Special Civil Action

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BAR OPERATIONS 2023 REMEDIAL LAW, LEGAL AND JUDICIAL ETHICS WITH PRACTICAL EXERCISES
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V. SPECIAL CIVIL ACTIONS As a general rule, however, the rules governing

ordinary civil actions shall apply in special civil
actions insofar as they supplement or are not
TOPIC OUTLINE UNDER THE 2023 inconsistent with the provisions governing the
SYLLABUS latter actions. (Id.).
A. Jurisdiction and Venue Distinguish: Ordinary Civil Actions And
B. Interpleader (Rule 62) Special Civil Actions
C. Declaratory Relief and Similar Remedies
ORDINARY CIVIL SPECIAL CIVIL
(Rule 63)
ACTIONS ACTIONS
D. Prohibition, Certiorari and Mandamus
(Rule 65) Governed by rules Generally governed
1. Definition and Distinctions for ordinary civil by rules for ordinary
2. Requisites, When, and Where to actions. civil actions but
File subject to special
3. Exceptions to Filing of Motion rules.
for Reconsideration Before Must be based on a Not necessarily
Filing Petition cause of action based on a cause of
E. Quo Warranto meaning an act or action, as in certain
F. Expropriation omission has special civil actions:
1. Two Stages in Every Action for violated the rights of 1. Declaratory relief
Expropriation another. – no actual violation
2. Order of Expropriation of rights;
3. Ascertainment of Just 2. Interpleader – no
Compensation interest in the
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4. Rights of Plaintiff Upon subject matter.
Judgment and Payment May be filed initially There are some
G. Foreclosure of Real Estate Mortgage in either the MTC or special civil actions
(Rule 68) RTC depending which cannot be
1. Judicial Foreclosure upon the commenced in the
2. Extrajudicial Foreclosure (Act jurisdictional amount MTC, i.e. petitions
No. 3135, as amended) or the nature of the for certiorari,
3. The General Banking Law of action. prohibition and
2000 (Sec. 47, RA 8791) mandamus.
H. Partition (Rule 69) Ordinary civil Some special civil
I. Forcible entry and Unlawful detainer actions are filed as actions are filed as
(Rule 70) complaints. complaints, but
1. Differentiated from Accion others are filed as
Publiciana and Accion petitions.
Reivindicatoria
J. Contempt (Rule 71) Special Civil Actions Initiated by a Complaint
1. Interpleader (Rule 62);
A. JURISDICTION AND VENUE 2. Expropriation (Rule 67);
3. Foreclosure of REM (Rule 68);
Nature Of Special Civil Actions 4. Partition (Rule 69); and
Being a civil action, a special civil action is one 5. Forcible Entry and Unlawful Detainer (Rule
by which a party sues another for the 71).
enforcement or protection of a right, or the
prevention or redress of a wrong. (Rule 1, Sec. Special Civil Actions Initiated by a Petition
3[a]) 1. Declaratory Relief (Rule 63);
2. Review of Adjudication of COMELEC/COA
Both are governed by the rules for ordinary civil (Rule 64);
actions. However, the fact that an action is 3. Certiorari (Rule 65);
subject to special rules other than those 4. Prohibition (Rule 65);
applicable to ordinary civil actions is what gives 5. Mandamus (Rule 65);
a civil action its special character. (Id,). 6. Quo Warranto (Rule 66);
7. Contempt (Rule 71).

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General Rule: Within a reasonable time after a

Special Civil Actions With Two Stages dispute has arisen without waiting to be sued
1. Expropriation; and by either of the contending claimants.
2. Partition.
The stakeholder should use reasonable
B. INTERPLEADER diligence to bring the contending claimants to
court—that is, by filing the interpleader suit
Nature of Interpleader within a reasonable time after a dispute has
An interpleader is a remedy whereby a person arisen without waiting to be sued by either of the
who has property whether personal or real, in his contending parties. Otherwise, he may be
possession, or an obligation to render wholly or barred by laches or undue delay. (Wack Wack
partially, without claiming any right in both, or Golf and Country Club v. Won, G.R. No. L-
claims an interest which in whole or in part is not 23851, 1976).
disputed by the conflicting claimants, comes to
court and asks that the persons who claim said A stakeholder’s action of interpleader is too late
property or who consider themselves entitled to when filed after judgment has been rendered
demand compliance with the obligation, be against him in favor of one of the contending
required to litigate among themselves, in order claimants, especially where he had notice of the
to determine finally who is entitled to one or the conflicting claims prior to the rendition of the
other thing. (Ocampo v. Tirona, G.R. No. judgment and neglected the opportunity to
147812, 2005) implead the adverse claimants in the suit where
judgment was entered. (Id.)
Purpose of Remedy
An interpleader complaint may be filed by a Exception: Where the stakeholder acts with
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lessee against those who have conflicting reasonable diligence in view of environmental
claims over the rent due for the property leased. circumstances, the remedy is not barred. (Id.)
This remedy is for the lessee to protect himself
or herself from “double vexation in respect of Alternatively: If an action has been filed, in lieu
one liability. He or she may file the interpleader of an interpleader, one can file an answer with
case to extinguish his or her obligation to pay allegations of conflicting claims and a third-party
rent, remove him or her from the adverse complaint impleading the other party.
claimants’ dispute, and compel the parties with
conflicting claims to litigate among themselves. Order to Interplead
(Lui Enterprises v. Zuellig Pharma, G.R. No. Upon the filing of the complaint, an order
193494, 2014) requiring the conflicting claimants to interplead
with one another shall be issued. (Sec. 2, Rule
Requisites For Interpleader 62)
1. There must be two or more claimants with
adverse or conflicting interests to a If the interests of justice so require, the court
property in the custody or possession of the may direct in the said order that the subject
plaintiff; matter be paid or delivered to the court. (Id.)
2. The plaintiff in an action for interpleader
has no claim upon the subject matter of the Service of Summons
adverse claims or if he has an interest at all, Summons shall be served upon the conflicting
such interest is not disputed by the claimants; claimants together with:
3. The subject matter of the adverse claims 4. A copy of the complaint, and
must be one and the same. (Rule 62, Sec. 1). 5. The order. (Sec. 3, Rule 62)
Who May File the Complaint for Interpleader Answer and Other Pleadings
The person against whom the conflicting claims Each claimant shall file his answer setting forth
are made. (Id.). his claim within fifteen (15) days from service of
the summons upon him, serving a copy thereof
When To File The Complaint upon each of the other conflicting claimants who
may file their reply thereto as provided by these
Rules.

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contract, etc., for their guidance in its

If any claimant fails to plead within the time enforcement or compliance and not to settle
herein fixed, the court may, on motion, declare issues arising from its alleged breach.
him in default and thereafter render judgment (Tambunting, Jr., v. Sps. Sumabat, G.R. No.
barring him from any claim in respect to the 144101, 2005)
subject matter. (Sec. 5, Rule 62; Lui Enterprises,
Inc. v. Zuellig Pharma Corp., G.R. No. 193494, Persons Interested in the Following Subject
2014) Matters May File a Petition
1. If the subject matter is a deed, will,
Motion to Dismiss contract or other written instrument, any
Within the time for filing an answer (30 days), person interested in the same may file
each claimant may file a motion to dismiss. (Sec. the petition; or
4, Rule 62) 2. If the subject matter is a statute,
executive order or regulation,
Grounds to Dismiss ordinance, or any other governmental
1. Impropriety of the interpleader action; or regulation, any person whose rights are
2. Other appropriate grounds specified in affected by the same may file the
Rule 16. (Rule 62, Sec. 4) petition. (Sec. 1, Rule 63)
Other Pleadings That May be Filed in an The enumeration of the subject matter is
Interpleader exclusive. (Mangahas v. Paredes, G.R. No.
1. Counterclaims (PDIC v. CA, G.R. No. 157866, 2007)
126911, 2003);
2. Cross-claims; Who Shall Be Impleaded As Parties
3. Third-party complaints; and All persons who have or claim any interest,
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4. Responsive pleadings thereto as provided which would be affected by the declaration shall
in the Rules (Arreza v. Diaz, Jr., G.R. No. be made parties. (Sec. 2, Rule 63)
133113, 2001).
No declaration shall, except as otherwise
When Court Shall Determine and Adjudicate provided in these Rules, prejudice the rights of
Claims persons not parties to the action. (Id.)
The court shall proceed to determine their
respective rights and adjudicate their claims Rule 63, Section 2 contemplates a situation
after the pleadings of the conflicting claimants where there are other persons who would be
have been filed and pre-trial has been affected by the declaration, but were not
conducted. (Sec. 6, Rule 62) impleaded as necessary parties, in which case
the declaration shall not prejudice them. The
Lien Upon the Subject Matter non-joinder of necessary parties is not a
General Rule: The following shall constitute a jurisdictional defect. It may be a ground for
lien or charge upon the subject matter: dismissal under Rule 63, Sec. 5. (Baguio
1. Docket and other lawful fees paid by the Citizens Action Inc. v. The City Council of
party who filed the complaint for interpleader; Baguio, G.R. No. L-27247, 1983).
and
2. Costs and litigation expenses (Sec. 7, Rule The following shall also be notified and entitled
62) to be heard:
1. Solicitor General
Exception: Unless otherwise ordered by the a. Where the action involves the
court. (Id.) validity of a statute, executive
order or regulation, or any other
C. DECLARATORY RELIEF AND governmental regulation (Sec.
SIMILAR REMEDIES 3, Rule 63); or
b. Where the unconstitutionality of
Declaratory Relief a local government ordinance is
The purpose of the action is to secure an alleged (Sec. 4, Rule 63)
authoritative statement of the rights and 2. Local government unit prosecutor or
obligations of the parties under a statute, deed, attorney, where the action involves the

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validity of a local government

ordinance. (Sec. 4, Rule 63). It must be a real and substantial controversy
admitting of a specific relief through a decree of
A notary public who is not a party to the contract conclusive character. (Province of North
is not entitled to file declaratory relief. None of Cotabato v. GRP Peace Panel on Ancestral
his rights or duties thereunder need be declared. Domain, G.R. No. 183591, 2008).
(Tadeo v. Prov. Fiscal of Pangasinan, G.R. No.
L-16474, 1962). Ripeness of Issue
1. When litigation is inevitable; or
Requisites Of An Action For Declaratory 2. When administrative remedies have been
Relief exhausted. (Bayan Telecommunications v.
1. The subject matter of the controversy must Republic, G.R. No. 161140, 2007)
be a deed, will, contract or other written
instrument, statute, executive order or Under the facts of the case, there is a threatened
regulation, or ordinance; litigation in the immediate future, which litigation
2. The terms of said documents and the validity is imminent and inevitable unless prevented by
thereof are doubtful and require judicial the declaratory relief sought. (Tolentino v. Board
construction; of Accountancy, G.R. No. L-3062, 1951)
3. There must have been no breach of the
documents in question; When Court May Refuse To Make Judicial
4. There must be an actual justiciable Declaration
controversy or the ripening seeds of one General Rule: The Court has the discretion,
between persons whose interests are motu proprio or upon motion, to refuse to grant
adverse; a declaratory relief when:
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5. The issue must be ripe for judicial 1. The decision would not terminate the
determination; and uncertainty or controversy which gave rise to
6. Adequate relief is not available through other the action; or
means or other forms of action or proceeding. 2. The declaration or construction is not
(Almeda v. Bathala Marketing, G.R. No. necessary and proper under the
150806, 2008) circumstances. (Sec. 5, Rule 63)
No Actual Breach of Instrument Exception: If the action is for reformation of

An action for declaratory relief presupposes that instruments, consolidation of ownership, and
there has been no actual breach of the quieting of title – the court must decide the case.
instruments involved or of the rights arising (Sec. 1, Rule 63)
thereunder. It may be entertained before the
breach or violation of the statute, deed or Other Instances When the Action for
contract to which it refers. It is a form of action Declaratory Relief Will Not Lie:
that will set controversies at rest before they 1. Action to obtain a judicial declaration of
lead to a repudiation of obligations, an invasion citizenship (no real controversy; other
of rights, and a commission of wrongs. (Aquino remedies available) (Lim v. Republic, G.R.
vs. Municipality of Malay, Aklan,, G.R. No. No. L-30424, 1971);
211356, 2014) 2. Action to establish illegitimate filiation and
actions to determine hereditary rights (lack of
Actual Justiciable Controversy actual existing legal right – hereditary rights
A justiciable controversy refers to an existing are inchoate since the parent in question is
case or controversy that is appropriate or ripe for still alive) (Edades v. Edades, G.R. No. L-
judicial determination, not one that is conjectural 8964, 1956);
or merely anticipatory. (Velarde v. SJS, G.R. No. 3. Court decisions (not among subject
159357, 2004) matters listed; violates res judicata; see
Tanda v. Alday, G.R. Nos. L-9322-23, 1956);
It is one which is definite and concrete, touching 4. Decisions of quasi-judicial agencies (for
on all the legal relations of parties having the same reason as court decisions)
adverse legal interests. (Imbong v. Ochoa, G.R. (Monetary Board v. Philippine Veterans
No. 204819, 2014) Bank, G.R. No. 189571, 2015);

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5. Action to resolve a political question; declaration of such rights and duties, as these
6. Those determinative of the issues rather are understood in ordinary civil actions, are not
than the construction of definite status, right sought by the proponent. However, the court
or relation; can grant such other affirmative relief as may be
7. Where the terms of the assailed ordinance warranted by the evidence if the complaint is
are not ambiguous or of doubtful meaning; sufficient to make out a case for specific
8. Where the contract or statute subject of performance or recovery of property with claims
the case had already been breached; (SJS v. for damages and the defendants did not raise
Lina, G.R. No. 160031, 2008); such issue in the trial court to challenge the
9. When the purpose of the action is merely remedy availed of. (Adlawan v. IAC, G.R. No.
to seek an advisory opinion from the court on 73022, 1989)
a moot question. (RIANO, 2016 ed.).
Reformation of an Instrument
Conversion To Ordinary Action An action for reformation is not an action brought
If before the final termination of the case, a to reform a contract, but to reform the instrument
breach or violation of an instrument or a statute, evidencing the contract. (New Civil Code, Art.
executive order or regulation, ordinance, or any 1359)
other governmental regulation should take
place, the action may thereupon be converted Consolidation of Ownership
into an ordinary action, and the parties shall be The action brought to consolidate ownership is
allowed to file such pleadings as may be not for the purpose of consolidating the
necessary or proper. (Sec. 6, Rule 63) ownership of the property in the person of the
vendee or buyer but for the registration of the
An action for declaratory relief presupposes that property. (Cruz v. Leis, G.R. No. 125233, 2000;
there has been no actual breach of the New Civil Code, Art. 1607)
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instruments involved or of the rights arising
thereunder. It may be entertained before the Quieting of Title to Real Property
breach or violation of the statute, deed or An action to quiet title to real property is for the
contract to which it refers. It is a form of action removal or prevention of a cloud of title to real
that will set controversies at rest before they property or any interest by reason of any
lead to a repudiation of obligations, an invasion instrument, record, claim, encumbrance or
of rights, and a commission of wrongs. (Aquino proceeding which is apparently valid or effective
v. Municipality of Malay, Aklan, G.R. No. but is in truth and in fact invalid, ineffective,
211356, 2014) voidable or unenforceable and may be
prejudicial to said title. (New Civil Code, Art.
The law does not require that there shall be an 476)
actual pending case. It is sufficient that there is
a breach of the law, an actionable violation to Jurisdiction over actions to quiet title to real
bar a complaint for declaratory relief. (Borja v. property depends on the amount or value of the
Villadolid, G.R. No. L-1897, 1949) property.
Third Party Complaint Not Allowed Note: In Actions Similar to Declaratory Relief,
In a third party-complaint, the third-party plaintiff the court is bound to render judgment. In
is supposed to seek contribution, indemnity, petitions for declaratory relief, the court may
subrogation, or any other relief from the third- refuse to exercise the power to declare rights
party defendant in respect of the claim of the and to construe instruments. (Sec. 5, Rule 63)
plaintiff against him. This relief cannot be
granted because in a declaratory relief D. CERTIORARI, PROHIBITION , AND
proceeding, the court is confined merely to the MANDAMUS
interpretation of the terms of a contract.
(Commissioner of Customs v. Cloribel, G.R. No. 1. DEFINITIONS AND
L-21036, 1977) DISTINCTIONS
Writ of Execution Not Allowed Certiorari, Prohibition and Mandamus -
The judgment does not entail an executory Defined and Distinguished:
process since generally, other than a

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CERTIORARI PROHIBITION MANDAMUS Covers Covers Covers

discretionary discretionary ministerial
To Whom It is Directed Against acts. and ministerial acts.
acts.
Directed Directed Directed
against an against an against an Nature of Remedy
entity or entity or entity or
person person person Corrective Negative and Affirmative or
exercising exercising exercising remedy: To preventive Positive: If
judicial or judicial, quasi- ministerial correct a lack remedy: To the
quasi-judicial judicial, or functions. of or restrain or performance
functions. ministerial usurpation of prevent of a duty is
functions. jurisdiction. usurpation of ordered.
jurisdiction.
Grounds Negative: If
desistance
Entity or Entity or Entity or from excluding
person is person is person is another from a
alleged to alleged to be alleged to right or office
have acted: acting or have: is ordered.
1. Without threatening to 1. Neglected
jurisdictio act: a
n; 1. Without ministerial 2. REQUISITES, WHEN, AND
2. In excess jurisdictio duty; or WHERE TO FILE
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of n; 2. Excluded
jurisdictio 2. In excess another Certiorari and Appeal by Certiorari -
n; or of from a Distinguished:
3. With jurisdictio right or CERTIORARI AS A CERTIORARI AS A
grave n; or office. MODE OF APPEAL SPECIAL CIVIL
abuse of 3. With (RULE 45) ACTION (RULE 65)
discretion grave
amountin abuse of A continuation of the An original action and
g to lack discretion appellate process over not a mode of appeal.
or excess amountin the original case.
of g to lack
jurisdictio or excess Seeks to review final May be directed
n. of judgments or final against an
jurisdictio orders. interlocutory order of
n. the court or where no
appeal or plain,
Purpose speedy and adequate
remedy is available in
To annul or To have the To have the the ordinary course of
nullify a respondent respondent do law.
proceeding. desist from the act
further required as a Raises only questions Raises questions of
proceeding; duty; and pay of law (if directly from jurisdiction — that is,
from damages. RTC), or law, fact or whether a tribunal,
exercising both (if from other board or officer
jurisdiction/ courts). exercising judicial or
power. quasi-judicial functions
has acted without
Coverage jurisdiction or in
excess of jurisdiction
or with grave abuse of

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CERTIORARI AS A CERTIORARI AS A CERTIORARI AS A CERTIORARI AS A

MODE OF APPEAL SPECIAL CIVIL MODE OF APPEAL SPECIAL CIVIL
(RULE 45) ACTION (RULE 65) (RULE 45) ACTION (RULE 65)
discretion amounting raised therein are too therein are too

to lack of jurisdiction. unsubstantial to unsubstantial to
require consideration. require consideration.
Filed within 15 days Filed within 60 days In such event, the
from notice of from notice of court may award in
judgment or final order judgment, order or favor of the
appealed from, or of resolution sought to be respondent treble
the denial of assailed and in case a costs solidarily against
petitioner’s motion for motion for the petitioner and
reconsideration or new reconsideration or new counsel, in addition to
trial. trial is timely filed, the subjecting counsel to
60-day period is to be administrative
counted from notice of sanctions under Rules
denial of said motion. 139 and 139-B of the
Rules of Court.
Extension of 30 days Extension is allowed
may be granted for only in exceptional and
The Court may impose
justifiable reasons. meritorious cases.
motu proprio, based
Does not require a Motion for on res ipsa loquitur,
prior motion for reconsideration is a other disciplinary
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reconsideration. condition precedent, sanctions or measures
subject to exceptions. on erring lawyers for
patently dilatory and
Stays the judgment Does not stay the unmeritorious
appealed from. judgment or order
Petitions for Certiorari.
subject of the petition,
unless enjoined or Liberal Construction: When a Rule 45 Petition
restrained. is Considered a Rule 65 Petition, and Vice-
Parties are the original The tribunal, board, Versa
parties with the officer exercising The Court has treated a petition for certiorari
appealing party as the judicial or quasi- under Rule 65 as petition for review on certiorari
petitioner and the judicial functions is under Rule 45 particularly
adverse party as the impleaded as primary 1. If the petition for certiorari was filed within the
respondent without respondent; with reglementary period within which to file a
impleading the lower adverse party in the petition for review on certiorari;
court or its judge. lower court (if any) as 2. When errors of judgment are averred;
the private 3. When there is sufficient reason to justify the
respondent. relaxation of the rules as when there is a
significant issue of jurisdiction; and
Filed only with SC. May be filed with SC, 4. When all requisites are present (RIANO
CA, Sandiganbayan, (2016), pp. 230-231; City of Manila v. Grecia-
or RTC (observe Cuerdo, G.R. No. 175723, 2014)
hierarchy of courts).
Requisites for Certiorari
SC may deny the The court may dismiss 1. Tribunal, board, or officer exercises judicial or
decision motu propio the petition if it finds quasi-judicial functions;
on the ground that the the same patently 2. Tribunal, board, or officer has acted without
appeal is without without merit or or in excess of jurisdiction or with grave
merit, or is prosecuted prosecuted manifestly abuse of discretion; and
manifestly for delay, or for delay, or if the 3. There is no appeal or any plain, speedy, and
that the questions questions raised adequate remedy in the ordinary course of

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law. (Rosales v. ERC, G.R. No. 201852,

2016) Judicial or Quasi-Judicial Functions
General Rule: Respondent tribunal, board, or
Requisites for Prohibition officer is performing judicial or quasi-judicial
1. Respondent inferior court, tribunal, functions
corporation, board, officer, or other person is
exercising judicial, quasi-judicial, or The exercise of judicial function consists of the
ministerial functions; power to determine what the law is and what the
2. Respondent acted without or in excess of legal rights of the parties are, and then to
jurisdiction, or acted with grave abuse of adjudicate upon the rights of the parties.
discretion; and
3. There must be no appeal or other plain, The term quasi-judicial function applies to the
speedy, and adequate remedy. (Carlito action and discretion of public administrative
Montes v. CA, G.R. No. 143797, 2006) officers or bodies that are required to investigate
facts or ascertain the existence of facts, hold
Requisites for Mandamus hearings, and draw conclusions from them as a
1. There must be a clear legal right or duty; basis for their official action and to exercise
2. Respondent must be exercising a ministerial discretion of a judicial nature. (Ongsuco v. Hon.
duty — a duty which is absolute and Malones, G.R. No. 182065, 2009)
imperative, and involves merely its execution;
3. Respondent unlawfully neglects the Issuance by BSP-Monetary Board of CB
performance of its duty or unlawfully Circulars is done in the exercise of an executive
excludes another from the use and function and thus may not be the subject of
enjoyment of a right or office to which such certiorari petition. (Advocates for Truth in Lending
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other is entitled; and v. BSP Monetary Board, G.R. No. 192986, 2013)
4. No appeal or other plain, speedy, and
adequate remedy in the ordinary course of The Secretary of Finance in issuing Revenue
law. (De Castro v. JBC, G.R. No. 191002, Regulations based on SEC. 244 of the NRIC is in
2010) the exercise of quasi-legislative functions, hence
outside the scope of certiorari. (Clark Investors
Note: All petitions must be accompanied with a Association v. Secretary of Finance, G.R. No.
certified true copy of the judgment or order 200670, 2015)
subject thereof. It must be an authenticated
original thereof and not a mere photocopy that Exception: However, with respect to the SC,
must be attached to the petition filed. certiorari and prohibition may be issued to correct
(REGALADO, 2008 ed.) errors of jurisdiction by a person or body even if
not exercising judicial, quasi-judicial, or
Common Requisites For Certiorari, ministerial functions where the matter is of
Prohibition, And Mandamus “transcendental importance to the nation.”
(Villanueva v. JBC, G.R. No. 211833, 2015)
Aggrieved Party
The term "person aggrieved" is not to be Ministerial Acts / Functions vs. Discretionary
construed to mean that any person who feels Acts / Functions
injured by the lower court's order or decision can MINISTERIAL ACTS DISCRETIONARY
question the said court's disposition via certiorari. / FUNCTIONS ACTS / FUNCTIONS
In a situation wherein the order or decision being One which an officer The law imposes a
questioned underwent adversarial proceedings or tribunal performs in duty upon a public
before a trial court, the "person aggrieved" a given state of facts, officer and gives him
referred to under Section 1 of Rule 65 who can in a prescribed the right to decide
avail of the special civil action manner, in obedience how or when the duty
of certiorari pertains to one who was a party in the to the mandate of a shall be performed.
proceedings before the lower court. (Siguion legal authority, (Mallari v. Banco
Reyna Montecillo and Ongsiako Law Offices v. without regard to or Filipino Savings &
No. Chionlo-Sia, G.R. No. 181186, 2016). the exercise of his

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own judgment upon Mortgage Bank, G.R.

the propriety or No. 157600, 2008). Preliminary Considerations
impropriety done.
The hierarchy of courts should serve as a
general determinant of the appropriate forum for
Rule 65 petitions. The concurrence of jurisdiction
Jurisdictional Errors among the Supreme Court, Court of Appeals and
1. Without jurisdiction – Respondent does not the Regional Trial Courts to issue writs of
have the legal power to determine the case certiorari, prohibition, mandamus, quo warranto,
(Sps. Dacudao v. SOJ, G.R. No. 186056, habeas corpus and injunction does not give the
2013). petitioners the unrestricted freedom of choice of
2. Excess of jurisdiction – Respondent, being forum. (Kalipunan ng Damayang Mahihirap, Inc.
clothed with the power to determine the case, v. Robredo, G.R. No. 200903, 2014)
oversteps his authority as determined by law.
3. Grave abuse of discretion – generally In order to properly proceed against the
refers to a "capricious or whimsical exercise respondent, an aggrieved party [under Rule 65]
of judgment as is equivalent to lack of must choose the proper remedy. The choice
jurisdiction." The abuse of discretion must be depends on which function – quasi-judicial, quasi-
patent and gross so as to amount to an legislative, and administrative – the respondent
evasion of a positive duty or a virtual refusal has discharged in doing the assailed action.
to perform a duty enjoined by law, or to act at (Capalla v. COMELEC, G.R. No. 201112, 2012,
all in contemplation of law. (Atty. Allan Bersamin, J., concurring)
Hilbero v. Florencia Morales, Jr., G.R. No.
198760, 2017). Certiorari, Prohibition, or Mandamus as an
Independent Action
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No Appeal, Plain, Speedy and Adequate An application for certiorari is an independent
Remedy action which is not part or a continuation of the
It is the inadequacy, and not the mere absence of trial which resulted in the rendition of the
all other legal remedies and the failure of justice judgment complained of. Impliedly, a petition
without the writ, that must usually determine the for certiorari pending before a higher court does
propriety of certiorari or prohibition. A remedy is not necessarily become moot and academic by a
plain, speedy, and adequate if it will promptly continuation of the proceedings in the court of
relieve the petitioner from the injurious effects of origin. (Sps. Juan Diaz v. Jose Diaz, G.R. No.
the judgment, order, or resolution of the lower 135885, 2000).
court of agency. (Morales v. CA, G.R. Nos.
217126-27, 2015). CERTIORARI
Certiorari is a remedy of last resort. It is not A petition for certiorari is proper when all the
available if the party still has another speedy and requisites are complied with.
adequate remedy (such as appeal) available.
(Tolentino v. COMELEC, G.R. Nos. 218536, Certiorari Not Available When Appeal is
2016). Available
General Rule: Where appeal is available to the
An adequate remedy has been defined as a aggrieved party, certiorari will not prosper, even if
remedy which is equally beneficial, speedy and the ground is grave abuse of discretion.
sufficient, not merely a remedy which at some (Freedom from Debt Coalition v. MWSS, G.R. No.
time in the future will bring about a revival of the 173004, 2007)
judgment of the lower court complained of in the
certiorari proceeding, but a remedy which will When the remedy by appeal had already been
promptly relieve the petitioner from the injurious lost due to the petitioner’s own neglect or error in
effects of that judgment and the acts of the the choice of remedies, certiorari cannot lie. The
inferior court or tribunal. (PSALM v. Maunlad two remedies are mutually exclusive. (MERALCO
Homes, Gr No. 215933, 8 February 2017). v. CA, G.R. No. 88396, 1990).
When Petition For Certiorari, Prohibition Or Exceptions:

Mandamus Is Proper

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Even when appeal is available and is the proper jurisdiction. Petitioner filed another special civil
remedy, SC has allowed a writ of certiorari: action of certiorari assailing the CA’s resolution.
1. Where the appeal does not constitute a Petitioner should have filed a petition for review
speedy and adequate remedy; on certiorari under Rule 45, which is a
2. Where the orders were also issued either in continuation of the appellate process over the
excess of or without jurisdiction; original case. However, in accordance with the
4. For certain special considerations, as public liberal spirit pervading the Rules of Court and in
welfare or public policy; the interest of substantial justice, this Court has,
5. Where, in criminal actions, the court rejects before, treated a petition for certiorari as a
rebuttal evidence for the prosecution as, in petition for review on certiorari, particularly:
case of acquittal, there could be no remedy; 1. If the petition for certiorari was filed within the
6. Where the order is a patent nullity; and reglementary period within which to file a
7. Where the decision in the certiorari case will petition for review on certiorari;
avoid future litigations. (REGALADO, 2008 2. When errors of judgment are averred; and
ed.) 3. When there is sufficient reason to justify the
relaxation of the rules. (The City of Manila v.
Even when the period for appeal has lapsed, SC Hon. Grecia-Cuerdo, G.R. No. 175723, 2014)
has allowed a writ of certiorari:
1. When appeal is lost without the appellants’ Small Claims – Certiorari Is Proper
negligence; Considering the final nature of a small claims
2. When public welfare and the advancement of case decision under Sec. 23 of the Rules of
public policy dictates; Procedure for Small Claims Cases, the remedy
3. When the broader interest of justice so of appeal is not allowed, and the prevailing
party may, thus, immediately move for its
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requires;
execution. Nevertheless, the proscription on
4. When the writs issued are null and void; and
appeals in small claims cases, similar to other
5. When the questioned order amounts to an proceedings where appeal is not an available
oppressive exercise of judicial authority. remedy, does not preclude the aggrieved party
(Sunbeam Convenience Foods v. CA, G.R. from filing a petition for certiorari under Rule 65 of
No. 50464, 1990) the Rules of Court. (A.L. Ang Network v.
Mondejar, G.R. No. 200804, 2014)
Certiorari is Not a Proper Remedy to Appeal a
Motion to Quash Certiorari and Not Mandamus May be Issued
General Rule: The proper action is to continue Against the JBC
with the trial and reiterate the special defenses Although the JBC does not fall within the scope
invoked in the motion to quash. of a tribunal, board, or officer exercising judicial
or quasi-judicial functions, in the process of
Exception: Certiorari is proper when there is selecting and screening applicants, the JBC
grave abuse of discretion. (Lazarte v. neither acted in any judicial or quasi-judicial
Sandiganbayan, G.R. No. 180122, 2009) capacity nor assumed unto itself any
performance of judicial or quasi-judicial
Certiorari is the Proper Remedy to Appeal a prerogative. However, since the formulation of
Declaration of Presumptive Death guidelines and criteria, including the policy that
The Family Code was explicit that the court’s the petitioner now assails, is necessary and
judgment in summary proceedings, such as the incidental to the exercise of the JBC’s
declaration of presumptive death of an absent constitutional mandate, a determination must be
spouse, shall be immediately final and executory. made on whether the JBC has acted with grave
An aggrieved party may, nevertheless, file a abuse of discretion amounting to lack or excess
petition for certiorari under Rule 65 to question of jurisdiction in issuing and enforcing the said
any abuse of discretion amounting to lack or policy. (Villanueva v. Judicial & Bar Council, G.R.
excess of jurisdiction that transpired. (Republic v. No. 211833, 2015)
Cantor, G.R. No. 184621, 2013)
The writ of mandamus does not issue to control
RTC ruled in favor of private respondents. Upon or review the exercise of discretion or to compel
the special civil action of certiorari, the CA a course of conduct, which, it quickly seems to us,
dismissed the petition on the ground of lack of

ATENEO CENTRAL
was what the petitioner would have the JBC do in

his favor. The function of the JBC to select and MANDAMUS
recommend nominees for vacant judicial
positions is discretionary, not ministerial. (Id.). Respondent in Mandamus
An inferior court, tribunal, corporation, board,
PROHIBITION officer, or other person neglecting the
performance of an act which the law specifically
Respondent in Prohibition enjoins as a duty or unlawfully excluding another
An inferior court, tribunal, corporation, board, from the use and enjoyment of a right or office to
officer, or other person, exercising which the petitioner is entitled. (Sec. 3, Rule 65).
1. Judicial;
2. Quasi-judicial; or
3. Ministerial functions. (Sec. 2, Rule 65) Nature and Purpose of Mandamus
The writ of mandamus lies to enforce the
When what is at contest is the power and execution of an act, when, otherwise, justice
authority of a private organization, composed of would be obstructed; and, regularly, issues only
several members-organizations, which power in cases relating to the public and to the
and authority were vested to it by its own government; hence, it is called a prerogative
members, prohibition will not lie. The definition writ. To preserve its prerogative character,
and purpose of a writ of prohibition excludes the mandamus is not used for the redress of private
use of the writ against any person or group of wrongs, but only in matters relating to the public.
persons acting in a purely private capacity, and (Uy Kiao Eng. v. Nixon Lee, G.R. No. 176831,
the writ will not be issued against private 2010).
individuals or corporations so acting. (Destileria
Limtuaco & Co. v. Advertising Board of the Mandamus Proper When There is the
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Philippines, G.R. No. 164242, 2008) Existence of a Clear Legal Right
A clear legal right is a right which is indubitably
Accomplished Facts / Fait Accompli granted by law or inferable as a matter of law. If
General rule: A petition for prohibition is intended the right is clear and the case is meritorious,
to prohibit or prevent FUTURE acts done without objections raising merely technical questions will
authority or jurisdiction, and is not proper for acts be disregarded. But where the right sought to be
already accomplished. enforced is in substantial doubt or dispute,
mandamus cannot issue. (Angeles v. Secretary
Exceptions: of Justice, G.R. No. 142549, 2010)
Even when an act is already fait accompli, SC has
allowed a writ of prohibition: A Petition For Mandamus Was Considered
1. Where it would prevent the creation of a new Proper In The Following Instances:
province by those in the corridors of power 1. To compel the Ombudsman to dismiss a case
who could avoid judicial intervention and which was pending before him for 6 years,
review by merely speedily and stealthily which was considered a violation of the
completing the commission of such illegality. constitutional duty to “promptly act on
(Tan v. Comelec, G.R. No. 73155, 1986); complaints filed. (Angchangco v.
2. Where it would provide a complete relief by Ombudsman, G.R. No. 122728, 1997);
not only preventing what remains to be done 2. To compel a judge to issue a writ of execution
but by undoing what has been done, such as pending appeal of a decision in an ejectment
terminating a preliminary investigation case, where the defendant appellant failed to
instead of filing a motion to quash. (Aurillo v. make the necessary deposits of rentals
Rabi, G.R. No. 120014, 2002); pending appeal. (Vda. De Carbungco v.
3. Where the acts sought to be enjoined were Amparo, G.R. No. L-2245, 1949)
performed after the injunction suit is brought.
(Versoza v. Martinez, G.R. No. 119511, 1998) Mandamus Not Proper in the Following
Cases:
When Prohibition Proper 1. To enforce purely contractual obligations;
Prohibition is the remedy where a motion to 2. When there is another speedy and adequate
dismiss is improperly denied. (Enriquez v. remedy;
Macadaeg, G.R. No. L-2422, 1949)

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3. To compel a school to readmit students, lack or excess of

and/or to confer academic honors, in violation jurisdiction. (Sec. 2,
of the school’s academic freedom. Rule 65)
(University of San Agustin v. CA, G.R. No. Ordinary civil
100588; University of San Carlos v. CA, G.R. Special civil action;
action; may deal
No. 79237 1988); refers to issues of
with factual or legal
4. To compel the performance of an act already jurisdiction only.
issues.
done, such as to include one’s name in the Directed against a
list of graduates and allow him to take part in Directed against a
tribunal, corporation,
the graduation exercises, as the same was litigant.
board, or officer.
moot since the graduation ceremony had Mandatory Injunction and Prohibition
already pushed through. (Cudia v. The Distinguished
Superintendent of the PMA, G.R. No.
211362, 2015) MANDATORY
PROHIBITION
INJUNCTION
Mandamus May Not be Used to Compel A judgment
Discretionary Duties; Exception commanding a
General Rule: Mandamus is applicable to a tribunal, corporation,
ministerial duty. board, officer, or
person, unlawfully
Exception: As for discretionary duties, it can be neglecting the
used to the extent of requiring performance of a performance of an act
An order requiring a
discretionary duty to act but not to require which the law
party litigant to
performance of such duty in a particular manner. specifically enjoins as
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perform a particular
(BF Homes v. NWRC, G.R. No. 78529, 1987) a duty resulting from
act in order to restore
an office, trust, or
the last actual
Exceptions to the Exception: The respondent station, or unlawfully
peaceable
can be ordered to act in a particular manner to excluding another
uncontested status
control discretion when there is: from the use and
which preceded the
1. Grave abuse of discretion; enjoyment of a right
pending controversy.
2. Manifest injustice; or or office to which such
3. Palpable excess of authority. (M.A. Jimenez order is entitled to do
Enterprises v. Ombudsman, G.R. No. the act required to be
155307, 2011) done to protect the
rights of the
Injunction Distinguished from Prohibition petitioner. (Sec. 3,
and Mandamus Rule 65)
PREVENTIVE/ Ordinary civil action; Special civil action;
PROHIBITORY PROHIBITION may deal with factual refers to issues of
INJUNCTION or legal issues. jurisdiction only.
A judgment Directed against a
Directed against a
commanding a tribunal, tribunal, corporation,
litigant.
corporation, board, board, or officer.
officer, or person,
whether exercising Mandamus and Injunction Distinguished
judicial, quasi-judicial or
An order requiring a MANDAMUS INJUNCTION
ministerial functions, to
party litigant to
desist from further
refrain from a
proceeding in the action Special civil action. Ordinary civil action.
particular act.
or matter specified
therein because it acts
without or in excess of Directed against a
Directed against a
its or his jurisdiction or tribunal, corporation,
litigant.
with grave abuse of board, or officer.
discretion amounting to

ATENEO CENTRAL
Purpose is to either exercise of the Supreme Court’s primary

Purpose is for the compel the defendant jurisdiction. (Santiago v. Vasquez, G.R. Nos.
tribunal, corporation, to refrain from 99289-90, 1993)
board, or officer to performing an act or to
perform a ministerial perform any act - not 3. EXCEPTIONS TO FILING OF
and legal duty. necessarily a legal and MOTION FOR
ministerial duty. RECONSIDERATION
BEFORE FILING PETITION
General Rule: A motion for reconsideration is a

sine qua non requirement before filing a petition
under Rule 65. (Romy’s Freight Service v. Castro,
When to file petition
G.R. No. 141637; Nuque v. Aquino, G.R. No.
Within 60 days from notice of the assailed
193058, 2015)
judgment, order or resolution.
Exceptions:
In case a motion for reconsideration or a motion
1. Where the order questioned is a patent
for a new trial is timely filed: within 60 days from
nullity;
notice of the denial of said motion. (Sec. 4, Rule
2. Where the questions raised in the certiorari
65)
proceeding have already been duly raised
and passed upon by the lower court or are
Where to File Petition
the same as those raised and passed upon in
1. If the petition relates to the acts or omissions the lower court;
of a lower court, corporation, board, or officer
3. Where there is an urgent necessity for the
or person: RTC exercising jurisdiction over
FOR ONE ATENEO

resolution of the question;
the territorial area as defined by the SC.
4. Where an MR would be useless or is
2. If the petition relates to the acts or omissions prohibited;
of a quasi-judicial agency: Cognizable only 5. Where petitioner is deprived of due process;
by the CA; 6. Where, in a criminal case, relief from an order
3. To the Sandiganbayan or the Court of of arrest is urgent and the granting of such
Appeals, whether or not in aid of the court’s relief by the trial court is improbable;
appellate jurisdiction. (Id.) 7. Where the issue raised is one purely of law
or where public interest is involved;
Note: R.A. 10660 provides that the 8. Where the proceedings in the lower court are
Sandiganbayan shall have exclusive original a nullity for lack of due process;
jurisdiction over petitions for the issuance of the 9. Where the proceeding was ex parte or in
writs of mandamus, prohibition, certiorari, habeas which the petitioner had no opportunity to
corpus, injunctions, and other ancillary writs and object; and
processes in aid of its appellate jurisdiction 10. Where the subject matter of the action is
and over petitions of similar nature, including quo perishable.
warranto, arising or that may arise in cases filed
or which may be filed under Executive Order Nos. E. QUO WARRANTO
1, 2, 14 and 14-A, issued in 1986: Provided, that
the jurisdiction over these petitions shall not be Quo Warranto
exclusive of the Supreme Court. A petition for quo warranto is a proceeding to
determine the right of a person to the use or
Hierarchy of Courts exercise of a franchise or office and to oust the
General Rule: The filing of a petition under Rule holder from its enjoyment, if his claim is not well-
65 must follow the hierarchy of courts. Thus, founded, or if he has forfeited his right to enjoy
direct resort to the Supreme Court will not be the privilege. Where the action is filed by a private
entertained. person, he must prove that he is entitled to the
controverted position; otherwise, respondent has
Exception: Unless the redress desired cannot be a right to the undisturbed possession of the office.
obtained in the appropriate courts or where (Velasco v. Belmonte, G.R. No. 211140, 2016)
exceptional and compelling circumstances justify
availment of a remedy within and calling for the Object of Quo Warranto

ATENEO CENTRAL
1. Determine the right of a person to use or 3. An association which acts as a corporation

exercise of a franchise or office; and within the Philippines without being legally
2. Oust the holder from its enjoyment, if his incorporated or without lawful authority so to
claim is not well-founded, or if he has forfeited act. (Sec. 1, Rule 66)
his right to enjoy the office. (Tecson v.
COMELEC, G.R. No. 161434, 2004) Note: Rule 66 of the Rules of Court does not
apply to quo warranto cases against persons who
Nature of a Quo Warranto usurp an office in a private corporation. (Calleja
1. It is a direct, not a collateral attack, on the matter v. Panday, G.R. No. 168696, 2006)
assailed.
2. It is a proceeding against a public officer, not in Distinguish: Quo Warranto Under The Rules
his official capacity, because no official power Of Court And Quo Warranto Under The
or right or duty is sought, but because the Omnibus Election Code
officer’s title to the office is being questioned.
QUO WARRANTO QUO WARRANTO
3. It is a proceeding of a public nature filed by a
(RULE 66) (ELECTION CODE)
prosecuting attorney ex officio such as by the
Solicitor General or fiscal. (But it is personal in Subject of the petition is
nature as to the person claiming office) Subject of the petition in relation to an elective
is in relation to an office. (Nuval v. Guray,
Who May Commence an Action for Quo appointive office. G.R. No. L-30241,
Warranto December 29, 1928)
1. The Solicitor General or a public prosecutor
[MANDATORY quo warranto]; Grounds relied upon
a. Upon direction of the President; The issue is the are: (a) ineligibility to
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b. Upon complaint; or legality of the the position; or (b)
c. When he has good reason to believe occupancy of the disloyalty to the
he can establish a case on the grounds office by virtue of a Republic. (Omnibus
in Sec. 1 legal appointment. Election Code, Sec.
2. The Solicitor General or a public prosecutor at 253)
the request and upon relation of another
May be instituted with
person [ex relatione]
the COMELEC by any
a. The petitioner must first obtain a leave voter contesting the
of court
election of any member
b. The petitioner may also require an Petition is brought of Congress, regional,
indemnity bond to the relator either to SC, CA, or provincial or city officer;
3. A private person claiming to be entitled to the RTC. or to the MeTC, MTC or
usurped or unlawfully held office. MCTC if against any
a. The petitioner will not need to secure barangay official.
intervention of the Solicitor General or (Omnibus Election
a fiscal; Code, Sec. 253)
b. The action will be brought in his name.
c. Petitioner must be able to show or Filed within one year
establish that he has a clear right to the from the time the
position, AND that the person holding cause of ouster, or Filed within 10 days
the office is a mere usurper. (Sec. 5, the right of the after the proclamation
Rule 66) petitioner to hold the of the results of the
office or position election.
The action is brought against: arose. (Sec 11, Rule
1. A person who usurps, intrudes into, or 66)
unlawfully holds or exercises a public office,
position or franchise; Petitioner is the Petitioner may be any
2. A public officer who does or suffers an act person entitled to the voter even if he is not
which, by the provision of law, constitutes a office. entitled to the office.
ground for the forfeiture of his office; or

ATENEO CENTRAL
When the tribunal charter. When the advertisements released by

declares the candidate- the company seem to celebrate bigamy, illegal
elect as ineligible, he marriages, or divorce, the same must be enjoined
will be unseated but the immediately by the court. (Ulep v. The Legal
person occupying the Clinic, Bar Matter no. 553, 1993; Secs. 2 & 3,
The court has to Rule 66 in relation to Revised Corporation Code,
second place will not be
declare who the Sec. 19 & P.D. No. 902-A, Sec. 6[1]).
declared as the one
person entitled to the
duly elected because
office is if he is the Where the Action is Brought if Solicitor
the law shall consider
petitioner. General Commences Action
only the person who,
having duly filed his When the action is commenced by the Solicitor
certificate of candidacy, General, the petition may be brought in the:
received a plurality of 1. Regional Trial Court of the City of Manila;
votes. 2. Court of Appeals; or
3. Supreme Court. (Sec. 7, Rule 66)
Quo Warranto vs. Mandamus Quo Warranto Against Corporations

Quo warranto tests the title to one’s office May be brought against an association acting as
claimed by another and has as its object the a corporation within the Philippines without being
ouster of the holder from its enjoyment, while legally incorporated or without lawful authority to
mandamus seeks to enforce clear legal duties act. (Sec. 19, Revised Corporation Code).
and not to try disputed titles. (Garces v. CA, G.R.
No. 114795, 1996) This refers to de facto corporations: those
issued a certificate of incorporation although it
When Government Commences An Action had not fully complied with the laws. (Id.)
FOR ONE ATENEO

Against Individuals Or Associations
De facto Corporation: one which in good faith
The Solicitor General or the public prosecutor claims to be a corporation, was organized in
must commence an action for quo warranto accordance and pursuant to a valid law, and
when: assumes corporate powers because it was
1. Directed by the President of the Philippines; issued a certificate of incorporation. (RIANO 2016
or ed., p. 279)
2. Upon complaint or otherwise, he has good
reason to believe that a case where a quo Its corporate existence can be directly attacked
warranto may be filed can be established by by a quo warranto proceeding (Corporation Code,
proof. (Sec. 2, Rule 66) Sec. 19)
A case for quo warranto may be filed by the Intra-Corporate Dispute

government against the following individuals: Quo Warranto proceedings against persons who
1. A person who usurps, intrudes into, or usurp the office, powers or functions of duly
unlawfully holds or exercises a public office, elected board members within a corporation are
position or franchise; not within the Scope of Rule 66. (Calleja v.
2. A public officer who does or suffers an act Panday, G.R. No. 168696, 2006).
which, by the provision of law, constitutes a
ground for the forfeiture of his office; or When Individual May Commence An Action
3. An association which acts as a corporation General Rule: Government, through Solicitor
within the Philippines without being legally General; or Public Prosecutor. (Sec. 2, Rule 66).
incorporated or without lawful authority so to
act. (Sec 1, Rule 66) Exception: Individual claiming to be entitled to a
public office or position usurped or unlawfully held
A petition to prohibit the release of illegal or exercised by another. (Sec. 5, Rule 66)
advertisements by a “Legal Clinic” run mainly by
paralegals (unauthorized practice of law), must In bringing a petition for quo warranto, a private
properly be brought to the Solicitor General to individual must show that he has a clear right to
commence an action of quo warranto against the the office allegedly being held by another. It is not
company in light of their misuse of the corporate enough that he merely asserts the right to be

ATENEO CENTRAL
appointed to the office. (Cuevas v. Bacal, G.R. 3. Bring an action for damages against
No. 139382, 2000) respondent sustained by him by reason of
the usurpation (Sec. 10, Rule 66)
The petitioner must also FIRST prove his
entitlement or right to the office, and cannot When a quo warranto case is rendered moot and
simply rely on the defects in the qualifications of academic, but the injunction order issued in such
the respondent. Failing this, the petition can be a pending case was disobeyed, the petitioner is
dismissed at any stage and the court will not pass still entitled to receive compensation in damages
on the qualifications or eligibility of the holder of from such disobedience by the party previously
the office/respondent. (Acosta v. Flor, G.R. No. proceeded against. (Villanueva v. Rosqueta,
2122, 1905) G.R. No. 180764, 2010)
An action of quo warranto is filed prematurely Limitation as to Period to File

when the nature of the position is yet to be General Rule: The action must be commenced
adjudged under a review on certiorari action in within 1 year from date after the cause of such
the CA as to whether it is of a de facto or de jure ouster or the right of the petitioner to hold such
capacity. This also constitutes forum shopping. office or position arose. (Sec. 11, Rule 66)
(Feliciano v. Villasin, G.R. No. 174929, 2008)
A petition for quo warranto and mandamus
Where the Action is Brought if the Action is affecting titles to public office must be filed within
Commenced by Other Persons one (1) year from the date the petitioner is ousted
1. Supreme Court; from his position. He who claims the right to hold
2. Court of Appeals; or a public office allegedly usurped by another and
3. Regional Trial Court exercising jurisdiction who desires to seek redress in the courts, should
FOR ONE ATENEO

over the territorial area where the respondent file the proper judicial action within the
or any of the respondents reside. (Sec. 7, reglementary period. (Galano v. Roxas, G.R. No.
Rule 66) L-31241, 1975)
Judgment In Quo Warranto Action Exception: Laches does not attach and failure to
When the respondent is found guilty of usurping, file quo warranto proceeding does not operate
intruding into, or unlawfully holding or exercising adversely against a dismissed government
a public office, position, or franchise, judgment employee where it was the act of responsible
shall be rendered that such respondent to be government officials which contributed in the
ousted and altogether excluded therefrom. delay of the filing of complaint for reinstatement.
(Cristobal v. Melchor, G.R. No. L-43203, 1977)
Petitioner or relator may recover his costs.
Interruption of Period
Such further judgment may be rendered An action for quo warranto must be filed within
determining the respective rights of all the parties one year after the cause of action accrues. The
to the action as justice requires. (Sec. 9, Rule 66) pendency of administrative remedies does not
operate to suspend the running of the one-year
Rights Of A Person Adjudged Entitled To period. (Palma-Fernandez v. De La Paz, G.R.
Public Office No. 78946, 1988)
If judgment be rendered in favor of the person
averred in the complaint to be entitled to the Under the first provision, the action for quo
public office, he may, after taking the oath of warranto must be commenced within one year
office and executing any official bond required by from the time the cause of such ouster, or the
law: right of the plaintiff to hold office arose. On the
1. Take upon himself the execution of the office other hand, Article 1155 of the New Civil Code
2. Demand of the respondent all the books and provides that "the prescription of actions is
the papers in the respondent’s custody or interrupted when they are filed before the court."
control appertaining to the office. If he (Mendiola v. Tancinco, G.R. No. L-14107, 1960)
refuses or neglects to do so, he may be
punished for contempt. One Year Limit Does Not Lie When Petitioner
is the Government

ATENEO CENTRAL
When it is the government which commenced the An expropriation proceeding is commenced by

petition for quo warranto and puts in issue the the filing of a VERIFIED COMPLAINT which
qualification of the person holding the highest shall:
position in the Judiciary, there can be no 1. State with certainty the right of the plaintiff to
acquiescence or inaction, in this case, on the part expropriation and the purpose thereof;
of the Republic as would amount to an 2. Describe the real or personal property sought
abandonment of its right to seek redress against to be expropriated; and
a public wrong and vindicate public interest. 3. Join as defendants all persons owning or
Neither can delay be attributed to the Republic in claiming to own, or occupying, any part of the
commencing the action since respondent property or interest therein showing as far as
deliberately concealed the fact of her practicable the interest of each defendant.
disqualification to the position. Prescription, 4. If the title to any property sought to be
therefore, cannot be pleaded against the expropriated appears to be in the Philippines
Republic. (Republic v. Sereno, G.R. No. 237428, (although occupied by private individuals) or
May 11, 2018) if the the title is so obscure such that the
plaintiff cannot with accuracy identify the real
F. EXPROPRIATION owners, averment to that effect must be
made in the complaint. (Sec 1, Rule 67)
Expropriation
It is a process by which the power of eminent Note: When the right of the plaintiff to expropriate
domain is carried out; taking of privately owned is conferred by law, the complaint does not have
property by the government under eminent to state with certainty the right of expropriation.
domain.
1. TWO STAGES IN EVERY
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Eminent domain ACTION FOR
It is the right of the State to acquire private EXPROPRIATION
property for public use upon the payment of just
compensation (Brgy. Sinadalan v. CA, G.R. No. STAGE 1: Determination of the plaintiff’s
150640, 2007) authority to exercise the POWER OF
EMINENT DOMAIN and the propriety of its
Public Use exercise in the context of the facts involved in
It is synonymous with public interest, public the suit.
benefit, public welfare, and public convenience.
Whatever may be beneficially employed for the It ends with an ORDER either: DISMISSING the
general welfare satisfies the requirement of public action or “of CONDEMNATION” declaring that
use. (Reyes v. NHA, G.R. No. 147511, 2003) the plaintiff has a lawful right to take the property
sought to be condemned, for the public use or
Note: Expropriation is only proper when the purpose described in the complaint, upon the
owner refuses to sell or agrees to sell but an payment of just compensation to be determined
agreement as to price cannot be reached. as of the date of the filing of the complaint.
(Republic v. Legaspi, Sr., G.R. No. 177611)
Incapable of Pecuniary Estimation
An expropriation suit is incapable of pecuniary An ORDER OF DISMISSAL, if this be ordained,
estimation. An expropriation suit does not involve would be a final one, of course, since it finally
the recovery of a sum of money. Rather, it deals disposes of the action and leaves nothing more
with the exercise by the government of its to be done by the court on the merits. (Republic
authority and right to take private property for v. Legaspi, Sr., G.R. No. 177611)
public use. Hence, jurisdiction over expropriation
proceedings is lodged with the RTC. (Barangay Remedy: Appeal by notice of appeal
San Roque v. Heirs of Pastor, G.R. No. 138896, within FIFTEEN (15) DAYS or record on
2000) appeal within THIRTY (30) DAYS from
receipt of court order.
Matters To Allege In Complaint For
Expropriation STAGE 2: Determination by the court of the
just compensation for the property sought to
be taken. This is done by the court with the

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assistance of not more than three (3) 2. ORDER OF

commissioners. The order fixing the just EXPROPRIATION
compensation on the basis of the evidence
before, and findings of, the commissioners would The order of expropriation forecloses any further
be final, too. It would finally dispose of the second objections to the right to expropriate, including the
stage of the suit, and leave nothing more to be public purpose of the same.
done by the court regarding the issue. (Barangay
San Roque v. Heirs of Pastor, G.R. No. 138896, The court will then proceed to resolve the matter
2000) of just compensation.
Remedy: Appeal by notice of appeal Such final order sustaining the right to expropriate
within FIFTEEN (15) DAYS from receipt the property may be appealed by any party
of court order. aggrieved thereby. Such appeal, however, shall
not prevent the court from determining the just
The order of the court in each stage is a compensation to be paid.
final order and is separately appealable.
Note: Expropriation is one of the actions wherein
multiple appeals are permitted. An appeal may be
taken from the order of expropriation which
What Constitutes “Taking” authorizes the expropriation. Another appeal may
1. The expropriator must enter a private lie against the judgment on the just compensation
property; to be paid.
2. The entrance into private property must be
for more than a momentary period; Since multiple appeals are permitted, the
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3. The entry into the property should be under reglementary period to appeal shall be 30 days
warrant or color of legal authority; and a record on appeal shall be required for each
4. The property must be devoted to a public use of the permissible appeals.
or otherwise informally appropriated or
injuriously affected; and After the rendition of such an order, the plaintiff
5. The utilization of the property for public use shall not be permitted to dismiss or discontinue
must be in such a way as to oust the owner the proceeding except on such terms as the court
and deprive him of all beneficial enjoyment of deems just and equitable. (Sec. 4, Rule 67)
the property. (Republic v. Vda. De Castellvi,
G.R. No. L-20620, 1974) Judicial Review of the Exercise of Eminent
Domain; Limitations
Requisites for the Local Government to Judicial review of the exercise of eminent domain
Validly Exercise Eminent Domain is limited to the following areas of concern:
1. An ordinance is enacted by the local legislative 1. The adequacy of the compensation;
council authorizing the local chief executive, in 2. The necessity of the taking; and
behalf of the LGU, to exercise the power of 3. The public use character of the purpose of
eminent domain or pursue expropriation the taking. (Masikip v. City of Pasig, G.R. No.
proceedings over a particular private property; 136349, 2006)
2. The power of eminent domain is exercised for
public use, purpose or welfare, or for the Dismissal of Expropriation Proceeding –
benefit of the poor and the landless; When Proper
3. There is payment of just compensation, as Dismissal of an expropriation proceeding is
required under Section 9, Article III of the proper when the city asserting eminent domain
Constitution, and other pertinent laws; and failed to prove in evidence that there is a genuine
4. A valid and definite offer has been previously necessity for taking public property. Providing a
made to the owner of the property sought to playground for a non-profit, private organization,
be expropriated, but said offer was not not directly for the benefit of the locality, is not a
accepted. (Municipality of Parañaque v. V.M. public purpose. Hence, it is an inappropriate
Realty Corporation, G.R. No. 127820, 1998) reason for instituting expropriation proceedings
and no confiscation of property may be executed.
(Masikip v. City of Pasig, G.R. No. 136349, 2006)

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The order of expropriation merely declares that JC = Fair Market Value of the Property
the plaintiff has the lawful power to expropriate
the property but contains no ascertainment of the (Republic v. BPI, G.R. No. 203039, 2013)
compensation to be paid to the owner of the
property. (RIANO, 2016, p. 300) Inverse Condemnation
Inverse condemnation has the objective to
3. ASCERTAINMENT OF JUST recover the value of property taken in fact by the
COMPENSATION governmental defendant, even though no formal
exercise of the power of eminent domain has
Just Compensation been attempted by the taking agency. (NPC v.
It is the full and fair equivalent of the property Heirs of Macabangkit, G.R. No. 165828, 2011)
taken from its owner by the expropriator. The Upon filing of complaint and after due notice to
measure is not just the taker’s gain, but the defendant, the plaintiff shall have the right to
owner’s loss. enter or take possession of property if he makes
a preliminary deposit. (Sec. 2, Rule 67)
Just compensation means not only the correct
determination of the amount to be paid to the Requisites for Authorizing Immediate Entry
owner of the land but also the payment of the land 1. The filing of a complaint for expropriation
within a reasonable time from its taking. sufficient in form and substance; and
2. The deposit of the amount equivalent to the
Without prompt payment, compensation cannot assessed value of the property to be
be considered "just" for the property owner is expropriated based on its current tax
made to suffer the consequence of being declaration (Bardillon v. Barangay Masili,
G.R. No. 146886, 2003)
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immediately deprived of his land while being
made to wait for a decade or more before actually
receiving the amount necessary to cope with his Purpose of Preliminary Deposit
loss. (Coscoluela v. Court of Appeals, G.R. No. 1. Provide damages if court finds that the
77765, 1988) plaintiff has no right to expropriate; and
2. Advance payment for just compensation, if
Just compensation is not only the correct property is finally expropriated. (Zaballero v.
determination of the amount to be paid to the NHA, G.R. No. 49291-92, 1987).
owner, but also the payment of the property within
a reasonable time, i.e. payment within 5 years Value of Preliminary Deposit
from finality of judgment (Republic v. Lim, G.R. 1. Personal property: provisionally ascertained
No. 161656, 2005) and fixed by the court;
2. Real property: assessed value in the tax
Value of the Property as Basis for Just return (Sec. 2, Rule 67);
Compensation 3. If it is a LGU which is expropriating the
1. As of the date of filing of the complaint; or property, only 15% of the fair market value
2. Upon taking of the property, whichever based on the tax declaration is required to be
comes first. (Sec. 4, Rule 67) deposited. (Sec. 19, Local Government
Code).
Formula for Determining Just Compensation
VL – Value of the property (see above); Form of Deposit
JC – Just Compensation; General rule: Compensation must be in money.
CB – Consequential Benefits; Exception: A court authorized certificate
CD – Consequential Damages. of deposit of a government bank; and
bonds to be paid by the government
Where consequential benefits are less than under the Comprehensive Agrarian
consequential damages: Reform Program.
JC = VL + CD - CB Where to Deposit
The deposit shall be made with the authorized
Where consequential benefits are larger than the government depository, i.e., depository bank
consequential damages: (PNB). (Sec. 2, Rule 67).

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For the acquisition of right-of-way, site or location

Note: This system of payment does not apply in for any national government infrastructure project
the acquisition of right-of-way, site or location for through expropriation, upon the filing of the filing
any national government infrastructure project of the complaint, and after due notice to the
through expropriation. defendant, the implementing agency shall
immediately pay the owner of the property the
System of Deposit; When Governed by R.A. amount equivalent to the sum of:
8974 1. 100% of the value of the property based on
RA 8794 provides for a more favorable to the the current relevant zonal valuation of the BIR;
property owner than the procedure provided in and
Rule 67. RA 8974 applies in instances when the 2. The value of the improvements and/or
national government expropriates property for structures as determined under Sec. 7, R.A.
‘national government infrastructure projects’ only. 8974. (R.A. 8974, Sec. 4)
Thus, for other purposes, the assessed value A negotiated sale may be entered into instead of
standard and the deposit prescribed in Rule 67 expropriation proceedings. (Sections 3, 5 & 6 of
continues to apply. (Republic v. Gingoyon, G.R. R.A 8974, and Sections 6 & 13 of E.O. 1035) For
No. 166429, 2005) negotiated sale, payment must be effected within
90 days from submission of all documents and
authorization of sale, while for expropriation, it is
Difference between Rule 67 and R.A. No. 8974 90 days from finality of the decision rendered by
the court.
RULE 67 R.A. NO. 8974
The solicitor general is wrong in asserting that
section 50 of PD 1529 (property registration
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Application
decree) applies in the sense that the property
Expropriation in When National utilized and taken by the government may only be
general. Government conveyed by donation to the government. There
expropriates for is nothing that can more speedily and effectively
National Gov’t embitter a citizen and taxpayer against his
Infrastructure projects. government and alienate his faith in it, than an
injustice in unfair dealing. The government must
For Writ of Possession to Issue effect payment in the form of just compensation,
and it may be done through a negotiated sale, as
Government Government required to
granted by the RTC to the respondent by virtue of
required to make an make immediate
RA 8974 and EO 1035. (Republic v. Ortigas, G.R.
initial deposit. payment to the owner
No. 171496, 2014)
upon filing of the
complaint.
Defenses And Objections
Basis of Computing Amount To Be Paid
1. Omnibus Motion Rule — Subject to the
Assessed Value of Market Value of the provisions of Sec. 1, Rule 9, a motion attacking a
the property for property stated in the pleading, order, judgment or proceeding shall
purposes of taxation. tax declaration OR the include all objections then available, and all
current relevant zonal objections not so included shall be deemed
value of the BIR, waived. (Sec. 8, Rule 15)
whichever is higher,
and the value of the No Objections
infrastructures/improve If a defendant has no objection or defense to the
ments using the action or the taking of his property:
replacement/cost 1. He may file and serve a notice of appearance
method. and a manifestation to that effect, specifically
designating or identifying the property in
New System Of Immediate Payment Of Initial which he claims to be interested, within the
Just Compensation time stated in the summons.

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2. Thereafter, he shall be entitled to notice of all compensation for the property sought to be taken.
proceedings affecting the same. (Sec. 3, (Sec. 5, Rule 67)
Rule 67)
Contents of the Order of Appointment
With Objections – Serve Answer 1. The time and place of the first session of the
If a defendant has objections to the filing of or the hearing to be held by the commissioners; and
allegations in the complaint, he shall serve his 2. The time within which their report shall be
answer within the time stated in the summons. submitted to the court. (Id.)
(Id.)
Objections to the appointment of any of the
Contents of Answer commissioners shall be filed with the court within
1. The answer shall specifically designate or 10 days from service, and shall be resolved within
identify the property in which he claims to 30 days after all the commissioners shall have
have an interest; received copies of the objections. (Id.)
2. State the nature and extent of the interest
claimed; and Oath
3. Adduce all his objections and defenses to the Before entering upon the performance of their
taking of his property. (Id.) duties, the commissioners shall take and
subscribe an oath that they will faithfully perform
No counterclaim, cross-claim or third-party their duties as commissioners. (Sec. 6, Rule 67)
complaint shall be alleged or allowed in the
answer or any subsequent pleading. (Id.) Scope of Powers of the Commissioners
1. Accept evidence which may be introduced by
Motion to dismiss is not permitted in a complaint either party;
for expropriation. (Masikip v. City of Pasig, G.R. 2. After due notice to the parties to attend,
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No. 136349, 2006) examine the property sought to be
expropriated and its surroundings and
A defendant waives all defenses and objections measure the same. However, the parties may
not so alleged but the court, in the interest of consent to the contrary;
justice, may permit amendments to the answer to 3. Assess the consequential damages to the
be made not later than 10 days from the filing property and deduct from such the
thereof. (Sec. 3, Rule 67) consequential benefits to be derived by the
owner from the public use or purpose of the
However, at the trial of the issue of just property taken;
compensation, whether or not a defendant has 4. But in no case shall the consequential
previously appeared or answered, he may benefits assessed exceed the consequential
present evidence as to the amount of the damages assessed, or the owner be
compensation to be paid for his property, and he deprived of the actual value of his property so
may share in the distribution of the award. (Id.) taken. (Id.)
Failure to File Answer - Defendant NOT in Report

Default The court may order the commissioners to report
Note: Failure to file an answer does not produce when any particular portion of the real estate shall
the consequences of default in ordinary civil have been passed upon by them, and may render
actions; the defendant may nonetheless appear judgment upon such partial report, and direct the
at the trial to present evidence as to the just commissioners to proceed with their work as to
compensation of the claims and, thereafter, share subsequent portions of the property sought to be
in the judicial award. expropriated, and may from time to time so deal
with such property. (Sec. 7, Rule 67)
Appointment Of Commissioners;
Commissioners’ Report; Court Action Upon The commissioners shall make a full and
Commissioners’ Report accurate report to the court of all their
Upon the rendition of the order of expropriation, proceedings, and such proceedings shall not be
the court shall appoint not more than 3 competent effectual until the court shall have accepted their
and disinterested persons as commissioners to report and rendered judgment in accordance with
ascertain and report to the court the just their recommendations. (Id.).

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1. Personal property - upon payment of just

Except as otherwise expressly ordered by the compensation;
court, such report shall be filed within 60 days 2. Real property - upon payment of just
from the date the commissioners were notified of compensation AND registration. (Secs. 10
their appointment, which time may be extended and 13, Rule 67)
in the discretion of the court. (Id.).
Effect Of Recording Of Judgment; Contents of
Upon the filing of such report, the clerk of the Judgment
court shall serve copies thereof on all interested 1. An adequate description of the particular
parties, with notice that they are allowed 10 days property or interest therein expropriated; and
within which to file objections to the findings of the 2. The nature of the public use or purpose for
report, if they so desire. (Id.). which it is expropriated.
Action Upon the Report When real estate is expropriated, a certified copy
Upon the expiration of the period of 10 days of such judgment shall be recorded in the registry
referred to in the preceding section, or even of deeds of the place in which the property is
before the expiration of such period but after all situated, and its effect shall be to vest in the
the interested parties have filed their objections plaintiff the title to the real estate so described for
to the report or their statement of agreement such public use or purpose. (Sec. 13, Rule 67)
therewith, the court may, after hearing:
1. Accept the report and render judgment in Remedies of a Property Owner for Non-
accordance therewith; or Payment of the Just Compensation for the
2. For cause shown, it may recommit the same Taking of his Property:
to the commissioners for further report of General rule: The private landowner cannot
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facts; or execute on the judgment or recover the property.
3. It may set aside the report and appoint new Non-payment merely entitles the private
commissioners; or landowner to interest on the just compensation,
4. It may accept the report in part and reject it in until fully paid.
part; and
5. It may make such order or render such Exceptions:
judgment as shall secure to the plaintiff the 1. If the expropriated property earns income
property essential to the exercise of his right or the government has
of expropriation, and to the defendant just allocated/appropriated funds for the just
compensation for the property so taken. compensation, the landowner may
(Sec. 8, Rule 67) execute on such funds within five (5)
years from finality of the decision.
4. RIGHTS OF PLAINTIFF (Coscolluela v. CA, G.R. No. 77765,
UPON JUDGMENT AND August 15, 1988)
PAYMENT
2. An action for reconveyance or
After payment of the just compensation as recovery of possession, if payment of
determined in the judgment, the plaintiff shall just compensation has not been made
have the right to enter upon the property after the lapse of five (5) years from
expropriated and to appropriate the same for the finality of the judgment fixing just
public use or purpose defined in the judgment or compensation, under special
to retain possession already previously made in circumstances, including the fact that the
accordance with Section 2, Rule 67 of the Rules property taken is no longer devoted to
of Court. (Sec. 10, Rule 67) public use. (Republic v. Lim, G.R. No.
161656, June 29, 2005)
Title to the property expropriated passes from the
owner to the expropriator upon full payment of It is arbitrary and capricious for a government
just compensation. (Federated Realty Corp. v. agency to initiate expropriation proceedings,
CA, G.R. No. 127967, 2005) seize a person’s property, allow the judgment of
the court to become final and executory and then
When Title in Expropriation Becomes Vested refuse to pay on the ground that there are no

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appropriations for the property earlier taken and banking institution; of the sale (except
profitably used. Levy and garnishment of NHA equity of redemption where the mortgagee
funds and property must be executed by the is 90 to 120 days, is a bank and the
sheriff as ordered by the court to compensate the and any time before mortgagor is a
respondents. (NHA v. Heirs of Guivelondo, G.R. confirmation of juridical entity, the
No. 154411, 2003) foreclosure sale. right to redeem may
be exercised until, but
G. FORECLOSURE OF REAL Exception: not after, the
ESTATE MORTGAGE (RULE 68) Where the mortgagee registration of the
is a bank, the right of certificate of
Foreclosure redemption may be sale/foreclosure with
Foreclosure of mortgage means the termination exercised within 1 the Register of
of all rights of the mortgagor in the property year after the sale of Deeds, which in no
covered by the mortgage. It denotes the the property (General case shall be more
procedure adopted by the mortgagee to terminate Banking Law of 2000, than three (3) months
the rights of the mortgagor on the property and Sec. 47) after the foreclosure,
includes the sale itself. (DBP v. Zaragoza, G.R. whichever is earlier.
No. 23493, 1978) (General Banking
Law, Sec. 47)
1. KINDS OF FORECLOSURE
(JUDICIAL FORECLOSURE Mortgagee can move Mortgagee has to file
AND EXTRAJUDICIAL for deficiency a separate action to
FORECLOSURE) judgment in the same recover any
action. deficiency.
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Modes of Foreclosure of Real Estate
Buyer at a public Buyer at public
Mortgage
auction becomes the auction becomes
1. Judicial Foreclosure pursuant to Rule
absolute owner only absolute owner only
68;
after confirmation of after finality of an
2. Extrajudicial Foreclosure pursuant to
the sale. action for
Act No. 3135 as amended by Act 4118,
consolidation of
and A.M. No. 99-10-05-0. (Acbang v.
ownership.
Luczon, G.R. No. 164246, 2014)
Mortgagee need not Mortgagee is given a
The availment of the remedy under Rule 68 bars be given a special special power of
recourse to the subsequent filing of a personal power of attorney. attorney in the
action for collection of the same debt, in this case, mortgage contract to
under the principle of litis pendentia, considering foreclose the
that the foreclosure case only remains pending as mortgaged property in
it was not shown to have attained finality. (Marilag case of default.
v. Martinez, G.R. No. 201892, 2015)
Judicial Foreclosure Versus Extrajudicial Need For Special Power Of Attorney

Foreclosure Accordingly, Section 1 of Act No. 3135, which
prescribes for the procedure for the extra-judicial
JUDICIAL EXTRA-JUDICIAL foreclosure of real properties subject to real
FORECLOSURE FORECLOSURE estate mortgage, in relation to Circular No. 7-
(Rule 68) (Act No. 3135) 2002 and SC A.M. No. 99-10-05-0 requires that
the petition for extra-judicial foreclosure be
Complaint is filed with No complaint is filed. supported by evidence that petitioners hold a
the courts. No court intervention. special power or authority to foreclose. (Welbit
Construction Corp. v. Heirs of De Castro, G.R.
There is only an There is a right of No. 210286, 2018)
equity of redemption. redemption.
No right of Mortgagor has a right In judicial foreclosure unlike extra-judicial
redemption except of redemption for one foreclosure, mortgagee need not be given a
when mortgagee is a year from registration special power of attorney in the mortgage

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contract to foreclose the mortgaged property in mortgage and protect his own lien. Where a junior
case of default. encumbrancer has been given, by the court, the
right to redeem after the completed foreclosure
Authority To Foreclose Extrajudicially under a senior mortgage, he must exercise his
Proceedings for the extrajudicial foreclosure of right within the time limited or be barred thereof.
real estate mortgages are governed by Act 3135, (Sunlife Assurance v. Diez, G.R. No. 29027,
as amended, entitled An Act to Regulate the Sale 1928)
of Property under Special Powers Inserted in or
Annexed to Real Estate Mortgages. As the title Application to Initiate Extra-judicial
itself suggests and as provided in Sec. 1 of the Foreclosure
Act, extrajudicial foreclosure sales are proper Proceedings for the extrajudicial foreclosure of
only when so provided in the real estate mortgage mortgages, as the name already suggests, are
contract. (Casano v. Magat, A.M. No. P-02-1539, not suits filed in a court. They are commenced not
Jan. 24, 2002) by the filing of a complaint, but by submitting an
application before an executive judge who, in
Procedure turn, receives the same neither in a judicial
Complaint in Action for Judicial Foreclosure capacity nor on behalf of the court. Necessarily,
In an action for the foreclosure of a mortgage or the orders of the executive judge in such
other encumbrance upon real estate, the proceedings, whether they be to allow or disallow
complaint shall set forth: the extrajudicial foreclosure of the mortgage, are
1. The date and due execution of the mortgage; not issued in the exercise of a judicial function
2. Its assignments, if any; but||| issued by the RTC Executive Judge in the
3. The names and residences of the mortgagor exercise of his administrative function to
and the mortgagee; supervise the ministerial duty of the Clerk of Court
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4. A description of the mortgaged property; as Ex Officio Sheriff in the conduct of an
5. A statement of the date of the note or other extrajudicial foreclosure sale.. (Ingles v. Estrada,
documentary evidence of the obligation G.R. No. 141809, 2013)
secured by the mortgage, the amount claimed
to be unpaid thereon; and
6. The names and residences of all persons Where To File
having or claiming an interest in the property A mortgage may be foreclosed judicially by
subordinate in right to that of the holder of the bringing an action for that purpose, in the proper
mortgage, all of whom shall be made court which has jurisdiction over the area wherein
defendants in the action. (Sec. 1, Rule 68) the real property involved or a portion thereof, is
situated. (Sec.1, Rule 4).
Defendants in Judicial Foreclosure
1. Persons obliged to pay the mortgage debt; The venue of the extra-judicial foreclosure
2. Persons who own, occupy, or control the proceedings is the place where each of the
mortgaged premises or any part thereof; mortgaged property is located. (Benguet
3. Transferee or grantee of the property; Management Corp. v. Court of Appeals, G.R. No.
4. Second mortgagee or junior encumbrancers 153571, 2003)
or any person claiming a right or interest in
the property subordinate to the mortgage Judgment on Judicial Foreclosure for
sought to be foreclosed to foreclose their Payment of Sale
equity of redemption; but if the action is by If after the trial, the court finds that the matters set
the junior encumbrancer, first mortgagee forth in the complaint are true, it shall render a
MAY also be joined as defendant; and judgment containing the following matters:
5. The mortgagor even if not owner of the 1. An ascertainment of the amount due to the
mortgaged property should be included (to plaintiff upon the mortgage debt or obligation,
satisfy the deficiency). including interest and other charges as
approved by the court, as well as costs;
Effect of Junior Encumbrancer Not Impleaded 2. A judgment of the sum found due;
After completed foreclosure under a senior 3. An order that the amount found due be paid
mortgage, a junior encumbrancer may be given, to the court or to the judgment obligee within
by the court, the right to redeem the senior the period of not less than 90 days nor more

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than 120 days from the entry of judgment;

The place of the sale It cannot be made
and
may be agreed upon legally outside of the
4. An admonition that in default of such
by the parties. In the province in which the
payment the property shall be sold at public
absence of such property sold is
auction to satisfy the judgment. (Sec. 2, Rule
agreement, the sale of situated; and in case
68)
real property or the place within said
personal property not province in which the
The judgment of the court on the above matters
capable of manual sale is to be made is
is considered a final adjudication of the case and
delivery shall be held the subject of
hence, is subject to challenge by the aggrieved
in the office of the stipulation, such sale
party by appeal or by other post-judgment
clerk of court of the shall be made in said
remedies.
Regional Trial Court place or in the
or the Municipal Trial municipal building of
The period granted to the mortgagor for the
Court which made the the municipality in
payment of the amount found due by the court is
order. (Sec. 15, Rule which the property or
not just a procedural requirement but a
39) part thereof is situated
substantive right given by law to the mortgagee
(Sec. 2, Act No. 3135)
as his first chance to save his property from final
disposition at the foreclosure sale. Hence, this
period cannot be omitted. (De Leon v. Ibañez, Posting Requirement
G.R. No. L-6967, 1954) Notice Requirement in Judicial Foreclosure
The foreclosure sale shall be conducted in the
Judicial Foreclosure Sale manner provided for an execution sale of real
If the defendant fails to pay the amount adjudged property under Rule 39, to wit:
within the period given, the court will order the
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1. The court, upon motion, shall order the
foreclosure and execution sale of the mortgaged foreclosure sale;
property. The court, upon motion, shall order the 2. There must be a notice of sale posted for 20
property to be sold in the manner and under the days in the 3 public places in conspicuous
provisions of Rule 39 and other regulations
areas of municipal or city hall, post office and
governing sales of real estate under execution. public market in the municipality or city where
(Sec. 3, Rule 68) the sale is to take place, describing the
property and stating where the property is to
Duty of Clerk of Court in an Extra-judicial be sold;
Foreclosure Sale 3. If the assessed value of the property exceeds
Upon the filing of the application, it shall be the P50,000.00 pesos, the notice must be
duty of the Clerk of Court: published once a week for 2 consecutive
1. Receive and docket the application; weeks in one newspaper selected by raffle,
2. Collect the filing fees; whether in English, Filipino, or any major
3. Examine whether the applicant has complied regional language published, edited and
with the requirements of Act 3135 before circulated or, in the absence thereof, having
conducting the public auction; general circulation in the province or city;
4. Sign and issue a certificate of sale, subject to 4. Written notice of the sale shall be given to the
the approval of the executive judge; and mortgagor, at least 3 days before the sale;
5. After the certificate of sale has been issued to 5. The notice shall specify the place, date and
the highest bidder, keep the complete records, exact time of the sale which should not be
while awaiting any redemption within a period earlier than nine o'clock in the morning and
of 1 from date of registration of the certificate not later than two o'clock in the afternoon;
of sale with the Register of Deeds concerned, (Sec. 15, Rule 39 vis-à-vis Sec. 3, Rule 68)
after which, the records shall be
archived.|(A.M. No. 99-10-05-0) A motion is needed. Such motion is non-litigious
and may be made ex parte. (GPI v. De Las
Where To Sell Cajigas, G.R. No. L-33913, 1931)
JUDICIAL EXTRAJUDICIAL
Notice Requirement in Extra-judicial
FORECLOSURE FORECLOSURE
Foreclosure

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1. Notice shall be given by posting notices of the and not just to a select few chosen by the
sale for not less than 20 days in at least 3 publisher. Otherwise, the precise
public places of the municipality or city where objective of publishing the notice of sale
the property is situated; in the newspaper will not be realized.
2. If such property is worth more than P400, (Metropolitan Bank and Trust Co. v.
such notice shall also be published once a Peñafiel, G.R. No. 173976, 2009)
week for at least 3 consecutive weeks in a
newspaper of general circulation in the The crucial factor is not where the newspaper is
municipality or city; printed but whether the newspaper is being
3. The sale shall be made at public auction, circulated in the city or province where the
between the hours of nine in the morning and property is located. (Gotesco Properties, Inc. v.
four in the afternoon; and shall be under the Solidbank Corp., G.R. No. 209452, 2017)
direction of the sheriff of the province, the
justice or auxiliary justice of the peace of the In fact, to ensure a wide readership of the
municipality in which such sale has to be newspaper, jurisprudence suggests that the
made, or a notary public of said municipality, newspaper must also be appealing to the public
who shall be entitled to collect a fee of five in general. The Court has, therefore, held in
pesos for each day of actual work performed, several cases that the newspaper must not be
in addition to his expenses. (Secs. 3 & 4, Act devoted solely to the interests, or published for
No. 3135). the entertainment, of a particular class,
profession, trade, calling, race, or religious
Publication Requirement denomination. The newspaper need not have the
Judicial And Extra-Judicial Foreclosure: largest circulation so long as it is of general
Statutory provisions governing publication of circulation. (Id.)
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notice of mortgage foreclosure sales must be
strictly complied with and slight deviations Need For Republication In Case Of
therefrom will invalidate the notice and render the Postponement
sale, at the very least, voidable. Certainly, the If the foreclosure sale does not push through as
statutory requirements of posting and publication scheduled, there is a need for re-publication and
are mandated and imbued with public policy re-posting of the notice thereof. (Metrobank v.
considerations. Failure to advertise a mortgage Nikko Securities Int’l Corp., G.R. No. 178479,
foreclosure sale in compliance with the statutory 2009)
requirements constitutes a jurisdictional defect,
and any substantial error in a notice of sale will Personal Notice To The Mortgagor – When
render the notice insufficient and will And When Not Needed
consequently vitiate the sale. (Caubang v.
Spouses Crisologo, G.R. No. 174581, Feb. 4, JUDICIAL FORECLOSURE: Notice must be
2015). sent to the mortgagor. (Sec. 15, Rule 39 vis-à-vis
Sec. 3, Rule 68)
The failure to post a notice is not per se a ground
for invalidating the sale provided that the notice EXTRA-JUDICIAL FORECLOSURE:eUnless
thereof is duly published in a newspaper of the parties stipulate, personal notice to the
general circulation. (Development Bank of the mortgagor in extrajudicial foreclosure
Philippines v. Aguirre, G.R. No. 144877, 2001) proceedings is NOT necessary because Section
3 of Act 3135 only requires the posting of the
Sufficiency Of Newspaper Publication notice of sale in three public places and the
To be a newspaper of general circulation, it is publication of that notice in a newspaper of
enough that: general circulation.||(Lim v. Development Bank of
1. It is published for the dissemination of the Phils., G.R. No. 177050, 2013)
local news and general information,
2. It has a bona fide subscription list of Confirmation of the Judicial Foreclosure Sale
paying subscribers After the foreclosure sale has been effected, the
3. Itt is published at regular intervals. mortgagee shall file a MOTION FOR ITS
4. Over and above all these, the newspaper CONFIRMATION. (Sec. 3, Rule 68)
must be available to the public in general,

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The motion for confirmation:

1. Is non-litigious and may be made ex parte; 3. The court shall, upon approval of the bond,
2. Requires notice and hearing; order that a writ of possession issue,
3. Mortgagor will be allowed the opportunity to addressed to the sheriff of the province in
show cause why the sale should not be which the property is situated, who shall
confirmed and to inform them when his right execute said order immediately. (Sec. 7, Act
will be cut off; No. 3135, as amended)
4. If the mortgagor was not notified of the
hearing, the subsequent confirmation of the The procedure under Section 7 of Act No. 3135,
sale is vitiated as if no confirmation ever took as amended, may be availed of by a purchaser
place; seeking possession of the foreclosed property he
5. After the hearing and the court finds valid bought at the public auction sale after the
grounds, it shall issue an order confirming the redemption period has expired without
foreclosure sale, which is a judgment in itself redemption having been made. (Sps. Teves vs.
and is deemed a final adjudication. IC&CS Co., G.R. No. 216714, 2018)
Order of Confirmation The purchaser at the auction sale concerned

The title vests in the purchaser upon a valid whether in a judicial or extra-judicial
confirmation of the sale and retroacts to the date foreclosure shall have the right to enter upon
of sale. (Grimalt vs. Valazquez, G.R. No. L- and take possession of such property
11721, 1918) immediately after the date of the
confirmation of the auction sale and
The order of confirmation is appealable and if not administer the same in accordance with law.
appealed within the period for appeal becomes (Sec. 47, General Banking Law)
final.
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In case of refusal of a debtor to surrender the
Possession By Purchaser Of Foreclosed property sold by the sheriff in a public auction, a
Property writ of possession may also be issued in favor of
See also further discussion on Mortgage & the mortgagee in cases of:
Foreclosure under Civil Law. 1. In an extra-judicial foreclosure of a realty
mortgage (Sec. 7, Act No. 3135); and
In an extrajudicial foreclosure of real property, the 2. In a judicial foreclosure of mortgage, a quasi
purchaser becomes the absolute owner thereof if in rem proceeding, provided that the
no redemption is made within 1 year from the mortgagor is in possession of the mortgaged
registration of the certificate of sale by those realty and no third person, not a party to the
entitled to redeem. Being the absolute owner, he foreclosure suit, had intervened. (Mabale v.
is entitled to all the rights of ownership over a Apalisok, G.R. No. L-46942, Feb. 6, 1979)
property. (Sps. Reyes vs. Sps. Chung, G.R. No.
228112, 2017) Remedy Of Debtor If Foreclosure Is Not
Proper
The purchaser may PETITION THE COURT, TO
GIVE HIM POSSESSION thereof during the See further discussions on Mortgage &
redemption period, provided: Foreclosure under Civil Law.
1. That he furnish a bond in an amount
equivalent to the use of the property for a If a mortgage creditor pursues foreclosure even
period of twelve months, to indemnify the after previously instituting a personal action for
debtor in case it be shown that the sale was recovery of debt, mortgage debtor can allege in
made without violating the mortgage or its answer splitting of cause of action since the
without complying with the requirements of said personal action constitutes a waiver of the
this Act. right to foreclosure. (Bachrach Motor Co., Inc vs.
Icarañgal, G.R. No. L-45350 1939)
Note: No such bond is required after the
redemption period if the property is not Mortgage debtor can file opposition to the motion
redeemed. for writ of possession alleging that notice and
hearing was not afforded before a confirmation
2. The petition shall be made under oath; and sale is ordered. Notice and hearing of motion for

ATENEO CENTRAL
confirmation are therefore essential to the validity

Equity of the Prerogative or right to
of the order of confirmation, not only to enable the
defendant mortgagor reacquire mortgaged
interested parties to resist the motion but also to
to extinguish the property after
inform them of the time when their right of
mortgage and retain registration of the
redemption is cut off. (Tiglao vs. Botones, G.R.
ownership of the foreclosure sale.
No. L-3619, 1951)
property by paying the
secured debt within
Right of Redemption
the 90-120 day period
Upon the finality of the order of confirmation or
set by the court after
upon the expiration of the period of redemption
the judgment
when allowed by law, the purchaser at the auction
becomes final. (Sec.
sale or last redemptioner, if any, shall be entitled
2, Rule 68)
to the possession of the property and he may
secure a writ of possession, upon, motion, from General rule: Must General rule: Exists
the court which ordered the foreclosure unless a be exercised within only in the case of
third party is actually holding the same adversely the 90 -120 day extrajudicial
to the judgment obligor. (Sec. 3, Rule 67) period after the foreclosure of the
judgment becomes mortgage
The import of Sec. 3 includes one vital effect— final
the equity of redemption of the mortgagor or
redemptioner is cut-off and there will be no further
redemption, unless allowed by law (as in the case
of banks as mortgagees). The equity of
redemption starts from the 90-120 day period set
FOR ONE ATENEO

in the judgment of the court up to the time before
the sale is confirmed by an order of the court.
Once confirmed, no equity of redemption may
further be exercised.
General Rule: There is no right of redemption in
a judicial foreclosure.
Exception: Judicial foreclosures by banks: 1 year

redemption period. (Cayton v. Zeonnix Trading
Corp., G.R. No. 169541, 2009; Sec. 47, General
Banking Law of 2000)
Equity of Redemption in Judicial Foreclosure

While there is no right of redemption in judicial
foreclosure, there is in favor of the mortgagor an
equity of redemption. This is simply the right of
the defendant mortgagor to extinguish the
mortgage and retain ownership of the property by
paying the secured debt within the 90-day period
after the judgment becomes final, in accordance
with Rule 68, or even after the foreclosure sale
but prior to its confirmation. (Huerta Alba Resort
v. CA, G.R. No. 128567, 2000)
Equity Of Redemption Versus Right Of

Redemption
EQUITY OF RIGHT OF
REDEMPTION REDEMPTION

ATENEO CENTRAL
Except: When, even Except: When, in a Right of Redemption under Judicial Foreclosure
after the foreclosure judicial foreclosure, (Rule 68)
sale itself has been the mortgagee is PNB If the mortgagee is a bank or banking institution,
made, no order of or a bank or banking the right of redemption is 1 year, counted from the
confirmation of the institution registration of the certificate of sale with the
sale has been made. PNB’s charter and the Register of Deeds (Sec. 47, General Banking
Otherwise, no General Banking Act Law of 2000; Huerta Alba Resort v. CA, G.R. No.
redemption can be confer on the 128567, 2000)
made anymore. mortgagor, his
successors-in-interest, Right of Redemption under Extrajudicial
or judgment creditor the Foreclosure (Act. No. 3135)
right to redeem the General Rule: Whether or not the mortgagee is
property sold on a non-bank or banking institution, the redemption
foreclosure after period is 1 year, counted from the registration of
confirmation by the the certificate of sale with the Register of Deeds.
court of the foreclosure
sale within one year Exception: If the mortgagor is a juridical person,
from the date of the the redemption period is either:
registration of the 1. Before registration of the certificate of
certificate of sale in the foreclosure sale with the Register of Deeds,
Registry of Property. or
Exception to 2. No more than 3 months after the foreclosure
exception: sale, whichever is earlier. (Sec. 47, General
Where the mortgagor is Banking Law of 2000)
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a juridical entity whose
property has been the Disposition Of Proceeds Of Sale
subject of an Formula
extrajudicial Amount realized from the foreclosure sale, less
costs of the sale, shall be paid to the person
foreclosure, the right to
redeem may be foreclosing.
exercised until, but not
after, the registration of Junior Encumbrancers
the certificate of When there shall be any balance or residue after
sale/foreclosure with paying off the mortgage debt due, the same shall
the Register of Deeds, be paid to:
which in no case shall 1. Junior encumbrancers in the order of their
be more than three (3) priority;
months after the 2. If there be no junior encumbrancers or if there
foreclosure, whichever is still a balance after paying off the junior
is earlier. (Sec. 47, encumbrancers, the same shall be paid to the
General Banking Act of mortgagor or any person entitled thereto.
2000) (Sec. 4, Rule 68)
Deficiency Judgment
Summary of Redemption Periods If there be a balance due to the plaintiff after
Equity of Redemption applying the proceeds of the sale, the court, upon
Regardless of who is the mortgagor or motion, shall render judgment against the
mortgagee, the period for equity of redemption is: defendant for any such balance.
1. Not less than 90 days nor more than 120
days from entry of judgment of foreclosure; Execution may issue immediately if the balance
or is all due. The plaintiff shall be entitled to
2. Even after the foreclosure sale but before execution at such time as the remaining balance
judicial confirmation of the sale (Huerta Alba shall become due and such due date shall be
Resort v. CA, G.R. No. 128567, 2000) stated in the judgment. (Sec. 7, Rule 68) The
deficiency judgment is in itself a judgment; thus,
it is also appealable.

ATENEO CENTRAL
No independent action need be filed to recover Writ Of Possession

the deficiency from the mortgagor. The deficiency See the prior discussion on Possession by
judgment shall be rendered upon motion of the Purchaser of Foreclosed Property.
mortgagee.
Upon the finality of the order of confirmation or
The motion must be made only after the sale and upon the expiration of the period of redemption
after it is known that a deficiency exists. Before when allowed by law, the purchaser at the auction
that, any court order to recover the deficiency is sale or last redemptioner, if any, shall be entitled
void. (Gov’t. of the Philippines v. Torralba, G.R. to the possession of the property unless a third
No. L-41573, 1935) party is actually holding the same adversely to the
judgment obligor. The said purchaser or last
The mortgagor who is not the debtor and who redemptioner may secure a writ of possession,
merely executed the mortgage to secure the upon motion, from the court which ordered the
principal debtor’s obligation, is not liable for the foreclosure. (Sec. 3, Rule 68)
deficiency, unless he assumed liability for the
same in the contract. (Philippine Trust Co. v. The writ of possession is a means of recognizing
Echaus Tan Siua, G.R. No. L-29736, 1929) and enforcing the rights of the purchaser
emphasized in Sec. 3 which provides that the
Since a deficiency judgment cannot be obtained confirmation of the sale operates to divest all
against the mortgagor who is not the debtor in the parties to the action of their respective rights and
principal obligation, the mortgagee may have to vest them in the purchaser. (RIANO, 2016)
file a separate suit against the principal debtor.
General Rule: There is no need for the purchaser
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Instances When Court Cannot Render to notify parties of the proceedings. The law
Deficiency Judgment expressly authorizes the purchaser to petition for
1. Cases under the Recto Law (New Civil Code, a writ of possession by filing an ex parte motion.
Art. 1484, par. 3); (Carlos vs. CA, 537 SCRA 247)
2. When the mortgagor is a non-resident and is
not found in the Philippines; As an exception, the ministerial duty of the court
3. When mortgagor dies, mortgagee may file his to issue an ex parte writ of possession ceases
claim with the probate court (Sec. 7, Rule 86); once it appears that a third party, not the debtor-
4. If mortgagor is a third-party mortgagor but not mortgagor, is in possession of the property under
solidarily liable with debtor (Phil Trust v. Tan a claim of title adverse to that of the applicant.
Suisa, G.R. No. L-29736, 1929); (Sec. 33, Rule 39)
5. In case of a mortgage debt due from the
estate of a deceased mortgagor and the The remedy of a writ of possession, a remedy that
mortgage creditor availed of the third remedy is available to the mortgagee-purchaser to
which is to rely upon his mortgage alone and acquire possession of the foreclosed property
foreclosing the same within the statute of from the mortgagor, is made available to a
limitations (Sec. 7, Rule 86); and subsequent purchaser, but only after hearing and
6. When the deficiency arises under an after determining that the subject property is still
extrajudicial foreclosure. The mortgagee can in the possession of the mortgagor. (Sps. Reyes
recover by action (not by motion) any vs. Sps. Chung, G.R. No. 228112 2017, citing
deficiency in the mortgage account which Okabe v. Saturnina)
was not realized in the foreclosure sale. (PNB
v. CA, G.R. No. 103953, 1999) Annulment Of Sale
See further discussions on Mortgage &
Procedure When There is Surplus Foreclosure under Civil Law.
It is the duty of the mortgagee to return to the
mortgagor any surplus in the selling price during A judgment in the Annulment of Mortgage case
the foreclosure sale. (Sulit v. CA, G.R. No. will amount to res judicata in the Annulment of
119247, 1997) Foreclosure Sale case. (FCD Pawnshop vs.
Union Bank, G.R. No. 207914 2017)

ATENEO CENTRAL
The period within which to redeem the property

sold at a sheriff's sale is not suspended by the
institution of an action to annul the foreclosure
sale (Fundamentals of Redemption in Extra- H. PARTITION
Judicial Foreclosures, citing De Connejero, et al.
v. Court of Appeals, et al., L-21812; Castillo v. Partition
Samonte, L-13146, 1960; Daza v. Tomacruz, It is the separation, division, and assignment of
G.R. No. 37046, 1933; and Sumerariz v. property held in common among co-owners in
Development Bank of the Philippines, G.R. No. L- proportion to their respective interests in the said
23764, 1967). property. (Civil Code, Art. 1079).
2. THE GENERAL BANKING Note: The procedure for judicial partition is

LAW OF 2000 provided under Rule 69. For extrajudicial
partition, no court intervention is required. This is
Section 47. Foreclosure of Real Estate recognized in Rule 69, Sec. 12.
Mortgage. - In the event of foreclosure, whether
judicially or extra-judicially, of any mortgage on Nature of Partition
real estate which is security for any loan or other It is an action quasi in rem. (Valmonte v. CA, G.R.
credit accommodation granted, the mortgagor or No. 108538, 1996)
debtor whose real property has been sold for the
full or partial payment of his obligation shall have An action for partition implies that the property is
the right within one year after the sale of the real still owned in common. (Mangahas v. Brobio,
estate, to redeem the property by paying the G.R. No. 183852, 2010)
amount due under the mortgage deed, with
FOR ONE ATENEO

interest thereon at rate specified in the mortgage, In a complaint for partition, the plaintiff seeks,
and all the costs and expenses incurred by the first, a declaration that he is a co-owner of the
bank or institution from the sale and custody of subject properties, and second, the conveyance
said property less the income derived therefrom. of his lawful shares. (Heirs of Abalos v. Bucal,
However, the purchaser at the auction sale G.R. No. 156224, 2008)
concerned whether in a judicial or extra-judicial
foreclosure shall have the right to enter upon and Proof of legal acknowledgment as an heir is not a
take possession of such property immediately prerequisite before an action for partition may be
after the date of the confirmation of the auction filed. An action for partition is at once an action
sale and administer the same in accordance with for declaration of co-ownership and for
law. Any petition in court to enjoin or restrain the segregation and conveyance of a determined
conduct of foreclosure proceedings instituted portion of the properties involved. If the defendant
pursuant to this provision shall be given due asserts exclusive title over the property, the
course only upon the filing by the petitioner of a action for partition should not be dismissed.
bond in an amount fixed by the court conditioned
that he will pay all the damages which the bank Rather, the court should resolve the case and if
may suffer by the enjoining or the restraint of the the plaintiff is unable to sustain his claimed status
foreclosure proceeding. Notwithstanding Act as a co-owner, the court should dismiss the
3135, juridical persons whose property is being action, not because the wrong remedy was
sold pursuant to an extrajudicial foreclosure, shall availed of, but because no basis exists for
have the right to redeem the property in requiring the defendant to submit to partition. If,
accordance with this provision until, but not after, on the other hand, the court after trial should find
the registration of the certificate of foreclosure the existence of co-ownership among the parties,
sale with the applicable Register of Deeds which the court may and should order the partition of the
in no case shall be more than three (3) months properties in the same action. (Balo v. CA, G.R.
after foreclosure, whichever is earlier. Owners of 129704, 2005)
property that has been sold in a foreclosure sale
prior to the effectivity of this Act shall retain their Partition in Succession
redemption rights until their expiration. (R.A. No. In intestate succession, partition is the proper
8791, Sec. 47) remedy for compulsory heirs to get their legitime.

ATENEO CENTRAL
In testate succession, there can be no valid

partition among heirs until the will has been Non-Inclusion of a Co-Owner
probated. (Union Bank v. Santibañez, G.R. No. 1. Non-inclusion of co-owner BEFORE
149926, 2005) judgment: not a ground for motion to dismiss.
Plaintiff The remedy is to file a motion to include
The action shall be brought by the person who party;
has a right to compel the partition of real estate 2. Non-inclusion of co-owner AFTER judgment:
(Sec. 1, Rule 69) or of an estate composed of judgment is VOID because co-owners are
personal property, or both real and personal indispensable parties.
property (Sec. 13, Rule 69), i.e. a co-owner.
Note: Creditors/assignees of co-owners may
The plaintiff is a person who is the supposed co- intervene and object to a partition effected
owner of the property or estate sought to be without their concurrence. However, the
partitioned. creditors/assignees cannot impugn a
partition already executed, unless:
General Rule: Plaintiff is allowed to file a petition 1. There has been fraud; or
for partition ANY TIME as the Civil Code provides 2. In case partition was made
that NO co-owner shall be obliged to remain in notwithstanding a formal opposition
the co-ownership. It can be made any time as the presented to prevent it.
right to demand partition is imprescriptible.
(Bautista v. Grino-Aquino, G.R. No. 79958, The intervenor must show a legitimate and proper
1988). interest in the subject property (De Borja v. Jugo,
G.R.No. 45297, 1937)
Exceptions:
FOR ONE ATENEO

1. If a co-owner asserts adverse title to the Note: The Municipal Trial Court MAY HAVE
property, in which case the period of JURISDICTION in actions for partition if the value
prescription runs from such time of assertion of the real property is less than Three Hundred
of adverse title; Thousand (P300,000) if not in Metro Manila or
2. Existence of an agreement among co-owners less than Four Hundred Thousand (P400,000) if
to retain the property undivided for not located in Metro Manila.
exceeding ten (10) years (Civil Code, Art.
494); Complaint for Partition
3. When co-owners are prohibited by the donor 1. Nature and extent of petitioner’s title;
or testator for a period not exceeding twenty 2. Adequate description of the real estate of
(20) years (Civil Code, Arts. 494 & 1083); which partition is demanded; and
4. When partition is prohibited by law (Civil 3. A demand for the accounting of the rents,
Code, Art. 494); profits, and other income from the property
5. When the property is NOT subject to a which he may be entitled to.
physical division and to do so would render it
unserviceable for the use which it is Petitioner MUST join as defendants all other
unintended; (Civil Code, Art. 495); and persons interested in the property. (Sec. 1, Rule
6. When the condition imposed upon voluntary 69)
heirs before they can demand partition has
not yet been fulfilled (Civil Code, Art. 1084) A demand for the accounting MUST be included
as they are parts of the cause of action for
Defendant partition. They cannot be demanded in another
The defendants are all the co-owners of the action and will be BARRED if not set up in the
disputed property. All the co-owners MUST be same action. (Sec. 8, Rule 69)
joined. Accordingly, an action will not lie without
the joinder of all co-owners and other persons Two Stages In Every Action For Partition
having interest in the property. (Reyes v. 1. Determination of whether or not a co-
Cordero, G.R. No. L-14242, 1920). ownership exists, and if partition is
proper; and
All the co-owners, therefore, are
INDISPENSABLE parties.

ATENEO CENTRAL
This involves a determination of whether the The parties may also make the partition among
subject property is owned in common and themselves by proper instruments of
whether all the co-owners are made parties in the conveyance.
case. (Lacbayan v. Samoy, G.R. No. 165427,
2011) If they do agree, the court shall then confirm the
partition so agreed upon by all of the parties, and
The order may also require an accounting of rents such partition, together with the order of the court
and profits recovered by the defendant. This confirming the same, shall be recorded in the
order of partition is appealable. (Miranda v. CA, registry of deeds of the place in which the
G.R. No. L-33007, 1976) property is situated (Sec. 2, Rule 69)
If not appealed, then the parties may partition the If the parties CANNOT AGREE to the partition,
common property in the way they want. If they the appointment of commissioners shall be had
cannot agree, then the case goes into the second to preside over the partition proceedings.
stage. However, the order of accounting may in
the meantime be executed. (De Mesa v. CA, G.R. In a situation where there remains an issue as to
No. 109387, 1994) the expenses chargeable to the estate, partition
is inappropriate. In this case, petitioner does not
2. Accounting and actual partition of the dispute the findings that “certain expenses”
property. (Maglucot-Aw v. Maglucot, G.R. No. including those related to her father’s final illness
132518, 2000) and burial have not been properly settled. Thus,
the heirs have to submit their father’s estate to
Note: Multiple appeals are allowed. (Roman settlement because the determination of these
Catholic Archbishop of Manila v. CA, G.R. No. expenses cannot be done in an action for
77425, 1991) partition. But, the heirs or distributees of the
FOR ONE ATENEO

properties may take possession thereof even
From the first or second stages BEFORE before the settlement of accounts, as long as they
judgment of partition, appeal is by notice of first file a bond conditioned on the payment of the
appeal within 15 days or by record on appeal estate’s obligations. (Figuracion-Gerilla v. Vda.
within 30 days from notice of court order. AFTER de Figuracion, G.R. 154322, 2005)
judgment is rendered, the remedy against a
judgment of partition is only by notice of appeal Res Judicata in Partition Cases
within 15 days from receipt of judgment. There can still be res judicata in partition cases
concerning the same parties and the same
Order Of Partition And Partition By subject matter once the respective shares of the
Agreement co-owners have been determined with finality by
For an order of partition to issue, the court must a competent court with jurisdiction or if the court
determine determines that partition is improper for co-
1. Whether the plaintiff is truly a co-owner of the ownership does not or no longer exists. (Quintos
property; vs. Nicolas, G.R. No. 210252, 2014)
2. Whether there is indeed a co-ownership
among the parties; and Partition By Commissioners; Appointment Of
3. That a partition is not legally proscribed, thus Commissioners; Commissioner’s Report;
may be allowed. Court Action Upon Commissioner’s Report
If the parties are unable to agree upon the
The court shall order the partition of the property partition, the court shall appoint not more than
among all the parties in interest, if AFTER TRIAL three (3) competent and disinterested persons as
it finds that the plaintiff has the right to partition. commissioners to make the partition,
(Sec. 2, Rule 69). commanding them to set off to the plaintiff and to
each party in interest such part and proportion of
A final order decreeing PARTITION and the property as the court shall direct. (Sec. 3,
ACCOUNTING may be APPEALED by any party Rule 69)
aggrieved thereby. (see Miranda v. CA, G.R. No.
L-33007, 1976) Commissioners are NOT ALLOWED to
adjudicate on questions of title or ownership of
Partition by Agreement

ATENEO CENTRAL
the property. It is merely their duty to make OR the real estate, or of its value, if assigned or
effect the partition. sold as above provided, between the several
owners thereof. (Sec. 8, Rule 69)
Commissioners are required to take an OATH
that they will faithfully perform their duties as Judgment And Its Effects
commissioners. Such oath shall be FILED in
court. The judgment shall state definitely, by metes and
bounds and adequate description, the particular
In making the partition, the commissioners shall portion of the real estate assigned to each
view and examine the real estate, after due notice party.
to the parties to attend at such view and
examination, and shall hear the parties as to their The effect of the judgment shall be to vest in each
preference in the portion of the property to be set party to the action in severalty the portion of the
apart to them and the comparative value thereof, real estate assigned to him.
and shall set apart the same to the parties in lots
or parcels as will be most advantageous and If the whole property is assigned to one of the
equitable, having due regard to the parties upon his paying to the others the sum or
improvements, situation and quality of the sums ordered by the court the effect of the
different parts thereof. (Id.) judgment shall be to vest in the party making the
payment the whole of the real estate free from
Commissioner’s Report: any interest on the part of the other parties to the
1. The commissioners shall make a full and action.
accurate report to the court of:
2. Partition proceedings; If the property is sold and the sale confirmed by
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3. Assignment of real estate to one of the the court, the judgment shall state the name of
parties; or the purchaser or purchasers and a definite
4. The sale of the same. (Sec. 6, Rule 69) description of the parcels of real estate sold to
each purchaser, and the effect of the judgment
Copies of the report shall be SERVED on ALL shall be to vest the real estate in the purchaser or
INTERESTED PARTIES. Opposition to such purchasers making the payment or payments,
partition must be commenced by filing an free from the claims of any of the parties to the
objection within ten (10) days from receipt of action.
report.
A certified copy of the judgment shall in either
Confirmation of the Court Required case be recorded in the registry of deeds of
No proceeding had before or conducted by the the place in which the real estate is situated,
commissioners shall pass the title to the property and the expenses of such recording shall be
or bind the parties UNTIL the court shall have taxed as part of the costs of the action. (Sec. 11,
ACCEPTED the report of the commissioners and Rule 69)
RENDERED JUDGMENT thereon.
Partition Of Personal Property
Court action upon commissioner’s report The provisions of this Rule shall apply to
After an objection has been filed OR the partitions of estates composed of personal
expiration of the ten (10) day period allowed for property, or of both real and personal property, in
such objection, the court may, UPON HEARING: so far as the same may be applicable. (Sec. 13,
1. Accept the report and render judgment in Rule 69)
accordance therewith; or,
2. For cause shown, recommit the same to the Prescription Of Action
commissioners for further report of facts; or General Rule: The right of action to demand
3. Set aside the report and appoint new partition does not prescribe (De Castro v. Echarri,
commissioners; or G.R. No. 5609, 1911)
4. Accept the report in part and reject it in part;
and Exception: Where one of the interested parties
5. Make such order and render such judgment openly and adversely occupies the property
as shall effectuate a fair and just partition of without recognizing the co-ownership (Cordova v.

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Cordova, G.R. No. L-9936,1958) in which case, termination of his right

acquisitive prescription may set in. to the possession of
the property.
If a co-owner repudiates the co-ownership and
makes known such repudiation to the other co- The law does not Plaintiff must first
owners, then partition is no longer a proper require previous make such demand
remedy of the aggrieved co-owner. He should file demand for the which is jurisdictional
an accion reivindicatoria, which is prescriptible. defendant to vacate. in nature.
(Roque v. IAC, G.R. No. 75886, 1988)
The plaintiff must The plaintiff need not
I. FORCIBLE ENTRY AND prove that he was in have been in prior
UNLAWFUL DETAINER prior physical physical possession.
possession of the
Nature of Ejectment Proceedings premises until he was
Ejectment cases are summary proceedings deprived by the
intended to provide an expeditious means of defendant.
protecting actual possession of property. The 1 year period is The 1 year period is
(Tubiano v. Razo, G.R. No. 132598, 2000) generally counted counted from the date
from the date of of last demand.
Forcible Entry actual entry on the
Where one is deprived of physical possession of property.
real property by means of Force, Intimidation,
Strategy, Threats, or Stealth (FISTS). (Sec.1,
Rule 70,). Determining Forcible Entry or Unlawful
Detainer
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Unlawful Detainer The allegation in the complaint that there was
Where one illegally withholds possession after unlawful withholding of possession is sufficient to
the expiration or termination of his right to hold make out a case for unlawful detainer. Hence, the
possession under any contract, express or phrase "unlawful withholding" has been held to
implied. (Id.). imply possession on the part of defendant, which
was legal in the beginning, having no other
source than a contract, express or implied, and
which later expired as a right and is being
FORCIBLE ENTRY UNLAWFUL withheld by defendant. (Ross Rica v Sps. Ong
DETAINER G.R. 132197, 2005)
Ground: Ground:
In ejectment cases, the complaint should embody
Deprivation of Unlawful withholding
such statement of facts as to bring the party
physical possession of possession of any
clearly within the class of cases for which Section
of any land or building land or building after
1 of Rule 70 provides a summary remedy, and
by FISTS, which shall the expiration or
must show enough on its face to give the court
include every situation termination of the
jurisdiction without resort to parol evidence. Such
or condition under right to hold
remedy is either forcible entry or unlawful
which one person can possession by virtue
detainer. (Zacarias v. Anacay, G.R. No. 202354,
wrongfully enter upon of any contract,
2014)
real property and express or implied.
exclude another, who (Sps. Del Rosario vs.
There are two reasons why the complaint was not
has had prior Gerry Roxas
for unlawful detainer. Firstly, by averring that the
possession, Foundation, G.R. No.
respondent constructed his shanty on the lot
therefrom. 170575, 2011).
without their consent and then praying that the
The possession of the The possession of the MeTC direct the respondent to pay them rent
defendant is unlawful defendant, which was from the inception of the respondent’s occupation
from the beginning; lawful in the of the lot, no other conclusion can be made
issue is which party beginning, becomes except that the petitioners had always considered
has prior de facto illegal by reason of respondent’s occupation of the same to be
possession. the expiration or unlawful from the very beginning. It is a settled

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rule that in order to justify an action for unlawful ACCION ACCION ACCION
detainer, the owner’s permission or tolerance INTERDICTAL PUBLICIANA REIVINDICATORIA
must be present at the beginning of the
possession. Summary A plenary An action for the
action for the action (i.e., recovery of
Secondly, what the petitioners actually filed was recovery of full trial ownership, which
a fatally defective complaint for forcible entry, physical proceeding) necessarily
considering that there was no allegation therein possession for the includes the
regarding the petitioners’ prior physical where the recovery of Recovery of
possession of the lot. Dispossession the REAL possession.
has not lasted right of
more than one possession
In actions for forcible entry, two allegations are (1) year. when the
mandatory for the MTC to acquire jurisdiction: dispossession
first, the plaintiff must allege his prior physical has lasted for
possession of the property; and second, he must more than
also allege that he was deprived of his one (1) year.
possession by any of the means provided for in
Section 1, Rule 70 of the Rules of Court. Under MTC’s RTC’s RTC’s jurisdiction
jurisdiction jurisdiction if if the value of
only. the value of property exceeds
The word “possession” as used in forcible entry
property P20,000, or
and unlawful detainer, means nothing more than exceeds P50,000 in Metro
physical possession, not legal possession P20,000, or Manila.
contemplated in civil law." (Sales v Barro, G.R. P50,000 in
171678, 2008).
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Metro Manila.
1. DIFFERENTIATED FROM
ACCION PUBLICIANA Accion Interdictal
AND ACCION Exclusive original jurisdiction over forcible entry
REIVINDICATORIA and unlawful detainer suits is with the MTC. (B.P.
Blg. 129, as amended, Sec. 33[2])
Three (3) Kinds of Actions Available to
Recover Possession of Real Property Amount of rents and damages claimed does not
1. Accion interdictal - An action where the issue affect the jurisdiction of the MTC because they
is the right of physical or material possession are only incidental or accessory to the main
of the subject real property independent of any action.
claim of ownership. This includes forcible
entry and unlawful detainer; However, municipal courts have no jurisdiction
2. Accion publiciana - It is plenary action to over a forcible entry/unlawful detainer case
recover the legal right of possession which involving agricultural tenants. Jurisdiction is with
may be brought when the dispossession has the HLURB.
lasted for more than one (1) year. If at more
than one (1) year had elapsed, the action Accion Publiciana and Accion Reivindicatoria
should be not forcible entry or unlawful RTC has jurisdiction where the assessed value of
detainer but an accion publiciana; and the property exceeds P20,000 or, in Metro
3. Accion reivindicatoria - This action involves Manila, P50,000;
not only possession but recovery of ownership
of the property. MTC has jurisdiction if the assessed value does
not exceed said amounts. (B.P. Blg. 129, as
amended, Sec. 33).
Where the basic issue is not possession but

interpretation, enforcement and/or rescission of
the contract, the same is no longer an ejectment
suit. (Villena v. Chavez, G.R. No. 148126, 2003)
Plaintiff

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1. Forcible Entry: a person deprived of the sought to be recovered. (Zacarias v. Anacay,

possession of any land or building by force, G.R. No. 202354, 2014)
intimidation, threat, strategy, or stealth; or
2. Unlawful Detainer: 2. Unlawful Detainer
a. A lessor, vendor, vendee, or other person a. In unexpired lease contracts:
against whom the possession of any land
or building is unlawfully withheld after the General Rule: Counted from the date of the
expiration or termination of the right to last demand to pay and vacate in case of non-
hold possession, by virtue of any payment of rent or non-compliance with the
contract, express or implied, or; conditions of the lease. (Esteban v.
b. His/her legal representatives or assigns. MERALCO, G.R. No. 197725, 2013)
Note: The plaintiff in forcible entry or unlawful Exception: When subsequent demands were
detainer actions must be entitled to the physical merely reminders of the original demand, the
possession of the property. He/she does not 1-year period starts from the original demand.
necessarily have to be the owner of such. (Desbarats v. Vda. de Laureano, G.R. No. L-
21875, 1966)
Defendant
One who is in possession of the property who b. In occupation by mere tolerance:
may either be a/an: From the date of revocation of permit (i.e.
1. Lessee; demand to vacate (See Republic v. Sunvar
2. Sublessee; or Realty, G.R. No. 194880, 2012)
3. Intruder.
Jurisprudential Requisites for Forcible Entry
When Proceedings Instituted 1. First, the plaintiffs must allege their prior
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Any time within one year after such unlawful physical possession of the property;
deprivation or withholding of possession. (Sec. 1, 2. Second, they must also assert that they were
Rule 70) deprived of possession either by force,
intimidation, threat, strategy, or stealth; and
The failure to allege the TIME when unlawful 3. Third, the action must be filed within one year
deprivation took place is fatal because this will from the time the owners or legal possessors
determine the start of the counting of the 1 year learned of their deprivation of physical
period for the filing of the summary action. possession of the land or building. (Dela Cruz
(Munoz v. CA, G.R. No. 102693, 1992) v. CA, G.R. No. 139442, 2006)
Distinction – Counting of 1-year Period Jurisprudential Requisites for Unlawful

1. Forcible Entry Detainer
A complaint sufficiently alleges a cause of action
General Rule: Counted from the date of the for unlawful detainer if it recites the following:
entry or taking of possession by use of force, 1. Initially, possession of property by the
intimidation, threat, or strategy defendant was by contract with or by
tolerance of the plaintiff;
The mere act of going to the property and 2. Eventually, such possession became illegal
excluding the lawful possessor therefrom upon notice by plaintiff to defendant of the
necessarily implies the exertion of force. termination of the latter’s right of possession;
(Bunyi v. Factor, G.R. No. 172547, 2009) 3. Thereafter, the defendant remained in
possession of the property and deprived the
Exception: In case of stealth, the one-year plaintiff of the enjoyment thereof; and
period should be counted from the demand to 4. Within one year from the last demand on
vacate upon knowledge or discovery of defendant to vacate the property, the plaintiff
such entry. instituted the complaint for ejectment.
(Zacarias v. Anacay, G.R. No. 202354, 2014)
It is essential in unlawful detainer cases of
this kind, that plaintiff's supposed acts of Prior Physical Possession; Exception
tolerance must have been present right from General Rule: Prior physical possession is
the start of the possession which is later required for the action to prosper.

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1. Written notice served upon the person found

Exception: Possession can be acquired not only on the premises, or by posting such notice on
by material occupation, but also by the fact that a the premises if no person be found thereon
thing is subject to the action of one's will or by the (Sec. 2, Rule 70);
proper acts and legal formalities established for 2. By substituted service or registered mail;
acquiring such right. Because possession can 3. Jurisprudence provides that demand upon a
also be acquired by juridical acts to which the law tenant may be oral, but sufficient evidence
gives the force of acts of possession, e.g., must be adduced to show that there was
donations, succession, execution and registration indeed a demand like testimonies from
of public instruments, inscription of possessory disinterested and unbiased witnesses.
information titles and the like, it has been held (Jakihaca v. Aquino, G.R. No. 83982, 1990)
that one need not have actual or physical
occupation of every square inch of the property at Note: If several demands were made, the one
all times to be considered in possession. (Nunez year period is counted from the last demand letter
v. SLTEAS Phoenix, G.R. No. 180542, 2010) received, unless the subsequent demands were
merely in the nature of reminders of the original
Pleadings Allowed demand, in which case the one-year period is
The only pleadings allowed to be filed are the counted from the first demand.
complaint, compulsory counterclaim and cross-
claim pleaded in the answer, and the answers Effect of non-compliance with demand
thereto. All pleadings shall be verified. (Sec. 5, The lessor may proceed against the lessee if the
Rule 70) demand is not complied with AFTER:
1. 15 days in the case of land; or
Action On The Complaint 2. 5 days in case of buildings.
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The court may:
1. Dismiss the case outright on any of the Prior demand in unlawful detainer is NOT
grounds for the dismissal of a civil action required when:
which are apparent therein; or 1. The purpose of the action is to terminate the
2. If no ground for dismissal is found, it shall lease because of expiry of term and not
forthwith issue summons. (Sec. 5, Rule 70) because of failure to pay rentals;
2. Purpose of suit is not for ejectment but for
When Demand Is Necessary enforcement of terms of contract; or
Two-fold Demand 3. When the defendant is not a tenant but a
In unlawful detainer cases, unless there exists a mere intruder. In which case it is forcible
stipulation to the contrary, such actions shall only entry, which does not require prior demand.
be commenced after demand is made on the (RIANO 2016 ed., p. 353-354)
lessee in any of the following forms:
1. To pay and vacate; or Preliminary Injunction And Preliminary
2. To comply with the conditions of the lease Mandatory Injunction
and vacate. The court may grant preliminary injunction to
prevent the defendant from committing further
A mere notice giving the lessee the alternative acts of dispossession against the plaintiff.
either to pay the rental or vacate the premises
does not comply with Section 2. (Vda. de Murga A possessor deprived of his possession through
v. Chan, G.R. No. L-24680, 1980) forcible entry or unlawful detainer may, within five
(5) days from the filing of the complaint, present
The term “vacate” need not be stated if there are a motion for the issuance of a writ of preliminary
other terms definitively implying that the tenant mandatory injunction to restore him in his
should vacate (Golden Gate Realty Corporation possession.
v. IAC, G.R. No. 74289, 1987) However, the
Golden Gate ruling will not apply if the demand is The court shall decide the motion within 30 days
ambiguous. (La Campana v. CA, G.R. No. L- from the filing thereof. (Sec. 15, Rule 70)
88246, 1993).
Note: If the case is pending, the petition for
Form of Demand preliminary injunction may only be filed by the

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plaintiff; if the case is on appeal, the petition may

be filed by either the plaintiff or the defendant. Upon motion of the plaintiff, within 10 days from
(Sec. 15, Rule 70) the perfection of the appeal to the RTC in forcible
entry and unlawful detainer cases, the latter may
Resolving Defense Of Ownership issue a writ of preliminary mandatory injunction
When the defendant raises the issue of to restore the plaintiff in possession if the court is
ownership, the court may resolve the issue of satisfied that the defendant’s appeal is frivolous
ownership only under the following conditions: or dilatory, or that the appeal of the plaintiff is
1. When the issue of possession cannot be prima facie meritorious. (Sec. 20, Rule 70)
resolved without resolving the issue of
ownership; and Note: In forcible entry and unlawful detainer
2. The issue of ownership shall be resolved only cases, the judgment of the RTC against the
to determine the issue of possession. (Sec. defendant shall be immediately executory,
16, Rule 70) without prejudice to a further appeal that may be
taken therefrom. (Sec. 21, Rule 70)
The assertion by the defendant of ownership over
the disputed property does not serve to divest the The judgment is immediately executory in order
inferior court of its jurisdiction. The defendant to avoid injustice to a lawful possessor.
cannot deprive the court of jurisdiction by merely
claiming ownership of the property involved. Note: The judgment is immediately executory
(Rural Bank of Sta. Ignacia v. Dimatulac, G.R. only when the judgment is against the defendant.
No. 142015, 2003; Perez v. Cruz, G.R. No. If the judgment is in favor of the defendant, such
142503, 2003) is not immediately executory and can be
executed only after the lapse of the regular 15-
Questions to be Resolved in an Forcible Entry day period to appeal without the plaintiff having
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1. Who had actual possession over the piece of perfected the same.
real property?
2. Was the possessor ousted therefrom within Even if RTC judgments in unlawful detainer cases
one year from the filing of the complaint by are immediately executory, a preliminary
force, threat, strategy or stealth? injunction may still be granted. There need only
3. Does he ask for the restoration of his be clear showing that there exists a right to be
possession? (Dizon v. Concina, G.R. No. L- protected and that the acts against which the writ
23756, 1969) is to be directed violate said right. (Benedicto v.
CA, G.R. No. 157604, 2005)
How To Stay The Immediate Execution Of
Judgment J. CONTEMPT
Defendant must take the following steps to stay According to Nature

the execution of the judgment: 1. Criminal; or
1. Perfect an appeal; 2. Civil.
2 File a supersedeas bond to pay for the
rents, damages and costs accruing down to According to Manner of Commission
the time of the judgment appealed from; and 1. Direct; or
3 Deposit periodically with the RTC, during 2. Indirect.
the pendency of the appeal, the adjudged
amount of rent due under the contract as Civil and Criminal Contempt Distinguished
determined in the judgment of the MTC, or if
there be no contract, the reasonable value of CIVIL CONTEMPT CRIMINAL
the use and occupation of the premises. CONTEMPT
(Sec. 19, Rule 70) It is the failure to do It is a conduct directed
something ordered to against the authority
Note: If the defendant can no longer pay this shall be done by a court or and dignity of the court
not defeat the appeal. He will, however, be a judge for the benefit or a judge acting
compelled to surrender possession of the of the opposing party judicially; it is an
property as the plaintiff will be entitled to therein and is obstruction of the
execution as a matter of right.

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CIVIL CONTEMPT CRIMINAL DIRECT INDIRECT CONTEMPT

CONTEMPT CONTEMPT
therefore an offense administration of 4. Refusal to be dispossessed or

against the party in justice which tends to sworn as a ejected from any
whose behalf the bring the court into witness or to real property by the
violated order was disrepute or answer as a judgment or process
made. disrespect. witness; of any court of
5. Refusal to competent
The purpose is to The purpose is to subscribe an jurisdiction, enters
compensate for the punish, to vindicate affidavit or or attempts or
benefit of a party. the authority of the deposition when induces another to
court and protect its lawfully required enter into or upon
outraged dignity. to do so; such real property,
6. Acts of a party or for the purpose of
The rules of Should be conducted a counsel which executing acts of
procedure governing in accordance with the constitute willful ownership or
contempt proceedings principles and rules
and deliberate possession, or in
or criminal applicable to criminal
forum shopping; any manner disturbs
prosecutions cases, insofar as such
and the possession
ordinarily are procedure is
7. Unfounded given to the person
inapplicable to civil consistent with the
accusations or adjudged to be
contempt summary nature of
allegations or words entitled thereto;
proceedings. contempt
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in a pleading 3. Any abuse of or any
proceedings.
tending to unlawful
embarrass the court interference with the
Direct and Indirect Contempt Distinguished or to bring it into processes or
disrepute. (Re: proceedings of a
DIRECT INDIRECT CONTEMPT
Letter dated 21 Feb. court not
CONTEMPT
2005 of Atty. Noel constituting direct
In general, it is It is not committed in the Sorreda, A.M. No. contempt under
committed in the presence of the court, 05-3-04-SC, 2005) Section 1 of this
presence of or so but done at a distance Rule;
near the court or which tends to belittle, 4. Any improper
judge as to obstruct degrade, obstruct or conduct tending,
or interrupt the embarrass the court and directly or indirectly,
proceedings before justice. to impede, obstruct,
it. or degrade the
administration of
justice;
Acts constituting Acts constituting indirect 5. Assuming to be an
direct contempt are: contempt are: attorney or an officer
1. Misbehavior in the 1. Misbehavior of an of a court, and
presence of or so officer of a court in acting as such
near the court as the performance of without authority;
to obstruct or his official duties or 6. Failure to obey a
interrupt the in his official subpoena duly
proceedings transactions; served; and
before it; 2. Disobedience of or 7. The rescue, or
2. Disrespect toward resistance to a attempted rescue, of
the court; lawful writ, process, a person or property
3. Offensive order, or judgment in the custody of an
personalities of a court, including officer by virtue of
towards others; the act of a person an order or process
who, after being

ATENEO CENTRAL
DIRECT INDIRECT CONTEMPT

Note: The penalty is immediately executory,
CONTEMPT
unless a bond is filed.
of a court held by
him. Two Modes of Commencing Proceeding for
8. Failure by counsel Indirect Contempt:
to inform the court of 1. Motu proprio by the court through an order
the death of his or any other formal charge requiring the
client, since it respondent to show cause why he should
constitutes an not be punished for contempt; and
improper conduct 2. Through a verified petition charging for
tending to impede indirect contempt with supporting particulars
the administration of and certified true copies of documents or
justice. (Sec. 3, Rule papers involved therein, and upon full
71) compliance with the requirements for filing
initiatory pleadings for civil actions in the
court concerned. (Sec. 4, Rule 71)
Requisites Before Accused May be Punished

For Indirect Contempt:
Remedy
1. Charge in writing to be filed or a show cause
1. He cannot appeal, but he may file certiorari
order issued by the court;
or prohibition under Rule 65.
2. Opportunity for person charged to appear
2. Execution of judgment shall be suspended
and explain his conduct; and
pending resolution of the petition, provided:
3. To be heard by himself or counsel. (Regalado
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a. He files a bond fixed by the court which
v. Go, G.R. No. 167988, 2007)
rendered the judgment; and
b. Conditioned that he will abide by and
Where Charge is to be Filed
perform the judgment should the petition
Where the charge for indirect contempt has been
be decided against him (Sec. 2, Rule 71)
committed against a Regional Trial Court or a
court of equivalent or higher rank, or against an
Punishment for Contempt
officer appointed by it, the charge may be filed
1. RTC or court of equal or higher rank: Fine not
with such court.
exceeding P2,000 or imprisonment not
exceeding 10 days or both.
Where such contempt has been committed
2. MTC: Fine not exceeding P200 or
against a lower court, the charge may be filed
imprisonment not exceeding 1 day or both.
with the Regional Trial Court of the place in which
(Sec. 1, Rule 71)
the lower court is sitting; but
Note: If contempt consists in the refusal or
The proceedings may also be instituted in such
omission to do an act which is yet within the
lower court subject to appeal to the Regional Trial
power of the respondent to perform, he may be
Court of such place in the same manner as
imprisoned by order of the court concerned until
provided in Section 11 of this Rule. (Sec. 5, Rule
he performs it.
71)
Remedy
The SC not only has plenary disciplinary authority
May be appealed to the proper court as in
over attorneys but also has the inherent power to
criminal cases, but execution shall not be
punish for contempt. The former stems from the
suspended until bond is filed. (Sec. 11, Rule 71)
Court’s constitutional mandate to regulate
admission into the practice of law, which includes
Punishment if committed against:
as well authority to regulate the practice itself of
1. RTC or a court of equivalent or higher rank:
law; the latter is “necessary for its own protection
Fine not exceeding P30,000 or imprisonment
against an improper interference with the due
not exceeding 6 months or both.
administration of justice.” (Zaldivar v.
2. MTC: Fine not exceeding P5,000 or
Sandiganbayan, G.R. Nos. 79690-707, 1988)
imprisonment not exceeding 1 month or both.
(Sec. 7, Rule 71)

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Generally, non-parties may not be held for

contempt. However, if he is guilty of conspiracy
with any one of the parties in violating the court’s
orders, he may be liable. (Desa Enterprise v.
SEC, G.R. No. L-45430, 1982)
When Imprisonment Shall Be Imposed

When the contempt consists in the refusal or
omission to do an act which is yet in the power of
the respondent to perform, he may be imprisoned
by order of the court concerned until he performs
it. (Sec. 8, Rule 71)
The reason for indefinite incarceration in civil

contempt proceedings, in proper cases, is that it
is remedial, preservative, or coercive in nature.
The punishment is imposed for the benefit of a
complainant or a party to a suit who has been
injured. Its object is to compel performance of
the orders or decrees of the court, which the
contemnor refuses to obey although able to do
so. In effect, it is within the power of the person
adjudged guilty of contempt to set himself free.
(Montenegro v. Montenegro, G.R. No. 156829,
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2004)
Contempt Against Quasi-Judicial Bodies

Unless otherwise provided by law, this Rule shall
apply to contempt committed against persons,
entities, bodies or agencies exercising quasi-
judicial functions, or shall have suppletory effect
to such rules as they may have adopted pursuant
to authority granted to them by law to punish for
contempt. The Regional Trial Court of the place
wherein the contempt has been committed shall
have jurisdiction over such charges as may be
filed therefor. (Sec. 13, Rule 71)
Power of Contempt by the Senate in Inquiries

in Aid of Legislation
The period of imprisonment under the inherent
power of contempt by the Senate during inquiries
in aid of legislation should only last until the
termination of the legislative inquiry under which
the said power is invoked. Accordingly, as long as
there is a legitimate legislative inquiry, then the
inherent power of contempt by the Senate may
be properly exercised. Conversely, once the said
legislative inquiry concludes, the exercise of the
inherent power of contempt ceases and there is
no more genuine necessity to penalize the
detained witness. (Balag v. Senate of the
Philippines, G.R. No. 234608, 2018).

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ATENEO CENTRAL

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V. SPECIAL CIVIL ACTIONS As a general rule, however, the rules governing

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General Rule: Within a reasonable time after a

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contract, etc., for their guidance in its

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validity of a local government

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No Actual Breach of Instrument Exception: If the action is for reformation of

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CERTIORARI PROHIBITION MANDAMUS Covers Covers Covers

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CERTIORARI AS A CERTIORARI AS A CERTIORARI AS A CERTIORARI AS A

discretion amounting raised therein are too therein are too

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law. (Rosales v. ERC, G.R. No. 201852,

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own judgment upon Mortgage Bank, G.R.

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When Petition For Certiorari, Prohibition Or Exceptions:

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FOR ONE ATENEO

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was what the petitioner would have the JBC do in

FOR ONE ATENEO

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3. To compel a school to readmit students, lack or excess of

FOR ONE ATENEO

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Purpose is to either exercise of the Supreme Court’s primary

General Rule: A motion for reconsideration is a

FOR ONE ATENEO

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1. Determine the right of a person to use or 3. An association which acts as a corporation

FOR ONE ATENEO

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When the tribunal charter. When the advertisements released by

Quo Warranto vs. Mandamus Quo Warranto Against Corporations

FOR ONE ATENEO

A case for quo warranto may be filed by the Intra-Corporate Dispute

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An action of quo warranto is filed prematurely Limitation as to Period to File

FOR ONE ATENEO

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When it is the government which commenced the An expropriation proceeding is commenced by

FOR ONE ATENEO

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assistance of not more than three (3) 2. ORDER OF

FOR ONE ATENEO