POST-JUDGMENT REMEDIES Theory of the Case Doctrine – A party who

deliberately adopts a certain theory upon which

Two Types of Post-Judgment Remedies the case is tried and decided by the lower court
1. Those that should be filed within 15-day will not be permitted to change the theory on
period appeal.
2. Those that can be filed beyond the 15- Principle of Non-Interference – The judgment
day period (re: judgment, order, of a court of competent jurisdiction could not
resolution that has become final and be interfered with by any court of concurrent
executory) jurisdiction.
To be Filed Within the 15-day Period Law of the Case Doctrine - Applies in a situation
1. Motion for New Trial where an appellate court has made a ruling on a
2. Motion for Reconsideration question on appeal and thereafter remands the
3. Ordinary Appeal Under Rule 40 case to the lower court for further proceedings;
4. Ordinary Appeal Under Rule 41 the question settled by the appellate court
5. Petition for Review Under Rule 42 becomes the law of the case at the lower court
6. Petition for Review Under Rule 43 and in any subsequent appeal.
7. Petition for Review by Certiorari under Question of Law – Exists when there is doubt or
Rule 45 controversy as to what the law is on a certain
Can be Filed Beyond 15-day Period state of facts.

1. Petition for Relief from Judgment Under Question of Fact – When the doubt or
Rule 38 difference arises as to the truth or falsehood of
2. Petition for Annulment of Judgment facts, or when the query necessarily invites
Under Rule 47 calibration of the whole evidence considering
3. Petition for Certiorari Under Rule 65 mainly the credibility of witnesses, existence
and relevancy of specific surrounding
MODES OF APPEAL (Rules 40, 41, 42, 43, 45) circumstances, their relation to each other and
to the whole and probabilities of the situation.
Nature of Right to Appeal – The right to appeal
is not a natural right and is not part of due Test Whether a Question is of Law or Fact – If
process. It is merely a statutory privilege and the appellate court can determine the issue
may be exercised in accordance with the law. raised without reviewing or evaluating the
The party who seeks to avail of the same must evidence and would only limit itself to the
comply with the requirements of the Rules. inquiry of whether the law was properly
Failing to do so, the right to appeal is lost. applied to the given facts and supporting
evidence, it is a question of law. Otherwise, it is
To merit liberality in application, the appellant
a question of fact.
must show reasonable cause justifying its non-
compliance with the rules and must convince Rule 40 – Appeals from the decision of first-level
the appellate court that the outright dismissal courts to the Regional Trial Court.
of the appeal would defeat the administration
of substantial justice. Note: Decisions made by first-level court in
exercise of its delegated jurisdiction under BP
129 are appealable to the Court of Appeals.
Fresh-Period Rule – The 15-day period to file an exhibits, which s/he shall notify as
appeal is counted from the receipt of the denial complete, to the proper regional trial
of either the motion for new trial or motion for court.
reconsideration if ever on is filed. The purpose 2. Upon receipt of the original records or
of which is to standardize the appeal periods records on appeal, the clerk of court of
and afford litigants fair opportunity to appeal the RTC shall notify the parties of such
their cases. receipt of records.
3. Within 15 days upon receipt of notice,
Note: If no MNT or MR was filed, the decision
the appellant shall file a memorandum
will become final executory after 15-days from
which shall discuss the errors imputed
the receipt of the losing party of the decision.
to the lower court, copy furnished the
Notice of Appeal vs. Record on Appeal - An adverse party. Failure to file
appeal by notice of appeal transfers the original memorandum is a ground for dismissal.
records to the appellate court, potentially 4. Within 15 days upon appellant’s
hindering the trial court from proceeding with memorandum, appellee shall also file
unresolved parts of the case. In contrast, record memorandum. Expiration of the period
on appeal allows the trial court to continue with of filing the same, the case shall be
the rest of the case because the original records deemed for decision.
remain with them.
Dismissal by First Level Court for Lack of
When an Appeal is Deemed Perfected – Upon Jurisdiction – The RTC may affirm or reverse it.
Filing of the notice of appeal in due time. But if the dismissal is by lack of jurisdiction on
subject matter, and the RTC has jurisdiction over
Residual Power - Refers to the authority of the the same, in case of affirmance, the RTC shall
trial court to issue orders even if it has lost try the case on the merits as if the case was
jurisdiction over the case by notice of appeal or originally filed with it. If it reverses the
record on appeal, prior to the transmittal of dismissal, it shall remand the case.
records of the case to the appellate court.
If the lower court decide on a case even without
Uses for Residual Jurisdiction – (1) Approve jurisdiction over the subject matter, the RTC
compromises; (2) Permit appeals by indigent shall not dismiss the case if it has original
litigants; (3) Order execution pending appeal; jurisdiction.
and (4) Allow withdrawal of the appeal,
Rule 41 – Appeals from the decision of RTC
When Available - Prior to the transmittal of the having original jurisdiction to CA.
original record or the record on appeal even if
the appeal has already been perfected or Order Not Subject of Appeal (relief-
despite the approval of the record on appeal or interlocutory-appeal-set aside-execution-
in case of a petition for review under Rule 42 several parties-prejudice)
before the CA gives due course to the petition.
1. An order denying a petition for relief or
Procedure in Appeals Under Rule 40 any similar motion seeking relief from
judgment;
1. Within 15 days form the perfection of 2. An interlocutory order;
appeal, the clerk of court shall transmit 3. An order disallowing or dismissing an
the original record or record on appeal, appeal;
together with the transcripts and
 4. An order denying a motion to set aside 1. The reckless or gross negligence of the
a judgment by consent, confession, or counsel deprives the client of due
compromise on the ground of fraud, process;
mistake, duress, or any other ground 2. When the application of the rule will
vitiating consent; result in outright deprivation of the
5. An order of execution; client’s liberty or property; and
6. A judgment or final order for or against 3. Where the interest of justice so
one or more of several parties or in requires.
separate claims, counterclaims,
Grounds for Dismissal Under Rule 41
crossclaims, and third-party complaints,
while the main case is pending, unless 1. Failure of the record on appeal to show
the court allows an appeal therefrom; on its face that the appeal was taken
and within the period fixed by the Rules;
7. An order dismissing an action without 2. Failure to file the notice of appeal or the
prejudice. record on appeal within the period
prescribed by the Rules;
Since appeal is not available in these cases, the
3. Failure of the appellant to pay the
appellant may file a special civil action under
docket and other lawful fees;
Rule 65.
4. Unauthorized alterations, omissions, or
Failure to File Appellant’s Brief – Failure to file additions in the approved record on
appellant’s brief results in abandonment of the appeal;
appeal and ultimately, to dismissal. 5. Failure of the appellant to serve and file
the required number of copies of his or
But the CA may allow late filing, provided:
her brief or memorandum within the
1. The circumstances warrant the time provided by the Rules;
application of court’s liberality (upon 6. Absence of specific assignment of errors
good cause and won’t violate in the appellant’s brief, or of page
substantial rights); references in the records;
2. Strong consideration of equity 7. Failure of the appellant to take the
justifies an exception to the necessary steps for the correction or
procedural rule in the interest of completion of the record within the
substantial justice; time limited b the court in its order;
3. No material injury has been suffered 8. Failure of the appellant to appear at the
by the appellee by the delay; preliminary conference under Rule 48
4. There is no contention that the or to comply with orders, circulars, or
appellee’s cause was prejudiced; and directives of the court without
5. At least there is no motion to dismiss justifiable cause; and
filed. 9. The fact that the order or judgment
appealed form is not appealable.
Inadvertence of counsel leading to non-filing of
Appellant’s Brief should not be considered as Withdrawal of Appeal – Matter of right before
adequate excuse to call for the appellate court’s the filing of appellee’s brief, matter of Court’s
indulgence, except: discretion after filing of the appellee’s brief.
Motion for New Trial – MNT can be filed even if If the decision of RTC is in its appellate
an appeal has already been perfected from RTC jurisdiction, the appellant may issue questions
to CA, and before CA loses its jurisdiction over of law and questions of fact, or questions of fact
the case, on the ground of newly discovered and law before the CA under Rule 42. If the
evidence which he could not, by reasonable appellant filed notice of appeal, it should be
diligence, have produced or discovered which if dismissed for it should be Petition for Review
presented would probably alter the result. under Rule 42 that should be filed.

When Appeal is Deemed Submitted for Appeals from Decisions of CTA and CIAC -
Decision Under the present law, the decision of CTA and
Construction Industry Arbitration Commission is
1. Where no hearing on the merits of the
appealable directly to the Supreme Court
main case is held, upon the filing of the
through petition for review on Certiorari under
last pleading, brief, or memorandum, or
Rule 45.
the expiration of the period for its filing;
2. Where a hearing is held, upon its Appeals from Decision of NLRC – Decisions and
termination or upon the filing of the last orders of NLRC are subject to a petition for
pleading or memorandum, or the certiorari under Rule 65 to be filed with the CA,
expiration of the period for its filing. not SC, following the doctrine of hierarchy of
court.
Judgment – Once a case is already submitted for
decision, the CA may affirm, reverse, or modify Cases Where SC Can be a Trier of Facts:
the judgment or final order appealed from, and
1. When the factual findings of the CA and
may direct a new trial or further proceedings.
the trial court are contradictory;
Harmless Error Rule – Minor or harmless errors 2. When the findings are grounded only on
during a trial do not require reversal of the speculations, surmises, or conjectures;
judgment by an appellate court. An error is 3. When the factual findings of CA is
harmless if the reviewing court determines that manifestly mistaken, unjust, or
no substantial rights of the defendant were impossible.
affected, and that error did not influence or had 4. When there is grave abuse of discretion
only very slight influence on the verdict. in the appreciation of facts;
5. When the CA goes beyond the issues of
Rule 42 – Appeals from the decision of RTC
the case, and such findings are contrary
having appellate jurisdiction to CA.
to the admissions of both appellant and
Rule 43 – Appeals from quasi-judicial bodies to appellee;
CA. 6. When the judgment of CA is based on
misapprehension of facts;
Appeals of decisions of RTC in its original 7. When CA fails to notice certain relevant
jurisdiction to CA under Rule 41 should raise facts which, if properly considered, will
only either questions of fact or questions of fact justify a different conclusion;
and law. Appeals under Rule 41 raising only 8. When the dings of fact are themselves
pure questions of law should be dismissed. The conflicting;
proper remedy would be to file Petition for 9. When the findings of fact are
Review on Certiorari under Rule 45. conclusions without citation of the
 specific evidence on which they ae 6. Error in the choice or mode of appeal;
based; and and
10. When the findings of fact of the CA are 7. The fact that that case is not appealable
premised on the absence of evidence to the Supreme Court.
but such findings are contracted by the
evidence on record.

Requisites for the Court to Entertain the Filing

of Appeal by Certiorari:

1. The case does not only exclusively raise

questions of law, but also that it
distinctly sets forth those legal issues;
2. That it be filed within 15 days of notice
of the adverse ruling that impels it;
3. That docket and other lawful fees are
paid;
4. That proper service is made;
5. That all maters that Sec. 4 of ule 45
specifies are indicated, stated, or
otherwise contained in it;
6. That it is manifestly meritorious;
7. That it is not prosecuted manifestly for
the delay; and
8. That the question raised in it are of such
substance as to warrant consideration.

Grounds for Dismissal Under Rule 45

1. Failure to take the appeal within the

reglementary period;
2. Lack of merit on the petition;
3. Failure to pay the docket fee and other
lawful fees or to make a deposit for
costs;
4. Failure to comply with the requirements
regarding proof of service and contents
and of and the documents which should
accompany the petition;
5. Failure to comply with any circular,
directive or order of the Supreme Court
without justifiable cause;
 applicant was not able to appeal because of
FAME)

Note: In petition for Relief from Denial of

Appeal, the party was not denied of appeal by
the court since appeal is a right. Appeal was
denied from the petitioner by FAME.

Grounds for Petition for Relief:

1. Fraud (Extrinsic Fraud)

PETITION FOR RELIEF (RULE 38) 2. Accident
When the 15-day period lapses, the losing party 3. Mistake
loses the right to file MNT, MR, appeal, or 4. Excusable Negligence
petition for review as the case has become final Requirements:
and executory. Then, Petition for Relief becomes
available. 1. Verified Petition for Relief
2. Affidavit showing the fraud, accident,
That is why it has become a petition because it mistake, or excusable negligence and
is now a matter of discretion on the part of the the facts constituting good and
Court. substantial cause of action or defense,
However, the relief will not be granted to a as the case may be.
party who seeks avoidance from the effects of When to file – Within 6 months after such
the judgment when the loss of the remedy at judgment or final order was entered or other
law was due to his or her own negligence or a proceeding was taken, and within 60 days after
mistaken mode of procedure. the petitioner learns of the judgment, final
Petition for Relief from Judgment, Order, or order, or other proceeding to be set aside.
Other Proceedings – when a judgment or final If the court deems the petition to be sufficient
order is entered, or any other proceeding is in form and substance, it shall issue an order
thereafter taken against a party in a court requiring the adverse party to file an answer
through fraud, accident, mistake, or excusable within 15 days from receipt thereof.
negligence, he or she may file a petition in such
court and in the same case praying that the Preliminary Injunction – The petitioner may ask
judgment, order, or proceeding be set aside. (In for Preliminary Injunction in the Petition for
this case, a judgment was entered because of Relief and the court may issue such upon the
FAME) filing by the petitioner of bond in favor of the
adverse party. If the petition is dismissed, he or
Petition for Relief from Denial of Appeal – she will pay the adverse party all damage and
When a judgment or order is rendered by any costs that may be awarded to him/her by
court in a case, and a party thereto, by fraud, reason of the issuance of such injunction.
accident, mistake, or excusable negligence, has
been prevented from taking an appeal, he or When Court Shall Hear the Petition
she may file a petition in such court and in the 1. After the respondent has filed his/her
same case praying that the appeal be given due answer; or
course. (In this case, judgment was entered but
 2. Upon expiration of the given period to
file an answer.

Effects of Judgment

1. If Allegations in the Petition are Not

True – the Court shall dismiss the
petition.
2. If Allegations in the Petition are True –
The Court shall grant the petition and
then proceed to hear and determine
the case as if a timely MNT or MR had
been granted by it.
3. If the Petition for Relief from Denial of
Appeal is Granted – The Court shall give
due course to the appeal and shall
elevate the record of the case as if a
timely appeal and proper appeal had
been made.

Remedy for Denial of Petition for Relief –

Denial of Petition for Relief is unappealable.
Hence, the only remedy is through Petition for
Certiorari under Rule 65.
 1. To avoid delay in the administration of
justice
2. To put an end to judicial controversy at
the risk of occasional errors

Coverage of Rule 47 – Covers annulment by the

CA of the judgments or final orders, or
resolution in civil actions of Regional Trial Courts
whereby the ordinary remedy of new trial,
appeal, petition for relief of judgment, or other
PETITION FOR ANNULMENT OF appropriate remedies are no longer available
JUDGMENT (RULE 47) through no fault of the petitioner.

Grounds for Petition for Annulment When Petition for Annulment of Judgment is
Not Available
1. Extrinsic Fraud except when it was
availed of, or could have been availed 1. When the petitioner has already availed
of, in a motion for new trial or petition of the remedy of new trial, appeal,
for relief. petition for relief, or any other
2. Lack of jurisdiction (over the person and appropriate remedy and lost; and
over the subject matter. Lack of 2. When the petitioner failed to avail of
jurisdiction should not be merely an those remedies through his or her own
abuse of discretion but absolute lack of fault or negligence.
jurisdiction).
Note: These are not imposed when the ground
3. Lack of due process
for the Petition is lack of jurisdiction because
Note: Petitioner should show that ordinary the judgment or final order, being void, can be
remedies of new trial, appeal, petition for relief, attacked collaterally or by direct action.
or other appropriate remedies are no longer
What to File
available through no fault of the petitioner.
1. If with the RTC – One original copy
When to File
(properly marked) of the verified
1. If on the ground of extrinsic fraud – petition with stated annexes attached to
Within 4 years from the discovery it, and sworn certification against forum
2. If on the ground of lack of jurisdiction – shopping.
before it is barred by laches or estoppel. 2. If with the CA – One original copy
(properly marked) of the verified
Objective of Petition for Annulment of petition and two additional copies with
Judgment - To undo or set aside the judgment annexes and sworn certification against
or final order, and thereby grant the petitioner forum shopping.
an opportunity to prosecute his or her cause or
to ventilate his or her defense. Effects of Judgment

Purpose of Doctrine of Immutability and If the Court grants the annulment of judgment,
Unalterability: it shall set aside the questioned judgment or
final order or resolution and render the same
null and void, without prejudice to the original 4. When the questioned order amounts to
action being refiled in the proper court. an oppressive exercise of judicial
authority.
However, if the Ground is Extrinsic Fraud – the
court may, on motion, order the trial court to Grounds for Petition for Certiorari – Grave
try the case as if a timely motion for new trial abuse of discretion amounting to lack or excess
had been granted therein. of jurisdiction.

Note: the prescriptive period for the refiling of Grave Abuse of Discretion – There is grave
the original action shall be suspended until the abuse of discretion when such act is done in a
finality of the judgment of annulment except capricious or whimsical exercise of judgment as
when the ground for annulment is extrinsic is equivalent to lack of jurisdiction.
fraud attributable to the plaintiff. Thus, after the
The abuse of discretion must be so patent and
final judgment in annulment has been rendered,
gross as to amount to an evasion of a positive
the plaintiff may no longer has rights to re-file
duty or to a virtual refusal to perform a duty
the case if the prescription has lapsed.
enjoined by law, or to act at all in contemplation
SPECIAL CIVIL ACTION ON of law, as where the power is exercised in an
arbitrary and despotic manner by reason of
CERTIORARI (RULE 65)
passion and hostility.
Purpose of Certiorari Proceeding – Certiorari
Thus, there is grave abuse of discretion of the
proceeding is limited in scope and narrow in
court or tribunal acted in a capricious,
character as it can only correct acts rendered
whimsical, arbitrary, or despotic manner in the
without jurisdiction, in excess of jurisdiction, or
exercise of its jurisdiction as to be equivalent to
abuse of discretion. Thus, it corrects only errors
lack of jurisdiction.
in jurisdiction. If the Court decides within its
jurisdiction, what can only be attacked are When to File – 60 days from notice of the
errors in judgment through petition for review. judgment, order, or resolution.

When available – Petition for Certiorari is If MNT or MR was filed, 60 days from the notice
available only when there is no other plain, of the denial of the motion.
speedy, or adequate remedy in the ordinary
However, filing a petition for Certiorari may be
course of law. However, Petition for Certiorari is
extended for compelling reasons or good and
not a substitute for a lost appeal; it cannot be
sufficient reason and the motion be filed before
allowed when a party to a case fails to appeal a
the expiration of the time sought to be
judgment to the proper forum, especially if
extended.
one’s own negligence caused such loss or lapse.
Compelling Reasons:
Instances when Petition for Certiorari is
Allowed Even if Appeal is Available 1. When the assailed decision was
contradictory to the evidence
1. When public welfare and advancement
presented;
of public policy dictates;
2. In a motion for consolidation of several
2. When the broader interest of justice so
criminal cases, when the relief sought
requires;
would be more in keeping with law and
3. When the writs issued are void; and
equity, and to facilitate a speedy trial,
 considering that there was a substantial 7. Where the proceedings in the lower
identity in the information filed and the court are a nullity for lack of due
witnesses to be presented; process;
3. Where paramount public interest 8. Where the proceedings were ex parte in
necessitated that the dispute involving which the petitioner had no opportunity
the operations of a major power plant to object; and
be resolved in the merits; 9. Where the issue raised is one purely of
4. Where the case involved the law or where the public interest is
expropriation of private property to involved.
build a major highway and no undue
prejudice or delay will be caused to
either party in admitting the petition;
and
5. When the appellate court had already
granted an extension but later reversed
itself.

Instances where Certiorari does not require

MR:

1. Where the order is patent nullity, as

where the court a quo has no
jurisdiction;
2. Where the questions raised in the
certiorari proceedings have been duly
raised and passed upon by the lower
court, or are the same as those raised
and passed upon in the lower court;
3. Where there is an urgent necessity for
the resolution of the question and any
further delay would prejudice the
interests of the government of or the
petitioner or the subject matter of the
action is perishable;
4. Where under the circumstances, a
motion for reconsideration would be
useless;
5. Where the petitioner was deprived of
due process and there is extreme
urgency for relief;
6. Where, in a criminal case, relief from an
order of arrest is urgent and granting of
such relief by the trial court is
improbable;
 that may be recovered in any cases mentioned
in Rule 57, Sec. 1.

When issued: At the commencement of the

action or anytime before entry of judgment.

Purpose: To have the property of the defendant

attached as a security for the satisfaction of any
judgment that may be secured in the said action
by the attaching creditor against said defendant.

If the main action was appealed: If the main

action was appealed, the attachment issued is
also considered appealed and removed from
the jurisdiction of the court that first rendered a
judgment.

Thus, a preliminary attachment ceases to exist

PROVISIONAL REMEDIES
upon entry of judgment in the proceeding
Provisional Reliefs – Writs and processes that where it was issued.
are available during the pendency of an action.
When should it be used: Preliminary
Purpose: To preserve and protect certain rights attachment should only be used when
and interests pending judgment in the case. necessary and as a last resort because it
exposes the debtor to humiliation and
Why provisional: Because they are temporary annoyance.
measures availed of during the pendency of the
action; and are ancillary because they are mere When should it be granted: Should be granted
incidents in and are dependent on the result of only on concrete and specific grounds and not
the main action. merely on general averments quoting the words
of the rule.
What are the provisional remedies:
Interpretation of the rules: Since attachment is
1. Preliminary attachment harsh, extraordinary, and summary in nature,
2. Preliminary injunction the rules on the application of a writ of
3. Receivership attachment must be strictly construed in favor
4. Replevin of the defendant.
5. Support pendente lite
Grounds for the Issuance of Preliminary
WRIT OF PRELIMINARY Attachment
ATTACHMENT (Rule 57) 1. In action for the recovery of a specified
Preliminary Attachment – Remedy issued by amount of money or damages, other
the court at the commencement of the action than moral or exemplary, on a cause of
or any time before entry of judgment, to have action arising from law, contract, quasi-
the property of the adverse party attached as contract, delict, or quasi-delict, against
security for the satisfaction of any judgment a party who is about to depart from the
 Philippines with intent to defraud his or Common Element – The common element
her creditors; involved in the grounds for the grant of
2. In an action for money or property preliminary attachment is fraud, except on the
embezzled or fraudulently misapplied or last ground.
converted to his or her own use by a
Fraudulent intent as a mindset – In 4th ground
public officer, or an officer of a
(In an action against a party who has been guilty
corporation, or an attorney, factor,
of fraud in contracting the debt or incurring the
broker, agent, or clerk, in the course of
obligation upon which an action is brought, or in
his or her employment as such, or by
the execution thereof), it must be shown that
any other person in a fiduciary capacity,
the debtor intended to defraud the creditor;
or for a willful violation of duty;
that he has a preconceived plan or intention not
3. In an action to recover the possession of
to pay. Since fraud is a state of mind, fraud
property unjustly or fraudulently taken,
cannot be inferred from a bare allegation of
detained, or converted, when the
non-payment of debt or non-performance of
property or any part thereof, has been
obligation. Thus, the applicant for a writ of
concealed, removed, or disposed of to
preliminary attachment must sufficiently show
prevent its being found or taken by the
the factual circumstances of the alleged fraud.
applicant or an authorized person;
4. In an action against a party who has How fraud is proved – It need not be proved by
been guilty of fraud in contracting the direct evidence and can well be inferred from
debt or incurring the obligation upon attendant circumstances shown to have been
which the action is brought, or in the involved in the transaction in question.
performance thereof.
5. In an action against a party who has Reason for the last Ground – The purpose of
removed or disposed of his or her the last ground for preliminary attachment (in
property, or is about to do so, with action against a party who does not reside or is
intent to defraud his or her creditors. not found in the Philippines, or on whom the
6. In an action against a party who does summons may be served by publication) is for
not reside and is not found in the the court to acquire jurisdiction over the action
Philippines, or on whom the summons in personam by converting it to action in rem or
may be served by publication. quasi in rem.

Purposes of Preliminary Attachment: In action in personam, summons can only be

served by personal or substituted service,
1. To seize the property of the debtor (or otherwise, the court does not acquire
defendant) in advance of final judgment jurisdiction over the defendant.
and to hold it for purposes of satisfying
said judgment; If the defendant does not reside or is not found
2. To acquire jurisdiction over the action in the Philippines, the action in personam shall
by actual or constructive seizure of the be converted into action in rem or quasi in rem
property in those instances where by attaching the property belonging to the
personal or substituted service of defendant. The service of summons in this case
summons on the defendant cannot be is no longer for the purpose of acquiring
effected. jurisdiction but for compliance with the
requirements of the due process.
 Requisites – An order of attachment can be Reason: Applicant may apply for the writ at the
granted when it appears by the affidavit of the commencement of the action. At this point, the
applicant, or some other person who knows the court has no jurisdiction over the person of the
facts that: defendant. To acquire jurisdiction, summons
and complaint must be served alongside the
1. A sufficient cause of action exists;
order of attachment.
2. The case is one of those mentioned in
Sec. 1 of Rule 57; Three Stages of the Grant of Provisional
3. There is no other sufficient security for Remedy
the claim sought to be enforced by the
1. The court issues the order granting the
action; and
application for the writ
4. That the amount due to the applicant,
2. The writ of attachment issues pursuant
or the value of the property the
to the order granting the writ; and
possession of which he or she is entitled
3. The writ is implemented.
to recover, is as much as the sum for
which the order is granted above all Note: Jurisdiction over the person is not
legal counterclaims. necessary in the first two stages (kaya ang order
of attachment ay pwedeng ex parte or upon
Requirement of bond – Applicant must give a
motion and notice by the court). Tsaka kaya
bond to the adverse party in the amount fixed
pwede siya i-issue at the commencement of the
by the court in its order granting the issuance of
action, meaning wala pang jurisdiction ang
the writ.
court. Need lang jurisdiction kapag i-eenforce na
Purpose of bond – To pay all the costs which yung attachment.
may be adjudged by the adverse party and all
Requirement of Prior or Contemporaneous
damages which he or she may sustain by reason
Service of Summon is Not Applicable when:
of the attachment if the court shall finally
adjudge that the applicant was not entitled 1. When the summons could not be
thereto. served personally or by substituted
service despite diligent efforts,
Issuance and Implementation of the Writ:
2. Where the defendant is a resident of
The order of attachment may be issued either the Philippines temporarily absent
ex parte or upon motion with notice and therefrom;
hearing by the court in which the action is 3. Where the defendant is a non-resident
pending, or by the CA or SC. of the Philippines;
4. Where the action is one in rem or quasi
The order of attachment shall not be enforced
in rem.
on the defendant in the Philippines unless it is
preceded or contemporaneously accompanied Reason: Summon cannot be served. In such
by: instances, the summons is served by publication
so these instances fall on the last ground
1. service of summons
(against a party who is not a resident or is not
2. copy of the complaint
found in the Philippines, or on whom the
3. application for the attachment
summon may be served by publication).
4. applicant’s affidavit and bond
5. order and writ of attachment Manner of Attaching Property
Once the Court issued the writ, the sheriff shall 5. The interest of the party against whom
without delay and with reasonable diligence: the attachment is issued in property
belonging to the estate of the decedent,
1. Attach only so much of the property in
whether as heir, legatee, or devisee.
the Philippines of the defendant, not
exempt from execution, as may be Effect of Attachment of Debts, Credits, and
sufficient to satisfy the applicant’s Other Personal Property not capable of Manual
demand. Delivery

Unless: the defendant makes a deposit with the Discharge of Attachment:

court, or gives a counterbond executed to the
The attachment may be discharged when:
applicant, in an amount equal:
1. The party against whom the attachment
1. bond fixed by the court in the order of
is issued makes a cash deposit to the
attachment; or
court that ordered the attachment or
2. to the value of the property attached,
posted a counter-bond in the amount
exclusive of the costs.
equal to the bond fixed by the court in
the order of attachment or equal to the
value of the property attached; or
Sherrif’s Return:
2. The party whose property has been
After enforcing the writ, the sheriff shall, ordered attached files a motion with the
without delay, make a return with: court, before or after levy, or even after
the release of the property, for an order
1. Full statement of his proceedings under to set aside or discharge the attachment
the writ; and on the following grounds:
2. A complete inventory of the property a. The order and the writ was
attached, together with any improperly or irregularly issued or
counterbond given by the defendant, enforced;
and serve copies thereof to the b. The attachment is excessive;
applicant. c. The bond is not sufficient.
Properties that may be subject of attachment: Note: The attaching party may oppose the
1. Real property or growing crops thereon, motion (2nd method in discharging the
or any interest therein; attachment) by filing a counter-affidavit or other
2. Personal property capable of manual evidence.
delivery;
3. Stocks or shares, or an interest in stocks
or shares, of any corporation or
company
4. Debts, credits, including bank deposits,
financial interest, royalties,
commissions, and other personal
property not capable of manual
delivery;
 the parties and one of them is committing an
act or threatening the immediate commission of
an act that will cause irreparable injury or
destroy the status quo of the controversy before
a full hearing on the merits of the case can be
had.

Status quo – the last, actual, peaceable, and

uncontested status which preceded the
controversy.

Preliminary Injunction – 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 preliminary
mandatory injunction.

PRELIMINARY INJUNCTION (RULE 58)

Concept/Nature of Preliminary Injunction – It is PRELIMINARY INJUNCTION AS MAIN
an injunctive relief and preservative remedy for INJUNCTION CASE
the protection of the substantive rights and PURPOSE Does not determine the Seeks a judgment that
merits of a case, since it embodies a final
interests of a party to the case. Being a mere
is a mere preventative injunction which
preservative remedy for the protection of
remedy, usually granted perpetually restrains
party’s substantive rights and interests, it is not
when it is made to the party or person
a cause of action in itself but is merely a appear that there is a enjoined from the
provisional remedy, adjunct of the main case. substantial controversy commission or
Provisional in Nature – Preliminary injunction, between the parties and continuance of an act,
one of them is or one which confirms
like TRO, is provisional in nature because it is a
committing an act, or the preliminary
temporary measure availed during the
threatening the mandatory injunction.
pendency of the action. Its nature is ancillary immediate commission
because it is a mere incident and dependent of an act that will cause
upon the result of the main case. irreparable injury or
destroy the status quo
Object/Purpose – To prevent the threatened or
of the controversy,
continuous irremediable injury to the parties
before a full hearing on
before the claims can be thoroughly studied. Its the merits of the case
sole aim is to preserve the status quo until the can be had.
merits of the case can be heard. WHEN Granted at any stage of Issued when the court,
GRANTE an action or proceeding after trial on the
It is usually granted when it is made to appear
D prior to judgment or merits, is convinced
that there is substantial controversy between
 final order. that the applicant is (substantial and material invasion of
entitled to have the right);
act or acts complained2. The right of the complainant is clear and
of to be permanently unmistakable (clear and unmistakable
enjoined. existence of right); and
3. There is an urgent and paramount
KINDS OF PRELIMINARY INJUNCTION necessity for the writ to prevent serious
damage (necessity for the writ).
1. Prohibitory Injunction – which
commands a party to refrain from a Note: while a clear showing of right is necessary,
particular act or acts. the existence of such right need not be
2. Mandatory Injunction – which conclusively established. Mere prima facie
commands the performance of a evidence suffices because the right to the writ
particular act or acts. of preliminary injunction is generally based
solely on initial and incomplete evidence
GROUNDS FOR PRELIMINARY INJUNCTION adduced by the applicant. Hence, it is sufficient
1. That the applicant is entitled to the that the complaint shows that he or she has an
relief demanded, the whole or part of ostensible right to the relief prayed for in the
such relief consists in restraining the complaint, in order to be entitled to the writ.
commission or continuance of the act or Who may issue the writ – the court in which
acts complained of, or in requiring the the action or proceeding is pending.
performance of an act or acts, either for
a limited period or perpetually;
2. That the commission, continuance or Preliminary Injunction not Granted Without
non-performance of the act or acts Notice
complained of during the litigation
would probably work injustice to the General Rule: No preliminary injunction shall be
applicant; or granted without hearing and prior notice to the
3. That a party, court, agency or a person party or person sought to be enjoined. If it shall
is doing, threatening, or is attempting to appear from the facts shown by affidavits or by
do, or is procuring or suffering to be the verified application that great or irreparable
done, some act or acts probably in injury would result to the applicant before the
violation of the rights of the applicant matter (preliminary injunction) can be heard on
respecting the subject of the action or notice, the Court to which the application for
proceeding and tending to render the injunction was made, may issue a temporary
judgment ineffectual. restraining order (TRO) for a period of 20 days
(if trial court), 60 days (if CA), and valid until
Requisites of Preliminary Injunction – further orders (if SC).
Preliminary injunction may be issued upon the
concurrence of the following essential Exception: If, from the affidavit or application
requisites: for preliminary injunction, the matter is of
extreme urgency and the applicant will suffer
1. The invasion of right sought to be grave injustice and irreparable injury, the Court
protected is material and substantial may issue a TRO valid for 72 hours. Within 72
hours, the court shall conduct summary hearing
to determine whether the TRO shall be hearingalways ex parte
extended until the application for preliminary in the case of
injunction can be heard. the 72-hour
TRO
When TRO is issued – Prior to the issuance by PERIOD OF Remains Effective only
the court of a preliminary injunction, the court EFFECTIVITY effective for 72 hours or
may issue a TRO if it shall appear from the facts until the 20 days in the
shown by affidavits or by the verified main action trial court, 60
application that great or irreparable injury is days if issued
would result to the applicant before the matter terminated by the CA, and
(preliminary injunction) can be heard on notice. or vacated for an
TRO to be effective only for 20 days (if trial by the court indefinite
court), 60 days (if CA), and until further orders period until
further orders
(if SC) from service on the ex parte or person
if issued by the
sought to be enjoined.
SC.
Irreparable Injury – If an injury is of such
constant and frequent recurrence that no fair or Distinction between TROs
reasonable redress can be had in a court of law,
72-hour 20-day 60-day Indefinite
or where there is no standard by which their Period
amount can be measured with reasonable Who Trial court, Trial court CA SC
accuracy, that is, it is not susceptible of issues CA, SC
Ex Always Granted Granted Granted
mathematical computation.
parte after a after a after a
? summary summary summary
hearing hearing hearing or
or ex or ex ex parte
Period of Effectivity of TRO – TRO may be: parte parte
What the court The court The court The court
1. For 72 hours if the matter is of extreme needs shall must must must
urgency and the applicant will suffer to be conduct order the order the order the
grave injustice and irreparable injury; done summary party party party
hearing to against against against
2. For 20 days if RTC issued the TRO;
determine whom the whom whom the
3. 60 days if it is the CA that issued the whether order was the order order was
TRO; and the TRO issued to was issued to
shall be show issued to show
4. Until further orders if issued by the SC.
extended cause show cause why
until the why the cause the
What happens during effectivity of TRO – The
application injunction why the injunction
court must order the party against whom the for should injunction should not
order was issued to show cause why the preliminary not be should be
injunction granted. not be granted.
injunction should not be granted. Failure in his
can be granted.
regard will constrain the court to grant the heard.
application for preliminary injunction. Procedural Requirements in Applying for the
Writ or TRO
Distinctions between Injunction and TRO
1. File a verified application in the action
INJUNCTION TRO
or proceeding, showing facts entitling
HEARING Always Can be issued
requires a ex parte, and the applicant to the relief demanded;
2. Unless exempted, the applicant must Grounds for the Denial of Application
file a bond executed to the party or
1. Upon showing of its insufficiency;
person enjoined in an amount that he
2. On other grounds upon showing by the
or she will pay to such party all damages
affidavits of the person enjoined; and
which the latter may sustain by reason
3. If it appears after hearing that although
of the injunction or temporary
the applicant is entitled to the
restraining order should the court finally
injunction or restraining order, the
decided that the applicant is not
issuance or continuance thereof would
entitled thereto. Upon approval of the
cause irreparable damage to the party
requisite bond, a writ of preliminary
or person enjoined while the applicant
injunction shall be issued.
can be fully compensated for such
3. The applicant shall then serve the bond
damages as he or she may suffer, and
on the other party, who may except to
the former files a bond.
the sufficiency of the bond, or the
surety, or sureties thereon. The person Finality of Injunction – A preliminary injunction
who the injunction is issued against, or can be considered final if after the trial of the
the applicant in case the adverse party action, the court is convinced that the applicant
posted a counterbond, can claim is entitled to have the act or acts complained of
damages from the bond if such issuance be permanently enjoined, or in case of
or non-issuance caused damages to preliminary mandatory injunction, by
either party. confirming it.
4. When an application for a writ of
preliminary injunction and/or TRO is
included in a complaint or initiatory
pleading, the case shall be raffled if it is
a multiple sala court, after notice to and
in the presence of the adverse party or
the person to be enjoined. Such notice
shall be preceded by, or
contemporaneously accompanied with
service of summons and a copy of the
complaint, together with the applicant’s
affidavit and bond.

If the adverse party is not a resident or

is not found in the Philippines, the
service of summons shall be through
publication.
5. The application for TRO shall be acted
upon after all the parties are heard in a
summary hearing, which shall be
conducted within 24 hours after the
court received the sheriff’s return of
service and/or records.