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    XXIX. Provisional Remedies

    a.Attachment (Rule 57)

    a.1Security Pacific v. Amelia Tria-Infante,

    G.R. No. 1444740, August 31, 2005.Counterbonds are mere replacements of theproperty formerly attached, and just as the

    latter may be levied upon after finaljudgment in the case in order to realize the

    amount adjudged, so is the liability of thecountersureties ascertainable after the

    judgment has become final.Over theyears, in a number of cases, we have made

    certain pronouncements about counter-bonds. In Tijam v. Sibonghanoy, as

    reiterated in Vanguard Assurance Corp. v.Court of Appeals, we held: . . . [A]fter the

    judgment for the plaintiff has becomeexecutory and the execution is returned

    unsatisfied, as in this case, the liability ofthe bond automatically attaches and, in

    failure of the surety to satisfy the judgmentagainst the defendant despite demand

    therefore, writ of execution may issueagainst the surety to enforce the obligation

    of the bond. InLuzon Steel Coporation v.

    Sia, et al.: . . . [C]ounterbonds posted toobtain the lifting of a writ of attachment isdue to these bonds being security for the

    payment of any judgment that the attachingparty may obtain; they are thus mere

    replacements of the property formerlyattached, and just as the latter may be levied

    upon after final judgment in the case inorder to realize the amount adjudged, so is

    the liability of the countersuretiesascertainable after the judgment has become

    final. . . . InImperial Insurance, Inc. v. DeLos Angeles, we ruled: . . . Section 17, Rule

    57 of the Rules of Court cannot be construedthat an execution against the debtor be first

    returned unsatisfied even if the bond were asolidary one, for a procedural may not

    amend the substantive law expressed in theCivil Code, and further would nullify the

    express stipulation of the parties that thesuretys obligation should be solidary with

    that of the defendant. In PhilippineBritishAssurance Co., Inc. v. Intermediate

    Appellate Court, we further held that the

    counterbond is intended to secure thepayment of any judgment that the attachingcreditor may recover in the action.

    A mere posting of a counterbond does not

    automatically discharge the writ ofattachmentit is only after the hearing and

    after the judge has ordered the discharge ofattachment that the same is properly

    discharged; Judgment must be construed asa whole so as to bring all of its parts into

    harmony as far as this can be done by fairand reasonable interpretation and so as to

    give effect to every word and part.We arenot unmindful of our ruling in the case

    of Belisle Investment and Finance Co., Inc.v. State Investment House, Inc., where we

    held: . . . [T]he Court of Appeals correctlyruled that the mere posting of a counter-

    bond does not automatically discharge thewrit of attachment. It is only after hearing

    and after the judge has ordered the discharge

    of the attachment if a cash deposit is madeor a counterbond is executed to the attachingcreditor is filed, that the writ of attachment

    is properly discharged under Section 12,Rule 57 of the Rules of Court. The ruling

    in Belisle, at first glance, would suggest anerror in the assailed ruling of the Court of

    Appeals because there was no specificresolution discharging the attachment and

    approving the counter-bond. As above-explained, however, consideration of our

    decision in G.R. No. 106214 in its entiretywill readily show that this Court has

    virtually discharged the attachment after allthe parties therein have been heard on the

    matter. * * * Verily, a judgment must beread in its entirety, and it must be construed

    as a whole so as to bring all of its parts intoharmony as far as this can be done by fair

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    and reasonable interpretation and so as togive effect to every word and part, if

    possible, and to effectuate the intention andpurpose of the Court, consistent with the

    provisions of the organic law.

    a.2Torres v. Satsatin, G.R. No. 166759,

    November 25, 2009

    Definition of a Writ of PreliminaryAttachment.A writ of preliminary

    attachment is defined as a provisionalremedy issued upon order of the court where

    an action is pending to be levied upon theproperty or properties of the defendant

    therein, the same to be held thereafter by thesheriff as security for the satisfaction of

    whatever judgment that might be secured inthe said action by the attaching creditor

    against the defendant.

    Surety Bond; In accepting a surety bond, itis necessary that all the requisites for its

    approval are met otherwise the bond shouldbe rejected.In the case at bar, the CA

    correctly found that there was grave abuse of

    discretion amounting to lack of or in excessof jurisdiction on the part of the trial court inapproving the bond posted by petitioners

    despite the fact that not all the requisites forits approval were complied with. In

    accepting a surety bond, it is necessary thatall the requisites for its approval are met;

    otherwise, the bond should be rejected.

    In provisional remedies, particularly that ofpreliminary attachment, the distinction

    between the issuance and theimplementation of the writ of attachment is

    of utmost importance to the validity of thewrit.In provisional remedies, particularly

    that of preliminary attachment, thedistinction between the issuance and the

    implementation of the writ of attachment isof utmost importance to the validity of the

    writ. The distinction is indispensablynecessary to determine when jurisdiction

    over the person of the defendant should beacquired in order to validly implement the

    writ of attachment upon his person.

    Three stages involved in the grant of theprovisional remedy of attachment; For the

    initial two stages, it is not necessary thatjurisdiction over the person of the defendant

    be first obtained.In Cuartero v. Court ofAppeals, 212 SCRA 260 (1992), this Court

    held that the grant of the provisional remedyof attachment involves three stages: first, the

    court issues the order granting theapplication; second, the writ of attachment

    issues pursuant to the order granting thewrit; and third, the writ is implemented. For

    the initial two stages, it is not necessary thatjurisdiction over the person of the defendant

    be first obtained. However, once theimplementation of the writ commences, the

    court must have acquired jurisdiction overthe defendant, for without such jurisdiction,

    the court has no power and authority to actin any manner against the defendant. Any

    order issuing from the Court will not bind

    the defendant.

    The preliminary writ of attachment must be

    served after or simultaneous with theservice of summons on the defendant

    whether by personal service, substitutedservice or by publication as warranted by

    the circumstances of the case; Subsequentservice of summons does not confer a

    retroactive acquisition of jurisdiction overher person because the law does not allow

    for retroactivity of a belated service.Assuming arguendo that the writ of

    attachment was validly issued, although thetrial court later acquired jurisdiction over the

    respondents by service of the summons uponthem, such belated service of summons on

    respondents cannot be deemed to have curedthe fatal defect in the enforcement of the

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    writ. The trial court cannot enforce such acoercive process on respondents without

    first obtaining jurisdiction over their person.The preliminary writ of attachment must be

    served after or simultaneous with the service

    of summons on the defendant whether bypersonal service, substituted service or bypublication as warranted by the

    circumstances of the case. The subsequentservice of summons does not confer a

    retroactive acquisition of jurisdiction overher person because the law does not allow

    for retroactivity of a belated service.

    a.3Insular Savings v. Court of Appeals, G.R.No.123638, June 15, 2006

    There can be no serious objection to theproposition that the attached propertyand

    logically the counter-bond necessary todischarge the lien on such propertyshould

    as much as possible correspond in value to,or approximately match the attaching

    creditors principal claim.As may benoted, the amount of the counter-attachment

    bond is, under the terms of the aforequotedSection 12, to be measured against the value

    of the attached property, as determined by

    the judge to secure the payment of anyjudgment that the attaching creditor mayrecover in the action. Albeit not explicitly

    stated in the same section and withoutnecessarily diminishing the sound discretion

    of the issuing judge on matters of bondapproval, there can be no serious objection,

    in turn, to the proposition that the attachedpropertyand logically the counter-bond

    necessary to discharge the lien on suchpropertyshould as much as possible

    correspond in value to, or approximatelymatch the attaching creditors principal

    claim. Else, excessive attachment, whichought to be avoided at all times, shall ensue.

    A writ of attachment cannot be issued for

    moral and exemplary damages, and otherunliquidated or contingent claims.Turning

    to the case at bar, the records show that theprincipal claim of respondent, as plaintiff a

    quo, is in the amount of P25,200,000.00,representing the three (3) unfunded checks

    drawn against, and presented for clearing to,

    respondent bank. Jurisprudence teaches thata writ of attachment cannot be issued formoral and exemplary damages, and other

    unliquidated or contingent claim.

    If a portion of a claim is already secured,there is no justifiable reason why such

    portion should still be subject of counter-bondsimple common sense, if not

    consideration of fair play, dictates that apart of a possible judgment that has

    veritably been preemptively satisfied orsecured need not be covered by the counter-

    bond.As things stood, therefore,respondents principal claim against

    petitioner immediately prior to the filing ofthe motion to discharge attachment has

    effectively been pruned down toP12,600,000.00. The trial court was fully

    aware of this reality. Accordingly, it shouldhave allowed a total discharge of the

    attachment on a counter-bond based on the

    reduced claim of respondent. If a portion ofthe claim is already secured, we see nojustifiable reason why such portion should

    still be subject of counter-bond. It may bethat a counter-bond is intended to secure the

    payment of any judgment that the attachingparty may recover in the main action.

    Simple common sense, if not considerationof fair play, however, dictates that a part of a

    possible judgment that has veritably beenpreemptively satisfied or secured need not

    be covered by the counter-bond.

    Unlike the former Section 12 of Rule 57 ofthe Rules of Court where the value of the

    property attached shall be the definingmeasure in the computation of the

    discharging counterattachment bond, thepresent less stringent Section 12 of Rule 57

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    provides that the court shall order thedischarge of attachment if the movant

    makes a cash deposit, or files a counter-bond . . . in an amount equal to that fixed by

    the court in the order of attachment,

    exclusive of costs.It bears to stress, as afinal consideration, that the certiorariproceedings before the appellate court and

    the denial of the motion to dischargeattachment subject of such proceedings,

    transpired under the old rules onpreliminary attachment which has since

    been revised. And unlike the former Section12 of Rule 57 of the Rules of Court where

    the value of the property attached shall bethe defining measure in the computation of

    the discharging counterattachment bond, thepresent less stringent Section 12 of Rule 57

    provides that the court shall order thedischarge of attachment if the movant

    makes a cash deposit, or files a counter-bond . . . in an amount equal to that fixed by

    the court in the order of attachment,exclusive of costs. Not being in the nature

    of a penal statute, the Rules of Court cannotbe given retroactive effect.

    a.4Yu v. Ngo Yet Te, G.R. No. 155868,February 6, 2007

    Attachments; In Malayan Insurance

    Company, Inc. v. Salas (90 SCRA 252[1979]), we held that if the surety was not

    given notice when the claim for damagesagainst the principal in the

    replevin bond was heard, then as a matter ofprocedural due process the surety is entitled

    to be heard when the judgment for damagesagainst the principal is sought to be

    enforced against the suretys replevinbond.Even if it were true that Visayan

    Surety was left in the proceedings a quo,such omission is not fatal to the cause of

    Spouses Yu. InMalayan InsuranceCompany, Inc. v. Salas, 90 SCRA 252

    (1979), we held that x x x if the surety wasnot given notice when the claim for damages

    against the principal in the replevin bondwas heard, then as a matter of procedural

    due process the surety is entitled to be heard

    when the judgment for damages against theprincipal is sought to be enforcedagainstthe suretys replevin bond. This remedy is

    applicable for the procedures governingclaims for damages on an attachment bond

    and on a replevin bond are the same.

    The wrongfulness of the attachment does notwarrant automatic award of damages to the

    attachment defendant; the latter must firstdischarge the burden of proving the nature

    and extent of the loss or injury by reason ofthe wrongful attachment.That is a rather

    limited understanding ofJavellana. Thecounterclaim disputed therein was not for

    moral damages and therefore, there was noneed to prove malice. As early as inLazatin

    v. Twao, 2 SCRA 842 (1961), we laiddown the rule that where there is wrongful

    attachment, the attachment defendant mayrecover actual damages even without proof

    that the attachment plaintiff acted in bad

    faith in obtaining the attachment. However,if it is alleged and established that theattachment was not merely wrongful but

    also malicious, the attachment defendantmay recover moral damages and exemplary

    damages as well. Either way, thewrongfulness of the attachment does not

    warrant the automatic award of damages tothe attachment defendant; the latter must

    first discharge the burden of proving thenature and extent of the loss or injury

    incurred by reason of the wrongfulattachment.

    To merit an award of actual damages

    arising from a wrongful attachment, theattachment defendant must prove, with the

    best evidence obtainable, the fact of loss orinjury suffered and the amount thereof.To

    I thought if procedural you CAN?

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    merit an award of actual damages arisingfrom a wrongful attachment, the attachment

    defendant must prove, with the bestevidence obtainable, the fact of loss or

    injury suffered and the amount thereof. Such

    loss or injury must be of the kind which isnot only capable of proof but must actuallybe proved with a reasonable degree of

    certainty. As to its amount, the same must bemeasurable based on specific facts, and not

    on guesswork or speculation. In particular, ifthe claim for actual damages covers

    unrealized profits, the amount of unrealizedprofits must be established and supported by

    independent evidence of the mean income ofthe business undertaking interrupted by the

    illegal seizure.

    Attachments; Damages; As to moral andexemplary damages, to merit an award

    thereof, it must be shown that the wrongfulattachment was obtained by the attachment

    plaintiff with malice or bad faith, such as byappending a false affidavit to his

    application.As to moral and exemplarydamages, to merit an award thereof, it must

    be shown that the wrongful attachment was

    obtained by the attachment plaintiff withmalice or bad faith, such as by appending afalse affidavit to his application.

    As a rule, attorneys fees cannot be granted,

    the exception however is when a partyincurred expenses to lift a wrongfully issued

    writ of attachment.Attorneys fees cannotbe awarded when moral and exemplary

    damages are not granted, the exceptionhowever is when a party incurred expenses

    to lift a wrongfully issued writ ofattachment. Without a doubt, Spouses Yu

    waged a protracted legal battle to fight offthe illegal attachment of their properties and

    pursue their claims for damages. It is onlyjust and equitable that they be awarded

    reasonable attorneys fees in the amount ofP30,000.00.

    b.Preliminary Injunction (Rule 58)

    b.1Universal Motors v. Rojas, A.M. RTJ 03-

    1814, May 26, 2005

    It is improper for a judge to order a hearingon the issuance of a temporary restrainingorder where it was not prayed for in the

    complainta temporary restraining ordermay be issued only if it appears from the

    facts shown by affidavits or by the verifiedapplication that great or irreparable injury

    would result to the applicant before the writof preliminary injunction could be heard.

    Respondent judge ordered a hearing on theissuance of a temporary restraining order

    although it was not prayed for in thecomplaint. We are not impressed with

    respondent judges argument that thecaption and the body of the complaint

    showed an intent to include a prayer for atemporary restraining order. Nowhere in the

    allegations in the complaint was it shownthat great or irreparable injury would result

    to the plaintiff, NSSC, pending hearing onthe preliminary injunction. Under Section 5,

    Rule 58 of the 1997 Rules of Civil

    Procedure, a temporary restraining ordermay be issued only if it appears from thefacts shown by affidavits or by the

    verified application that great or

    irreparable injury would result to the

    applicant before the writ of preliminary

    injunction could be heard.In addition,

    Section 4(a) of Rule 58 of the Rules ofCourt is clear with regard to the procedure to

    be followed in the issuance of writs ofpreliminary injunction, i.e., a preliminary

    injunction or temporary restraining ordermay be granted only when the application in

    the action or proceeding is verified,and shows facts entitling the applicant to

    the relief demanded.We note that the reliefsought by NSSC in the original complaint

    consisted mainly of its reinstatement asdealer of Nissan vehicles and spare parts in

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    Northern Mindanao, and the termination ofthe dealership agreement between UMC and

    NICAD. NSSC did not allege facts tosupport an urgent need to issue a temporary

    restraining order to prevent any great or

    irreparable injury that it might suffer whilethe preliminary injunction is being heard. Inone case, the Court penalized a judge who

    awarded reliefs to plaintiffs without anyshowing that such reliefs were applied for.

    While Section 4(b) of Rule 58 gives the

    presiding judge the discretion to require abond before granting a temporary

    restraining order, the Rules did not intend togive the judge the license to exercise such

    discretion arbitrarily to the prejudice of thedefendant; Unless it appears that the

    enjoined party will not suffer any damage,the presiding judge must require the

    applicant to post a bond, otherwise thecourts could become instruments of

    oppression and harassment.While Section4(b) of Rule 58 gives the presiding judge the

    discretion to require a bond before grantinga temporary restraining order, the Rules did

    not intend to give the judge the license to

    exercise such discretion arbitrarily to theprejudice of the defendant. Certainly, eachmember of the Bench is not a depository of

    arbitrary power, but a judge under thesanction of law. The bond under Rule 58 is

    intended to pay all the damages which theparty or person against whom the temporary

    restraining order or injunction is issued maysustain by reason thereof should the court

    finally decide that the applicant was notentitled thereto. Hence, it follows that unless

    it appears that the enjoined party will notsuffer any damage, the presiding judge must

    require the applicant to post a bond,otherwise the courts could become

    instruments of oppression and harassment.

    While prior to the effectivity of the 1997Rules of Civil Procedure, no bond was

    required for the availment of a temporaryrestraining order, the present Rules now

    regulate the issuance of TROs, not only byrequiring a hearing, but also by imposing a

    bond on the applicant to prevent the abuse

    of this relief by litigants.It is worthy tonote that prior to the effectivity of the 1997Rules of Civil Procedure, no bond was

    required for the availment of a temporaryrestraining order. However, the present

    Rules now regulate the issuance oftemporary restraining orders, not only by

    requiring a hearing, but also by imposing abond on the applicant to prevent the abuse of

    this relief by litigants. As explained byRemedial Law expert Justice Florenz D.

    Regalado: Under this amended section, atemporary restraining order has been

    elevated to the same level as a preliminaryinjunction in the procedure, grounds and

    requirements for its obtention. Specificallyon the matter of the requisite bond, the

    present requirement therefor not only for apreliminary injunction but also for a

    restraining order, unless exempted therefromby the court, puts to rest a controversial

    policy which was either wittingly or

    unwittingly abused. Heretofore, no bondwas required for the issuance of a temporaryrestraining order, except in labor cases

    brought to the Supreme Court on certiorarifrom a decision of the National Labor

    Relations Commission where a monetaryaward was granted, in which case the policy

    of the Supreme Court was to require a bondequivalent to the monetary award or benefits

    granted as a condition for the issuance of atemporary restraining order. The exemption

    from bond in other cases, plus the fact thatno hearing was required, made a temporary

    restraining order a much sought relief forpetitioners.

    b.2Greenstar v. Adiong, A.M. RTJ 041826,February 6, 2008

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    Here, Judge Adiong was held as

    administratively liable for issuing a Writ ofInjunction without following the proper

    rules of procedure.

    No matter how urgent a case may be, thisfact cannot justify the procedural shortcuts

    employed by respondentjudge, i.e.dispensing with the proper service

    of summons,23

    and the violation of Section 5of Rule 58 of the Rules of Court. It is

    glaringly obvious from the servicereturn24of the sheriff that the proper service

    as provided for in the rules was notfollowed. No copy of the summons was

    handed to any of the defendants who werenatural persons. Neither was a copy left

    at any of their residences or offices. Whatthe sheriff did was to leave a copy of the

    summons at the residenceof Datu HassanMangondaya, a total stranger to the case.

    The sheriff also left a copy of the summonsfor defendant LBP with the manager of the

    LBP Marawi City Branch, although thelatter is not one of those enumerated in

    Section 1125of Rule 14 of the Rules of

    Court upon whom service may be madewhen the defendant is a corporation. In theface of contrary evidence clearly showing

    that there was defective service of summons,Judge Adiong could not be justified in

    assuming that the sheriff regularlyperformed his duties.

    Worth stressing, Section 5, Rule 58 of theRules of Court states that:

    SEC. 5.Preliminary injunction not

    granted without notice; exception.

    No preliminary injunction shall begranted without hearing and prior

    notice to the party or person sought

    to be enjoined. If it shall appear from

    facts shown by affidavits or by the

    verified application that great or

    irreparable injury would result to the

    applicant before the matter can be

    heard on notice, the court to which

    the application for preliminary

    injunction was made, may issue ex

    partea temporary restraining order to

    be effective only for a period of

    twenty (20) days from service on the

    party or person sought to beenjoined, except as herein provided.

    Within the said twenty-day

    period, the court must order said

    party or person to show cause, at a

    specified time and place, why the

    injunction should not be granted,

    determine within the same period

    whether or not the preliminary

    injunction shall be granted, and

    accordingly issue the corresponding

    order.

    However, and subject to the

    provisions of the preceding sections,

    if the matter is of extreme urgency

    and the applicant will suffer grave

    injustice and irreparable injury, the

    executive judge of a multiple-sala

    court or the presiding judge of a

    single-sala court may issue ex partea

    temporary restraining order effective

    for only seventy-two (72) hours from

    issuance but he shall immediately

    comply with the provisions of thenext preceding section as to service

    of summons and the documents to be

    served therewith. Thereafter, within

    the aforesaid seventy-two (72) hours,

    the judge before whom the case is

    pending shall conduct a summary

    hearing to determine whether the

    temporary restraining order shall be

    extended until the application for

    preliminary injunction can be heard.

    In no case shall the total period of

    effectivity of the temporaryrestraining order exceed twenty (20)

    days, including the original seventy-

    two hours provided herein.

    In the event that the application for

    preliminary injunction is denied or

    not resolved within the said period,

    the temporary restraining order is

    deemed automatically vacated. The

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    effectivity of a temporary restraining

    order is not extendible without need

    of any judicial declaration to that

    effect and no court shall have

    authority to extend or renew the same

    on the same ground for which it was

    issued.

    x x x xJudge Adiong disregarded these provisions

    of the Rules. He could not plausibly claimthat he issued a 72-hour TRO under the

    second paragraph of the rule quoted abovebecause, first, he was not the executive

    judge. Second, his order did not state thatthe TRO was effective for 72 hours only. On

    the contrary, the defendants were ordered to

    desist from releasing the subject funds untilfurther orders from this Court. Third, therewas no showing that the order was being

    issued because of extreme urgency to justifythe issuance of a 72-hour TRO. Judge

    Adiong only stated in his order that he was[a]cting on the prayer for the issuance of a

    Writ of Preliminary Injunction, withoutfinding that the plaintiff was entitled

    thereto.26

    Judge Adiongs violations of theRules in issuing the TRO are patent and

    inexcusable.

    Syllabus:

    Failure to abide by Administrative CircularNo. 20-95 constitutes the offense of graveabuse of authority, misconduct and conduct

    prejudicial to the proper administration ofjustice.Judge Adiongs violations of the

    Rules in issuing the TRO are patent andinexcusable. This Court already ruled that

    failure to abide by Administrative CircularNo. 20-95 constitutes the offense of grave

    abuse of authority, misconduct and conductprejudicial to the proper administration of

    justice. Indeed, a judge is presumed to knowthis Circular. Judge Adiongs failure to

    comply with the clear provisions on issuingTROs constitutes gross ignorance and gross

    inefficiency.

    Court employees should maintain a hands-

    off attitude where dealings with party-litigants are concerned to maintain theintegrity of the courts and to free court

    employees from suspicion of anymisconducta court employee is expected

    to do no more than what duty demands andno less than what privilege permits.Going

    back to Sybil, he should bear in mind thatemployees of the judiciary must be mindful

    and should tread carefully when assistingother persons. Court employees should

    maintain a hands-off attitude where dealingswith party-litigants are concerned to

    maintain the integrity of the courts and tofree court employees from suspicion of any

    misconduct. InMacalua v. Tiu, Jr., 275SCRA 320 (1997) this Court held: . . . [A

    court employee] is expected to do no morethan what duty demands and no less than

    what privilege permits. Though he may beof great help to specific individuals, but

    when that help frustrates and betrays the

    publics trust in the system it cannot andshould not remain unchecked.Theinterests of the individual must give way to

    the accommodation of the publicPrivatumincommodum publico bono pensatur.

    (Emphasis supplied.) By not abiding by therules on raffle, Sybil opened himself to the

    suspicion that he is biased and that he actedto favor the plaintiff. His highly improper

    conduct subjected the courts integrity todistrust. For this, the Court finds respondent

    Sybil guilty of simple misconduct.

    b.3Aldover v. Court of Appeals, 2013

    Writ of Preliminary Injunction; A Writ of

    Preliminary Injunction is issued at any stageof an action prior to judgment or final order

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    to prevent threatened or continuousirremediable injury to some of the parties

    before their claims can be thoroughlystudied or adjudicated.!From our review

    of the case, nothing indicates that the CA

    acted without or in excess of jurisdiction orwith grave abuse of discretion in orderingthe issuance of the Writ of Preliminary

    Injunction. Measured againstjurisprudentially established parameters, its

    disposition to grant the writ was not withoutbasis and, hence, could not have been

    arrived at capriciously, whimsically,arbitrarily or despotically. Respondents

    amply justified the grant of the provisionalrelief they prayed for. A Writ of Preliminary

    Injunction is issued at any stage of an actionprior to judgment or final order to prevent

    threatened or continuous irremediable injuryto some of the parties before their claims can

    be thoroughly studied or adjudicated. Tojustify its issuance, the applicants must

    prove the following requisites: (1) that theyhave a clear and unmistakable right to be

    protected, that is a right in esse; (2) there is amaterial and substantial invasion of such

    right; (3) there is an urgent need for the writ

    to prevent irreparable injury to theapplicants; and, (4) there is no otherordinary, speedy, and adequate remedy to

    prevent the infliction of irreparable injury.

    b.4Bacolod City Water v. Labayen, G.R.No. 157994, December 10, 2004

    The main action for injunction is distinct

    from the provisional or ancillary remedy ofpreliminary injunction which cannot exist

    except only as part of an incident of anindependent action or proceeding.

    Injunction is a judicial writ, process orproceeding whereby a party is ordered to do

    or refrain from doing a certain act. It may bethe main action or merely a provisional

    remedy for and as an incident in the mainaction. The main action for injunction is

    distinct from the provisional or ancillaryremedy of preliminary injunction which

    cannot exist except only as part or anincident of an independent action or

    proceeding. As a matter of course, in an

    action for injunction, the auxiliary remedyof preliminary injunction, whetherprohibitory or mandatory, may issue. Under

    the law, the main action for injunction seeksa judgment embodying a final injunction

    which is distinct from, and should not beconfused with, the provisional remedy of

    preliminary injunction, the sole object ofwhich is to preserve thestatus quountil the

    merits can be heard. A preliminaryinjunction is granted at any stage of an

    action or proceeding prior to the judgmentor final order. It persists until it is dissolved

    or until the termination of the action withoutthe court issuing a final injunction.

    Temporary Restraining Order; A restraining

    order is issued to preserve the status quountil the hearing of the application for

    preliminary injunction which cannot beissued ex parte.A restraining order is

    issued to preserve thestatus quo until the

    hearing of the application for preliminaryinjunctionwhich cannot be issued ex parte.Under Rule 58 of the Rules of Court, a judge

    may issue a temporary restraining order witha limited life of twenty (20) days from date

    of issue. If before the expiration of thetwenty (20)-day period the application for

    preliminary injunction is denied, thetemporary restraining order would be

    deemed automatically vacated. If no actionis taken by the judge on the application for

    preliminary injunction within the saidtwenty (20) days, the temporary restraining

    order would automatically expireon the20th day by the sheer force of law, no

    judicial declaration to that effect beingnecessary.

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    Non-Extendibility; The twenty (20)-dayperiod provided by the Rules of Court

    should be deemed incorporated in the Orderwhere there is an omission to do so.The

    rule against the non-extendibility of the

    twenty (20)-day limited period of effectivityof a temporary restraining order is absoluteif issued by a regional trial court. The failure

    of respondent court to fix a period for theordered restraint did not lend the temporary

    restraining order a breath of semi-permanence which can only be characteristic

    of a preliminary injunction. The twenty(20)-day period provided by the Rules of

    Court should be deemed incorporated in theOrder where there is an omission to do so. It

    is because of this rule on non-extendibilitythat respondent City was prompted to move

    that hearings be set for its application of apreliminary injunction. Respondent City

    cannot take advantage of this omission byrespondent trial court.

    b.5Calawag v. University of the Philippines-

    Visayas, 2013Writ of Preliminary Injunction; To beentitled to a writ of preliminary injunction,

    the petitioners must establish the followingrequisites: (a) the invasion of the right

    sought to be protected is material andsubstantial; (b) the right of the complainant

    is clear and unmistakable; and (c) there isan urgent and permanent necessity for the

    writ to prevent serious damage.To beentitled to a writ of preliminary injunction,

    x x x the petitioners must establish thefollowing requisites: (a) the invasion of the

    right sought to be protected is material andsubstantial; (b) the right of the complainant

    is clear and unmistakable; and (c) there is anurgent and permanent necessity for the writ

    to prevent serious damage. Since apreliminary mandatory injunction

    commands the performance of an act, it doesnot preserve thestatus quoand is thus more

    cautiously regarded than a mere prohibitiveinjunction. Accordingly, the issuance of a

    writ of preliminary mandatory injunction

    [presents a fourth requirement: it] is justifiedonly in a clear case, free from doubt ordispute. When the complainants right is

    thus doubtful or disputed, he does not have aclear legal right and, therefore, the issuance

    of injunctive relief is improper.

    Under the University of the Philippines (UP)Systems faculty manual, the dean has

    complete discretion in approving ordisapproving the composition of a thesis

    committee.By necessary implication, thedeans power to approve includes the power

    to disapprove the composition of a thesiscommittee. Thus, under the UP Systems

    faculty manual, the dean has completediscretion in approving or disapproving the

    composition of a thesis committee.Harmonizing this provision with the

    Graduate Program Manual of UP Visayas,and the Guidelines for the Master of Science

    in Fisheries Program, we agree with the

    CAs interpretation that the thesiscommittees composition needs the approvalof the dean after the students have complied

    with the requisites provided in Article 51 ofthe Graduate Program Manual and Section

    IX of the Guidelines for the Master ofScience in Fisheries Program.

    The academic freedom accorded to

    institutions of higher learning gives them theright to decide for themselves their aims and

    objectives and how best to attain them.Verily, the academic freedom accorded to

    institutions of higher learning gives them theright to decide for themselves their aims and

    objectives and how best to attain them. Theyare given the exclusive discretion to

    determine who can and cannot study inthem, as well as to whom they can confer

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    the honor and distinction of being theirgraduates. This necessarily includes the

    prerogative to establish requirements forgraduation, such as the completion of a

    thesis, and the manner by which this shall be

    accomplished by their students. The courtsmay not interfere with their exercise ofdiscretion unless there is a clear showing

    that they have arbitrarily and capriciouslyexercised their judgment.

    Right to Education; Section 5(e), Article XIV

    of the Constitution provides that [e]verycitizen has a right to select a profession or

    course of study, subject to fair, reasonable,and equitable admission and academic

    requirements.The right to educationinvoked by Calawag cannot be made the

    basis for issuing a writ of preliminarymandatory injunction. InDepartment of

    Education, Culture and Sports v. San Diego,180 SCRA 533 (1989), we held that the

    right to education is not absolute. Section5(e), Article XIV of the Constitution

    provides that [e]very citizen has a right toselect a profession or course of study,

    subject to fair, reasonable, and equitable

    admission and academic requirements. Thethesis requirement and the compliance withthe procedures leading to it, are part of the

    reasonable academic requirements a persondesiring to complete a course of study would

    have to comply with.

    c.Receivership (Rule 59)

    c.1Citibank v. Court of Appeals, G.R. No.61508, March 17, 1999

    However, the Court of Appeals was right in

    finding a defect in such assumption ofreceivership in that the requirement of

    taking an oath has not been complied with.Section 5, Rule 59, states:

    SEC. 5. Oath and bond of receiver.

    Before entering upon his duties, the receivermust be sworn to perform them faithfully,

    and must file a bond, executed to such

    person and in such sum as the court or judgemay direct, to the effect that he willfaithfully discharge the duties of receiver in

    the action and obey the orders of the courttherein.

    Consequently, the trial court erred in

    allowing the petitioner to assumereceivership over the machine shop of

    private respondent without requiring theappointed receiver to take an oath.

    In light of the foregoing, the answer to the

    fifth assignment of error is in the negative.For erroneously issuing the aliaswrit of

    seizure without inquiring into thesufficiency of the replevin bond and for

    allowing petitioner to assume receivershipwithout the requisite oath, the Court of

    Appeals aptly held that the trial court actedwith grave abuse of discretion in dealing

    with the situation.

    SYLLABUS

    There is substantial compliance with therule requiring that an affidavit of merit

    support the complaint for replevin if thecomplaint itself contains a statement of

    every fact required to be stated in theaffidavit of merit and the complaint is

    verified like an affidavit.Petitioner iscorrect insofar as it contends that substantial

    compliance with the affidavit requirementmay be permissible. There is substantial

    compliance with the rule requiring that anaffidavit of merit support the complaint for

    replevin if the complaint itself contains astatement of every fact required to be stated

    in the affidavit of merit and the complaint isverified like an affidavit. On the matter of

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    replevin, Justice Vicente FranciscosComment on the Rules of Court, states:

    Although the better practice is to keep theaffidavit and pleading separate, if plaintiffs

    pleading contains a statement of every fact

    which the statute requires to be shown in theaffidavit, and the pleading is verified byaffidavit covering every statement therein,

    this will be sufficient without a separateaffidavit; but in no event can the pleading

    supply the absence of the affidavit unless allthat the affidavit is required to contain is

    embodied in the pleading, and the pleadingis verified in the form required in the case of

    a separate affidavit.

    In the case of an attachment which likewiserequires an affidavit of merit, the Court held

    that the absence of an affidavit of merit isnot fatal where the petition itself, which is

    under oath, recites the circumstances orfacts constitutive of the grounds for the

    petition.In the case of an attachmentwhich likewise requires an affidavit of

    merit, the Court held that the absence of anaffidavit of merit is not fatal where the

    petition itself, which is under oath, recites

    the circumstances or facts constitutive of thegrounds for the petition.

    Facts that must be set forth in the affidavitof merit.The facts that must be set forth in

    the affidavit of merit are (1) that plaintiffowns the property particularly describing the

    same, or that he is entitled to its possession;(2) wrongful detention by defendant of said

    property; (3) that the property is not takenby virtue of a tax assessment or fine

    pursuant to law or seized under execution orattachment or, if it is so seized, that it is

    exempt from such seizure; and (4) the actualvalue of the property.

    Pertinent rules require that the affidavit of

    merit should state the actual value of theproperty subject of a replevin suit and not

    just its probable value.Then too,petitioner stated the value of subject

    properties at a probable value ofP200,000.00, more or less. Pertinent rules

    require that the affidavit of merit should

    state the actualvalue of the property subjectof a replevin suit and not justitsprobablevalue. Actual value (or actual

    market value) means the price which anarticle would command in the ordinary

    course of business, that is to say, whenoffered for sale by one willing to sell, but

    not under compulsion to sell, and purchasedby another who is willing to buy, but under

    no obligation to purchase it.

    Since the valuation made by the petitionerhas been disputed by the respondent, the

    lower court should have determined first theactual value of the properties.As there

    was a disagreement on the valuation of theproperties in the first place, proper

    determination of the value of the bond to beposted by the plaintiff cannot be sufficiently

    arrived at. Though the rules specificallyrequire that the needed bond be double the

    value of the properties, since plaintiff

    merely denominated a probable value ofP200,000.00 and failed to aver theproperties actual value, which is claimed to

    be much greater than that declared byplaintiff, the amount of P400,000.00 would

    indeed be insufficient as found by the Courtof Appeals. The Rules of Court requires the

    plaintiff to give a bond, executed to thedefendant in double the value of the

    property as stated in the affidavit x x x.Hence, the bond should be double the actual

    value of the properties involved. In this case,what was posted was merely an amount

    which was double the probable value asdeclared by the plaintiff and, therefore,

    inadequate should there be a finding that theactual value is actually far greater than

    P200,000.00. Since the valuation made bythe petitioner has been disputed by the

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    respondent, the lower court should havedetermined first the actual value of the

    properties. It was thus an error for the saidcourt to approve the bond, which was based

    merely on the probable value of the

    properties.

    A replevin bond is intended to indemnify the

    defendant against any loss that he maysuffer by reason of its being compelled to

    surrender the possession of the disputedproperty pending trial of the action.It

    should be noted that a replevin bond isintended to indemnify the defendant against

    any loss that he may suffer by reason of itsbeing compelled to surrender the possession

    of the disputed property pending trial of theaction. The same may also be answerable for

    damages if any when judgment is renderedin favor of the defendant or the party against

    whom a writ of replevin was issued and suchjudgment includes the return of the property

    to him. Thus, the requirement that the bondbe double the actual value of the properties

    litigated upon. Such is the case because thebond will answer for the actual loss to the

    plaintiff, which corresponds to the value of

    the properties sought to be recovered and fordamages, if any.

    The remedies provided under Section 5,Rule 60, are alternative remedies.The

    Court held in a prior case that the remediesprovided under Section 5, Rule 60, are

    alternative remedies. x x x If a defendant ina replevin action wishes to have the property

    taken by the sheriff restored to him, heshould, within five days from such taking,

    (1) post a counter-bond in double the valueof said property, and (2) serve plaintiff with

    a copy thereof, both requirementsas wellas compliance therewith within the five-day

    period mentionedbeing mandatory. Thiscourse of action is available to the defendant

    for as long as he does not object to thesufficiency of the plaintiffs bond.

    The defendant may object to the sufficiency

    of the plaintiffs bond, or of the surety orsureties thereon but if he does so, he

    cannot require the return of the property

    by posting a counterbond pursuant toSections 5 and 6.The defendant mayobject to the sufficiency of the plaintiffs

    bond, or of the surety or sureties thereon;but if he does so, he cannot require the

    return of the property by posting a counter-bond pursuant to Sections 5 and 6.

    The property seized under a writ of replevin

    is not to be delivered immediately to theplaintiff.Under the Revised Rules of

    Court, the property seized under a writ ofreplevin is not to be delivered immediately

    to the plaintiff. This is because a possessorhas every right to be respected in its

    possession and may not be deprived of itwithout due process.

    c.2Republic v. Saludares, G.R. No.

    111174, March 9, 2000

    At issue is the jurisdiction of the trial court

    over properties owned by Lianga BayLogging Company, Inc. (LBLC), butallegedly sequestered by the Presidential

    Commission on Good Government (PCGG).

    InBASECO vs. PCGG, 150 SCRA 181, 182(1987), sequestration is defined as the

    process, which may be employed as aconservatory writ whenever the right of the

    property is involved, to preserve, pendinglitigation, specific property subject to

    conflicting claims of ownership or liens andprivileges. The Court also noted the

    relationship between attachment andreceivership, on one hand, and sequestration,

    freeze order and provisional takeover on theother. The latter are ancillary remedies in

    prosecuting the ill-gotten wealthof theprevious Marcos regime. The Court

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    observed that sequestration, freezing andprovisional takeover are akin to the

    provisional remedy of preliminaryattachment or receivership.

    In our view, the disputed properties ofLBLC were already underCustodio legisbyvirtue of a valid writ of sequestration issued

    by the PCGG on April 2, 1986, whenrespondent Judge Saludares issued the

    assailed writ of attachment in favor ofprivate respondent Hung Ming Kuk. At that

    time the writ of sequestration issued byPCGG against LBLC was subsisting. Said

    writ of the PCGG could not be interferedwith by the RTC of Lianga, because the

    PCGG is a coordinate and co-equal body.The PCGG had acquired by operation of law

    the right of redemption over the propertyuntil after the final determination of the case

    or until its dissolution.

    Syllabus:

    When a writ of attachment has been leviedon real property or any interest therein

    belonging to the judgment debtor, the levy

    creates a lien which nothing can destroy butits dissolution, a rule likewise applicable toa writ of sequestration.By an order of

    attachment, a sheriff seizes property of adefendant in a civil suit so that it may stand

    as security for the satisfaction of anyjudgment that may be obtained, and not

    disposed of, or dissipated, or lostintentionally, or otherwise, pending the

    action. When a writ of attachment has beenlevied on real property or any interest

    therein belonging to the judgment debtor,the levy creates a lien which nothing can

    destroy but its dissolution. This well-settledrule is likewise applicable to a writ of

    sequestration.

    The law does not provide the length of timeduring which an attachment lien shall

    continue after the rendition of judgment, andit must therefore continue until the debt is

    paid, or sale is had under execution issuedin the judgment, or until the judgment is

    satisfied, or the statement discharged or

    vacated in some manner provided by law.Attachment is in the nature of a proceedingin rem. It is against a particular property of a

    debtor. The attaching creditor therebyacquires a specific lien upon the attached

    property which ripens into a judgmentagainst the res when the order of sale is

    made. Such a proceeding is in effect afinding that the property attached is an

    indebted thing and results in its virtualcondemnation to pay for the owners debt.

    The law does not provide the length of timeduring which an attachment lien shall

    continue after the rendition of the judgment,and it must therefore continue until the debt

    is paid, or sale is had under execution issuedin the judgment, or until the judgment is

    satisfied, or the statement discharged orvacated in some manner provided by law.

    A writ of sequestration issued by PCGG

    could not be interfered with by the Regional

    Trial Court because the PCGG is acoordinate and co-equal body.In ourview, the disputed properties of LBLC were

    already under custodia legis by virtue of avalid writ of sequestration issued by the

    PCGG on April 2, 1986, when respondentJudge Saludares issued the assailed writ of

    attachment in favor of private respondentHung Ming Kuk. At that time the writ of

    sequestration issued by PCGG againstLBLC was subsisting. Said writ of the

    PCGG could not be interfered with by theRTC of Lianga, because the PCGG is a

    coordinate and co-equal body. The PCGGhad acquired by operation of law the right of

    redemption over the property until after thefinal determination of the case or until its

    dissolution.

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    c.3 Tantano v. Espina-Caboverde, 2013

    Receivership is a harsh remedy to begranted with utmost circumspection and

    only in extreme situations.!We have

    repeatedly held that receivership is a harshremedy to be granted with utmostcircumspection and only in extreme

    situations. The doctrinal pronouncementin Velasco & Co. v. Gochico & Co is

    instructive: The power to appoint a receiveris a delicate one and should be exercised

    with extreme caution and only undercircumstances requiring summary relief or

    where the court is satisfied that there isimminent danger of loss, lest the injury

    thereby caused be far greater than the injurysought to be averted. The court should

    consider the consequences to all of theparties and the power should not be

    exercised when it is likely to produceirreparable injustice or injury to private

    rights or the facts demonstrate that theappointment will injure the interests of

    others whose rights are entitled to as muchconsideration from the court as those of the

    complainant.

    Being a drastic and harsh remedy,

    receivership must be granted only whenthere is a clear showing of necessity for it in

    order to save the plaintiff from grave andimmediate loss or damage.!Sec. 1(d), Rule

    59 of the Rules of Court is couched ingeneral terms and broad in scope,

    encompassing instances not covered by theother grounds enumerated under the said

    section. However, in granting applicationsfor receivership on the basis of this section,

    courts must remain mindful of the basicprinciple that receivership may be granted

    only when the circumstances so demand,either because the property sought to be

    placed in the hands of a receiver is in dangerof being lost or because they run the risk of

    being impaired, and that being a drastic andharsh remedy, receivership must be granted

    only when there is a clear showing ofnecessity for it in order to save the plaintiff

    from grave and immediate loss or damage.

    Before appointing a receiver, courts shouldconsider: (1) whether or not the injury

    resulting from such appointment wouldprobably be greater than the injury ensuing

    if the status quo is left undisturbed; and (2)whether or not the appointment will imperil

    the interest of others whose rights deserveas much a consideration from the court as

    those of the person requesting forreceivership.!Before appointing a receiver,

    courts should consider: (1) whether or notthe injury resulting from such appointment

    would probably be greater than the injuryensuing if the status quo is left undisturbed;

    and (2) whether or not the appointment willimperil the interest of others whose rights

    deserve as much a consideration from thecourt as those of the person requesting for

    receivership. Moreover, this Court hasconsistently ruled that where the effect of

    the appointment of a receiver is to take real

    estate out of the possession of the defendantbefore the final adjudication of the rights ofthe parties, the appointment should be made

    only in extreme cases.

    A receiver should not be appointed todeprive a party who is in possession of the

    property in litigation, just as a writ ofpreliminary injunction should not be issued

    to transfer property in litigation from thepossession of one party to another where the

    legal title is in dispute and the party havingpossession asserts ownership in himself,

    except in a very clear case of evidentusurpation.!This Court has held that a

    receiver should not be appointed to deprivea party who is in possession of the property

    in litigation, just as a writ of preliminaryinjunction should not be issued to transfer

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    property in litigation from the possession ofone party to another where the legal title is

    in dispute and the party having possessionasserts ownership in himself, except in a

    very clear case of evident usurpation.

    Furthermore, this Court has declared that theappointment of a receiver is not proper whenthe rights of the parties, one of whom is in

    possession of the property, depend on thedetermination of their respective claims to

    the title of such property unless suchproperty is in danger of being materially

    injured or lost, as by the prospectiveforeclosure of a mortgage on it or its

    portions are being occupied by third personsclaiming adverse title.

    Section 2 of Rule 59, Rules of Court is very

    clear in that before issuing the orderappointing a receiver the court shall require

    the applicant to file a bond executed to theparty against whom the application is

    presented.!Sec. 2 of Rule 59 is very clearin that before issuing the order appointing a

    receiver the court shallrequire the applicantto file a bond executed to the party against

    whom the application is presented. The use

    of the word shall denotes its mandatorynature; thus, the consent of the other party,or as in this case, the consent of petitioners,

    is of no moment. Hence, the filing of anapplicants bond is required at all times. On

    the other hand, the requirement of areceivers bond rests upon the discretion of

    the court. Sec. 2 of Rule 59 clearly statesthat the court may, in its discretion, at any

    time after the appointment, require anadditional bond as further security for such

    damages.

    d.Replevin (Rule 60)

    d.1Twin Ace Holding v. Rufina andCompany, G.R. No. 160191, June 8, 2006.

    Issues:

    I.

    THE HONORABLE COURT OFAPPEALS ERRED IN HOLDING THAT

    RESPONDENT RUFINA IS NOT

    COVERED WITHIN THE EXEMPTIONPROVIDED BY SECTION 6 OF R.A. 623,AS AMENDED BY R.A. 5700.

    II.THE HONORABLE COURT OF

    APPEALS ERRED IN AWARDINGNOMINAL DAMAGES AGAINST

    PETITIONER TWIN ACE CONSIDERINGTHAT IT WAS THE ONE WHOSE

    RIGHTS HAVE BEEN VIOLATED ORINVADED BY RESPONDENT RUFINA.

    III.THE HONORABLE COURT OF

    APPEALS ERRED IN NOT FINDINGTHAT PETITIONER AS OWNER OF THE

    SUBJECT BOTTLES IS ENTITLED TOCOMPENSATION FOR ITS

    UNAUTHORIZED USE BYRESPONDENT RUFINA.9

    WHEREFORE, premises considered, the

    instant petition is DENIED for lack of merit

    and the decision dated 27 September 2002and resolution dated 29 September 2003, inCA-G.R. CV No. 52852, both of the Court

    of Appeals are Affirmed.

    Section 6 of Republic Act No. 623 applies to

    all manufacturers of sisi, bagoong, patis,and similar native products without

    distinction or qualification as to whetherthey are small, medium or large scale.

    Attempts to amend the protection affordedby Section 6 of Republic Act No. 623, by

    giving protection only to small scalemanufacturers or those with a capitalization

    of five hundred thousand pesos or less(P500,000.00), through then House Bill No.

    20585, and subsequently through House BillNo. 30400, proved unsuccessful as the

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    amendment proposed in both Bills wasnever passed. In view of these

    considerations, we find and so hold that theexemption contained in Section 6 of Rep.

    Act No. 623 applies to all manufacturers

    ofsisi, bagoong, patisand similar nativeproducts without distinction or qualificationas to whether they are small, medium or

    large scale.

    Wrongful detention by the defendant of theproperties sought in an action for replevin

    must be satisfactorily established.Rule 60,Section 2(a), of the Revised Rules of Court

    mandates that a party praying for therecovery of possession of personal property

    must show by his own affidavit or that ofsome other person who personally knows

    the facts that he is the owner of the propertyclaimed, particularly describing it, or is

    entitled to the possession thereof. It must beborne in mind that replevin is a possessory

    action the gist of which focuses on the rightof possession that, in turn, is dependent on a

    legal basis that, not infrequently, looks tothe ownership of the object sought to be

    replevined. Wrongful detention by the

    defendant of the properties sought in anaction for replevin must be satisfactorilyestablished. If only a mechanistic averment

    thereof is offered, the writ should not beissued. In this case, Twin Ace has not shown

    that it is entitled to the possession of thebottles in question and consequently there is

    thus no basis for the demand by it of duecompensation.

    d.2Superlines Transportation v. PNCC, G.R.

    No. 169596, March 28, 2007

    In a complaint for replevin, the claimantmust convincingly show that he is either the

    owner or clearly entitled to the possession ofthe object sought to be recovered, and that

    the defendant, who is in actual or legalpossession thereof, wrongfully detains the

    same; The term replevin is popularlyunderstood as the return to or recovery by

    a person of goods or chattels claimed to bewrongfully taken or detained upon the

    persons giving security to try the matter in

    court and return the goods if defeated in theaction.On to the substantiveissues.Tillson v. Court of Appeals, 197

    SCRA 587 (1991), discusses the termreplevin as follows: The term replevin is

    popularly understood as the return to orrecovery by a person of goods or chattels

    claimed to be wrongfully taken ordetainedupon the persons giving security

    to try the matter in court and return thegoods if defeated in the action; the writ by

    or the common-law action in which goodsand chattels are replevied, i.e., taken or

    gotten back by a writ for replevin; and toreplevy, means to recover possession by an

    action of replevin; to take possession ofgoods or chattels under a replevin order.

    Bouviers Law Dictionary defines replevinas a form of action which lies to regain the

    possession of personal chattels which havebeen taken from the plaintiff unlawfully x x

    x, (or as) the writ by virtue of which the

    sheriff proceeds at once to take possessionof the property therein described andtransfer it to the plaintiff upon his giving

    pledges which are satisfactory to the sheriffto prove his title, or return the chattels taken

    if he fail so to do; the same authority statesthat the term, to replevy means to

    redeliver goods which have been distrainedto the original possessor of them, on his

    giving pledges in an action of replevin. Theterm therefore may refer either to the action

    itself, for the recovery of personalty, or theprovisional remedy traditionally associated

    with it, by which possession of the propertymay be obtain[ed] by the plaintiff and

    retained during the pendency of the action.(Emphasis and italics supplied; citations

    omitted) In a complaint for replevin, theclaimant must convincingly show that he is

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    either the owner or clearly entitled to thepossession of the object sought to be

    recovered, and that the defendant, who is inactual or legal possession thereof,

    wrongfully detains the same.

    The rule that property held as evidence in acriminal case cannot be replevied applies

    only where the property is lawfully held, thatis, seized in accordance with the rule

    against warrantless searches and seizuresor its accepted exceptions; A thing is in

    custodia legis when it is shown that it hasbeen and is subjected to the official custody

    of a judicial executive officer in pursuanceof his execution of a legal writ. Only when

    property is lawfully taken by virtue of legalprocess is it considered in the custody of the

    law, and not otherwise.That a year afterthe incident the driver of the bus was

    criminally charged for reckless imprudenceresulting to damage to property in which the

    bus could possibly be held as evidence doesnot affect the outcome of this case. As

    explained inBagalihog v. Fernandez, 198SCRA 614 (1991): It is true that property

    held as evidence in a criminal case cannot be

    replevied. But the rule applies only wherethe property is lawfully held, that is, seizedin accordance with the rule against

    warrantless searches and seizures or itsaccepted exceptions. Property subject of

    litigation is not by that fact alone in custodialegis. As the Court said in Tamisin v.

    Odejar, 108 Phil. 560 (1960), A thing is incustodia legis when it is shown that it has

    been and is subjected to the official custodyof a judicial executive officer in pursuance

    of his execution of a legal writ. Only whenproperty is lawfully taken by virtue of legal

    process is it considered in the custody of thelaw, and not otherwise. (Emphasis and

    underscoring supplied; italics in the original;citations omitted) Petitioners prayer for

    recovery of possession of the bus is, in lightof the foregoing discussion, thus in order.

    d.3Dagudag v. Paderanga, A.M.-RTJ No.

    06-2017, June 19, 2008Dismissal of the replevin suit for lack of

    cause of action in view of the private

    respondents failure to exhaustadministrative remedies should have beenthe proper course of action by the lower

    court instead of assuming jurisdiction overthe case and consequently issuing the writ

    [of replevin].In the instant case, Edma didnot resort to, or avail of, anyadministrative

    remedy. He went straight to court and filed acomplaint for replevin and damages. Section

    8 of Presidential Decree No. 705, asamended, states that (1) all actions and

    decisions of the Bureau of ForestDevelopment Director are subject to review

    by the DENR Secretary; (2) the decisions ofthe DENR Secretary are appealable to the

    President; and (3) courts cannot review thedecisions of the DENR Secretary except

    through a special civil actionfor certiorarior prohibition. InDy, 304

    SCRA 331 (1999), the Court held that allactions seeking to recover forest products in

    the custody of the DENR shall be directed to

    that agencynot the courts. InPaat vs.Court of Appeals, 266 SCRA 167 (1997),the Court held that: Dismissal of the

    replevin suit for lack of cause of action inview of the private respondents failure to

    exhaust administrative remedies should havebeen the proper course of action by the

    lower court instead of assuming jurisdictionover the case and consequently issuing the

    writ [of replevin]. Exhaustion of theremedies in the administrative forum, being

    a condition precedent prior to ones recourseto the courts and more importantly, being an

    element of private respondents right ofaction, is too significant to be waylaid by the

    lower court. x x x x Moreover, the suit forreplevin is never intended as a procedural

    tool to question the orders of confiscationand forfeiture issued by the DENR in

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    pursuance to the authority given under P.D.705, as amended. Section 8 of the said law is

    explicit that actions taken by the Director ofthe Bureau of Forest Development

    concerning the enforcement of the

    provisions of the said law are subject toreview by the Secretary of DENR and thatcourts may not review the decisions of the

    Secretary except through a special civilaction for certiorari or prohibition.

    In Calub v. Court of Appeals, 331 SCRA 55

    (2000), the Court held that propertieslawfully seized by the Department of

    Environment and Natural Resources(DENR) cannot be the subject of replevin.

    The forest products are already incustodialegisand thus cannot be the subject of

    replevin. There was a violation of theRevised Forestry Code and the DENR

    seized the forest products in accordance withlaw. In Calub v. Court of Appeals, 331

    SCRA 55 (2000), the Court held thatproperties lawfully seized by the DENR

    cannot be the subject of replevin: Sincethere was a violation of the Revised Forestry

    Code and the seizure was in accordance with

    law, in our view the [properties seized] werevalidly deemed in custodia legis. [They]could not be subject to an action for

    replevin. For it is property lawfully taken byvirtue of legal process and considered in the

    custody of the law, and not otherwise.

    Judge Paderangas acts of takingcognizance of the replevin suit and of

    issuing the writ of replevin constitute grossignorance of the law.Judge Paderangas

    acts of taking cognizance of the replevin suitand of issuing the writ of replevin constitute

    gross ignorance of the law. In Tabao, 364SCRA 322 (2001), the Court held that:

    Under the doctrine of primary jurisdiction,courts cannot take cognizance of cases

    pending before administrative of specialcompetence. x x x [T]he plaintiff in the

    replevin suit who [sought] to recover theshipment from the DENR had not exhausted

    the administrative remedies available to him.The prudent thing for respondent judge to

    have done was to dismiss the replevin suit

    outright.

    e.Support Pendete Lite (Rule 61) coverage

    midterms

    e.1Mangonon v. Court of Appeals, G.R. No.125041, June 30, 2006

    Because of the provisional nature of an

    application for support pendente lite, acourt does not need to delve fully into the

    merits of the case before it can settle anapplication for this relief.As a preliminary

    matter, we deem it necessary to brieflydiscuss the essence of supportpendente lite.

    The pertinent portion of the Rules of Courton the matter provides: Rule 61, SUPPORT

    PENDENTE LITE: SECTION1.Application.At the commencement of

    the proper action or proceeding, or at anytime prior to the judgment or final order, a

    verified application for supportpendente

    litemay be filed by any party stating thegrounds for the claim and the financialconditions of both parties, and accompanied

    by affidavits, depositions or other authenticdocuments in support thereof. x x x x. SEC.

    4. Order.The court shall determineprovisionally the pertinent facts, and shall

    render such orders as justice and equity mayrequire, having due regard to the probable

    outcome of the case and such othercircumstances as may aid in the proper

    resolution of the question involved. If theapplication is granted, the court shall fix the

    amount of money to be provisionally paid orsuch other forms of support as should be

    provided, taking into account the necessitiesof the applicant and the resources or means

    of the adverse party, and the terms ofpayment or mode for providing the support.

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    If the application is denied, the principalcase shall be tried and decided as early as

    possible. Under this provision, a court maytemporarily grant supportpendente liteprior

    to the rendition of judgment or final order.

    Because of its provisional nature, a courtdoes not need to delve fully into the meritsof the case before it can settle an application

    for this relief. All that a court is tasked to dois determine the kind and amount of

    evidence which may suffice to enable it tojustly resolve the application. It is enough

    that the facts be established by affidavits orother documentary evidence appearing in the

    record.

    The obligation to give support restsprincipally on those more closely related to

    the recipient.Having addressed the issueof the propriety of the trial courts grant of

    supportpendente litein favor of Rica andRina, the next question is who should be

    made liable for said award. The pertinentprovision of the Family Code on this subject

    states: ART. 199. Whenever two or morepersons are obliged to give support, the

    liability shall devolve upon the following

    persons in the order herein provided: (1) Thespouse; (2) The descendants in the nearestdegree; (3) The ascendants in the nearest

    degree; and (4) The brothers and sisters. Aneminent author on the subject explains that

    the obligation to give support restsprincipally on those more closely related to

    the recipient. However, the more remoterelatives may be held to shoulder the

    responsibility should the claimant prove thatthose who are called upon to provide

    support do not have the means to do so.

    In this case, the Court believes that thegrandfather could not avail himself of the

    second option provided under Article 204 ofthe Family Codereceiving and

    maintaining in the family dwelling theperson who has a right to receive support

    in view of the filing of the instant case, andthe allegations hurled at one another by the

    parties, and particularly difficult for therecipients must be the fact that those who

    they had considered and claimed as family

    denied having any familial relationship withthem.In this case, this Court believes thatrespondent Francisco could not avail himself

    of the second option. From the records, wegleaned that prior to the commencement of

    this action, the relationship betweenrespondent Francisco, on one hand, and

    petitioner and her twin daughters, on theother, was indeed quite pleasant. The

    correspondences exchanged among themexpressed profound feelings of

    thoughtfulness and concern for oneanothers well-being. The photographs

    presented by petitioner as part of herexhibits presented a seemingly typical

    family celebrating kinship. All of these,however, are now things of the past. With

    the filing of this case, and the allegationshurled at one another by the parties, the

    relationships among the parties had certainlybeen affected. Particularly difficult for Rica

    and Rina must be the fact that those who

    they had considered and claimed as familydenied having any familial relationship withthem. Given all these, we could not see Rica

    and Rina moving back here in thePhilippines in the company of those who

    have disowned them.

    Considering that the recipients may havealready been done with their education by

    the time of the promulgation of the decision,the Court deems it proper to award support

    pendente lite in arrears to be computed fromthe time they entered college until they had

    finished their respective studies.As to theamount of supportpendente lite, we take our

    bearings from the provision of the lawmandating the amount of support to be

    proportionate to the resources or means ofthe giver and to the necessities of the

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    recipient. Guided by this principle, we holdrespondent Francisco liable for half of the

    amount of school expenses incurred by Ricaand Rina as supportpendente lite. As

    established by petitioner, respondent

    Francisco has the financial resources to paythis amount given his various businessendeavors. Considering, however, that the

    twin sisters may have already been donewith their education by the time of the

    promulgation of this decision, we deem itproper to award supportpendente litein

    arrears to be computed from the time theyentered college until they had finished their

    respective studies.

    Support Pendente Lite; In case it would beresolved that the recipients are not entitled

    to support pendente lite, they shall returnthe amounts already paid with legal interest

    from the dates of actual payment.Theissue of the applicability of Article 15 of the

    Civil Code on petitioner and her twindaughters raised by respondent Francisco is

    best left for the resolution of the trial court.After all, in case it would be resolved that

    Rica and Rina are not entitled to

    supportpendente lite, the court shall thenorder the return of the amounts already paidwith legal interest from the dates of actual

    payment.