SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS ATTY.

CAPELLAN

SPECIAL CIVIL ACTIONS RULE 62: Interpleader

WHAT IS A SPECIAL CIVIL ACTION? Section 1. When interpleader proper. Whenever conflicting claims upon the same
A civil action is one by which a party sues another for the enforcement or subject matter are or may be made against a person who claims no interest whatever in
protection of a right, or the prevention or redress of a wrong the subject matter, or an interest which in whole or in part is not disputed by the
claimants, he may bring an action against the conflicting claimants to compel them to
it can either be ORDINARY or SPECIAL interplead and litigate their several claims among themselves. (1a, R63)
WHAT ARE THE SPECIAL CIVIL ACTIONS?
1. Interpleader WHAT IS INTERPLEADER?
2. declaratory relief and similar remedies Is a remedy whereby a person who has personal or real property in his
3. Review of judgment and final orders or resolutions of the COMELEC and the possession, or an obligation to render wholly or partially, without claiming any
COA right to either, comes to court to asks that the persons who claim the said
personal property or real property or who consider themselves entitled to
4. Certiorari, Prohibitions and Mandamus demand compliance with the obligation, be required to litigate among
themselves in order to determine finally who is entitled to one or the other thing.
5. Quo Warranto
The remedy is afforded to protect a person not against double liability but
6. Expropriation
against double vexation in respect of one liability.
7. Foreclosure if Real Estate Mortgage
Not available to resolve issue of breach of undertaking it should be done in an
8. Partition ordinary civil action for specific performance or other relief
9. Forcible Entry and Unlawful Detainer INDESPENSIBLE REQUISITES
10. Contempt 1. conflicting claims upon the same subject matter are or may be made against a
person (plaintiff-in-interpleader) who claims no interest whatever in the subject
WHAT RULES GOVERN SPECIAL CIVIL ACTIONS?
matter, or an interest which in whole or in part is not disputed by the claimants
Rules 63 71 of the Rules of Court
2. two or more claimants to the fund or thing in dispute through separate and
Rule 1 56 ( governing ordinary civil actions) insofar as they are not different interests. The claims must be adverse before relief can be granted and
inconsistent with or may serve to supplement the provisions of Rule 62 to 71 the parties sought to be interpleaded must be in a position to make effective
claims.
HOW ARE THEY INSTITUTED?
3. The fund, thing, or duty over which the parties assert adverse claims must be
BY COMPLAINT BY PETITIONER one and the same and derived from the same source
Interpleader Declaratory relief and similar WHEN MAY AN ACTION IN INTERPLEADER BE FILED?
expropriation remedies
foreclosure of real estate review of judgment and final
file an action of interpleader within a reasonable time after a dispute has arisen
mortgage orders or resolutions of
without waiting to be sued by either of the contending claimants. Otherwise, he
partition COMELEC and the COA
may be barred by laches or undue delay.
forcible entry and unlawful Certiorari, prohibition and
detainer manadamus
quo warranto But where he acts with reasonable diligence in view of the environmental
contempt circumstances, the remedy is not barred.

JURISDICTION?

1 DIATO.2013400036
SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS
RTC MTC
If the subject matter of the action is Value beyond the prescribed for MTC's
personal property, valued at not more than jurisdiction for personal or real property.
300k outside Metro Manila or not more
than 400k in Metro Manila
if the subject matter is real property with
an assessed value at not more than 20k
outside metro manila or not more than 50k
inside metro manila
Section 2. Order. Upon the filing of the complaint, the court shall issue an order
requiring the conflicting claimants to interplead with one another. If the interests of
justice so require, the court may direct in such order that the subject matter be paid or
delivered to the court. (2a, R63)
Section 3. Summons. Summons shall be served upon the conflicting claimants,
together with a copy of the complaint and order. (3, R63)
Section 4. Motion to dismiss. Within the time for filing an answer, each claimant
may file a motion to dismiss on the ground of impropriety of the interpleader action or
on other appropriate grounds specified in Rule 16. The period to file the answer shall be
tolled and if the motion is denied, the movant may file his answer within the remaining
period, but which shall not be less than five (5) days in any event, reckoned from notice
of denial. (n)
WHAT GROUNDS MAY BE USED TO FILE A MOTION TO DISMISS?
RULE 16: Motion to Dismiss
(a) That the court has no jurisdiction over the person of the defending
party;
(b) That the court has no jurisdiction over the subject matter of the claim;
(c) That venue is improperly laid;
(d) That the plaintiff has no legal capacity to sue;
2 DIATO.2013400036
ATTY. CAPELLAN
(e) That there is another action pending between the same parties for the
same cause;
(f) That the cause of action is barred by a prior judgment or by the statute
of limitations;
(g) That the pleading asserting the claim states no cause of action;
(h) That the claim or demand set forth in the plaintiff's pleading has been
paid, waived, abandoned, or otherwise extinguished;
(i) That the claim on which the action is founded is enforceable under the
provisions of the statute of frauds; and
(j) That a condition precedent for filing the claim has not been complied
with. (1a)
Motion to Dismiss on the ground of impropriety of the Interpleader action may
be filed
Upon DENIAL of the motion to dismiss claimant has the remaining period
within which to answer, but in no case, less than 5 days from notice of denial
NO CONFLICTINC CLAIMS Interpleader may be dismissed for lack of cause
of action
Section 5. Answer and other pleadings. Each claimant shall file his answer setting
forth his claim within fifteen (15) days from service of the summons upon him, serving a
copy thereof upon each of the other conflicting claimants who may file their reply
thereto as provided by these Rules. If any claimant fails to plead within the time herein
fixed, the court may, on motion, declare him in default and thereafter render judgment
barring him from any claim in respect to the subject matter.
The parties in an interpleader action may file counterclaims, cross-claims, third-party
complaints and responsive pleadings thereto, as provided by these Rules. (4a, R63)
IF CLAIMANTS FAILED TO PLEAD WITHIN THE TIME FIXED?
Court, ON MOTION, declare him in default, and thereafter render judgment
barring him from any claim in respect to the subject matter
The defendant should be notified of the motion to declare him in default
OTHER PLEADINGS?
parties in an interpleader action may file counterclaims, cross-claims, third
party complaints and responsive pleadings thereto, "as provided by these Rules."
The second paragraph was added to Section 5 to expressly authorize the
additional pleadings and claims enumerated therein, in the interest of a
complete adjudication of the controversy and its incidents
SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS ATTY. CAPELLAN

in a pending case
Section 6. Determination. After the pleadings of the conflicting claimants have been
Presupposes that plaintiff has no interest Proper in any of these 4 situations. A
filed, and pre-trial has been conducted in accordance with the Rules, the court shall
in the subject matter of the action or has person having
proceed to determine their respective rights and adjudicate their several claims. (5a,
interest therein in whole or in part which is legal interest in the matter in
R63)
not disputed by the other parties litigation
interest in the success of either of
the parties
in a complaint for interpleader shall determine the rights and obligations of the interest against both
parties and adjudicate their respective claims. Such rights, obligations, and is so situated as to be adversely
claims could only be adjudicated if put forward by the aggrieved party in affected by a distribution or other
assertion of his rights. disposition of the property in
custody of the court or of an
Section 7. Docket and other lawful fees, costs and litigation expenses as liens. The officer
docket and other lawful fees paid by the party who filed a complaint under this Rule, as
well as the costs and litigation expenses, shall constitute a lien or change upon the Defendants are being sued precisely to Defendants are original parties to the
subject matter of the action, unless the court shall order otherwise. (6a, R63) interpleade them pending suits

WHO PAYS FOR DOCKET FEES?

RULE 63: Declaratory Relief and Similar
The person who files the complaint shall pay the docket and other lawful fees
Remedies
and shall bear the costs and other litigation expenses ORDINARY ACTION DECLARATORY RELIEF
whatever is paid to the court by the person who filed the complaint , including Write of execution is available No writ of execution because the object is
the costs and litigation expenses constitute a lien or charge upon the subject merely interpretation or definitive
matter of the action, unless the court shall order otherwise pronouncement of rights under a law, rule
WHAT CONSTITUTE A LIEN OR CHARGE UPON THE SUBJECT MATTER OF THE or order there is nothing to execute.
ACTION? There is violation or breach of right No violation or breach of right
Costs and litigations expenses Motion to dismiss Rule 16-17 Additional ground for Motion to dismiss
Rule 63 Sec 5.
Docket and other lawful fees paid by the party who filed the complaints
UNLESS : the court shall order otherwise The court may refuse to exercise the power
to declare rights and to construe
IS A PLAINTIFF-INTERPLEADER ENTITLED TO ATTORNEY'S FEES? instruments:
Decision would not terminate the
No provision relative to fees of the attorney for the plaintiff-in-interpleader
uncertainty or controversy which
No provision but taking into consideration the purpose : fees of an interpleader's gave rise to the action
attorney be defrayed with the funds sought to be distributed, unless there be the declaration or construction is
some reason justifying the payment thereof by some defendants in the case.
not necessary and proper under
INTERPLEADER INTERVENTION the circumstances

Original action Ancillary action

Commenced by filing of a complaint Commenced by a motion to intervene filed Section 1. Who may file petition. Any person interested under a deed, will, contract

3 DIATO.2013400036
SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS ATTY. CAPELLAN

or other written instrument, or whose rights are affected by a statute, executive order or 3. controversy must be between persons whose interests are adverse
regulation, ordinance, or any other governmental regulation may, before breach or 4. party seeking declaratory relief must have a legal interest in the controversy
violation thereof bring an action in the appropriate Regional Trial Court to determine
any question of construction or validity arising, and for a declaration of his rights or 5. issues involved must be ripe for judicial determination
duties, thereunder. (Bar Matter No. 803, 17 February 1998)
JUSTICIABLE CONTROVERSY
An action for the reformation of an instrument, to quiet title to real property or remove
1. real parties in interest who asserts adverse claims and present a ripe issue
clouds therefrom, or to consolidate ownership under Article 1607 of the Civil Code, may
be brought under this Rule. (1a, R64) 2. petition must shown an active antagonistic assertion of a legal right on one side
and a denial thereof on the other concerning a real, and not a mere theoretical
question or issue
WHAT ARE THE REMEDIES? WHAT IS THE SUBJECT MATTER? (Exclusive list)
1. DECLARATORY RELIEF wherein the court may refuse to exercise the power to Deed
declare rights and to construe instruments
will
2. SIMILAR REMEDIES wherein the court is bound to render judgment
contract or other written instrument
actions to reform an instrument
quiet title to real property or remove clouds from title of real property statute
consolidate ownership under Art. 1607 of the Civil Code
executive order or regulation or

PURPOSE OF DECLARATORY RELIEF ordinances
to ask the court to make a proper interpretation of a contract, not to ask for added: any other government regulation
injunction, execution or other relief beyond the adjudication of the legal right
which are the subject of controversy between the parties WHEN WILL IT NOT LIE?

confined to the actual controversy within the court's jurisdiction Action is to obtain judicial declaration of CITIZENSHIP

to secure an AUTHORITATIVE STATEMENT of the rights and obligations of the establish illegitimate filiation and determine hereditary rights
parties under the subject matter. where the terms of the assailed ordinances are not ambiguous or of doubtful
WHO HAS EXCLUSIVE JURISDICTION FOR DECLARATORY RELIEF meaning

Regional Trial Court court decision is the subject of an action

Except: action is to resolve a political question or issue

Acton for quieting of title depends on the assessed value of the property
if the petition has far-reaching implications and it raises questions that
should be resolved, it may be treated as one for prohibition or for
mandamus, which the SC or CA may take cognizance
REQUISITES OF AN ACTION FOR DECLARATORY RELIEF
1. subject matter must be those listed (exclusive list)
2. actual justiciable controversy
action is to try or determine issues rather than a construction of definite status,
rights or relations
petition is based on the happening of a contingent event
contract or statute on which action is based has been breached, because after the
breach, the regular remedies obtain
action is to merely seek an advisory opinion from the court on a moot question
no showing that the plaintiff has any business or interest that would be affected
by the questioned ordinance

4 DIATO.2013400036
SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS ATTY. CAPELLAN

where administrative remedies have not yet been exhausted action. (2a, R64)
DECLARATORY RELIEF DISTINGUISHED FROM OTHER JUDGMENTS

DECLARATORY RELIEF ORDINARY JUDGMENTS PARTIES

distinctive characteristic of a DR Primarily intended in most cases 1. a person
is that the declaration STANDS to remedy or make compensation
BY ITSELF, no executory process for injuries already suffered and who is INERESTED under a deed, will, contract or other written
follows as of course. for that reason must, in addition instrument or
to determining the rights whose rights will be affected by a statute, executive order, or regulation,
A judgment does not involve involved, grant consequential or
executory or coercive relief. ordinance or other government regulation
curative relief in some form.
Declaratory judgments involve a 2. all persons who have or CLAIM any interest which would be AFFECTED BY
real controversy and are res THE DECLARATION
judicata and binding upon the a declaration shall not except as otherwise provided by the rules prejudice the
parties and those in privity with rights of persons not parties to the action
them
IS NON-JOINDER OF NECESSARY PARTIES A JURISDICTION DEFECT?
NO, but it may be a ground for dismissal under Section 5 Rule 63
IS A 3RD PARTY COMPLAINT PROPER IN A DECLARATORY RELIEF ACTION?
nothing in this section which says that non-joiner who have or claim any interest
NO. IN a 3rd party complaint, the 3rd party plaintiff is supposed to seek is a defect
contribution, indemnity, subrogation or other relief from the 3 rd party defendant
in respect of the claim of the plaintiff against him. this section contemplates a situation where there are other persons who would
be affected by the declaration, but who were not impleaded as necessary parties,
It cannot be granted because in a declaratory relief, the court is confined merely in which case, the declaration shall not prejudice them.
to the INTERPRETATION of the terms of a contract.
Section 3. Notice on Solicitor General. In any action which involves the validity of a
MAY THE COURT GRANT AN AFFIRMATIVE RELIEF IN AN ACTION FOR
statute, executive order or regulation, or any other governmental regulation, the
DECLARATORY RELIEF?
Solicitor General shall be notified by the party assailing the same and shall be entitled to
YES, if the allegations in the complaint are sufficient to make out a case for be heard upon such question. (3a, R64)
specific performance or recovery of property with claims for damages and that
the defendant did not raise an issue in the trial court to challenge the remedy.
Court can grant affirmative relief as may be warranted by the evidence MAY A VALIDITY OR CONSTITUTIONALITY OF AN EO OR OTHER
GOVERNMENTAL REGULATION BE SUBJECT OF DECLARATORY RELIEF?
MAY A COMPULSORY CLAIM BASED ON OR ARISING FROM THE SAME
TRANSACTION, DEED OR CONTRACT ON WHICH THE PETITIONER IS BASED, BE YES
FILED AND ENTERTAINED IN DECLARATORY RELIEF PROCEEDINGS?
Section 4. Local government ordinances. In any action involving the validity of a
YES, nothing in the nature of a special civil action for declaratory relief that local government ordinance, the corresponding prosecutor or attorney of the local
proscribes the filing of a counterclaim based on the same transaction, deed or governmental unit involved shall be similarly notified and entitled to be heard. If such
contract subject of the complaint. ordinance is alleged to be unconstitutional, the Solicitor General shall also be notified
and entitled to be heard. (4a, R64)
Section 2. Parties. All persons who have or claim any interest which would be
affected by the declaration shall be made parties; and no declaration shall, except as
otherwise provided in these Rules, prejudice the rights of persons not parties to the

5 DIATO.2013400036
SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS
Section 5. Court action discretionary. Except in actions falling under the second
paragraph of section 1 of this Rule, the court, motu proprio or upon motion, may refuse
to exercise the power to declare rights and to construe instruments in any case where a
decision would not terminate the uncertainty or controversy which gave rise to the
action, or in any case where the declaration or construction is not necessary and proper
under the circumstances. (5a, R64)
WHEN CAN A COURT REFUSE TO MAKE A JUDICIAL DECLARATION?
Decision would not terminate the uncertainty or controversy which gave rise to
the action
the declaration or construction is not necessary and proper under the
circumstances
TWO PRINCIPAL CRITERIA GUIDING THE POLICY IN FAVOR OF RENDERING
DECLARACTORY JUDGMENTS ARE:
1. when the judgment will serve a useful purpose in clarifying and settling the legal
relations in issue
2. when it will terminate and afford relief from the uncertainty, insecurity, and of a motion for new trial or reconsideration of said judgment or final order or resolution,
controversy giving rise to the proceeding
Section 6. Conversion into ordinary action. If before the final termination of the
case, a breach or violation of an instrument or a statute, executive order or regulation,
ordinance, or any other governmental regulation should take place, the action may
thereupon be converted into an ordinary action, and the parties shall be allowed to file
such pleadings as may be necessary or proper. (6a, R64)
If there has been breach BEFORE THE FILING of the action declaratory relief
cannot be availed of
it is sufficient there is a breach of the law, an actionable violation to bar a
complaint for declaratory relief.
RULE 64: Review of Judgments and Final Orders
or Resolutions of the Commission on Elections
and the Commission on Audit
Section 1. Scope. This Rule shall govern the review of judgments and final orders or
resolutions of the Commission on Elections and the Commission on Audit. (n)
DOES THIS COVER CSC?
6 DIATO.2013400036
ATTY. CAPELLAN
NO, the CSC is excluded from the covered of Rule 64.
CSC falls under the CA, under RA 7902 which grants the CA exclusive appellate
jurisdiction over all awards, judgments, final orders or resolutions of or
authorized by the said Commission
Section 2. Mode of review. A judgment or final order or resolution of the
Commission on Elections and the Commission on Audit may be brought by the
aggrieved party to the Supreme Court on certiorari under Rule 65, except as hereinafter
provided. (n; Bar Matter No. 803, 17 February 1998)
WHAT IS THE MODE OF REVIEW?
The mode of review is by a PETITION FOR CERTIORARI under RULE 65,
exclusively to the SC and within a limited period of 30 days from notice, NOT
APPEAL by certiorari under Rula 45
Section 3. Time to file petition. The petition shall be filed within thirty (30) days
from notice of the judgment or final order or resolution sought to be reviewed. The filing
if allowed under the procedural rules of the Commission concerned, shall interrupt the
period herein fixed. If the motion is denied, the aggrieved party may file the petition
within the remaining period, but which shall not be less than five (5) days in any event,
reckoned from notice of denial. (n)
65 vs 45 : filing date
RULE 45 RULE 65
Filed within 30 days from the Filed within 60 days
notice of the judgment or final
order or resolution sought to be
reviewed
IN CASE OF DENIAL OF A MOTION FOR NEW TRIAL OR RECONSIDERATION OF
THE JUDGMENT OR FINAL ORDER OR RESOLUTION, WHAT IS THE PERIOD FOR
FILING A PETITION FOR CERTIORARI UNDER RULE 64?
in the event a motion for new trial or reconsideration, the filings of which
interrupts the 30 day period for filing a petition for certiorari, is denied, the
petition for certiorari under Rule 64 shall be filed within the remaining period,
but not less than 5 days from the notice of denial
a new period of 60 days from notice of denials is given for the filing of the
SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS
petition for certiorari UNDER RULE 65, section 4.
Section 4. Docket and other lawful fees. Upon the filing of the petition, the
petitioner shall pay to the clerk of court the docket and other lawful fees and deposit the
amount of P500.00 for costs. (n)
Section 5. Form and contents of petition. The petition shall be verified and filed in
eighteen (18) legible copies. The petition shall name the aggrieved party as petitioner
and shall join as respondents the Commission concerned and the person or persons
interested in sustaining the judgment, final order or resolution a quo. The petition shall
state the facts with certainty, present clearly the issues involved, set forth the grounds
and brief arguments relied upon for review, and pray for judgment annulling or
modifying the questioned judgment, final order or resolution. Findings of fact of the
Commission supported by substantial evidence shall be final and non-reviewable.
The petition shall be accompanied by a clearly legible duplicate original or certified true
copy of the judgment, final order or resolution subject thereof, together with certified
true copies of such material portions of the record as are referred to therein and other
documents relevant and pertinent thereto. The requisite number of copies of the
petition shall contain plain copies of all documents attached to the original copy of said
petition.
The petition shall state the specific material dates showing that it was filed within the
period fixed herein, and shall contain a sworn certification against forum shopping as
provided in the third paragraph of section 3, Rule 46.
The petition shall further be accompanied by proof of service of a copy thereof on the
Commission concerned and on the adverse party, and of the timely payment of docket
and other lawful fees.
The failure of petitioner to comply with any of the foregoing requirements shall be
sufficient ground for the dismissal of the petition. (n)
SHOULD THE RELEVANT COMMISSION BE JOINED AS A PARTY RESPONDENT?
YES, being a special civil action, the Commission concerned is joind as a party
respondent
WHAT ARE THE CONTENTS OF A PETITION FOR CERTIORARI UNDER RULE 64?
similar to those required under Sec 3 of Rule 64 (ordinary cases)
Section 6. Order to comment. If the Supreme Court finds the petition sufficient in
form and substance, it shall order the respondents to file their comments on the petition
within ten (10) days from notice thereof; otherwise, the Court may dismiss the petition
outright. The Court may also dismiss the petition if it was filed manifestly for delay or
7 DIATO.2013400036
ATTY. CAPELLAN
the questions raised are too unsubstantial to warrant further proceedings. (n)
WHEN WILL THE SC ISSUE AN ORDER TO COMMENT ON THE PETITION FOR
CERTIORARI?
If the SC finds the petition for certiorari to be sufficient in form and substance,
issue an order to comment within 10 days from notice
WHEN WILL THE SC ORDER THE DISMISSAL OF THE PETITION?
1. Petition is not sufficient in form and substance
2. was manifestly for delay
3. raises questions which are too unsubstantial to warrant further proceedings
Section 7. Comments of respondents. The comments of the respondents shall be
filed in eighteen (18) legible copies. The original shall be accompanied by certified true
copies of such material portions of the record as are referred to therein together with
other supporting papers. The requisite number of copies of the comments shall contain
plain copies of all documents attached to the original and a copy thereof shall be served
on the petitioner.
No other pleading may be filed by any party unless required or allowed by the Court. (n)
Section 8. Effect of filing. The filing of a petition for certiorari shall not stay the
execution of the judgment or final order or resolution sought to be reviewed, unless the
Supreme Court shall direct otherwise upon such terms as it may deem just. (n)
MAY THE PETITIONER APPLY FOR A RESTRAINING ORDER AND PRELIMINARY
INJUNCTION WITH THE SC?
YES, the petitioner may apply for restraining order and preliminary injunction
with the SC, otherwise the filing of a petition for certiorari shall not stay the
execution of the judgment or final order or resolution sought to be reviewed
this is similar to section 12 of Rule 43 (Appeal from quasi judicial or Court of Tax
Appeals)
Section 9. Submission for decision. Unless the Court sets the case for oral argument,
or requires the parties to submit memoranda, the case shall be deemed submitted for
decision upon the filing of the comments on the petition, or of such other pleadings or
papers as may be required or allowed, or the expiration of the period to do so. (n)
SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS ATTY. CAPELLAN

affirmative act; and the only

effect of a writ of
RULE 65: Certiorari, Prohibition and Mandamus prohibition is to suspend all
action, and to prevent any
further proceeding in the
JUDICIAL FUNCTION QUASI-JUDICIAL FUNCTION prohibited direction.

Power to determine what the law is and Action or discretion of public tribunal, board or tribunal, board or tribunal,
what the legal rights of the parties are, and administrative officers or bodies, which are officer, exercises officer, exercises corporation, officer
then undertake to determine these required to investigate facts or ascertain judicial or quasi- judicial or quasi- or persons
questions and adjudicate upon the rights of the existence of facts, hold hearings, and judicial functions judicial functions exercises judicial,
the parties draw conclusions from them as basis for quasi-judicial or
their official action and to exercise tribunal,board or tribunal,board or ministerial
discretion of a judicial nature officer has acted officer has acted functions
without or in without or in
excess of excess of tribunal,
CERTIORARI PROHIBITION MANDAMUS jurisdiction or with jurisdiction or with corporation, officer
grave abuse of grave abuse of or persons has
is a writ issued by a A legal remedy that command employed to discretion discretion acted without or in
superior court to an inferior prevents the unlawful and compel the performance, amounting to lack amounting to lack excess of its or his
court, board or officer oppressive exercise of legal when refused, of a or excess of or excess of jurisdiction, or
exercising judicial or quasi- authority and provides for a ministerial duty, his being jurisdiction jurisdiction with grave abuse of
judicial functions whereby, fair and orderly its chief use, and not a discretion
the record of a particular administration of justice discretionary duty no appeal, or any no appeal, or any amounting to lack
case is ordered to be plain, speedy and plain, speedy and or excess of
elevated for review and directed against available to compel action, adequate remedy adequate remedy jurisdiction,
correction in matters of law proceedings that are done when refused, in matters in the ordinary in the ordinary
without or in excess of involving judgment and there is no appeal
course of law. course of law.
WRIT OF CERTIORARI jurisdiction, or with grave discretion, but not to direct or any other plain,
prerogative write, never abuse of discretion, there the exercise of judgment or speedy, and
demandable as a matter of being no appeal or other discretion in a particular adequate remedy
right, never issued except in plain, speedy and adequate way or the retraction or in the ordinary
the exercise of judicial remedy in the ordinary reversal of an action already course of law
discretion course of law taken in the exercise of
either
WRIT OF PROHIBITION To annul or nullify a To have respondent desist For respondent to: (1) Do
one which commands the proceeding from further proceeding the act required; and (2) Pay
person to whom it is damages
directed not to do
something which, by Corrective remedy Preventive or negative Affirmative or positive
suggestion of the relator, remedy remedy
the court is informed he is
about to do. If the thing be Against Entity or person Against Entity or person Entity or person exercising
already done, it is manifest exercising judicial or quasi- exercising judicial or quasi- ministerial function
the writ of prohibition judicial function judicial function or
cannot undo it, for that ministerial function
would require and

8 DIATO.2013400036
SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS ATTY. CAPELLAN

It covers discretionary It covers discretionary and It covers ministerial acts speedy and
ministerial acts adequate remedy
in the ord
GROUNDS: GROUNDS: GROUNDS:
Entity or person is alleged Entity or person is alleged Entity or person is alleged
to have acted: (1) Without to have acted: (1) Without to have unlawfully: (1)
jurisdiction; (2) In excess of jurisdiction; (2) In excess of Neglected a ministerial
jurisdiction; or (3) With jurisdiction; or (3) With duty; or (2) Excluded Section 1. Petition for certiorari. When any tribunal, board or officer exercising
grave abuse of discretion grave abuse of discretion another from a right or judicial or quasi-judicial functions has acted without or in excess its or his jurisdiction,
amounting to lack or excess amounting to lack or excess office or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is
of jurisdiction of jurisdiction no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a
person aggrieved thereby may file a verified petition in the proper court, alleging the
facts with certainty and praying that judgment be rendered annulling or modifying the
REQUISITES (1) There must be a (1) There must be a
proceedings of such tribunal, board or officer, and granting such incidental reliefs as law
controversy clear legal right or
(1) There must be a and justice may require.
duty
controversy (2) Respondent is
The petition shall be accompanied by a certified true copy of the judgment, order or
exercising judicial, (2) (2) The act to be
(2) Respondent is resolution subject thereof, copies of all pleadings and documents relevant and pertinent
quasi-judicial, or performed must be
exercising judicial thereto, and a sworn certification of non-forum shopping as provided in the third
ministerial practical (within
or quasi-judicial paragraph of section 3, Rule 46. (1a)
functions the powers of the
functions respondent to
(3) Respondent acted perform such that
(3) Respondent acted without or in
without or in if the writ was CERTIORARI
excess of its issued, he can
excess of its jurisdiction or is a writ issued by a superior court to an inferior court, board or officer
jurisdiction or comply with it, or
acted with grave else the essence exercising judicial or quasi-judicial functions whereby, the record of a particular
acted with grave abuse of discretion case is ordered to be elevated for review and correction in matters of law
abuse of discretion will be defeated)
amounting to lack
of jurisdiction (3) (3) Respondent WRIT OF CERTIORARI prerogative write, never demandable as a matter of
(4) There must be no
must be exercising right, never issued except in the exercise of judicial discretion
appeal or other (4) There must be no
plain , speedy and a ministerial duty REQUISITES FOR CERTIORARI
appeal or other (a duty which is
adequate remedy plain , speedy and absolute, 1. tribunal, board or officer, exercises judicial or quasi-judicial functions
adequate remedy imperative and 2. tribunal,board or officer has acted without or in excess of jurisdiction or with
merely involves its grave abuse of discretion amounting to lack or excess of jurisdiction
execution)
3. no appeal, or any plain, speedy and adequate remedy in the ordinary course of
(4) (4) The duty or act law.
to be performed
must be existing (a JUDICIAL FUNCTIONS OR QUASI-JUDICIAL ACTS?
correlative right
will be denied if Judicial functions presupposes the use of mental processes in the determination
not performed by of law or fact, and at times involves discretion as to how the power should be
the respondents) used

(5) (5) There is no exercise of judicial functions determine what the law is and what the legal rights
other plain , of the parties are, and then undertake to determine these questions and

9 DIATO.2013400036
SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS ATTY. CAPELLAN

adjudicate upon the rights of the parties NO.

WITHOUT IN EXCESS OF GRAVE ABUSE OF the filing of a petition for certiorari is construed as abandonment of appeal.
JURISDICTION JURISDICTION DISCRETION There is incompatibility between the 2 remedies.
Jurisdiction of the subject Although the court has When it is performed in a HOWEVER, if the appeal is from the decision in the main case, and the
matter of a particular case acquired jurisdiction over CAPRICIOUS or certiorari petition is directed against the order denying the motion for new trial,
is conferred by law upon a the subject matter and the WHIMSICAL exercise of the 2 remedies can be availed of.
court to take cognizance of particular case has been judgment which is
cases. When such law is not submitted properly, it will equivalent to lack of MOTION FOR RECONSIDERATION NECESSARY?
present to confer him with overstep its jurisdiction if it jurisdiction. GENERAL RULE: a petition for certiorari will not be entertained unless the
authority to decide on the renders a judgment which it respondent , through a motion for reconsideration, a chance to correct the error
case then he acted without has no power under the law The abuse must be so patent imputed to him
his jurisdiction to render and gross as to amount to
an evasion of a positive duty EXCEPTIONS:
or to a virtual refusal to
issue raised is question of law
perform a a duty enjoined
by the law public interest is involved
urgency o the case, when further delay would prejudice the interest of the
WHEN IS THERE NO APPEAL? petitioner
1. Appeal does not lie and question of jurisdiction was already squarely raised, submitted to and met
2. the right to appeal having been lost with or without the appellant's negligence, and decided by the lower court
the court has not jurisdiction to issue the order or decision which is the subject order is a patent nullity
matter of the remedy.
order of the court is peremptory with a tone of finality
Appeal is lost appeal has expired, certiorari lies to set aside a judgment
which is null and void for lack or excess of jurisdiction execution has been ordered and relief is urgent

SPECIAL CIVIL ACTION FOR APPEAL BY CERTIORARI Section 2. Petition for prohibition. When the proceedings of any tribunal,
CERTIORARI corporation, board, officer or person, whether exercising judicial, quasi-judicial or
ministerial functions, are without or in excess of its or his jurisdiction, or with grave
Only question raised is whether or not the Only review questions or errors of law abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal or
respondent has acted without or in excess decided or committed by the lower court any other plain, speedy, and adequate remedy in the ordinary course of law, a person
of jurisdiction or with grave abuse of aggrieved thereby may file a verified petition in the proper court, alleging the facts with
discretion appeal brings up for review errors of certainty and praying that judgment be rendered commanding the respondent to desist
judgment committed by a court with from further proceedings in the action or matter specified therein, or otherwise granting
writ of certiorari issues for the correction jurisdiction over the subject of the suit and such incidental reliefs as law and justice may require.
of errors of jurisdiction only for grave the person of the parties or any such error
abuse of discretion amount to lack or committed by the court in the exercise of The petition shall likewise be accompanied by a certified true copy of the judgment,
excess of jurisdiction. its jurisdiction amounting to nothing more order or resolution subject thereof, copies of all pleadings and documents relevant and
than an error of judgment pertinent thereto, and a sworn certification of non-forum shopping as provided in the
Writ of certiorari serves to keep an inferior third paragraph of section 3, Rule 46. (2a)
court within bounds of its jurisdiction.

PROHIBITION?
SPECIAL CIVIL ACTION FOR CERTIORARI BE A SUBSTITUTE FOR APPEAL?

10 DIATO.2013400036
SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS ATTY. CAPELLAN

A legal remedy that prevents the unlawful and oppressive exercise of legal PROHIBITION INJUNCTION
authority and provides for a fair and orderly administration of justice
Directed to the court itself, commanding it Against proceedings at law is directed only
directed against proceedings that are done without or in excess of jurisdiction, to cease from the exercise of a jurisdiction to the parties litigant, without any manner
or with grave abuse of discretion, there being no appeal or other plain, speedy to which it has no legal claim interfering with the court
and adequate remedy in the ordinary course of law
WRIT OF PROHIBITION one which commands the person to whom it is MAY THE QUESTION OF CONSTITUTIONALITY BE RAISED IN PROHIBITION
directed not to do something which, by suggestion of the relator, the court is PROCEEDINGS?
informed he is about to do. If the thing be already done, it is manifest the writ of
prohibition cannot undo it, for that would require and affirmative act; and the It depends:
only effect of a writ of prohibition is to suspend all action, and to prevent any
general rule : prohibition will not lie where the inferior court has
further proceeding in the prohibited direction.
jurisdiction to decide on the constitutionality
PURPOSE prevent inferior courts, corporations, boards or persons from
except: if the inferior court derives its jurisdiction from an unconstitutional
usurping or exercising a jurisdiction or power with which they have not been
vested by the law statute, then prohibition will lie.

REQUISITES Section 3. Petition for mandamus. When any tribunal, corporation, board, officer or
person unlawfully neglects the performance of an act which the law specifically enjoins
1. tribunal, corporation, officer or persons exercises judicial, quasi-judicial or as a duty resulting from an office, trust, or station, or unlawfully excludes another from
ministerial functions the use and enjoyment of a right or office to which such other is entitled, and there is no
2. tribunal, corporation, officer or persons has acted without or in excess of its or other plain, speedy and adequate remedy in the ordinary course of law, the person
his jurisdiction, or with grave abuse of discretion amounting to lack or excess of aggrieved thereby may file a verified petition in the proper court, alleging the facts with
jurisdiction, certainty and praying that judgment be rendered commanding the respondent,
immediately or at some other time to be specified by the court, to do the act required to
3. there is no appeal or any other plain, speedy, and adequate remedy in the be done to protect the rights of the petitioner, and to pay the damages sustained by the
ordinary course of law petitioner by reason of the wrongful acts of the respondent.
CERTIORARI PROHIBITION The petition shall also contain a sworn certification of non-forum shopping as provided
in the third paragraph of section 3, Rule 46. (3a)
Corrective remedy used for the re- Preventive remedy issuing to restrain
examination of some action of an inferior future action, and is directed to the court
tribunal, and is directed to the cause or itself
proceeding in the lower court and not to MANDAMUS
the court itself command employed to compel the performance, when refused, of a ministerial
WRIT : May properly issue to nullify only WRIT: may be directed against the acts duty, his being its chief use, and not a discretionary duty
judicial or quasi-judicial acts either judicial, quasi-judicial or ministerial
available to compel action, when refused, in matters involving judgment and
Proper remedy to annul or modify an order discretion, but not to direct the exercise of judgment or discretion in a particular
alleged to have been entered by the CFI in way or the retraction or reversal of an action already taken in the exercise of
excess of its jurisdiction or with grave either
abuse of discretion in ordering the
execution of the judgment pending appeal EXCEPTION: in the performance of an official duty or act involving discretion,
and fixing the amount of the supersedeas the corresponding official can only be directed by mandamus to act, but not to
bond to stay execution act one way or the other
DISCRETION
part of the judicial function which decides questions arising in the trial of a

11 DIATO.2013400036
SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS ATTY. CAPELLAN

cause, according to the particular circumstances of each case, and as to which INJUNCTION MANDAMUS
the judgment of the court is uncontrolled by fixed rules of law.
Preventive remedy Remedial remedy
The power exercised by the courts to determine questions to which no strict law conservative remedy active remedy
is applicable but which, from their nature, and the circumstances of the case, are
controlled by the personal judgment of the court. Prevent future injury Redress past grievances

MINISTERIAL DUTY Preserves matters in status quo change the status of affairs and to
substitute action for inactivity
to which nothing is left to the discretion of the person who must perform it * two are divergent
it is a precise act accurately market out, enjoined upon particular officers for a
Section 4. When and where petition filed. The petition shall be filed not later than
particular purpose sixty (60) days from notice of the judgment, order or resolution. In case a motion for
REQUISITES reconsideration or new trial is timely filed, whether such motion is required or not, the
sixty (60) day period shall be counted from notice of the denial of said motion.
1. when any tribunal, corporation, board, officer, person unlawfully neglects the
performance of an act which the law specifically enjoins as a duty resulting from The petition shall be filed in the Supreme Court or, if it relates to the acts or omissions
an office, trust or stration of a lower court or of a corporation, board, officer or person, in the Regional Trial Court
exercising jurisdiction over the territorial area as defined by the Supreme Court. It may
2. when any tribunal, corporation, board, officer, person unlawfully excludes also be filed in the Court of Appeals whether or not the same is in aid of its appellate
another person from the use and enjoyment of a right or office to which the jurisdiction, or in the Sandiganbayan if it is in aid of its appellate jurisdiction. If it
other is entitled and involves the acts or omissions of a quasi-judicial agency, unless otherwise provided by
3. there is not other plain, speedy and adequate remedy in the ordinary course of law or these Rules, the petition shall be filed in and cognizable only by the Court of
law. Appeals.
No extension of time to file the petition shall be granted except for compelling reason
and in no case exceeding fifteen (15) days. (4a) (Bar Matter No. 803, 21 July 1998; A.M.
WILL MANDAMUS ISSUE WHEN ADMINISTRATIVE REMEDIES ARE STILL No. 00-2-03-SC)
AVAILABLE?
NO
WHERE CAN IT BE FILED?
EXCEPTIONS WHEN RULE OF EXHAUSTION CANNOT BE
INVOKED SC

1. if party is in estoppel
2. pure questions of law are raised
PROHIBITION
Has for its object that of preventing an
inferior court or tribunal from executing or
continuing to execute an act in excess of its
jurisdiction, when there is no other plain,
speedy and adequate remedy in the
ordinary course of law
MANDAMUS
Has for its object to compel an inferior
tribunal to comply with a function which
the law specially prescribes as a duty
resulting from its office, when there is no
other plain, speedy, adequate remedy
CA
BP129 granted the CA original jurisdiction to issue writs under Rule 45 and
auxiliary writes and processes, whether or not in aid of its jurisdictions
CA has exclusive appellate jurisdiction over quasi-judicial agencies under
Rule 43, petitions for writs of certiorari, prohibition or mandamus against
them should now be filed only with the CA, unless otherwise provided by
the law or these rules
Sandiganbayan
PD 1606 as amended by RA 8249 granted Sandiganbayan original
jurisdiction over petitions for the issuance of writes under Rule 45 in aid of
its appellate jurisdiction and over petitioner of similar nature, including quo
warranto, arising or that may arise in cases file under EO 1,2,14,14-A issued

12 DIATO.2013400036
SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS
in 1986 PROVDED that it is not exclusive of the SC
RTC
WHAT IS NEEDED TO PERFECT AN A PPEAL FROM A COMPLAINT?
File a notice of appeal and a record on appeal is not necessary.
Section 5. Respondents and costs in certain cases. When the petition filed relates to
the acts or omissions of a judge, court, quasi-judicial agency, tribunal, corporation,
board, officer or person, the petitioner shall join, as private respondent or respondents
with such public respondent or respondents, the person or persons interested in
sustaining the proceedings in the court; and it shall be the duty of such private
respondents to appear and defend, both in his or their own behalf and in behalf of the
public respondent or respondents affected by the proceedings, and the costs awarded in
such proceedings in favor of the petitioner shall be against the private respondents only,
and not against the judge, court, quasi-judicial agency, tribunal, corporation, board,
officer or person impleaded as public respondent or respondents.
Unless otherwise specifically directed by the court where the petition is pending, the
public respondents shall not appear in or file an answer or comment to the petition or
any pleading therein. If the case is elevated to a higher court by either party, the public
respondents shall be included therein as nominal parties. However, unless otherwise
specifically directed by the court, they shall not appear or participate in the proceedings
therein. (5a)
In special civil actions, NOT in appeals, the court, judge, quasi-judicial agency, MAY THE WRIT OF INJUNCTION ISSUED IN A SPECIAL CIVIL ACTION RESTRAIN
etc should be joined as public respondent, although it is the duty of the private
respondents to appear and defend them
the judge who was made a public respondent cannot take active part in appellate
proceedings relation to his official actuation EXCEPT if expressly ordered by the Section 8. Proceedings after comment is filed. After the comment or other pleadings
court
the joinder of persons interest in sustaining the proceedings with the court or
judge mandatory? joinder as parties defendant in sustaining the proceedings
is mandatory. The non-inclusion of the person interested in sustaining the
proceedings renders the petition defective.
Section 6. Order to comment. If the petition is sufficient in form and substance to
justify such process, the court shall issue an order requiring the respondent or
respondents to comment on the petition within ten (10) days from receipt of a copy
thereof. Such order shall be served on the respondents in such manner as the court may
direct together with a copy of the petition and any annexes thereto.
In petitions for certiorari before the Supreme Court and the Court of Appeals, the
provisions of section 2, Rule 56, shall be observed. Before giving due course thereto, the
court may require the respondents to file their comment to, and not a motion to dismiss,
13
ATTY. CAPELLAN
the petition. Thereafter, the court may require the filing of a reply and such other
responsive or other pleadings as it may deem necessary and proper. (6a)
The court can dismiss it if its not sufficient in form and substance
order requiring respondents to comment = equivalent to SUMMONS
court acquires jurisdiction over the person of the respondent by SERVICE ON
HIM of its ORDER or RESOLUTION indicating its initial action on the petition
or by his VOLUNTARY SUBMISSION to such jurisdiction
all cases originally filed in the CA or SC:
person filing: PETITIONER
person opposing: RESPONDENT
Section 7. Expediting proceedings; injunctive relief. The court in which the petition
is filed may issue orders expediting the proceedings, and it may also grant a temporary
restraining order or a writ of preliminary injunction for the preservation of the rights of
the parties pending such proceedings. The petition shall not interrupt the course of the
principal case unless a temporary restraining order or a writ of preliminary injunction
has been issued against the public respondent from further proceeding in the case. (7a)
NOT ONLY THE ISSUANCE OF WRIT OF EXECUTION BUT ALSO ANY ACTION ON
APPEAL?
YES.
required by the court are filed, or the time for the filing thereof has expired, the court
may hear the case or require the parties to submit memoranda. If after such hearing or
submission of memoranda or the expiration of the period for the filing thereof the court
finds that the allegations of the petition are true, it shall render judgment for the relief
prayed for or to which the petitioner is entitled.
The court, however, may dismiss the petition if it finds the same to be patently without
merit, prosecuted manifestly for delay, or that the questions raised therein are too
unsubstantial to require consideration. (8a)
MAY THE COURT DISMISS THE PETITIONER WITHOUT A HEARING OR THE
FILING OF A MEMORANDA?
YES. The court may deny the writ if from the answer or comment, it finds that
DIATO.2013400036
SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS
petition should be dismissed in the interest of justice
dismissal is also proper if before answer or comment is filed, the attention of the
court is called to the fact that from its own allegations, the petitioner appears to
be without merit.
WHAT DETERMINE THE NATURE OF A SPECIAL CIVIL ACTION?
The ALLEGATIONS of the petition, not the title.
Section 9. Service and enforcement of order or judgment. A certified copy of the
judgment rendered in accordance with the last preceding section shall be served upon
the court, quasi-judicial agency, tribunal, corporation, board, officer or person
concerned in such manner as the court may direct, and disobedience thereto shall be
punished as contempt. An execution may issue for any damages or costs awarded in
accordance with section 1 of Rule 39. (9a)
HOW ARE JUDGMENTS IN SPECIAL CIVIL ACTION EXECUTED?
In the same manner as in the execution of special judgments under Section 11 of
Rule 39
judgment for damages that may be awarded in mandamus Is executed in
accordance with Section 1 and 9 of Rule 39
RULE 66: Quo Warranto
Section 1. Action by Government against individuals. An action for the usurpation
of a public office, position or franchise may be commenced by a verified petition brought
in the name of the Republic of the Philippines against:
(a) A person who usurps, intrudes into, or unlawfully holds or exercises a
public office, position or franchise;
(b) A public officer who does or suffers an act which, by the provision of law,
constitutes a ground for the forfeiture of his office; or
(c) An association which acts as a corporation within the Philippines without
being legally incorporated or without lawful authority so to act. (1a)
QUO WARRANTO
is a latin phrase meaning BY WHAT AUTHORITY
it is a remedy or proceeding by which the sovereign or state determines the
legality of a claim which a party asserts to the use or exercise of an office or
franchise and ousts the holder from its enjoyment, if the claim is not well
founded, or if the right to enjoy the privilege has been forfeited or lost.
14
ATTY. CAPELLAN
Demand by the state upon some individual or corporation to show by what right
they exercise some franchise or privilege appertaining to the state which,
according to the Constitution and Laws of the land, they cannot legally exercise
except by virtue of grant of authority from the state
WHAT DOES THIS RULE REFER?
Against persons who usurp, intrude into or unlawfully hold a public office,
position or franchise
against public officers who forfeit their office
associations which act as corporations without being legally incorporated or
authorized.
HOW IS IT COMMENCED
VERIFIED PETITION brought in the name of the Republic of the Philippines
MANDAMUS QUO WARRANTO
Proper remedy when the respondent Remedy if the respondent claims any right
unlawfully excludes the petitioner from an to the office and usurps, intrudes into, or
office to which the latter is entitled without unlawfully holds it against the petitioner
usurping, intruding into, or unlawfully
holding the office
Against the person who excludes the Against the the person who actually holds
petitioner from the office in question the said office.
QUO WARRANTO UNDER THE OMNIBUS ELECTION CODE?
Sec. 253. Petition for quo warranto. - Any voter contesting the election
of any Member of the Batasang Pambansa, regional, provincial, or
city officer on the ground of ineligibility or of disloyalty to the Republic
of the Philippines shall file a sworn petition for quo warranto with the
Commission within ten days after the proclamation of the results of the
election.
Any voter contesting the election of any municipal or barangay officer
on the ground of ineligibility or of disloyalty to the Republic of the
Philippines shall file a sworn petition for quo warranto with the
regional trial court or metropolitan or municipal trial court,
respectively, within ten days after the proclamation of the results of the
election.
QUO WARRANTO OFFICES QUO WARRANTO OFFICES
FILLED BY ELECTION FILLED BY APPOINTMENT
DIATO.2013400036
SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS
What is determined is the eligibility of the What is determined is the legality of the
candidate elect appointment
Person elected is ineligible the court Court determines who has been legally
cannot declare that candidate occupying appointed and can and ought to declare
the 2nd place has been elected even if he who is entitled to occupy the office
were eligible
ABANDONMENT OF JUDICIAL OFFICE = BAR QUO WARRANTO?
YES.
Acceptance of other public offices incompatible with judicial functions
operated as an abandonment of the position quo warranto is dismissed
Acceptance of temporary positions not operate as abandonment of the old
positions quo warrant was granted
DOES QUO WARRANTO LIE TO REMOVE DULY APPOINTED OFFICER WHO HAS
DULY QUALIFIED AND ENTERED UPON THE PERFORMANCE OF DUTIES?
NO. when the appointing officer has once acted and the appointee has accepted
the office and done what is required of him upon its acceptance. His title to the
office becomes complete
His removal can only be done in a regular way and not through extra ordinary
legal remedy of quo warranto
QUO WARRANTO LIE IN FAVOR OF AN OFFICER LEGALLY REMOVED AND
REPLACED?
YES
DOES PUBLIC OFFICE INCLUDE A LEGISLATIVE OFFICE?
YES.
Section 2. When Solicitor General or public prosecutor must commence action. The
Solicitor General or a public prosecutor, when directed by the President of the
Philippines, or when upon complaint or otherwise he has good reason to believe that
any case specified in the preceding section can be established by proof, must commence
such action. (3a)
SOLGEN or PUBLIC PROSECUTOR determines the efficiency of evidence to
warrant the commencement of action
this involves exercise of discretion
15
ATTY. CAPELLAN
Section 3. When Solicitor General or public prosecutor may commence action with
permission of court. The Solicitor General or a public prosecutor may, with the
permission of the court in which the action is to be commenced, bring such an action at
the request and upon the relation of another person; but in such case the officer
bringing it may first require an indemnity for the expenses and costs of the action in an
amount approved by and to be deposited in the court by the person at whose request
and upon whose relation the same is brought. (4a)
Officer bring the action may first required the person who requests and upon
whose relation the same is brought to DEPOSIT IN COURT AN AMOUNT
APPROVED THEREBY
bond serves as an indemnity for the expenses and cost of the action
Section 4. When hearing had on application for permission to commence action.
Upon application for permission to commence such action in accordance with the next
preceding section, the court shall direct that notice be given to the respondent so that he
may be heard in opposition thereto; and if permission is granted, the court shall issue an
order to that effect, copies of which shall be served on all interested parties, and the
petition shall then be filed within the period ordered by the court. (5a)
Application for permission to commence is filed, respondent should be notified
respondent is notified so that he may be heard
PERMISSION GRANTED: all interested parties shall be served with copies of
the order of the court to that effect.
Section 5. When an individual may commence such an action. A person claiming to
be entitled to a public office or position usurped or unlawfully held or exercised by
another may bring an action therefor in his own name. (6)
If the individual has no right, the action may be dismissed because there is no
legal ground upon which it may be proceed.
Section 6. Parties and contents of petition against usurpation. When the action is
against a person for usurping a public office, position or franchise, the petition shall set
forth the name of the person who claim to be entitled thereto, if any, with an averment
of his right to the same and that the respondent is unlawfully in possession thereof. All
persons who claim to be entitled to the public office, position or franchise may be made
parties, and their respective rights to such public office, position or franchise
determined, in the same action. (7a)
DIATO.2013400036
SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS
Section 7. Venue. An action under the preceding six sections can be brought only in
the Supreme Court, the Court of Appeals, or in the Regional Trial Court exercising
jurisdiction over the territorial area where the respondent or any of the respondents
resides, but when the Solicitor General commences the action, it may be brought in a
Regional Trial Court in the City of Manila, in the Court of Appeals, or in the Supreme
Court. (8a)
WHICH COURT HAVE JURISDICTION OVER QUO WARRANT?
SC has original jurisdiction
CA has original and concurrent jurisdiction with the SC
RTC which has territorial jurisdiction over the area where the respondent
resides also has original and concurrent jurisdiction with the CA and SC.
If the SOLGEN commences the action brought in the RTC in the cirt of
manila or in the CA or in the SC
Sandiganbayan has exclusive and original jurisdiction in quo warranto arising or
that may arise in cases filed under EO 1, 2, 14, 14-A, but this must be in aid of its
appellate jurisdiction and is not exclusive to the SC
Section 8. Period for pleadings and proceedings may be reduced; action given
precedence. The court may reduce the period provided by these Rules for filing
pleadings and for all other proceedings in the action in order to secure the most
expeditious determination of the matters involved therein consistent with the rights of
the parties. Such action may be given precedence over any other civil matter pending in
the court. (9a)
Section 9. Judgment where usurpation found. When the respondent is found guilty
of usurping into, intruding into, or unlawfully holding or exercising a public office,
position or franchise, judgment shall be rendered that such respondent be ousted and
altogether excluded therefrom, and that the petitioner or relator, as the case may be,
recover his costs. Such further judgment may be rendered determining the respective
rights in and to the public office, position or franchise of all the parties to the action as
justice requires. (10a)
REALTOR?
A relator is the person at whose request and upon whose relation the SOLGEN
or public PROSECUTOR brings an action for quo warranto wth the permission WHEN DOES THE 1 YEAR PERIOD BEGIN TO RUN?
16
ATTY. CAPELLAN
of the court
IF PLAINTIFF'S RIGHT NOT PROVEN, MAY THE COURT PASS UPON THE RIGHT OF
THE DEFENDANT?
NO, unless the action is brought by the SOLGEN or public prosecutor
complaint is dismissed, it is unnecessary to pass upon the right of the defendant
who has a perfect right to the undisturbed possession of his office.
EXCEPT: if the solgen or public prosecutor could and even should bring such an
action against the person usurping the office in accordance with Section 2 and 3
Rule 66.
Section 10. Rights of persons adjudged entitled to public office; delivery of books and
papers; damages. If judgment be rendered in favor of the person averred in the
complaint to be entitled to the public office he may, after taking the oath of office and
executing any official bond required by law, take upon himself the execution of the
office, and may immediately thereafter demand of the respondent all the books and
papers in the respondent's custody or control appertaining to the office to which the
judgment relates. If the respondent refuses or neglects to deliver any book or paper
pursuant to such demand, he may be punished for contempt as having disobeyed a
lawful order of the court. The person adjudged entitled to the office may also bring
action against the respondent to recover the damages sustained by such person by
reason of the usurpation. (15a)
WHAT DAMAGES MAY BE RECOVABLE UNDER THE OMNIBUS ELECTION CODE?
Actual damages or compensatory damages may be granted in all election cases
or in quo warranto proceedings in accordance with law
Section 11. Limitations. 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, arose, nor to authorize an action for
damages in accordance with the provisions of the next preceding section unless the
same be commenced within one (1) year after the entry of the judgment establishing the
petitioner's right to the office in question. (16a)
PRESCRIPTIVE PERIOD FOR DILING A PETITION FOR QUO WARRANTO
AFFECTING TITLE TO PUBLIC OFFICE?
Petition for quo warranto affecting title to public office must be filed WITHIN 1
YEAR FROM THE DATE THE PETITIONER is ousted from his position
DIATO.2013400036
SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS
2 criteria by reference to which the date from which the period of prescription is
to be reckoned
the ouster, unlawful exclusion of the rightful claimant from the office
right of the claimant to hold office
ADMINISTRATIVE REMEDY ABATE THE 1 YEAR PERIOD TO FILE A QUO
WARRANTO PROCEEDINGS?
NO,
WHAT IS THE EXCEPTION TO THE GENERAL RULE THAT AN ACTION FOR QUO
WARRANTO MUST BE FILED WITHIN 1 YEAR FROM THE TIME THE CAUSE OF
ACTION TO SEEK REINSTATEMENT TO PUBLIC OFFICE AROSE?
LACHES, could be applied against petitioner for failing to file an action for quo
warranto within 1 year from the time the cause of action arose when the
petitioner was not guilty of inaction and it was the continued assurance of the
government through its responsible officials who led the petitioner to bide his
time and wait for the government to fulfill its commitment
CLAIM FOR BACK SALARIES AND DAMAGES SUBJECT TO THE 1 YESR PERIOD?
YES. It is only incidental to the issue involved and cannot stand by itself
WHEN SHOULD THE ACTION OF QUO WARRANT BE FILED UDNER THE OMNIBUS WHAT ARE THE CONSTITUTIONAL LIMITATIONS TO THE EXERCISE OF THE
ELECTION CODE? POWER OF EMINENT DOMAIN
Sworn petition for quo warrant must be filed with the COMELEC within 10 days
AFTER THE PROCLAMATION OF THE RESULTS OF THE ELECTION
however the filing with the COMELEC of a petition to annul or suspend the
proclamation of any candidate shall suspend the running of the period within
which to file an election protest or quo warranto proceedings.
Section 12. Judgment for costs. In an action brought in accordance with the
provisions of this Rule, the court may render judgment for costs against either the
petitioner, the relator, or the respondent, or the person or persons claiming to be a
corporation, or may apportion the costs, as justice requires. (17a)
RULE 67: Expropriation
EMINENT DOMAIN is the right
EXPROPRIATION is the procedure for enforcing said right
Section 1. The complaint. The right of eminent domain shall be exercised by the
filing of a verified complaint which shall state with certainty the right and purpose of
17
ATTY. CAPELLAN
expropriation, describe the real or personal property sought to be expropriated, and join
as defendants all persons owning or claiming to own, or occupying, any part thereof or
interest therein, showing, so far as practicable, the separate interest of each defendant.
If the title to any property sought to be expropriated appears to be in the Republic of the
Philippines, although occupied by private individuals, or if the title is otherwise obscure
or doubtful so that the plaintiff cannot with accuracy or certainty specify who are the
real owners, averment to that effect shall be made in the complaint. (1a)
EXPROPRIATION
is a phrase which refers to the power of a sovereign state to take or to authorize
the taking of any property within its jurisdiction for the public use without the
owner's consent
inherent political right, founded on common necessity and interest, of
appropriating the property of individual members of the community to the great
necessities of the whole community
inherently possessed by the state
by delegation, it may also be possessed by local governments, other public
entities, and public utilities
ARTICLE III- Bill of Rights
SECTION 1. No person shall be deprived of life, liberty, or property without
due process of law, nor shall any person be denied the equal protection of
the laws.
ARTICLE III- Bill of Rights
SECTION 9. Private property shall not be taken for public use without just
compensation.
WHAT ARE THE CONSTITUTIONAL PROVISIONS ON EMINENT DOMAIN
ARTICLE XII- National Economy and Patrimony
SECTION 18. The State may, in the interest of national welfare or defense,
establish and operate vital industries and, upon payment of just
compensation, transfer to public ownership utilities and other private
enterprises to be operated by the Government.
ARTICLE XIII- Social Justice and Human Rights
Agrarian and Natural Resources Reform SECTION 4. The State shall, by
law, undertake an agrarian reform program founded on the right of farmers
DIATO.2013400036
SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS
and regular farmworkers, who are landless, to own directly or collectively
the lands they till or, in the case of other farmworkers, to receive a just
share of the fruits thereof. To this end, the State shall encourage and
undertake the just distribution of all agricultural lands, subject to such
priorities and reasonable retention limits as the Congress may prescribe,
taking into account ecological, developmental, or equity considerations, and
subject to the payment of just compensation. In determining retention
limits, the State shall respect the right of small landowners. The State shall
further provide incentives for voluntary land-sharing.
ARTICLE XVIII-Transitory Provisions
SECTION 22. At the earliest possible time, the Government shall
expropriate idle or abandoned agricultural lands as may be defined by law,
for distribution to the beneficiaries of the agrarian reform program.
WHAT ARE THE 2 STAGES IN EVERY ACTION OF EXPROPRIATION
1. determination of the authority of the plaintiff' to exercise the power of eminent
domain and the propriety of its exercise in the context of the facts involved in
the suit
ends with an order, if not of dismissal of the action, of condemnation
declaring that the plaintiff has a lawful right to take the property sought
to be condemned, for the public use or purpose described in the
complaint, upon the payment of just compensation to be determined as
of the date of the filing of the complaint.
2.
determination by the court of the just and compensation for the property sought
to be taken. DETERMINE ASSESSED VAUE OF REAL PROPERTY FOR PURPOSES OF THE
DEPOSIT?
Done with the assistance of not more than 3 commissioners
MAY PROPERTY DEVOTED TO PUBLIC USE BE SUBJECT TO EXPROPRIATION
NO. if it is open to the public, it is a public use and no part of the ground can be
taken for other public uses under a general authority.
PRIOR HEARING NECESSARY BEFORE IMMEDIATE POSSESSSION CANBE
This immunity extends to the unimproved and unoccupied parts which are held GRANTED THE REPUBLIC OF THE PHILIPPINES?
in good faith for future use.
IS UNLAWFUL DENIAL OF BUILDING PERMIT TANTAMOUNT TO
EXPROPRIATION?
Yes
WHAT IS AN ESSENTIAL REQUISITE FOR EXPROPRIATION?
NECESSITY for PUBLIC CHARITY must exist for the exercise pf eminent
domain is laid down
18
ATTY. CAPELLAN
NECCESITY?
Only a reasonable or practical necessity NOT ABSOLUTE, such as would combine the
greatest benefit to the public with the least inconvenience and expense to the condemning
party and property owner consistent with such benfit
WHO HAS JURISDICTION?
It is INCAPABLE OF PECUNIARY ESTIMATION
within REGIONAL TRIAL COURT jurisdiction
Section 2. Entry of plaintiff upon depositing value with authorized government
depositary. Upon the filing of the complaint or at any time thereafter and after due
notice to the defendant, the plaintiff shall have the right to take or enter upon the
possession of the real property involved if he deposits with the authorized government
depositary an amount equivalent to the assessed value of the property for purposes of
taxation to be held by such bank subject to the orders of the court. Such deposit shall be
in money, unless in lieu thereof the court authorizes the deposit of a certificate of
deposit of a government bank of the Republic of the Philippines payable on demand to
the authorized government depositary.
If personal property is involved, its value shall be provisionally ascertained and the
amount to be deposited shall be promptly fixed by the court.
After such deposit is made the court shall order the sheriff or other proper officer to
forthwith place the plaintiff in possession of the property involved and promptly submit
a report thereof to the court with service of copies to the parties. (2a)
Indicated in the tax declaration
removes the discretion o the court in determining the provisional value of the
real property
NO such requirement. All that is requires is the notice to the owner of the
property sought to be condemned and deposit with the PNB of the amount
equivalent to the assessed value of the property
PURPOSE OF PRELIMINARY DEPOSIT?
Pre-payment upon the value of the property, if finally expropriated and
indemnity against damage in the event that proceedings fail to consummate
DIATO.2013400036
SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS
Section 3. Defenses and objections. If a defendant has no objection or defense to the
action or the taking of his property, he may file and serve a notice of appearance and a
manifestation to that effect, specifically designating or identifying the property in which
he claims to be interested, within the time stated in the summons. Thereafter, he shall
be entitled to notice of all proceedings affecting the same.
If a defendant has any objection to the filing of or the allegations in the complaint, or
any objection or defense to the taking of his property, he shall serve his answer within
the time stated in the summons. The answer shall specifically designate or identify the
property in which he claims to have an interest, state the nature and extent of the
interest claimed, and adduce all his objections and defenses to the taking of his
property. No counterclaim, cross-claim or third-party complaint shall be alleged or
allowed in the answer or any subsequent pleading.
A defendant waives all defenses and objections not so alleged but the court, in the
interest of justice, may permit amendments to the answer to be made not later than ten
(10) days from the filing thereof. However, at the trial of the issue of just compensation
whether or not a defendant has previously appeared or answered, he may present
evidence as to the amount of the compensation to be paid for his property, and he may
share in the distribution of the award. (n)
PROCEDURE FOR PRESENTING DEFENSES AND OBJECTIONS TO THE TAKING OF
PROPERTY?
If a defendant has no objection or no defense, he may so manifest and he shall
be entitled to notice of the proceedings for determining just compensation.
If he HAS OBJECTION or DEFENSE he shall file an answer containing all his the purpose was in fact public
objections and defenses to the taking of his property WHEN IS JUST COMPENSATION DETERMINED?
OBJECTIONS OR DEFENSES are OVERRULED? The court shall issue an order
of expropriation from which the defendant may appeal
also has the right to present evidence on the amount of just compensation
NO: (to avoid delay in the proceedings
counterclaim
cross-claim
third party complaint
Section 4. Order of expropriation. If the objections to and the defenses against the
right of the plaintiff to expropriate the property are overruled, or when no party appears
to defend as required by this Rule, the court may issue an order of expropriation
declaring that the plaintiff has a lawful right to take the property sought to be
expropriated, for the public use or purpose described in the complaint, upon the
19
ATTY. CAPELLAN
payment of just compensation to be determined as of the date of the taking of the
property or the filing of the complaint, whichever came first.
A final order sustaining the right to expropriate the property may be appealed by any
party aggrieved thereby. Such appeal, however, shall not prevent the court from
determining the just compensation to be paid.
After the rendition of such an order, the plaintiff shall not be permitted to dismiss or
discontinue the proceeding except on such terms as the court deems just and equitable.
(4a)
NECESSARY HEARING BEFORE THE ORDER OF EXPROPRIATION?
Yes
MAY THE COURT INQUIRE INTO THE PURPOSE OF THE LEGISLATION GRANTING
EXPROPRIATION?
If legislature, under proper authority, should grant said expropriation for
specific purpose = the court would be without jurisdiction to inquire into the
purpose of that legislation
if legislature, should grant GENERAL AUTHORITY to a municipal to
expropriate PRIVATE land for PUBLIC PURPOSES = the courts have ample
authority to make inquiry and to hear proof concerning:
the lands were private and
Determined: WHICHEVER COMES FIRST
as of the date of the taking of the property or
the filing of the complaint,
VALUE OF THE PROPERTY: fixed as of the date of the proceedings, and with
reference to the loss the owner sustains, the condition and situation of the
property at the time it is taken should be considered
TAKING
1. the expropriator must enter private property
2. entrance into private property must be for more than a momentary period
3. entry into the property should be under warrant or color of legal authority
4. the property must be devoted to a public use or otherwise informally
DIATO.2013400036
SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS ATTY. CAPELLAN

appropriated or injuriously affected and
5. the utilization of the property for public use must be in such a way as to oust the
owner and deprive him of all beneficial enjoyment of the property
WHAT IS THE PERIOD TO APPEAL IN AN ACTION FOR EXPROPRIATION?
No less than 2 appeals are allowed
from the order of the expropriation and
from the order determining just compensation
fair and full equivalent for the loss sustained, which is the measure of indemnity,
not whatever gain would accrue to the expropriating entity.
MARKET VALUE
may be fixed at the price which it will bring when it is offered for sale by one who
desires but is not obligated to sell it, and is bought by one who is under o
necessity of having it
the person whose property is thus taken = paid the reasonable market price of
their property.

appeal from order of an expropriation 30 days WHO DETERMINES JUST COMEPNSATION?

WHEN MAY A RECORD ON APPEAL, IN LIEU OF THE ORIGINAL RECORD, BE Judicial function
SUBMITTED TO THE APPELLATE COURT? ARTICLE 1250 OF NCC APPLICABLE TO TAKING OF PROPERTY BY THE
When a single complaint is filed against several defendants having individual GOVERNMENT BY WAY OF EXPROPRIATION?
and separate interests, and a separate trial is held relative to one of said NO, applies only to cases where a contract or agreement is involved
defendant's after which, final order or judgment is rendered on the merits of the
plaintiff's claim against that particular defendant, it is obvious that in the event value of the currency at the time of the establishment of the obligation shall be
of an appeal from that separate judgment, the original record cannot and should the basis of payment, which in cases of expropriation, would be the value of the
not be sent up to the appellate tribunal BECAUSE the case will have to go on peso at the time of the taking of the property
with regard to the other defendants
Section 6. Proceedings by commissioners. Before entering upon the performance of
in lieu of the original record, a record on appeal, therefore will have to be their duties, the commissioners shall take and subscribe an oath that they will faithfully
prepared and transmitted to the appellate court. perform their duties as commissioners, which oath shall be filed in court with the other
proceedings in the case. Evidence may be introduced by either party before the
Section 5. Ascertainment of compensation. Upon the rendition of the order of commissioners who are authorized to administer oaths on hearings before them, and
expropriation, the court shall appoint not more than three (3) competent and the commissioners shall, unless the parties consent to the contrary, after due notice to
disinterested persons as commissioners to ascertain and report to the court the just the parties, to attend, view and examine the property sought to be expropriated and its
compensation for the property sought to be taken. The order of appointment shall surroundings, and may measure the same, after which either party may, by himself or
designate the time and place of the first session of the hearing to be held by the counsel, argue the case. The commissioners shall assess the consequential damages to
commissioners and specify the time within which their report shall be submitted to the the property not taken and deduct from such consequential damages the consequential
court. benefits to be derived by the owner from the public use or purpose of the property
Copies of the order shall be served on the parties. Objections to the appointment of any taken, the operation of its franchise by the corporation or the carrying on of the business
of the commissioners shall be filed with the court within ten (10) days from service, and of the corporation or person taking the property. But in no case shall the consequential
shall be resolved within thirty (30) days after all the commissioners shall have received benefits assessed exceed the consequential damages assessed, or the owner be deprived
copies of the objections. (5a) of the actual value of his property so taken. (6a)

Upon rendition of the order of expropriation, the court shall appoint WHAT IS THE OWNER OF THE EXPROPRIATED PROPERTY ENTITLED TO
commissioners to ascertain just compensation EVEN IF appeal is taken from the RECOVER?
order of expropriation. Entitled to recover from the expropriating authority the:
JUST COMPENSATION? fair and full value of the lot as of the time when possession thereof was
The equivalent for the value of the property at the time of its taking actually taken

20 DIATO.2013400036
SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS
consequential damages including attorney's fees
LESS: consequential benefits if any
interest at the legal rate on the aggregate sum due to the owner from and
after the date of the actual taking until payment is made by the government.
PURPOSE OF THE COMMISSIONERS' VIEW AND EXAMINATION OF THE
PROPERTY?
If the testimony of value and damages is conflicting the commissioners may
resort to their knowledge of the elements which affect the assessment and which
were obtained from a view of the premises, in order to determine the relative
weight of the conflicting testimony
Section 7. Report by commissioners and judgment thereupon. The court may order
the commissioners to report when any particular portion of the real estate shall have
been passed upon by them, and may render judgment upon such partial report, and
direct the commissioners to proceed with their work as to subsequent portions of the
property sought to be expropriated, and may from time to time so deal with such
property. The commissioners shall make a full and accurate report to the court of all
their proceedings, and such proceedings shall not be effectual until the court shall have
accepted their report and rendered judgment in accordance with their
recommendations. Except as otherwise expressly ordered by the court, such report shall
be filed within sixty (60) days from the date the commissioners were notified of their
appointment, which time may be extended in the discretion of the court. Upon the filing
of such report, the clerk of the court shall serve copies thereof on all interested parties,
with notice that they are allowed ten (10) days within which to file objections to the
findings of the report, if they so desire. (7a)
MAY THE COMMISSIONER DISREGARD THE EVIDENCE AND SUBSTITUTE THEIR WHEN MAY THE COURT OVERRULE THE AWARD OF THE COMMISSIONERS IN
OPINION AS TO THE VALUE OF THE PROPERTY? WHOLE OR IN PART AND SUBSTITUTE ITS OWN VALUATION OF THE
NO CONDEMNED PROPERTY?
WHAT IS THE WEIGHT ACCORDED TO THE COMMISSIONERS APPRAISAL OF
PROPERTY
the estimated value by the appraisers is to be given GREAT WEIGHT if there is
SUBSTANTIAL TESTIMONY TO SUPPORT IT unless:
error is plainly manifest
it is apparent that injustice has been done
the commissioners have clearly gone astray or adopted erroneous principles
the commissioners acted upon wrong principles, or their award is grossly
inadequate
21
ATTY. CAPELLAN
the award is palpably excessive or inadequate
award is grossly inadequate or unequal
in the above cases it becomes the duty of the court to substitute for the
commissioner's award the evidence rejected by the commissioner
Section 8. Action upon commissioners' report. Upon the expiration of the period of
ten (10) days referred to in the preceding section, or even before the expiration of such
period but after all the interested parties have filed their objections to the report or their
statement of agreement therewith, the court may, after hearing, accept the report and
render judgment in accordance therewith, or, for cause shown, it may recommit the
same to the commissioners for further report of facts, or it may set aside the report and
appoint new commissioners; or it may accept the report in part and reject it in part and
it may make such order or render such judgment as shall secure to the plaintiff the
property essential to the exercise of his right of expropriation, and to the defendant just
compensation for the property so taken. (8a)
WHEN PARTIES AGREE TO THE COMMISSIONERS' REPORT, SHOULD THE COURT
CONFIRM IT?
Parties agree to the commissioner and join in asking the court to confirm it
duty of the court to confirm the report, UNLESS there appears some reason
touching the public interest why it should not.
MAY THE COURT INCREASE OR DIMINISH THE COMMISSION'S AMOUNT OF
AWARD
YES, an award which is grossly excessive or generally insufficient can be
increased or decreased.
Considered in 2 ways
one of the procedure under Section 8 Rule 67 and
as to the evidence which must appear in the record in order to justify such
action
when court cannot WITH JUSTICE approve commissioners report, the court is
permitted to act upon the report, at its own discretion -
when the commissioners refuse to hear competent evidence material to the
case, then all the evidence in the case would not be before the court the
court could not, with reason, attempt to either approve or change the
report, as it stands, for the reason that all the evidence of the case would not
DIATO.2013400036
SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS
have been considered by the commissioners nor have been presented to the
court.
REMEDY: to recommit the report of the commissioners for further
report of facts
if the commissioner are charged of IMPROPER CONDUCT, FRAUD OR
PREJUDICE, and this charge is sustained
it would be safer to set aside the award thus vitiated and appoint new
commissioners who could render an untainted report
when the commissioners have applied illegal principles to the evidence
submitted to them; or they have disregarded a clear preponderance of the
evidence, or they have used an improper rule of assessment in arriving at
the amount of the award, then in such a case, if the evidence be clear and DOES RECEIPT BY DEFENDANT OF COMPENSATION IN FULL BAR HIM FROM
convincing, the court should ordinarily be able, by the use of those correct APPEALING?
legal principles which govern the case, to determine the proper amount
without returning the report to the commissioners
it becomes the duty of the court to render final order and judgment in
which the proper reward is made and end litigation between the
parties.
Section 9. Uncertain ownership; conflicting claims. If the ownership of the property
taken is uncertain, or there are conflicting claims to any part thereof, the court may
order any sum or sums awarded as compensation for the property to be paid to the court
for the benefit of the person adjudged in the same proceeding to be entitled thereto. But
the judgment shall require the payment of the sum or sums awarded to either the
defendant or the court before the plaintiff can enter upon the property, or retain it for
the public use or purpose if entry has already been made. (9a)
Section 10. Rights of plaintiff after judgment and payment. Upon payment by the
plaintiff to the defendant of the compensation fixed by the judgment, with legal interest
thereon from the taking of the possession of the property, or after tender to him of the
amount so fixed and payment of the costs, the plaintiff shall have the right to enter upon
the property expropriated and to appropriate it for the public use or purpose defined in
the judgment, or to retain it should he have taken immediate possession thereof under
the provisions of section 2 hereof. If the defendant and his counsel absent themselves
from the court, or decline to receive the amount tendered, the same shall be ordered to
be deposited in court and such deposit shall have the same effect as actual payment
thereof to the defendant or the person ultimately adjudged entitled thereto. (10a)
WHEN DOES TITLE TO EXPROPRIATED LAND PASS TO THE PLAINTIFF?
22
ATTY. CAPELLAN
The title to the land expropriated passes to the plaintiff upon the PAYMENT OF
INDEMNITY OR THE COMPENSATION FIXED BY THE JUDGMENT, with
legal interest thereon from the taking of the possession of the legal property
Section 11. Entry not delayed by appeal; effect of reversal. The right of the plaintiff
to enter upon the property of the defendant and appropriate the same for public use or
purpose shall not be delayed by an appeal from the judgment. But if the appellate court
determines that plaintiff has no right of expropriation, judgment shall be rendered
ordering the Regional Trial Court to forthwith enforce the restoration to the defendant
of the possession of the property, and to determine the damages which the defendant
sustained and may recover by reason of the possession taken by the plaintiff. (11a)
NO, condemnation proceedings in this jurisdiction are peculiar in that the
plaintiff may execute its judgments as soon as it is obtained
acceptance by the landowner of the money awarded by the judgment of the court
is merely the consideration for the privilege accorded to the plaintiff to take the
property from the owner before the final determination of the expropriation
action.
Receipt by defendant of compensation in full does not strip him of his right to
appeal.
WHAT SHOULD THE COURT CONSIDER IN DETERMINING THE AMOUNT OF
DAMAGES THAT THE DEFENDANT MAY RECOVER IN CASE OF A JUDGMENT
THAT PLAINTIFF HAS NO RIGHT OF EXPROPRATION?
1. Loss resulting from the dispossession of the land
2. loss resulting from the deprivation of the use and occupation of the land
3. the expenses incurred during the pendency of the action, including attorney's
fees
4. the destruction of buildings, canals and growing crops at the time of the
occupation of the land by the plaintiff
5. all of the damages of whatever kind or character which the defendants may be
able to prove and which have been occasioned by virtue of the institution of the
action
HOW MAY THE DAMAGES SUSTAINED BY THE DEFENDANT FOR THE TAKING OF
HIS PROPERTY BE RECOVERED?
Should be recovered in the same action for expropriation
HOW ABOUT DAMAGES CAUSE BEFORE THE COMMENCEMENT OF THE SUIT FOR
DIATO.2013400036
SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS
CONDEMNATION HOW MAY THEY BE RECOVERED?
All claims for compensation based on damages caused before the
commencement of the suit for condemnation may be included in the
condemnation proceedings themselves. Otherwise the filing of separate suits for
said past damages would lead to multiplicity of suits
Section 12. Costs, by whom paid. The fees of the commissioners shall be taxed as a
part of the costs of the proceedings. All costs, except those of rival claimants litigating
their claims, shall be paid by the plaintiff, unless an appeal is taken by the owner of the
property and the judgment is affirmed, in which event the costs of the appeal shall be
paid by the owner. (12a)
Section 13. Recording judgment, and its effect. The judgment entered in
expropriation proceedings shall state definitely, by an adequate description, the
particular property or interest therein expropriated, and the nature of the public use or
purpose for which it is expropriated. When real estate is expropriated, a certified copy of
such judgment shall be recorded in the registry of deeds of the place in which the
property is situated, and its effect shall be to vest in the plaintiff the title to the real
estate so described for such public use or purpose. (13a)
WHEN PRIVATE LAND IS EXPROPRIATED FOR A PARTICULAR USE AND IS
ABANDONED, DOES THE LAND RETURN TO ITS FORMER OWNER?
Depends:
acquired for public use in FEE SIMPLE UNCONDITIONALLY former
owner retains no right in the land, and the public use may be abandoned, or
the land may be devoted to a different use
expropriated for a PARTICULAR PURPOSE, with the CONDITION THAT Art. 222. The courts may appoint a guardian of the child's property or a guardian ad
WHEN THE PURPOSE IS ENDED OR ABANDONED the property shall litem when the best interests of the child so requires. (317)
return to its former owner when the purpose is terminated or abandoned,
the former owner re-acquires the property Chapter 4. Effect of Parental Authority Upon the Property of the Children
if the land is expropriated for a PUBLIC STREET and the expropriation is
granted upon the CONDITION THAT THE CITY CAN ONLY USE IT FOR
PUBLIC STREET when the city abandons its use as a public street it
returns to the former owner UNLESS I some statutory provision to the
contrary
Section 14. Power of guardian in such proceedings. The guardian or guardian ad
litem of a minor or of a person judicially declared to be incompetent may, with the
approval of the court first had, do and perform on behalf of his ward any act, matter, or
thing respecting the expropriation for public use or purpose of property belonging to
23
ATTY. CAPELLAN
such minor or person judicially declared to be incompetent, which such minor or person
judicially declared to be incompetent could do in such proceedings if he were of age or
competent. (14a)
Chapter 3. Effect of Parental Authority Upon the Persons of the Children
Art. 220. The parents and those exercising parental authority shall have with the respect
to their unemancipated children on wards the following rights and duties:
(1) To keep them in their company, to support, educate and instruct them by
right precept and good example, and to provide for their upbringing in keeping
with their means;
(2) To give them love and affection, advice and counsel, companionship and
understanding;
(3) To provide them with moral and spiritual guidance, inculcate in them
honesty, integrity, self-discipline, self-reliance, industry and thrift, stimulate
their interest in civic affairs, and inspire in them compliance with the duties of
citizenship;
(4) To furnish them with good and wholesome educational materials, supervise
their activities, recreation and association with others, protect them from bad
company, and prevent them from acquiring habits detrimental to their health,
studies and morals;
(5) To represent them in all matters affecting their interests;
(6) To demand from them respect and obedience;
(7) To impose discipline on them as may be required under the circumstances;
and
(8) To perform such other duties as are imposed by law upon parents and
guardians. (316a)
Art. 225. The father and the mother shall jointly exercise legal guardianship over the
property of the unemancipated common child without the necessity of a court
appointment. In case of disagreement, the father's decision shall prevail, unless there is a
judicial order to the contrary.
Where the market value of the property or the annual income of the child exceeds
P50,000, the parent concerned shall be required to furnish a bond in such amount as the
court may determine, but not less than ten per centum (10%) of the value of the property
or annual income, to guarantee the performance of the obligations prescribed for general
guardians.
DIATO.2013400036
SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS
A verified petition for approval of the bond shall be filed in the proper court of the place
where the child resides, or, if the child resides in a foreign country, in the proper court of
the place where the property or any part thereof is situated.
The petition shall be docketed as a summary special proceeding in which all incidents and
issues regarding the performance of the obligations referred to in the second paragraph of
this Article shall be heard and resolved.
The ordinary rules on guardianship shall be merely suppletory except when the child is
under substitute parental authority, or the guardian is a stranger, or a parent has
remarried, in which case the ordinary rules on guardianship shall apply. (320a)
RULE 68: Foreclosure of Real Estate Mortgage
Section 1. Complaint in action for foreclosure. In an action for the foreclosure of a
mortgage or other encumbrance upon real estate, the complaint shall set forth the date
and due execution of the mortgage; its assignments, if any; the names and residences of
the mortgagor and the mortgagee; a description of the mortgaged property; a statement
of the date of the note or other documentary evidence of the obligation secured by the
mortgage, the amount claimed to be unpaid thereon; and the names and residences of
all persons having or claiming an interest in the property subordinate in right to that of
the holder of the mortgage, all of whom shall be made defendants in the action. (1a)
Now LIMITED to a judicial foreclosure of real estate mortgage
However it may be applied to a judicial foreclosure of chattel mortgage, subject
to the provisions of the chattel mortgage and Articles 1484, 1485, 1486 of the
NCC
Art. 1484. In a contract of sale of personal property the price
of which is payable in installments, the vendor may exercise
any of the following remedies:
(1) Exact fulfillment of the obligation, should the
vendee fail to pay;
(2) Cancel the sale, should the vendee's failure to pay
cover two or more installments;
(3) Foreclose the chattel mortgage on the thing sold,
if one has been constituted, should the vendee's
failure to pay cover two or more installments. In this
case, he shall have no further action against the
24
ATTY. CAPELLAN
purchaser to recover any unpaid balance of the price.
Any agreement to the contrary shall be void. (1454-A-
a)
Art. 1485. The preceding article shall be applied to contracts
purporting to be leases of personal property with option to
buy, when the lessor has deprived the lessee of the possession
or enjoyment of the thing. (1454-A-a)
Art. 1486. In the case referred to in two preceding articles, a
stipulation that the installments or rents paid shall not be
returned to the vendee or lessee shall be valid insofar as the
same may not be unconscionable under the circumstances. (n)
Modes of foreclosure of real estate mortgage
Judicial
Extra-judicial in accordance with Act No. 3135 as amended by Act No.
4118
Inside Metro Manila Outside Metro Manila
MTC If the assessed value of the If the assessed value of the mortgaged
mortgaged real estate is NOT more real estate is NOT more than
than P20,000.00 P50,000.00
The amount of the mortgage debt is The amount of the mortgage debt is
not more than P300,000 not more than P400,000
RTC If the assessed value of the If the assessed value of the mortgaged
mortgaged real estate EXCEEDS real estate EXCEEDS P50,000
P20,000
The amount of the mortgage debt
The amount of the mortgage debt EXCEEDS more than P400,000
EXCEEDS more than P300,000
MODES OF FORECLOSURE OF CHATTEL MORTGAGE
JUDICIAL if the mortgage refuses to surrender possession of the mortgaged
chattel, the creditor must institute either an action to effect a judicial foreclosure
direction or action of REPLEVIN to secure possession as a preliminary to the
sale contemplated in Section14 of Act No 1508
EXTRA-JUDICIAL in accordance with Section 14, Act No. 1508
DIATO.2013400036
SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS
Sec. 14. Sale of property at public auction; Officer's return;
Fees; Disposition of proceeds. The mortgagee, his executor,
administrator, or assign, may, after thirty days from the time of
condition broken, cause the mortgaged property, or any part thereof, to
be sold at public auction by a public officer at a public place in the
municipality where the mortgagor resides, or where the property is
situated, provided at least ten days' notice of the time, place, and
purpose of such sale has been posted at two or more public places in
such municipality, and the mortgagee, his executor, administrator, or
assign, shall notify the mortgagor or person holding under him and the
persons holding subsequent mortgages of the time and place of sale,
either by notice in writing directed to him or left at his abode, if within
the municipality, or sent by mail if he does not reside in such
municipality, at least ten days previous to the sale.
The officer making the sale shall, within thirty days thereafter, make in
writing a return of his doings and file the same in the office of the
register of deeds where the mortgage is recorded, and the register of
deeds shall record the same. The fees of the officer for selling the
property shall be the same as in the case of sale on execution as
provided in Act Numbered One hundred and ninety, 4 and the
amendments thereto, and the fees of the register of deeds for
registering the officer's return shall be taxed as a part of the costs of
sale, which the officer shall pay to the register of deeds. The return shall
particularly describe the articles sold, and state the amount received for
each article, and shall operate as a discharge of the lien thereon created
by the mortgage. The proceeds of such sale shall be applied to the
payment, first, of the costs and expenses of keeping and sale, and then
to the payment of the demand or obligation secured by such mortgage,
and the residue shall be paid to persons holding subsequent mortgages
in their order, and the balance, after paying the mortgages, shall be paid
to the mortgagor or person holding under him on demand.
If the sale includes any "large cattle," a certificate of transfer as required
by section sixteen of Act Numbered Eleven hundred and forty-seven 5
shall be issued by the treasurer of the municipality where the sale was
held to the purchaser thereof.
MAY THE CREDITOR APPROPRIATE THE MORTGAGED PROPERTY?
25
ATTY. CAPELLAN
NO, the creditor cannot appropriate the things given by way of pledge or
mortgage, or dispose of them
any stipulation to the contrary is null and void
WHAT ARE THE PROVISIONAL REMEDIES AVAILABLE TO THE MORTGAGE
CREDITOR IN CASE OF FORECLOSURE
PRELIMINARY ATTACHMENT of properties of the debtor not covered by the
mortgage
RECEIVERSHIP OF MORTGAGED PROPERTY under Section 1[b] of Rule 59
WHAT ARE THE REMEDIES OF THE MORTGAGE CREDITOR AGAINST THE ESTATE
OF THE DECEASED
Rule 87 Section 7
EXTRAJUDICIAL FORECLOSURE is NOT allowed after the death of the
mortgagor
WHAT ARE THE REMEDIES OF THE MORTGAGE CREDITOR AGAINST THE
INSOLVENT DEBTOR
take part in the insolvency proceedings and recover his credit against the
insolvent
institute, maintain and prosecute a separate suit against the insolvent debtor for
the recovery of his secured credit until he obtains a final judgment, and he may
enforce this judgment against the property mortgaged to him in the manner
established by law
AFTER MORTGAGE DEBTOR has been declared INSOLVENT and the
INSOLVENCY COURT has acquired control of his estate no separate
foreclosure proceeding may be validly instituted to foreclose the mortgage
without the knowledge and previous consent of the insolvency court.
DOES THE PERSONAL ACTION FOR RECOVERY OF DEBTOR CONSTITUTE A
WAIVER OF THE RIGHT OF FORECLOSURE
YES, a mortgage creditor may institute against the mortgage debtor either a
personal action for debt or a real action to foreclose the mortgage, but NOT
BOTH
VENUE OF THE ACTION FOR FORECLOSURE
DIATO.2013400036
SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS ATTY. CAPELLAN

court which has territorial jurisdiction over the area wherein the real property YES, and even if the first mortgagee is not joined or does not intervene, his
involved or a portion thereof as situated rights are protected inasmuch as the mortgaged property remains subject to his
lien.
WHO ARE THE PARTIES DEFENDANT IN A FORECLOSURE COMPLAINT
WHAT IS THE EFFECT OF A PROHIBITION AGAINST A SECOND MORTGAGE, SALE
INDISPENSABLE PARTIES NECESSARY PARTIES OR DONATION WITHOUT THE CONSENT OF THE MORTGAGEE
Mortgage debtor All persons having or a prohibition in a mortgage contract against the encumbrance, sale or disposal
mortgagor or owner of the claiming an interest in the of the mortgaged property without the consent of the mortgagee is valid as not
mortgaged property, if not property subordinate in right contrary to law, morals or public interest
the debtor to that of the holder of the
executor or administrator of mortgaged (second penalty provided in the mortgage contract for violation of such prohibition is
the deceased mortgagor mortgagee) also valid, so that the mortgagee has the right to immediately foreclose the
executor or administrator of subsequent attaching creditor mortgage, but such sale or second mortgage is not null and void
a deceased owner of the a purchaser of the mortgaged stipulation forbidding the owner from alienating the mortgaged immovable shall
property mortgaged with the property be void
approval of the court
heir to whom the mortgaged Section 2. Judgment on foreclosure for payment or sale. If upon the trial in such
property has been action the court shall find the facts set forth in the complaint to be true, it shall ascertain
adjudicated the amount due to the plaintiff upon the mortgage debt or obligation, including interest
and other charges as approved by the court, and costs, and shall render judgment for the
sum so found due and order that the same be paid to the court or to the judgment
WHAT IS THE EFFECT OF THE FAILURE TO JOIN THE SECOND MORTGAGEE IN A obligee within a period of not less than ninety (90) days nor more than one hundred
PROCEEDING TO FORECLOSE A FIRST MORTGAGE ON REAL PROPERTY twenty (120) days from the entry of judgment, and that in default of such payment the
where the second mortgagee is not made a party to a proceeding to foreclose the property shall be sold at public auction to satisfy the judgment. (2a)
1st mortgage, an independent foreclosure proceeding may be maintained against
him by the creditor in the 1st mortgage, in which proceeding, the court should
require the 2nd mortgagee to redeem from the 1st mortgage within 3 months, WHAT ARE THE AMENDGMENTS MADE TO THE FORMER RULE?
under penalty of being debarred from the exercise of his right to redeem
Amount of the judgment shall be paid to the court or the judgment obligee
WHAT IS THE EFFECT OF THE FAILURE TO JOIN THE SUBORDINATE
LIENHOLDER OR SUBSEQUENT PURCHASER IN A PROCEEDING TO FORECLOSE A period of payment shall not exceed 120 days
FIRST MORTGAGE period is counted from the entry of the judgment
in the event of the failure to implead a subordinate lienholder or subsequent DOES THE STIPULATION THAT THE MORTGAGEE MAY TAKE POSSESSION OF
purchaser or both, the foreclosure is ineffective as against them, with the result THE MORTGAGED PROPERTY EXEMPT THE MORTGAGOR FROM PAYMENT OF
that there remains in their favor the unforecloosed equity of redemption COSTS IF FORECLOSURE ACTION IS BROUGHT
foreclosure is valid as between the parties to the suit NO, the stipulation in a mortgage contract that the mortgagee may take
MAY THE FIRST MORTGAGEE BE JOINED AS PARTY DEFENDANT IN THE possession of the mortgaged property in case of non-compliance by the
FORECLOSURE ACTION BY THE SECOND MORTGAGEE? mortgagor with any of the conditions of the mortgage

YES, nothing in the law that prohibits the joinder of a first mortgagee in a not exempt said mortgagor from the payment of costs of the suit if the
complaint filed by the second mortgagee for foreclosure of a real estate mortgagee brings an action for foreclosure of the mortgage in accordance with
mortgage. the stipulation in said contract

IF THE 1ST MORTGAGEE IS NOT JOINED, MAY HE FILE A COMPLAINT-IN- WHAT IS THE MANNER OF ENFORCING A JUDGMENT OF FORECLOSURE AFTER
INTERVENTION UNDER RULE 19 THE LAPSE OF 5 YEARS?

26 DIATO.2013400036
SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS ATTY. CAPELLAN

A judgment of foreclosure may be enforced after the lapse of 5 years by reviving can be obtained, mere inadequacy of the price will not be a ground to set aside
the judgment and filing a complaint based thereon the sale because in forced sales, low prices are usually offered.
a 2nd mortgagee who was not a party either in the original complaint, or in the AFTER THE FORECLOSURE, WHAT MAY THE PLAINTIFF OR THE PURCHASER
judgment entered by virtue thereof, may not be included as party defendant in DO?
an action commenced by a complaint for the purpose of reviving the said File a motion for confirmation of the sale, with notice to all the parties to the
judgment which has already lapsed
action
mortgagee who forecloses a part of the mortgaged properties only and does not
ARE NOTICE AND HEARING OF THE MOTION FOR CONFIRMATION OF SALE
foreclose the remainder until after the expiration of 5 years to recover the RQUIRED
balance of the mortgage indebtedness, is not entitled to charge interest on said
balance for the period of the delay YES, otherwise, the confirmation of sale is void

Section 3. Sale of mortgaged property; effect. When the defendant, after being hearing be given the interested parties
directed to do so as provided in the next preceding section, fails to pay the amount of the
WHAT IS THE EFFECT OF THE ISSUANCE OF THE ORDER OF CONFIRMATION OF
judgment within the period specified therein, the court, upon motion, shall order the
THE SALE
property to be sold in the manner and under the provisions of Rule 39 and other
regulations governing sales of real estate under execution. Such sale shall not affect the issuance of the order in a judicial proceedings cuts of all interest of the
rights of persons holding prior encumbrances upon the property or a part thereof, and mortgagor in the property sold and vests them in the purchaser, subject to such
when confirmed by an order of the court, also upon motion, it shall operate to divest the rights of redemption as may be allowed by law
rights in the property of all the parties to the action and to vest their rights in the
purchaser, subject to such rights of redemption as may be allowed by law. confirmation retroacts to the date of the sale

Upon the finality of the order of confirmation or upon the expiration of the period of ORDER OF CONFIRMATION A FINAL ORDER
redemption when allowed by law, the purchaser at the auction sale or last redemptioner, YES, it is appealable
if any, shall be entitled to the possession of the property unless a third party is actually
holding the same adversely to the judgment obligor. The said purchaser or last BEFORE THE FINALITY OF THE ORDER OF CONFIRMATION, WHAT ARE THE
redemptioner may secure a writ of possession, upon motion, from the court which RIGHTS OF THE MORTGAGE DEBTOR, THE 2ND MORTGAGEE, THE SUBSEQUENT
ordered the foreclosure. (3a) ATTACHING CREDITOR OR PURCHASERS
before the finality of the order, the mortgage debtor, the 2 nd mortgagee, the
subsequent attaching creditor or purchaser may exercise what is known as the
IF THE DEFENDANT FAILS TO PAY THE AMOUNT OF THE JUDGMENT WITHIN EQUITY OF REDEMPTION
THE SPECIFIED PERIOD, WHAT MAY THE PLAINTIFF DO?
after the sale and before its confirmation court may still grant them an
Plaintiff shall file a motion for the sale of the mortgaged property opportunity to pay the proceeds of the sale and thus abstain from confirming it
NOTICE OF THE SALE ON EXECUTION REQUIRED TO BE GIVEN THE JUDGMENT ACCEPTANCE OF A BID AT THE FORECLOSURE SALE BUT BEFORE ITS
OBLIGOR CONFIRMATION , THE MORTGAGEE, AS THE PURCHASER THEREAT, SELLS THE
YES, notice is now required to be given the judgment obligor under Sec 15(d) of MORTGAGED PROPERTY TO ANOTHER PERSON, IS THE EQUITY OF REDEMPTION
Rule 39 AFFECTED?

GROUND FOR SETTING ASIDE THE SALE? NO, if after the foreclosure sale and before the confirmation thereof, the
mortgagee, as purchaser at the auction sale, sells the mortgaged property to
A judicial sale of real estate in an action for foreclose may be set aside when the another person, that subsequent sale does not prevent the trial court from
price is greatly inadequate as to shock the conscience or when there are granting the mortgagor a period within which to redeem the mortgaged lot by
additional circumstances against fairness paying the judgment debt and the expenses of the sale and costs
HOWEVER, if there is showing that in the event of a regular sale, a better price AFTER THE CONFIRMATION OF SALE (OR THE EXPIRATION OF THE PERIOD OF

27 DIATO.2013400036
SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS ATTY. CAPELLAN

REDEMPTION, WHEN ALLOWED) IS THERE STILL RIGHT OF REDEMPTION WHAT IS THE REDEMPTION PRICE
NO, it is the CONFIRMATION by the court of the auction sale, subject to such mortgagee is a bank, quasi-bank or trust mortgagee is NOT a bank, quasi-bank or
rights of redemption as may be allowed by law, that divests the mortgagors and entity trust entity
all the parties to the action of their rights to the mortgaged property and vests
such rights in the purchaser at the auction sale EXTRAJUDICIAL FORECLOSURE OF REAL ESTATE MORTGAGE

CONFIRMATION OF SALE IN EXTRAJUDICIAL FORECLOSURE REQUIRED Amount due under the mortgage Auction purchase price
deed, 1% interest per month on the said
NO, under the general banking law, the confirmation of sale in case of with interest thereon at the rate amount up to the time of
extrajudicial foreclosure is not required specified in the mortgage, and redemption
section 47 of the general banking law is applicable when the mortgagee is a all the costs and expenses the taxes or assessment paid by
bank, quasi-bank or trut entity incurred by the bank or the purchaser , if any
institution from the sale of the
RIGHT OF REDEMPTION IN JUDICIAL FORECLOSURE custody of the mortgage property,
less: the income derived
GENERAL RULE: no right of redemption
therefrom
EXCEPT: when the mortgagee is a bank, quasi-bank or trust entity, the JUDICIAL FORECLOSURE OF REAL ESTATE MORTGAGE
mortgagor has a right of redemption for both judicial and extra-judicial
foreclosure of any mortgage on real estate Amount due under the mortgage
deed
PERIOD OF REDEMPTION interest thereon at the rate
specified in the mortgage
Mortgagor is a JURIDICAL PERSON and Mortgagor is a NON-JURIDICAL
the mortgagee is a bank, quasi-bank or PERSON, and the mortgage is a bank, all the costs and expenses
trust entity quasi-bank or trust entity incurred by the bank or
institution from the sale of the
EXTRAJUDICIAL FORECLOSURE OF REAL ESTATE MORTGAGE custody of the mortgage property,
less: the income derived
Mortgagor has only EQUITY Non juridical mortgagor retains the RIGHT
REDEMPTION exercisable until, but not OF REDEMPTION at any time within 1 therefrom
after the registration of the certificate of year from and after the date of the sale, and
foreclosure sale with the applicable such redemption shall be governed by the
REQUIREMENT UNDER SECTION 47 OF THE GENERAL BANKING LAW OF 2000 IN
Register of Deeds which in no case shall be provisions of Rule 39 of the Rules of Court,
ORDER TO ENJOIN FORECLOSURE PROCEEDINGS
more than 3 months after foreclosure, insofar as they are not inconsistent with
whichever is earlier the provisions thereof any petition in court to enjoin or restrain the conduct of foreclosure proceedings
JUDICIAL FORECLOSURE OF REAL ESTATE MORTGAGE instituted pursuant to Section 47 shall be given due course only upon the filing
by the petitioner of a bond in an amount fixed by the court, conditioned that he
Morgagor has a RIGHT OF REDEMPTION Mortgagor has also a RIGHT OF will pay all the damages which the bank may suffer by the enjoining or the
within 1 year after the sale of the real estate REDEMPTION within 1 year after of the restraint of the foreclosure proceeding.
real estate
RULE AS REGARDS THE TAKING OF POSSESSION OF THE PROPERTY PURCHASED
AT PUBLIC AUCTION?
WHERE IS THE PERIOD OF 1 YEAR AFTER THE SALE RECKONED FROM?
mortgagee is a bank, quasi-bank or trust mortgagee is NOT a bank, quasi-bank or
Period of 1 year after the sale within which to redeem has been construed as entity trust entity
ONE YEAR FROM THE REGISTRATION OF THE SALE OF REGISTERED
Purchaser at the auction sale concrned Purchaser or last redemptioner, if any,
LAND
shall have the right to enter upon and take may, upon motion, secure a writ of

28 DIATO.2013400036
SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS ATTY. CAPELLAN

possession of such property possession of the property from the court Section 5. How sale to proceed in case the debt is not all due. If the debt for which
IMMEDIATELY AFTER THE DATE OF which ordered the foreclosure UPON THE the mortgage or encumbrance was held is not all due as provided in the judgment as
CONFIRMATION OF THE AUCTION FINALITY OF THE ORDER OF soon as a sufficient portion of the property has been sold to pay the total amount and
SALE, and administer the same in CONFIRMATION OR UPON THE the costs due, the sale shall terminate; and afterwards as often as more becomes due for
accordance with law (whether extrajudicial EXPIRATION OF THE PERIOD OF principal or interest and other valid charges, the court may, on motion, order more to be
or judicial REDEMPTION WHEN ALLOWED BY sold. But if the property cannot be sold in portions without prejudice to the parties, the
LAW, unless a 3rd party is actually holding whole shall be ordered to be sold in the first instance, and the entire debt and costs shall
order of confirmation is appealable the same adversely to the judgment obligor be paid, if the proceeds of the sale be sufficient therefor, there being a rebate of interest
where such rebate is proper. (5a)
Date of confirmation of the auction sale
finality of the order of confirmation
MAY FORECLOSURE BE DONE PRIOR TO THE MATURITY OF THE ENTIRE DEBT?
EFFECT OF ISSUANCE OF THE WRIT YES, the generally accepted rule is that where the secured debt is payable in
writ of possession places the purchaser in the possession of the property which installments, default payment of any installment gives the mortgagee a right to
he has purchased at the public auction sale foreclose as to such installments without waiting for the maturity of the whole
debt.
Section 4. Disposition of proceeds of sale. The amount realized from the foreclosure If the property cannot be sold in portions without prejudice to the parties, the
sale of the mortgaged property shall, after deducting the costs of the sale, be paid to the entire property shall be ordered sold and the entire debt and costs settled if the
person foreclosing the mortgage, and when there shall be any balance or residue, after proceeds be sufficient, with a rebate of interest, if proper.
paying off the mortgage debt due, the same shall be paid to junior encumbrancers in the
order of their priority, to be ascertained by the court, or if there be no such
encumbrancers or there be a balance or residue after payment to them, then to the
mortgagor or his duly authorized agent, or to the person entitled to it. (4a) Section 6. Deficiency judgment. If upon the sale of any real property as provided in
the next preceding section there be a balance due to the plaintiff after applying the
proceeds of the sale, the court, upon motion, shall render judgment against the
defendant for any such balance for which, by the record of the case, he may be
HOW ARE THE PROCEEDS OF THE SALE APPLIED? personally liable to the plaintiff, upon which execution may issue immediately if the
After deducting the costs of the foreclosure sale, the balance realized from the balance is all due at the time of the rendition of the judgment; otherwise; the plaintiff
sale shall be paid in the following order shall be entitled to execution at such time as the balance remaining becomes due under
the terms of the original contract, which time shall be stated in the judgment. (6a)
1. person foreclosing the mortgage to settle the mortgage debt due
2. to the junior encumberancers in order of their priority as ascertained by the
court COURT AUTHORIZE THE RECOVERY OF DEFICIENCY BEFORE THE FORECLOSYRE
SALE?
3. the the mortgagors or his duly authorized agent, or the person entitled to it
NO, because it is unknown whether or not a deficiency exists
RIGHT OF THE 2ND MORTGAGEE
WHAT ARE THE INSTANCES WHEN DEFICIENCY JUDGMENT CANNOT BE
right of repurchase
DECREED?
apply the payment of its credit the excess of the proceeds of the sale after the When one mortgages his property to secure the debt of another without
payment of that of the 1st mortgagee, such being the effect of the subordination expressly assuming personal liability for such debt, he cannot be compelled to
of its mortgage to that of the latter pay the deficiency remaining due after the mortgage is foreclosed
IF the 1st mortgagee has absorbed all its proceed of the sale the mortgage in in action to foreclose a mortgage against a non-resident defendant not found in
favor of the 2nd mortgagee is in fact extinguished with it. the PH who fails to submit himself to the jurisdiction of the court, no personal

29 DIATO.2013400036
SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS
judgment for the deficiency can be rendered
MAY THE DEFICIENCY NOT EXECUTED BEFORE THE DEATH OF THE MORTGAGE
DEBTOR BE FILED AS A CLAIM AGAINST THE ESTATE OF THE DECEASED
YES
IS THERE A RIGHT TO RECOVER DEFICIENCY IN THE FORECLOSURE OF
Section 63. Foreclosure of Mortgage. (a) If the mortgage was foreclosed judicially, a
CHATTEL MORTGAGE
certified copy of the final order of the court confirming the sale shall be registered with
YES, with exception the Register of Deeds. If no right of redemption exists, the certificate of title of the
mortgagor shall be canceled, and a new certificate issued in the name of the purchaser.
Article 1481 In a contract of sale of personal property the price of which is
payable in installments
section 6 applies to a judicial foreclosure of chattel mortgage
extrajudicial foreclosure of a chattel mortgage deficiency exists, an
independent action may be instituted for the recover of said deficiency
PRESCRIPTIVE PERIOD FOR FILING AN ACTION FOR DEFICIENCY IN
EXTRAJUDICIAL FORECLOSURE OF REAL ESTATE MORTGAGE
right to claim payment of deficiency after foreclosure of real estate mortgage
prescribes in 10 YEARS under articles 1144 and 1142 of the civil code
Art. 1142. A mortgage action prescribes after ten years. (1964a)
Art. 1144. The following actions must be brought within ten years from the
time the right of action accrues:
(1) Upon a written contract;
(2) Upon an obligation created by law;
(3) Upon a judgment. (n)
Section 7. Registration. A certified copy of the final order of the court confirming
the sale shall be registered in the registry of deeds. If no right of redemption exists, the
certificate of title in the name of the mortgagor shall be cancelled, and a new one issued
in the name of the purchaser.
Where a right of redemption exists, the certificate of title in the name of the mortgagor
shall not be cancelled, but the certificate of sale and the order confirming the sale shall
be registered and a brief memorandum thereof made by the registrar of deeds upon the
certificate of title. In the event the property is redeemed, the deed of redemption shall be
registered with the registry of deeds, and a brief memorandum thereof shall be made by
the registrar of deeds on said certificate of title.
If the property is not redeemed, the final deed of sale executed by the sheriff in favor of
the purchaser at the foreclosure sale shall be registered with the registry of deeds;
whereupon the certificate of title in the name of the mortgagor shall be cancelled and a
30
ATTY. CAPELLAN
new one issued in the name of the purchaser. (n)
PD 1529: AMENDING AND CODIFYING THE LAWS RELATIVE TO
REGISTRATION OF PROPERTY AND FOR OTHER PURPOSES
Where the right of redemption exists, the certificate of title of the mortgagor
shall not be canceled, but the certificate of sale and the order confirming the sale
shall be registered by a brief memorandum thereof made by the Register of
Deeds upon the certificate of title. In the event the property is redeemed, the
certificate or deed of redemption shall be filed with the Register of Deeds, and a
brief memorandum thereof shall be made by the Register of Deeds on the
certificate of title of the mortgagor.
If the property is not redeemed, the final deed of sale executed by the sheriff in
favor of the purchaser at a foreclosure sale shall be registered with the Register
of Deeds; whereupon the title of the mortgagor shall be canceled, and a new
certificate issued in the name of the purchaser.
Section 8. Applicability of other provisions. The provisions of sections 31, 32 and 34
of Rule 39 shall be applicable to the judicial foreclosure of real estate mortgages under
this Rule insofar as the former are not inconsistent with or may serve to supplement the
provisions of the latter. (8a)
RULE 69: Partition
Section 1. Complaint in action for partition of real estate. A person having the right
to compel the partition of real estate may do so as provided in this Rule, setting forth in
his complaint the nature and extent of his title and an adequate description of the real
estate of which partition is demanded and joining as defendants all other persons
interested in the property. (1a)
It becomes necessary if the co=owners cannot agree on extrajudicial partition
JURISDICTION
Inside Metro Manila Outside Metro Manila
MTC If the assessed value of the real If the assessed value of the real estate
estate is NOT more than is NOT more than P50,000.00
DIATO.2013400036
SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS ATTY. CAPELLAN

P20,000.00 co-owners cannot demand a physical division of the thing owned in

common, when to do so would render it unserviceable for the use for
The amount of the personal property The amount of the personal property which it is intended. But the co-ownership may be terminated in
is not more than P300,000 is not more than P400,000 accordance with Article 498. (401a)

RTC If the assessed value of the real If the assessed value of the real estate
estate EXCEEDS P20,000 EXCEEDS P50,000
The amount of the personal property The amount of the personal property
EXCEEDS more than P300,000 EXCEEDS more than P400,000
if the title or possession of the real property in an action for partition depends on
the annulment of a Deed of declaration of heirs which is incapable of pecuniary
estimation RTC has jurisdictional
WHO MAY FILE COMPLAINT? He who demands or claims a partition of the
property must have the status of co-proprietor or co-owner of the undivided
property
WHO BE MADE DEFENDANTS in a complaint for partition?
Action for partition for real property co-owners or coparceners of
property
INDISPENSABLE PARTY: co-owners
if real estate inadequately described it can be cured by evidence introduced at
the trial without objection
CIVIL CODE PROVISIONS ON PARTITION
Art. 494. No co-owner shall be obliged to remain in the co-ownership.
Each co-owner may demand at any time the partition of the thing
owned in common, insofar as his share is concerned.
Nevertheless, an agreement to keep the thing undivided for a certain
period of time, not exceeding ten years, shall be valid. This term may be
extended by a new agreement.
A donor or testator may prohibit partition for a period which shall not
exceed twenty years.
Neither shall there be any partition when it is prohibited by law.
No prescription shall run in favor of a co-owner or co-heir against his
co-owners or co-heirs so long as he expressly or impliedly recognizes
the co-ownership. (400a)
Art. 495. Notwithstanding the provisions of the preceding article, the
Art. 496. Partition may be made by agreement between the parties or
by judicial proceedings. Partition shall be governed by the Rules of
Court insofar as they are consistent with this Code. (402)
Art. 498. Whenever the thing is essentially indivisible and the co-
owners cannot agree that it be allotted to one of them who shall
indemnify the others, it shall be sold and its proceeds
distributed. (404)
Art. 1083. Every co-heir has a right to demand the division of the
estate unless the testator should have expressly forbidden its partition,
in which case the period of indivision shall not exceed twenty years as
provided in article 494. This power of the testator to prohibit division
applies to the legitime.
Even though forbidden by the testator, the co-ownership terminates
when any of the causes for which partnership is dissolved takes place,
or when the court finds for compelling reasons that division should be
ordered, upon petition of one of the co-heirs. (1051a)
Art. 1084. Voluntary heirs upon whom some condition has been
imposed cannot demand a partition until the condition has been
fulfilled; but the other co-heirs may demand it by giving sufficient
security for the rights which the former may have in case the condition
should be complied with, and until it is known that the condition has
not been fulfilled or can never be complied with, the partition shall be
understood to be provisional. (1054a)
Section 2. Order for partition and partition by agreement thereunder. If after the
trial the court finds that the plaintiff has the right thereto, it shall order the partition of
the real estate among all the parties in interest. Thereupon the parties may, if they are
able to agree, make the partition among themselves by proper instruments of
conveyance, and the court shall confirm the partition so agreed upon by all the parties,
and such partition, together with the order of the court confirming the same, shall be
recorded in the registry of deeds of the place in which the property is situated. (2a)
A final order decreeing partition and accounting may be appealed by any party
aggrieved thereby. (n)
orders of partition and direction an accounting is appealable, because said order

31 DIATO.2013400036
SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS
is considered final and appealable notwithstanding that further proceedings
need to be done by the party required to do so
period of appeal from an order of partition is 30 DAYS counted from notice of
said order.
Record on appeal is required since there may be a subsequent appeal from
the judgment on the actual partition and/or accounting for rent and profits
under section 7 and 8
2 stages for partitions
1. DETERMINATION of whether or not a CO-OWNERSHIP IN FACT
EXISTS, and a partition is proper. This may be made by voluntary
agreements of all the parties interest in the property
this may end either:
with a declaration that plaintiff is not entitled to have a
partition either because a co-ownership does not exists or
partition is legally prohibited or
with a judgment that a co-ownership does exists, partition is
proper in the premises and an accounting of rents and profits
received by the defendant from the real estate in question is
in order
2. when it APPEARS that THE PARTIES ARE UNABLE TO AGREE UPON
THE PARTITION directed by the court. Partition shall be done for the
parties by the court with the assistance of not more than 3 commissioners.
It may also deal with rendition of the accounting itself and its approval by
the court after the parties have been accorded opportunity to be heard
thereon, and an award for the recovery by the party or parties thereto
entitled of their just share in the rents and profits of the real estate in
question.
Section 3. Commissioners to make partition when parties fail to agree. If the
parties are unable to agree upon the partition, the court shall appoint not more than
three (3) competent and disinterested persons as commissioners to make the partition,
commanding them to set off to the plaintiff and to each party in interest such part and
proportion of the property as the court shall direct. (3a)
Section 4. Oath and duties of commissioners. Before making such partition; the
commissioners shall take and subscribe an oath that they will faithfully perform their
duties as commissioners, which oath shall be filed in court with the other proceedings in
the case. In making the partition, the commissioners shall view and examine the real
estate, after due notice to the parties to attend at such view and examination, and shall
32
ATTY. CAPELLAN
hear the parties as to their preference in the portion of the property to be set apart to
them and the comparative value thereof, and shall set apart the same to the parties in
lots or parcels as will be most advantageous and equitable, having due regard to the
improvements, situation and quality of the different parts thereof. (4a)
When judicial discretion is called upon to make up for the lack of agreement
court must consider and respect the interests of all parties, and adopt that form
of partition nearest to absolute equity and most consonant with reason and
justice
Section 5. Assignment or sale of real estate by commissioners. When it is made to
appear to the commissioners that the real state, or a portion thereof, cannot be divided
without prejudice to the interests of the parties, the court may order it assigned to one of
the parties willing to take the same, provided he pays to the other parties such amount
as the commissioners deem equitable, unless one of the interested parties asks that the
property be sold instead of being so assigned, in which case the court shall order the
commissioners to sell the real estate at public sale under such conditions and within
such time as the court may determine. (5a)
Public sale is MANDATORY if one of the parties interested asks that the
property be sold instead of assigned to one of them
Section 6. Report of commissioners; proceedings not binding until confirmed. The
commissioners shall make a full and accurate report to the court of all their proceedings
as to the partition, or the assignment of real estate to one of the parties, or the sale of the
same. Upon the filing of such report, the clerk of court shall serve copies thereof on all
the interested parties with notice that they are allowed ten (10) days within which to file
objections to the findings of the report, if they so desire. No proceeding had before or
conducted by the commissioners and rendered judgment thereon. (6a)
Section 7. Action of the court upon commissioners report. Upon the expiration of
the period of ten (10) days referred to in the preceding section or even before the
expiration of such period but after the interested parties have filed their objections to
the report or their statement of agreement therewith the court may, upon hearing,
accept the report and render judgment in accordance therewith, or, for cause shown
recommit the same to the commissioners for further report of facts; or set aside the
report and appoint new commissioners; or accept the report in part and reject it in part;
and may make such order and render such judgment as shall effectuate a fair and just
partition of the real estate, or of its value, if assigned or sold as above provided, between
the several owners thereof. (7)
DIATO.2013400036
SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS
Procedure is similar to that in section 7 and 8 of rule 67
the appellate court cannot ordinarily reverse the findings of impartial
commissioner and trial judge except if there is irregularity in the proceedings,
impartiality or fraud in the partition
Section 8. Accounting for rent and profits in action for partition. In an action for
partition in accordance with this Rule, a party shall recover from another his just share
of rents and profits received by such other party from the real estate in question, and the
judgment shall include an allowance for such rents and profits. (8a)
No claim for rents and profits which are not set up in the action for partition
because such act is part of a single cause of action and will be barred if not set
up.
Section 9. Power of guardian in such proceedings. The guardian or guardian ad
litem of a minor or person judicially declared to be incompetent may, with the approval
of the court first had, do and perform on behalf of his ward any act, matter, or thing
respecting the partition of real estate, which the minor or person judicially declared to
be incompetent could do in partition proceedings if he were of age or competent. (9a)
Similar to section 14 of rule 67
Section 10. Costs and expenses to be taxed and collected. The court shall equitably
tax and apportion between or among the parties the costs and expenses which accrue in
the action, including the compensation of the commissioners, having regard to the
interests of the parties, and execution may issue therefor as in other cases. (10a)
Art. 500. Upon partition, there shall be a mutual accounting for benefits
received and reimbursements for expenses made. Likewise, each co-owner shall
pay for damages caused by reason of his negligence or fraud. (n)
Art. 1087. In the partition the co-heirs shall reimburse one another for the
income and fruits which each one of them may have received from any property
of the estate, for any useful and necessary expenses made upon such property,
and for any damage thereto through malice or neglect. (1063)
Section 11. The judgment and its effect; copy to be recorded in registry of deeds. If
actual partition of property is made, the judgment shall state definitely, by metes and
bounds and adequate description, the particular portion of the real estate assigned to
each party, and the effect of the judgment shall be to vest in each party to the action in
33
ATTY. CAPELLAN
severalty the portion of the real estate assigned to him. If the whole property is assigned
to one of the parties upon his paying to the others the sum or sums ordered by the court,
the judgment shall state the fact of such payment and of the assignment of the real
estate to the party making the payment, and the effect of the judgment shall be to vest in
the party making the payment the whole of the real estate free from any interest on the
part of the other parties to the action. If the property is sold and the sale confirmed by
the court, the judgment shall state the name of the purchaser or purchasers and a
definite description of the parcels of real estate sold to each purchaser, and the effect of
the judgment shall be to vest the real estate in the purchaser or purchasers making the
payment or payments, free from the claims of any of the parties to the action. A certified
copy of the judgment shall in either case be recorded in the registry of deeds of the place
in which the real estate is situated, and the expenses of such recording shall be taxed as
part of the costs of the action. (11a)
Section 12. Neither paramount rights nor amicable partition affected by this Rule.
Nothing in this Rule contained shall be construed so as to prejudice, defeat, or destroy
the right or title of any person claiming the real estate involved by title under any other
person, or by title paramount to the title of the parties among whom the partition may
have been made, nor so as to restrict or prevent persons holding real estate jointly or in
common from making an amicable partition thereof by agreement and suitable
instruments of conveyance without recourse to an action. (12a)
Judgment in the action for partition does not affect 3 rd persons and their rights
over the property partition is res judicata only on the parties thereto and their
successor-in-interest
creditors or assignee of co-owners CAN intervene in an action for partition BUT
they cannot impugn any partition already executed, unless there has been fraud
or it was made notwithstanding opposition to prevent it
party intervening must show a legitimate and proper interest in the property
sought to be partitioned and that such interest cannot be otherwise properly
protected
Section 13. Partition of personal property. The provisions of this Rule shall apply to
partitions of estates composed of personal property, or of both real and personal
property, in so far as the same may be applicable. (13)
Applicable to personal property
if cannot partition, it will be sold under the direction of the court and the
proceeds divided among the owners after the necessary expenses have been
deducted
DIATO.2013400036
SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS ATTY. CAPELLAN

RULE 70: Forcible Entry and Unlawful Detainer the lessee continues enjoying
the thing leased for 15 days ,
Section 1. Who may institute proceedings, and when. Subject to the provisions of as provided by Article 1670 of
the next succeeding section, a person deprived of the possession of any land or building the Civil Code
by force, intimidation, threat, strategy, or stealth, or a lessor, vendor, vendee, or other from the date of the
person against whom the possession of any land or building is unlawfully withheld after revocation of the permit in
the expiration or termination of the right to hold possession, by virtue of any contract, case of occupancy on mere
express or implied, or the legal representatives or assigns of any such lessor, vendor, tolerance or under a
vendee, or other person, may, at any time within one (1) year after such unlawful temporary permit
deprivation or withholding of possession, bring an action in the proper Municipal Trial
WHO MAY BRING ACTIONS?
Court against the person or persons unlawfully withholding or depriving of possession,
or any person or persons claiming under them, for the restitution of such possession, Person or co-owner deprived of Lessor, vendor, vendee, co-owner
together with damages and costs. (1a) the possession of any land or or other person against whom
building by force, intimidation, possession of any land or building
threat, strategy or stealth is unlawfully withheld
2 distinct causes of action the legal representative or assigns
of any such lessor, vendor,
1. FORCIBLE ENTRY - action to recover possession founded on illegal vendee, co-owner or other person
occupation from the beginning against whom possession of any
land or building is unlawfully
2. UNLAWFUL DETAINER action founded on unlawful detention by a
withheld
person who originally acquired possession lawfully
AGAINST WHOM MAY THE ACTIONS BE MAINTAINED
governed by REVISED RULE ON SUMMARY PROCEDURE
ONLY against the person who is in possession at the commencement of the action
FORCIBLE ENTRY UNLAWFUL DETAINER
DEFINITION JURISDCTION : MTC
Is based on entry effected by FORCE, Based on the unlawful detention by a
decision is conclusive as to POSSESSION not OWNERSHIP
INTIMIDATION, THREAT, STRATEGY person who has acquired possession
OR STEALTH rightfully, but who detains the property actions should be brought within 1 year, otherwise, the RTC will have
after the right to keep possession is ended jurisdiction
the action is to recover possession founded
upon illegal possession from the beginning Ejectment suits are NOT suspended or barred by other actions
RECON THE 1 YEAR PRESCRIPTION ACTIONS TO RECOVER POSSESSION OF REAL PROPERTY
Date of the entry or taking of From the date of the last FORCIBLE ENTRY AND UNLAWFUL Brought before the MTC within 1 YEAR
possession by FORCE, demand to vacate in case of DETAINER from unlawful deprivation or withholding
INTIMIDATION, THREAT, non-payment of rent or non- of possession and has for its object the
STRATEGY OR compliance with the recovery of the physical possession
from the demand to vacate, conditions of the lease
upon learning of the entry by from the date of the notice to ACCION PUBLICIANA A plenary action for possession which
stealth quit, in case of a tacit renewal could be brought in the RTC or MTC after 1
of the lease (tacita year or within 1 year in cases not covered
reconduccion), as when the by rule 70, and has for its object the
acquiescence of the lessor, recovery of the better right to such
possession (possession de jure)

34 DIATO.2013400036
SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS
ACCION REINVIDICATORIA An action to recover ownership and
possession which may be brought in the
RTC or MTC
The court may receive evidence on possession de jure but only to determine the
NATURE OF POSSESSION
Section 2. Lessor to proceed against lessee only after demand. Unless otherwise
stipulated, such action by the lesser shall be commenced only after demand to pay or
comply with the conditions of the lease and to vacate is made upon the lessee, or by
serving written notice of such demand upon the person found on the premises if no
person be found thereon, and the lessee fails to comply therewith after fifteen (15) days
in the case of land or five (5) days in the case of buildings. (2a)
Pre-requisite for lessor to commence an action for unlawful detainer
lessor shall commence an action for ejectment only after demand has been
made on the lessee to pay or comply with the conditions of the lease and
vacate within 15 days in the case of land OR 5 days in case of building
demand is necessary demand is a pre-requisite for unlawful detainer when the
action is for FAILURE TO PAY RENT DUE OR TO COMPLY WITH THE
CONDITIONS OF THE LEASE
Demand is NOT necessary
Art. 1669. If the lease was made for a determinate time, it ceases upon the
day fixed, without the need of a demand. (1565)
Art. 1687. If the period for the lease has not been fixed, it is understood to
be from year to year, if the rent agreed upon is annual; from month to
month, if it is monthly; from week to week, if the rent is weekly; and from
day to day, if the rent is to be paid daily. However, even though a monthly
rent is paid, and no period for the lease has been set, the courts may fix a
longer term for the lease after the lessee has occupied the premises for over
one year. If the rent is weekly, the courts may likewise determine a longer
period after the lessee has been in possession for over six months. In case of
daily rent, the courts may also fix a longer period after the lessee has stayed
in the place for over one month. (1581a)
notice to quit is neceesary
Art. 1670. If at the end of the contract the lessee should continue enjoying
the thing leased for fifteen days with the acquiescence of the lessor, and
35
ATTY. CAPELLAN
unless a notice to the contrary by either party has previously been given, it
is understood that there is an implied new lease, not for the period of the
original contract, but for the time established in Articles 1682 and 1687. The
other terms of the original contract shall be revived. (1566a)
neither demand nor notice to quit necessary
forcible entry cases because the possession is illegal from the beginning
NOT alternative : demand to pay rental or demand to vacate
Section 3. Summary procedure. Except in cases covered by the agricultural tenancy
laws or when the law otherwise expressly provides, all actions for forcible entry and
unlawful detainer, irrespective of the amount of damages or unpaid rentals sought to be
recovered, shall be governed by the summary procedure hereunder provided. (n)
All unlawful detainer and forcible entry cases are tried pursuant to the REVISED
RULE ON SUMMARY PROCEDURE
rules on summary procedure only applicable to MTC or MeTC cases NOT to
the RTC
when the decision of the MTC or MeTC is appealed to the RTC, the RTC's rules
are applied
Section 4. Pleadings allowed. The only pleadings allowed to be filed are the
complaint, compulsory counterclaim and cross-claim pleaded in the answer, and the
answers thereto. All pleadings shall be verified. (3a, RSP)
Section 5. Action on complaint. The court may, from an examination of the
allegations in the complaint and such evidence as may be attached thereto, dismiss the
case outright on any of the grounds for the dismissal of a civil action which are apparent
therein. If no ground for dismissal is found, it shall forthwith issue summons. (n)
Section 6. Answers. Within ten (10) days from service of summons, the defendant
shall file his answer to the complaint and serve a copy thereof on the plaintiff.
Affirmative and negative defenses not pleaded therein shall be deemed waived, except
lack of jurisdiction over the subject matter. Cross-claims and compulsory counterclaims
not asserted in the answer shall be considered barred. The answer to counterclaims or
cross-claims shall be served and filed within ten (10) days from service of the answer in
which they are pleaded. (5 RSP)
DIATO.2013400036
SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS
Section 7. Effect of failure to answer. Should the defendant fail to answer the
complaint within the period above provided, the court, motu proprio or on motion of
the plaintiff, shall render judgment as may be warranted by the facts alleged in the
complaint and limited to what is prayed for therein. The court may in its discretion
reduce the amount of damages and attorney's fees claimed for being excessive or
otherwise unconscionable, without prejudice to the applicability of section 3 (c), Rule 9
if there are two or more defendants. (6, RSP)
Section 8. Preliminary conference; appearance of parties. Not later than thirty (30)
days after the last answer is filed, a preliminary conference shall be held. The provisions
of Rule 18 on pre-trial shall be applicable to the preliminary conference unless
inconsistent with the provisions of this Rule.
The failure of the plaintiff to appear in the preliminary conference shall be cause for the
dismissal of his complaint. The defendant who appears in the absence of the plaintiff
shall be entitled to judgment on his counterclaim in accordance with the next preceding
section. All cross-claims shall be dismissed. (7, RSP)
If a sole defendant shall fail to appear, the plaintiff shall likewise be entitled to judgment
in accordance with the next preceding section. This procedure shall not apply where one
of two or more defendants sued under a common cause of action defense shall appear at
the preliminary conference.
No postponement of the preliminary conference shall be granted except for highly
meritorious grounds and without prejudice to such sanctions as the court in the exercise
of sound discretion may impose on the movant. (n)
First 2 paragraphs are same as section 7 on summary procedure BUT last
paragraph on postponement is NEW
Section 9. Record of preliminary conference. Within five (5) days after the
termination of the preliminary conference, the court shall issue an order stating the
matters taken up therein, including but not limited to:
1. Whether the parties have arrived at an amicable settlement, and if so, the
terms thereof;
2. The stipulations or admissions entered into by the parties;
3. Whether, on the basis of the pleadings and the stipulations and admission
made by the parties, judgment may be rendered without the need of further
proceedings, in which event the judgment shall be rendered within thirty (30)
days from issuance of the order;
4. A clear specification of material facts which remain converted; and
36
ATTY. CAPELLAN
5. Such other matters intended to expedite the disposition of the case. (8, RSP)
Section 10. Submission of affidavits and position papers. Within ten (10) days from
receipt of the order mentioned in the next preceding section, the parties shall submit the
affidavits of their witnesses and other evidence on the factual issues defined in the
order, together with their position papers setting forth the law and the facts relied upon
by them. (9, RSP)
Section 11. Period for rendition of judgment. Within thirty (30) days after receipt of
the affidavits and position papers, or the expiration of the period for filing the same, the
court shall render judgment.
However, should the court find it necessary to clarify certain material facts, during the
said period, issue an order specifying the matters to be clarified, and require the parties
to submit affidavits or other evidence on the said matters within ten (10) days from
receipt of said order. Judgment shall be rendered within fifteen (15) days after the
receipt of the last affidavit or the expiration of the period for filing the same.
The court shall not resort to the foregoing procedure just to gain time for the rendition
of the judgment. (n)
Section 12. Referral for conciliation. Cases requiring referral for conciliation, where
there is no showing of compliance with such requirement, shall be dismissed without
prejudice, and may be revived only after that requirement shall have been complied
with. (18a, RSP)
Section 13. Prohibited pleadings and motions. The following petitions, motions, or
pleadings shall not be allowed:
1. Motion to dismiss the complaint except on the ground of lack of jurisdiction
over the subject matter, or failure to comply with section 12;
2. Motion for a bill of particulars;
3. Motion for new trial, or for reconsideration of a judgment, or for reopening
of trial;
4. Petition for relief from judgment;
5. Motion for extension of time to file pleadings, affidavits or any other paper;
6. Memoranda;
DIATO.2013400036
SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS
7. Petition for certiorari, mandamus, or prohibition against any interlocutory
order issued by the court;
8. Motion to declare the defendant in default;
9. Dilatory motions for postponement;
10. Reply;
11. Third-party complaints;
12. Interventions. (19a, RSP)
Section 14. Affidavits. The affidavits required to be submitted under this Rule shall
state only facts of direct personal knowledge of the affiants which are admissible in
evidence, and shall show their competence to testify to the matters stated therein.
A violation of this requirement may subject the party or the counsel who submits the
same to disciplinary action, and shall be cause to expunge the inadmissible affidavit or
portion thereof from the record. (20, RSP)
Section 15. Preliminary injunction. The court may grant preliminary injunction, in
accordance with the provisions of Rule 58 hereof, to prevent the defendant from
committing further acts of dispossession against the plaintiff.
A possessor deprived of his possession through forcible from the filing of the complaint,
present a motion in the action for forcible entry or unlawful detainer for the issuance of
a writ of preliminary mandatory injunction to restore him in his possession. The court
shall decide the motion within thirty (30) days from the filing thereof. (3a)
Preliminary prohibitory and mandatory injunction can be granted in forcible
entry and unlawful detainer
preliminary prohibitory injunction may be granted in forcible entry to prevent
defendant from further dispossession
preliminary prohibitory injunction may be granted in forcible entry to restore
possession to plaintiff
a writ of preliminary mandatory injunction can be issued against a squatter
during the litigation
Section 16. Resolving defense of ownership. When the defendant raises the defense
of ownership in his pleadings and the question of possession cannot be resolved without
deciding the issue of ownership, the issue of ownership shall be resolved only to
37
ATTY. CAPELLAN
determine the issue of possession. (4a)
GUIDELINES IN IMPLEMENTING SECTION 16
1. . 1. The primal rule is that the principal issue must be that of possession, and
that ownership is merely ancillary thereto, in which case the issue of ownership
may be resolved but only for the purpose of determining the issue of
possession. Thus, as earlier stated, the legal provision under consideration
applies only where the inferior court believes and the preponderance of evidence
shows that a resolution of the issue of possession is dependent upon the
resolution of the question of ownership.
2. 2. It must sufficiently appear from the allegations in the complaint that what the
plaintiff really and primarily seeks is the restoration of possession.
[20]Consequently, where the allegations of the complaint as well as the reliefs
prayed for clearly establish a case for the recovery of ownership, and not merely
one for the recovery of possession de facto, or where the averments plead the
claim of material possession as a mere elemental attribute of such claim for
ownership,[21] or where the issue of ownership is the principal question to be
resolved,[22] the action is not one for forcible entry but one for title to real
property.
3. 3. The inferior court cannot adjudicate on the nature of ownership where the
relationship of lessor and lessee has been sufficiently established in the
ejectment case,[23] unless it is sufficiently established that there has been a
subsequent change in or termination of that relationship between the parties.
This is because under Section 2(b), Rule 131 of the Rules of Court, the tenant is
not permitted to deny the title of his landlord at the time of the commencement
of the relation of landlord and tenant between them.
4. 4. The rule in forcible entry cases, but not in those for unlawful detainer, is that a
party who can prove prior possession can recover such possession even against
the owner himself. Regardless of the actual condition of the title to the property
and whatever may be the character of his prior possession, if he has in his favor
priority in time, he has the security that entitles him to remain on the property
until he is lawfully ejected by a person having a better right through an accion
publiciana or accion reivindicatoria.[24] Corollarily, if prior possession may be
ascertained in some other way, then the inferior court cannot dwell upon or
intrude into the issue of ownership.
5. 5. Where the question of who has prior possession hinges on the question of who
the real owner of the disputed portion is, the inferior court may resolve the issue
DIATO.2013400036
SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS
of ownership and make a declaration as to who among the contending parties is
the real owner.[25] In the same vein, where the resolution of the issue of
possession hinges on a determination of the validity and interpretation of the
document of title or any other contract on which the claim of possession is
premised, the inferior court may likewise pass upon these issues. This is
because, and it must be so understood, that any such pronouncement made
affecting ownership of the disputed portion is to be regarded merely
as provisional, hence, does not bar nor prejudice an action between the same
parties involving title to the land.[26] Moreover, Section 7, Rule 70 of the Rules
of Court expressly provides that the judgment rendered in an action for forcible
entry or unlawful detainer shall be effective with respect to the possession only
and in no wise bind the title or affect the ownership of the land or building.
Section 17. Judgment. If after trial court finds that the allegations of the complaint
are true, it shall render judgment in favor of the plaintiff for the restitution of the
premises, the sum justly due as arrears of rent or as reasonable compensation for the
use and occupation of the premises, attorney's fees and costs. If a counterclaim is
established, the court shall render judgment for the sum found in arrears from either
party and award costs as justice requires. (6a)
The courts are empowered by law to fix the period of lease to make the
indefinite period of lease definite
a counterclaim for ejectment may be set up in a complaint for consigation the
amount to be consigned will determine the jurisdiction of the court
Section 18. Judgment conclusive only on possession; not conclusive in actions
involving title or ownership. The judgment rendered in an action for forcible entry or
detainer shall be conclusive with respect to the possession only and shall in no wise bind
the title or affect the ownership of the land or building. Such judgment shall not bar an
action between the same parties respecting title to the land or building.
The judgment or final order shall be appealable to the appropriate Regional Trial Court
which shall decide the same on the basis of the entire record of the proceedings had in
the court of origin and such memoranda and/or briefs as may be submitted by the
parties or required by the Regional Trial Court. (7a)
The sublessees hold the premises subject to the right of the lessess once the
right disappears, they have nothing to stand on
all persons occupying the property with the consent of defendant can be ejected
the relatives, family and other privies of the defendant are bound by the
judgment in an ejectment case as the party from whom they derive their
possession
38
ATTY. CAPELLAN
judgment in an action for ejectment is IN PERSONAM enforceable only
between the parties
it is not valid against a possessor in good faith
EXCEPT if the possessor is only a successor in interest, a guest, an agent
a judgment for ejectment CANNOT be enforced against a co-owner who was not
made a party to the action
An ejectment case SURVIVES the death of a party ejectment is one involving
real property thus a real action judgment in an ejectment case is conclusive
between the parties and their successors in interest by title
Section 19. Immediate execution of judgment; how to stay same. If judgment is
rendered against the defendant, execution shall issue immediately upon motion unless
an appeal has been perfected and the defendant to stay execution files a sufficient
supersedeas bond, approved by the Municipal Trial Court and executed in favor of the
plaintiff to pay the rents, damages, and costs accruing down to the time of the judgment
appealed from, and unless, during the pendency of the appeal, he deposits with the
appellate court the amount of rent due from time to time under the contract, if any, as
determined by the judgment of the Municipal Trial Court. In the absence of a contract,
he shall deposit with the Regional Trial Court the reasonable value of the use and
occupation of the premises for the preceding month or period at the rate determined by
the judgment of the lower court on or before the tenth day of each succeeding month or
period. The supersedeas bond shall be transmitted by the Municipal Trial Court, with
the papers, to the clerk of the Regional Trial Court to which the action is appealed.
All amounts so paid to the appellate court shall be deposited with said court or
authorized government depositary bank, and shall be held there until the final
disposition of the appeal, unless the court, by agreement of the interested parties, or in
the absence of reasonable grounds of opposition to a motion to withdraw, or for
justifiable reasons, shall decree otherwise. Should the defendant fail to make the
payments above prescribed from time to time during the pendency of the appeal, the
appellate court, upon motion of the plaintiff, and upon proof of such failure, shall order
the execution of the judgment appealed from with respect to the restoration of
possession, but such execution shall not be a bar to the appeal taking its course until the
final disposition thereof on the merits.
After the case is decided by the Regional Trial Court, any money paid to the court by the
defendant for purposes of the stay of execution shall be disposed of in accordance with
the provisions of the judgment of the Regional Trial Court. In any case wherein it
appears that the defendant has been deprived of the lawful possession of land or
building pending the appeal by virtue of the execution of the judgment of the Municipal
Trial Court, damages for such deprivation of possession and restoration of possession
and restoration of possession may be allowed the defendant in the judgment of the
Regional Trial Court disposing of the appeal. (8a)
DIATO.2013400036
SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS
Immediate execution is applicable ONLY when the judgment is in favor of the
plaintiff it is made necessary by the summary character of the proceeding
(exception to the general rule).
Immediate execution is done to prevent further damage to him should the
defendant continue to deprive him of the possession of the premises in litigation
how is immediate execution stayed?
Perfecting an appeal
filing a supersedeas bond approved by the MTC to pay for rents, damages
and costs accruing down to the time of the judgment appealed from
depositing with the RTC, during the pendency of the appeal
adjudged amount of rent due from time to time under the contract
in the absence of the contract > reasonable value of the use and
occupation of the property for the preceding month or period as
determined by the MTC
the legal provision on the deposit of the rental corresponding to the previous
month within the first 10 days of the succeeding month is MANDATORY
execution pending appeal for FAILURE to make timely deposits constitute
ONLY the restoration of possession BUT NOT the payment of back rents which
is guaranteed by the supersedeas bond
IF NON COMPLIANCE WITH SECTION 19 WAS BECAUSE because of fraud,
accident, mistake or excusable negligence or the occurrence of supervening
events which would bring material change in the situation of the parties, the
defendant may resort to relief under Rule 38 of the rules of court motion for
immediate execution of judgment should be denied
superseades bond covers
rentals
damages
costs as fixed in the appealed judgment
even if the issue is lack of jurisdiction requirements of section 19 should still
be complied with
Section 20. Preliminary mandatory injunction in case of appeal. Upon motion of
the plaintiff, within ten (10) days from the perfection of the appeal to the Regional Trial
Court, the latter may issue a writ of preliminary mandatory injunction to restore the
plaintiff in possession if the court is satisfied that the defendant's appeal is frivolous or
dilatory or that the appeal of the plaintiff is prima facie meritorious. (9a)
39
ATTY. CAPELLAN
[unlawful detainer]Art. 1674. In ejectment cases where an appeal is taken
the remedy granted in Article 539, second paragraph, shall also apply, if the
higher court is satisfied that the lessee's appeal is frivolous or dilatory, or that
the lessor's appeal is prima facie meritorious. The period of ten days referred to
in said article shall be counted from the time the appeal is perfected. (n)
Art. 539. Every possessor has a right to be respected in his possession; and
should he be disturbed therein he shall be protected in or restored to said
possession by the means established by the laws and the Rules of Court.
[forcible entry]A possessor deprived of his possession through forcible entry
may within ten days from the filing of the complaint present a motion to secure
from the competent court, in the action for forcible entry, a writ of preliminary
mandatory injunction to restore him in his possession. The court shall decide
the motion within thirty (30) days from the filing thereof. (446a)
Section 21. Immediate execution on appeal to Court of Appeals or Supreme Court.
The judgment of the Regional Trial Court against the defendant shall be immediately
executory, without prejudice to a further appeal that may be taken therefrom. (10a)
Prior notice of judgment or order should be served on the losing party and proof
of such service accompanies the motion for execution of judgment is required for
immediate execution of the judgment of the RTC
RULE 71: Contempt
Section 1. Direct contempt punished summarily. A person guilty of misbehavior in
the presence of or so near a court as to obstruct or interrupt the proceedings before the
same, including disrespect toward the court, offensive personalities toward others, or
refusal to be sworn or to answer as a witness, or to subscribe an affidavit or deposition
when lawfully required to do so, may be summarily adjudged in contempt by such court
and punished by a fine not exceeding two thousand pesos or imprisonment not
exceeding ten (10) days, or both, if it be a Regional Trial Court or a court of equivalent or
higher rank, or by a fine not exceeding two hundred pesos or imprisonment not
exceeding one (1) day, or both, if it be a lower court. (1a)
contempt of court is a DISOBEDIENCE tot he court by acting in opposition to its
authority, justice and dignity
power to punish for contempt is INHERENT in all courts, it is for the
preservation of order in judicial proceedings and to the enforcement of
DIATO.2013400036
SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS ATTY. CAPELLAN

judgments, orders, and mandates of the courts, and consequently, to the due such petition, provided such person files a bond fixed by the court which rendered the
administration of justice judgment and conditioned that he will abide by and perform the judgment should the
MANNER OF COMMISSION petition be decided against him. (2a)

DIRECT CONTEMPT INDIRECT CONTEMPT

Punished summarily those under Punished ONLY after WRITTEN CHARGE REMEDIES
Section 1 of this rule and DUE HEARING. Those enumerated Certiorari or prohibition with a stay of execution pending the resolution of the
under Section 3 of this rule petition by the filing of a bond fixed by the court conditioned upon the
performance of the judgment should the petition be decided against the
petitioner
AS TO NATURE
Section 3. Indirect contempt to be punished after charge and hearing. After a
CIVIL CONTEMPT CRIMINAL CONTEMPT
charge in writing has been filed, and an opportunity given to the respondent to
In failing to do something ordered to be Conduct that is directed against the comment thereon within such period as may be fixed by the court and to be heard by
done by a court or a judge in a civil case for authority and dignity of the court or of a himself or counsel, a person guilty of any of the following acts may be punished for
the benefit of the opposing party therein judge acting judicially, as in unlawfully indirect contempt;
assailing or discrediting the authority and
dignity of the court or judge, or in doing a (a) Misbehavior of an officer of a court in the performance of his official duties
duly forbidden act. or in his official transactions;
(b) Disobedience of or resistance to a lawful writ, process, order, or judgment
State is the real prosecutor of a court, including the act of a person who, after being dispossessed or ejected
offense against the party in whose behalf Offense against organized society and an from any real property by the judgment or process of any court of competent
the violated order is made offense against public justice which raises jurisdiction, enters or attempts or induces another to enter into or upon such
an issue between the public and the real property, for the purpose of executing acts of ownership or possession, or
accused in any manner disturbs the possession given to the person adjudged to be
entitled thereto;
remedial in nature punitive
(c) Any abuse of or any unlawful interference with the processes or proceedings
intent is immaterial good faith or Intent is a necessary element in criminal of a court not constituting direct contempt under section 1 of this Rule;
absence of intent to violate court order is contempt, and no one can be punished for
not a defense criminal contempt unless the evidence (d) Any improper conduct tending, directly or indirectly, to impede, obstruct,
makes it clear that he intended to commit or degrade the administration of justice;
it (e) Assuming to be an attorney or an officer of a court, and acting as such
without authority;
Contempt proceedings are criminal in nature thus the proceedings are those (f) Failure to obey a subpoena duly served;
adopted in criminal prosecutions
(g) The rescue, or attempted rescue, of a person or property in the custody of
disrespectful language against a judge in another court is indirect contempt an officer by virtue of an order or process of a court held by him.
a litigant's request that a judge inhibit himself does NOT constitute direct But nothing in this section shall be so construed as to prevent the court from issuing
contempt process to bring the respondent into court, or from holding him in custody pending such
proceedings. (3a)
Section 2. Remedy therefrom. The person adjudged in direct contempt by any court
may not appeal therefrom, but may avail himself of the remedies of certiorari or
prohibition. The execution of the judgment shall be suspended pending resolution of In indirect contempt, the respondent is given an opportunity to file a comment

40 DIATO.2013400036
SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS
on the written charge and to be heard
a person cannot be held liable for contempt if the act which is forbidden or 2 modes of commencing a proceeding in indirect contempt
required to be done is NOT clearly and exactly defined
1. order or other formal charge by the court requiring the respondent to show
there is not contempt if the order of the court which was violated was not valid
or legal 2. a verified petition charging indirect contempt supporting particulars and
no contempt if there was a bona fide misunderstanding of the terms of the order
or of the procedural rules
a judgment no matter how erroneous it might be should be obeyed
refusal to vacate does not constitute contempt, it is the re-entry to the lot that
constitute contempt
publication pending suit well-established that newspaper publications tending
to impede, obstruct, embarrass or influence the courts in administering justice
pending suit constitute criminal contempt which is summarily punishable by the
courts
exception: mere criticism or comment on the correctness or wrongness,
soundness or unsoundness of the decision of the court in a pending case
made inf GOOD FAITH may be tolerated
post litigation publications fair criticism of the court , its proceedings and its
members is allowed.
Exception: tends to bring disrespect or to scandalize the court. OR where
there is clear and present danger that the administration of justice would be
impeded
filing of multiple petitions for review on certiorari of the same decision
contempt
Section 4. How proceedings commenced. Proceedings for indirect contempt may be
initiated motu propio by the court against which the contempt was committed by an
order or any other formal charge requiring the respondent to show cause why he should
not be punished for contempt.
In all other cases, charges for indirect contempt shall be commenced by a verified
petition with supporting particulars and certified true copies of documents or papers
involved therein, and upon full compliance with the requirements for filing initiatory
pleadings for civil actions in the court concerned. If the contempt charges arose out of or
are related to a principal action pending in the court, the petition for contempt shall
allege that fact but said petition shall be docketed, heard and decided separately, unless
the court in its discretion orders the consolidation of the contempt charge and the
principal action for joint hearing and decision. (n)
41
ATTY. CAPELLAN
cause why he should not be punished for contempt (indirect contempt)
certified true copies of the necessary documents and papers (act was committed
not against a court nor a judicial officer)
Section 5. Where charge to be filed. Where the charge for indirect contempt has
been committed against a Regional Trial Court or a court of equivalent or higher rank,
or against an officer appointed by it, the charge may be filed with such court. Where
such contempt has been committed against a lower court, the charge may be filed with
the Regional Trial Court of the place in which the lower court is sitting; but the
proceedings may also be instituted in such lower court subject to appeal to the Regional
Trial Court of such place in the same manner as provided in section 11 of this Rule. (4a;
Bar Matter No. 803, 21 July 1998)
Section 6. Hearing; release on bail. If the hearing is not ordered to be had
forthwith, the respondent may be released from custody upon filing a bond, in an
amount fixed by the court, for his appearance at the hearing of the charge. On the day
set therefor, the court shall proceed to investigate the charge and consider such
comment, testimony or defense as the respondent may make or offer. (5a)
Court may motu propio institute contempt proceedings
no formal information by the prosecuting officer is necessary to begin
proceedings
Section 7. Punishment for indirect contempt. If the respondent is adjudged guilty of
indirect contempt committed against a Regional Trial Court or a court of equivalent or
higher rank, he may be punished by a fine not exceeding thirty thousand pesos or
imprisonment not exceeding six (6) months, or both. If he is adjudged guilty of
contempt committed against a lower court, he may be punished by a fine not exceeding
five thousand pesos or imprisonment not exceeding one (1) month, or both. If the
contempt consists in the violation of a writ of injunction, temporary restraining order
or status quo order, he may also be ordered to make complete restitution to the party
injured by such violation of the property involved or such amount as may be alleged and
proved.
The writ of execution, as in ordinary civil actions, shall issue for the enforcement of a
judgment imposing a fine unless the court otherwise provides. (6a)
DIATO.2013400036
SPECIAL CIVIL ACTION & SPECIAL PROCEEDINGS ATTY. CAPELLAN

Section 8. Imprisonment until order obeyed. When the contempt consists in the
refusal or omission to do an act which is yet in the power of the respondent to perform,
he may be imprisoned by order of the court concerned until he performs it. (7a)

Section 9. Proceeding when party released on bail fails to answer. When a

respondent released on bail fails to appear on the day fixed for the hearing, the court
may issue another order of arrest or may order the bond for his appearance to be
forfeited and confiscated, or both; and, if the bond be proceeded against, the measure of
damages shall be the extent of the loss or injury sustained by the aggrieved party by
reason of the misconduct for which the contempt charge was prosecuted, with the costs
of the proceedings, and such recovery shall be for the benefit of the party injured. If
there is no aggrieved party, the bond shall be liable and disposed of as in criminal cases.
(8a)

Section 10. Court may release respondent. The court which issued the order
imprisoning a person for contempt may discharge him from imprisonment when it
appears that public interest will not be prejudiced by his release. (9a)

Section 11. Review of judgment or final order; bond for stay. The judgment or final
order of a court in a case of indirect contempt may be appealed to the proper court as in
criminal cases. But execution of the judgment or final order shall not be suspended until
a bond is filed by the person adjudged in contempt, in an amount fixed by the court
from which the appeal is taken, conditioned that if the appeal be decided against him he
will abide by and perform the judgment or final order. (10a)

Judgment of acuittal in a case of contempt is not appealable

if dismissal is a result of a motion to dismiss on a jurisdictional ground, the
acquittal from the contempt charge is appealable

Section 12. 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. (n)

42 DIATO.2013400036