documents and
papers within his power or control,
Section 2. Contempt of court.—If a subject of or involved in the action or
party or other witness refuses to be proceeding, or in case of disagreement,
sworn or refuses to answer any as determined and ordered by the court,
question after being directed to do so by may be punished for contempt and shall
the court of the place in which the be liable to the receiver for the money or
deposition is being taken, the refusal the value of the property and other
may be considered a contempt of that things so refused or neglected to be
court. surrendered, together with all damages
that may have been sustained by the
party or parties entitled thereto as a
4. Rule 39, Section 43 of the 1997 consequence of such refusal or neglect.
Rules of Civil Procedure (n)

Section 43. Proceedings when

indebtedness denied or another person 6. Rule 65 Section 9 of the 1997
claims the property.—If it appears that a Rules of Civil Procedure
person or corporation, alleged to have
property of the judgment obligor or to be Section 9. Service and enforcement of
indebted to him, claims an interest in the order or judgment.—A certified copy of
property adverse to him or denied the the judgment rendered in accordance
debt, the court may authorize, by an with the last preceding section shall be
order made to that effect, the judgment served upon the court, quasi-judicial
obligee to institute an action against agency, tribunal, corporation, board,
such person or corporation for the officer or person concerned in such
recovery of such interest or debt, forbid manner as the court may direct, and
a transfer or other disposition of such disobedience thereto shall be punished
interest or debt within one hundred as contempt. An execution may issue
twenty (120) days from notice of the for any damages or costs awarded in
order, and may punish disobedience of accordance with section 1 of Rule 39.
such order as for contempt. Such order (9a)
may be modified or vacated at any time
by the court which issued it, or by the
court in which the action is brought, 7. Rule 66 Section 10 of the 1997
upon such terms as may be just. (45a) Rules of Civil Procedure

Section 10. Rights of persons adjudged

5. Rule 59, Section 7 of the 1997 entitled to public office; delivery of books
Rules of Civil Procedure and papers; damages.—If judgment be
rendered in favor of the person averred
Section 7. Liability for refusal or neglect in the complaint to be entitled to the
to deliver property to receiver.—A public office he may, after taking the
person who refuses or neglects, upon oath of office and executing any official
reasonable demand, to deliver to the bond required by law, take upon himself

Page 93 of 113
the execution of the office, and may his client after it has been demanded,
immediately thereafter demand of the he may be punished for contempt as an
respondent all the books and papers in officer of the
the respondent‟s custody or control
appertaining to the office to which the Court who has misbehaved in his official
judgment relates. If the respondent transactions; but proceedings under this
refuses or neglects to deliver any book section shall not be a bar to a criminal
or paper pursuant to such demand, he prosecution.
may be punished for contempt as
having disobeyed a lawful order of the
court. The person adjudged entitled to 9. Section 16, A.M. 07-9-12 Rule on
the office may also bring action against the Writ of Amparo
the respondent to recover the damages
sustained by such person by reason of Section 16. Contempt.—The court,
the usurpation. (15a) justice or judge may order the
respondent who refuses to make a
return, or who makes a false return, or
8. Rule 138, Sections 21 and 25 of any person who otherwise disobeys or
the 1 Rules of Court- Legal Ethics resists a lawful process or order of the
court to be punished for contempt. The
Section 21. Authority of attorney to contemnor may be imprisoned or
appear.—An attorney is presumed to be imposed a fine.
properly authorized to represent any
cause in which he appears, and no
written power of attorney is required to 10. Section 8, A. M. No. 08-1-16-SC
authorize him to appear in court for his Rule on Habeas Data
client, but the presiding judge may, on
motion of either party and on reasonable Section 8. Penalty for Refusing to Issue
grounds therefor being shown, require or Serve the Writ.—A clerk of court who
any attorney who assumes the right to refuses to issue the writ after its
appear in a case to produce or prove allowance, or a deputized person who
the authority under which he appears, refuses to serve the same, shall be
and to disclose, whenever pertinent to punished by the court, justice or judge
any issue, the name of the person who for contempt without prejudice to other
employed him, and may thereupon disciplinary actions.
make such order as justice requires. An
attorneys wilfully appear in court for a
person without being employed, unless
by leave of the court, may be punished 11. Rule 7, Sections 7 and 13, A.M.
for contempt as an officer of the court No. 09-6-8-SC, Special Civil Action on
who has misbehaved in his official Wirt of Kalikasan
transactions.
Rule 7, Section 7. Penalty for refusing to
Section 25. Unlawful retention of client’s issue or serve the writ.—A clerk of court
funds; contempt.—When an attorney who unduly delays or refuses to issue
unjustly retains in his hands money of the writ after its allowance or a court

Page 94 of 113
officer or deputized person who unduly Section 44. Issuance of protection
delays or refuses to serve the same order when warranted; contempt of
shall be punished by the court for court for violation.—During trial or upon
contempt without prejudice to other civil, judgment, the trial court may motu
criminal or administrative actions. proprio issue a protection order when
warranted. Violation of any protection
Rule 7, Section 13. Contempt.—The order issued under this Section shall
court may after hearing punish the constitute contempt of court punishable
respondent who refuses or unduly under Rule 71 of the Rules of Court,
delays the filing of a return, or who without prejudice to any other criminal or
makes a false return, or any person who civil action that the offended party may
disobeys or resists a lawful process or file for any of the acts committed.
order of the court for indirect contempt
under Rule 71 of the Rules of Court.
14. Sections 7 and 49, A.M. No. 05-
11-04-SC 2005-11-15 Rule of
Procedure in cases of Civil Forfeiture,
12. Sections 7 and 16 A.M. No. 07-9- Asset Preservation, and Freezing of
12-SC, Rule on Writ of Amparo monetary instrument, property, or
proceeds representing, involving, or
Section 7. Penalty for Refusing to Issue relating to an unlawful activity or money
or Serve the Writ.—A clerk of court who laundering offense under Republic Act
refuses to issue the writ after its No. 9160, as amended
allowance, or a deputized person who
refuses to serve the same, shall be Section 7. Confidentiality; prohibited
punished by the court, justice or judge disclosure.—The logbook and the
for contempt without prejudice to other entries therein shall be kept strictly
disciplinary actions. confidential and maintained under the
responsibility of the executive judge. No
Section 16. Contempt.—The court, person, including court personnel, shall
justice or judge may order the disclose, divulge or communicate to
respondent who refuses to make a anyone directly or indirectly, in any
return, or who makes a false return, or manner or by any means, the fact of the
any person who otherwise disobeys or filing of the petition for an asset
resists a lawful process or order of the preservation order, its contents and its
court to be punished for contempt. The entry in the logbook except to those
contemnor may be imprisoned or authorized by the court. Violation shall
imposed a fine. constitute contempt of court.

Section 49. Confidentiality; prohibited

disclosure.—The logbook and the
13. Section 44, A.M. No. 04-10-11- entries therein shall be kept strictly
SC Rule on Violence Against Women confidential and maintained under the
and their Children responsibility of the Presiding Justice or
the Executive Justices, as the case
may be. No person, including Court

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personnel, shall disclose, divulge or bond fixed by the court which rendered
communicate to anyone directly or the judgment and conditioned that he
indirectly, in any manner or by any will abide by and perform the judgment
means, the fact of the filing of the should the petition be decided against
petition for freeze order, its contents and him. (Section 2, Rule 71)
its entry in the logbook except to those
authorized by the Court. Violation shall
constitute contempt of court. 10.5 Indirect contempt to be
15. Rule 19.35, A.M. No. 07-11-08- punished after charge and hearing
SC Special Rules of Court on
Alternative Dispute Resolution Requirements for indirect contempt:

Rule 19.35. Service and enforcement of 1. After a charge in writing has

order or judgment.—A certified copy of been filed, and
the judgment rendered in accordance 2. An opportunity given to the
with the last preceding section shall be respondent to comment
served upon the Regional Trial Court thereon within such period as
concerned in such manner as the Court may be fixed by the court and
of Appeals may direct, and to be heard by himself or
disobedience thereto shall be punished counsel. (Section 3, Rule 71)
as contempt.

Acts constituting indirect contempt

10.4 Remedy therefrom
The following are indirect contempt
Remedy

Remedy of the person adjudged in (a) Misbehavior of an officer of a

direct contempt by any court: court in the performance of his
official duties or in his official
transactions;
1. May not appeal therefrom; (b) Disobedience of or resistance to
2. But may avail himself of the a lawful writ, process, order, or
remedies of certiorari or judgment of a court, including the
prohibition. (Section 2, Rule act of a person who, after being
71) dispossessed or ejected from any
real property by the judgment or
process of any court of
Effect of filing of the remedies of competent jurisdiction, enters or
certiorari or prohibition attempts or induces another to
enter into or upon such real
The execution of the judgment shall be property, for the purpose of
suspended pending resolution of such executing acts of ownership or
petition, provided such person files a possession, or in any manner
disturbs the possession given to

Page 96 of 113
 the person adjudged to be particulars and certified true
entitled thereto; copies of documents or
(c) Any abuse of or any unlawful papers involved therein, and
interference with the processes upon full compliance with the
or proceedings of a court not requirements for filing
constituting direct contempt initiatory pleadings for civil
under section 1 of this Rule; actions in the court
(d) Any improper conduct tending, concerned.
directly or indirectly, to impede,
obstruct, or degrade the
administration of justice; If the contempt charges arose out of or
(e) Assuming to be an attorney or an are related to a principal action pending
officer of a court, and acting as in the court, the petition for contempt
such without authority; shall allege that fact but said petition
(f) Failure to obey a subpoena duly shall be docketed, heard and decided
served; separately, unless the court in its
(g) The rescue, or attempted rescue, discretion orders the consolidation of the
of a person or property in the contempt charge and the principal
custody of an officer by virtue of action for joint hearing and decision.
an order or process of a court (Section 4, Rule 71)
held by him. (Section 3, Rule 71)
But nothing in this section shall be so
construed as to prevent the court 10.7 Where charge to be filed
from issuing process to bring the
respondent into court, or from
holding him in custody pending such When committed against RTC
proceedings. (Section 3, Rule 71)
Where the charge for indirect contempt
has been committed against a Regional
Trial Court or a court of equivalent or
10.6 How proceedings commenced higher rank, or against an officer
appointed by it, the charge may be filed
Proceedings for indirect contempt may with such court. (Section 5, Rule 71)
be initiated:

1. motu propio by the court When committed against lower court

against which the contempt
was committed by an order or Where such contempt has been
any other formal charge committed against a lower court, the
requiring the respondent to charge may be filed with the Regional
show cause why he should Trial Court of the place in which the
not be punished for contempt. lower court is sitting; but the
2. In all other cases, charges for proceedings may also be instituted in
indirect contempt shall be such lower court subject to appeal to the
commenced by a verified Regional Trial Court of such place in the
petition with supporting

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same manner as provided in section 11 243 SCRA 78 the character of
of this Rule. (Section 5, Rule 71) contempt proceedings, thus
—

10.8 Review of judgment or final

order; bond for stay The real character of the
proceedings in contempt cases is to
Remedy to assail judgment/final order of be determined by the relief sought or
indirect contempt by the dominant purpose. The
proceedings are to be regarded as
The judgment or final order of a court in criminal when the purpose is
a case of indirect contempt may be primarily punishment and civil when
appealed to the proper court as in the purpose is primarily
criminal cases. (Section 11, Rule 71) compensatory or remedial.

Still further, the Court held in Santiago v.

10.9 Character of contempt; appeal Anunciacion, Jr., G.R. No. 89318, April
would not lie on acquittal in contempt 3, 1990, 184 SCRA 118, 121 that:

The following are the prevailing But whether the first or the second,
jurisprudence: contempt is still a criminal proceeding in
which acquittal, for instance, is a bar to
a second prosecution. The distinction is
1. In Yasay, Jr. v. Recto, G.R. for the purpose only of determining the
No. 129521, September 7, character of punishment to be
1999, 313 SCRA 739, 744, administered.
the Court declared: A
distinction is made between a
civil and [a] criminal contempt. 3. In the earlier case of The
Civil contempt is the failure to Insurance Commissioner v.
do something ordered by a Globe Assurance Co., Inc.,
court to be done for the No. L-27874, January 30,
benefit of a party. A criminal 1982, 111 SCRA 202, 204,
contempt is any conduct the Court dismissed the
directed against the authority appeal from the ruling of the
or dignity of the court. (See lower court denying a petition
also People v. Godoy, G.R. to punish the respondent
Nos. 115908-09, March 29, therein from contempt for lack
1995, 243 SCRA 64) of evidence. The Court said in
that case:
2. The Court further explained in
Remman Enterprises, Inc. v. It is not the sole reason for dismissing
Court of Appeals, G.R. No. this appeal. In the leading case of In re
107671, February 26, 1997, Mison, Jr. v. Subido, it was stressed by
268 SCRA 688, 697, and Justice J.B.L. Reyes as ponente, that
People v. Godoy G.R. Nos. the contempt proceeding far from being
115908-09, March 29, 1995, a civil action is “of a criminal nature and

Page 98 of 113
of summary character in which the court
exercises but limited jurisdiction.” It was
then explicitly held: “Hence, as in
criminal proceedings, an appeal would
not lie from the order of dismissal of, or
an exoneration from, a charge of
contempt of court.” [footnote omitted]

10.11 Contempt against quasi-

judicial entities

Rule on contempt against quasi-judicial

entities

Unless otherwise provided by law, this

Rule shall apply to contempt committed
against persons, entities, bodies or
agencies exercising quasi-judicial
functions, or shall have suppletory effect
to such rules as they may have adopted
pursuant to authority granted to them by
law to punish for contempt. The
Regional Trial Court of the place
wherein the contempt has been
committed shall have jurisdiction over
such charges as may be filed therefor.
(Section 12, Rule 71)

Page 99 of 113
QUAMTO 2018 over [governs] all branches or
instrumentalities of the government
where there is a grave abuse of
SPECIAL CIVIL ACTIONS discretion amounting to lack or
excess of jurisdiction, as [agencies
and instrumentalities] provided in
CERTIORARI, PROHIBITION AND Section 1, second par., Article VIII of
MANDAMUS the 1987 Constitution. The petition is
filed under Rule 45 of the Rules of
Court, and the writ is directed not
only to tribunal, board or officer
Q: Distinguish error of jurisdiction from error
exercising judicial or quasi-judicial
of judgment. (2012 Bar)
functions and the period fixed for
availing of the remedy is within 30
days from receipt of the copy of the
A: An error of judgment is one which decision, order ruling in question
the court may commit in the exercise (Sec. 7, Art. IX, 1987 Constitution).
of its jurisdiction. Such an error does
not deprive the court of jurisdiction But under Rule 65 of the Rules of
and is correctible only by appeal; Court, the certiorari jurisdiction of the
whereas an error of jurisdiction is Supreme Court is limited to acts
one which the court acts without or done without or in excess of
in excess of its jurisdiction. Such an jurisdiction or grave abuse of
error renders an order or judgment discretion amounting to lack or
void or voidable and is correctible by excess of jurisdiction, by a tribunal,
the special civil action of certiorari board or officer exercising judicial or
(Dela Cruz v. Moir, G.R. No. L- quasi-judicial functions only. And the
12256, February 6, 1917; period fixed for availing of the
Cochingyan v. Cloribel, G.R. No. remedy is not later than 60 days
27070-71, April 22, 1977; Fortich v. from notice of judgment; order or
Corona, G.R. No. 131457, April 24, resolution in question (Secs. 1 and
1998; Artistica Ceramica, Inc.v. 4, Rule 65).
Ciudad Del Carmen Homeowner's
Association, Inc., G.R. Nos. 167583-
84,June 16, 2010). Q: AB mortgaged his property to CD. AB
failed to pay his obligation and CD filed an
action for foreclosure of mortgage. After
Q: Compare the certiorari jurisdiction of the trial, the court issued an Order granting
Supreme Court under the Constitution with CD’s prayer for foreclosure of mortgage and
that under Rule 65 of the Rules of Civil ordering AB to pay CD the full amount of the
Procedure. (2008 Bar) mortgage debt including interest and other
charges not later than 120 days from date of
receipt of the Order. AB received the Order
on August 10, 1999. No other proceeding
A: Under the Constitution, the
took place thereafter. On December 20,
certiorari jurisdiction of the Supreme
1999, AB tendered the full amount adjudged
Court provides for its expanded
by the court to CD but the latter refused to
jurisdiction power of judicial power

Page 100 of 113

accept it on the ground that the money was of the plaintiff’s ex parte presentation of
tendered beyond the 120-day period evidence, judgment by default was rendered
granted by the court. AB filed a motion in against the defendant. The default judgment
the same court praying that CD be directed was served on the defendant on October 1,
to receive the amount tendered by him on 2001. On October 10, 2001, he files a
the ground that the Order does not comply verified motion to lift the order of default and
with the provisions of Section 2, Rule 68 of to set aside the judgment. In his motion, the
the Rules of Court which give AB 120 day defendant alleged that, immediately upon
from entry of judgment, and not from date of receipt of the summons, he saw the plaintiff
receipt of the Order. The court denied his and confronted him with his receipt
motion on the ground that Order had evidencing his payment and the at the
already become final and can no longer be plaintiff assured him that he would instruct
amended to conform with Section 2, Rule his lawyer to withdraw the complaint. The
68. Aggrieved, AB files a petition for trial court denied the defendant’s motion
certiorari against the Court and CD. Will the because it was not accompanied by an
petition for certiorari prosper? Explain. affidavit of merit. The defendant filed a
(2000 Bar) special civil action for certiorari under Rule
65 challenging the denial order.

A: Yes. The court erred in issuing an

Order granting CD’s prayer for a. Is certiorari under Rule 65 the proper
foreclosure of mortgage and remedy? Why?
ordering AB to pay CD the full
amount of the mortgage and
ordering AB to pay CD the full A: YES. The petition for certiorari
amount of the mortgage debt under Rule 65 filed by the defendant
including interest and other charges is the proper remedy because
not later than 120 days from receipt appeal is not a plain, speedy and
of the Order. The court should have adequate remedy in the ordinary
rendered a judgment which is course of law. In appeal, the
appealable. Since no appeal was defendant in default can only
taken, the judgment became final on question the decision in the light of
August 25, 1999, which is the date the evidence of the plaintiff. The
of entry of judgment (Sec. 2, Rule defendant cannot invoke the receipt
36). Hence, AB had up to December to prove payment of his obligation to
24, 1999 within which to pay the the plaintiff.
amount due (Sec. 2, Rule 68). The
court gravely abused its discretion
amounting to lack or excess of
b. Did the trial court abuse its discretion or
jurisdiction in denying AB’s motion
act without or in excess of its jurisdiction in
praying that CD be directed to
denying the defendant’s motion to lift the
receive the amount tendered.
order of default judgement? Why? (2002
Bar)

Q: The defendant was declared in default in

the RTC for his failure to file an answer to a
complaint for a sum of money. On the basis

Page 101 of 113

 A: Yes, the trial court gravely abused A: A special civil action for certiorari
its discretion or acted without or in under Rule 65, is an original action
excess of jurisdiction in denying the from the Regional Trial Court or the
defendant’s motion because it was Court of Appeals to the Supreme
not accompanied by a separate Court against any tribunal, board or
affidavit of merit. In his verified officer exercising judicial or quasi-
motion to lift the order of default and judicial functions raising the issue of
to set aside the judgment, the lack or excess of jurisdiction or
defendant alleged that immediately grave abuse of discretion amounting
upon the receipt of the summons, he to lack or excess of jurisdiction,
saw the plaintiff and confronted him there being no appeal or any plain,
with his receipt showing payment speedy and adequate remedy in the
and that the plaintiff assured him ordinary course of law.
that he would instruct his lawyer to
withdraw the complaint. Since the
good defense of the defendant was c. As a mode of review of the decisions of
already incorporated in the verified the National Labor Relations Commission
motion, there was no need for a and the Constitutional Commissions. (2006
separate affidavit of merit (Capuz v. Bar)
Court of Appeals,G.R. No. 112795,
June 27, 1994; Mago v. Court of
Appeals, G.R. No. 115624, February
A: The mode of review of the
25, 1999).
decision of the NLRC is via a special
civil action for certiorari under Rule
65, but pursuant to the hierarchy of
Q: Explain each mode of Certiorari: the courts enunciated in the case of
St. Martin’s Funeral Homes v.
NLRC, G.R. No. 130866,
a. As a mode of appeal from the Regional September 16, 1998,the same
Trial Court or the Court of Appeals to the should be filed in the Court of
Supreme Court. Appeals.
The mode of review of the decisions
of two Constitutional Commissions,
A: A petition for review on certiorari the Commission on Elections and
under Rule 45 is a mode of appeal the Commission on Audit, as
on pure questions law from a provided under Rule 64 is a special
judgment or final order or resolution civil action for certiorari under Rule
of the Regional Court or the Court of 65. Decisions of the Civil Service
Appeals to the Supreme Court. Commission, however, are
reviewable by petition for review to
be filed with the Court of Appeals
b. As special civil action from the Regional under Rule 43.
Trial Court or the Court of Appeals to the
Supreme Court.

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Q: Differentiate certiorari as an original instead of filing a petition for review on
action from certiorari as a mode of appeal. certiorari under Rule 45 thereof for the
(1998, 1999 Bar) nullification of a decision of the Court of
Appeals in the exercise either of its original
A: Certiorari as an original action and
or appellate jurisdiction? Explain. (1999,
certiorari as a mode of appeal may be
2005 Bar)
distinguished as follows:

A: To NULLIFY A DECISION of the

(a) The first is a special civil action
Court of Appeals the aggrieved party
under Rule 65, while the second is
should file a PETITION FOR
an appeal to the Supreme Court
REVIEW ON CERTIORARI in the
from the Court of Appeals,
Supreme Court under Rule 45 of the
Sandiganbayan and the Regional
Rules of Court instead of filing a
Trial Court under Rule 45.
petition for certiorari under Rule 65
(b) The first can be filed only on the
except under very exceptional
grounds of lack or excess of
circumstances. A long line of
jurisdiction or grave abuse of
Supreme Court decisions, too
discretion tantamount to lack or
numerous to mention, holds that
excess of jurisdiction, while the
certiorari is not a substitute for a lost
second is based on the errors of law
appeal. It should be noted, however,
of the lower court.
when the Court of Appeals imposes
(c) The first should be filed within sixty
the death penalty, or a lesser
(60) days from notice of the
penalty for offenses committed on
judgment, order or resolution sought
such occasion, appeal by petition for
to be assailed (Sec. 4, Rule 65).
review or ordinary appeal. In cases
while the second should be filed
when the Court of Appeals imposes
within fifteen (15) days from notice of
reclusion perpetua, life imprisonment
the judgment or final order or
or a lesser penalty, appeal is by
resolution appealed from, or of the
notice of appeal filed with the Court
denial of the petitioner’s motion for
of Appeals.
new trial or reconsideration filed in
due time after notice of the judgment
(Sec. 2, Rule 45).
(d) The first cannot generally be availed Q: After an information for rape was filed in
of as a substitute for a lost appeal the RTC, the DOJ Secretary, acting on the
under Rules 40. 41, 42, 43 and 45. accused's petition for review, reversed the
(e) Under the first, the lower court is investigating prosecutor's finding of
impleaded as a party respondent probable cause. Upon order of the DOJ
(Sec. 5, Rule 65), while under the Secretary, the trial prosecutor filed a Motion
second, the lower court is not to Withdraw Information which the judge
impleaded (Sec. 4, Rule of 45). granted. The order of the judge stated only
the following:
"Based on the review by the DOJ Secretary
Q: May the aggrieved party file a petition for of the findings of the investigating
certiorari in the Supreme Court under Rule prosecutor during the preliminary
65 of the 1997 Rules of Civil Procedure, investigation, the Court agrees that there is

Page 103 of 113

no sufficient evidence against the accused hearing of the motion and the opposition
to sustain the allegation in the information. thereto, the court issued an order, reading
The motion to withdraw Information is, as follows: “The Court hereby grants
therefore, granted." defendant’s motion to dismiss and
accordingly orders the dismissal of plaintiff’s
If you were the private prosecutor, what
complaint, with the costs taxed against him.
should you do? Explain. (2003, 2012 Bar)
It is so ordered.” Is the order of dismissal
valid? May plaintiff properly take an appeal?
Reason. (2004 Bar)
A: If I were the private prosecutor, I
would file a petition for certiorari
under Rule 65 with the Court of
A: The order or decision is void
Appeals (Cerezo v.People, GR
because it does not state findings of
No.185230, June 1, 2011). It is well-
fact and of law, as required by
settled that when the trial court is
Section14, Article VIII of the
confronted with a motion to withdraw
Constitution and Sec. 1, Rule 36.
an Information (on the ground of lack
Being void, appeal is not available.
of probable cause to hold the
The proper remedy is certiorari
accused for trial based on a
under Rule 65.
resolution of the DOJ Secretary), the
trial court has the duty to make an Q: Jaime was convicted for murder by the
independent assessment of the Regional Trial Court of Davao City in a
merits of the motion. It may either decision promulgated on September 30,
agree or disagree with the 2015. On October 5, 2015, Jaime filed a
recommendation of the Secretary. Motion for New Trial on the ground that
Reliance alone on the resolution of errors of law and irregularities prejudicial to
the Secretary would be an his rights were committed during his trial.
abdication of the trial court’s duty On October 7, 2015, the private prosecutor,
and jurisdiction to determine a prima with the conformity of the public prosecutor,
facie case. The court must itself be filed an Opposition to Jaime's motion. On
convinced that there is indeed no October 9, 2015, the court granted Jaime's
sufficient evidence against the motion. On October 12, 2015, the public
accused. Otherwise, the judge acted prosecutor filed a motion for
with grave abuse of discretion if he reconsideration. The court issued an Order
grants the Motion to Withdraw dated October 16, 2015 denying the public
Information by the trial prosecutor prosecutor's motion for reconsideration. The
(Harold Tamargo v. Romulo public prosecutor received his copy of the
Awingan et. al. G.R. No. 177727, order of denial on October 20, 2015 while
January 19, 2010). the private prosecutor received his copy on
October 26, 2015.
a. What is the remedy available to the
Q: After plaintiff in an ordinary civil action prosecution from the court's order granting
before the RTC, ZZ has completed Jaime's motion for new trial?
presentation of his evidence, defendant
without prior leave of court moved for A: The remedy of the prosecution is
dismissal of plaintiff’s complaint for to file a petition for certiorari under
insufficiency of plaintiff’s evidence. After due Rule 65 of the Rules of Court,

Page 104 of 113

 because the denial of a motion for has been carried over to the Revised
reconsideration is merely an Administrative Code particularly in
interlocutory order and there is no Book IV, Title III, Chapter12 thereof.
plain, speedy and adequate remedy Without doubt, the OSG is the
under the course of law. appellate counsel of the People of
the Philippines in all criminal cases
Be that as it may, it may be argued
(Cariño v. de Castro, G.R. No.
that appeal is the appropriate
176084, April 30, 2008).
remedy from an order denying a
motion for reconsideration of an Q: The Ombudsman found probable cause
order granting a motion for new trial to charge with plunder the provincial
because an order denying a motion governor, vice governor, treasurer, budget
for reconsideration was already officer, and accountant. An Information for
removed in the enumeration of plunder was filed with the Sandiganbayan
matters that cannot be a subject of against the provincial officials except for the
an appeal under Section 1, Rule 41 treasurer who was granted immunity when
of the Rules of Court. he agreed to cooperate with the
Ombudsman in the prosecution of the case.
Immediately, the governor filed with the
b. In what court and within what period Sandiganbayan a petition for certiorari
should a remedy be availed of? against the Ombudsman claiming there was
grave abuse of discretion in excluding the
A: Following the principle of judicial treasurer from the Information.
hierarchy, the petition for certiorari
should be filed before the Court of a. Was the remedy taken by the governor
Appeals within sixty (60) days from correct?
receipt of the copy of the order of A: No, the remedy taken by the
denial of the public prosecutor’s Governor is not correct. The petition
motion for reconsideration, or on for certiorari is a remedy that is only
October 20, 2015. available when there is no plain,
speedy and adequate remedy under
the ordinary course of law; hence,
c. Who should pursue the remedy? (2015 the Governor should have filed a
Bar) Motion for Reconsideration.
A: The Office of the Solicitor General Besides, there is no showing that
(OSG) should pursue the remedy. In the Ombudsman committed grave
criminal proceedings on appeal in abuse of discretion in granting
the Court of Appeals or in the immunity to the treasurer who
Supreme Court, the authority to agreed to cooperate in the
represent the people is vested solely prosecution of the case.
in the Solicitor General. Under
Presidential decree No. 4478 among
the specific powers and functions of b. Will the writ of mandamus lie to compel
the OSG is to “represent the the Ombudsman to include the treasurer in
government in the Supreme Court the Information? (2015 Bar)
and the Court of Appeals in all
criminal proceedings.” This provision

Page 105 of 113

 A: No, Mandamus will not lie to A: Yes, the court is correct in its
compel the Ombudsman to include ruling. Mandamus will not lie. This
the treasurer in the Information. In remedy applies only where
matters involving exercise of petitioner’s right is founded clearly in
judgment and discretion, mandamus law, not when it is doubtful. Pablo
may only be resorted to in order to was transferred without his consent
compel respondent tribunal, which is tantamount to removal
corporation, board, officer or person without cause, contrary to the
to take action, but it cannot be used fundamental guarantee on
to direct the manner or particular nonremoval except for cause.
way discretion is to be exercised, or Considering that Pedro continued to
to compel the retraction or reversal occupy the disputed position and
of an action already taken in the exercised his functions therein, the
exercise of judgment or discretion proper remedy is quo warranto, not
(Ampatuan, Jr. v. Secretary De mandamus(Garces v. Court of
Lima, G.R. No. 197291, April 3, Appeals,G.R. No. 114795, July 17,
2013). 1996).
Evidently, the Ombudsman’s act of
granting the treasurer immunity from
prosecution under such terms and Q: In 1996, Congress passed Republic Act
conditions as it may determine (Sec. No. 8189, otherwise known as the Voter’s
17, R.A. 6770) is a discretionary Registration Act of 1996, providing for
duty that may not be compelled by computerization of elections. Pursuant
the extraordinary writ of mandamus. thereto, the COMELEC approved the
Voter’s Registration and Identification
System (VRIS) Project. It issued invitations
to pre-qualify and bid for the project. After
MANDAMUS the public bidding, Fotokina was declared
the winning bidder with a bid of P6 billion
and was issued a Notice of Award. But
Q: Petitioner Fabian was appointed Election COMELEC Chairman Gener Go objected to
Registrar of the Municipality of Sevilla the award on the ground that under the
supposedly to replace the respondent appropriations Act, the budget for the
Election Registrar Pablo who was COMELEC’s modernization is only P1
transferred to another municipality without billion. He announced to the public that the
his consent and who refused to accept his VRIS project has been set aside. Two
aforesaid transfer, much less to vacate his Commissioners sided with Chairman Go,
position in Bogo Town as election registrar, but the majority voted to uphold the
as in fact he continued to occupy his contract. Meanwhile, Fotokina filed with the
aforesaid position and exercise his functions RTC a petition for mandamus to compel the
thereto. Petitioner Fabian then filed a COMELEC to implement the contract. The
petition for mandamus against Pablo but the Office of the Solicitor General (OSG),
trial court dismissed Fabian’s petition representing Chairman Go, opposed the
contending that quo warranto is the proper petition on the ground that mandamus does
remedy. Is the court correct in its ruling? not lie to enforce contractual obligations.
Why? (2001 Bar) During the proceedings, the majority
Commissioners filed a manifestation that

Page 106 of 113

Chairman Go was not authorized by the Q: A group of businessmen formed an
COMELEC En Banc to oppose the petition. association in Cebu City calling itself Cars C
Is a petition for mandamus an appropriate to distribute/ sell cars in said city. It did not
remedy to enforce contractual obligations? incorporate itself under the law nor did it
(1999, 2006 Bar) have any government permit or license to
conduct its business as such. The Solicitor
A: No, the petition for mandamus is
General filed before a RTC in Manila a
not an appropriate remedy because
verified petition for quo warranto
it is not available to enforce a
questioning and seeking to stop the
contractual obligation. Mandamus is
operations of Cars Co. The latter filed a
directed only to ministerial acts,
motion to dismiss the petition on the ground
directing or commanding a person to
of improper venue claiming that its main
do a legal duty (COMELEC v.
office and operation are in Cebu City and
Quijano-Padilla, G.R. No. 152992,
not in Manila. Is the contention of Cars Co.
September 18, 2002; Sec. 3, Rule
correct? Why? (2001 Bar)
65).
A: No. As expressly provided in the
Rules, when the Solicitor General
Q: A files a Complaint against B for commences the action for quo
recovery of title and possession of land warranto, it may be brought in a
situated in Makati with the RTC of Pasig. B RTC in the city of Manila, as in this
files a Motion to Dismiss for improper case, in the Court of Appeals or in
venue. The RTC Pasig Judge denies B's the Supreme Court (Sec. 7, Rule
Motion to Dismiss, which obviously was 66).
incorrect. Alleging that the RTC Judge
"unlawfully neglected the performance of an
act which the law specifically enjoins as a EXPROPRIATION
duty resulting from an office," A files a
Petition for Mandamus against the judge.
Will Mandamus lie? Reasons. (2012 Bar) Q: May Congress enact a law providing that
a 5,000 square meter lot, a part of the UST
compound in Sampaloc Manila, be
A: No, mandamus will not lie. The expropriated for the construction of a park in
proper remedy is a petition for honor of former City Mayor Arsenio Lacson?
prohibition (Serena v. As compensation to UST, the City of Manila
Sandiganbayan G.R. No. 162059, shall deliver its 5-hectare lot in Sta. Rosa,
January 22, 2008). The dismissal of Laguna originally intended as a residential
the case based on improper venue subdivision for the Manila City Hall
is not a ministerial duty. Mandamus employees. Explain (2006 Bar)
does not lie to compel the
performance of a discretionary duty A: Yes, Congress may enact a law
(Nilo Paloma v. Danilo Mora, G.R. expropriating property provided that
No. 157783, September 23, 2005). it is for public use and with just
Quo Warranto compensation. In this case, the
construction of a park is for public
use (See: Sena v. Manila Railroad
Co, G.R. No. 15915, September 7,

Page 107 of 113

 1921; Reyes v. NHA, G.R. No. a ministerial duty of the court to issue a writ
147511, March 24, 2003). The of possession in his favour? Briefly explain.
planned compensation, however, is (2016 Bar)
not legally tenable as the
determination of just compensation
is a judicial function. No statute, A:
decree or executive order can
mandate that the determination of a. Yes, the buyer in the auction sale
just compensation by the executive is entitled to a writ of possession
or legislative departments can even before the expiration of the
prevail over the court’s findings redemption period upon the filing of
(Export Processing Zone Authority v. the ex parte petition for issuance of
Dulay, G.R. No. L-59603, April 29, a writ of possession and posting of
1987; Secs. 5 to 8 Rule 67). In the appropriate bond. Under section
addition, compensation must be paid 7 of Act No. 3135, as amended, the
in money (Esteban v. Onorio, AM writ of possession may be issued to
No. 004-166-RTC, June 29, 2001). the purchaser in a foreclosure sale
either within the one-year
redemption period upon the filing of
a bond, or after the lapse of the
redemption period, without need of a
bond. (LZK Holdings and
Development Corporation v.
Planters Development Bank, G.R.
FORECLOSURE OF REAL ESTATE No. 167998, April 27, 2007) Stated
MORTGAGE otherwise, Section 7 of Act No.
3135, as amended, also refers to a
situation wherein the purchaser
seeks possession of the foreclosed
Q: property during the 12-month period
a. Is the buyer in the auction sale arising for redemption. Hence, upon the
from an extra-judicial foreclosure entitled to purchaser’s filing of the ex parte
a writ of possession even before the petition and posting of the
expiration of the redemption period? If so, appropriate bond, the RTC shall, as
what is the action to be taken? b. After the a matter of course, order the
period of redemption has lapsed and the issuance of the writ of possession in
title to the lot is consolidated in the name of favour of the purchaser (Spouses
the auction buyer, is he entitled to the writ of Nicasio C. Marquez and Anita J.
possession as a matter of right? If so, what Marquez v. Spouses Carlito Alindog
is the action to be take? and Carmen Alindog, G.R. No.
184045, January 22, 2014; Spouses
c. Suppose that after the title to the lot has Jose Gatuslao and Ermila Gatuslao
been consolidated in the name of the v. Leo Ray Yanson, G.R. No.
acution buyer, said buyer sold the lot to a 191540, January 21, 2015).
third party without first getting a writ of
possession. Can the transferee exercise the b. Yes, the auction buyer is entitled
right of the auction buyer and claim that it is to a writ of possession as a matter of
right. It is settled that the buyer in a

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foreclosure sale becomes the ministerial duty of the court to issue
absolute owner of the property a writ of possession in favour of the
purchased if it is not redeemed transferee of the auction buyer.
within a period of one year after the
registration of the certificate of sale.
He is, therefore, entitled to the FORCIBLE ENTRY AND UNLAWFUL
possession of the property and can DETAINER
demand it at any time following the
consolidation of ownership in his Q: A borrowed from the Development Bank
name and the issuane to him of a of the Philippines (DBP) the amount of P1
new transfer certificate of title. In million secured by the titled land of his
such a case, the bond required in friend B who, however, did not assume
Section 7 of Act No. 3135 is no personal liability for the loan. A defaulted
longer necessary. Possession of the and DBP filed an action for judicial
land then becomes an absolute right foreclosure of the real estate mortgage
of the purchases as confirmed impleading A and B as defendants. In due
owner. Upon proper application and course, the court rendered judgment
proof of title, the issuance of the writ directing A to pay the outstanding account
of possession becomes a ministerial of P1.5 million (principal plus interest) to the
duty of the court (LZK Holdings and bank. No appeal was taken by A on the
Development Corporation v. Decision within the reglementary period. A
Planters Development Bank, G.R. failed to pay the judgment debt within the
No. 167998, April 27, 2007; Sps. period specified in the decision.
Marquez v. Sps. Alindog, G.R. No. Consequently, the court ordered the
184045, January 22, 2014; Sps. foreclosure sale of the mortgaged land. In
Gatuslao v. Leo Ray Yanson, G.R. that foreclosure sale, the land was sold to
No. 191540, January 21, 2015). the DPB for P1.2 million. The sale was
subsequently confirmed by the court, and
c. Yes, the transferee can exercise
the confirmation of the sale was registered
the right of the auction buyer. A
with the Registry of Deeds on 05 January
transferee or successor-ininterest of
2002. On 10 January 2003, the bank filed
the auction buyer by virtue of the
an ex parte motion with the court for the
contract of sale between them, is
issuance of a writ of possession to oust B
considered to have stepped into the
from the land. It also filed a deficiency claim
shoes of the auction buyer. As such,
for P800, 000.00 against A and B. The
the transferee is necessarily entitled
deficiency claim was opposed by A and B.
to avail of the provisions of Sec. 7 of
Act 3135, as amended, as if he is a. Resolve the motion for the issuance of a
the auction buyer (Sps. Gatuslao v. writ of possession.
Yanson, ibid.). When the lot
purchased at a foreclosure slae is in A: In judicial foreclosure of banks
turn sold or transferred, the right to such as DBP, the mortgagor of
the possession thereof, along with debtor whose real property has been
all other rights of ownership, sold on foreclosure has the right to
transfers to its new owner (Sps. redeem the property sold within one
Gallent v. Velasquez, G.R. No. year after the date (or registration of
203949, Apr. 6, 2016). Ergo, it is a the sale). However, the purchaser at
the auction sale has the right to

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 obtain a writ of possession after the b. In case the Municipal Trial Court renders
finality of the order confirming the judgment in favor of A, is the judgment
sale (Sec. 3, Rule 68; Sec. 47, RA immediately executory? (1997 Bar)
8791 The General Banking Law of
A: Yes, because the judgment of the
2000). The motion for writ of
Municipal Trial Court against the
possession, however, cannot be
defendant X is immediately
filed ex parte. There must be a
executory upon motion unless an
notice of hearing.
appeal has been perfected, a
supersedeas bond has been filed
and the periodic deposits of current
b. Resolve the deficiency claim of the bank. rentals, if any, as determined by the
(2003 Bar) judgment will be made with the
A: The deficiency claim of the bank appellate court (Sec 19 ,Rule 70).
may be enforced against the
mortgage debtor A, but it cannot be
enforced against B, the owner of the UNLAWFUL DETAINER
mortgaged property, who did not
assume personal liability for the
loan.
Q: In an action for unlawful detainer in the
Municipal Trial Court (MTC), defendant X
raised in his Answer the defense that
EJECTMENT plaintiff A is not the real owner of the house
subject of the suit. X filed a counterclaim
against A for the collection of a debt of
Q: On 10 January 1990, X leased the P80,000 plus accrued interest of P15,000
warehouse of A under a lease contract with and attorney’s fees of P20,000.
a period of 5 years. On 08 June 1996, A a. Is X’s defense tenable
filed an unlawful detainer case against X
without a prior demand for X to vacate the A: NO. X’s defense is not tenable if
premises. the action is filed by a lessor against
a lessee. However, if the right of
possession of the plaintiff depends
a. Can X contest his ejectment on the on his ownership then the defense is
ground that there was no prior demand for tenable.
him to vacate the premises?
A: Yes. X can contest his ejectment b. Does the MTC have jurisdiction over the
on the ground that there was no counterclaim? (1998 Bar)
prior demand to vacate the premise
(Sec. 2, Rule 70; Casilan v. A: The counterclaim is within the
Tomassi, G.R. No. L-16574, jurisdiction of the Municipal Trial
February 28, 1964; Lesaca v. Court which does not exceed
Cuevas, G.R. No. L-48419, October P100,000, because the principal
27, 1983). demand is P80,000, exclusive of
interest and attorney’s fees (Sec 33,
B.P. Blg. 129, as amended).

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 However, inasmuch as all actions of possession of any land or building to
forcible entry and unlawful detainer one who has been illegally deprived
are subject to summary procedure of such possession, without
and since the counterclaim is only prejudice to the settlement of the
permissive, it cannot be entertained parties’ opposing claims of juridical
by the Municipal Trial Court (Sec. 1, possession in appropriate
Revised Rule on Summary proceedings (Heirs of Agapatio T.
Procedure). Olarte and Angela A. Olarte et al. v.
Office of the President of
Q: The spouses Juan reside in Quezon City.
thePhilippines et al., G.R. No.
With their lottery winnings, they purchased a
177995, June 15, 2011).
parcel of land in Tagaytay City for
P100,000.00. In a recent trip to their In Abad v. Farrales, G.R. No.
Tagaytay property, they were surprised to 178635, April 11, 2011, the Supreme
see hastily assembled shelters of light Court held that two allegations are
materials occupied by several families of indispensable in actions for forcible
informal settlers who were not there when entry to enable first level courts to
they last visited the property three (3) acquire jurisdiction over them: first,
months ago. that the plaintiff had prior physical
possession of the property; and,
To rid the spouses’ Tagaytay property of
second, that the defendant deprived
these informal settlers, briefly discuss the
him of such possession by means of
legal remedy you, as their counsel, would
force, intimidation, threats, strategy,
use; the steps you would take; the court
or stealth.
where you would file your remedy if the
need arises; and the reason/s for your However, before instituting the said
actions. (2013 Bar) action, I will first endeavor to
amicably settle the controversy with
A: As counsel of spouses Juan, I will
the informal settlers before the
file a special civil action for Forcible
appropriate Lupon or Barangay
Entry. The Rules of Court provides
Chairman. If there is no agreement
that a person deprived of the
reached after mediation and
possession of any land or building
conciliation under the Katarungang
by force, intimidation, threat,
Pambarangay Law, I will secure a
strategy or stealth may at any time
certificate to file action and file the
within (one) 1 year after such
complaint for ejectment before the
withholding of possession bring an
MTC of Tagaytay City where the
action in the proper Municipal Trial
property is located since ejectment
Court where the property is located.
suit is a real action regardless of the
This action which is summary in
value of the property to be recovered
nature seeks to recover the
or claim for unpaid rentals (BP 129
possession of the property from the
and Sec. 1, Rule 4).
defendant which was illegally
withheld by the latter (Sec. 1, Rule In the aforementioned complaint, I
70). will allege that Spouses Juan had
prior physical possession and that
An ejectment case is designed to
the dispossession was due to force,
restore, through summary
intimidation and stealth. The
proceedings, the physical

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 complaint will likewise show that the a. What judicial remedy would you
action was commenced within a recommend to Maria?
period of one (1) year from unlawful
A: I will advise Maria to immediately
deprivation of possession, and that
send a letter to the tenant
Spouses Juan is entitled to
demanding the immediate payment
restitution of possession together
of the unpaid rentals plus interests
with damages and costs.
due. If the tenant refuses, Maria can
avail any of the following remedies:

Q: BB files a complaint for ejectment in the 1. A complaint under A.M. No. 08-8-7-
MTC on the ground of non-payment of SC or the Rules of Procedure for
rentals against JJ. After two days, JJ files in Small claims cases. Maria should
the RTC a complaint against BB for specific nonetheless waive the amount in
performance to enforce the option to excess of P100,000 in order for her
purchases the land subject of the ejectment to avail of the remedy under the said
case. What is the effect of JJ’s action on Rules.
BB’s complaint? Explain. (2000 Bar) 2. A complaint for collection of sum of
money under the Rules on Summary
A: There is no effect. The ejectment Procedure, since Maria is only
case involves possession de facto claiming the unpaid rentals and
only. The action to enforce the interest due from tenant.
option to purchase will not suspend 3. If the tenant refuses or is unable to
the action of ejectment for non- pay the rentals within 1 year from
payment or rentals (Willmon Auto the last demand to vacate and pay, I
Supply Corp. v. Court of would advise Maria to file an action
Appeals,G.R. No. 97637, April 10, for Unlawful Detainer.
1992).

b. Where is the proper venue of the judicial

Q: Landlord, a resident of Quezon City, remedy which you recommended?
entered into a lease contract with Tenant, a
resident of Marikina City, over a residential A:
house in Las Pinas City. The lease contract
1. If Maria decides to file a complaint
provided, among others, for a monthly rental
for collection of sum of money under
of P25,000.00, plus ten percent (10%)
the Rules of Summary Procedure or
interest rate in case of nonpayment on its
Small Claims, the venue is the
due date. Subsequently, Landlord migrated
residence of the plaintiff or
to the United States of America (USA) but
defendant, at the election if the
granted in favor of his sister Maria, a special
plaintiff (Sec. 2, Rule 4). Hence it
power of attorney to manage the property
may be in Quezon City or Marikina
and file and defend suits over the property
City, at the option of Maria.
rented out to Tenant. Tenant failed to pay
the rentals due for five (5) months.Maria 2. If Maria files an action for
asks your legal advice on how she can Unlawful detainer, the same shall be
expeditiously collect from Tenant the unpaid commenced and tried in the
rentals plus interests due. Municipal Trial Court of the
municipality or city wherein the real

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 property involved, or a portion v. Garces, L- 25923, July 15, 1980;
thereof is situated (Sec. 1, Rule 4). Pascua v. Heirs of Segundo
Therefore, the venue is Las Pinas Simeon,G.R. No. L47717, May 2,
City. 1988; Patagan et. al. v. Panis, G.R.
No. 55630, April 8, 1988).
c. If Maria insists on filing an ejectment suit
against Tenant, when do you reckon the
one (1)-year period within which to file the
action? (2014 Bar) CONTEMPT

A: The reckoning point for

determining the one-year period
Q: A filed a complaint for the recovery of
within which to file the action is the
ownership of land against B who was
receipt if the last demand to vacate
represented by her counsel X. in the course
and pay (Sec. 2, Rule 70).
of the trial, B died. However, X failed to
notify the court of B’s death. The court
proceeded to hear the case and rendered
Q: Mr. Sheriff attempts to enforce a Writ of judgment against B. After the Judgment
Execution against X, a tenant in a became final, a writ of execution was issued
condominium unit, who lost in an ejectment against C, who being B’s sole heir, acquired
case. X does not want to budge and refuses the property. Did the failure of counsel X to
to leave. Y, the winning party, moves that X inform the court of B’s death constitute
be declared in contempt and after hearing, direct contempt? (1998 Bar)
the court held X guilty of indirect contempt.
If you were X’s lawyer, what would you do? A: No. It is not direct contempt under Sec. 1
Why? (2012 Bar) of Rule 71, but it is an indirect contempt
within the purview of Sec. 3 of Rule 71. The
A: If I were X’s lawyer, I would file a lawyer can also be subject of disciplinary
petition for certiorari under Rule 65. action (Sec. 16, Rule 3).
The judge should not have acted on
Y’s motion to declare X in contempt.
The charge of indirect contempt is
intiated through a verified petition
(Sec.4, Rule 71). The writ was not
directed to X but to the sheriff which
was directed to deliver the property
to Y. As the writ did not command
the judgment debtor to do anything,
he cannot be guilty of the facts
described in Rule 71 which is
“disobedience of or resistance to a
lawful writ, process, order, judgment,
or command of any court.” The
proper procedure is for the sheriff to
oust X availing of the assistance of
peace officers pursuant to Section
10(c) of Rule 39 (Lipa v. Tutaan, L-
16643, September 29, 1983; Medina

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