BAR QUESTIONS AND ANSWERS ON

PROVISIONAL REMEDIES 1997-2006 Provisional Remedies; Attachment (1999)

May damages be claimed by a party prejudiced
Petition for Relief; Injunction (2002) by a wrongful attachment even if the judgment
A default judgment was rendered by the RTC is adverse to him? Explain. (2%)
ordering D to pay P a sum of money. The
judgment became final, but D filed a petition for SUGGESTED ANSWER:
relief and obtained a writ of preliminary Yes, damages may be claimed by a party
injunction staying the enforcement of the prejudiced by a wrongful attachment even if the
judgment. After hearing, the RTC dismissed D’s judgment is adverse to him. This is authorized
petition, whereupon P immediately moved for by the Rules. A claim, for damages may be
the execution of the judgment in his favor. made on account of improper, irregular or
Should P’s motion be granted? Why? (3%) excessive attachment, which shall be heard with
notice to the adverse party and his surety or
SUGGESTED ANSWER: sureties. (Sec. 20, Rule 57; Javellana v. D. O.
P’s immediate motion for execution of the Plaza Enterprises Inc., 32 SCRA 281.)
judgment in his favor should be granted because
the dismissal ofD’s petition for relief also Provisional Remedies; Attachment (2001)
dissolves the writ of preliminary injunction May a writ of preliminary attachment be issued
staying the enforcement of thejudgment, even if exparte? Briefly state the reason(s) for your
the dismissal is not yet final. [Golezv. answer. (3%)
Leonidas, 107 SCRA 187 (1981)].
SUGGESTED ANSWER:
Yes, an order of attachment may be issued ex-
Provisional Remedies (1999) parte or upon motion with notice and hearing.
What are the provisional remedies under the (Sec. 2 of Rule 57)
rules? (2%) The reason why the order may be issued ex
parte is: that requiring notice to the adverse
SUGGESTED ANSWER: party and a hearing would defeat the purpose of
The provisional remedies under the rules are the provisional remedy and enable the adverse
preliminary attachment, preliminary injunction, party to abscond or dispose of his property
receivership, replevin, and support pendente lite. before a writ of attachment issues.(Mindanao
(Rules57 to 61, Rules of Court). Savings and Loan Association, Inc. v.Court
of Appeals, 172 SCRA 480).
Provisional Remedies; Attachment (1999)
In a case, the property of an incompetent under Provisional Remedies; Attachment (2005)
guardianship was in custodia legis. Can it be Katy filed an action against Tyrone for
attached? Explain. (2%) collection of the sum of P1 Million in the RTC,
with an ex-parte application for a writ of
SUGGESTED ANSWER: preliminary attachment. Upon posting of an
Although the property of an incompetent under attachment bond, the court granted the
guardianship is in custodia legis, it may be application and issued a writ of preliminary
attached as in fact it is provided that in such attachment.
case, a copy of the writ of attachment shall be Apprehensive that Tyrone might withdraw his
filed with the proper court and notice of the savings deposit with the bank, the sheriff
attachment served upon the custodian of such immediately served a notice of garnishment on
property. (Sec. 7, last par., Rule 57)
the bank to implement the writ of preliminary however, serves as a ground for a motion to
attachment. The following day, the sheriff dismiss.
proceeded to Tyrone's house and served him the
summons, with copies of the complaint Provisional Remedies; Attachment vs.
containing the application for writ of Garnishment
preliminary attachment, Katy's affidavit, order (1999)
of attachment, writ of preliminary attachment Distinguish attachment from garnishment. (2%)
and attachment bond.Within fifteen (15) days
from service of the summons, Tyrone filed a SUGGESTED ANSWER:
motion to dismiss and to dissolve the writ of Attachment and garnishment are distinguished
preliminary attachment on the following from each other as follows: ATTACHMENT is
grounds: (i) the court did not acquire a provisional remedy that effects a levy on
jurisdiction over his person because the writ was property of a party as security for the
served ahead of the summons; (ii) the writ was satisfaction of any judgment that may be
improperly implemented; and (iii) said writ was recovered, while GARNISHMENT is a levy on
improvidently issued because the obligation in debts due the judgment obligor or defendant and
question was already fully paid. Resolve the other credits, including bank deposits, royalties
motion with reasons. (4%) and other personal property not capable of
manual delivery under a writ of execution or a
SUGGESTED ANSWER: writ of attachment.
The motion to dismiss and to dissolve the writ
of preliminary attachment should be denied. Provisional Remedies; Injunction (2001)
(1) The fact that the writ of attachment was May a writ of preliminary injunction be issued
served ahead of the summons did not affect the exparte? Why? (3%)
jurisdiction of the court over his person. It
makes the writ, unenforceable. (Sec. 5, Rule. 57) SUGGESTED ANSWER:
However, all that is needed to be done is to re- No, a writ of preliminary injunction may not be
serve the writ. (Onate v. issued ex parte. As provided in the Rules, no
Abrogar, GM. No. 197393, February 23, preliminary injunction shall be granted without
1985) hearing and prior notice to the party or person
(2) The writ was improperly implemented. sought to be enjoined. (Sec.5 of Rule 58) The
Serving a notice of garnishment, particularly reason is that an injunction may cause grave and
before summons is served, is not proper. It irreparable injury to the party enjoined.
should be a copy of the writ of attachment that
should be served on the defendant, and a notice Provisional Remedies; Injunction (2003)
that the bank deposits are attached pursuant to Can a suit for injunction be aptly filed with the
the writ. (Sec. 7[d], Rule 57) Supreme Court to stop the President of the
(3) The writ was improvidently issued if indeed Philippines from entering into a peace
it can be shown that the obligation was already agreement with the National Democratic Front?
fully paid. The writ is only ancillary to the main (4%)
action. (Sec. 13, Rule57) The alleged payment
of the account cannot, serve as a ground for SUGGESTED ANSWER:
resolving the improvident issuance of the writ, No, a suit for injunction cannot aptly be filed
because this matter delves into the merits of the with the Supreme Court to stop the President of
case, and requires full-blown trial. Payment, the Philippines from entering into a peace
agreement with the National Democratic Front,
which is a purely political question. (Madarang (4) Damages or injuries sustained or that will be
v. Santamaria, 37 Phil. 304 [1917]).The sustained by reason of such violation;
President of the Philippines is immune from (5) Notice to all parties of raffle and of hearing;
suit. (6) Hearing on the application;
(7) Filing of an appropriate bond and service
Provisional Remedies; Injunctions; Ancillary thereof.
Remedy vs. Main Action (2006)
Distinguish between injunction as an ancillary SUGGESTED ANSWER:
remedy and injunction as a main action. (2.5%) b. While a final writ of injunction may be
rendered by judgment after trial, showing
SUGGESTED ANSWER: applicant to be entitled to the writ (Sec. 9, Rule
Injunction as an ancillary remedy refers to the 58 1997 Rules of Civil Procedure).
preliminary injunction which requires the
existence of a pending principal case; while Provisional Remedies; Receivership (2001)
injunction as a main action refers to the Joaquin filed a complaint against Jose for the
principal case itself that prays for the remedy of foreclosure of a mortgage of a furniture factory
permanently restraining the adverse party from with a large number of machinery and
doing or not doing the act complained of. equipment. During the pendency of the
foreclosure suit, Joaquin learned from reliable
Provisional Remedies; Injunctions; Issuance sources that Jose was quietly and gradually
w/out Bond (2006) disposing of some of his machinery and
May a Regional Trial Court issue injunction equipment to a businessman friend who was
without bond? (2%) also engaged in furniture manufacturing such
that from confirmed reports Joaquin gathered,
SUGGESTED ANSWER: the machinery and equipment left with Jose
Yes, if the injunction that is issued is a final were no longer sufficient to answer for the
injunction. Generally, however, preliminary latter’s mortgage indebtedness. In the meantime
injunction cannot issue without bond unless judgment was rendered by the court in favor of
exempted by the trial court (Sec. 4[b] ofRule Joaquin but the same is not yet final.
58). Knowing what Jose has been doing. If you were
Joaquin’s lawyer, what action would you take to
Provisional Remedies; Injunctions; preserve whatever remaining machinery and
Requisites (2006) equipment are left with Jose? Why? (5%)
What are the requisites for the issuance of (a) a
writ of preliminary injunction; and (b) a final SUGGESTED ANSWER:
writ of injunction? Requisites for the issuance of To preserve whatever remaining machinery and
a: equipment are left with Jose, Joaquin’s lawyer
should file a verified application for the
SUGGESTED ANSWER: appointment by the court of one or more
a. Writ of Preliminary Injunction (Sec. 4, Rule receivers. The Rules provide that receivership is
58 1997 proper in an action by the mortgagee for the
Rules of Civil Procedure) are — foreclosure of a mortgage when it appears that
(1) A verified complaint showing; the property is in danger of being wasted or
(2) The existence of a right in esse; dissipated or materially injured and that its
(3) Violation or threat of violation of such right; value is probably insufficient to discharge the
mortgage debt. (Sec. 1 of Rule 59).
 pending in court and although the civil liability
Provisional Remedies; Replevin (1999) aspect of the crime has not been waived or
What is Replevin? (2%) reserved for a separate civil action, the trial for
the case was foreseen to take two long years
SUGGESTED ANSWER: because of theheavily clogged court calendar
Replevin or delivery of personal property before the judgment may be rendered. If you
consists in the delivery, by order of the court, of were the lawyer of Virginia, what action should
personal propertyby the defendant to the you take to help Virginia in the meantime
plaintiff, upon the filing of a bond. (Calo v. especially with the problem of feeding the
Roldan, 76 Phil. 445 [1946]) child? (5%)

Provisional Remedies; Support Pendente Lite SUGGESTED ANSWER:

(1999) To help Virginia in the meantime, her lawyer
Before the RTC, A was charged with rape of his should apply for Support Pendente Lite as
16year old daughter. During the pendency of the provided in the Rules. In criminal actions where
case, thedaughter gave birth to a child allegedly the civil liability included support for the
as a consequence of the rape. Thereafter, she offspring as a consequence of the crime and the
asked the accused to support the child, and civil aspect thereof has not been waived or
when he refused, the former filed a petition for reserved for a separate civil action, the accused
support pendente lite. The accused, however, may be ordered to provide support pendent elite
insists that he cannot be made to give such to the child born to the offended party. (Sec. 6
support arguing that there is as yet no finding as ofRule 61)
to his guilt. Would you agree with the trial court
if it denied the application for support pendente Provisional Remedies; TRO (2001)
lite? An application for a writ of preliminary
Explain. (2%) injunction with a prayer for a temporary
restraining order is included in a complaint and
SUGGESTED ANSWER: filed in a multi-sala RTC consisting of Branches
No. The provisional remedy of support pendente 1,2,3 and 4. Being urgent in nature, the
lite may be granted by the RTC in the criminal Executive Judge, who was sitting in Branch 1,
action for rape. In criminal actions where the upon the filing of the aforesaid application
civil liability includes support for the offspring immediately raffled the case in the presence of
as a consequence of the crime and the civil the judges of Branches 2,3and 4. The case was
aspect thereof has not been waived, reserved or raffled to Branch 4 and judge thereof
instituted prior to its filing, the accused may be immediately issued a temporary restraining
ordered to provide support pendente lite to the order. Is the temporary restraining order valid?
child born to theoffended party allegedly Why? (5%)
because of the crime. (Sec. 6 of Rule61.)
SUGGESTED ANSWER:
Provisional Remedies; Support Pendente Lite No. It is only the Executive Judge who can issue
(2001) immediately a temporary restraining order
Modesto was accused of seduction by Virginia, effective only for seventy-two (72) hours from
a poor, unemployed young girl, who has a child issuance. No other Judge has the right or power
by Modesto. Virginia was in dire need of to issue a temporary restraining order ex parte.
pecuniary assistance to keep her child, not to The Judge to whom the case is assigned will
say of herself, alive. The criminal case is still then conduct a summary hearing to determine
whether the temporary restraining order shall be Provisional Remedies; TRO; CA Justice
extended, but in no case beyond 20 days, Dept. (2006)
including the original 72hour period. (Sec. 5 of May a justice of a Division of the Court of
Rule 58) Appeals issue a TRO? (2%)

ALTERNATIVE ANSWER: SUGGESTED ANSWER:

The temporary restraining order is not valid Yes, a justice of a division of the Court of
because the question does not state that the Appeals may issue a TRO, as authorized under
matter is of extreme urgency and the applicant Rule 58 and by Section 5, Rule IV of the IRCA
will suffer grave injustice and irreparable injury. which additionally requires that the action shall
(Sec. 5 of Rule 58) be submitted on the next working day to the
absent members of the division for the
Provisional Remedies; TRO (2006) ratification, modification or recall (Heirs of the
Define a temporary restraining order (TRO). late Justice Jose B.L. Reyes v. Court of
(2%) Appeals, G.R. Nos.135425-26, November 14,
2000).
SUGGESTED ANSWER:
A temporary restraining order is an order issued Provisional Remedies; TRO; Duration (2006)
to restrain the opposite party and to maintain the What is the duration of a TRO issued by the
status quo until a hearing for determining the Executive Judge of a Regional Trial Court?
propriety of granting a preliminary injunction (2%)
(Sec. 4[c] and [d], Rule58, 1997 Rules of Civil
Procedure). SUGGESTED ANSWER:
In cases of extreme urgency, when the applicant
Provisional Remedies; TRO vs. Status Quo will suffer grave injustice and irreparable injury,
Order (2006) the duration of a TRO issued ex parte by an
Differentiate a TRO from a status quo order. Executive Judge of a Regional Trial Court is 72
(2%) hours (2nd par. of Sec.5, Rule 58 1997 Rules of
Civil Procedure). In the exercise of his regular
SUGGESTED ANSWER: functions over cases assigned to his sala, an
A status quo order (SQO) is more in the nature Executive Judge may issue a TRO for a duration
of a cease and desist order, since it does not not exceeding a total of 20 days.
direct the doing or undoing of acts, as in the
case of prohibitory or mandatory injunctive
relief. A TRO is only good for 20 days if issued
by the RTC; 60 days if issued by the CA; until
further notice if issued by the SC. The SQO is
without any prescriptive period and may be
issued without a bond. A TRO dies a natural
death after the allowable period; the Status Quo
Order does not. A TRO is provisional. SQO
lasts until revoked. A TRO is not extendible, but
the SQO may be subject to agreement of the
parties.
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Jurisdiction: Jurisdiction; RTC, Supra – 57), an application for damages on

JayArhSals] account of improper, irregular, or
excessive attachment is allowed. Such
damages may be awarded only after
proper hearing and shall be included in
Provisional Remedies (Rules the judgment on the main case.

57-61)
Moreover, nothing shall prevent the
party against whom the attachment was
Attachment; Bond (2008)
issued from recovering in the same

No.VI. After his properties were attached, action the damages awarded to him from

defendant Porfirio filed a sufficient any property of the attaching party not

counterbond. The trial court discharged the exempt from execution should the bond

attachment. Nonetheless, Porfirio suffered or deposit given by the latter be

substantial prejudice due to the insufficient or fail to fully satisfy the

unwarranted attachment. In the end, the award. (D.M. Wenceslao & Associates,

trial court rendered a judgment in Porfirio’s Inc. vs. Readycon Trading &

favor by ordering the plaintiff to pay Construction Corp., G.R. No. 154106, 29

damages because the plaintiff was not June 2004).

entitled to the attachment. Porfirio moved

to charge the plaintiff’s attachment bond.
The plaintiff and his sureties opposed the
Attachment; Garnishment (2008)
motion, claiming that the filing of the
counterbond had relieved the plaintiff’s No.VII. (a) The writ of execution was
attachment bond from all liability for the returned unsatisfied. The judgment obligee
damages. Rule on Porfirio’s motion. subsequently received information that a
bank holds a substantial deposit belonging
SUGGESTED ANSWER:
to the judgment obligor. If you are the
counsel of the judgment oblige, what steps
Porfirio‟s motion to charge the plaintiff‟s
would you take to reach the deposit to
attachment bond is proper. The filing of
satisfy the judgment?
the counterbond by the defendant does
not mean that he has waived his right to SUGGESTED ANSWER:
proceed against the attachment bond for
damages. Under the law (Sec. 20, Rule

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I will ask for a writ of garnishment The judgment oblige may invoke the
against the deposit in the bank (Sec. exception under Sec. 2 of the Secrecy of
9[c], Rule 57). Bank Deposits Act. Bank Deposits may
be examined upon order of a competent
ALTERNATIVE ANSWER:
court in cases if the money deposited is

I shall move the court to apply to the the subject matter of the litigation (R.A.
satisfaction of the judgment the 1405).

property of the judgment obligor or the

money due him in the hands of another
person or corporation under Sec. 40,
Attachment; Kinds of Attachment (2012)
Rule 39.

No.IX.B. Briefly discuss/differentiate the

(b) If the bank denies holding the deposit in
following kinds of Attachment:
the name of the judgment obligor but your
preliminary attachment, garnishment, levy
client’s informant is certain that the deposit
on execution, warrant of seizure and
belongs to the judgment obligor under an
warrant of distraint and levy. (5%)
assumed name, what is your remedy to
reach the deposit?
SUGGESTED ANSWER:
SUGGESTED ANSWER:
PRELIMINARY ATTACHMENT- is a
I will move for the examination under provisional remedy under Rule 57 of the
oath of the bank as a debtor of the Rules of Court. it may be sought at the
judgment debtor (Sec. 37, Rule 39). I will commencement of an action or at any
ask the court to issue an Order requiring time before entry judgment where
the judgment obligor, or the person who property of an adverse party may be
has property of such judgment obligor, attached as security for the satisfaction
to appear before the court and be of any judgment, where this adverse
examined in accordance with Secs. 36 party is about to depart from the
and 37 of the Rules of Court for the Philippines, where he has intent to
complete satisfaction of the judgment defraud or has committed fraud, or is
award (Co vs. Sillador, A.M. No. P-07- not found in the Philippines. An affidavit
2342, 31 August 2007). and a bond is required before the
preliminary attachment issues. It is
ALTERNATIVE ANSWER:
discharged upon the payment of a
counterbond.

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GARNISHMENT- is a manner of satisfying WARRANT OF SEIZURE- is normally

or executing judgment where the sheriff applied for, with a search warrant, in
may levy debts, credits, royalties, criminal cases. The warrant of seizure
commissions, bank deposits, and other must particularly describe the things to
personal property not capable of manual be seized. While it is true that the
delivery that are in the control or property to be seized under a warrant
possession of third persons and are due must be particularly described therin
the judgment obligor. Notice shall be and no other property can be taken
served on third parties. The third party thereunder, yet the description is
garnishee must make a written report on required to be specific only insofar as
whether or not the judgment obligor has the circumstances will ordinarily allow.
sufficient funds or credits to satisfy the An application for search and seizure
amount of the judgment. If not, the warrant shall be filed with the following:
report shall state how much fund or (a) Any court within whose territorial
credits the garnishee holds for the jurisdiction a crime was committed. (b)
judgment obligor. Such garnish amounts For compelling reasons stated in the
shall be delivered to the judgment application, any court within the judicial
oblige-creditor (Rule 39, Sec.9 [c]). region where the crime was committed if
the place of the commission of the crime
LEVY ON EXECUTION- is a manner of is known, or any court within the
satisfying or executing judgment where judicial region where the warrant shall
the sheriff may sell property of the be enforced. However, if the criminal
judgment obligor if he is unable to pay action has already been filed, the
all or part of the obligation in cash, application shall only be made in the
certified bank check or any other court where the criminal action is
manner acceptable to the oblige. If the pending.
obligor does not chose which among his
property may be sold, the sheriff shall WARRANT OF DISTRAINT AND LEVY- is
sell personal property first and then real remedy available to local governments
property second. He must sell only so and the BIR in tax cases to satisfy
much of the personal and real property deficiencies or delinquencies in
as is sufficient to satisfy judgment and inheritance and estate taxes, and real
other lawful fees. (Rule 39, Sec.9 [b]). estate taxes. Distraint is the seizure of
personal property to be sold in an
authorized auction sale. Levy is the

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issuance of a certification by the proper Injunction; Preliminary Injunction

officer showing the name of the taxpayer (2009)
and the tax, fee, charge, or penalty due
him. Levy is made by writing upon said No.I.C. A suit for injunction is an action in

certificate the description of the rem.

property upon which levy is made.

SUGGESTED ANSWER:

FALSE. A suit for injunction is an action

Attachment; Preliminary Attachment in personam. In the early case of Auyong

(2012) Hian vs. Court of Tax Appeals [59 SCRA

110 [1974]), it was held that a
No.VIII.A. (a) A sues B for collection of a restraining order like an injunction,
sum of money. Alleging fraud in the operates upon a person. It is granted in
contracting of the loan, A applies for the exercise of equity of jurisdiction and
preliminary attachment with the court. The has no in rem effect to invalidate an act
Court issues the preliminary attachment done in contempt of an order of the
after A files a bond. While summons on B court except where by statutory
was yet unserved, the sheriff attached B's authorization, the decree is so framed as
properties. Afterwards, summons was duly to act in rem on property. (Air Materiel
served on B. 8 moves to lift the attachment. Wing Savings and Loan Association, Inc.
Rule on this. (5%) vs. manay, 535 SCRA 356 [2007]).

SUGGESTED ANSWER:

I will grant the motion since no levy on Special Civil Actions (Rules
attachment pursuant to the writ shall be
enforced unless it is preceded or
62-71)
contemporaneously accompanied by
Certiorari; Petition for Certiorari, Rule
service of summons. There must be prior
65 (2012)
or contemporaneous service of summons
with the writ of attachment. (Rule 57,
No.I. (a) After an information for rape was
Sec.5, Rules of Court).
filed in the RTC, the DOJ Secretary, acting
on the accused's petition for review,
reversed the investigating prosecutor's
finding of probable cause. Upon order of the

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