2019 REVISED RULES ON CIVIL PROCEDURE
PROVISIONAL REMEDIES
RULE 57
PRELIMINARY ATTACHMENT
Section 1. Grounds upon which attachment may issue. –
At the commencement of the action or at any time before entry of judgment, a
plaintiff or any proper party may have the property of the adverse party
attached as security for the satisfaction of any judgment that may be recovered
in the following cases:
(a)
In an action for the recovery of a specified amount of money or damages, other
than moral and exemplary, on a cause of action arising from law, contract,
quasi-contract, delict or quasidelict against a party who is about to depart
from the Philippines with intent to defraud his creditors;
(b)
In an action for money or property embezzled or fraudulently misapplied or
converted to his own use by a public officer, or an officer of a corporation,
or an attorney, factor, broker, agent, or clerk, in the course of his
employment as such, or by any other person in a fiduciary capacity, or for a
willful violation of duty;
(c)
In an action to recover the possession of property unjustly or fraudulently
taken, detained or converted, when the property, or any part thereof, has been
concealed, removed, or disposed of to prevent its being found or taken by the
applicant or an authorized person;
(d)
In an action against a party who has been guilty of a fraud in contracting the
debt or incurring the obligation upon which the action is brought, or in the
performance thereof;
(e)
In an action against a party who has removed or disposed of his property, or is
about to do so, with intent to defraud his creditors; or
(f)
In an action against a party who does not reside and is not found in the
Philippines, or on whom summons may be served by publication.
Section 2. Issuance and contents of order. – An order
of attachment may be issued either ex parte or upon motion with notice and
hearing by the court in which the action is pending, or by the Court of Appeals
or the Supreme Court, and must require the sheriff of the court to attach so
much of the property in the Philippines of the party against whom it is issued,
not exempt from execution, as may be sufficient to satisfy the applicant’s
demand, unless such party makes deposit or gives a bond as hereinafter provided
in an amount equal to that fixed in the order, which may be the amount
sufficient to satisfy the applicant’s demand or the value of the property to be
attached as stated by the applicant, exclusive of costs. Several writs may be
issued at the same time to the sheriffs of the courts of different judicial
regions.
Section 3. Affidavit and bond required. – An order of
attachment shall be granted only when it appears by the affidavit of the
applicant, or of some other person who personally knows the facts,
that
a sufficient cause of action exists,
that
the case is one of those mentioned in section 1 hereof,
that
there is no other sufficient security for the claim sought to be enforced by
the action, and
that
the amount due to the applicant, or the value of the property the possession of
which he is entitled to recover, is as much as the sum for which the order is
granted above all legal counterclaims.
The
affidavit, and the bond required by the next succeeding section, must be duly
filed with the court before the order issues.
Section 4. Condition of applicant’s bond. – The party
applying for the order must thereafter give a bond executed to the adverse
party in the amount fixed by the court in its order granting the issuance of
the writ, conditioned that the latter will pay all the costs which may be
adjudged to the adverse party and all damages which he may sustain by reason of
the attachment, if the court shall finally adjudge that the applicant was not
entitled thereto.
Section 5. Manner of attaching property. – The sheriff
enforcing the writ shall without delay and with all reasonable diligence
attach, to await judgment and execution in the action, only so much of the
property in the Philippines of the party against whom the writ is issued, not
exempt from execution, as may be sufficient to satisfy the applicant’s demand,
unless the former makes a deposit with the court from which the writ is issued,
or gives a counter-bond executed to the applicant, in an amount equal to the
bond fixed by the court in the order of attachment or to the value of the
property to be attached, exclusive of costs. No levy on attachment pursuant to
the writ issued under section 2 hereof shall be enforced unless it is preceded,
or contemporaneously accompanied, by service of summons, together with a copy
of the complaint, the application for attachment, the applicant’s affidavit and
bond, and the order and writ of attachment, on the defendant within the
Philippines. The requirement of prior or contemporaneous service of summons
shall not apply where the summons could not be served personally or by
substituted service despite diligent efforts, or the defendant is a resident of
the Philippines temporarily absent therefrom, or the defendant is a
non-resident of the Philippines, or the action is one in rem or quasi in rem.
Section 6. Sheriff’s return. – After enforcing the
writ, the sheriff must likewise without delay make a return thereon to the
court from which the writ issued, with a full statement of his proceedings
under the writ and a complete inventory of the property attached, together with
any counter-bond given by the party against whom attachment is issued, and
serve copies thereof on the applicant.
Section 7. Attachment of real and personal property;
recording thereof. – Real and personal property shall be attached by the
sheriff executing the writ in the following manner:
(a)
Real property, or growing crops thereon, or any interest therein, standing upon
the record of the registry of deeds of the province in the name of the party
against whom attachment is issued, or not appearing at all upon such records,
or belonging to the party against whom attachment is issued and held by any
other person, or standing on the records of the registry of deeds in the name
of any other person, by filing with the registry of deeds a copy of the order,
together with a description of the property attached, and a notice that it is
attached, or that such real property and any interest therein held by or
standing in the name of such other person are attached, and by leaving a copy
of such order, description, and notice with the occupant of the property, if
any, or with such other person or his agent if found within the province. Where
the property has been brought under the operation of either the Land
Registration Act or the Property Registration Decree, the notice shall contain
a reference to the number of the certificate of title, the volume and page in
the registration book where the certificate is registered, and the registered
owner or owners thereof. The registrar of deeds must index attachments filed
under this section in the names of the applicant, the adverse party, or the
person by whom the property is held or in whose name it stands in the records.
If the attachment is not claimed on the entire area of the land covered by the
certificate of title, a description sufficiently accurate for the
identification of the land or interest to be affected shall be included in the
registration of such attachment;
(b)
Personal property capable of manual delivery, by taking and safely keeping it
in his custody, after issuing the corresponding receipt therefor;
(c)
Stocks or shares, or an interest in stocks or shares, of any corporation or
company, by leaving with the president or managing agent thereof, a copy of the
writ, and a notice stating that the stock or interest of the party against whom
the attachment is issued is attached in pursuance of such writ;
(d)
Debts and credits, including bank deposits, financial interest, royalties,
commissions and other personal property not capable of manual delivery, by
leaving with the person owing such debts, or having in his possession or under
his control, such credits or other personal property, or with his agent, a copy
of the writ, and notice that the debts owing by him to the party against whom
attachment is issued, and the credits and other personal property in his
possession, or under his control, belonging to said party, are attached in
pursuance of such writ;
(e)
The interest of the party against whom attachment is issued in property
belonging to the estate of the decedent, whether as heir, legatee, or devisee,
by serving the executor or administrator or other personal representative of
the decedent with a copy of the writ and notice that said interest is attached.
A copy of said writ of attachment and of said notice shall also be filed in the
office of the clerk of the court in which said estate is being settled and
served upon the heir, legatee or devisee concerned. If the property sought to
be attached is in custodia legis, a copy of the writ of attachment shall be
filed with the proper court or quasi-judicial agency, and notice of the
attachment served upon the custodian of such property.
Section 8. Effect of attachment of debts, credits and
all other similar personal property. – All persons having in their possession
or under their control any credits or other similar personal property belonging
to the party against whom attachment is issued, or owing any debts to him, at
the time of service upon them of the copy of the writ of attachment and notice
as provided in the last preceding section, shall be liable to the applicant for
the amount of such credits, debts or other similar personal property, until the
attachment is discharged, or any judgment recovered by him is satisfied, unless
such property is delivered or transferred, or such debts are paid, to the
clerk, sheriff, or other proper officer of the court issuing the
attachment.
Section 9. Effect of attachment of interest in
property belonging to the estate of a decedent. – The attachment of the
interest of an heir, legatee, or devisee in the property belonging to the
estate of a decedent shall not impair the powers of the executor,
administrator, or other personal representative of the decedent over such
property for the purpose of administration. Such personal representative,
however, shall report the attachment to the court when any petition for
distribution is filed, and in the order made upon such petition, distribution
may be awarded to such heir, legatee, or devisee, but the property attached
shall be ordered delivered to the sheriff making the levy, subject to the claim
of such heir, legatee, or devisee, or any person claiming under him.
Section 10. Examination of party whose property is
attached and persons indebted to him or controlling his property; delivery of
property to sheriff. – Any person owing debts to the party whose property is
attached or having in his possession or under his control any credit or other
personal property belonging to such party, may be required to attend before the
court in which the action is pending, or before a commissioner appointed by the
court, and be examined on oath respecting the same. The party whose property is
attached may also be required to attend for the purpose of giving information
respecting his property, and may be examined on oath. The court may, after such
examination, order personal property capable of manual delivery belonging to
him, in the possession of the person so required to attend before the court, to
be delivered to the clerk of the court or sheriff on such terms as may be just,
having reference to any lien thereon or claim against the same, to await the
judgment in the action.
Section 11. When attached property may be sold after
levy on attachment and before entry of judgment. – Whenever it shall be made to
appear to the court in which the action is pending, upon hearing with notice to
both parties, that the property attached is perishable, or that the interests
of all the parties to the action will be subserved by the sale thereof, the
court may order such property to be sold at public auction in such manner as it
may direct, and the proceeds of such sale to be deposited in court to abide the
judgment in the action.
Section 12. Discharge of attachment upon giving
counter-bond. – After a writ of attachment has been enforced, the party whose
property has been attached, or the person appearing on his behalf, may move for
the discharge of the attachment wholly or in part on the security given. The
court shall, after due notice and hearing, order the discharge of the
attachment if the movant makes a cash deposit, or files a counter-bond executed
to the attaching party with the clerk of the court where the application is
made, in an amount equal to that fixed by the court in the order of attachment,
exclusive of costs. But if the attachment is sought to be discharged with
respect to a particular property, the counter-bond shall be equal to the value
of that property as determined by the court. In either case, the cash deposit
or the counter-bond shall secure the payment of any judgment that the attaching
party may recover in the action. A notice of the deposit shall forthwith be
served on the attaching party. Upon the discharge of an attachment in
accordance with the provisions of this section, the property attached, or the
proceeds of any sale thereof, shall be delivered to the party making the
deposit or giving the counter-bond, or to the person appearing on his behalf,
the deposit or counter-bond aforesaid standing in place of the property so
released. Should such counter-bond for any reason be found to be or become
insufficient, and the party furnishing the same fail to file an additional
counter-bond, the attaching party may apply for a new order of attachment.
Section 13. Discharge of attachment on other grounds. –
The party whose property has been ordered attached may file a motion with the
court in which the action is pending, before or after levy or even after the
release of the attached property, for an order to set aside or discharge the
attachment on the ground that the same was improperly or irregularly issued or
enforced, or that the bond is insufficient. If the attachment is excessive, the
discharge shall be limited to the excess. If the motion be made on affidavits
on the part of the movant but not otherwise, the attaching party may oppose the
motion by counteraffidavits or other evidence in addition to that on which the
attachment was made. After due notice and hearing, the court shall order the
setting aside or the corresponding discharge of the attachment if it appears
that it was improperly or irregularly issued or enforced, or that the bond is
insufficient, or that the attachment is excessive, and the defect is not cured
forthwith.
Section 14. Proceedings where property claimed by third
person. – If the property attached is claimed by any person other than the
party against whom attachment had been issued or his agent, and such person
makes an affidavit of his title thereto, or right to the possession thereof,
stating the grounds of such right or title, and serves such affidavit upon the
sheriff while the latter has possession of the attached property, and a copy
thereof upon the attaching party, the sheriff shall not be bound to keep the
property under attachment, unless the attaching party or his agent, on demand
of the sheriff, shall file a bond approved by the court to indemnify the
third-party claimant in a sum not less than the value of the property levied
upon. In case of disagreement as to such value, the same shall be decided by
the court issuing the writ of attachment. No claim for damages for the taking
or keeping of the property may be enforced against the bond unless the action
therefor is filed within one hundred twenty (120) days from the date of the
filing of the bond. The sheriff shall not be liable for damages for the taking
or keeping of such property, to any such third-party claimant, if such bond
shall be filed. Nothing herein contained shall prevent such claimant or any
third person from vindicating his claim to the property, or prevent the
attaching party from claiming damages against a third-party claimant who filed
a frivolous or plainly spurious claim, in the same or a separate action. When
the writ of attachment is issued in favor of the Republic of the Philippines,
or any officer duly representing it, the filing of such bond shall not be
required, and in case the sheriff is sued for damages as a result of the
attachment, he shall be represented by the Solicitor General, and if held
liable therefor, the actual damages adjudged by the court shall be paid by the
National Treasurer out of the funds to be appropriated for the purpose.
Section 15. Satisfaction of judgment out of property
attached; return of sheriff. – If judgment be recovered by the attaching party
and execution issue thereon, the sheriff may cause the judgment to be satisfied
out of the property attached, if it be sufficient for that purpose in the
following manner:
(a)
By paying to the judgment obligee the proceeds of all sales of perishable or
other property sold in pursuance of the order of the court, or so much as shall
be necessary to satisfy the judgment;
(b)
If any balance remains due, by selling so much of the property, real or
personal, as may be necessary to satisfy the balance, if enough for that
purpose remain in the sheriffs hands, or in those of the clerk of the court;
(c)
By collecting from all persons having in their possession credits belonging to
the judgment obligor, or owing debts to the latter at the time of the
attachment of such credits or debts, the amount of such credits and debts as
determined by the court in the action, and stated in the judgment, and paying
the proceeds of such collection over to the judgment obligee. The sheriff shall
forthwith make a return in writing to the court of his proceedings under this section
and furnish the parties with copies thereof.
Section 16. Balance due collected upon an execution;
excess delivered to judgment obligor. – If after realizing upon all the
property attached, including the proceeds of any debts or credits collected, and
applying the proceeds to the satisfaction of the judgment, less the expenses of
proceedings upon the judgment, any balance shall remain due, the sheriff must
proceed to collect such balance as upon ordinary execution. Whenever the
judgment shall have been paid, the sheriff, upon reasonable demand, must return
to the judgment obligor the attached property remaining in his hands, and any
proceeds of the sale of the property attached not applied to the judgment.
Section 17. Recovery upon the counter-bond. – When the
judgment has become executory, the surety or sureties on any counter-bond given
pursuant to the provisions of this Rule to secure the payment of the judgment
shall become charged on such counter-bond and bound to pay the judgment obligee
upon demand the amount due under the judgment, which amount may be recovered
from such surety or sureties after notice and summary hearing in the same
action.
Section 18. Disposition of money deposited. – Where the
party against whom attachment had been issued has deposited money instead of
giving counter-bond, it shall be applied under the direction of the court to
the satisfaction of any judgment rendered in favor of the attaching party, and
after satisfying the judgment the balance shall be refunded to the depositor or
his assignee. If the judgment is in favor of the party against whom attachment
was issued, the whole sum deposited must be refunded to him or his assignee.
Section 19. Disposition of attached property where
judgment is for party against whom attachment was issued. – If judgment be
rendered against the attaching party, all the proceeds of sales and money
collected or received by the sheriff, under the order of attachment, and all
property attached remaining in any such officer’s hands, shall be delivered to
the party against whom attachment was issued, and the order of attachment
discharged.
Section 20. Claim for damages on account of improper,
irregular or excessive attachment. – An application for damages on account of
improper, irregular or excessive attachment must be filed before the trial or
before appeal is perfected or before the judgment becomes executory, with due
notice to the attaching party and his surety or sureties, setting forth the
facts showing his right to damages and the amount thereof. Such damages may be
awarded only after proper hearing and shall be included in the judgment on the
main case. If the judgment of the appellate court be favorable to the party
against whom the attachment was issued, he must claim damages sustained during
the pendency of the appeal by filing an application in the appellate court,
with notice to the party in whose favor the attachment was issued or his surety
or sureties, before the judgment of the appellate court becomes executory. The
appellate court may allow the application to be heard and decided by the trial
court. Nothing herein contained shall prevent the party against whom the
attachment was issued from recovering in the same action the damages awarded to
him from any property of the attaching party not exempt from execution should
the bond or deposit given by the latter be insufficient or fail to fully
satisfy the award.
RULE 58
PRELIMINARY INJUNCTION
Section 1. Preliminary injunction defined; classes. –
A preliminary injunction is an order granted at any stage of an action or
proceeding prior to the judgment or final order, requiring a party or a court,
agency or a person to refrain from a particular act or acts. It may also
require the performance of a particular act or acts, in which case it shall be
known as a preliminary mandatory injunction.
Section 2. Who may grant preliminary injunction. – A
preliminary injunction may be granted by the court where the action or
proceeding is pending. If the action or proceeding is pending in the Court of
Appeals or in the Supreme Court, it may be issued by said court or any member
thereof.
Section 3. Grounds for issuance of preliminary
injunction. – A preliminary injunction may be granted when it is established:
(a)
That the applicant is entitled to the relief demanded, and the whole or part of
such relief consists in restraining the commission or continuance of the act or
acts complained of, or in requiring the performance of an act or acts, either
for a limited period or perpetually;
(b)
That the commission, continuance or non-performance of the act or acts
complained of during the litigation would probably work injustice to the
applicant; or
(c)
That a party, court, agency or a person is doing, threatening, or is attempting
to do, or is procuring or suffering to be done, some act or acts probably in
violation of the rights of the applicant respecting the subject of the action
or proceeding, and tending to render the judgment ineffectual.
Section 4. Verified application and bond for
preliminary injunction or temporary restraining order. – A preliminary
injunction or temporary restraining order may be granted only when:
(a)
The application in the action or proceeding is verified, and shows facts
entitling the applicant to the relief demanded; and
(b)
Unless exempted by the court, the applicant files with the court where the
action or proceeding is pending, a bond executed to the party or person
enjoined, in an amount to be fixed by the court, to the effect that the
applicant will pay to such party or person all damages which he may sustain by
reason of the injunction or temporary restraining order if the court should
finally decide that the applicant was not entitled thereto. Upon approval of
the requisite bond, a writ of preliminary injunction shall be issued.
(c)
When an application for a writ of preliminary injunction or a temporary
restraining order is included in a complaint or any initiatory pleading, the
case, if filed in a multiple-sala court, shall be raffled only after notice to
and in the presence of the adverse party or the person to be enjoined. In any
event, such notice shall be preceded, or contemporaneously accompanied, by
service of summons, together with a copy of the complaint or initiatory
pleading and the applicant’s affidavit and bond, upon the adverse party in the
Philippines. However, where the summons could not be served personally or by
substituted service despite diligent efforts, or the adverse party is a
resident of the Philippines temporarily absent therefrom or is a nonresident
thereof, the requirement of prior or contemporaneous service of summons shall
not apply.
(d)
The application for a temporary restraining order shall thereafter be acted
upon only after all parties are heard in a summary hearing which shall be
conducted within twenty-four (24) hours after the sheriff’s return of service
and/or the records are received by the branch selected by raffle and to which
the records shall be transmitted immediately.
Section 5. Preliminary injunction not granted without
notice; exception. – No preliminary injunction shall be granted 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 a temporary restraining order to be effective only for a
period of twenty (20) days from service on the ex parte or person sought to be
enjoined, 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 parte a temporary restraining order effective
for only seventy-two (72) hours from issuance but he shall immediately comply
with the provisions of the next 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 temporary restraining order
exceed twenty (20) days, including the original seventytwo 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 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. However, if issued by the Court of Appeals or a member
thereof, the temporary restraining order shall be effective for sixty (60) days
from service on the party or person sought to be enjoined. A restraining order
issued by the Supreme Court or a member thereof shall be effective until
further orders.
The
trial court, the Court of Appeals, the Sandiganbayan or the Court of Tax
Appeals that issued a writ of preliminary injunction against a lower court,
board, officer, or quasi-judicial agency shall decide the main case or petition
within six (6) months from the issuance of the writ. (As amended by A.M. No.
07-7-12-SC, December 12, 2007.)
Section 6. Grounds for objection to, or for motion of
dissolution of, injunction or restraining order. – The application for
injunction or restraining order may be denied, upon a showing of its
insufficiency. The injunction or restraining order may also be denied, or, if
granted, may be dissolved, on other grounds upon affidavits of the party or
person enjoined, which may be opposed by the applicant also by affidavits. It
may further be denied, or, if granted, may be dissolved, if it appears after
hearing that although the applicant is entitled to the injunction or
restraining order, the issuance or continuance thereof, as the case may be,
would cause irreparable damage to the party or person enjoined while the
applicant can be fully compensated for such damages as he may suffer, and the
former files a bond in an amount fixed by the court conditioned that he will
pay all damages which the applicant may suffer by the denial or the dissolution
of the injunction or restraining order. If it appears that the extent of the
preliminary injunction or restraining order granted is too great, it may be
modified.
Section 7. Service of copies of bonds; effect of
disapproval of same. – The party filing a bond in accordance with the
provisions of this Rule shall forthwith serve a copy of such bond on the other
party, who may except to the sufficiency of the bond, or of the surety or
sureties thereon. If the applicant’s bond is found to be insufficient in
amount, or if the surety or sureties thereon fail to justify, and a bond
sufficient in amount with sufficient sureties approved after justification is
not filed forthwith, the injunction shall be dissolved. If the bond of the
adverse party is found to be insufficient in amount, or the surety or sureties
thereon fail to justify a bond sufficient in amount with sufficient sureties
approved after justification is not filed forthwith, the injunction shall be
granted or restored, as the case may be.
Section 8. Judgment to include damages against party
and sureties. – At the trial, the amount of damages to be awarded to either
party, upon the bond of the adverse party, shall be claimed, ascertained, and
awarded under the same procedure prescribed in section 20 of Rule 57.
Section 9. When final injunction granted. – If after
the trial of the action it appears that the applicant is entitled to have the
act or acts complained of permanently enjoined, the court shall grant a final
injunction perpetually restraining the party or person enjoined from the
commission or continuance of the act or acts or confirming the preliminary
mandatory injunction.
RULE 59
RECEIVERSHIP
Section 1. Appointment of receiver. – Upon a verified
application, one or more receivers of the property subject of the action or
proceeding may be appointed by the court where the action is pending, or by the
Court of Appeals or by the Supreme Court, or a member thereof, in the following
cases:
(a)
When it appears from the verified application, and such other proof as the
court may require, that the party applying for the appointment of a receiver
has an interest in the property or fund which is the subject of the action or
proceeding, and that such property or fund is in danger of being lost, removed,
or materially injured unless a receiver be appointed to administer and preserve
it;
(b)
When it appears in an action by the mortgagee for the foreclosure of a mortgage
that the property is in danger of being wasted or dissipated or materially
injured, and that its value is probably insufficient to discharge the mortgage
debt, or that the parties have so stipulated in the contract of mortgage;
(c)
After judgment, to preserve the property during the pendency of an appeal, or
to dispose of it according to the judgment, or to aid execution when the
execution has been returned unsatisfied or the judgment obligor refuses to
apply his property in satisfaction of the judgment, or otherwise to carry the
judgment into effect;
(d)
Whenever in other cases it appears that the appointment of a receiver is the
most convenient and feasible means of preserving, administering, or disposing
of the property in litigation. During the pendency of an appeal, the appellate
court may allow an application for the appointment of a receiver to be filed in
and decided by the court of origin and the receiver appointed to be subject to
the control of said court.
Section 2. Bond on appointment of receiver. – Before
issuing the order appointing a receiver the court shall require the applicant
to file a bond executed to the party against whom the application is presented,
in an amount to be fixed by the court, to the effect that the applicant will
pay such party all damages he may sustain by reason of the appointment of such
receiver in case the applicant shall have procured such appointment without
sufficient cause; and the court may, in its discretion, at any time after the
appointment, require an additional bond as further security for such damages.
Section 3. Denial of application or discharge of
receiver. – The application may be denied, or the receiver discharged, when the
adverse party files a bond executed to the applicant, in an amount to be fixed
by the court, to the effect that such party will pay the applicant all damages
he may suffer by reason of the acts, omissions, or other matters specified in
the application as ground for such appointment. The receiver may also be
discharged if it is shown that his appointment was obtained without sufficient
cause.
Section 4. Oath and bond of receiver. – Before
entering upon his duties, the receiver shall be sworn to perform them
faithfully, and shall file a bond, executed to such person and in such sum as
the court may direct, to the effect that he will faithfully discharge his
duties in the action or proceeding and obey the orders of the court.
Section 5. Service of copies of bonds; effect of
disapproval of same. – The person filing a bond in accordance with the
provisions of this Rule shall forthwith serve a copy thereof on each interested
party, who may except to its sufficiency or of the surety or sureties thereon.
If either the applicant’s or the receiver’s bond is found to be insufficient in
amount, or if the surety or sureties thereon fail to justify, and a bond
sufficient in amount with sufficient sureties approved after justification is
not filed forthwith, the application shall be denied or the receiver
discharged, as the case may be. If bond of the adverse party is found to be
insufficient in amount or the surety or sureties thereon fail to justify, and a
bond sufficient in amount with sufficient sureties approved after justification
is not filed forthwith, the receiver shall be appointed or re-appointed, as the
case may be.
Section 6. General powers of receiver. – Subject to
the control of the court in which the action or proceeding is pending, a
receiver shall have the power to bring and defend, in such capacity, actions in
his own name; to take and keep possession of the property in controversy; to
receive rents; to collect debts due to himself as receiver or to the fund,
property, estate, person, or corporation of which he is the receiver; to
compound for and compromise the same; to make transfers; to pay outstanding
debts; to divide the money and other property that shall remain among the
persons legally entitled to receive the same; and generally to do such acts
respecting the property as the court may authorize. However, funds in the hands
of a receiver may be invested only by order of the court upon the written
consent of all the parties to the action.
No
action may be filed by or against a receiver without leave of the court which
appointed him.
Section 7. Liability for refusal or neglect to deliver
property to receiver. – A person who refuses or neglects, upon reasonable
demand, to deliver to the receiver all the property, money, books, deeds,
notes, bills, documents and papers within his power or control, subject of or
involved in the action or proceeding, or in case of disagreement, as determined
and ordered by the court, may be punished for contempt and shall be liable to
the receiver for the money or the value of the property and other things so
refused or neglected to be surrendered, together with all damages that may have
been sustained by the party or parties entitled thereto as a consequence of
such refusal or neglect.
Section 8. Termination of receivership; compensation
of receiver. – Whenever the court, motu proprio or on motion of either party,
shall determine that the necessity for a receiver no longer exists, it shall,
after due notice to all interested parties and hearing, settle the accounts of
the receiver, direct the delivery of the funds and other property in his
possession to the person adjudged to be entitled to receive them, and order the
discharge of the receiver from further duty as such. The court shall allow the
receiver such reasonable compensation as the circumstances of the case warrant,
to be taxed as costs against the defeated party, or apportioned, as justice
requires.
Section 9. Judgment to include recovery against
sureties. – The amount, if any, to be awarded to any party upon any bond filed
in accordance with the provisions of this Rule, shall be claimed, ascertained,
and granted under the same procedure prescribed in section 20 of Rule 57.
RULE 60
REPLEVIN
Section 1. Application. – A party praying for the
recovery of possession of personal property may, at the commencement of the
action or at any time before answer, apply for an order for the delivery of
such property to him, in the manner hereinafter provided.
Section 2. Affidavit and bond. – The applicant must
show by his own affidavit or that of some other person who personally knows the
facts:
(a)
That the applicant is the owner of the property claimed, particularly
describing it, or is entitled to the possession thereof;
(b)
That the property is wrongfully detained by the adverse party, alleging the
cause of detention thereof according to the best of his knowledge, information,
and belief;
(c)
That the property has not been distrained or taken for a tax assessment or a
fine pursuant to law, or seized under a writ of execution or preliminary
attachment, or otherwise placed under custodia legis, or if so seized, that it
is exempt from such seizure or custody; and
(d)
The actual market value of the property. The applicant must also give a bond,
executed to the adverse party in double the value of the property as stated in
the affidavit aforementioned, for the return of the property to the adverse
party if such return be adjudged, and for the payment to the adverse party of
such sum as he may recover from the applicant in the action.
Section 3. Order. – Upon the filing of such affidavit
and approval of the bond, the court shall issue an order and the corresponding
writ of replevin describing the personal property alleged to be wrongfully
detained and requiring the sheriff forthwith to take such property into his
custody.
Section 4. Duty of the sheriff. – Upon receiving such
order, the sheriff must serve a copy thereof on the adverse party, together
with a copy of the application, affidavit and bond, and must forthwith take the
property, if it be in the possession of the adverse party, or his agent, and
retain it in his custody. If the property or any part thereof be concealed in a
building or enclosure, the sheriff must demand its delivery, and if it be not
delivered, he must cause the building or enclosure to be broken open and take
the property into his possession. After the sheriff has taken possession of the
property as herein provided, he must keep it in a secure place and shall be
responsible for its delivery to the party entitled thereto upon receiving his
fees and necessary expenses for taking and keeping the same.
Section 5. Return of property. – If the adverse party
objects to the sufficiency of the applicant’s bond, or of the surety or
sureties thereon, he cannot immediately require the return of the property, but
if he does not so object, he may, at any time before the delivery of the
property to the applicant, require the return thereof, by filing with the court
where the action is pending a bond executed to the applicant, in double the
value of the property as stated in the applicant’s affidavit for the delivery
thereof to the applicant, if such delivery be adjudged, and for the payment of
such sum to him as may be recovered against the adverse party, and by serving a
copy of such bond on the applicant. (5a)
Section 6. Disposition of property by sheriff. – If
within five (5) days after the taking of the property by the sheriff, the
adverse party does not object to the sufficiency of the bond, or of the surety
or sureties thereon; or if the adverse party so objects and the court affirms
its approval of the applicant’s bond or approves a new bond, or if the adverse
party requires the return of the property but his bond is objected to and found
insufficient and he does not forthwith file an approved bond, the property
shall be delivered to the applicant. If for any reason the property is not
delivered to the applicant, the sheriff must return it to the adverse party.
Section 7. Proceedings where property claimed by third
person. – If the property taken is claimed by any person other than the party
against whom the writ of replevin had been issued or his agent, and such person
makes an affidavit of his title thereto, or right to the possession thereof,
stating the grounds therefor, and serves such affidavit upon the sheriff while
the latter has possession of the property and a copy thereof upon the applicant,
the sheriff shall not be bound to keep the property under replevin or deliver
it to the applicant unless the applicant or his agent, on demand of said
sheriff, shall file a bond approved by the court to indemnify the third-party
claimant in a sum not less than the value of the property under replevin as
provided in section 2 hereof.
In
case of disagreement as to such value, the court shall determine the same. No
claim for damages for the taking or keeping of the property may be enforced
against the bond unless the action therefor is filed within one hundred twenty
(120) days from the date of the filing of the bond. The sheriff shall not be
liable for damages, for the taking or keeping of such property, to any such
third-party claimant if such bond shall be filed. Nothing herein contained
shall prevent such claimant or any third person from vindicating his claim to
the property, or prevent the applicant from claiming damages against a
third-party claimant who filed a frivolous or plainly spurious claim, in the
same or a separate action.
When
the writ of replevin is issued in favor of the Republic of the Philippines, or
any officer duly representing it, the filing of such bond shall not be
required, and in case the sheriff is sued for damages as a result of the
replevin, he shall be represented by the Solicitor General, and if held liable
therefor, the actual damages adjudged by the court shall be paid by the
National Treasurer out of the funds to be appropriated for the purpose.
Section 8. Return of papers. – The sheriff must file
the order, with his proceedings indorsed thereon, with the court within ten
(10) days after taking the property mentioned therein.
Section 9. Judgment. – After trial of the issues, the
court shall determine who has the right of possession to and the value of the
property and shall render judgment in the alternative for the delivery thereof
to the party entitled to the same, or for its value in case delivery cannot be
made, and also for such damages as either party may prove, with costs.
Section 10. Judgment to include recovery against
sureties. – The amount, if any, to be awarded to any party upon any bond filed
in accordance with the provisions of this Rule, shall be claimed, ascertained,
and granted under the same procedure as prescribed in section 20 of Rule 57.
RULE 61
SUPPORT PENDENTE LITE
Section 1. Application. – At the commencement of the
proper action or proceeding, or at any time prior to the judgment or final
order, a verified application for support pendente lite may be filed by any
party stating the grounds for the claim and the financial conditions of both
parties, and accompanied by affidavits, depositions or other authentic documents
in support thereof.
Section 2. Comment. – A copy of the application and
all supporting documents shall be served upon the adverse party, who shall have
five (5) days to comment thereon unless a different period is fixed by the
court upon his motion. The comment shall be verified and shall be accompanied
by affidavits, depositions or other authentic documents in support thereof.
Section 3. Hearing. – After the comment is filed, or
after the expiration of the period for its filing, the application shall be set
for hearing not more than three (3) days thereafter. The facts in issue shall
be proved in the same manner as is provided for evidence on motions.
Section 4. Order. – The court shall determine
provisionally the pertinent facts, and shall render such orders as justice and
equity may require, having due regard to the probable outcome of the case and
such other circumstances as may aid in the proper resolution of the question
involved. If the application is granted, the court shall fix the amount of
money to be provisionally paid or such other forms of support as should be provided,
taking into account the necessities of the applicant and the resources or means
of the adverse party, and the terms of payment or mode for providing the
support. If the application is denied, the principal case shall be tried and
decided as early as possible.
Section 5. Enforcement of order. – If the adverse
party fails to comply with an order granting support pendente lite, the court
shall, motu proprio or upon motion, issue an order of execution against him,
without prejudice to his liability for contempt. (6a)
When
the person ordered to give support pendente lite refuses or fails to do so, any
third person who furnished that support to the applicant may, after due notice
and hearing in the same case, obtain a writ of execution to enforce his right
of reimbursement against the person ordered to provide such support.
Section 6. Support in criminal cases. – In criminal
actions where the civil liability includes support for the offspring as a
consequence of the crime and the civil aspect thereof has not been waived,
reserved or instituted prior to its filing, the accused may be ordered to
provide support pendente lite to the child born to the offended party allegedly
because of the crime. The application therefor may be filed successively by the
offended party, her parents, grandparents or guardian and the State in the
corresponding criminal case during its pendency, in accordance with the
procedure established under this Rule. (n)
Section 7. Restitution. – When the judgment or final
order of the court finds that the person who has been providing support
pendente lite is not liable therefor, it shall order the recipient thereof to
return to the former the amounts already paid with legal interest from the
dates of actual payment, without prejudice to the right of the recipient to
obtain reimbursement in a separate action from the person legally obliged to
give the support. Should the recipient fail to reimburse said amounts, the
person who provided the same may likewise seek reimbursement thereof in a separate
action from the person legally obliged to give such support. (n)
SPECIAL CIVIL ACTIONS
RULE 62
INTERPLEADER
Section 1. When interpleader proper. – Whenever
conflicting claims upon the same subject matter are or may be made against a
person who claims no interest whatever in the subject matter, or an interest
which in whole or in part is not disputed by the claimants, he may bring an
action against the conflicting claimants to compel them to interplead and
litigate their several claims among themselves.
Section 2. Order. – Upon the filing of the complaint,
the court shall issue an order requiring the conflicting claimants to
interplead with one another. If the interests of justice so require, the court
may direct in such order that the subject matter be paid or delivered to the
court.
Section 3. Summons. – Summons shall be served upon the
conflicting claimants, together with a copy of the complaint and order.
Section 4. Motion to dismiss. – Within the time for
filing an answer, each claimant may file a motion to dismiss on the ground of
impropriety of the interpleader action or on other appropriate grounds
specified in Rule 16. The period to file the answer shall be tolled and if the
motion is denied, the movant may file his answer within the remaining period,
but which shall not be less than five (5) days in any event, reckoned from
notice of denial. (n)
Section 5. Answer and other pleadings. – Each claimant
shall file his answer setting forth his claim within fifteen (15) days from
service of the summons upon him, serving a copy thereof upon each of the other
conflicting claimants who may file their reply thereto as provided by these
Rules. If any claimant fails to plead within the time herein fixed, the court
may, on motion, declare him in default and thereafter render judgment barring
him from any claim in respect to the subject matter. The parties in an
interpleader action may file counterclaims, cross-claims, third-party
complaints and responsive pleadings thereto, as provided by these Rules.
Section 6. Determination. – After the pleadings of the
conflicting claimants have been filed, and pre-trial has been conducted in
accordance with the Rules, the court shall proceed to determine their
respective rights and adjudicate their several claims.
Section 7. Docket and other lawful fees, costs and
litigation expenses as liens. – The docket and other lawful fees paid by the
party who filed a complaint under this Rule, as well as the costs and
litigation expenses, shall constitute a lien or charge upon the subject matter
of the action, unless the court shall order otherwise.
RULE 63
DECLARATORY RELIEF AND
SIMILAR REMEDIES
Section 1. Who may file petition. – Any person
interested under a deed, will, contract or other written instrument, whose
rights are affected by a statute, executive order or regulation, ordinance, or
any other governmental regulation may, before breach or violation thereof,
bring an action in the appropriate Regional Trial Court to determine any
question of construction or validity arising, and for a declaration of his
rights or duties, thereunder. An action for the reformation of an instrument,
to quiet title to real property or remove clouds therefrom, or to consolidate
ownership under Article 1607 of the Civil Code, may be brought under this Rule.
(1a, R64; En Banc Resolution, February 17, 1998.)
Section 2. Parties. – All persons who have or claim
any interest which would be affected by the declaration shall be made parties;
and no declaration shall, except as otherwise provided in these Rules,
prejudice the rights of persons not parties to the action.
Section 3. Notice on Solicitor General. – In any
action which involves the validity of a statute, executive order or regulation,
or any other governmental regulation, the Solicitor General shall be notified
by the party assailing the same and shall be entitled to be heard upon such
question.
Section 4. Local government ordinances. – In any
action involving the validity of a local government ordinance, the
corresponding prosecutor or attorney of the local governmental unit involved
shall be similarly notified and entitled to be heard. If such ordinance is
alleged to be unconstitutional, the Solicitor General shall also be notified
and entitled to be heard.
Section 5. Court action discretionary. – Except in
actions falling under the second paragraph of section 1 of this Rule, the
court, motu proprio or upon motion, may refuse to exercise the power to declare
rights and to construe instruments in any case where a decision would not
terminate the uncertainty or controversy which gave rise to the action, or in
any case where the declaration or construction is not necessary and proper
under the circumstances.
Section 6. Conversion into ordinary action. – If
before the final termination of the case, a breach or violation of an
instrument or a statute, executive order or regulation, ordinance, or any other
governmental regulation should take place, the action may thereupon be
converted into an ordinary action, and the parties shall be allowed to file
such pleadings as may be necessary or proper.
RULE 64
REVIEW OF JUDGMENTS AND
FINAL ORDERS OR RESOLUTIONS OF THE COMMISSION ON ELECTIONS AND THE COMMISSION
ON AUDIT
Section 1. Scope. – This Rule shall govern the review
of judgments and final orders or resolutions of the Commission on Elections and
the Commission on Audit. (n)
Section 2. Mode of review. – A judgment or final order
or resolution of the Commission on Elections and the Commission on Audit may be
brought by the aggrieved party to the Supreme Court on certiorari under Rule
65, except as hereinafter provided. (n)
Section 3. Time to file petition. – The petition shall
be filed within thirty (30) days from notice of the judgment or final order or
resolution sought to be reviewed. The filing of a motion for new trial or
reconsideration of said judgment or final order or resolution, if allowed under
the procedural rules of the Commission concerned, shall interrupt the period
herein fixed. If the motion is denied, the aggrieved party may file the
petition within the remaining period, but which shall not be less than five (5)
days in any event, reckoned from notice of denial. (n)
Section 4. Docket and other lawful fees. – Upon the
filing of the petition, the petitioner shall pay to the clerk of court the
docket and other lawful fees and deposit the amount of P500.00 for costs. (n)
Section 5. Form and contents of petition. – The
petition shall be verified and filed in eighteen (18) legible copies. The
petition shall name the aggrieved party as petitioner and shall join as
respondents the Commission concerned and the person or persons interested in
sustaining the judgment, final order or resolution a quo. The petition shall
state the facts with certainty, present clearly the issues involved, set forth
the grounds and brief arguments relied upon for review, and pray for judgment
annulling or modifying the questioned judgment, final order or resolution.
Findings of fact of the Commission supported by substantial evidence shall be
final and non-reviewable. The petition shall be accompanied by a clearly
legible duplicate original or certified true copy of the judgment, final order
or resolution subject thereof, together with certified true copies of such
material portions of the record as are referred to therein and other documents
relevant and pertinent thereto. The requisite number of copies of the petition
shall contain plain copies of all documents attached to the original copy of
said petition. The petition shall state the specific material dates showing
that it was filed within the period fixed herein, and shall contain a sworn
certification against forum shopping as provided in the third paragraph of
section 3, Rule 46. The petition shall further be accompanied by proof of
service of a copy thereof on the Commission concerned and on the adverse party,
and of the timely payment of docket and other lawful fees. The failure of
petitioner to comply with any of the foregoing requirements shall be sufficient
ground for the dismissal of the petition. (n)
Section 6. Order to comment. – If the Supreme Court
finds the petition sufficient in form and substance, it shall order the
respondents to file their comments on the petition within ten (10) days from
notice thereof; otherwise, the Court may dismiss the petition outright. The
Court may also dismiss the petition if it was filed manifestly for delay, or
the questions raised are too unsubstantial to warrant further proceedings. (n)
Section 7. Comments of respondents. – The comments of
the respondents shall be filed in eighteen (18) legible copies. The original
shall be accompanied by certified true copies of such material portions of the
record as are referred to therein together with other supporting papers. The
requisite number of copies of the comments shall contain plain copies of all
documents attached to the original and a copy thereof shall be served on the
petitioner. No other pleading may be filed by any party unless required or
allowed by the Court. (n)
Section 8. Effect of filing. – The filing of a
petition for certiorari shall not stay the execution of the judgment or final
order or resolution sought to be reviewed, unless the Supreme Court shall
direct otherwise upon such terms as it may deem just. (n) Section 9. Submission
for decision. – Unless the Court sets the case for oral argument, or requires
the parties to submit memoranda, the case shall be deemed submitted for
decision upon the filing of the comments on the petition, or of such other
pleadings or papers as may be required or allowed, or the expiration of the
period to do so.
RULE 65
CERTIORARI, PROHIBITION
AND MANDAMUS
Section 1. Petition for certiorari. – When any
tribunal, board or officer exercising judicial or quasijudicial functions has
acted without or in excess of its or his jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction, and there is no appeal,
or any plain, speedy, and adequate remedy in the ordinary course of law, a
person aggrieved thereby may file a verified petition in the proper court,
alleging the facts with certainty and praying that judgment be rendered
annulling or modifying the proceedings of such tribunal, board or officer, and
granting such incidental reliefs as law and justice may require. The petition
shall be accompanied by a certified true copy of the judgment, order or
resolution subject thereof, copies of all pleadings and documents relevant and
pertinent thereto, and a sworn certification of non-forum shopping as provided
in the third paragraph of section 3, Rule 46.
Section 2. Petition for prohibition. – When the
proceedings of any tribunal, corporation, board, officer or person, whether
exercising judicial, quasi-judicial or ministerial functions, are without or in
excess of its or his jurisdiction, or with grave abuse of discretion amounting
to lack or excess of jurisdiction, and there is no appeal or any other plain,
speedy, and adequate remedy in the ordinary course of law, a person aggrieved
thereby may file a verified petition in the proper court, alleging the facts
with certainty and praying that judgment be rendered commanding the respondent
to desist from further proceedings in the action or matter specified therein,
or otherwise granting such incidental reliefs as law and justice may require.
The petition shall likewise be accompanied by a certified true copy of the
judgment, order or resolution subject thereof, copies of all pleadings and
documents relevant and pertinent thereto, and a sworn certification of
non-forum shopping as provided in the third paragraph of section 3, Rule 46.
Section 3. Petition for mandamus. – When any tribunal,
corporation, board, officer or person unlawfully neglects the performance of an
act which the law specifically enjoins as a duty resulting from an office,
trust, or station, or unlawfully excludes another from the use and enjoyment of
a right or office to which such other is entitled, and there is no other plain,
speedy and adequate remedy in the ordinary course of law, the person aggrieved
thereby may file a verified petition in the proper court, alleging the facts
with certainty and praying that judgment be rendered commanding the respondent,
immediately or at some other time to be specified by the court, to do the act
required to be done to protect the rights of the petitioner, and to pay the
damages sustained by the petitioner by reason of the wrongful acts of the
respondent. The petition shall also contain a sworn certification of non-forum
shopping as provided in the third paragraph of section 3, Rule 46. (3a)
Section 4. When and where to file the petition. – The
petition shall be filed not later than sixty (60) days from notice of the judgment,
order or resolution. In case a motion for reconsideration or new trial is
timely filed, whether such motion is required or not, the petition shall be
filed not later than sixty (60) days counted from the notice of the denial of
the motion. If the petition relates to an act or an omission of a municipal
trial court or of a corporation, a board, an officer or a person, it shall be
filed with the Regional Trial Court exercising jurisdiction over the
territorial area as defined by the Supreme Court. It may also be filed with the
Court of Appeals or with the Sandiganbayan, whether or not the same is in aid
of the court’s appellate jurisdiction. If the petition involves an act or an
omission of a quasi-judicial agency, unless otherwise provided by law or these
rules, the petition shall be filed with and be cognizable only by the Court of
Appeals. In election cases involving an act or an omission of a municipal or a
regional trial court, the petition shall be filed exclusively with the
Commission on Elections, in aid of its appellate jurisdiction. (As amended by
A.M. No. 07-7-12-SC, December 12, 2007.)
Section 5. Respondents and costs in certain cases. –
When the petition filed relates to the acts or omissions of a judge, court,
quasi-judicial agency, tribunal, corporation, board, officer or person, the
petitioner shall join, as private respondent or respondents with such public
respondent or respondents, the person or persons interested in sustaining the
proceedings in the court; and it shall be the duty of such private respondents
to appear and defend, both in his or their own behalf and in behalf of the
public respondent or respondents affected by the proceedings, and the costs
awarded in such proceedings in favor of the petitioner shall be against the
private respondents only, and not against the judge, court, quasi-judicial
agency, tribunal, corporation, board, officer or person impleaded as public
respondent or respondents. Unless otherwise specifically directed by the court
where the petition is pending, the public respondents shall not appear in or
file an answer or comment to the petition or any pleading therein. If the case
is elevated to a higher court by either party, the public respondents shall be
included therein as nominal parties. However, unless otherwise specifically
directed by the court, they shall not appear or participate in the proceedings
therein.
Section 6. Order to comment. – If the petition is
sufficient in form and substance to justify such process, the court shall issue
an order requiring the respondent or respondents to comment on the petition
within ten (10) days from receipt of a copy thereof. Such order shall be served
on the respondents in such manner as the court may direct, together with a copy
of the petition and any annexes thereto. In petitions for certiorari before the
Supreme Court and the Court of Appeals, the provisions of section 2, Rule 56,
shall be observed. Before giving due course thereto, the court may require the
respondents to file their comment to, and not a motion to dismiss, the
petition. Thereafter, the court may require the filing of a reply and such
other responsive or other pleadings as it may deem necessary and proper.
Section 7. Expediting proceedings; injunctive relief.
– The court in which the petition is filed may issue orders expediting the
proceedings, and it may also grant a temporary restraining order or a writ of
preliminary injunction for the preservation of the rights of the parties
pending such proceedings. The petition shall not interrupt the course of the
principal case, unless a temporary restraining order or a writ of preliminary
injunction has been issued, enjoining the public respondent from further
proceeding in the case.
The
public respondent shall proceed with the principal case within ten (10) days
from the filing of a petition for certiorari with a higher court or tribunal,
absent a temporary restraining order or a preliminary injunction, or upon its
expiration. Failure of the public respondent to proceed with the principal case
may be a ground for an administrative charge. (As amended by A.M. No.
07-7-12-SC, December 12, 2007.)
Section 8. Proceedings after comment is filed. – After
the comment or other pleadings required by the court are filed, or the time for
the filing thereof has expired, the court may hear the case or require the
parties to submit memoranda. If, after such hearing or filing of memoranda or
upon the expiration of the period for filing, the court finds that the
allegations of the petition are true, it shall render judgment for such relief
to which the petitioner is entitled. However, the court may dismiss the petition
if it finds the same patently without merit or prosecuted manifestly for delay,
or if the questions raised therein are too unsubstantial to require
consideration. In such event, the court may award in favor of the respondent
treble costs solidarily against the petitioner and counsel, in addition to
subjecting counsel to administrative sanctions under Rules 139 and 139-B of the
Rules of Court. The Court may impose motu proprio, based on res ipsa loquitur,
other disciplinary sanctions or measures on erring lawyers for patently
dilatory and unmeritorious petitions for certiorari. (As amended by A.M. No.
07-7-12-SC, December 12, 2007.)
Section 9. Service and enforcement of order or
judgment. – A certified copy of the judgment rendered in accordance with the
last preceding section shall be served upon the court, quasi-judicial agency,
tribunal, corporation, board, officer or person concerned in such manner as the
court may direct, and disobedience thereto shall be punished as contempt. An
execution may issue for any damages or costs awarded in accordance with section
1 of Rule 39.
RULE 66
QUO WARRANTO
Section 1. Action by Government against individuals. –
An action for the usurpation of a public office, position or franchise may be
commenced by a verified petition brought in the name of the Republic of the
Philippines against:
(a)
A person who usurps, intrudes into, or unlawfully holds or exercises a public
office, position or franchise;
(b)
A public officer who does or suffers an act which, by the provision of law,
constitutes a ground for the forfeiture of his office; or
(c)
An association which acts as a corporation within the Philippines without being
legally incorporated or without lawful authority so to act.
Section 2. When Solicitor General or public prosecutor
must commence action. – The Solicitor General or a public prosecutor, when
directed by the President of the Philippines, or when upon complaint or
otherwise he has good reason to believe that any case specified in the
preceding section can be established by proof, must commence such action.
Section 3. When Solicitor General or public prosecutor
may commence action with permission of court. – The Solicitor General or a
public prosecutor may, with the permission of the court in which the action is
to be commenced, bring such an action at the request and upon the relation of
another person; but in such case the officer bringing it may first require an
indemnity for the expenses and costs of the action in an amount approved by and
to be deposited in the court by the person at whose request and upon whose relation
the same is brought.
Section 4. When hearing had on application for
permission to commence action. – Upon application for permission to commence
such action in accordance with the next preceding section, the court shall
direct that notice be given to the respondent so that he may be heard in
opposition thereto; and if permission is granted, the court shall issue an order
to that effect, copies of which shall be served on all interested parties, and
the petition shall then be filed within the period ordered by the court. (5a)
Section 5. When an individual may commence such an
action. – A person claiming to be entitled to a public office or position
usurped or unlawfully held or exercised by another may bring an action therefor
in his own name. (6)
Section 6. Parties and contents of petition against
usurpation. – When the action is against a person for usurping a public office,
position or franchise, the petition shall set forth the name of the person who
claims to be entitled thereto, if any, with an averment of his right to the
same and that the respondent is unlawfully in possession thereof. All persons
who claim to be entitled to the public office, position or franchise may be
made parties, and their respective rights to such public office, position or
franchise determined, in the same action. (7a)
Section 7. Venue. – An action under the preceding six
sections can be brought only in the Supreme Court, the Court of Appeals, or in
the Regional Trial Court exercising jurisdiction over the territorial area
where the respondent or any of the respondents resides, but when the Solicitor
General commences the action, it may be brought in a Regional Trial Court in
the City of Manila, in the Court of Appeals, or in the Supreme Court. (8a)
Section 8. Period for pleadings and proceedings may be
reduced; action given precedence. – The court may reduce the period provided by
these Rules for filing pleadings and for all other proceedings in the action in
order to secure the most expeditious determination of the matters involved
therein consistent with the rights of the parties. Such action may be given
precedence over any other civil matter pending in the court. (9a)
Section 9. Judgment where usurpation found. – When the
respondent is found guilty of usurping, intruding into, or unlawfully holding
or exercising a public office, position or franchise, judgment shall be
rendered that such respondent be ousted and altogether excluded therefrom, and
that the petitioner or relator, as the case may be, recover his costs. Such
further judgment may be rendered determining the respective rights in and to
the public office, position or franchise of all the parties to the action as
justice requires. (10a)
Section 10. Rights of persons adjudged entitled to
public office; delivery of books and papers; damages. – If judgment be rendered
in favor of the person averred in the complaint to be entitled to the public
office he may, after taking the oath of office and executing any official bond
required by law, take upon himself the execution of the office, and may
immediately thereafter demand of the respondent all the books and papers in the
respondent’s custody or control appertaining to the office to which the
judgment relates. If the respondent refuses or neglects to deliver any book or
paper pursuant to such demand, he may be punished for contempt as having
disobeyed a lawful order of the court. The person adjudged entitled to the
office may also bring action against the respondent to recover the damages
sustained by such person by reason of the usurpation. (15a)
Section 11. Limitations. – Nothing contained in this
Rule shall be construed to authorize an action against a public officer or
employee for his ouster from office unless the same be commenced within one (1)
year after the cause of such ouster, or the right of the petitioner to hold
such office or position, arose; nor to authorize an action for damages in
accordance with the provisions of the next preceding section unless the same be
commenced within one (1) year after the entry of the judgment establishing the
petitioner’s right to the office in question. (16a)
Section 12. Judgment for costs. – In an action brought
in accordance with the provisions of this Rule, the court may render judgment
for costs against either the petitioner, the relator, or the respondent, or the
person or persons claiming to be a corporation, or may apportion the costs, as
justice requires.
RULE 67
EXPROPRIATION
Section 1. The complaint. – The right of eminent
domain shall be exercised by the filing of a verified complaint which shall
state with certainty the right and purpose of expropriation, describe the real
or personal property sought to be expropriated, and join as defendants all
persons owning or claiming to own, or occupying, any part thereof or interest
therein, showing, so far as practicable, the separate interest of each
defendant. If the title to any property sought to be expropriated appears to be
in the Republic of the Philippines, although occupied by private individuals,
or if the title is otherwise obscure or doubtful so that the plaintiff cannot
with accuracy or certainty specify who are the real owners, averment to that
effect shall be made in the complaint. (1a)
Section 2. Entry of plaintiff upon depositing value
with authorized government depositary. – Upon the filing of the complaint or at
any time thereafter and after due notice to the defendant, the plaintiff shall
have the right to take or enter upon the possession of the real property
involved if he deposits with the authorized government depositary an amount
equivalent to the assessed value of the property for purposes of taxation to be
held by such bank subject to the orders of the court. Such deposit shall be in
money, unless in lieu thereof the court authorizes the deposit of a certificate
of deposit of a government bank of the Republic of the Philippines payable on
demand to the authorized government depositary. If personal property is
involved, its value shall be provisionally ascertained and the amount to be
deposited shall be promptly fixed by the court. After such deposit is made the
court shall order the sheriff or other proper officer to forthwith place the
plaintiff in possession of the property involved and promptly submit a report
thereof to the court with service of copies to the parties. (2a)
Section 3. Defenses and objections. – If a defendant
has no objection or defense to the action or the taking of his property, he may
file and serve a notice of appearance and a manifestation to that effect,
specifically designating or identifying the property in which he claims to be
interested, within the time stated in the summons. Thereafter, he shall be
entitled to notice of all proceedings affecting the same. If a defendant has
any objection to the filing of or the allegations in the complaint, or any
objection or defense to the taking of his property, he shall serve his answer
within the time stated in the summons. The answer shall specifically designate
or identify the property in which he claims to have an interest, state the
nature and extent of the interest claimed, and adduce all his objections and
defenses to the taking of his property. No counterclaim, cross-claim or
third-party complaint shall be alleged or allowed in the answer or any
subsequent pleading. A defendant waives all defenses and objections not so
alleged but the court, in the interest of justice, may permit amendments to the
answer to be made not later than ten (10) days from the filing thereof.
However, at the trial of the issue of just compensation, whether or not a
defendant has previously appeared or answered, he may present evidence as to
the amount of the compensation to be paid for his property, and he may share in
the distribution of the award. (n)
Section 4. Order of expropriation. – If the objections
to and the defenses against the right of the plaintiff to expropriate the
property are overruled, or when no party appears to defend as required by this
Rule, the court may issue an order of expropriation declaring that the
plaintiff has a lawful right to take the property sought to be expropriated,
for the public use or purpose described in the complaint, upon the payment of
just compensation to be determined as of the date of the taking of the property
or the filing of the complaint, whichever came first. A final order sustaining
the right to expropriate the property may be appealed by any party aggrieved
thereby. Such appeal, however, shall not prevent the court from determining the
just compensation to be paid. After the rendition of such an order, the
plaintiff shall not be permitted to dismiss or discontinue the proceeding
except on such terms as the court deems just and equitable. (4a)
Section 5. Ascertainment of compensation. – Upon the
rendition of the order of expropriation, the court shall appoint not more than
three (3) competent and disinterested persons as commissioners to ascertain and
report to the court the just compensation for the property sought to be taken.
The order of appointment shall designate the time and place of the first
session of the hearing to be held by the commissioners and specify the time
within which their report shall be submitted to the court. Copies of the order
shall be served on the parties. Objections to the appointment of any of the
commissioners shall be filed with the court within ten (10) days from service,
and shall be resolved within thirty (30) days after all the commissioners shall
have received copies of the objections. (5a)
Section 6. Proceedings by commissioners. – Before
entering upon the performance of their duties, the commissioners shall take and
subscribe an oath that they will faithfully perform their duties as
commissioners, which oath shall be filed in court with the other proceedings in
the case. Evidence may be introduced by either party before the commissioners
who are authorized to administer oaths on hearings before them, and the
commissioners shall, unless the parties consent to the contrary, after due
notice to the parties to attend, view and examine the property sought to be
expropriated and its surroundings, and may measure the same, after which either
party may, by himself or counsel, argue the case. The commissioners shall
assess the consequential damages to the property not taken and deduct from such
consequential damages the consequential benefits to be derived by the owner
from the public use or purpose of the property taken, the operation of its
franchise by the corporation or the carrying on of the business of the
corporation or person taking the property. But in no case shall the
consequential benefits assessed exceed the consequential damages assessed, or
the owner be deprived of the actual value of his property so taken. (6a)
Section 7. Report by commissioners and judgment
thereupon. – The court may order the commissioners to report when any
particular portion of the real estate shall have been passed upon by them, and
may render judgment upon such partial report, and direct the commissioners to
proceed with their work as to subsequent portions of the property sought to be
expropriated, and may from time to time so deal with such property. The
commissioners shall make a full and accurate report to the court of all their
proceedings, and such proceedings shall not be effectual until the court shall
have accepted their report and rendered judgment in accordance with their
recommendations. Except as otherwise expressly ordered by the court, such
report shall be filed within sixty (60) days from the date the commissioners
were notified of their appointment, which time may be extended in the
discretion of the court. Upon the filing of such report, the clerk of the court
shall serve copies thereof on all interested parties, with notice that they are
allowed ten (10) days within which to file objections to the findings of the
report, if they so desire. (7a)
Section 8. Action upon commissioners’ report. – Upon
the expiration of the period of ten (10) days referred to in the preceding
section, or even before the expiration of such period but after all the
interested parties have filed their objections to the report or their statement
of agreement therewith, the court may, after hearing, accept the report and
render judgment in accordance therewith; or, for cause shown, it may recommit
the same to the commissioners for further report of facts; or it may set aside
the report and appoint new commissioners; or it may accept the report in part
and reject it in part; and it may make such order or render such judgment as
shall secure to the plaintiff the property essential to the exercise of his
right of expropriation, and to the defendant just compensation for the property
so taken. (8a)
Section 9. Uncertain ownership; conflicting claims. –
If the ownership of the property taken is uncertain, or there are conflicting
claims to any part thereof, the court may order any sum or sums awarded as
compensation for the property to be paid to the court for the benefit of the
person adjudged in the same proceeding to be entitled thereto. But the judgment
shall require the payment of the sum or sums awarded to either the defendant or
the court before the plaintiff can enter upon the property, or retain it for
the public use or purpose if entry has already been made. (9a)
Section 10. Rights of plaintiff after judgment and
payment. – Upon payment by the plaintiff to the defendant of the compensation
fixed by the judgment, with legal interest thereon from the taking of the
possession of the property, or after tender to him of the amount so fixed and
payment of the costs, the plaintiff shall have the right to enter upon the
property expropriated and to appropriate it for the public use or purpose
defined in the judgment, or to retain it should he have taken immediate
possession thereof under the provisions of section 2 hereof. If the defendant
and his counsel absent themselves from the court, or decline to receive the
amount tendered, the same shall be ordered to be deposited in court and such
deposit shall have the same effect as actual payment thereof to the defendant
or the person ultimately adjudged entitled thereto. (10a)
Section 11. Entry not delayed by appeal; effect of
reversal. – The right of the plaintiff to enter upon the property of the
defendant and appropriate the same for public use or purpose shall not be
delayed by an appeal from the judgment. But if the appellate court determines
that plaintiff has no right of expropriation, judgment shall be rendered
ordering the Regional Trial Court to forthwith enforce the restoration to the
defendant of the possession of the property, and to determine the damages which
the defendant sustained and may recover by reason of the possession taken by
the plaintiff. (11a)
Section 12. Costs, by whom paid. – The fees of the
commissioners shall be taxed as a part of the costs of the proceedings. All
costs, except those of rival claimants litigating their claims, shall be paid
by the plaintiff, unless an appeal is taken by the owner of the property and
the judgment is affirmed, in which event the costs of the appeal shall be paid
by the owner. (12a)
Section 13. Recording judgment, and its effect. – The
judgment entered in expropriation proceedings shall state definitely, by an
adequate description, the particular property or interest therein expropriated,
and the nature of the public use or purpose for which it is expropriated. When
real estate is expropriated, a certified copy of such judgment shall be
recorded in the registry of deeds of the place in which the property is
situated, and its effect shall be to vest in the plaintiff the title to the
real estate so described for such public use or purpose. (13a)
Section 14. Power of guardian in such proceedings. –
The guardian or guardian ad litem of a minor or of a person judicially declared
to be incompetent may, with the approval of the court first had, do and perform
on behalf of his ward any act, matter, or thing respecting the expropriation
for public use or purpose of property belonging to such minor or person
judicially declared to be incompetent, which such minor or person judicially
declared to be incompetent could do in such proceedings if he were of age or
competent. (14a)
RULE 68
FORECLOSURE OF REAL
ESTATE MORTGAGE
Section 1. Complaint in action for foreclosure. – In
an action for the foreclosure of a mortgage or other encumbrance upon real
estate, the complaint shall set forth the date and due execution of the
mortgage; its assignments, if any; the names and residences of the mortgagor
and the mortgagee; a description of the mortgaged property; a statement of the
date of the note or other documentary evidence of the obligation secured by the
mortgage, the amount claimed to be unpaid thereon; and the names and residences
of all persons having or claiming an interest in the property subordinate in
right to that of the holder of the mortgage, all of whom shall be made
defendants in the action. (1a)
Section 2. Judgment on foreclosure for payment or
sale. – If upon the trial in such action the court shall find the facts set
forth in the complaint to be true, it shall ascertain the amount due to the
plaintiff upon the mortgage debt or obligation, including interest and other
charges as approved by the court, and costs, and shall render judgment for the
sum so found due and order that the same be paid to the court or to the
judgment obligee within a period of not less than ninety (90) days nor more
than one hundred twenty (120) days from the entry of judgment, and that in
default of such payment the property shall be sold at public auction to satisfy
the judgment. (2a)
Section 3. Sale of mortgaged property; effect. – When
the defendant, after being directed to do so as provided in the next preceding
section, fails to pay the amount of the judgment within the period specified
therein, the court, upon motion, shall order the property to be sold in the
manner and under the provisions of Rule 39 and other regulations governing
sales of real estate under execution. Such sale shall not affect the rights of
persons holding prior encumbrances upon the property or a part thereof, and
when confirmed by an order of the court, also upon motion, it shall operate to
divest the rights in the property of all the parties to the action and to vest
their rights in the purchaser, subject to such rights of redemption as may be
allowed by law. Upon the finality of the order of confirmation or upon the
expiration of the period of redemption when allowed by law, the purchaser at
the auction sale or last redemptioner, if any, shall be entitled to the
possession of the property unless a third party is actually holding the same
adversely to the judgment obligor. The said purchaser or last redemptioner may
secure a writ of possession, upon motion, from the court which ordered the
foreclosure. (3a)
Section 4. Disposition of proceeds of sale. – The
amount realized from the foreclosure sale of the mortgaged property shall,
after deducting the costs of the sale, be paid to the person foreclosing the
mortgage, and when there shall be any balance or residue, after paying off the
mortgage debt due, the same shall be paid to junior encumbrancers in the order
of their priority, to be ascertained by the court, or if there be no such
encumbrancers or there be a balance or residue after payment to them, then to
the mortgagor or his duly authorized agent, or to the person entitled to it.
(4a)
Section 5. How sale to proceed in case the debt is not
all due. – If the debt for which the mortgage or encumbrance was held is not
all due as provided in the judgment, as soon as a sufficient portion of the
property has been sold to pay the total amount and the costs due, the sale
shall terminate; and afterwards, as often as more becomes due for principal or
interest and other valid charges, the court may, on motion, order more to be
sold. But if the property cannot be sold in portions without prejudice to the
parties, the whole shall be ordered to be sold in the first instance, and the
entire debt and costs shall be paid, if the proceeds of the sale be sufficient
therefor, there being a rebate of interest where such rebate is proper. (5a)
Section 6. Deficiency judgment. – If upon the sale of
any real property as provided in the next preceding section there be a balance
due to the plaintiff after applying the proceeds of the sale, the court, upon
motion, shall render judgment against the defendant for any such balance for
which, by the record of the case, he may be personally liable to the plaintiff,
upon which execution may issue immediately if the balance is all due at the
time of the rendition of the judgment; otherwise, the plaintiff shall be
entitled to execution at such time as the balance remaining becomes due under
the terms of the original contract, which time shall be stated in the judgment.
(6a)
Section 7. Registration. – A certified copy of the
final order of the court confirming the sale shall be registered in the
registry of deeds. If no right of redemption exists, the certificate of title
in the name of the mortgagor shall be cancelled, and a new one issued in the
name of the purchaser. Where a right of redemption exists, the certificate of
title in the name of the mortgagor shall not be cancelled, but the certificate
of sale and the order confirming the sale shall be registered and a brief
memorandum thereof made by the registrar of deeds upon the certificate of
title. In the event the property is redeemed, the deed of redemption shall be
registered with the registry of deeds, and a brief memorandum thereof shall be
made by the registrar of deeds on said certificate of title. If the property is
not redeemed, the final deed of sale executed by the sheriff in favor of the
purchaser at the foreclosure sale shall be registered with the registry of
deeds; whereupon the certificate of title in the name of the mortgagor shall be
cancelled and a new one issued in the name of the purchaser. (n)
Section 8. Applicability of other provisions. – The
provisions of sections 31, 32 and 34 of Rule 39 shall be applicable to the
judicial foreclosure of real estate mortgages under this Rule insofar as the
former are not inconsistent with or may serve to supplement the provisions of
the latter. (8a)
RULE 69
PARTITION
Section 1. Complaint in action for partition of real
estate. – A person having the right to compel the partition of real estate may
do so as provided in this Rule, setting forth in his complaint the nature and
extent of his title and an adequate description of the real estate of which
partition is demanded and joining as defendants all other persons interested in
the property.
Section 2. Order for partition, and partition by
agreement thereunder. – If after the trial the court finds that the plaintiff
has the right thereto, it shall order the partition of the real estate among
all the parties in interest. Thereupon the parties may, if they are able to
agree, make the partition among themselves by proper instruments of conveyance,
and the court shall confirm the partition so agreed upon by all the parties,
and such partition, together with the order of the court confirming the same,
shall be recorded in the registry of deeds of the place in which the property
is situated. (2a)
A
final order decreeing partition and accounting may be appealed by any party
aggrieved thereby. (n)
Section 3. Commissioners to make partition when
parties fail to agree. – If the parties are unable to agree upon the partition,
the court shall appoint not more than three (3) competent and disinterested
persons as commissioners to make the partition, commanding them to set off to
the plaintiff and to each party in interest such part and proportion of the
property as the court shall direct. (3a)
Section 4. Oath and duties of commissioners. – Before
making such partition, the commissioners shall take and subscribe an oath that
they will faithfully perform their duties as commissioners, which oath shall be
filed in court with the other proceedings in the case. In making the partition,
the commissioners shall view and examine the real estate, after due notice to
the parties to attend at such view and examination, and shall hear the parties
as to their preference in the portion of the property to be set apart to them
and the comparative value thereof, and shall set apart the same to the parties
in lots or parcels as will be most advantageous and equitable, having due
regard to the improvements, situation and quality of the different parts
thereof. (4a)
Section 5. Assignment or sale of real estate by commissioners.
– When it is made to appear to the commissioners that the real estate, or a
portion thereof, cannot be divided without prejudice to the interests of the
parties, the court may order it assigned to one of the parties willing to take
the same, provided he pays to the other parties such amounts as the
commissioners deem equitable, unless one of the interested parties asks that
the property be sold instead of being so assigned, in which case the court
shall order the commissioners to sell the real estate at public sale under such
conditions and within such time as the court may determine. (5a)
Section 6. Report of commissioners; proceedings not
binding until confirmed. – The commissioners shall make a full and accurate
report to the court of all their proceedings as to the partition, or the
assignment of real estate to one of the parties, or the sale of the same. Upon
the filing of such report, the clerk of court shall serve copies thereof on all
the interested parties with notice that they are allowed ten (10) days within
which to file objections to the findings of the report, if they so desire. No
proceeding had before or conducted by the commissioners shall pass the title to
the property or bind the parties until the court shall have accepted the report
of the commissioners and rendered judgment thereon.
Section 7. Action of the court upon commissioners’
report. – Upon the expiration of the period of ten (10) days referred to in the
preceding section, or even before the expiration of such period but after the
interested parties have filed their objections to the report or their statement
of agreement therewith, the court may, upon hearing, accept the report and
render judgment in accordance therewith; or, for cause shown, recommit the same
to the commissioners for further report of facts; or set aside the report and
appoint new commissioners; or accept the report in part and reject it in part;
and may make such order and render such judgment as shall effectuate a fair and
just partition of the real estate, or of its value, if assigned or sold as
above provided, between the several owners thereof. (7)
Section 8. Accounting for rent and profits in action
for partition. – In an action for partition in accordance with this Rule, a
party shall recover from another his just share of rents and profits received
by such other party from the real estate in question, and the judgment shall
include an allowance for such rents and profits. (8a)
Section 9. Power of guardian in such proceedings. –
The guardian or guardian ad litem of a minor or person judicially declared to
be incompetent may, with the approval of the court first had, do and perform on
behalf of his ward any act, matter, or thing respecting the partition of real
estate, which the minor or person judicially declared to be incompetent could
do in partition proceedings if he were of age or competent. (9a)
Section 10. Costs and expenses to be taxed and
collected. – The court shall equitably tax and apportion between or among the
parties the costs and expenses which accrue in the action, including the
compensation of the commissioners, having regard to the interests of the
parties, and execution may issue therefor as in other cases. (10a)
Section 11. The judgment and its effect; copy to be
recorded in registry of deeds. – If actual partition of property is made, the
judgment shall state definitely, by metes and bounds and adequate description,
the particular portion of the real estate assigned to each party, and the
effect of the judgment shall be to vest in each party to the action in
severalty the portion of the real estate assigned to him. If the whole property
is assigned to one of the parties upon his paying to the others the sum or sums
ordered by the court, the judgment shall state the fact of such payment and of
the assignment of the real estate to the party making the payment, and the
effect of the judgment shall be to vest in the party making the payment the
whole of the real estate free from any interest on the part of the other
parties to the action. If the property is sold and the sale confirmed by the
court, the judgment shall state the name of the purchaser or purchasers and a
definite description of the parcels of real estate sold to each purchaser, and
the effect of the judgment shall be to vest the real estate in the purchaser or
purchasers making the payment or payments, free from the claims of any of the
parties to the action. A certified copy of the judgment shall in either case be
recorded in the registry of deeds of the place in which the real estate is
situated, and the expenses of such recording shall be taxed as part of the
costs of the action. (11a)
Section 12. Neither paramount rights nor amicable
partition affected by this Rule. – Nothing in this Rule contained shall be
construed so as to prejudice, defeat, or destroy the right or title of any
person claiming the real estate involved by title under any other person, or by
title paramount to the title of the parties among whom the partition may have
been made; nor so as to restrict or prevent persons holding real estate jointly
or in common from making an amicable partition thereof by agreement and
suitable instruments of conveyance without recourse to an action. (12a)
Section 13. Partition of personal property. – The
provisions of this Rule shall apply to partitions of estates composed of
personal property, or of both real and personal property, insofar as the same
may be applicable.
RULE 70
FORCIBLE ENTRY AND
UNLAWFUL DETAINER
Section 1. Who may institute proceedings, and when. –
Subject to the provisions of the next succeeding section, a person deprived of
the possession of any land or building by force, intimidation, threat,
strategy, or stealth, or a lessor, vendor, vendee, or other person against whom
the possession of any land or building is unlawfully withheld after the
expiration or termination of the right to hold possession, by virtue of any
contract, express or implied, or the legal representatives or assigns of any
such lessor, vendor, vendee, or other person, may, at any time within one (1)
year after such unlawful deprivation or withholding of possession, bring an
action in the proper Municipal Trial Court against the person or persons
unlawfully withholding or depriving of possession, or any person or persons
claiming under them, for the restitution of such possession, together with
damages and costs. (1a)
Section 2. Lessor to proceed against lessee only after
demand. – Unless otherwise stipulated, such action by the lessor shall be
commenced only after demand to pay or comply with the conditions of the lease
and to vacate is made upon the lessee, or by serving written notice of such
demand upon the person found on the premises, or by posting such notice on the
premises if no person be found thereon, and the lessee fails to comply
therewith after fifteen (15) days in the case of land or five (5) days in the
case of buildings. (2a)
Section 3. Summary procedure. – Except in cases
covered by the agricultural tenancy laws or when the law otherwise expressly
provides, all actions for forcible entry and unlawful detainer, irrespective of
the amount of damages or unpaid rentals sought to be recovered, shall be
governed by the summary procedure hereunder provided. (n)
Section 4. Pleadings allowed. – The only pleadings
allowed to be filed are the complaint, compulsory counterclaim and cross-claim
pleaded in the answer, and the answers thereto. All pleadings shall be
verified. (3a, RSP)
Section 5. Action on complaint. – The court may, from
an examination of the allegations in the complaint and such evidence as may be
attached thereto, dismiss the case outright on any of the grounds for the
dismissal of a civil action which are apparent therein. If no ground for
dismissal is found, it shall forthwith issue summons. (n)
Section 6. Answer. – Within ten (10) days from service
of summons, the defendant shall file his answer to the complaint and serve a
copy thereof on the plaintiff. Affirmative and negative defenses not pleaded
therein shall be deemed waived, except lack of jurisdiction over the subject
matter. Cross-claims and compulsory counterclaims not asserted in the answer
shall be considered barred. The answer to counterclaims or cross-claims shall
be served and filed within ten (10) days from service of the answer in which
they are pleaded. (5, RSP)
Section 7. Effect of failure to answer. – Should the
defendant fail to answer the complaint within the period above provided, the
court, motu proprio or on motion of the plaintiff, shall render judgment as may
be warranted by the facts alleged in the complaint and limited to what is
prayed for therein. The court may in its discretion reduce the amount of
damages and attorney’s fees claimed for being excessive or otherwise
unconscionable, without prejudice to the applicability of section 3 (c), Rule 9
if there are two or more defendants. (6, RSP)
Section 8. Preliminary conference; appearance of
parties. – Not later than thirty (30) days after the last answer is filed, a
preliminary conference shall be held. The provisions of Rule 18 on pre-trial
shall be applicable to the preliminary conference unless inconsistent with the
provisions of this Rule. The failure of the plaintiff to appear in the preliminary
conference shall be cause for the dismissal of his complaint. The defendant who
appears in the absence of the plaintiff shall be entitled to judgment on his
counterclaim in accordance with the next preceding section. All cross-claims
shall be dismissed. (7, RSP)
If
a sole defendant shall fail to appear, the plaintiff shall likewise be entitled
to judgment in accordance with the next preceding section. This procedure shall
not apply where one of two or more defendants sued under a common cause of
action who had pleaded a common defense shall appear at the preliminary
conference. No postponement of the preliminary conference shall be granted
except for highly meritorious grounds and without prejudice to such sanctions
as the court in the exercise of sound discretion may impose on the movant. (n)
Section 9. Record of preliminary conference. – Within
five (5) days after the termination of the preliminary conference, the court
shall issue an order stating the matters taken up therein, including but not
limited to:
1.
Whether the parties have arrived at an amicable settlement, and if so, the
terms thereof;
2.
The stipulations or admissions entered into by the parties;
3.
Whether, on the basis of the pleadings and the stipulations and admissions made
by the parties, judgment may be rendered without the need of further
proceedings, in which event the judgment shall be rendered within thirty (30)
days from issuance of the order;
4.
A clear specification of material facts which remain controverted; and
5.
Such other matters intended to expedite the disposition of the case. (8, RSP)
Section 10. Submission of affidavits and position
papers. – Within ten (10) days from receipt of the order mentioned in the next
preceding section, the parties shall submit the affidavits of their witnesses
and other evidence on the factual issues defined in the order, together with
their position papers setting forth the law and the facts relied upon by them.
(9, RSP)
Section 11. Period for rendition of judgment. – Within
thirty (30) days after receipt of the affidavits and position papers, or the
expiration of the period for filing the same, the court shall render judgment.
However, should the court find it necessary to clarify certain material facts,
it may, during the said period, issue an order specifying the matters to be
clarified, and require the parties to submit affidavits or other evidence on
the said matters within ten (10) days from receipt of said order. Judgment
shall be rendered within fifteen (15) days after the receipt of the last
affidavit or the expiration of the period for filing the same. The court shall
not resort to the foregoing procedure just to gain time for the rendition of
the judgment. (n)
Section 12. Referral for conciliation. – Cases
requiring referral for conciliation, where there is no showing of compliance
with such requirement, shall be dismissed without prejudice, and may be revived
only after that requirement shall have been complied with. (18a, RSP)
Section 13. Prohibited pleadings and motions. – The
following petitions, motions, or pleadings shall not be allowed:
1.
Motion to dismiss the complaint except on the ground of lack of jurisdiction
over the subject matter, or failure to comply with section 12;
2.
Motion for a bill of particulars;
3.
Motion for new trial, or for reconsideration of a judgment, or for reopening of
trial;
4.
Petition for relief from judgment;
5.
Motion for extension of time to file pleadings, affidavits or any other paper;
6.
Memoranda;
7.
Petition for certiorari, mandamus, or prohibition against any interlocutory
order issued by the court;
8.
Motion to declare the defendant in default;
9.
Dilatory motions for postponement;
10.
Reply;
11.
Third-party complaints;
12.
Interventions. (19a, RSP)
Section 14. Affidavits. – The affidavits required to be
submitted under this Rule shall state only facts of direct personal knowledge
of the affiants which are admissible in evidence, and shall show their
competence to testify to the matters stated therein. A violation of this
requirement may subject the party or the counsel who submits the same to
disciplinary action, and shall be cause to expunge the inadmissible affidavit
or portion thereof from the record. (20, RSP)
Section 15. Preliminary injunction. – The court may
grant preliminary injunction, in accordance with the provisions of Rule 58
hereof, to prevent the defendant from committing further acts of dispossession
against the plaintiff. A possessor deprived of his possession through forcible
entry or unlawful detainer may, within five (5) days from the filing of the
complaint, present a motion in the action for forcible entry or unlawful
detainer for the issuance of a writ of preliminary mandatory injunction to
restore him in his possession. The court shall decide the motion within thirty
(30) days from the filing thereof.
Section 16. Resolving defense of ownership. – When the
defendant raises the defense of ownership in his pleadings and the question of
possession cannot be resolved without deciding the issue of ownership, the
issue of ownership shall be resolved only to determine the issue of possession.
(4a)
Section 17. Judgment. – If after trial the court finds
that the allegations of the complaint are true, it shall render judgment in
favor of the plaintiff for the restitution of the premises, the sum justly due
as arrears of rent or as reasonable compensation for the use and occupation of
the premises, attorney’s fees and costs. If it finds that said allegations are
not true, it shall render judgment for the defendant to recover his costs. If a
counterclaim is established, the court shall render judgment for the sum found
in arrears from either party and award costs as justice requires. (6a)
Section 18. Judgment conclusive only on possession; not
conclusive in actions involving title or ownership. – The judgment rendered in
an action for forcible entry or detainer shall be conclusive with respect to
the possession only and shall in no wise bind the title or affect the ownership
of the land or building. Such judgment shall not bar an action between the same
parties respecting title to the land or building. The judgment or final order
shall be appealable to the appropriate Regional Trial Court which shall decide
the same on the basis of the entire record of the proceedings had in the court
of origin and such memoranda and/or briefs as may be submitted by the parties
or required by the Regional Trial Court. (7a)
Section 19. Immediate execution of judgment; how to stay
same. – If judgment is rendered against the defendant, execution shall issue
immediately upon motion, unless an appeal has been perfected and the defendant
to stay execution files a sufficient supersedeas bond, approved by the
Municipal Trial Court and executed in favor of the plaintiff to pay the rents,
damages, and costs accruing down to the time of the judgment appealed from, and
unless, during the pendency of the appeal, he deposits with the appellate court
the amount of rent due from time to time under the contract, if any, as
determined by the judgment of the Municipal Trial Court. In the absence of a
contract, he shall deposit with the Regional Trial Court the reasonable value
of the use and occupation of the premises for the preceding month or period at
the rate determined by the judgment of the lower court on or before the tenth
day of each succeeding month or period.
The
supersedeas bond shall be transmitted by the Municipal Trial Court, with the
other papers, to the clerk of the Regional Trial Court to which the action is
appealed. All amounts so paid to the appellate court shall be deposited with
said court or authorized government depositary bank, and shall be held there
until the final disposition of the appeal, unless the court, by agreement of
the interested parties, or in the absence of reasonable grounds of opposition
to a motion to withdraw, or for justifiable reasons, shall decree otherwise.
Should the defendant fail to make the payments above prescribed from time to
time during the pendency of the appeal, the appellate court, upon motion of the
plaintiff, and upon proof of such failure, shall order the execution of the
judgment appealed from with respect to the restoration of possession, but such
execution shall not be a bar to the appeal taking its course until the final
disposition thereof on the merits. After the case is decided by the Regional
Trial Court, any money paid to the court by the defendant for purposes of the
stay of execution shall be disposed of in accordance with the provisions of the
judgment of the Regional Trial Court.
In
any case wherein it appears that the defendant has been deprived of the lawful
possession of land or building pending the appeal by virtue of the execution of
the judgment of the Municipal Trial Court, damages for such deprivation of
possession and restoration of possession may be allowed the defendant in the
judgment of the Regional Trial Court disposing of the appeal. (8a)
Section 20. Preliminary mandatory injunction in case of
appeal. – Upon motion of the plaintiff, within ten (10) days from the
perfection of the appeal to the Regional Trial Court, the latter may issue a
writ of preliminary mandatory injunction to restore the plaintiff in possession
if the court is satisfied that the defendant’s appeal is frivolous or dilatory,
or that the appeal of the plaintiff is prima facie meritorious.
Section 21. Immediate execution on appeal to Court of
Appeals or Supreme Court. – The judgment of the Regional Trial Court against
the defendant shall be immediately executory, without prejudice to a further
appeal that may be taken therefrom. (10a)
RULE 71
CONTEMPT
Section 1. Direct contempt punished summarily. – A
person guilty of misbehavior in the presence of or so near a court as to
obstruct or interrupt the proceedings before the same, including disrespect
toward the court, offensive personalities toward others, or refusal to be sworn
or to answer as a witness, or to subscribe an affidavit or deposition when
lawfully required to do so, may be summarily adjudged in contempt by such court
and punished by a fine not exceeding two thousand pesos or imprisonment not
exceeding ten (10) days, or both, if it be a Regional Trial Court or a court of
equivalent or higher rank, or by a fine not exceeding two hundred pesos or
imprisonment not exceeding one (1) day, or both, if it be a lower court. (1a)
Section 2. Remedy therefrom. – The person adjudged in
direct contempt by any court may not appeal therefrom, but may avail himself of
the remedies of certiorari or prohibition. The execution of the judgment shall
be suspended pending resolution of such petition, provided such person files a
bond fixed by the court which rendered the judgment and conditioned that he
will abide by and perform the judgment should the petition be decided against
him. (2a)
Section 3. Indirect contempt to be punished after
charge and hearing. – After a charge in writing has been filed, and an
opportunity given to the respondent to comment thereon within such period as
may be fixed by the court and to be heard by himself or counsel, a person
guilty of any of the following acts may be punished for indirect contempt:
(a)
Misbehavior of an officer of a court in the performance of his official duties
or in his official transactions;
(b)
Disobedience of or resistance to a lawful writ, process, order, or judgment of
a court, including the act of a person who, after being dispossessed or ejected
from any real property by the judgment or process of any court of competent
jurisdiction, enters or attempts or induces another to enter into or upon such
real property, for the purpose of executing acts of ownership or possession, or
in any manner disturbs the possession given to the person adjudged to be
entitled thereto;
(c)
Any abuse of or any unlawful interference with the processes or proceedings of
a court not constituting direct contempt under section 1 of this Rule;
(d)
Any improper conduct tending, directly or indirectly, to impede, obstruct, or
degrade the administration of justice;
(e)
Assuming to be an attorney or an officer of a court, and acting as such without
authority;
(f)
Failure to obey a subpoena duly served;
(g)
The rescue, or attempted rescue, of a person or property in the custody of an
officer by virtue of an order or process of a court held by him. But nothing in
this section shall be so construed as to prevent the court from issuing process
to bring the respondent into court, or from holding him in custody pending such
proceedings. (3a)
Section 4. How proceedings commenced. – Proceedings for
indirect contempt may be initiated motu proprio by the court against which the
contempt was committed by an order or any other formal charge requiring the
respondent to show cause why he should not be punished for contempt. In all
other cases, charges for indirect contempt shall be commenced by a verified
petition with supporting particulars and certified true copies of documents or
papers involved therein, and upon full compliance with the requirements for
filing initiatory pleadings for civil actions in the court concerned. If the
contempt charges arose out of or are related to a principal action pending in
the court, the petition for contempt shall allege that fact but said petition
shall be docketed, heard and decided separately, unless the court in its
discretion orders the consolidation of the contempt charge and the principal
action for joint hearing and decision. (n)
Section 5. Where charge to be filed. – Where the charge
for indirect contempt has been committed against a Regional Trial Court or a
court of equivalent or higher rank, or against an officer appointed by it, the
charge may be filed with such court. Where such contempt has been committed
against a lower court, the charge may be filed with the Regional Trial Court of
the place in which the lower court is sitting; but the proceedings may also be
instituted in such lower court subject to appeal to the Regional Trial Court of
such place in the same manner as provided in section 11 of this Rule. (4a; En
Banc Resolution, July 21, 1998.)
Section 6. Hearing; release on bail. – If the hearing
is not ordered to be had forthwith, the respondent may be released from custody
upon filing a bond, in an amount fixed by the court, for his appearance at the
hearing of the charge. On the day set therefor, the court shall proceed to
investigate the charge and consider such comment, testimony or defense as the
respondent may make or offer. (5a)
Section 7. Punishment for indirect contempt. – If the
respondent is adjudged guilty of indirect contempt committed against a Regional
Trial Court or a court of equivalent or higher rank, he may be punished by a
fine not exceeding thirty thousand pesos or imprisonment not exceeding six (6)
months, or both. If he is adjudged guilty of contempt committed against a lower
court, he may be punished by a fine not exceeding five thousand pesos or
imprisonment not exceeding one (1) month, or both. If the contempt consists in
the violation of a writ of injunction, temporary restraining order or status
quo order, he may also be ordered to make complete restitution to the party
injured by such violation of the property involved or such amount as may be
alleged and proved. The writ of execution, as in ordinary civil actions, shall
issue for the enforcement of a judgment imposing a fine unless the court
otherwise provides. (6a)
Section 8. Imprisonment until order obeyed. – 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. (7a)
Section 9. Proceeding when party released on bail
fails to answer. – When a respondent released on bail fails to appear on the
day fixed for the hearing, the court may issue another order of arrest or may
order the bond for his appearance to be forfeited and confiscated, or both;
and, if the bond be proceeded against, the measure of damages shall be the
extent of the loss or injury sustained by the aggrieved party by reason of the
misconduct for which the contempt charge was prosecuted, with the costs of the
proceedings, and such recovery shall be for the benefit of the party injured.
If there is no aggrieved party, the bond shall be liable and disposed of as in
criminal cases. (8a)
Section 10. Court may release respondent. – The court
which issued the order imprisoning a person for contempt may discharge him from
imprisonment when it appears that public interest will not be prejudiced by his
release. (9a)
Section 11. Review of judgment or final order; bond for
stay. – The judgment or final order of a court in a case of indirect contempt
may be appealed to the proper court as in criminal cases. But execution of the
judgment or final order shall not be suspended until a bond is filed by the person
adjudged in contempt, in an amount fixed by the court from which the appeal is
taken, conditioned that if the appeal be decided against him he will abide by
and perform the judgment or final order. (10a)
Section 12. Contempt against
quasi-judicial entities. – 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.
