Rule 57 Preliminary Attachment

Philippine Bank of Communications v. Court of Appeals

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The Court said that while the Motion refers to the transaction complained of
as involving trust receipts, the violation of the terms of which is qualified by
law as constituting estafa, it does not follow that a writ of attachment can
and should automatically issue. PBC cannot merely cite Section 1(b) and (d),
Rule 57, of the Revised Rules of Court, as mere reproduction of the rules,
without more, cannot serve as good ground for issuing a writ of attachment.
An order of attachment cannot be issued on a general averment, such as one
obtaining in this case.
To sustain an attachment on this ground, the Court said that it must be shown
that the debtor in contracting the debt or incurring the obligation intended to
defraud the creditor. The Court finds an absence of factual allegations as to
how the fraud alleged by petitioner was committed. As correctly held by
respondent Court of Appeals, such fraudulent intent not to honor the
admitted obligation cannot be inferred from the debtors inability to pay or to
comply with the obligations. On the other hand, fraud may be gleaned from a
preconceived plan or intention not to pay. This does not appear to be so in
this case. In fact, it is alleged by private respondents that out of the total
P419,613.96 covered by the subject trust receipts, the amount of
P400,000.00 had already been paid, leaving only P19,613.96 as
balance. Hence, regardless of the arguments regarding penalty and interest,
it can hardly be said that private respondents harbored a preconceived plan
or intention not to pay PBC.
The Court also agrees with the finding of the Court of Appeals that that the
lower court should have conducted a hearing and required private petitioner
to substantiate its allegations of fraud, embezzlement and misappropriation.
The latter are matters which should have been addressed in a preliminary
hearing to guide the lower court to a judicious exercise of its discretion
regarding the attachment prayed for.
Finally, the Court holds that the rules on the issuance of a writ of attachment
must be construed strictly against the applicants. This stringency is required
because the remedy of attachment is harsh, extraordinary and summary in
nature. If all the requisites for the granting of the writ are not present, then
the court which issues it acts in excess of its jurisdiction.

D.M. Wenceslao and Associates, Inc. v. Readycon Trading and Construction

Corp.
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The posting of a counter-bond is not tantamount to a waiver of the right to

damages arising from a wrongful attachment. Whether the attachment was
discharged by either of the two ways indicated in the law, i.e., by filing a
counter-bond or by showing that the order of attachment was improperly or

irregularly issued, the liability of the surety on the attachment bond subsists
because the final reckoning is when the Court shall finally adjudge that the
attaching creditor was not entitled to the issuance of the attachment writ in
the first place. The attachment debtor cannot be deemed to have waived any
defect in the issuance of the attachment writ by simply availing himself of
one way of discharging the attachment writ, instead of the other. Moreover,
the filing of a counter-bond is a speedier way of discharging the attachment
writ maliciously sought out by the attaching party creditor instead of the
other way, which in most instances like in the present case, would require
presentation of evidence in a full-blown trial on the merits and cannot easily
be settled in a pending incident of the case.
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The Court laid no hard and fast rule that bad faith or malice must be proved
to recover any form of damages. In some cases the Court found bad faith and
malice to be present, thereby warranting the award of moral and exemplary
damages. But the Court denied the award of actual damages for want of
evidence to show said damages. For the mere existence of malice and bad
faith would not per se warrant the award of actual or compensatory damages.
To grant such damages, sufficient proof thereon is required. In this case, proof
of malice and bad faith are unnecessary because, what is involved here is the
issue of actual and compensatory damages. Nonetheless, the Court finds that
Wenceslao is not entitled to an award of actual or compensatory damages. In
the present case, both the trial and the appellate courts held that the
complaint had merit. Otherwise stated, the two courts found Readycon
entitled to a writ of preliminary attachment as a provisional remedy by which
the property of Wenceslao is taken into custody of the law as a security for
the satisfaction of any judgment which Readycon may recover.

In this case, both the RTC and the Court of Appeals found no reason to rule
that Readycon was not entitled to issuance of the writ. Neither did the Court
find that the writ is improper or illegal. If Wenceslao suffered damages as a
result, it is merely because it did not heed the demand letter of Readycon in
the first place. Wenceslao could have averted such damage if it immediately
filed a counter-bond or a deposit in order to lift the writ at once. It did not,
and must bear its own loss, if any, on that account.

Gruenberg v. Court of Appeals

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The administratrix of a decedents estate, who is also an alleged creditor of

said estate, cannot ask for issuance of writ of attachment in an action she
filed to recover a house and lot allegedly sold by the deceased in fraud of the

rights of said administratrix as creditor of the decedent where the attachment

sought was solely intended to protect his right as creditor.
The records show that the private respondents interest in the estate is to
recover a debt based on a contract with the deceased Gruenberg. For this
reason, she instituted the special proceedings for the settlement of the
intestate estate resulting to her appointment as administratrix. Under these
circumstances, the private respondents remedy to recover the outstanding
debt of the deceased is to follow the procedure in Rule 86 on claims against
an estate. As a matter of fact, if an administrator has a claim against an
estate, Section 8 of Rule 86 calls for the appointment of a special
administrator to defend the estate against such claim.
The transaction sought to be annulled in the main case refers to a questioned
sale of a house and lot. It would have been sufficient to annotate a notice of
lis pendens in the title to that property. Assuming the trial court could validly
attach the house and lot involved in the sale, the Court see no justification
why the attachment should reach out to the petitioners interests in the
Hollywood Theatre, the Palace Theatre, and the Illusion Theatre. The
petitioners also point out that there is no showing of any attempt on their
part to conceal or to dispose of the house and lot nor of any change in the
title or condition of the property. Considering all the foregoing, we find the
writ of preliminary attachment to have been improvidently issued.

Mangila v. Court of Appeals

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As a preliminary note, a distinction should be made between issuance and

implementation of the writ of attachment. It is necessary to distinguish
between the two to determine when jurisdiction over the person of the
defendant should be acquired to validly implement the writ.
A party to a suit may, at any time after filing the complaint, avail of the
provisional remedies under the Rules of Court. Specifically, Rule 57 on
preliminary attachment speaks of the grant of the remedy at the
commencement of the action or at any time thereafter. This phrase refers to
the date of filing of the complaint which is the moment that marks the
commencement of the action. The reference plainly is to a time before
summons is served on the defendant, or even before summons issues.
It goes without saying that whatever be the acts done by the Court prior to
the acquisition of jurisdiction over the person of defendant - issuance of
summons, order of attachment and writ of attachment - these do not and
cannot bind and affect the defendant until and unless jurisdiction over his
person is eventually obtained by the court, either by service on him of
summons or other coercive process or his voluntary submission to the court's
authority. Hence, when the sheriff or other proper officer commences
implementation of the writ of attachment, it is essential that he serve on the
defendant not only a copy of the applicant's affidavit and attachment bond,
and of the order of attachment, as explicitly required by Section 5 of Rule 57,
but also the summons addressed to said defendant as well as a copy of the
complaint

The grant of the provisional remedy of attachment involves three stages:

first, the court issues the order granting the application; second, the writ of
attachment issues pursuant to the order granting the writ; and third, the writ
is implemented. For the initial two stages, it is not necessary that jurisdiction
over the person of the defendant be first obtained. However, once the
implementation of the writ commences, the court must have acquired
jurisdiction over the defendant for without such jurisdiction, the court has no
power and authority to act in any manner against the defendant. Any order
issuing from the Court will not bind the defendant.
In the instant case, the Writ of Preliminary Attachment was issued on
September 27, 1988 and implemented on October 28, 1988. However, the
alias summons was served only on January 26, 1989 or almost three months
after the implementation of the writ of attachment. The trial court had the
authority to issue the Writ of Attachment on September 27 since a motion for
its issuance can be filed at the commencement of the action. However, on
the day the writ was implemented, the trial court should have, previously or
simultaneously with the implementation of the writ, acquired jurisdiction over
the petitioner. Yet, as was shown in the records of the case, the summons was
actually served on petitioner several months after the writ had been
implemented.
In conclusion, the court held that the alias summons belatedly served on
petitioner could not be deemed to have cured the fatal defect in the
enforcement of the writ. The trial court cannot enforce such a coercive
process on petitioner without first obtaining jurisdiction over her person. The
preliminary writ of attachment must be served after or simultaneous with the
service of summons on the defendant whether by personal service,
substituted service or by publication as warranted by the circumstances of
the case. The subsequent service of summons does not confer a retroactive
acquisition of jurisdiction over her person because the law does not allow for
retroactivity of a belated service

Chemphil Export & Import Corporation v. Court of Appeals

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Both the Revised Rules of Court and the Corporation Code do not require
annotation in the corporation's stock and transfer books for the attachment of
shares of stock to be valid and binding on the corporation and third party.

If we were to rule otherwise, we would in effect create a back door by which a

debtor can easily escape his creditors. Consequently, we would be faced with an
anomalous situation where a debtor, in order to buy time to dispose of his
properties, would enter into a compromise agreement he has no intention of
honoring in the first place. The purpose of the provisional remedy of attachment
would thus be lost. It would become, in analogy, a declawed and toothless tiger.

Guzman v Catolico

The court is of the opinion and so holds that failure to allege in a complaint or
in the affidavit solemnizing it, or in a separate one, the requisites prescribed
by section 426 of the Code of Civil Procedure for the issuance of a writ of
preliminary attachment that there is no other sufficient security for the claim
sought to be enforced by the action, and that the amount due to the plaintiff
above all legal set-offs or counterclaims is as much as the sum for which the
order is sought, renders a writ of preliminary attachments issued against the
property of a defendant fatally defective, and the judge issuing it acts in
excess of his jurisdiction.

Chuidian v. Sandiganbayan
- There are two grounds to quash Preliminary Attachment: To file a counter
bond in accordance with Rule 57, Section 12; and quash the attachment on
the ground that it was irregularly or improvidently issued, as provided for in
Section 13 of the same Rule.
- The rule, however, contemplates that the defect must be in the very issuance
of the attachment writ. The attachment may be discharged under Sec. 13 of
Rule 57 when it is proven that the allegations of the complaint were
deceptively framed, or when the complaint fails to state a cause of action.
- The issue of fraud, however, touches on the very merits of the main case
which accuses petitioner of committing fraudulent acts in his dealings with
the government.
- In fine, fraud was not only one of the grounds for the issuance of the
preliminary attachment, it was at the same time the governments cause of
action in the main case.
- When the preliminary attachment is issued upon a ground which is at the
same time the applicants cause of action; e.g., an action for money or
property embezzled or fraudulently misapplied or converted to his own use
by a public officer, or an officer of a corporation, or an attorney, factor,
broker, agent, or clerk, in the course of his employment as such, or by any
other person in a fiduciary capacity, or for a willful violation of duty, or an
action against a party who has been guilty of fraud in contracting the debt or
incurring the obligation upon which the action is brought, the defendant is
not allowed to file a motion to dissolve the attachment under Section 13 of
Rule 57 by offering to show the falsity of the factual averments in the
plaintiffs application and affidavits on which the writ was based and
consequently that the writ based thereon had been improperly or irregularly
issued the reason being that the hearing on such a motion for dissolution of
the writ would be tantamount to a trial of the merits of the action. In other
words, the merits of the action would be ventilated at a mere hearing of a
motion, instead of at the regular trial.
- When the writ of attachment is issued upon a ground which is at the same
time the applicants cause of action, the only other way the writ can be lifted
or dissolved is by a counter bond, in accordance with Section 12 of the same
rule. This recourse, however, was not availed of by petitioner.
Davao Light & Power Co., Inc. v. Court of Appeals

Rule 57 in fact speaks of the grant of the remedy "at the commencement of
the action or at any time thereafter."The phase, "at the commencement of
the action," obviously refers to the date of the filing of the complaint
which, as above pointed out, is the date that marks "the commencement of
the action;" and the reference plainly is to a time before summons is served
on the defendant, or even before summons issues. What the rule is saying
quite clearly is that after an action is properly commenced by the filing of
the complaint and the payment of all requisite docket and other fees the
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 any time, either before or after service of summons on the defendant. And
this indeed, has been the immemorial practice sanctioned by the courts: for
the plaintiff or other proper party to incorporate the application for
attachment in the complaint or other appropriate pleading (counter-claim,
cross-claim, third-party claim) and for the Trial Court to issue the writ exparte at the commencement of the action if it finds the application otherwise
sufficient in form and substance.
Ample modes of recourse against a preliminary attachment are secured by
law to the defendant. The relative ease with which a preliminary attachment
may be obtained is matched and paralleled by the relative facility with which
the attachment may legitimately be prevented or frustrated.
The submission of a counterbond is an efficacious mode of lifting an
attachment already enforced against property, or even of preventing its
enforcement altogether.
o

When property has already been seized under attachment, the

attachment may be discharged upon counterbond in accordance with
Section 12 of Rule 57.

But even before actual levy on property, seizure under attachment

may be prevented also upon counterbond. The defendant need not
wait until his property is seized before seeking the discharge of the
attachment by a counterbond. This is made possible by Section 5 of
Rule 57.

Aside from the filing of a counterbond, a preliminary attachment may also be

lifted or discharged on the ground that it has been irregularly or improperly
issued, in accordance with Section 13 of Rule 57. Like the first, this second
mode of lifting an attachment may be resorted to even before any property
has been levied on. Indeed, it may be availed of after property has been
released from a levy on attachment, as is made clear by said Section 13, viz.:
This is so because The attachment debtor cannot be deemed to have waived
any defect in the issuance of the attachment writ by simply availing himself
of one way of discharging the attachment writ, instead of the other.
Moreover, the filing of a counterbond is a speedier way of discharging the
attachment writ maliciously sought out by the attaching creditor instead of
the other way, which, in most instances . . . would require presentation of

evidence in a fullblown trial on the merits, and cannot easily be settled in a

pending incident of the case."

Calderon v. Court of Appeals

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Whether the attachment was discharged by either of the two (2) ways
indicated in the law, i.e., by filing a counterbond or by showing that the order
of attachment was improperly or irregularly issued, the liability of the surety
on the attachment bond subsists because the final reckoning is when "the
Court shall finally adjudge that the attaching creditor was not entitled" to the
issuance of the attachment writ in the first place.
The attachment debtor cannot be deemed to have waived any defect in the
issuance of the attachment writ by simply availing himself of one way of
discharging the attachment writ, instead of the other. Moreover, the filing of a
counterbond is a speedier way of discharging the attachment writ maliciously
sought out by the attaching creditor instead of the other way, which, in most
instances like in the present case, would require presentation of evidence in a
full-blown trial on the merits and cannot easily be settled in a pending
incident of the case.

Hanil Development Co., Ltd v. Court of Appeals

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Section 20, Rule 57 of the Revised Rules of Court provides for the claim of
damages on account of illegal attachment, to wit:
o Claim for damages on account of illegal attachment. If the judgment
on the motion be in favor of the party against whom attachment was
issued, he may recover, upon the bond given or deposit made by the
attaching creditor, any damages resulting from the attachment. Such
damages may be awarded only upon application and after proper
hearing, and shall be included in the final judgment. The application
must be filed before the trial or before appeal is perfected or before
the judgment becomes executory, with notice to the attaching creditor
and his surety or sureties, setting forth the facts showing his right to
damages and the amount thereof.
o If the judgment of the appellate court be favorable to the party against
whom the attachment was issued, he must claim damages sustained
during the pendency of the appeal by filing an application with notice
to the party in whose favor the attachment was issued or his surety or
sureties, before the judgment of the appellate court becomes
executory. The appellate court may allow the application to be heard
and decided by the trial court.
Applying the principles laid down in the Malayan case to the circumstances
surrounding the application for judgment against attachment bond in this

case, the appellate court committed grave abuse of discretion in denying the
application for judgment against attachment bond. The appellate court's error
in this case is more pronounced considering that under Section 9 of the
Judiciary Reorganization Act of 1980 (Batas Pambansa Blg. 129) the
Intermediate Appellate Court is now empowered to try cases and conduct
hearings, receive evidence and perform acts necessary to resolve factual
issues in cases falling within its original and appellate jurisdiction. Certainly,
the amount of damages, if any, suffered by the petitioner as a result of the
issuance of the illegal attachment during the pendency of the appeal is a
factual issue.
Moreover, the application for judgment against the bond seasonably filed by
the petitioner in the appellate court would avoid multiplicity of suits. We have
earlier ruled that "the explicit provision of Section 20 of Rule 57, Revised
Rules of Court that the judgment against the surety should be included in the
final judgment is to avoid additional proceedings. (Cruz v. Manila Surety &
Fidelity Co., Inc. et al., 92 Phil. 699; (Japco v. City of Manila, 48 Phil. 851, 855
cited in Malayan insurance Corporation v. Salas, supra).

Rule 58 Preliminary Injunction

Golding v. Balatbat
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In granting injunctions for the purpose of obtaining possession of land, the

Court deemed it proper to make the following observations:
o

That injunction should not be granted to take property out of the

possession and control of one party and to place it in the hands of
another whose title has not been clearly established by law. Another
adequate, summary and speedy remedy exists for almost every case.

The writ of injunction is one of the special remedies provided by the

Code of Civil Procedure (Act No. 190). It should not be issued except
upon condition that no other ordinary, speedy and adequate remedy is
available to avoid or repair the damage done, or which may be done by
a new violation of the plaintiff's rights.

While the writ of injunction may be issued to restrain acts of trespass

and the illegal interference with the possession of land, the cases are
very few when said writ should issue ex parte and before the
defendant is given a hearing; and it should never issue when an action
for damages would adequately compensate the injuries caused. The
very foundation of the jurisdiction to issue the writ rests in the
probability of irreparable injury, the inadequacy of pecuniary
compensation, and the prevention of the multiplicity of suits, and

where facts are not shown to bring the case within these conditions,
the relief of injunction should be refused.

Injunctions to prevent trespass and the illegal interference with the

possession of land should not be granted, when the plaintiff's title is in
dispute and has not been established at law, until the question of title
is settled in a proper proceeding brought for that purpose.

There are cases, however, where an injunction may be granted in order

to preserve the statu quo of property until the title can be determined
in a proper action. But even then it should not be granted ex parte. The
defendant should be given an opportunity to be heard.

The remedy by injunction is never the proper remedy to deprive a

person of the possession of property. If the person in possession is in
possession illegally there exist other adequate, speedy and summary
remedies forcible entry and detainer and ejectment. These remedies
are adequate.

In the present action had the defendants appeared when they were cited so
to do and alleged and showed that they were in possession of the land in
question as owners thereof, the action would have resolved itself into one
of desahucio or ejectment, and a motion properly presented and properly
supported to dissolve the temporary injunction would have been denied. Of
course, upon the theory of the plaintiff, as presented in the record, that he
was the owner of the land in question and in possession thereof and that
fact not having been denied and that the defendants were mere
trespassers thereon and were illegally and maliciously interfering and
molesting the plaintiff in his quiet and peaceable enjoyment of the possession
of his property, then injunction was the proper remedy for the purpose of
preventing a repetition of said illegal acts.

Republic Telecommunications Holdings, Inc. v. Court of Appeals

- The status quo usually preserved by a preliminary injunction is the last
actual, peaceable and uncontested status which preceded the actual
controversy.
- As correctly pointed out by petitioner, the finding of the Securities and
Exchange Commission En Banc that the issuance of the writ below has no
other purpose than to preserve the status quo before the case was filed with
the Securities, Investigation, and Clearing Department (SICD), that is, prior to
the negotiations of Retelcom with Qualcomm and the corresponding
agreements thereon being finalized, was never questioned by the private
respondents in its petition for review filed with the Court of Appeals. It was for
this reason that the SICD issued the temporary restraining order and later on,

the writ of preliminary injunction. When the Court of Appeals issued the
assailed resolution, private respondents are now at liberty to implement the
board resolutions assailed in the SICD case and sign the questioned definitive
agreements with Qualcomm, Inc. Thus, the status quo ante, instead of being
preserved, will be disturbed.
Moreover, the issuance of the writ is an ancillary or preventive remedy to
secure the rights of a party to a pending case is entirely within the discretion
of the court taking cognizance of the case. The only limitation upon this
discretionary power is that it should be exercised upon the grounds and in the
manner provided for by law.

Garcia v. Mojica
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There have been instances when the Supreme Court has issued a status quo
order which, as the very term connotes, is merely intended to maintain the
last, actual, peaceable and uncontested state of things which preceded the
controversy. This was resorted to when the projected proceedings in the case
made the conservation of the status quo desirable or essential, but the
affected party neither sought such relief or the allegations in his pleading did
not sufficiently make out a case for a temporary restraining order. The status
quo order was thus issued motu proprio on equitable considerations. Also,
unlike a temporary restraining order or a preliminary injunction, a status quo
order is more in the nature of a cease and desist order, since it neither directs
the doing or undoing of acts as in the case of prohibitory or mandatory
injunctive relief. The further distinction is provided by the present
amendment in the sense that, unlike the amended rule on restraining orders,
a status quo order does not require the posting of a bond.

Miriam College Foundation Inc. v. Court of Appeals

- Preliminary injunction is an order granted at any stage of an action or
proceeding prior to the judgment or final order, requiring a party or a court,
agency or a person to perform to refrain from performing a particular act or
acts. As an extraordinary remedy, injunction is calculated to preserve or
maintain the status quo of things and is generally availed of to prevent actual
or threatened acts, until the merits of the case can be heard. A preliminary
injunction persists until it is dissolved or until the termination of the action
without the court issuing a final injunction.
- The basic purpose of restraining order, on the other hand, is to preserve
the status quo until the hearing of the application for preliminary
injunction. Under the Rules of Court, a judge (or justice) may issue a
temporary restraining order with a limited life of twenty days from date of
issue. If before the expiration of the 20-day period the application for
preliminary injunction is denied, the temporary order would thereby be
deemed automatically vacated. If no action is taken by the judge on the

application for preliminary injunction within the said 20 days, the temporary
restraining order would automatically expire on the 20th day by the sheer
force of law, no judicial declaration to that effect being necessary. In the
instant case, no such preliminary injunction was issued; hence, the TRO
earlier issued automatically expired upon the lapse of the twenty days. It can
hardly be said that in that short span of time, the private respondents had
already graduated as to render the case moot.
A case becomes moot and academic when there is no more actual
controversy between the parties or no useful purpose can be served in
passing upon the merits. To determine the moot character of a question
before it, the appellate court may receive proof or take notice of facts
appearing outside the record. In the absence of such proof or notice of facts,
the CA should not have assumed that its TRO was enforced, and that the case
was rendered moot by the mere lapse of time.

Embassy Farms, Inc. v. Court of Appeals

- It must be pointed out that with the injunction bond, the party enjoined is
amply protected against loss or damage in case it is finally decided that the
injunction ought not to have been granted.
Sps. Abelardo v. Court of Appeals
- Generally, injunction is a preservative remedy for the protection of one's
substantive right or interest. It is not a cause of action in itself but merely a
provisional remedy, an adjunct to a main suit. It is resorted to only when
there is a pressing necessity to avoid injurious consequences which cannot be
remedied under any standard compensation. The application of the injunctive
writ rests upon the existence of an emergency or of a special reason before
the main case can be regularly heard. The essential conditions for granting
such temporary injunctive relief are that the complaint alleges facts which
appear to be sufficient to constitute a proper basis for injunction and that on
the entire showing from the contending parties, the injunction is reasonably
necessary to protect the legal rights of the plaintiff pending the litigation. Two
requisites are necessary if a preliminary injunction is to issue, namely, the
existence of a right to be protected and the facts against which the injunction
is to be directed are violative of said right. In particular, for a writ of
preliminary injunction to issue, the existence of the right and the violation
must appear in the allegation of the complaint and a preliminary injunction is
proper only when the plaintiff (private respondent herein) appears to be
entitled to the relief demanded in his complaint.
- In the case at bar, private respondent has sufficiently established his right
over the subject fishpond. The evidence presented by the private respondent
during the hearing for the issuance of the preliminary injunction
undoubtedly show private respondent's legal right to possess the subject
fishpond. The evidence reveals that the land in dispute is covered by an
Application for Lease Agreement with the Bureau of Fisheries and Aquatic
Resources in favor of herein private respondent; that private respondent paid
the lease rentals thereof; that the Bureau of Fisheries recognized his
possession over the lot in question and that all other persons and/or group of
persons other than the applicants are deemed illegal. It also discloses that
petitioners are only fishpond guards of the private respondent. No evidence

was introduced by the petitioners to refute such claim and merely adopted
the evidence introduced by the private respondent.
It is worth stressing too that the assessment and evaluation of evidence in
the issuance of the writ of preliminary injunction involves findings of facts
ordinarily left to the trial court for its conclusive determination.

Gonzales v. State Properties Corporation

- Administrative Circular No. 20-95,which provided for the requisites of a raffle
of cases, has been incorporated into Section 4 (c), Rule 58 of the 1997 Rules
of Civil Procedure. The provision now reads as follows:
(c) When an application for a writ of preliminary injunction or a temporary
restraining order is included in a complaint or any initiatory pleading, the
case, if filed in a multiple-sala court, shall be raffled only after notice to and in
the presence of the adverse party or the person to be enjoined. In any event,
such notice shall be preceded, or contemporaneously accompanied, by
service of summons, together with a copy of the complaint or initiatory
pleading and the applicants affidavit and bond, upon the adverse party in the
Philippines.
However, where the summons could not be served personally or by
substituted service despite diligent efforts, or the adverse party is a resident
of the Philippines temporarily absent therefrom or is a nonresident thereof,
the requirement of prior or contemporaneous service of summons shall not
apply.
- From the foregoing, it is clear that the prerequisites for conducting a raffle
when there is a prayer for a writ of preliminary injunction or temporary
restraining order are (1) notice to and (b) presence of the adverse party or
person to be enjoined. The above rule also provides that the notice shall be
preceded or accompanied by a service of summons to the adverse party or
person to be enjoined.
Gateway Electronics v. Land Bank
- A writ of mandatory injunction requires the performance of a particular act
and is granted only upon a showing of the following requisites (1) the
invasion of the right is material and substantial; (2) the right of a complainant
is clear and unmistakable; and (3) there is an urgent and permanent
necessity for the writ to prevent serious damage. Since it commands the
performance of an act, a mandatory injunction does not preserve the status
quo and is thus more cautiously regarded than a mere prohibitive
injunction.Accordingly, the issuance of the former is justified only in a clear
case, free from doubt and dispute.
Marquez v. Sanchez
- Issuance of a writ of preliminary injunction is a mere ancillary remedy.
- Due process is served when the parties are given the opportunity to be heard
for the court to consider every piece of evidence presented in their favor. In
the instant case, Marquez was present at the October 14, 1992 hearing and
was able to argue his case for the issuance of the injunctive writ. Thus, he
cannot claim that respondent judge denied him due process. Verily, the trial
court must not delve into the primary issues raised in the main action in the
hearing for the issuance of an injunctive writ. The grant of an injunctive writ,

being an ancillary remedy, which could result in a premature resolution of the

caseor will grant the principal objectives of the partiesbefore the merits
can be passed upon, is proscribed, and the prayer for the relief will be
properly denied, as in the instant case. Indeed, the evidence required for the
trial court to consider during the hearing was only a sample and intended
merely to give it an idea of the justification for the injunctive writ pending
decision of the case on the merits, which must rest on solid grounds. As it is,
Marquez had been given ample opportunity to present evidence to support
his prayer for the injunctive writ and was therefore not denied due process.

Autocorp Group and Autographics, Inc. v. Court of Appeals

-

The important fact is that the entry in the primary entry book was done prior
to the issuance of the writ of injunction by the trial court.

In fine, petitioners prayer for the issuance of a writ of injunction, to prevent

the register of deeds from registering the subject certificate of sale, had been
rendered moot and academic by the valid entry of the instrument in the
primary entry book. Such entry is equivalent to registration. Injunction would
not lie anymore, as the act sought to be enjoined had already become a fait
accompli or an accomplished act.

Boncodin v. Napocor Employees Consolidated Union

- A petition for prohibition is a preventive remedy and, as a rule, does not lie to
restrain an act that is already fait accompli.
- To be entitled to a writ of injunction, a party must establish the following
requisites: (a) the right of the complainant is clear and unmistakable; (b) the
invasion of the right sought to be protected is material and substantial; and
(c) there is an urgent and paramount necessity for the writ to prevent serious
damage.
- The question of whether a writ of preliminary injunction should be issued is
addressed to the sound discretion of the issuing court. The grant of the writ is
conditioned on the existence of the movant's clear and positive right, which
should be protected. A clear legal right means one clearly founded in or
granted by law or is "enforceable as a matter of law." Absent any clear and
unquestioned legal right, the issuance of an injunctive writ would constitute
grave abuse of discretion.
- From the foregoing, it is obvious that the right claimed by respondent as its
basis for asking for injunctive relief is far from clear. The validity of the
circulars and board resolution has been put into serious question. While
respondent's claimed right is not required to be conclusively established, it is
nevertheless necessary to show that it exists and is not vitiated by
any substantial challenge or contradiction as that raised by petitioner. True,
their enforcement would be prejudicial to respondent members' interest, but

merely showing this fact is not sufficient. It must also be established that the
party applying for the writ has a clear legal right that must be protected.
While the grant of a writ of preliminary injunction generally rests on the
sound discretion of the court taking cognizance of the case, extreme caution
must be observed in the exercise of that discretion. A court should, as much
as possible, avoid issuing the writ, which would effectively dispose of the
main case without trial and/or due process.
In the present case, it is evident that the only ground relied upon for
injunctive relief is the alleged nullity of petitioner's Memorandum and
Auditor's suspension order. By issuing the writ, the trial court in effect
sustained respondent's claim that petitioner and Auditor had exceeded their
authority; and that the suspension was patently invalid or, at the very least,
that the memorandum and circular were of doubtful validity. Thus, the lower
court prejudged the main case and reversed the rule on the burden of proof
for which respondent was duty-bound to prove in the first place.

Raspado v. Court of Appeals

As held in Merville Park Homeowners Association vs. Velez:
-

A preliminary mandatory injunction is not a proper remedy to take property,

possession of which is being disputed, out of the possession and control of
one party and to deliver the same to the other party. IT MAY ISSUE pendente
lite ONLY IN CASES OF EXTREME URGENCY, WHERE the right to the
possession, during the pendency of the main case, of the property involved is
very clear; WHERE considerations of relative inconvenience bear strongly in
favor of the complainant seeking the possession pendente lite; WHERE there
was wilful and unlawful invasion of plaintiff's rights, over his protest and
remonstrance, the injury being a continuing one; WHERE the effect of the
preliminary mandatory injunction is to re-establish and maintain a preexisting and continuing relationship between the parties, recently and
arbitrarily interrupted by the defendant, rather than to establish a new
relationship during the pendency of the principal case (citing numerous
cases). Obviously, it is for the party requesting the writ to demonstrate
clearly the presence of one or more of the above grounds. (Emphasis
supplied)

The appellate court has correctly followed the guidelines that this Court has
set in said case:
o

The injunction that was issued by the respondent Judge went beyond
maintaining the status quo. The injunction did not reestablish or
maintain a preexisting continuing relation between the parties but, on
the contrary, it established a new relation. It is not denied that

petitioners were already in possession of the premises in question

when the property was sold by the Roman Catholic Archbishop of
Manila to private respondent on August 7, 1990. Private respondent
herself admitted that petitioners occupied the property in 1986
although the latter vigorously maintained that they have been
occupants of the land for more than 20 to 25 years. Therefore, when
we speak of status quo, it should be petitioners who should be given
the right to stay in the premises until after the main action is resolved.

Rule 60 Replevin
Citibank v. Court of Appeals
-

For erroneously issuing the alias writ of seizure without inquiring into the
sufficiency of the replevin bond and for allowing petitioner to assume
receivership without the requisite oath, the Court of Appeals aptly held that
the trial court acted with grave abuse of discretion in dealing with the
situation. Under the Revised Rules of Court, the property seized under a writ
of replevin is not to be delivered immediately to the plaintiff. This is because
a possessor has every right to be respected in its possession and may not be
deprived of it without due process.
While petitioner is correct insofar as it contends that substantial compliance
with the affidavit requirement may be permissible pursuant to Section 2, Rule
60 of the ROC, petitioners complaint does not allege all the facts that should
be set forth in an affidavit of merit.
The Court held that the absence of an affidavit of merit is not fatal where the
petition itself, which is under oath, recites the following facts constitutive of
the grounds for the petition: (1) that plaintiff owns the property particularly
describing the same, or that he is entitled to its possession; (2) wrongful
detention by defendant of said property; (3) that the property is not taken by
virtue of a tax assessment or fine pursuant to law or seized under execution
or attachment or, if it is so seized, that it is exempt from such seizure; and
the (4) the actual value of the property.
Although the complaint alleges that petitioner is entitled to the possession of
subject properties by virtue of the chattel mortgage executed by the private
respondent, upon the latters default on its obligation, and the defendants
alleged wrongful detention of the same, the said complaint does not state
that subject properties were not taken by virtue of a tax assessment or fine
imposed pursuant to law or seized under execution or attachment or, if they
were so seized, that they are exempt from such seizure. Then too, petitioner
stated the value of subject properties at a probable value of P200,000.00,
more or less.
Although respondents defense of lack of affidavit of merit is meritorious,
procedurally, such a defense is unfortunately no longer available for failure to
plead the same in the Answer as required by the omnibus motion rule.
ROC requires the plaintiff to give a bond, executed to the defendant in
double the value of the property as stated in the affidavit. Since the
valuation made by the petitioner has been disputed by the respondent, the

lower court should have determined first the actual value of the properties. It
was thus an error for the said court to approve the bond, which was based
merely on the probable value of the properties. A replevin bond is intended to
answer for damages and to indemnify the defendant against any loss that he
may suffer by reason of its being compelled to surrender the possession of
the disputed property pending trial of the action.
The remedies provided under Section 5, Rule 60, are alternative remedies.
Conformably, a defendant in a replevin suit may demand the return of
possession of the property replevined by filing a redelivery bond executed to
the plaintiff in double the value of the property as stated in the plaintiffs
affidavit within the period specified in Sections 5 and 6. Alternatively, the
defendant may object to the sufficiency of the plaintiffs bond, or of the
surety or sureties thereon; but if he does so, he cannot require the return of
the property by posting a counter-bond pursuant to Sections 5 and 6. The
private respondent did not opt to cause redelivery of the properties to him by
filing a counter-bond precisely because he objected to the sufficiency of the
bond posted by plaintiff. Therefore, he need not file a counter-bond or
redelivery bond.

La Tondena Distillers, Inc. v. Court of Appeals

-

A defendant or other party in a replevin proceeding against whom a writ of

seizure has the following alternative remedies set forth in Section 5, Rule 60
of the Rules of Court, viz.:
o

SEC. 5. Return, of property. If the defendant objects to the

sufficiency of the plaintiff's bond, or of the surety or sureties thereon,
he cannot require the return of the property as in this section provided;
but if he does not so object may, at any time before the delivery of the
property to the plaintiff require the return thereof, by filing with the
clerk or judge of the court a bond executed to the plaintiff in double
the value of the property as stated in the plaintiff affidavit, for the
delivery of the property to the plaintiff, if such delivery be adjudged,
for the payment of such sum to him as may be recovered against the
defendant, and by serving a copy of such bond on the plaintiff or his
attorney.

The defendant may avail of these alternative options only within 5 days after
the taking of the property by the officer. This was made plain albeit impliedly
by Section 6 of the same Rule, providing as follows:
o

SEC. 6 Disposition of property by officer. If within five (5) days after

the taking of the property by the officer, the defendant does not object
to the sufficiency of the bond, or of the surety or sureties thereon, or
require the return of the property as provided in the last preceding
section; or if the defendant so objects, and the plaintiff's first or new

bond is approved; or if the defendant so requires, and his bond is

objected to and found insufficient and he does not forthwith file an
approved bond, the property shall be delivered to the plaintiff. If for
any reason, the property is not delivered to the plaintiff, the officer
must return it to the defendant.
-

Thus if a defendant in a replevin action wishes to have the property taken by

the sheriff restored to him, he should within five days from such taking, (1)
post a counter-bond in double the value of said property, and (2) serve
plaintiff with a copy thereof both requirements as well as compliance
therewith within the five-day period mentioned being mandatory.

Alternatively, "the defendant may object to the sufficiency of the plaintiff's

bond, or of the surety or sureties thereon;" but if he does so, "he cannot
require the return of the property" by posting a counter-bond pursuant to
Sections 5 and 6.

In other words, the law does not allow the defendant to file a motion to
dissolve or discharge the writ of seizure (or delivery) on the ground of
insufficiency of the complaint or of the grounds relied upon therefor, as in
proceedings on preliminary attachment or injunction and thereby put at issue
the matter of the title or right, of possession over the specific chattel
being replevied, the policy apparently being that said matter should be
ventilated and determined only at the trial on the merits.

On the other hand, a stranger to the action, i.e., a person not a party to the
action, or as the law puts it, "any other person than the defendant or his
agent," whose property is seized pursuant to the writ of delivery, is accorded
the remedy known as terceria, a third party claim, to wit:
o

SEC. 7. Third-party claim. If the property taken be claimed by any

other person then the defendant or his agent, and such person makes
an affidavit of his title thereto or right to the possession thereof,
stating the grounds of such right or title, and serves the same upon the
officer while he has possession of the property, and a copy thereof
upon the plaintiff, unless the plaintiff or his agent, on demand of the
officer, indemnifies him against such claim by a bond in a sum not
greater than the value of the property, and in case disagreement as to
such value the same shall be decided by the court issuing the order.
The officer is not liable for damages for taking or keeping of such
property, to any other person than the defendant or his agent, unless
such claim is so made and the action upon the bond brought within
one hundred and twenty (120) days from the date of filing of the said
bond. But nothing herein contained shall prevent such third person

from vindicating his claim to the property by any proper action.

However, when the plaintiff, or the person in whose behalf the order of
delivery was issued, is the Republic of the Philippines, or any officer
duly representing it, the filing of bond shall not be required, and in
case the sheriff or the officer executing the order is sued for damages
as a result of such execution, he shall be represented by the Solicitor
General, and if held liable therefor, the actual damages adjudged by
the court shall be paid by the National Treasurer out of the funds to be
appropriated for the purpose.
-

The remedy is identical to that granted to strangers in a proceeding on

preliminary attachment or execution of judgments.

In lieu of, or in addition to the filing of a terceria, the third party may, as
Section 7 points out, vindicate "his claim to the property by any proper
action." This effort at vindication may take the form of a separate action for
recovery of the property, or intervention in the replevin action itself.

It was thus imperative for the Trial Judge, before ultimately resolving the
motion for leave to intervene as party defendant of the person identifying
himself as "Tee Chin Ho," to determine the precise status of said "Tee Chin
Ho:" whether he was indeed a stranger to the action, as he claims, and could
therefore avail of the remedy of intervention as a party defendant, or he was
in truth a proper party defendant, who had been mistakenly and
inadvertently referred to as "Te Tien Ho", and who therefore only had the
alternative remedies aforementioned of either (a) objecting to
the replevin bond or the surety or sureties thereof or (b) posting a counterbond to compel return of the property.

Rule 61 Support Pendente Lite

Ramos v. Court of Appeals
- The Rules of Court clearly authorizes the granting of support pendente lite,
even prior to the rendition of judgment by the trial court. Sections 1 and 5 of
Rule 61 provide:
o SEC. 1. Application. The plaintiff, at the commencement of the
proper action, or at any time afterwards but prior to final judgment,
may file an application for support pendente lite, stating the grounds
for the claim and the financial conditions of both parties, and shall be
accompanied by affidavits, depositions or other authentic documents
in support thereof.
o SEC. 5. Order. The court shall determine provisionally the pertinent
facts, and shall render such order as equity and justice may require,
having due regard to the necessities of the applicant, the means of the
adverse party, the probable outcome of the case, and such other
circumstances as may aid in the proper elucidation of the question

involved. If the application is granted, the court shall fix the amount of
money to be provisionally paid, and the terms of payment. ... .
-

It goes without saying that if, before the rendition of judgment, the trial court
may "provisionally" grant alimony pendente lite, with more reason may an
appellate court exercise a similar authority, after a full dress trial and a
decision of the trial court on the merits finding that the claim of filiation and
support has been adequately proven in the case at bar, beyond doubt
even if such decision were still pending appeal taken by the party adjudged
to be bound to give such support.

Rule 62 Interpleader
Wack Wack Golf & Country Club, Inc. v. Won
- The action of interpleader, under section 120 of the Code of Civil
Procedure, is a remedy whereby a person who has personal property in his
possession, or an obligation to render wholly or partially, without claiming
any right to either, comes to court and asks that the persons who claim the
said personal property or who consider themselves entitled to demand
compliance with the obligation, be required to litigate among themselves in
order to determine finally who is entitled to tone or the one thing. The
remedy is afforded to protect a person not against double liability but against
double vexation in respect of one liability.
- It has been held that a stakeholder's action of interpleader is too late when
filed after judgment has been rendered against him in favor of one of the
contending claimants, especially where he had notice of the conflicting claims
prior to the rendition of the judgment and neglected the opportunity to
implead the adverse claimants in the suit where judgment was entered. This
must be so, because once judgment is obtained against him by one claimant
he becomes liable to the latter.
- The Corporation has not shown any justifiable reason why it did not file an
application for interpleader in civil case 26044 to compel the appellees herein
to litigate between themselves their conflicting claims of ownership. It was
only after adverse final judgment was rendered against it that the remedy of
interpleader was invoked by it. By then it was too late, because to be entitled
to this remedy the applicant must be able to show that lie has not been made
independently liable to any of the claimants. And since the Corporation is
already liable to Lee under a final judgment, the present interpleader suit is
clearly improper and unavailing.
- Indeed, if a stakeholder defends a suit filed by one of the adverse claimants
and allows said suit to proceed to final judgment against him, he cannot later
on have that part of the litigation repeated in an interpleader suit. In the case
at hand, the Corporation allowed civil case 26044 to proceed to final
judgment. And it offered no satisfactory explanation for its failure to implead
Tan in the same litigation. In this factual situation, it is clear that this
interpleader suit cannot prosper because it was filed much too late.

In fine, the instant interpleader suit cannot prosper because the Corporation
had already been made independently liable in civil case 26044 and,
therefore, its present application for interpleader would in effect be a
collateral attack upon the final judgment in the said civil case; the appellee
Lee had already established his rights to membership fee certificate 201 in
the aforesaid civil case and, therefore, this interpleader suit would compel
him to establish his rights anew, and thereby increase instead of diminish
litigations, which is one of the purposes of an interpleader suit, with the
possiblity that the benefits of the final judgment in the said civil case might
eventually be taken away from him; and because the Corporation allowed
itself to be sued to final judgment in the said case, its action of interpleader
was filed inexcusably late, for which reason it is barred by laches or
unreasonable delay.

Rizal Commercial Banking Corporation v. Metro Container Corporation

- It should be remembered that an action of interpleader is afforded to protect
a person not against double liability but against double vexation in respect of
one liability. It requires, as an indispensable requisite, that conflicting claims
upon the same subject matter are or may be made against the plaintiff-ininterpleader who claims no interest whatever in the subject matter or an
interest which in whole or in part is not disputed by the claimants.
Rule 68 Foreclosure of Real Estate Mortgage
PNB v. Court of Appeals
- In extrajudicial foreclosure of mortgage, when the proceeds of the sale are
insufficient to pay the debt, the mortgagee has the right to recover the
deficiency from the mortgagor.
- However, it must be pointed out that petitioners cited cases involve ordinary
debts secured by a mortgage. The case at bar, the Court must stress,
involves a foreclosure of mortgage arising out of a settlement of estate,
wherein the administrator mortgaged a property belonging to the estate of
the decedent, pursuant to an authority given by the probate court. As the CA
correctly stated, the Rules of Court on Special Proceedings comes into play
decisively. The applicable rule is Section 7 of Rule 86 of the Revised Rules of
Court which PNB contends is not.
- It follows that the Court must consider Sec. 7 of Rule 86, appropriately
applicable to the controversy at hand, which in summary grants to the
mortgagee three distinct, independent and mutually exclusive remedies that
can be alternatively pursued by the mortgage creditor for the satisfaction of
his credit in case the mortgagor dies, among them:
o to waive the mortgage and claim the entire debt from the estate of the
mortgagor as an ordinary claim;
o to foreclose the mortgage judicially and prove any deficiency as an
ordinary claim; and
o to rely on the mortgage exclusively, foreclosing the same at any time
before it is barred by prescription without right to file a claim for any
deficiency.
- Clearly petitioner herein has chosen the mortgage-creditors option of
extrajudicially foreclosing the mortgaged property of the Chuas. This choice

now bars any subsequent deficiency claim against the estate of the
deceased. Petitioner may no longer avail of the complaint for the recovery of
the balance of indebtedness against said estate, after petitioner foreclosed
the property securing the mortgage in its favor. It follows that in this case no
further liability remains on the part of respondents and the deceaseds
estate.