What is the Law?

by a litigant to preserve and protect certain rights and

interests therein pending rendition, and for purposes of the
ultimate effects, of a final judgment in the case.
It is a rule of human conduct, just and obligatory They are provisional because they constitute temporary
promulgated by legitimate authority for all observance. measures availed of during the pendency of the action, and
they are ancillary because they are mere incidents in and
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are dependent upon the result of the main action.20 The
Section 1. Grounds upon which attachment may subject orders on the matter of support pendente lite are but
issue. an incident to the main action for declaration of nullity of
marriage.
At the commencement of the action or at any time
Discussion: A provisional remedy therefore NOT a cause
before entry of judgment, a plaintiff or any proper
of action. But an interim or an adjunct suit.
party may have the property of the adverse party
attached as security for the satisfaction of any For example, in a case of rape, the victim was impregnated
judgment that may be recovered in the following
by the accused. Can the victim ask for support for the baby
cases:
while the case is pending? YES. Through support pendente
(a) In an action for the recovery of a specified lite under Rule 61.
amount of money or damages, other than moral and
In an action for collection of debt, the petitioner may ask
exemplary, on a cause of action arising from law,
for a preliminary writ of attachment the property of the
contract, quasi-contract, delict or quasi-delict against
a party who is about to depart from the Philippines defendant would in the meantime while the case is pending
which intent to defraud his creditors; be placed in custodia legis to ensure the satisfaction of any
favorable judgments.
(b) In an action for money or property embezzled or Without the main action, a provisional remedy cannot exist.
fraudulently misapplied or converted to his own use By way of effect, if the main action is dismissed so is the
by a public officer, or an officer of a corporation, or provisional remedy.
an attorney, factor, broker agent, or clerk, in the
course of his employment as such, or by other person Can you sue in a court and solely ask for a preliminary
in a fiduciary capacity, or for a willful violation of attachment?
duty;
No, because the general rule is that a provisional remedy is
(c) In an action to recover the possession of property merely an interim. It is only ancillary to the main action.
unjustly or fraudulently taken, detained or By way of effect if the main action is dismissed so will the
converted, when the property, or any part thereof, provisional remedy.
has been concealed, removed, or disposed of to
prevent its being found or taken by the applicant or You file an action for collection against the defendant with
an authorized person; prayer for preliminary attachment and then the court during
trial realizes that is has no jurisdiction over the collection
(d) In an action against a party who has been guilty on the ground that it is under the jurisdiction of the MTC.
of a fraud in contracting the debt or incurring the Can you insist on the remedy of attachment? No.
obligation upon which the action is brought, or in the
performance thereof;
What if the court already issued the writ of attachment and
(e) In an action against a party who has removed or the property of the defendant is already under custodia
disposed of his property, or is about to do so, with legis, but the main action should be dismissed for lack
intent to defraud his creditors; or
jurisdiction. The attachment will then be dismissed because
there is no more main action to anchor upon.
(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
According to Riano, provisional remedies are resorted to by
the litigants for any or combination of any of the following
What are PROVISIONAL REMEDIES? (Calderon vs reasons :
Roxas)
1. To preserve or protect the rights or interests
Provisional remedies are writs and processes available while the main action is pending such as a writ of
during the pendency of the action which may be resorted to preliminary action.

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 2. To secure the judgment General rule: the court that has jurisdiction over the main
3. To preserve the status quo such as in a action has jurisdiction over the provisional remedy applied
temporary restraining order or a status quo order. for.
4. Preserve the subject matter of the action such
as in receivership. Exception: It is not automatic if for example you are the
court that has jurisdiction to issue the provisional remedy
Nature of provisional remedies: if:
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Merely temporary measures to avail of during the pendency 1. The main action is an action for support. And the
of the action. provisional remedy of support pendente lite is
prayed for. It may not be granted by the MTC
It is not a permanent adjudication of the rights of the because the main action for support is one which
parties. Because it does not mean when such writ is issued is within the jurisdiction of the Family Court.
you are automatically entitled to win in the case. 2. In criminal actions, as long as the civil aspect is
tried together with it, the RTC or MTC may issue
It is ancillary meaning provisional remedies are merely
the support pendente lite.
incidents and are dependent upon the result of the main
action.
Dili pasabot na ang provisional remedy na imong
Does the court, in determining whether to grant or deny the gipangayo which is support pendente lite, does
prayer for the issuance of a provisional remedy, does it rely not mean that your main action should also be
on evidence? YES. one for support.

However, the evidence is merely based upon initial and Support can be prosecuted as a main action under
incomplete evidence. The decision of the court whether to the Family Code also as a provisional remedy
grant or deny the provisional remedy paid for by the party under Rule 61 of the ROC.
is not reached by way of a full blown trial.
Principle to remember: The grant of provisional remedies is
The prayer for a provisional remedy can be heard ahead not exclusive province of the Supreme Court. Even inferior
than the hearings in the main action. courts (MTC) can grant provisional remedies.
Ex. Support pendente lite. Even interdictal actions (actions for ejectment; forcible
entry and unlawful detainer) can also be granted by inferior
The grant or denial of a prayer for a provisional relief may
courts.
be made ex-parte without hearing the side of the defendant
or on the ground of exigency or emergency. The MTC is given the power to grant preliminary
injunctions in accordance with the provisions under Rule
1. Writ of preliminary attachment.
58 to prevent the defendant from further acts of
dispossession against the plaintiff. A possessor deprived of
Can be issued without hearing the side of the
his possession may also present a motion before the MTC
defendant its just that when the writ is
for the issuance of a writ of preliminary mandatory
implemented the defendant is already summoned.
injunction to restore of its possession.

Which court has jurisdiction over the grant of provisional

2 types of Injunctions:
remedies?
1. Preliminary prohibitory injunction – kung
The court which has jurisdiction over the main action also
unsa mana imong gina-buhat, UNDANGI.
has jurisdiction over provisional remedy.
2. Preliminary mandatory injunction –
If you filed the case before the RTC branch 15 , can you commands the defendant to perform certain acts
file a provisional remedy before branch 18? No, because it or restore the plaintiff of his possession.
is not the same court. Kung asa gi-raffle ang kaso dapat
Note: This is rarely granted by the courts because it is a
didto mag file og provisional remedy.
provisional remedy. Not a final adjudication of the rights
All inferior courts can grant appropriate provisional and obligations of the parties. If you file an action for
remedies provided that the main action is within its forcible entry and the court grants a PMI, restoring the
jurisdiction. possession it tantamount to a pre-judgment of the case.

Ex. If a preliminary writ of attachment is granted the

aggrieved party is the defendant because his properties will
now be placed under custodia legis. There are certain things

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the defendant cannot do. So, if you are the defendant can Ex. Domestic violence cases, we can ask for
you question the court’s grant or denial of a provisional restraining order against the defendant.
remedy? Can you appeal? No, because the order granting or
denying the prayer for provisional remedy is merely Support Pendente Lite can be issued by the court
interlocutory in nature. Therefore, pursuant to Rules 41 of where the support of the child can be deducted
the Rules of Court, you cannot appeal. from the salary.
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The grant or denial of a provisional remedy can only be 2. Anti- VAWC
questioned by a petition for certiorari under Rule 65 if there 3. Anti-Terrorism Act of 2020
is GADALEJ before the appropriate court subject to the 4. Anti-Money Laundering Act
Doctrine of Hierarchy of Courts. Hence, the recourse shall
be made before the lower courts then to the higher courts. Ex. Examination of bank deposits, freeze orders.

5. Financial rehabilitation and insolvency Act

A.L Ang Network vs Mondejar
Ex. Includes a commencement order.
Verily, a petition for certiorari, unlike an appeal, is an
original action29 designed to correct only errors of 6. Rules on Precautionary Hold Departure Order.
jurisdiction and not of judgment. Owing to its nature, it
is therefore incumbent upon petitioner to establish that
jurisdictional errors tainted the MTCC Decision. The
RTC, in turn, could either grant or dismiss the petition Sec. 2. Issuance and contents of order.
based on an evaluation of whether or not the MTCC
gravely abused its discretion by capriciously,
whimsically, or arbitrarily disregarding evidence that is An order of attachment may be issued either ex
material to the controversy… Considering that small parte or upon motion with notice and hearing
claims cases are exclusively within the jurisdiction of by the court in which the action is pending, or
the Metropolitan Trial Courts, Municipal Trial Courts in by the Court of Appeals or the Supreme Court,
Cities, Municipal Trial Courts, and Municipal Circuit and must require the sheriff of the court to
Trial Courts,34 certiorari petitions assailing its attach so much of the property in the
dispositions should be filed before their corresponding Philippines of the party against whom it is
Regional Trial Courts. issued, not exempt from execution, as may be
sufficient to satisfy the applicant's demand,
unless such party makes deposit or gives a bond
Discussion: The judgments of the MTC acting as a small as hereinafter provided in an amount equal to
claims court cannot be appealed , because the law says that that fixed in the order, which may be the
judgments are final and unappealable it does not mean there amount sufficient to satisfy the applicant's
is no remedy. The remedy is to file a petition for certiorari demand or the value of the property to be
before the RTC. attached as stated by the applicant, exclusive of
costs. Several writs may be issued at the same
PROVISIONAL REMEDIES UNDER THE RULES OF time to the sheriffs of the courts of different
COURT: judicial regions.

1. Preliminary attachment (Rule 57) – property is

under Custodia Legis.
2. Preliminary Injunction (Rule 58) – certain actions
can be performed.
3. Receivership (Rule 59)
4. Replevin (Rule 60) – recover personal property.

Ex. Recovery of possession of personal property

with prayer for the provisional remedy of
replevin.
PROVISIONAL REMEDY BASED ON EQUITY
5. Support pendente lite (Rule 61)
The only remedy that is filed here is a provisional remedy
PROVISIONAL REMEDIES AVAILABLE IN OTHER
of deposit order which applied in the case of Reye vs Lim.
SPECIAL LAWS AND RULES

1. Family Courts Acts

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It is akin to a judicial deposit and sequestration which is
served for the purpose of maintain the status quo during the
pendency of the litigation to ensure the rights of the
parties .
when an
A judicial attachment or Page | 4

deposit or seizure of
sequestration property in
takes place litigation is
when an ordered.
attachment or A judicial
seizure of deposit or
property in sequestration
litigation is takes place
ordered. when an
A judicial attachment or
deposit or seizure of
sequestration
takes place
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 circumstances of a case because of the

property in inflexibility of its statutory or legal jurisdiction.

24 Equity is the principle by which substantial
justice may be attained in cases where the

litigation is prescribed or customary forms of ordinary law

are inadequate.
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ordered. Lorenzo Shipping vs Villarin

A provisional deposit is an extraordinary

A judicial deposit or sequestration takes place provisional remedy whereby money or other
when an attachment or seizure of property in property is placed in custodia legis to ensure
litigation is ordered. Movable as well as restitution to whichever party is declared
immovable property may be the object of entitled thereto after court proceedings. It is
sequestration. extraordinary because its basis is not found in
Rules 57 to 61 of the Rules of Court on
Provisional Remedies but rather, under Sections
5(g) and 6 of Rule 135 of the same
Although a provisional deposit order may be Rules pertaining to the inherent power of every
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akin to a judicial deposit but what is placed in court "[t]o amend and control its process and
custodia legis is not necessarily property in orders so as to make them conformable to law
litigation. and justice;" as well as to issue "all auxiliary
writs, processes and other means necessary" to
carry its jurisdiction into effect.

Reyes vs Lim
The basis for the provisional deposit order is the inherent
The instant case, however, is precisely one powers of the court.
where there is a hiatus in the law and in the 2 CATEGORIES OF PROVISIONAL DEPOSIT
Rules of Court. If left alone, the hiatus will ORDERS:
result in unjust enrichment to Reyes at the
expense of Lim. The hiatus may also imperil 1.
restitution, which is a precondition to the
rescission of the Contract to Sell that Reyes
himself seeks. This is not a case of equity
overruling a positive provision of law or judicial
rule for there is none that governs this particular
case. This is a case of silence or insufficiency of
the law and the Rules of Court. In this case,
Article 9 of the Civil Code expressly mandates
the courts to make a ruling despite the "silence,
obscurity or insufficiency of the laws." 21 This
calls for the application of equity, 22 which
"fills the open spaces in the law." 23

Thus, the trial court in the exercise of its equity

jurisdiction may validly order the deposit of the
P10 million down payment in court. The
purpose of the exercise of equity jurisdiction in
this case is to prevent unjust enrichment and to
ensure restitution. Equity jurisdiction aims to do
complete justice in cases where a court of law is
unable to adapt its judgments to the special

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