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TitleCase Digest Provisional Remedies
TagsLawsuit Complaint Judgment (Law) Appeal Injunction
File Size100.7 KB
Total Pages15
Document Text Contents
Page 1

RULE 57, Section 1


Case Digest | ProvRem 1

Calo vs. Roldan


This is a petition for writ of
certiorari against Judge Arsenio
Roldan on the ground of exceeding
his jurisdiction and acted with
grave abuse of discretion in
appointing a receiver of certain
lands and their fruits.

Regino Relova and Teodula
Bartolome filed a complaint against
Tranquilino Calo and Doroteo San
Jose for conniving with each other,
and through the use of force,
stealth, threats, and intimidation,
intend to enter and work or harvest
existing fruits may be found in the
lands allegedly owned and
possessed by the plaintiffs.

The plaintiffs prayed for the
issuance of the preliminary
injunction (WOPI) to be issued ex
parte to immediately restrain,
enjoin, and prohibit the defendants
and their agents from entering and
interfering with the harvest of the
lands belonging to the plaintiffs.

The defendants opposed the WOPI
on the ground that they are owners
of the lands and have been in
actual possession thereof since

The CFI Judge denied the petition
for the WOPI on the ground that

the defendants were in actual
possession of said lands.

MR was filed but was not decided
by the CFI.

Plaintiffs then filed an urgent
petition ex-parte praying that the
MR of the order denying their
petition for WOPI be granted and/or
for the appointment of the receiver
of the properties on the ground

a. Plaintiffs have interest in
properties in question and
the fruits were in danger of
being lost unless a receiver is

b. The appointment of a
receiver was the most
convenient and feasible
means of preserving,
administering, and or
disposing of the properties in
litigation which included their

Judge Roldan decided to consider
the MR and granted the
appointment of a receiver.

Issue: WON it is proper for the
plaintiffs to apply and be granted
of the preliminary attachment.


According to the complaint filed by
the plaintiffs, their action is one of
ordinary injunction, for they alleged
that they are the owners of the

Page 2

RULE 57, Section 1


Case Digest | ProvRem 2

lands, and were in actual
possession thereof and that the
defendants with any legal right and
through the use of force, stealth,
threat, and intimidation, intend to
enter the lands in violation of the
plaintiff’s proprietary rights.

In the present case, the plaintiffs
alleged that they are the owners
and were in actual possession of
the lands described in the
complaint and their fruits, the
action of injunction filed by them is
the proper and adequate remedy in
law, for a judgment in favor of
plaintiffs would quiet their title to
said lands.

The provisional remedies (PRs)
denominated attachment,
preliminary injunction,
receivership, and delivery of
personal property, provided in
Rules 59, 60, 61, and 62 of the
ROC, are remedies to which
parties litigant may resort for
the preservation or protection
of their rights or interest, and
for no other purpose, during
the pendency of the principal

If by the nature of such action
does not require such
protection or preservation, said
remedies cannot be applied for
and granted. To each kind of
action, a proper provisional
remedy is provided by law. The

Rules of Court clearly specify
the case in which they may be
properly granted.

Attachment may be issued only in
the case or actions specifically
stated in section 1, Rule 59, in
order that the defendant may not
dispose of his property attached,
and thus secure the satisfaction of
any judgment that may be
recovered by plaintiff from
defendant. For that reason a
property subject of litigation
between the parties, or claimed by
plaintiff as his, cannot be attached
upon motion of the same plaintiff.

The special remedy of preliminary
prohibitory injunction (PPI) lies
when the plaintiff’s principal action
is an ordinary action of injunction,
that is when the relief demanded in
the complaint consists in
restraining the commission or
continuance of the act complained
of, either perpetually or for a
limited period, or other conditions
required by Section 3 of Rule 60
are present.

The purpose of this PR is to
preserve the status quo of the
things subject of the action or the
relation between the parties, in
order to protect the rights of the
plaintiff respecting the subject of
the action during the pendency of
the suit.

Page 7

RULE 57, Section 1


Case Digest | ProvRem 7

issuance of a WOPA; and the denial
of the motion to lift the said

William Miailhe and his sisters and
mother Mme. Victoria de Miailhe
are co-owners of several registered
real properties. By common
consent of the co-owners, William
has been administering the
properties since 1960.

Unable to secure an out-of-court
partition due to the unwillingness
of Elaine Mailhe de Lenquesaing,
the other co-owners filed in the CFI
an action for partition.

While the account of William as
administrator was still being
examined, Elaine filed a motion
praying that the sum of
P203,167.36, which allegedly
appeared as cash balance in her
favor, be ordered delivered to her
by petitioner William Mialhe.

Against the opposition of the co-
owners, Judge Pedro Ramirez
granted the motion which is now
subject of a certiorari proceeding in
the IAC.

Meanwhile, Elaine filed a criminal
complaint for estafa against
William Alain, alleging that the
latter had misappropriated
considerable amounts by his
administration which should have
been turned over to her as share in
the net rentals.

William Alain then filed a verified
complaint for Damages against
Elaine amounting to P2 M and
attorney’s fees of P250,000
sustained by him by reason of the
estafa case allegedly intended to
embarrass him, besmirching his
reputation as the Honorary Consul
of the French Republic in the City of
Bordeaux, France.

The petitioner also prayed for the
issuance of a writ of preliminary
attachment (WOPA) of the
properties of the respondent
consisting of the 1/6 undivided
interest in certain real properties in
Manila on the ground that Elaine is
a non-resident of the Philippines,
pursuant to Section 1(f), Rule 57 in
relation to Section 17, Rule 14 of
the RROC.

Judge Barbers granted the
application for preliminary
attachment upon the filing of bond
by the petitioner in the amount of

Respondent filed a motion to lift
the writ of attachment on the
ground that the complaint did not
comply with the provisions of Sec.
3 of Rule 57 of thee ROC and that
the petitioner’s claim was for
unliquidated damages. The motion
to lift was denied, respondent filed
with the IAC a special action for
certiorari alleging that Judge
Barbers acted with GAD.

Page 8

RULE 57, Section 1


Case Digest | ProvRem 8

IAC issued a decision declaring the
WOPA null and void. Petitioner filed
a MFR but was denied, hence, the
petition on appeal by certiorari
before the SC.

Issue: WON the IAC erred in
construing that Sec. 1(f), Rule 57 of
the ROC is applicable only in case
of claim for liquidated damaes.


Yes. The SC agreed with the IAC.

Section 1(f), Rule 57 of the ROC

f. In an action against a party who
resides out of the Philippines, or on
whom summons may be served by

While it is true that from the
aforequoted attachment may issue
“in an action against a party who
resides out of the Philippines,”
irrespective of the nature of the
action or suit, and while it is true
that in the case of Cu Unjieng vs.
Albert, it was held that each of the
6 grounds teated ante is
independent of the others, still it is
imperative that the amount sought
be liquidated. 43w2

Insular Savings Bank vs. CA


This is a petition for review on
certiorari under Rule 45 of the ROC

where Insular Savings Bank seeks
to set aside the CA decision
denying the petitioners MFR.

The CA decision cleared the RTC
from alleged GAD in denying
Insular’s motion to discharge
attachment by counter-bond.

Far East Bank and Trust Co. (FEBTC)
instituted against Insular Savings
Bank (ISB) before the Arbritration
Committee of the Philippine
Clearing House Corporation
(PCHC). The dispute involved 3
checks with a total value of
Php25,200,000. The checks were
drawn against FEBTC and were
presented by ISC for clearing.

FETBC returned the checks beyond
the reglementary period, but after
ISB’s account with PCHC was
credited with the amount. ISB
refused to refund the money to

While the dispute is pending
arbitration, FEBTC instituted a civil
case in the RTC Makati and prayed
for the issuance of a WOPA.

The RTC granted the application for
preliminary attachment upon
posting by FEBTC of an attachment
bond for P6M.

During the hearing before the
Arbitration Committee of the PCHC,
the parties agreed to temporarily

Page 14

RULE 57, Section 1


Case Digest | ProvRem 14

the writ of preliminary attachment
becomes final by virtue of a final
judgment rendered in the principal
case, the said writ is subject to
review jointly with the judgment
rendered in the principal case
through an ordinary appeal.

The appellate court has the power
to revoke or confirm said order, in
like manner as a judgment on the
merits, because it is a ruling to
which an exception may be taken,
and therefore is subject to review
in an appeal by bill of exceptions.

The fact that Section 441 of the
Code of Civil Procedure does not
provide any remedy against the
granting or denial of a motion for
the annulment of a writ of
preliminary attachment, except in
case of excess jurisdiction, does
not confer upon said order a final
and irrevocable character, taking it
out from the general provisions as
to appeal and review, for a special
provision is necessary for that

The SC arrived at the conclusion
that an order denying a motion for
the annulment of a preliminary
attachment may be reviewed in an
appeal taken from a final judgment
rendered in the principal case, in
which order was entered as an
auxiliary remedy.

Santos vs. Bernabe & Tiongson


This appeal was taken by Pablo
Tiongson and the Provincial Sheriff
of Bulacan from the judgment of
the CFI where Tiongson was
ordered to pay Urbano Santos the
value of 778 cavans and 38 kilos of
palay, at the rate of P3/cavan.

On March 20, 1928, Urbano Santos
deposited in Jose Bernabe’s
warehouse 778 cavans of palay
and 38 kilos of palay. Pablo
Tiongson had deposited in the
same warehouse 1,026 cavans and
9 kilos of palay.

On the said date, Tiongson filed
with the CFI of Bulacan a complaint
against Bernabe to recover from
the latter the deposited palay. At
the same time, the application of
Tiongson for a writ of attachment
was granted, and the attachable
property of Bernabe including 924
cavans and 31 ½ kilos of palay
found by the sheriff in his
warehouse were attached, sold at a
public auction, and the proceeds
were delivered to Tiongson, who
obtained judgment is the said case.

Urbano Santos intervened, in the
attachment of the palay, but upon
Pablo Tiongson’s filing the proper
bond, the sheriff proceeded with
the attachment, giving rise to the
present complaint.

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