2012 Remedial Law Reviewer (Post Judgment Remedies)

Posted on March 16, 2012. Filed under: Bar Review Materials, Remedial Law | Tags: , , , |

   POST JUDGMENT REMEDIES (Rules 37-38, 40–47, 52-53)

 

(1)     Remedies before a judgment becomes final and executory

 

(a)     Motion for reconsideration (prohibited in a case that falls under summary procedure) (Rules 37, 52);

(b)     Motion for new trial (Rules 37, 53); and

(c)     Appeal (Rules 40, 41, 42, 43, 45)

 

(2)     Remedies after judgment becomes final and executory

 

(a)     Petition for relief from judgment;

(b)     Action to annul a judgment;

(c)     Certiorari; and

(d)     Collateral attack of a judgment.

 

Motion for New Trial or Reconsideration (Rule 37)

 

Grounds for a motion for new trial

 

(1)     Fraud (extrinsic), accident, mistake (of fact and not of law) or excusable negligence which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights;

(2)     Newly discovered evidence (Berry Rule), which he could not, with reasonable diligence, have discovered and produced at the trial, and which if presented would probably alter the result; and

(3)     Award of excessive damages, or insufficiency of the evidence to justify the decision, or that the decision is against the law (Sec. 1, Rule 37).

 

Grounds for a motion for reconsideration

 

(1)     The damages awarded are excessive;

(2)     The evidence is insufficient to justify the decision or final order;

(3)     The decision or final order is contrary to law (Sec. 1).

 

When to file

 

(1)     A motion for new trial should be filed within the period for taking an appeal. Hence, it must be filed before the finality of the judgment (Sec. 1). No motion for extension of time to file a motion for reconsideration shall be allowed. In Distilleria Limtuaco vs. CA, 143 SCRA 92, it was said that the period for filing a motion for new trial is within the period for taking an appeal.

(2)     The period for appeal is within 15 days after notice to the appellant of the judgment or final order appealed from. Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within 30 days from notice of the judgment or final order (Sec. 3, Rule 41). A record on appeal shall be required only in special proceedings and other cases of multiple or separate appeals(Sec. 3, Rule 40).

 

Denial of the motion; effect

 

(1)     If the motion is denied, the movants has a “fresh period” of fifteen days from receipt or notice of the order denying or dismissing the motion for reconsideration within which to file a notice of appeal.

(2)     When the motion for new trial is denied on the ground of fraud, accident, mistake of fact or law, or excusable negligence, the aggrieved party can no longer avail of the remedy of petition for relief from judgment (Francisco vs. Puno, 108 SCRA 427).

 

Grant of the motion; effect

 

(1)     If a new trial be granted in accordance with the provisions of the rules, the original judgment shall be vacated or set aside, and the action shall stand for trial de novo; but the recorded evidence taken upon the former trial so far as the same is material and competent to establish the issues, shall be used at the new trial without retaking the same (Sec. 6). The filing of the motion for new trial or reconsideration interrupts the period to appeal (Sec. 2, Rule 40; Sec. 3, Rule 41).

(2)     If the court grants the motion (e.g., it finds that excessive damages have been awarded or that the judgment or final order is contrary to the evidence or law), it may amend such judgment or final order accordingly (Sec. 3). The amended judgment is in the nature of a new judgment which supersedes the original judgment. It is not a mere supplemental decision which does not supplant the original but only serves to add something to it (Esquivel vs. Alegre, 172 SCRA 315). If the court finds that a motion affects the issues of the case as to only a part, or less than all of the matters in controversy, or only one, or less that all of the parties to it, the order may grant a reconsideration as to such issues if severable without interfering with the judgment or final order upon the rest (Sec. 7).

 

Remedy when motion is denied

 

(1)     The party aggrieved should appeal the judgment. This is so because a second motion for reconsideration is expressly prohibited under the Interim Rules (Sec. 5).

(2)     An order denying a motion for reconsideration or new trial is not appealable, the remedy being an appeal from the judgment or final order under Rule 38. The remedy from an order denying a motion for new trial is not to appeal from the order of denial. Again, the order is not appealable. The remedy is to appeal from the judgment or final order itself subject of the motion for new trial (Sec. 9, rule 37).

 

Fresh 15-day period rule

 

(1)     If the motion is denied, the movants has a fresh period of 15 days from receipt or notice of the order denying or dismissing the motion for reconsideration within which to file a notice to appeal. This new period becomes significant if either a motion for reconsideration or a motion for new trial has been filed but was denied or dismissed. This fresh period rule applies only to Rule 41 governing appeals from the RTC but also to Rule 40 governing appeals from MTC to RTC, Rule 42 on petitions for review from the RTC to the CA, Rule 43 on appeal from quasi-judicial agencies to the CA, and Rule 45 governing appeals by certiorari to the SC. Accordingly, this rule was adopted to standardize the appeal periods provided in the Rules to afford fair opportunity to review the case and, in the process, minimize errors of judgment. Obviously, the new 15 day period may be availed of only if either motion is filed; otherwise, the decision becomes final and executory after the lapse of the original appeal period provided in Rule 41 (Neypes vs. CA, GR 141524, Sept. 14, 2005). The Neypes ruling shall not be applied where no motion for new trial or motion for reconsideration has been filed in which case the 15-day period shall run from notice of the judgment.

(2)     The fresh period rule does not refer to the period within which to appeal from the order denying the motion for new trial because the order is not appealable under Sec. 9, Rule 37. The non-appealability of the order of denial is also confirmed by Sec. 1(a), Rule 41, which provides that no appeal may be taken from an order denying a motion for new trial or a motion for reconsideration.

 

 

Appeals in General

 

(1)     The right to appeal is not part of due process but a mere statutory privilege that has to be exercised only in the manner and in accordance with the provisions of law(Stolt-Nielsen vs. NLRC, GR 147623, Dec. 13, 2005). The general rule is that the remedy to obtain reversal or modification of judgment on the merits is appeal. This is true even if the error, or one of the errors, ascribed to the court rendering the judgment is its lack of jurisdiction over the subject matter, or the exercise of power in excess thereof, or grave abuse of discretion in the findings of facts or of law set out in the decision (Association of Integrated Security Force of Bislig-ALU vs. CA, GR 140150, Aug. 22, 2005). An appeal may be taken only from judgments or final orders that completely dispose of the case (Sec. 1, Rule 41). An interlocutory order is not appealable until after the rendition of the judgment on the merits.

(2)     Certain rules on appeal:

(a)     No trial de novo anymore. The appellate courts must decide the case on the basis of the record, except when the proceedings were not duly recorded as when there was absence of a qualified stenographer (Sec. 22[d], BO 129; Rule 21[d], Interim RulesI);

(b)     There can be no new parties;

(c)     There can be no change of theory (Naval vs. CA, 483 SCRA 102);

(d)     There can be no new matters (Ondap vs. Aubga, 88 SCRA 610);

(e)     There can be amendments of pleadings to conform to the evidence submitted before the trial court (Dayao vs. Shell, 97 SCRA 407);

(f)      The liability of solidarity defendant who did not appeal is not affected by appeal of solidarity debtor (Mun. of Orion vs. Concha, 50 Phil. 679);

(g)     Appeal by guarantor does not inure to the principal (Luzon Metal vs. Manila Underwriter, 29 SCRA 184);

(h)     In ejectment cases, the RTC cannot award to the appellant on his counterclaim more than the amount of damages beyond the jurisdiction of the MTC (Agustin vs. Bataclan, 135 SCRA 342);

(i)       The appellate court cannot dismiss the appealed case for failure to prosecute because the case must be decided on the basis of the record (Rule 21, Interim Rules).

 

Judgments and final orders subject to appeal

 

(1)     An appeal may be taken only from judgments or final orders that completely dispose of the case (Sec. 1, Rule 41). An interlocutory order is not appealable until after the rendition of the judgment on the merits.

 

Matters not appealable

 

(1)     No appeal may be taken from:

(a)     An order denying a motion for new trial or a motion for reconsideration;

(b)     An order denying a petition for relief or any similar motion seeking relief from judgment;

(c)     An interlocutory order;

(d)     An order disallowing or dismissing an appeal;

(e)     An order denying a motion to set aside a judgment by consent, confession or compromise on the ground of fraud, mistake or duress, or any other ground vitiating consent;

(f)      An order of execution;

(g)     A judgment or final order for or against one or more of several parties or in separate claims, counterclaims, cross-claims, and third-party complaints, while the main case is pending, unless the court allows an appeal therefrom; and

(h)     An order dismissing and action without prejudice (Sec. 1, Rule 41).

(2)     A question that was never raised in the courts below cannot be allowed to be raised for the first time on appeal without offending basic rules of fair play, justice and due process (Bank of Commerce vs. Serrano, 451 SCRA 484). For an appellate court to consider a legal question, it should have been raised in the court below (PNOC vs. CA, 457 SCRA 32). It would be unfair to the adverse party who would have no opportunity to present evidence in contra to the new theory, which it could have done had it been aware of it at the time of the hearing before the trial court. it is true that this rule admits of exceptions as in cases of lack of jurisdiction, where the lower court committed plain error, where there are jurisprudential developments affecting the issues, or when the issues raised present a matter of public policy (Baluyot vs. Poblete, GR 144435, Feb. 6, 2007).

(3)     The rule under (2) however is only the general rule because Sec. 8, Rule 51 precludes its absolute application allowing as it does certain errors which even if not assigned may be ruled upon by the appellate court. hence, the court may consider an error not raised on appeal provided the same falls within any of the following categories:

(a)     It is an error that affects the jurisdiction over the subject matter;

(b)     It is an error that affects the validity of the judgment appealed from;

(c)     It is an error which affects the proceedings;

(d)     It is an error closely related to or dependent on an assigned error and properly argued in the brief; or

(e)     It is a plain and clerical error.

 

Remedy against judgments and orders which are not appealable

 

(1)     In those instances where the judgment or final order is not appealable, the aggrieved party may file the appropriate special civil action under Rule 65.  Rule 65 refers to the special civil actions of certiorari, prohibition and mandamus. Practically, it would be the special civil action of certiorari that would be availed of under most circumstances. The most potent remedy against those judgments and orders from which appeal cannot be taken is to allege and prove that the same were issued without jurisdiction, with grave abuse of discretion or in excess of jurisdiction, all amounting to lack of jurisdiction.

 

Modes of appeal (Sec. 2, Rule 41)

 

(a)     Ordinary appeal. The appeal to the CA in cases decided by the RTC in the exercise of its original jurisdiction shall be taken by filing a notice of appeal with the court which rendered the judgment or final order appealed from and serving a copy thereof upon the adverse party. No record on appeal shall be required except in special proceedings and other cases of multiple or separate appeals where the law or the Rules so require. In such cases, the record on appeal shall be filed and served in like manner.

(b)     Petition for review. The appeal to the CA in cases decided by the RTC in the exercise of its appellate jurisdiction shall be by petition for review in accordance with Rule 42.

(c)     Petition for review on certiorari. In all cases where only questions of law are raised or involved, the appeal shall be to the SC by petition for review on certiorari in accordance with Rule 45.

 

Issues to be raised on appeal

 

(1)     Whether or not the appellant has filed a motion for new trial in the court below, he may include in his assignment or errors any question of law or fact that has been raised in the court below and which is within the issues framed by the parties (Sec. 15, Rule 44).

 

Period of appeal

 

(1)     Period of Ordinary Appeal under Rule 40. An appeal may be taken (from MTC to RTC) within 15 days after notice to the appellant of the judgment or final order appealed from. Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within 30 days after notice of the judgment or final order. The period of appeal shall be interrupted by a timely motion for new trial or reconsideration. No motion for extension of time to file a motion for new trial or reconsideration shall be allowed (Sec. 2).

(2)     Period of Ordinary Appeal under Rule 41). The appeal shall be taken within 15 days from notice of the judgment or final order appealed from. Where a record on appeal is required, the appellants shall file a notice of appeal and a record on appeal within 30 days from notice of the judgment or final order. However, on appeal inhabeas corpus cases shall be taken within 48 hours from notice of the judgment or final order appealed from (AM No. 01-1-03-SC, June 19, 2001). The period of appeal shall be interrupted by a timely motion for new trial or reconsideration. No motion for extension of time to file a motion for new trial or reconsideration shall be allowed(Sec. 3). If the record on appeal is not transmitted to the CA within 30 days after the perfection of appeal, either party may file a motion with the trial court, with notice to the other, for the transmittal of such record or record on appeal (Sec. 3, Rule 44).

(3)     Period of Petition for Review under Rule 42. The petition shall be filed and served within 15 days from notice of the decision sought to be reviewed or of the denial of petitioner’s motion for new trial or reconsideration filed in due time after judgment. The court may grant and additional period of 15 days only provided the extension is sought (a) upon proper motion, and (b) there is payment of the full amount of the docket and other lawful fees and the deposit for costs before the expiration of the reglementary period. No further extension shall be granted except for the most compelling reason and in no case to exceed 15 days (Sec. 1).

(4)     Period of Appeal by Petition for Review under Rule 43. The appeal shall be taken within 15 days from notice of the award, judgment, final order or resolution, or from the date of its last publication, if publication is required by law for its effectivity, or of the denial of petitioner’s motion for new trial or reconsideration duly filed in accordance with the governing law of the court or agency a quo. Only one (1) motion for reconsideration shall be allowed. Upon proper motion and the payment of the full amount of the docket fee before the expiration of the reglementary period, the CA may grant an additional period of 15 days only within which to file the petition for review. No further extension shall be granted except for the most compelling reason and in no case to exceed 15 days (Sec. 4).

(5)     Period of Appeal by Petition for Review on Certiorari under Rule 45. The appeal which shall be in the form of a verified petition shall be filed within 15 days from notice of the judgment, final order or resolution appealed from, or within 15 days from notice of the denial of the petitioner’s motion for new trail or motion for reconsideration filed in due time. The Supreme Court may, for justifiable reasons, grant an extension of 30 days only within which to file the petition provided, (a) there is a motion for extension of time duly filed and served, (b) there is full payment of the docket and other lawful fees and the deposit for costs, and (c) the motion is filed and served and the payment is made before the expiration of the reglementary period (Sec. 2).

 

MODE OF APPEAL

PERIOD OF APPEAL

Period of appeal if party files MFR or New Trial (Neypes Rule)
Ordinary Appeal (Rules 40, 41)
 

a)  Notice of Appeal (Rule 40)

Within 15 days from receipt of judgment or final order Within 15 days from receipt of order denying motion for reconsideration or new trial
 

 

b) Record on Appeal (Rule 41)

 

 

Within 30 days from receipt of judgment or final order

The 30-day to file the notice of appeal and record on appeal should reckoned from the receipt of the order denying the motion for new trial or motion for reconsideration (Zayco vs. Himlo, GR 170243, April 16, 2008)
Petition for Review (Rule 42) Within 15 days from receipt of judgment Within 15 days from receipt of the order denying motion for reconsideration or new trial
Petition for Review (Rule 43) Within 15 days from receipt of judgment or final order or of last publication Within 15 days from receipt of the order denying motion for reconsideration or new trial
Appeal by Certiorari (Rule 45) Within 15 days from receipt of judgment or final order Within 15 days from receipt of the order denying motion for reconsideration or new trial

 

 

Perfection of appeals

 

(1)     For Ordinary Appeals from MTC to the RTC (Rule 40) and from the RTC to the CA (Rule 41).

(a)     A party’s appeal by notice of appeal is deemed perfected as to him upon the filing of the notice of appeal in due time;

(b)     A party’s appeal by record on appeal is deemed perfected as to him with respect to the subject matter thereof upon the approval of the record on appeal filed in due time;

(c)     In appeals by notice of appeal, the court loses jurisdiction only over the subject matter thereof upon the approval of the records on appeal filed in due time and the expiration of the time to appeal of the other parties;

(d)     In either case, prior to the transmittal of the original record or the record on appeal, the court may issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal, approve compromises, permit appeals of indigent litigants, order execution pending appeal in accordance with Sec. 2, Rule 39, and allow withdrawal of the appeal (Sec. 9, Rule 41).

(2)     Perfection of Appeal by Petition for Review under Rule 42. (Sec.8)

(a)     Upon the timely filing of a petition for review and the payment of the corresponding docket and other lawful fees, the appeal is deemed perfected as to the petitioner. The RTC loses jurisdiction over the case upon the perfection of the appeals filed in due time and the expiration of the time to appeal of the other parties.

However, before the CA give due course to the petition, the RTC may issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal, approve compromises, permit appeals of indigent litigants, order execution pending appeal in accordance with Sec. 2, Rule 39, and allow withdrawal of the appeal.

(b)     Except in civil cases decided under Rules on Summary Procedure, the appeal shall stay the judgment or final order unless the CA, the law, or the Rules provide otherwise.

(c)     A party’s appeal by notice of appeal is deemed perfected as to him upon the filing thereof in due time, and a party’s appeal by record on appeal is deemed perfected as to him upon the approval thereof. In the first case, the court loses jurisdiction over the whole case upon the perfection of the appeals taken by the parties who have appealed and the expiration of the time to appeal of the other parties. In the second case, the court loses jurisdiction over the subject matter thereof upon the approval of all the records on appeal filed by the parties who have appealed and the expiration of the time to appeal of the other parties; and retains jurisdiction over the remaining subject matter not covered by the appeal.

 

Appeal from judgments or final orders of the MTC

 

(1)     An appeal from a judgment or final order of a MTC may be taken to the RTC exercising jurisdiction over the area to which the former pertains. The title of the case shall remain as it was in the court of origin, but the party appealing the case shall be further referred to as the appellant and the adverse party as the appellee (Sec. 1, Rule 40).

(2)     The appeal is taken by filing a notice of appeal with the court that rendered the judgment or final order appealed from. The notice of appeal shall indicate the parties to the appeal, the judgment or final order or part thereof appealed from, and state the material dates showing the timeliness of the appeal. A record on appeal shall be required only in special proceedings and in other cases of multiple or separate appeals(Sec. 3).

(3)     Procedure (Sec. 7):

(a)     Upon receipt of the complete record or the record on appeal, the clerk of court of the RTC shall notify the parties of such fact.

(b)      Within 15 days from such notice, the appellant shall submit a memorandum which shall briefly discuss the errors imputed to the lower court, a copy of which shall be furnished by him to the adverse party. Within 15 days from receipt of appellant’s memorandum, the appellee may file his memorandum. Failure of appellant to file a memorandum shall be a ground for dismissal of the appeal.

(c)     Once the filing of the memorandum of the appellee, or the expiration of the period to do so, the case shall be considered submitted for decision. The RTC shall decide the case on the basis of the record of the proceedings had in the court of origin and such memoranda as are filed.

 

Appeal from judgments or final orders of the RTC

 

(1)     Rule 41 applies to appeals from the judgment or final order of the RTC in the exercise of its original jurisdiction. This appeal is called an “ordinary appeal”. Rule 42 applies to an appeal from the judgment or final order of the RTC to the CA in cases decided by the RTC in the exercise of its appellate jurisdiction.

 

Appeal from judgments or final orders of the CA

 

(1)     Appeal by certiorari under Rule 45 shall be taken to the SC where the petitions shall raise only questions of law distinctly set forth. The general rule is that the SC shall not entertain questions of fact, except in the following cases:

(a)     The conclusion of the CA is grounded entirely on speculations, surmises and conjectures;

(b)     The inference made is manifestly mistaken, absurd or impossible;

(c)     There is grave abuse of discretion;

(d)     The judgment is based on misapprehension of facts;

(e)     The findings of facts are conflicting;

(f)      The CA in making its findings went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee;

(g)     The findings are contrary to those of the trial court;

(h)     The facts set forth in the petition as well as in the petitioner’s main and reply briefs are not disputed by the respondents;

(i)       The findings of fact of the CA are premised on the supposed absence of evidence and contradicted by the evidence on record; or

(j)       Those filed under Writs of amparo, habeas data, or kalikasan.

 

Appeal from judgments or final orders of the CTA

 

(1)     Under Sec. 11 of RA 9282, no civil proceeding involving matters arising under the NIRC, the TCC or the Local Government Code shall be maintained, except as herein provided, until and unless an appeal has been previously filed with the CTA and disposed of in accordance with the provisions of the Act.  A party adversely affected by a resolution of a Division of CTA on a motion for reconsideration or new trial, may file a petition for review with the CTA en banc.

(2)     Sec. 11 of RA 9282 further provides that a party adversely affected by a decision or ruling of the CTA en banc may file with the SC a verified petition for review on certiorari pursuant to Rule 45.

 

Review of final judgments or final orders of the COMELEC

 

(1)     A judgment, resolution or final order of the COMELEC may be brought by the aggrieved party to the SC on certiorari under Rule 45 by filing the petition within 30 days from notice (Sec. 3, Rule 64).

 

Review of final orders of the CSC

 

(1)     A judgment, final order or resolution of the Civil Service Commission may be taken to the CA under Rule 43. Note the difference between the mode of appeal from a judgment of the CSC and the mode of appeal from the judgments of other constitutional commissions.

 

Review of final orders of the COA

 

(1)     A judgment, resolution or final order of the Commission on Audit may be brought by the aggrieved party to the SC on certiorari under Rule 65 by filing the petition within 30 days from notice (Sec. 3, Rule 64).

 

Review of final orders of the Ombudsman

 

(1)     In administrative disciplinary cases, the ruling of the Office of the Ombudsman are appealable to the Court of Appeals. Sec. 27 of RA 6770 (Ombudsman Act of 1987) insofar as it allowed a direct appeal to the SC was declared unconstitutional in Fabian vs. Desierto because the statute, being one which increased the appellate jurisdiction of the SC was enacted without the advice and concurrence of the Court. Instead, appeals from decisions of the Ombudsman in administrative disciplinary actions should be brought to the CA under Rule 43 (Gonzales vs. Rosas, 423 SCRA 288).

(a)     The CA has jurisdiction over orders, directives and decisions of the Office of the Ombudsman in administrative cases only. If cannot, therefore, review the orders, directives or decisions of the OO in criminal or non-administrative cases (Golangco vs. Fung, GR 147640-762, Oct. 12, 2006).

(b)     Although as a consequence of Fabian appeals from the Ombudsman in administrative cases are now cognizable by the CA, nevertheless in cases in which it is alleged that the Ombudsman has acted with grave abuse of discretion amounting to lack or excess of jurisdiction amounting to lack or excess of jurisdiction, a special civil action of certiorari under Rule 65 may be filed with the SC to set aside the Ombudsman’s order or resolution (Nava vs. NBI, 455 SCRA 377).

(2)     In criminal cases, the ruling of the Ombudsman shall be elevated to the SC by way of Rule 65. The SC’s power to review over resolutions and orders of the Office of the Ombudsman is restricted on to determining whether grave abuse of discretion has been committed by it. The Court is not authorized to correct every error or mistake of the Office of the Ombudsman other than grave abuse of discretion (Villanueva vs. Ople, GR 165125, Nov. 18, 2005). The remedy is not a petition for review on certiorari under Rule 45.

 

Review of final orders of the NLRC

 

(1)     The remedy of a party aggrieved by the decision of the National Labor Relations Commission is to promptly move for the reconsideration of the decision and if denied to timely file a special civil action of certiorari under Rule 45 within 60 days from notice of the decision. In observance of the doctrine of hierarchy of courts, the petition for certiorari should be filed in the CA (St. Martin Funeral Homes vs. NLRC, GR 130866, Sept. 16, 1998).

 

 

Review of final orders of the quasi-judicial agencies

 

(1)     Appeals from judgments and final orders of quasi-judicial bodies/agencies are now required to be brought to the CA under the requirements and conditions set forth in Rule 43. This rule was adopted precisely to provide a uniform rule of appellate procedure from quasi-judicial bodies (Carpio vs. Sulu Resource Devt. Corp., 387 SCRA 128).

(2)     The appeal under Rule 43 may be taken to the CA whether the appeal involves a question of fact, a question of law, or mixed questions of fact and law. The appeal shall be taken by filing a verified petition for review with the CA. The appeal shall not stay the award, judgment, final order or resolution sought to be reviewed unless the CA shall direct otherwise upon such terms as it may deem just.

 

Reliefs from Judgments, Orders and Other Proceedings (Rule 38)

 

(1)     A petition for relief from judgment is an equitable remedy that is allowed only in exceptional cases when there is no other available or adequate remedy. When a party has another remedy available to him, which may be either a motion for new trial or appeal from an adverse decision of the trial court, and he was not prevented by fraud, accident, mistake or excusable negligence from filing such motion or taking such appeal, he cannot avail himself of this petition (Trust International Paper Corp. vs. Pelaez, GR 164871, Aug. 22, 2006).

(2)     Under Sec. 5, Rule 38, the court in which the petition is filed, may grant suchpreliminary injunction to preserve the rights of the parties upon the filing of a bond in favor of the adverse party. The bond is conditioned upon the payment to the adverse party of all damages and costs that may be awarded to such adverse party by reason of the issuance of the injunction (Sec. 5).

 

Grounds for availing of the remedy (petition for relief)

 

(1)     When a judgment or final order is entered, or any other proceeding is thereafter taken against a party in any court through (a) fraud, (b) accident, (c) mistake, or (c) excusable negligence, he may file a petition in such court and in the same case praying that the judgment, order or proceeding be set aside (Sec. 1, Rule 38).

(2)     When the petitioner has been prevented from taking an appeal by fraud, mistake, or excusable negligence (Sec. 2).

 

Time to file petition

 

(1)     A petition for relief from judgment, order or other proceedings must be verified, filed within 60 days after the petitioner learns of the judgment, final order, or other proceeding to be set aside, and not more than six (6) months after such judgment or final order was entered, or such proceeding was taken; and must be accompanied with affidavits showing the fraud, accident, mistake, or excusable negligence relied upon, and the facts constituting the petitioner’s good and substantial cause of action or defense, as the case may be (Sec. 3, Rule 38).

 

Contents of petition

 

(1)     The petition must be verified and must be accompanied with affidavits showing fraud, accident, mistake or excusable negligence relied upon, and the facts constituting the petitioner’s good and substantial cause of action or defense, as the case may be (Sec. 3).

 

Annulment of Judgments, or Final Orders and Resolutions (Rule 47)

 

Grounds for annulment

 

(1)     The annulment may be based only on the grounds of extrinsic fraud and lack of jurisdiction. Extrinsic fraud shall not be a valid ground if it was availed of, or could have been availed of, in a motion for new trial or petition for relief (Sec. 2, Rule 47).

 

Period to file action

 

(1)     If based on extrinsic fraud, the action must be filed within four (4) years from its discovery; and if based on lack of jurisdiction, before it is barred by laches or estoppels (Sec. 3).

 

Effects of judgment of annulment

 

(1)     A judgment of annulment shall set aside the questioned judgment or final order or resolution and render the same null and void, without prejudice to the original action being refilled in the proper court. However, where the judgment or final order or resolution is set aside on the ground of extrinsic fraud, the court may on motion order the trial court to try the case as if a timely motion for new trial had been granted therein (Sec. 7, Rule 47).

 

Collateral attack of judgments

 

(1)     A collateral attack is made when, in another action to obtain a different relief, an attack on the judgment is made as an incident in said action. This is proper only when the judgment, on its face, is null and void, as where it is patent that the court which rendered said judgment has no jurisdiction (Co vs. CA, 196 SCRA 705). Examples: A petition for certiorari under Rule 65 is a direct attack. It is filed primarily to have an order annulled. An action for annulment of a judgment is likewise a direct attack on a judgment. A motion to dismiss a complaint for collection of a sum of money filed by a corporation against the defendant on the ground that the plaintiff has no legal capacity to use is a collateral attack on the corporation. A motion to dismiss is incidental to the main action for sum of money. It is not filed as an action intended to attack the legal existence of the plaintiff (Co vs. CA, 196 SCRA 705).

 

 

  1. II.          EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS (Rule 39)

 

Difference between finality of judgment for purpose of appeal; for purposes of execution

 

(1)     The term “final” when used to describe a judgment may be used in two senses. In the first, it refers to a judgment that disposes of a case in a manner that leaves nothing more to be done by the court in respect thereto. In this sense, a final judgment is distinguished from an interlocutory order which does not finally terminate or dispose of the case (Rudecon Management Corp. vs. Singson, 4554 SCRA 612). Since the finality of a judgment has the effect of ending the litigation, an aggrieved party may then appeal from the judgment. Under Sec. 1, Rule 41, an appeal may be taken from a judgment or final order that completely disposes of the case. Under the same rule, an appeal cannot be taken from an interlocutory order.

(2)     In another sense, the word “final” may refer to a judgment that is no longer appealable and is already capable of being executed because the period for appeal has elapsed without a party having perfected an appeal or if there has been appeal, it has already been resolved by a highest possible tribunal (PCGG vs. Sandiganbayan, 455 SCRA 526). In this sense, the judgment is commonly referred to a s one that is final and executory.

 

When execution shall issue; Execution as a matter of right (Sec. 1)

 

(1)     Execution is a matter of right upon the expiration of the period to appeal and no appeal was perfected from a judgment or order that disposes of the action or proceeding (Sec. 1, Rule 39). Once a judgment becomes final and executory, the prevailing party can have it executed as a matter of right, and the issuance of a writ of execution becomes the ministerial duty of the court. Once a decision becomes final and executory, it is the ministerial duty of the presiding judge to issue a writ of execution except in certain cases, as when subsequent events would render execution of judgment unjust (Mangahas vs. Paredes, GR 157866, Feb. 14, 2007).

(2)     The above principles have been consistently applied. Thus, in a subsequent ruling the Court declared: ”Once a judgment becomes final, it is basic that the prevailing party is entitled as a matter of right to a writ of execution the issuance of which is the trial court’s ministerial duty, compellable by mandamus” (Greater Metropolitan Manila Solid Waste Management Committee vs. Jancom Environmental Corp., GR 2163663, Jan. 30, 2006).

(3)     Judgments and orders become final and executor by operation of law and not by judicial declaration. The trial court need not even pronounce the finality of the order as the same becomes final by operation of law. Its finality becomes a fact when the reglementary period for appeal lapses, and no appeal is perfected within such period (Testate of Maria Manuel Vda. De Biascan, 374 SCRA 621; Vlason Enterprises vs. CA, 310 SCRA 26).

(4)     Execution is a matter or right after expiration of period to appeal and no appeal is perfected, except in the following cases:

(a)     Where judgment turns out to be incomplete or conditional;

(b)     Judgment is novated by the parties;

(c)     Equitable grounds (i.e., change in the situation of the parties—supervening fact doctrine)

(d)     Execution is enjoined (i.e., petition for relief from judgment or annulment of judgment with TRO or writ of preliminary injunction);

(e)     Judgment has become dormant; or

(f)      Execution is unjust or impossible.

 

Discretionary execution (Sec. 2)

 

(1)     The concept of discretionary execution constitutes an exception to the general rule that a judgment cannot be executed before the lapse of the period for appeal or during the pendency of an appeal. Under Sec. 1, Rule 39, execution shall issue only as a matter of right upon a judgment or final order that finally disposes of the action or proceeding upon the execution of the period to appeal therefrom if no appeal has been duly perfected.

(2)     A discretionary execution is called “discretionary” precisely because it is not a matter of right. The execution of a judgment under this concept is addressed to the discretionary power of the court (Bangkok Bank Public Company Ltd. vs. Lee, GR 159806, Jan. 29, 2006). Unlike judgments that are final and executor, a judgment subject to discretionary execution cannot be insisted upon but simply prayed and hoped for because a discretionary execution is not a matter of right.

(3)     A discretionary execution like an execution pending appeal must be strictly construed because it is an exception to the general rule. It is not meant to be availed of routinely because it applies only in extraordinary circumstances. It should be interpreted only insofar as the language thereof fairly warrants, and all doubts should be resolved in favor of the general rule (Planters Products, Inc. vs. CA, GR 106052, Oct. 22, 1999). Where the execution is not in conformity with the rules, the execution is null and void (Bangkok Bank vs. Lee, supra.).

(4)     Requisites for discretionary execution:

(a)     There must be a motion filed by the prevailing party with notice to the adverse party;

(b)     There must be a hearing of the motion for discretionary execution;

(c)     There must be good reasons to justify the discretionary execution; and

(d)     The good reasons must be stated in a special order (Sec. 2, Rule 39).

 

How a judgment is executed (Sec. 4)

 

(1)     Judgments in actions for injunction, receivership, accounting and support, and such other judgments as are now or may hereafter be declared to be immediately executory, shall be enforceable after their rendition and shall not be stayed by an appeal taken therefrom, unless otherwise ordered by the trial court. on appeal therefrom, the appellate court in its discretion may make an order suspending, modifying, restoring or granting the injunction, receivership, accounting, or award of support. The stay of execution shall be upon such terms as to bond or otherwise as may be considered proper for the security or protection of the rights of the adverse party.

(2)     Judgments that may be altered or modified after becoming final and executory:

(a)     Facts and circumstances transpire which render its execution impossible or unjust;

(b)     Support;

(c)     Interlocutory judgment.

 

Execution by motion or by independent action (Sec. 6)

 

(1)     A final and executor judgment or order may be executed on motion within 5 years from the date of its entry. After the lapse of such time, and before it is barred by the statute of limitations, a judgment may be enforced by action. The revived judgment may also be enforced by motion within 5 years from the date of its entry and thereafter by action before it is barred by the statute of limitations.

 

Issuance and contents of a writ of execution (Sec. 8)

 

(1)     The writ of execution shall: (i) issue in the name of the Republic of the Philippines from the court which granted the motion; (ii) state the name of the court, the case number and title, the dispositive part of the subject judgment or order; and (iii) require the sheriff or other proper officer to whom it is directed to enforce the writ according to its term, in the manner hereinafter provided:

(a)     If the execution be against the property of the judgment obligor, to satisfy the judgment, with interest, out of the real or personal property of such judgment obligor;

(b)     If it be against real or personal property in the hands of personal representatives, heirs, devisees, legatees, tenants, or trustees of the judgment obligor, to satisfy the judgment, with interest, out of such property;

(c)     If it be for the sale of real or personal property, to sell such property, describing it, and apply the proceeds in conformity with the judgment, the material parts of which shall be recited in the writ of execution;

(d)     If it be for the delivery of the possession of real or personal property, to deliver the possession of the same, describing it, to the party entitled thereto, and to satisfy any costs, damages, rents, or profits covered by the judgment out of the personal property of the person against whom it was rendered, and if sufficient personal property cannot be found, then out of the real property; and

(e)     In all cases, the writ of execution shall specifically state the amount of the interest, costs, damages, rents, or profits due as of the date of the issuance of the writ, aside from the principal obligation under the judgment. For this purpose, the motion for execution shall specify the amounts of the foregoing reliefs sought by the movants.

 

Execution of judgment for money (Sec. 9)

 

(1)     In executing a judgment for money, the sheriff shall follow the following steps:

(a)     Demand from the judgment obligor the immediate payment of the full amount stated in the judgment including the lawful fees in cash, certified check payable to the judgment oblige or any other form of payment acceptable to him (Sec. 9). In emphasizing this rule, the SC held that in the execution of a money judgment, the sheriff is required to first make a demand on the obligor for the immediate payment of the full amount stated in the writ of execution (Sibulo vs. San Jose, 474 SCRA 464).

(b)     If the judgment obligor cannot pay all or part of the obligation in cash, certified check or other mode of payment, the officer shall levy upon the properties of the judgment obligor. The judgment obligor shall have the option to choose which property or part thereof may be levied upon. If the judgment obligor does not exercise the option, the officer shall first levy on the personal properties, if any, and then on the real properties if the personal properties are insufficient to answer for the personal judgment but the sheriff shall sell only so much of the property that is sufficient to satisfy the judgment and lawful fees (Sec. 9[b]).

 

Execution of judgment for specific acts (Sec. 10)

 

(1)     If the judgment requires a person to perform a specific act, said act must be performed but if the party fails to comply within the specified time, the court may direct the act to be done by someone at the cost of the disobedient party and the act when so done shall have the effect as if done by the party (Sec 10[a]). If the judgment directs a conveyance of real or personal property, and said property is in the Philippines, the court in lieu of directing the conveyance thereof, may by an order divest the title of any party and vest it in others, which shall have the force and effect of a conveyance executed in due form of law (Sec. 10[a], Rule 39).

 

Execution of special judgments (Sec. 11)

 

(1)     When a judgment requires the performance of any act other than those mentioned in the two preceding sections, a certified copy of the judgment shall be attached to the writ of execution and shall be served by the officer upon the party against whom the same is rendered, or upon any other person required thereby, or by law, to obey the same, and such party or person may be punished for contempt if he disobeys such judgment.

 

Effect of levy on third persons (Sec. 12)

 

(1)     The levy on execution shall create a lien in favor of the judgment oblige over the right, title and interest of the judgment obligor in such property at the time of the levy, subject to liens and encumbrances then existing.

 

Properties exempt from execution (Sec. 13)

 

(1)     There are certain properties exempt from execution enumerated under Sec. 13, Rule 39:

(a)     The judgment obligor’s family home as provided by law, or the homestead in which he resides, and the land necessarily used in connection therewith;

(b)     Ordinary tools and implements personally used by him in his trade, employment, or livelihood;

(c)     Three horses, or three cows, or three carabaos, or other beasts of burden, such as the judgment obligor may select necessarily used by him in his ordinary occupation;

(d)     His necessary clothing and articles for ordinary personal use, excluding jewelry;

(e)     Household furniture and utensils necessary for housekeeping, and used for that purpose by the judgment obligor and his family, such as the judgment obligor may select, of a value not exceeding 100,000 pesos.

(f)      Provisions for individual or family use sufficient for four months;

(g)     The professional libraries and equipment of judges, lawyers, physicians, pharmacists, dentists, engineers, surveyors, clergymen, teachers, and other professionals, not exceeding 300,000 pesos;

(h)     One fishing boat and accessories not exceeding the total value of 100,000 pesos owned by a fisherman and by the lawful use of which he earns his livelihood;

(i)       So much of the salaries, wages, or earnings of the judgment obligor for his personal services with 4 months preceding the levy as are necessary for the support of his family;

(j)       Lettered gravestones;

(k)     Monies, benefits, privileges, or annuities accruing or in any manner growing out of any life insurance;

(l)       The right to receive legal support, or money or property obtained as such support, or any pension or gratuity from the government; and

(m)   Properties specially exempted by law (Sec. 13, Rule 39).

(2)     If the property mentioned in Sec. 13 is the subject of execution because of a judgment for the recovery of the price or upon judgment of foreclosure of a mortgage upon the property, the property is not exempt from execution.

 

Proceedings where property is claimed by third persons (Sec. 16)

 

(1)     If the property levied on is claimed by any person other than the judgment obligor or his agent, and such person makes an affidavit of his title thereto or right to the possession thereof, stating the grounds of such right or title, and serves the same upon the officer making the levy and a copy thereof upon the judgment obligee, the officer shall not be bound to keep the property, unless such judgment obligee, on demand of the officer, files a bond approved by the court to indemnify the third-party claimant in a sum not less than the value of the property levied on. In case of disagreement as to such value, the same shall be determined by the court issuing the writ of execution. 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 one hundred twenty (120) days from the date of the filing of the bond.

The officer shall not be liable for damages for the taking or keeping of the property, to any third-party claimant if such bond is filed. Nothing herein contained shall prevent such claimant or any third person from vindicating his claim to the property in a separate action, or prevent the judgment obligee from claiming damages in the same or a separate action against a third-party claimant who filed a frivolous or plainly spurious claim.

When the writ of execution is issued in favor of the Republic of the Philippines, or any officer duly representing it, the filing of such bond shall not be required, and in case the sheriff or levying officer is sued for damages as a result of the levy, he shall be represented by the Solicitor General and if held liable therefor, the actual damages adjudged by the court shall be paid by the National Treasurer out of such funds as may be appropriated for the purpose.

(2)     Requisites for  a claim by a third person:

(a)     The property is levied;

(b)     The claimant is a person other than the judgment obligor or his agent;

(c)     Makes an affidavit of his title thereto or right to the possession thereof stating the grounds of such right or title; and

(d)     Serves the same upon the officer making the levy and the judgment obligee.

 

In relation to third party claim in attachment and replevin

 

(1)     Certain remedies available to a third person not party to the action but whose property is the subject of execution:

(a)     Terceria – By making an affidavit of his title thereto or his right to possession thereof, stating the grounds of such right or title. The affidavit must be served upon the sheriff and the attaching party (Sec. 14, Rule 57). Upon service of the affidavit upon him, the sheriff shall not be bound to keep the property under attachment except if the attaching party files a bond approved by the court. the sheriff shall not be liable for damages for the taking or keeping of the property, if such bond shall be filed.

(b)     Exclusion or release of property – Upon application of the third person through a motion to set aside the levy on attachment, the court shall order a summary hearing for the purpose of determining whether the sheriff has acted rightly or wrongly in the performance of his duties in the execution of the writ of attachment. The court may order the sheriff to release the property from the erroneous levy and to return the same to the third person. In resolving the application, the court cannot pass upon the question of title to the property with any character of finality but only insofar as may be necessary to decide if the sheriff has acted correctly or not (Ching vs. CA, 423 SCRA 356).

(c)     Intervention – This is possible because no judgment has yet been rendered and under the rules, a motion for intervention may be filed any time before the rendition of the judgment by the trial court (Sec. 2, Rule 19).

(d)     Accion Reinvindicatoria – The third party claimant is not precluded by Sec. 14, Rule 57 from vindicating his claim to the property in the same or in a separate action. He may file a separate action to nullify the levy with damages resulting from the unlawful levy and seizure. This action may be a totally distinct action from the former case.

 

Rules on Redemption

 

(1) Real property sold, or any part thereof sold separately, may be redeemed by the following persons:

(a)     Judgment obligor, or his successor in interest in the whole or any part of the property;

(b)     Redemptioner – a creditor having a lien by virtue of an attachment, judgment or mortgage on the property sold, or on some part thereof, subsequent to the lien under which the property was sold.

A mortgagee can be a redemptioner even if his mortgage has not yet matured, but his mortgage contract must have been executed after the entry of judgment.  Generally in judicial foreclosure sale, there is no right of redemption, but only equity of redemption. In sale of estate property to pay off debts of the estate, there is no redemption at all. Only in extrajudicial foreclosure sale and sale on execution is there the right of redemption.

(2)     The judgment obligor, or redemptioner, may redeem the property from the purchaser at any time within 1 year from the date of the registration of the certificate of sale by paying the purchaser (a) the amount of his purchase; (b) amount of any assessments or taxes which the purchaser may have paid after purchase; (c) if the purchaser be also a creditor having a prior lien to that of the redemptioner, other than the judgment under which such purchase was made, the amount of such other lien; and (d) with 1 percent per month interest up to the time of redemption.

(3)     Property redeemed may again be redeemed within 60 days after the last redemption by a redemptioner, upon payment of: (a) the sum paid on the last redemption, with additional 2 percent; (b) the amount of any assessments or taxes which the last redemptioner may have paid thereon after redemption by him, with interest; (c) the amount of any liens held by said last redemptioner prior to his own, with interest.

(4)     The property may be again, and as often as a redemptioner is so disposed, similarly redeemed from any previous redemptioner within 60 days after the last redemption. Written notice of any redemption must be given to the officer who made the sale and a duplicate filed with the registry of deeds of the place. If any assessments or taxes are paid by the redemptioner or if he has or acquires any lien other than that upon which the redemption was made, notice thereof must in like manner be given to the officer and filed with the registry of deeds. If such notice be not filed, the property may be redeemed without paying such assessments, taxes, or liens.

(5)     Effect of Redemption. If the judgment obligor redeems, he must make the same payments as are required to effect a redemption by a redemptioner, whereupon, no further redemption shall be allowed and he is restored to his estate. The person to whom the redemption payment is made must execute and deliver to him a certificate of redemption acknowledged before a notary public or other officer authorized to take acknowledgments of conveyances of real property. Such certificate must be filed and recorded in the registry of deeds of the place in which the property is situated, and the registrar of deeds must note the record thereof on the margin of the record of the certificate of sale. The payments mentioned in this and the last preceding sections may be made to the purchaser or redemptioner, or for him to the officer who made the sale (Sec. 29).

(6)     Proof required of redemptioner. A redemptioner must produce to the officer, or person from whom he seeks to redeem, and serve with his notice to the officer a copy of the judgment or final order under which he claims the right to redeem, certified by the clerk of the court wherein the judgment or final order is entered; or, if he redeems upon a mortgage or other lien, a memorandum of the record thereof, certified by the registrar of deeds; or an original or certified copy of any assignment necessary to establish his claim; and an affidavit executed by him or his agent, showing the amount then actually due on the lien (Sec. 30).

(7)     Manner of using premises pending redemption. Until the expiration of the time allowed for redemption, the court may, as in other proper cases, restrain the commission of waste on the property by injunction, on the application of the purchaser or the judgment obligee, with or without notice; but it is not waste for a person in possession of the property at the time of the sale, or entitled to possession afterwards, during the period allowed for redemption, to continue to use it in the same manner in which it was previously used; or to use it in the ordinary course of husbandry; or to make the necessary repairs to buildings thereon while he occupies the property (Sec. 31).

(8)     Rents, earnings and income of property pending redemption. The purchaser or a redemptioner shall not be entitled to receive the rents, earnings and income of the property sold on execution, or the value of the use and occupation thereof when such property is in the possession of a tenant. All rents, earnings and income derived from the property pending redemption shall belong to the judgment obligor until the expiration of his period of redemption (Sec. 32).

(9)     Deed and possession to be given at expiration of redemption period; by whom executed or given.  If no redemption be made within one (1) year from the date of the registration of the certificate of sale, the purchaser is entitled to a conveyance and possession of the property; or, if so redeemed whenever sixty (60) days have elapsed and no other redemption has been made, and notice thereof given, and the time for redemption has expired, the last redemptioner is entitled to the conveyance and possession; but in all cases the judgment obligor shall have the entire period of one (1) year from the date of the registration of the sale to redeem the property. The deed shall be executed by the officer making the sale or by his successor in office, and in the latter case shall have the same validity as though the officer making the sale had continued in office and executed it.

Upon the expiration of the right of redemption, the purchaser or redemptioner shall be substituted to and acquire all the rights, title, interest and claim of the judgment obligor to the property as of the time of the levy. The possession of the property shall be given to the purchaser or last redemptioner by the same officer unless a third party is actually holding the property adversely to the judgment obligor (Sec. 33).

 

Examination of judgments obligor when judgment is unsatisfied (Sec. 36)

 

(1)     When the return of a writ of execution issued against property of a judgment obligor, or any one of several obligors in the same judgment, shows that the judgment remains unsatisfied, in whole or in part, the judgment obligee, at any time after such return is made, shall be entitled to an order from the court which rendered the said judgment, requiring such judgment obligor to appear and be examined concerning his property and income before such court or before a commissioner appointed by it, at a specified time and place; and proceedings may thereupon be had for the application of the property and income of the judgment obligor towards the satisfaction of the judgment. But no judgment obligor shall be so required to appear before a court or commissioner outside the province or city in which such obligor resides or is found.

 

Examination of obligor of judgment obligor (Sec. 37)

 

(1)     When the return of a writ of execution against the property of a judgment obligor shows that the judgment remains unsatisfied, in whole or in part, and upon proof to the satisfaction of the court which issued the writ, that person, corporation, or other juridical entity has property of such judgment obligor or is indebted to him, the court may, by an order, require such person, corporation, or other juridical entity, or any officer or member thereof, to appear before the court or a commissioner appointed by it, at a time and place within the province or city where such debtor resides or is found, and be examined concerning the same. The service of the order shall bind all credits due the judgment obligor and all money and property of the judgment obligor in the possession or in control of such person, corporation, or juridical entity from the time of service; and the court may also require notice of such proceedings to be given to any party to the action in such manner as it may deem proper.

 

Effect of judgment or final orders: Res Judicata (Sec. 47)

 

(1)     In case of a judgment or final order against a specific thing, or in respect to the probate of a will, or the administration of the estate of a deceased person, or in respect to the personal, political, or legal condition or status of a particular person or his relationship to another, the judgment or final order is conclusive upon the title to the thing, the will or administration, or the condition, status or relationship of the person; however, the probate of a will or granting of letters of administration shall only be prima facie evidence of the truth of the testator or intestate;

(2)     In other cases, the judgment or final order is, with respect to the matter directly adjudged or as to any other matter that could have been raised in relation thereto, conclusive between the parties and their successors in interest by title subsequent to the commencement of the action or special proceeding, litigating for the same thing and under the same title and in the same capacity; and

(3)     In any other litigation between the same parties or their successors in interest, that only is deemed to have been adjudged in a former judgment or final order which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto.

 

Enforcement and effect of foreign judgments or final orders (Sec. 48)

 

(1)     In case of a judgment or final order upon a specific thing, the judgment or final order is conclusive upon the title to the thing; and

(2)     In case of a judgment or final order against a person, the judgment or final order is presumptive evidence of a right as between the parties and their successors in interest by a subsequent title.  In either case, the judgment or final order may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact.

(3)     A foreign judgment on the mere strength of its promulgation is not yet conclusive, as it can be annulled on the grounds of want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact. It is likewise recognized in Philippine jurisprudence and international law that a foreign judgment may be barred from recognition if it runs counter to public policy (Republic vs. Gingoyon, GR 166429, June 27, 2006).

 

 

  1. III.         PROVISIONAL REMEDIES (Rules 57-61)

 

Nature of provisional remedies

 

(1)     Provisional remedies are temporary, auxiliary, and ancillary remedies available to a litigant for the protection and preservation of his rights while the main action is pending. They are writs and processes which are not main actions and they presuppose the existence of a principal action.

(2)     Provisional remedies are resorted to by litigants for any of the following reasons:

(a)     To preserve or protect their rights or interests while the main action is pending;

(b)     To secure the judgment;

(c)     To preserve the status quo; or

(d)     To preserve the subject matter of the action.

(3)     Provisional remedies specified under the rules are:

(a)     Preliminary attachment (Rule 57);

(b)     Preliminary injunction (Rule 58);

(c)     Receivership (Rule 59);

(d)     Replevin (Rule 60); and

(e)     Support pendent lite (Rule 61).

 

Jurisdiction over provisional remedies

 

(1)     The courts which grants or issues a provisional remedy is the court which has jurisdiction over the main action. Even an inferior court may grant a provisional remedy in an action pending with it and within its jurisdiction.

 

Preliminary Attachment (Rule 57)

 

(1)     Preliminary attachment is a provisional remedy issued upon order of the court where an action is pending to be levied upon the property of the defendant so the property may be held by the sheriff as security for the satisfaction of whatever judgment may be rendered in the case (Davao Light and Power, Inc. vs. CA, 204 SCRA 343).

(2)     When availed of and is granted in an action purely in personam, it converts the action to one that is quasi in rem. In an action in rem or quasi in rem, jurisdiction over the res is sufficient. Jurisdiction over the person of the defendant is not required(Villareal vs. CA, 295 SCRA 511).

(3)     Preliminary attachment is designed to:

(a)     Seize the property of the debtor before final judgment and put the same incustodial egis even while the action is pending for the satisfaction of a later judgment(Insular Bank of Asia and America vs. CA, 190 SCRA 629);

(b)     To enable the court to acquire jurisdiction over the res or the property subject of the action in cases where service in person or any other service to acquire jurisdiction over the defendant cannot be affected.

(4)     Preliminary attachment has three types:

(a)     Preliminary attachment – one issued at the commencement of the action or at any time before entry of judgment as security for the satisfaction of any judgment that may be recovered. Here the court takes custody of the property of the party against whom attachment is directed.

(b)     Garnishment – plaintiff seeks to subject either the property of defendant in the hands of a third person (garnishee) to his claim or the money which said third person owes the defendant. Garnishment does not involve actual seizure of property which remains in the hands of the garnishee. It simply impounds the property in the garnishee’s possession and maintains the status quo until the main action is finally decided. Garnishment proceedings are usually directed against personal property, tangible or intangible and whether capable of manual delivery or not.

(c)     Levy on execution – writ issued by the court after judgment by which the property of the judgment obligor is taken into custody of the court before the sale of the property on execution for the satisfaction of a final judgment. It is the preliminary step to the sale on execution of the property of the judgment debtor.

(5)     The grant of the remedy is addressed to the discretion of the court whether or not the application shall be given full credit is discretionary upon the court. in determining the propriety of the grant, the court also considers the principal case upon which the provisional remedy depends.

 

Grounds for issuance of writ of attachment

 

(1)     At the commencement of the action or at any time before entry of judgment, a plaintiff or any proper party may have the property of the adverse party attached as security for the satisfaction of any judgment that may be recovered in the following cases:

(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 quasi-delict 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 party 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 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 (Sec. 1).

 

Requisites

 

(1)     The issuance of an order/writ of execution requires the following:

(a)     The case must be any of those where preliminary attachment is proper;

(b)     The applicant must file a motion (ex parte or with notice and hearing);

(c)     The applicant must show by affidavit (under oath) that there is no sufficient security for the claim sought to be enforced; that the amount claimed in the action is as much as the sum of which the order is granted above all counterclaims; and

(d)     The applicant must post a bond executed to the adverse party. This is called an attachment bond, which answers for all damages incurred by the party against whom the attachment was issued and sustained by him by reason of the attachment (Carlos vs. Sandoval, 471 SCRA 266).

 

Issuance and contents of order of attachment; affidavit and bond

 

(1)     An order of attachment may be issued either ex parte or upon motion with notice and hearing by the court in which the action is pending, or by the CA or the SC, and must require the sheriff of the court to attach so much of the property in the Philippines of the party against whom it is issued, not exempt from execution, as may be sufficient to satisfy the applicant’s demand, unless such party makes deposit or gives a bond in an amount equal to that fixed in the order, which may be the amount sufficient to satisfy the applicant’s demand or the value of the property to be attached as stated by the applicant, exclusive of costs. Several writs may be issued at the same time to the sheriffs of the courts of different judicial regions (Sec. 2).

(2)     An order of attachment shall be granted only when it appears by the affidavit of the applicant, or of some other person who personally knows the facts, that  a sufficient cause of action exists, that the case is one of those mentioned in Section1, that there is no other sufficient security for the claim sought to be enforced by the action, and that the amount due to the applicant, or the value of the property the possession of which he is entitled to recover, is as much as the sum for which the order is granted above all legal counterclaims. The affidavit, and the bond must be filed with the court before the order issues (Sec. 3).

 

Rule on prior or contemporaneous service of summons

 

(1)     No levy on attachment pursuant to the writ of preliminary attachment shall be enforced unless it is preceded, or contemporaneously accompanied, by the 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.

(2)     The requirement of prior or contemporaneous service of summons shall not apply in the following instances:

(a)     Where the summons could not be served personally or by substituted service despite diligent efforts;

(b)     The defendant is a resident of the Philippines who is temporarily out of the country;

(c)     The defendant is a non-resident; or

(d)     The action is one in rem or quasi in rem (Sec. 5).

 

Manner of attaching real and personal property; when property attached is claimed by third person

 

Sec. 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 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.

 

(10) Certain remedies available to a third person not party to the action but whose property is the subject of execution:

(e)     Terceria – by making an affidavit of his title thereto or his right to possession thereof, stating the grounds of such right or title. The affidavit must be served upon the sheriff and the attaching party (Sec. 14). Upon service of the affidavit upon him, the sheriff shall not be bound to keep the property under attachment except if the attaching party files a bond approved by the court. the sheriff shall not be liable for damages for the taking or keeping of the property, if such bond shall be filed.

(f)      Exclusion or release of property – Upon application of the third person through a motion to set aside the levy on attachment, the court shall order a summary hearing for the purpose of determining whether the sheriff has acted rightly or wrongly in the performance of his duties in the execution of the writ of attachment. The court may order the sheriff to release the property from the erroneous levy and to return the same to the third person. In resolving the application, the court cannot pass upon the question of title to the property with any character of finality but only insofar as may be necessary to decide if the sheriff has acted correctly or not (Ching vs. CA, 423 SCRA 356).

(g)     Intervention – this is possible because no judgment has yet been rendered and under the rules, a motion for intervention may be filed any time before the rendition of the judgment by the trial court (Sec. 2, Rule 19).

(h)     Accion Reinvindicatoria – The third party claimant is not precluded by Sec. 14, Rule 57 from vindicating his claim to the property in the same or in a separate action. He may file a separate action to nullify the levy with damages resulting from the unlawful levy and seizure. This action may be a totally distinct action from the former case.

 

Discharge of attachment and the counter-bond

 

(1)     If the attachment has already been enforced, the party whose property has been attached may file a motion to discharge the attachment. This motion shall be with notice and hearing. After due notice and hearing, the court shall discharge the attachment if the movants makes a cash deposit or files a counter-bond executed to the attaching party with the clerk of court where the application is made in an amount equal to that fixed by the court in the order of attachment, exclusive of costs. Counter-bonds are replacements of the property formerly attached, and just as the latter, may be levied upon after final judgment. Note that the mere posting of counterbond does not automatically discharge the writ of attachment. It is only after the hearing and after the judge has ordered the discharge of attachment that the same is properly discharged (Sec. 12).

(2)     Attachment may likewise be discharged without the need for filing of a counter-bond. This is possible when the party whose property has been attached files a motion to set aside or discharge the attachment and during the hearing of the motion, he proves that:

(a)     The attachment was improperly or irregularly issued or enforced; or

(b)     The bond of the attaching creditor is insufficient; or

(c)     The attachment is excessive and must be discharged as to the excess (Sec. 13); or

(d)     The property is exempt from execution, and as such is also exempt from preliminary attachment (Sec. 2).

(3)     Grounds for discharge of an attachment

(a)     Counterbond posted

(b)     improperly issued

(c)     irregularly issued or enforced

(d)     insufficient applicant’s bond

“Improperly” (e.g. writ of attachment was not based on the grounds in Sec. 1)

“Irregularly” (e.g. writ of attachment was executed without previous or contemporaneous service of summons

 

Satisfaction of judgment out of property attached

 

(1)     If judgment be recovered by the attaching party and execution issue thereon, the sheriff may cause the judgment to be satisfied out of the property attached, if it be sufficient for that purpose in the following manner:

(a)     By paying to the judgment obligee the proceeds of all sales of perishable or other property sold in pursuance of the order of the court, or so much as shall be necessary to satisfy the judgment;

(b)     If any balance remains due, by selling so much of the property, real or personal, as may be necessary to satisfy the balance, if enough for that purpose remain in the sheriff’s hands, or in those of the clerk of the court;

(c)     By collecting from all persons having in their possession credits belonging to the judgment obligor, or owing debts to the latter at the time of the attachment of such credits or debts, the amounts of such credits and debts as determined by the court in the action, and stated in the judgment, and paying the proceeds of such collection over to the judgment obligee (Sec. 15).

(2)     Order of satisfaction of judgment of attached property

(1)     Perishable or other property sold in pursuance of the order of the court;

(2)     Property, real or personal, as may be necessary to satisfy the balance;

(3)     collecting from debtors of the judgment obligor;

(4)     ordinary execution.

 

Preliminary Injunction (Rule 58)

 

Definitions and Differences: Preliminary Injunction and Temporary Restraining Order

 

(1)     A preliminary injunction is an order granted at any stage of an action or proceeding prior to the judgment or final order, requiring a party or a court, agency or a person to refrain from a particular act or acts. It may also require the performance of a particular act or acts, in which case it shall be known as a preliminary mandatory injunction (Sec. 1).

(2)     As a provisional remedy, preliminary injunction aims to preserve the status quoor to prevent future wrongs in order to preserve and protect certain interests or rights during the pendency of the action (Cortez-Estrada vs. Heirs of Domingo, 451 SCRA 275 [2005]). The status quo is the last, actual, peaceable and uncontested situation which precedes a controversy. The injunction should not establish a new relation between the parties, but merely should maintain or re-establish the pre-existing relationship between them.

(3)     A writ of preliminary injunction remains until it is dissolved; a temporary restraining order (TRO) has a lifetime only of 20 days (RTC and MTC) or 60 days (Court of Appeals). A TRO issued by the Supreme Court shall be effective until further orders. A TRO is issued to preserve the status quo until the hearing of the application for preliminary injunction. The judge may issue a TRO with a limited life of 20 days from date of issue. If before the expiration of the 20 day period, the application for preliminary injunction is denied, the TRO would be deemed automatically vacated. If no action is taken by the judge within the 20 day period, the TRO would automatically expire on the 20th day by the sheer force of law, no judicial declaration to that effect being necessary (Bacolod City Water District vs. Labayen, 446 SCRA 110).

(4)     1998 Bar: A TRO is an order to maintain the status quo between and among the parties until the determination of the prayer for a writ of preliminary injunction. A writ of preliminary injunction cannot be granted without notice and hearing. A TRO may be granted ex parte if it shall appear from facts shown by affidavits or by the verified application that great or irreparable injury would result to the applicant before the matter can be heard on notice, the court in which the application for preliminary injunction was made my issue a TRO ex parte for a period not exceeding 20 days from service to the party sought to be enjoined.

 

Requisites

 

(1) 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.

(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 (Sec. 4).

(e)     The applicant must establish that there is a need to restrain the commission or continuance of the acts complied of and if not enjoined would work injustice to the applicant (Barbajo vs. Hidden View Homeowners, Inc., 450 SCRA 315).

(f)      The plaintiff must further establish that he or she has a present unmistakable right to be protected; that the facts against which injunction is directed violate such right; and there is a special and paramount necessity for the writ to prevent serious damages. In the absence of proof of legal right and the injury sustained by the plaintiff, an order for the issuance of a writ of preliminary injunction will be nullified. Thus, where the plaintiff’s right is doubtful or disputed, a preliminary injunction is not proper. The possibility of irreparable damage without proof of an actual existing right is not a ground for preliminary injunction (Sps. Nisce vs. Equitable PCI Bank, Feb. 19, 2007).

 

Kinds of Injunction

 

(1)     Prohibitory – its purpose is to prevent a person from the performance of a particular act which has not yet been performed. Here, the status quo is preserved or restored and this refers to the last peaceable, uncontested status prior to the controversy.

(a)     Preliminary – secured before the finality of judgment.

(a)     Final – issued as a judgment, making the injunction permanent. It perpetually restrains a person from the continuance or commission of an act and confirms the previous preliminary injunction. It is one included in the judgment as the relief or part of the relief granted as a result of the action, hence, granted only after trial (Sec. 10), and no bond is required.

(2)     Mandatory – its purpose is to require a person to perform a particular positive act which has already been performed and has violated the rights of another.

(a)     Preliminary

(b)     Final

(2a) Requisites for the issuance of mandatory preliminary injunction

(a)     The invasion of the right is material and substantial;

(b)     The right of a complainant is clear and unmistakable;

(c)     There is an urgent and permanent necessity for the writ to prevent serious damage (Rivera vs. Florendo, 144 SCRA 643).

 

When writ may be issued

 

(1)     The complaint in the action is verified, and shows facts entitling the plaintiff to the relief demanded; and

(2)     The plaintiff files a bond which the court may fix, conditioned for the payment of damages to the party enjoined, if the court finds that the plaintiff is not entitled thereto(Sec. 4).

 

Grounds for issuance of preliminary injunction

 

(1)     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; or

(2)     The commission, continuance or non-performance of the act or acts complained of during the litigation would probably work injustice to the applicant; or

(3)     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 (Sec. 3).

 

Grounds for objection to, or for the dissolution of injunction or restraining order

 

(1)     The application for injunction or restraining order may be denied, upon a showing of its insufficiency. The injunction or restraining order may also be denied, or, if granted, may be dissolved, on other grounds upon affidavit of the party or person enjoined, which may be opposed by the applicant also by affidavits. It may further be denied, or, if granted, may be dissolved, if it appears after hearing that although the applicant is entitled to the injunction or restraining order, the issuance or continuance thereof, as the case may be, would cause irreparable damage to the party or person enjoined while the applicant can be fully compensated for such damages as he may suffer, and the former files a bond in an amount fixed by the court conditioned that he will pay all damages which the applicant may suffer by the denial or the dissolution of the injunction or restraining order. If it appears that the extent of the preliminary injunction or restraining order granted is too great, it may be modified (Sec. 6).

(3)     (2) Grounds for objection to, or for motion of dissolution of, injunction or restraining order

(a)     Upon showing of insufficiency of the application;

(b)     Other grounds upon affidavit of the party or person enjoined;

(c)     Appears after hearing that irreparable damage to the party or person enjoined will be caused while the applicant can be fully compensated for such damages as he may suffer, and the party enjoined files a counterbond;

(d)     Insufficiency of the bond;

(e)     Insufficiency of the surety or sureties.

 

Duration of TRO

 

(1)     The lifetime of a TRO is 20 days, which is non-extendible (AM 02-02-07-SC).

 

In relation to RA 8975, Ban on issuance of TRO or Writ of Injunction in cases involving government infrastructure projects

 

(1)     Under PD 1818 and RA 8735, injunction is not available to stop infrastructure projects of the government including arrastre and stevedoring operations (Malayan Integrated Industries vs. CA, GR 101469, Sept. 4, 1992; PPA vs. vs. Pier 8 Arrastre and Stev edoring Services, 475 SCRA 426).

 

Rule on prior or contemporaneous service of summons in relation to attachment

 

(1)     It is not available where the summons could not be served personally or by substituted service despite diligent efforts or where the adverse party is a resident of the Philippines temporarily absent therefrom or is a non-resident thereof (Sec. 4).

 

Stages of Injunction

 

(1)     Seventy-two (72) hour Temporary Restraining Order

(a)     If the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury;

(b)     Issued by executive judge of a multi-sala court or the presiding judge of a single-sala court;

(c)     Thereafter must

1)       Serve summons and other documents

2)       Conduct summary hearing to determine whether the TRO shall be extended to 20 days until the application for preliminary injunction can be heard.

 

(2)     Twenty (20) day TRO

(a)     If it shall appear from the facts shown by affidavits or by the verified application that great or irreparable injury would result to the applicant before the matter can be heard on notice;

(b)     If application is included in initiatory pleading:

1)       Notice of raffle 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;

2)       Raffled only after notice to and in the presence of the adverse party or the person to be enjoined.

(c)     Issued with summary hearing (to determine whether the applicant will suffer great or irreparable injury) within 24 hours after sheriff’s return of service and/or records are received by the branch selected by raffle;

(d)     Within 20-day period, the court must order said person to show cause why the injunction should not be granted, and determine whether or not the preliminary injunction shall be granted, and accordingly issue the corresponding order;

(e)     Including the original 72 hours, total effectivity of TRO shall:

1)       Not exceed 20 days, if issued by an RTC or MTC;

2)       Not exceed 60 days, if issued by the CA or a member thereof;

3)       Until further orders, if issued by the SC.

(f)      TRO is automatically vacated upon expiration of the period and without granting of preliminary injunction;

(g)     Effectivity is not extendible without need of any judicial declaration to that effect;

(h)     No court shall have authority to extend or renew the same on the same ground for which it was issued.

 

(3)     Preliminary Injunction

(a)     Hearing and prior notice to the party sought to be enjoined;

(b)     If application is included in initiatory pleading;

1)       Notice of raffle 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.

2)       Raffled only after notice to and in the presence of the adverse party or the person to be enjoined

(c)     Applicant posts a bond

 

(4)     Final Injunction

(a)     Note that a bond is required only in preliminary injunctions, but is not required in TROs. After lapse of the 20 day TRO, the court can still grant a preliminary injunction. Note that irreparable injury is always a requisite in TROs. But in the 72 hour TRO, grave injustice must also be shown. In the 20 day TRO, the ground is great or irreparable injury (Paras v. Roura, 163 SCRA 1 [1988]). Without a preliminary injunction, a TRO issued by the CA expires without necessity of court action.

 

Receivership (Rule 59)

 

(1)     Receivership is a provisional remedy wherein the court appoints a representative to preserve, administer, dispose of and prevent the loss or dissipation of the real or personal property during the pendency of an action.

(2)     It may be the principal action itself or a mere provisional remedy; it can be availed of even after the judgment has become final and executory as it may be applied for to aid execution or carry judgment into effect.

 

Cases when receiver may be appointed

 

(1)     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, or materially injured unless a receiver be appointed to administer and preserve it;

(2)     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;

(3)     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;

(4)     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 (Sec. 1).

 

Requisites

 

(1)     Verified application;

(2)     Appointed by the court where the action is pending, or by the CA or by the SC, or a member thereof;

During the pendency of an appeal, the appellate court may allow an application for the appointment of a receiver to be filed in and decided by the court or origin and the receiver appointed to be subject to the control of said court.

(3)     Applicant’s bond conditioned on paying the adverse party all damages he may sustain by the appointment of the receiver in case the appointment is without sufficient cause;

(4)     Receiver takes his oath and files his bond.

 

Requirements before issuance of an Order

 

(1)     Before issuing the order appointing a receiver the court shall require the applicant to file a bond executed to the party against whom the application is presented, in an amount to be fixed by the court, to the effect that the applicant will pay such party all damages he may sustain by reason of the appointment of such receiver in case the applicant shall have procured such appointment without sufficient cause; and the court may, in its discretion, at any time after the appointment, require an additional bond as further security for such damages (Sec. 2).

 

General powers of a receiver

 

(1)     To bring and defend, in such capacity, actions in his own name

(2)     To take and keep possession of the property in controversy

(3)     To receive rents

(4)     To collect debts due to himself as receiver or to the fund, property, estate, person, or corporation of which he is the receiver

(5)     To compound for and compromise the same

(6)     To make transfer

(7)     To pay outstanding debts

(8)     To divide the money and other property that shall remain among the persons legally entitled to receive the same

(9)     To do such acts respecting the property as the court may authorize.

However, funds in the hands of a receiver may be invested only by order of the court upon the written consent of all the parties to the action. No action may be filed by or against a receiver without leave of the court which appointed him (Sec. 6).

 

Two (2) kinds of bonds

 

(1) Applicant’s Bond (for appointment of receiver) – To pay the damages the adverse party may sustain by reason of appointment of receiver; and

(2) Receiver’s Bond (of the appointed receiver, aside from oath) – To answer for receiver’s faithful discharge of his duties (Sec. 2).

 

Termination of receivership

 

(1)     Whenever the court, motu proprio or on motion of either party, shall determine that the necessity for a receiver no longer exists, it shall, after due notice to all interested parties and hearing, settle the accounts of the receiver, direct the delivery of the funds and other property in his possession to the person adjudged to be entitled to receive them, and order the discharge of the receiver from further duty as such. The court shall 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).

(2)     Receivership shall also be terminated when (a) its continuance is not justified by the facts and circumstances of the case (Samson vs. Araneta, 64 Phil. 549); or (b) then court is convinced that the powers are abused (Duque vs. CFI, Manila, 13 SCRA 420).

 

Replevin (Rule 60)

 

(1)     Replevin is a proceeding by which the owner or one who has a general or special property in the thing taken or detained seeks to recover possession in specie, the recovery of damages being only incidental (Am. Jur. 6).

(2)     Replevin may be a main action or a provisional remedy. As a principal action its ultimate goal is to recover personal property capable of manual delivery wrongfully detained by a person. Used in this sense, it is a suit in itself.

(3)     It is a provisional remedy in the nature of possessory action and the applicant who seeks immediate possession of the property involved need not be the holder of the legal title thereto. It is sufficient that he is entitled to possession thereof (Yang vs. Valdez, 177 SCRA 141).

 

When may Writ be Issued

 

(1)     The provisional remedy of replevin can only be applied for before answer. 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).

 

Requisites

 

(1)     A party praying for the provisional remedy must file an application for a writ of replevin. His application must be filed at the commencement of the action or at any time before the defendant answers, and must contain an affidavit particularly describing the property to which he entitled of possession.

(2)     The affidavit must state that the property is wrongfully detained by the adverse party, alleging therein the cause of the detention. It must also state that the property has not been destrained or taken for tax assessment or a fine pursuant to law, or seized under a writ of execution or preliminary attachment, or otherwise placed incustodia legis. If it has been seized, then the affidavit must state that it is exempt from such seizure or custody.

(3)     The affidavit must state the actual market value of the property; and

(4)     The applicant must give a bond, executed to the adverse party and double the value of the property.

 

Affidavit and bond; Redelivery Bond

 

(1)     Affidavit, alleging:

(a)     That the applicant is the owner of property claimed, describing it or entitled to its possession;

(b)     That the property is wrongfully detained by the adverse party, alleging cause of its detention;

(c)     That the property has not been distrained or taken for tax assessment or fine or under writ of execution/attachment or placed under custodia legis or if seized, that it is exempt or should be released; and

(d)     The actual market value of the property.

(2)     Bond, which must be double the value of property, to answer for the return of property if adjudged and pay for such sum as he may recover from the applicant(Sec. 2).

(3)     It is required that the redelivery bond be filed within the period of 5 days after the taking of the property. The rule is mandatory (Yang vs. Valdez, 177 SCRA 141).

 

Sheriff’s duty in the implementation of the writ; when property is claimed by third party

 

(1)     Upon receiving such order, the sheriff must serve a copy thereof on the adverse party, together with a copy of the application, affidavit and bond, and must forthwith take the property, if it be in the possession of the adverse party, or his agent, and retain it in his custody. If the property or any part thereof be concealed in a building or enclosure, the sheriff must demand its delivery, and if it be not delivered, he must cause the building or enclosure to be broken open and take the property into his possession. After the sheriff has taken possession of the property as herein provided, he must keep it in a secure place and shall be responsible for its delivery to the party entitled thereto upon receiving his fees and necessary expenses for taking and keeping the same (Sec. 4).

(2)     If within five (5) days after the taking of the property by the sheriff, the adverse party does not object to the sufficiency of the bond, or of the surety or sureties thereon; or if the adverse party so objects and the court affirms its approval of the applicant’s bond or approves a new bond, of if the adverse party requires the return of the property but his bond is objected to and found insufficient and he does not forthwith file an approved bond, the property shall be delivered to the applicant. If for any reason the property is not delivered to the applicant, the sheriff must return it to the adverse party (Sec. 6).

(3)     A 3rd party claimant may vindicate his claim to the property, and the applicant may claim damages against such 3rd party, in the same or separate action. A claim on the indemnity bond should be filed within 120 days from posting of such bond.

(4)     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, and such person makes an affidavit of his title thereto, or right to the possession thereof, stating the grounds therefor, and serves such affidavit upon the sheriff while the latter has possession of the property and a copy thereof upon the applicant, the sheriff shall not be bound to keep the property under replevin or deliver it to 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 the sum not less than the value of the property under replevin as provided in section 2 hereof. In case of disagreement as to such value, the court shall determine the same. No claim for damages for taking or keeping of the property may be enforced against the bond unless the action therefor is filed within one hundred twenty (120) days from the date of the filing of the bond.

The sheriff shall not be liable for damages, for the taking or keeping of such property, to any such third-party claimant if such bond shall be filed. Nothing herein contained shall prevent such claimant or any third person from vindicating his claim to the property, or prevent the applicant from claiming damages against a third-party claimant who filed a frivolous or plainly spurious claim, in the same or a separate action (Sec. 7).

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