PROVISIONAL REMEDIES (Rules 57-61)

I. Rule 57: Preliminary Attachment

1. Grounds
(a) In an action for the recovery of a specified amount of money or damages, other
than moral and exemplary, on a cause of action arising from law, contract, quasi-
contract, delict or quasidelict against a party who is about to depart from the
Philippines with intent to defraud his creditors;
(b) In an action for money or property embezzled or fraudulently misapplied or
converted to his own use by a public officer, or an officer of a corporation, or an
attorney, factor, broker, agent, or clerk, in the course of his employment as such, or
by any other person in a fiduciary capacity, or for a willful violation of duty;
(c) In an action to recover the possession of property unjustly or fraudulently taken,
detained or converted, when the property, or any part thereof, has been concealed,
removed, or disposed of to prevent its being found or taken by the applicant or an
authorized person;
(d) In an action against a party who has been guilty of a fraud in contracting the
debt or incurring the obligation upon which the action is brought, or in the
performance thereof;
(e) In an action against a party who has removed or disposed of his property, or is
about to do so, with intent to defraud his creditors; or
(f) In an action against a party who does not reside and is not found in the
Philippines, or on whom summons may be served by publication.
2. Requirements
Requisites Regardless of whether the order was granted through motion or ex
parte, the following are the requisites for the issuance of an order of preliminary
attachment, to wit:
a. The applicant, or some other who personally knows the facts, must file an
affidavit.
b. Applicant must post a bond executed to the adverse party in the amount fixed by
the court in its order granting the issuance of the writ. [Secs. 3-4, Rule 57
3. Manner of Attaching
Section 5. Manner of attaching property. – The sheriff enforcing the writ shall without
delay and with all reasonable diligence attach, to await judgment and execution in the
action, only so much of the property in the Philippines of the party against whom the
writ is issued, not exempt from execution, as may be sufficient to satisfy the
applicant’s demand, unless the former makes a deposit with the court from which the
writ is issued, or gives a counter-bond executed to the applicant, in an amount equal
to the bond fixed by the court in the order of attachment or to the value of the
property to be attached, exclusive of costs. No levy on attachment pursuant to the writ
issued under section 2 hereof shall be enforced unless it is preceded, or
contemporaneously accompanied, by service of summons, together with a copy of the
complaint, the application for attachment, the applicant’s affidavit and bond, and the
order and writ of attachment, on the defendant within the Philippines. The
requirement of prior or contemporaneous service of summons shall not apply where
the summons could not be served personally or by substituted service despite diligent
efforts, or the defendant is a resident of the Philippines temporarily absent therefrom,
or the defendant is a non-resident of the Philippines, or the action is one in rem or
quasi in rem.

Section 7. Attachment of real and personal property; recording thereof. – Real and
personal property shall be attached by the sheriff executing the writ in the following
manner:
(a) Real property, or growing crops thereon, or any interest therein, standing upon the
record of the registry of deeds of the province in the name of the party against whom
attachment is issued, or not appearing at all upon such records, or belonging to the
party against whom attachment is issued and held by any other person, or standing
on the records of the registry of deeds in the name of any other person, by filing with
the registry of deeds a copy of the order, together with a description of the property
attached, and a notice that it is attached, or that such real property and any interest
therein held by or standing in the name of such other person are attached, and by
leaving a copy of such order, description, and notice with the occupant of the property,
if any, or with such other person or his agent if found within the province. Where the
property has been brought under the operation of either the Land Registration Act or
the Property Registration Decree, the notice shall contain a reference to the number of
the certificate of title, the volume and page in the registration book where the
certificate is registered, and the registered owner or owners thereof. The registrar of
deeds must index attachments filed under this section in the names of the applicant,
the adverse party, or the person by whom the property is held or in whose name it
stands in the records. If the attachment is not claimed on the entire area of the land
covered Rule 57 by the certificate of title, a description sufficiently accurate for the
identification of the land or interest to be affected shall be included in the registration
of such attachment;
(b) Personal property capable of manual delivery, by taking and safely keeping it in his
custody, after issuing the corresponding receipt therefor;
(c) Stocks or shares, or an interest in stocks or shares, of any corporation or company,
by leaving with the president or managing agent thereof, a copy of the writ, and a
notice stating that the stock or interest of the party against whom the attachment is
issued is attached in pursuance of such writ;
(d) Debts and credits, including bank deposits, financial interest, royalties,
commissions and other personal property not capable of manual delivery, by leaving
with the person owing such debts, or having in his possession or under his control,
such credits or other personal property, or with his agent, a copy of the writ, and
notice that the debts owing by him to the party against whom attachment is issued,
and the credits and other personal property in his possession, or under his control,
belonging to said party, are attached in pursuance of such writ;
(e) The interest of the party against whom attachment is issued in property belonging
to the estate of the decedent, whether as heir, legatee, or devisee, by serving the
executor or administrator or other personal representative of the decedent with a copy
of the writ and notice that said interest is attached. A copy of said writ of attachment
and of said notice shall also be filed in the office of the clerk of the court in which said
estate is being settled and served upon the heir, legatee or devisee concerned. If the
property sought to be attached is in custodia legis, a copy of the writ of attachment
shall be filed with the proper court or quasi-judicial agency, and notice of the
attachment served upon the custodian of such property
4. Discharge of Attachment
Discharge of attachment and Counter-bond After a writ of attachment has been
enforced, the party whose property has been attached, or the person appearing on his
behalf, may move for the discharge of the attachment wholly or in part on the security
given. [Sec. 12, Rule 57]
Ways of discharging attachment
a. Counter-bond [Sec. 12, Rule 57]
b. Motion for discharge [Sec. 13, Rule 57]
Grounds for discharge a. Debtor has posted a counter-bond or has made the requisite
cash deposit. [Sec. 12, Rule 57] • The mere posting of a counter-bond does not
automatically discharge the writ of attachment. It is only after due notice and hearing
and after the judge orders the discharge of the attachment that the same is properly
discharged. [2 Riano 42, 2016 Bantam Ed.] b. Attachment was improperly or
irregularly issued [Sec. 13, Rule 57] 1. As where there was no ground for attachment,
or 2. The affidavit and/or bond filed are defective or insufficient. c. Judgment is
rendered against attaching creditor. [Sec. 19, Rule 57] d. Attachment is excessive; but
the discharge shall be limited to the excess. [Sec. 13, Rule 57] e. Property attached is
exempt from execution. [1 Regalado 709, 2010 Ed.]
5. Third Party Claim
A third person who has a claim to the property attached may avail of the following
remedies:
a. File terceria or third-party claim 1. By making an affidavit of his title thereto, or
right to the possession thereof, stating the grounds of such right or title, and 2.
Serving such affidavit upon the sheriff while the latter has possession of the attached
property, and a copy thereof upon the attaching party. [Sec. 14, Rule 57]
b. File an independent action to recover property. [Imani v. Metropolitan Bank & Trust
Company, G.R. No.187023 (2010)]; or
c. File motion for intervention (available only before judgment is rendered) [Sec. 1,
Rule 19] Note: The last method was allowed in the case of Gopiao v. Metropolitan Bank
& Trust Co. [G.R. No. 188931 (2014)]
6. Claim for Damages
Claim for damages on account of improper, irregular, or excessive attachment
a. When to be filed 1. Before trial, or 2. Before appeal is perfected, or 3. Before the
judgment becomes executory
b. Requirements for damages to be awarded 1. Due notice to the attaching party and
his surety or sureties, 2. Setting forth the facts showing the right of the party to
damages and the amount thereof. Note: Damages may be awarded only after the
proper hearing, and shall be included in the judgment on the main case. [Sec. 20,
Rule 57]
Mangila v. Court of Appeals, G.R. No. 125027, August 12, 2002 Chuidian v.
Sandiganbayan, G.R. No. 139941, January 19, 2001 Torres v. Satsatin, G.R. No.
166759, November 25, 2009 Wee v. Tankiansee, G.R. No. 171124, February 13, 2008
Luzon Dev. Bank, et al. v. Erlinda Krishman, G.R. No. 203530, April 13, 2015

II. Rule 58: Preliminary Injunction

1. Definition, Classes
A preliminary injunction is an equitable remedy, and one who comes to claim for
equity must do so with clean hands. It is to be resorted to by a litigant to prevent or
preserve a right where there is a pressing necessity to avoid injurious consequences
which cannot be remedied under any standard of compensation. [Sps. Nisce v.
Equitable, G.R. No. 170038 (2012)]
Preliminary Injunction Two Kinds:
1. Preliminary Prohibitory Injunction - commands one to refrain from performing a
particular act or acts.
2. Preliminary Mandatory Injunction - commands the performance of some positive act
to correct a wrong made in the past. [Dela Rosa v. Heirs of Valdez, 654 SCRA 467
(2015)] In both cases, such orders are granted at any stage of an action prior to the
judgement or final order of the court. [Sec. 1, Rule 58]
2. Grounds; TRO
Temporary Restraining Order (TRO) An order issued to preserve the status quo until
the hearing of the application for a writ of preliminary injunction because the
injunction cannot be issued ex parte. [Bacolod Water v. Labayen, 446 SCRA 110
(2004)] By its nature, it could be considered as a “provisional remedy within a
provisional remedy” because it is issued to preserve the status quo for a limited period
until the court decides to issue a writ of preliminary injunction. [2 Riano 67, 2016
Bantam Ed.]

Status Quo Ante Order (SQAO)

Unlike a TRO or a preliminary injunction, a SQAO is more in the nature of a cease and
desist order, since it neither directs the undoing or doing of acts as in the case of
prohibitory or mandatory injunctive relief. A SQAO seeks to only maintain the last,
actual, peaceable, and uncontested state of things which immediately preceded the
controversy. [Oca v. Custodio, G.R. No. 174996 (2014)]
Section 3. Grounds for issuance of preliminary injunction. – A preliminary injunction
may be granted when it is established:
(a) That the applicant is entitled to the relief demanded, and the whole or part of such
relief consists in restraining the commission or continuance of the act or acts
complained of, or in requiring the performance of an act or acts, either for a limited
period or perpetually;
(b) That the commission, continuance or non-performance of the act or acts
complained of during the litigation would probably work injustice to the applicant; or
(c) That a party, court, agency or a person is doing, threatening, or is attempting to do,
or is procuring or suffering to be done, some act or acts probably in violation of the
rights of the applicant respecting the subject of the action or proceeding, and tending
to render the judgment ineffectual.
3. Requirements
Section 4. Verified application and bond for preliminary injunction or temporary
restraining order. – A preliminary injunction or temporary restraining order may be
granted only when:
(a) The application in the action or proceeding is verified, and shows facts entitling the
applicant to the relief demanded; and
(b) Unless exempted by the court, the applicant files with the court where the action or
proceeding is pending, a bond executed to the party or person enjoined, in an amount
to be fixed by the court, to the effect that the applicant will pay to such party or
person all damages which he may sustain by reason of the injunction or temporary
restraining order if the court should finally decide that the applicant was not entitled
thereto. Upon approval of the requisite bond, a writ of preliminary injunction shall be
issued. (4a)
(c) When an application for a writ of preliminary injunction or a temporary restraining
order is included in a complaint or any initiatory pleading, the case, if filed in a
multiple-sala court, shall be raffled only after notice to and in the presence of the
adverse party or the person to be enjoined. In any event, such notice shall be
preceded, or contemporaneously accompanied, by service of summons, together with a
copy of the complaint or initiatory pleading and the applicant’s affidavit and bond,
upon the adverse party in the Philippines. However, where the summons could not be
served personally or by substituted service despite diligent efforts, or the adverse party
is a resident of the Philippines temporarily absent therefrom or is a nonresident
thereof, the requirement of prior or contemporaneous service of summons shall not
apply.
(d) The application for a temporary restraining order shall thereafter be acted upon
only after all parties are heard in a summary hearing which shall be conducted within
twenty-four (24) hours after the sheriff’s return of service and/or the records are
received by the branch selected by raffle and to which the records shall be transmitted
immediately.
4. Damages
Section 8. Judgment to include damages against party and sureties. – At the trial, the
amount of damages to be awarded to either party, upon the bond of the adverse party,
shall be claimed, ascertained, and awarded under the same procedure prescribed in
section 20 of Rule 57. (9a)
Idolor v. Court of Appeals, G.R. No. 141853, February 7, 2001 Gustilo v. Real, AM
MTJ-00-1250, 28 February 2001 Lagrosas v. Bristol-Myers Squibb, G.R. No. 170684,
12 September 2008 Jenosa v. Delariarte, G.R. No. 172138, 8 September 2010 Solid
Builders v. China Banking, GR 179665, 3 April 2013 Sps. Plaza v. Lustiva, GR
172909, 5 March 2014 Searth Commodities Corp. v. Court of Appeals, G.R. No.
64220, March 31,1992

III. Rule 59: Receivership

1. When writ may issue
Receiver A person appointed by the court on behalf of all the parties to the action for
the purpose of preserving and conserving the property in litigation and preventing its
possible destruction or dissipation if it were left in the possession of any of the parties.
[Normandy v. Duque, G.R. No. L-25407 (1969)]
(a) When it appears from the verified application, and such other proof as the court
may require, that the party applying for the appointment of a receiver has an interest
in the property or fund which is the subject of the action or proceeding, and that such
property or fund is in danger of being lost, removed, or materially injured unless a
receiver be appointed to administer and preserve it;
(b) When it appears in an action by the mortgagee for the foreclosure of a mortgage
that the property is in danger of being wasted or dissipated or materially injured, and
that its value is probably insufficient to discharge the mortgage debt, or that the
parties have so stipulated in the contract of mortgage;
(c) After judgment, to preserve the property during the pendency of an appeal, or to
dispose of it according to the judgment, or to aid execution when the execution has
been returned unsatisfied or the judgment obligor refuses to apply his property in
satisfaction of the judgment, or otherwise to carry the judgment into effect;
(d) Whenever in other cases it appears that the appointment of a receiver is the most
convenient and feasible means of preserving, administering, or disposing of the
property in litigation.
2. Requirements
Requisites for appointment of a receiver
a. Verified application filed by the party requesting for the appointment of the receiver
[Sec. 1, Rule 59] b. The grounds stated in Sec. 1, Rule 59 enumerated in Part D.1 of
this (Provisional Remedies) reviewer. c. Application must be with notice and must be
set for hearing;
d. Before appointing a receiver, the court shall require the applicant to post a bond
executed to the party against whom the application is presented, in an amount to be
fixed by the court. [Sec. 2, Rule 59] e. Before entering upon his duties, the receiver
must be sworn to perform his duties faithfully and shall file a bond, executed to such
person and in such sum as the court may direct [Sec. 4, Rule 59]
3. Power of Receiver
Powers of a receiver
Subject to the control of the court in which the action or proceeding is pending, a
receiver shall have the power to
a. Bring and defend, in such capacity, actions in his own name
b. Take and keep possession of the property in controversy
c. Receive rents
d. Collect debts due to himself as receiver or to the fund, property, estate, person, or
corporation of which he is the receiver
e. Compound for and compromise the same
f. Make transfers
g. Pay outstanding debts
h. Divide the money and other property that shall remain among the persons legally
entitled to receive the same
i. Generally to do such acts respecting the property as the court may authorize j.
Invest funds in his hands, only by order of the court upon the written consent of all
the parties [Sec. 6, Rule 59]
4. Termination and compensation
Ground: The necessity for a receiver no longer exists. [Sec. 8, Rule 59]
Procedure
1. The court shall determine that the necessity for a receiver no longer exists a. Motu
proprio or b. On motion of either party
2. Due notice should be given to all interested parties
3. Hearing shall be conducted
4. After due notice and hearing, the court shall a. Settle the accounts of the receiver b.
Direct the delivery of the funds and other property in his possession to the person
adjudged to be entitled to receive them, and c. Order the discharge of the receiver from
further duty as such d. Allow the receiver such reasonable compensation as the
circumstances of the case warrant, to be taxed as costs against the defeated party, or
apportioned, as justice requires. [Sec. 8, Rule 59]
Sps. Larrobis v. Philippine Veterans Bank, GR 135706, 1 October 2004 Koruga v.
Arcenas, G.R. No. 168332 & G.R. No. 169053 June 19, 2009 Chavez v. Court of
Appeals, G.R. No. 174356, January 20, 2010

IV. Rule 60: Replevin

Replevin is the provisional remedy seeking for the possession of the property prior to
the determination of the main action for replevin. [BA Finance Corp. v. CA, G.R. No.
102998 (1996)]
1. When writ may issue
A party praying for the recovery of possession of personal property may, at the
commencement of the action or at any time before answer, apply for an order for the
delivery of such property to him. [Sec. 1, Rule 60
2. Requirements
a. The applicant must show by his own affidavit or that of some other person who
personally knows the facts the items stated in Part F.3 (Affidavit and bond; redelivery
bond)
b. The applicant must also give a bond, called a replevin bond. [Sec. 2, Rule 60] Upon
the filing of such affidavit and approval of the bond, the court shall issue an order and
the corresponding writ of replevin describing the personal property alleged to be
wrongfully detained and requiring the sheriff forthwith to take such property into his
custody [Sec. 3, Rule 60]
3. Third Party Claim
If the property taken is claimed by any person other than the party against whom the
writ of replevin had been issued or his agent, the sheriff shall not be bound to keep
the property under replevin or deliver it to the applicant if:
1. The third party makes an affidavit of his title or right to the possession
2. Stating the grounds therefor, and
3. Serves such affidavit upon the sheriff while he has possession of the property and a
copy thereof upon the applicant.
Unless the applicant or his agent, on demand of said sheriff, shall file a bond approved
by the court to indemnify the third-party claimant in a sum not less than the value of
the property under replevin as provided in Sec. 2, Rule 60. • No claim for damages for
the taking or keeping of the property may be enforced against the bond unless the
action therefor is filed within 120 days from the date of the filing of the bond. Note: In
case of disagreement as to such value, the court shall determine the same. [Sec. 7,
Rule 60
4. Judgment and Damages
Judgment After trial of the issues, the court shall determine who has the right of
possession to and the value of the property and shall render judgment for the delivery
of:
a. The property itself to the party entitled to the same, or
b. Its value in case delivery cannot be made, and
c. For such damages as either party may prove, with costs. [Sec 9, Rule 60]
Recovering damages on an applicant’s bond Requirements
a. The defendant claimant has secured a favorable judgment the main action, meaning
that the plaintiff has no cause of action and was not entitled to the replevin;
b. The application for damages, showing claimant’s right thereto and the amount
thereof, be filed in the same action before trial or before appeal is perfected or before
the judgment becomes executory;
c. Due notice be given to the other party and his surety or sureties, notice to the
principal not being sufficient;
d. A proper hearing and the award for damages should be included in the final
judgment.
Orosa v. Court of Appeals, G.R. No. 111080, April 5, 2000 Smart Communications v.
Astorga, G.R. No. 148132, G.R. No. 151079, G.R. No. 15137, January 28, 2008 Hao v.
Andres, A.M. No. P-07-2384, June 18, 2008 Navarro v. Escobido, G.R. No. 153788
November 27, 2009 Sps. Agner v. BPI Family Savings, G.R. No. 182963, June 3, 2013