Provrem Finals Transcript

PROVISIONAL REMEDIES
2018-2019
Conditions
RULE 65 — CERTIORARI, There is no appeal, or any plain, speedy, and
PROHIBITION, MANDAMUS adequate remedy in the ordinary course of law.
NOTES FROM DEAN ALEX MONTECLAR TN: This must be alleged in your petition
PETITION FOR CERTIORARI (SEC.1) Veri;ied Petition

The Aggrieved party shall Aile a veriAied petition
Against whom ;iled (Respondents) seeking the annulment of subject order of the court;
An action for certiorari is addressed to any:
a. Tribunal, TN: The Petition must be accompanied by the
b. Board or following:
c. OfAicer, exercising judicial or quasi-judicial A. certiAied true copy of the judgment or order
functions. B. CertiAication of non-forum shopping
Aside from the party in interest, it includes a What is to be Corrected in Certiorari

tribunal, the court, board or ofAicer, exercising It is proper to correct error of jurisdiction, and NOT
judicial or quasi-judicial functions. error of judgment
Rule 43 have an enumeration of the quasi-judicial

ERROR OF
bodies whose decisions are questionable by way of ERROR OF JUDGMENT
JURISDICTION
an appeal under Rule 43 or by way of Petition By
Certiorari under Rule 65 Court has jurisdiction, but
committed an error in
Among these agencies are the: Court does not have
rendering the decision
1. Civil Service Commission, jurisdiction or exceed its
(error in appreciation or
2. Central Board of Assessment Appeals, jurisdiction
facts or of conclusion of
3. Securities and Exchange Commission, law)
4. OfAice of the President,
5. Land Registration Authority, Remedy is Certiorari
Remedy is Appeal
6. Social Security Commission, under Rule 65
7. Civil Aeronautics Board,
8. Bureau of Patents, Motion For Reconsideration (MR) as a pre-
9. Trademarks and Technology Transfer, requisite GR: An MR MUST be Ailed before Ailing the
10.National ElectriAication Administration, certiorari.
Energy Regulatory Board, No certiorari will be entertained if there is no
11.National Telecommunications Commission, prior MR Ailed.
12.Department of Agrarian Reform under
Republic Act No. 6657,
Why? In order to give the court or tribunal a chance
13.Government Service Insurance System,
to rectify its mistake
14.Employees Compensation Commission,
15.Agricultural Invention Board,
EXCEPTIONS: (In these instances, no need to Aile
16.Insurance Commission,
MR)
17.Philippine Atomic Energy Commission,
1.Where the order is a patent nullity;
18.Board of Investments,
2.Where the issue raised in certiorari have been duly
19.Construction Industry Arbitration
passed upon by the court;
Commission, and
3.Where there is urgent necessity for resolution of
20.voluntary arbitrators authorized by law
the question raised;
4.Where motion for reconsideration would be
Basis of petition (Grounds for petition)
useless;
You have to claim that the tribunal or ofAicer
5.Where petitioner is deprived of due process;
exercising judicial/ quasi- judicial functions acted
6.Where, in a criminal case, relief from an order of
either:
arrest is urgent and the granting of such relief by
A. without or in excess of jurisdiction, or
the trial court is highly improbable;
B. with grave abuse of discretion amounting to
Dean Monteclar: When there has already been an
lack or in excess of jurisdiction.
arrest, an MR may not be an adequate remedy
since it already involves your
freedom.
JUSTICE YAP / DEAN MONTECL AR GLORIA MALAZARTE WEE — 1

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1.Where the proceeding in the lower court are a

nullity for lack of due process;
2.Where the proceeding was done ex-parte; Other Matters regarding Prohibition
3.Where the issue raised is one purely of law or 1. Prohibition lies against judicial or ministerial
where public interest is involved. functions, but not to legislative and executive
functions.
Author’s note: the following are REQUISITES FOR 2. Exhaustion of administrative remedies must be
RULE 65 availed of if the
1.Presence of any of the grounds petition is against an executive of;icial.
2.No appeal, or any plain, speedy, adequate remedy 1. Certiorari, Prohibition & Mandamus do not
3.Veri=ied petition generally lie, subject to some exceptions,
4.As a general rule, MR must be =iled prior =iling of against executive and legislative
Certiorari branches or the members thereof acting in
the exercise of their ofAicial functions
PETITION FOR PROHIBITION (SEC.2) because of the principle of political
Prohibition is a provisional remedy to stop a question.
tribunal, coporation, board, ofAicer, or person from
doing a particular act. TN: However, read Sec. 1, Art. VIII of the 1987
Constitution.
Against whom ;iled (Respondents)
a.) Tribunal b.) Corporation c.) Board Under this provision, there seems to be no more
d.) OfAicer e.) Person political questions because the SC can always inquire
into the actions of any ofAicial, whether they belong
TN: whether exercising judicial or quasi-judicial, or to the executive or legislative, for the purpose of
ministerial functions determining whether they committed grave abuse of
discretion.
Difference with certiorari
In certiorari, you cannot Aile it against a corporation PETITION FOR MANDAMUS (SEC.3)
or persons. Also, the board, tribunal or ofAicers must Mandamus is the opposite of prohibition. Here, you
be exercising judicial/ quasi- judicial functions, and ask the court to direct a tribunal, corporation, board,
does not include the performance of a ministerial ofAicer or person to perform an act because it is his
function. duty to do so.
Basis of petition (Grounds) Against whom ;iled (Respondent)

A.That the tribunal, corporation, board, ofAicer, or a.) Tribunal b.) Corporation c.) Board
person, acted either: d.) OfAicer e.) Person
a. Without or in excess of jurisdiction, or
b. With Grave abuse of discretion amounting to Grounds of Petition:
lack or in excess of jurisdiction; a.) Respondent unlawfully neglects the performance
c. There is no appeal or any other plain, speedy and of an act which the law speciAically enjoins as a
adequate remedy in the ordinary course of law duty resulting from an ofAice, trust or station;
b.) He unlawfully excludes another from the use and
TN: The basis of your petition is the same as that in enjoyment of a right or ofAice to which said
certiorari. person is entitled to;
Where to ;ile What are the conditions aside from the grounds
In the proper court, to wit: RTC, CA and SC or the basis of your petitions from your
mandamus?
TN: This action falls within the concurrent The conditions are very much the same as the
jurisdiction of the 3 courts, but the SC has repeatedly conditions in your certiorari.
said that you do not go directly to them because you
must respect the hierarchy of courts. Conditions
1. There is no other plain, speedy and adequate
Prayer for TRO or Preliminary Injuction remedy in the ordinary course of law.
A prayer for TRO or Preliminary Injunction must be 2. The petition must be veriAied
prayed along with the petition to prevent the act 3. The petition must contain a certiAicate of non-
during the pendency of the case. Without this, the forum shopping.
respondent will continue to perform the act you seek 4. Mandamus will lie to compel performance of a
to stop through the Petition for Prohibition. ministerial duty

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NOT a discretionary duty. The common provisions are: when to Aile an action
and where to Aile the action.
Dean Monteclar: You cannot force an ofAicial to
perform its discretionary duty in a certain manner. When to ;ile:
You can force an ofAicial to perform a discretionary • 60 days from notice of Judgment or Order denying
duty but not to perform it in one way or the other. the motion for reconsideration.
But if he refuse to perform his discretionary duty
and it prejudice your right, you can always compel Where to ;ile:
him to perform a discretionary duty but not on how • R T C o r w i t h t h e C o u r t o f A p p e a l s o r
to exercise the discretion, Sandiganbayan, whether or not the same is in aid
of its appellate jurisdiction.
• The order shall command the respondent to do the
act required to be done to protect the right of In the old rules, CA can only entertain in aid of its
petitioner, and to pay the damages sustained by appellate jurisdiction. You will notice SC is not
the petitioner by reason of the wrongful acts of included. SC is included only to question the decision
respondent. of the CA
• In a money judgment against the municipality • In election cases involving an act or omission of
where its ofAicials unjustiAiably refuse to pay the the MTC or RTC, the petition shall be ;iled
judgment, the remedy of the claimant is to sue exclusively with COMELEC, in aid its appellate
the ofAicials for MANDAMUS. jurisdiction.
Why? Because the sheriff cannot implement the writ • These petitions should not be ;iled directly with
of execution against the government. This is because the Supreme Court even though they fall under
the sheriff cannot levy or attach public funds. But it the concurrent jurisdiction of the SC, CA and RTC.
is a ministerial duty of a public ofAicial to obey a Ainal We have to observe the hierarchy of courts.
judgment thus mandamus will lie. Otherwise the
complainant will be stuck with an empty judgment. Respondents
So what is the remedy? Mandamus. Who can be respondents?
• If the act or omissions refers to that of a Judge,
Municipality of Makati vs CA, et.al. GR Nos. court, quasi-judicial agency etc., the petitioner
89889-99, October 1, 1990 shall join as private respondent the person
This is because the Sheriff cannot attach or levy on interested in the proceeding and it is his duty to
execution the public funds. It is ministerial duty of appear and defend the decision.
the public ofAicials to obey a Ainal judgment, thus, • The judge will be the public respondent but he
mandamus will lie, otherwise, the claimant will be need not answer or appear in the case as he is
stuck with an empty judgment only a nominal party.
• Mandamus does not lie to compel the performance Dean Monteclar: There are two kinds of respondents
of a contractual duty. in petitions certiorari, prohibition and mandamus.
If you enter into a contract and the other party We have the private respondent, public respondent.
refuses to obey his part of the contract, the remedy is If you question the decision of let’s say the RTC judge
not mandamus. You can ;ile an ordinary civil by way of certiorari before the CA. Who will be the
action for speci;ic performance. Mandamus will respondent? The respondent here will be the other
only lie against tribunal or an ofAicer or a corporation party who beneAited the decision of the judge. You
or a body or a person. are the petitioner because you are the one who is
prejudiced. The other party is the PRIVATE
• A petition for mandamus is premature if there are respondent. And the judge is the PUBLIC respondent.
administrative remedies available to the But the one who will argue is only the private
petitioner except when the case involves only respondent.
legal question.
Judge as Nominal Party
• Court has the power to award damages in a The judge as public respondent is only a nominal
Mandamus suit. party and he does not have to answer the petition of
certiorari not unless he is required to answer by the
CA.
P ROV I S I O N S C O M M O N TO C E RT I O R A R I ,
PROHIBITION AND MANDAMUS Dean Monteclar: So it’s really wrong for an RTC judge
to also answer. Although it is the decision of the RTC

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judge that is attacked by the petitioner the judge It may grant the petition or deny it if it Ainds it to be
should not take it personally. Under the rules, the patently without merit, prosecuted manifestly for
judge no longer needs to answer. It is only the private delay, issues raised therein are too unsubstantial to
respondent that will answer. He will be the one to warrant consideration. If un-meritorious, the court
argue that the RTC judge did not commit grave abuse may award in favor of the respondent treble costs
of discretion in his order. against petitioner and counsel.
What will the court do? Order to comment This is one of the innovations introduced in the new
If sufAicient in form and substance, the trial court rules. There is now a penalty for bringing in
may require respondent to comment within 10 unmeritorious petitions for certiorari before the
days from receipt of the copy of order. Such order higher court. It is a punishment.
shall be served on the respondents in such manner
as the court may direct together with a copy of the Court may impose motu proprio other disciplinary
petition and any annexes thereto. sanction on erring lawyers for patently dilatory and
unmeritorious petitions for certiorari.
In petitions for certiorari before the SC and CA reply
may be required. Service and enforcement of order or judgment
Judgment of the court shall be served upon the court,
Petition for certiorari, prohibition or mandamus quasi-judicial agency, tribunal, corporation, board or
questioning a decision of an inferior court, you bring ofAicer in such manner as the court may direct.
it up to RTC. Disobedience thereto is punishable as contempt.
Execution may issue for any damages or costs
The RTC will have to examine if the petition is awarded.
sufAicient in form and substance. It it is then it will
require the respondent to comment within Dean Monteclar: In the RTC, if you Aile a petition for
10 days from receipt of the copy of order. Unless a certiorari, prohibition, mandamus, questioning the
TRO or a preliminary judgment is issued, the court may decision of the municipal court. You do not have to
continue the proceeding within ten days from Ailing of furnish a petition to the respondent because the
the petition. RTC will have to ;irst examine whether your
petition should be given due course or not.
Continuance of main case
Unless a TRO or preliminary injunction is issued, the But if the petition is ;iled in the CA or the SC, you
court may continue with the proceeding within 10 must furnish copy to the respondent or the other
days from Ailing of the petition. party because they will be required to answer if the
court Ainds the petition is sufAicient in form and
Dean Monteclar: As you know already, in petition for substance.
certiorari and the same is true with mandamus and
prohibition, the ;iling of the petition does not stop
the court of origin, the respondent judge, from RULE 66 — QUO WARRANTO
continuing with the proceedings before it.
The judge will give you ten days to secure the TRO or NOTES FROM DEAN ALEX MONTECLAR
preliminary judgment from the time you Aile your
petition for certiorari.
De;inition
Quo Warranto is an action to prevent the usurpation
Example: you question the ruling of the RTC court,
of a public ofAice, position or franchise.
let us say an interlocutory order, you feel that it is
very unfair, constitute a grave abuse of discretion so
When commenced
you Aile a petition for certiorari in the CA. From the
time you Aile petition for certiorari in the CA, the RTC It is commenced by a veriAied petition in the name of
will suspend the proceedings for only ten days. If you the Republic of the Philippines or by a person
are not able to obtain a TRO from the CA within the entitled to the position
ten days of Ailing, the RTC may continue hearing the
case. Without it, the case will go on. Parties:
Petitioner: Republic of the Philippines except
when Ailed by a person who claims to be entitled to
Proceedings after comment
the ofAice.
The court may hear the case or require the parties to
Aile memoranda.
• There must be a referral of the case to the
SolGen by either:
Action of the court

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a.) the President (who directs the SolGen or the appointive ofAices, the issue is the validity of the
Public prosecutor to Aile a quo warranto case) appointment and his right to hold ofAice;
b.) a relator - any person who would request a case
of quo warranto be Ailed by the government o IOW issue in elective: is he eligible to
through the SolGen hold ofAice
o issue in appointive: is the appointment
• There must be Leave of Court valid, which also includes eligibility
a.) If it is the SolGen who will Aile the Complaint for because it involves the right to hold
Quo warranto, he must ask permission from ofAice
the Court.
b.) If it was done upon the request of a person or a b.) In elective ofAice, the occupant declared to be
relator, not by the President, then the relator is ineligible will be unseated but the petitioner
required to put up a bond to answer for the will not sit. In appointive ofAice, the court will
cost that may be entailed by the Ailing of the not oust the person illegally appointed and will
complaint. order the person of the person legally
c.) If the case is Ailed by a private person who appointed;
claims to be entitled to the ofAice, there is no
required leave of court and no need to put up a c.) Quo warranto in election cases is governed by
bond. the Omnibus Election Code while in appointive
ofAice by Rule 66;
Respondents:
a.) A person who usurps, intrudes into, or unlawfully d.) Under the Omnibus Election Code, quo warranto
holds or exercises a public ofAice, position or must be Ailed within ten (10) days from the
franchise; proclamation of candidate while under Rule 66,
b.) A public ofAicer who does or suffers an act which, it presupposes that respondent is already
by provision of law, constitutes a ground for the holding ofAice and the prescriptive period is one
forfeiture of his ofAice; OR year;
c.) An association which acts as a corporation
without being legally incorporated or without e.) In election code, petition may be Ailed by any
lawful authority so to act. registered candidate for the same ofAice [x] in
o Pretends to be a corporation vested Rule 66 the petitioner must be the [x] entitled to
with juridical personality, when in the ofAice
t r u t h t h a t a s s o c i a t i o n i s n o t
registered with SEC as a corporation Where to ;ile Quo Warranto against elective
of;icials on the ground of ineligibility or
Quo Warranto is the remedy to try disputes with disloyalty?
respect to the title to a public ofAice. If the rightful
occupant is prevented from assuming the ofAice, COMELEC – Member of Congress, City and
Mandamus is the remedy to oust the usurper. Provincial of;icial RTC – Municipal of;icials
MTC – Barangay Of;icials
Quo Warranto distinguished from Election Cases
a.) The basis for Quo Warranto is that the occupant is Who will commence:
disqualiAied to hold ofAice by reason of A.) Solicitor General or Public Prosecutor when
ineligibility or disloyalty WHILE Election Contest directed by the President or when upon
challenges the right of a person to hold ofAice on complaint or otherwise he has good reason to
the ground of irregularities in the conduct of the believe that any case speciAied in the preceding
election section can be established by proof, must
o Cheating vote-buying etc. commence such action (Sec.2 );
b.) If petition is granted, the respondent is ousted B.) Solicitor General or Public Prosecutor may, with
but petitioner will not assume the ofAice WHILE the permission of the court, at the request of
in Election Cases, the successful protestant will another person. But, in such case the ofAicer may
assume the ofAice if he had obtained a plurality of require an indemnity for the expenses and cost of
the valid votes. the action from the person at whose request the
action is brought.(Sec. 3)
Quo Warranto in Elective vs Appointive Of;ice
a.) In Quo Warranto involving elective ofAice, the C.) A person claiming to be entitled to be entitled to a
issue is the eligibility of the respondent. In public ofAice or position usurped or unlawfully
held or exercised by another.(Sec. 5)

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compensation in Rule 67 from assessed value to

N.B. – In an application for permission to commence market value or zonal value.
an action for quo warranto at the request of another
person, the court shall direct that notice be given to • Expropriation Procedure under R.A. 8974
respondent so [x] may be heard in opposition speciAically governs expropriation for
thereto. national government infrastructure
projects.
Venue • If expropriation by national government is not
In the Supreme Court, Court of Appeals or RTC for national infrastructure projects, the
assessed value standard and the deposit
Rights of the person entitled to the of;ice mode prescribed in Rule 67 to apply.
a.) To assume the ofAice after taking oath of ofAice
and executing an ofAicial bond required by law: Defenses and Objections:
b.) Demand from respondent all the books, papers, • If defendant has objections, he must Aile this
or documents in his possession answer to the complaint within the time
c.) To ask the court to cite the respondent in stated in the summons. He must state all the
contempt of court if he refuses to obey grounds for his objections, otherwise, those
d.) To recover damages from respondent. n o t s t a te d a re d e e m e d wa ive d . N o
counterclaim, crossclaim, or third-party
Prescription complaint is allowed.
1.) One year from petitioner’s ouster from ofAice; • However, during the trial of the issue of just
2.) An action for damages will prescribe in one year compensation, defendant may present
from the entry of judgment establishing guidance as to the amount of compensation
petitioner’s right to hold ofAice. [x] has not answered.
RULE 67 — EXPROPRIATION Order of Expropriation

• This is issued after the objections and defenses of
NOTES FROM DEAN ALEX MONTECLAR the defendant are overruled OR no party
appears to defend his right.
• Just compensation shall be determined as of the
How commenced date of the taking OR the ;iling of the
By Ailing a veriAied complaint in court (RTC) stating complaint, whichever came ;irst.
with certainty the right and purpose of the • A Ainal order sustaining the right to expropriate
expropriation and describe the real or personal may be appealed. There can be multiple
property to be expropriated. appeal here. One, for the order of
expropriation and another for the issue of
N.B. Rule 67 primarily governs expropriated by the just compensation.
S t a t e t h r o u g h t h e n a t i o n a l g o v e r n m e n t .
Expropriation by local government is governed by Determination of Just Compensation
the Local Government Code of 1991 • After the rendition of the order of expropriation,
the court shall appoint not more than three
Entry of plaintiff upon deposit (3) competent and disinterested persons as
Upon the Ailing of the complaint and due notice to the commissioners to ascertain the just
defendant, the plaintiff may enter and possess the c o m p e n s a t i o n . O b j e c t i o n s t o t h e
property if he deposit with the authorized appointment. Objection to the appointment
government depositary bank an amount equivalent of any of the commissioners shall be Ailed
to the assessed value of the property for purposes within ten (10) days and shall be resolved
of taxation. within thirty (30) days.
• Just compensation is generally the fair market
TN: P.D. 42 amended by the P.D. 1533, then by [x] of value.
Rule 67
Market Value – is the price which it will command
R.A. 8974 (Nov. 7 2000) where it is offered for sale by one who desires, but is
Special law to facilitate the acquisitions of right of not obliged to sell, and is brought by one under no
way, site or location for national government necessity of having it.
infrastructure projects. This includes projects under
R.A. 6957 known as Build-Operate-and-Transfer Law. The rule under PD 1533, 76, 464, 794, 1224 etc. That
This law is deemed to amend the standard of initial the basis of just compensation shall be the fair
market value declared by the owner of the property

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or the market value determined by the assessor Upon payment by the plaintiff to the defendant of the
whichever is lower, has been decalred by the SC as compensation Aixed by the judgment, with legal
unconstitutional in EPZA vs. Dulay, G.R. No. [x] interest thereon from the taking of the possession of
April 29, 1987. the property, or after tender to him of the amount so
Aixed and payment of the costs, the plaintiff shall
The basis of just compensation shall be the value have the right to enter upon the property
(FMV) of the property at the time of its taking OR the expropriated and to appropriate it for the public use
Ailing of the complaint, whichever came Airst, (Sec. 4) or purpose deAined in the judgment, or to retain it
plus the consequential damages minus the should he have taken immediate possession thereof
consequential beneAits, provided that the under the provisions of section 2 hereof.
consequential beneAits do not exceed the assessed Possession by the government after payment
consequential damages (Sec. 6). Deposit if owner refuses to accept payment
If the defendant and his counsel absent themselves
Legal interest must be paid as a matter of law from from the court, or
the time the government takes over the land until it decline to receive the amount tendered, the court
pays the owner thereof. may order the deposit with the court of the sum
awarded as just compensation for the beneAit of
Proceedings before the Commissioner person adjudged as the rightful owner.
1. Taking of Oath;
2. Reception of Evidence; Entry not delayed by appeal
3. Allow parties to argue during hearing; Right of plaintiff to enter upon the property of
4. The commissioner shall assess the consequential defendant and appropriate the same for public
damages of the property not taken and purpose shall not be delayed by an appeal. But, if on
deduct from such the consequential damages appeal the judgment is reversed, the owner may
of the property not taken and deduct from recover damages.
such the consequential beneAits. In no case
shall the consequential beneAits exceed the Cost and fees of the commissioners
consequential damage. All costs except those of rival claimant slitigating
their claims,shall be paid by the plaintiff. If the owner
Report to the Court appeals and found unmeritorious, the owner shall
Commissioner shall render a report to the court shoulder the cost [x].
which shall then be the basis of the court’s
judgment. Such report must be made within sixty
(60) days from the appointment unless extended RULE 68 — FORECLOSURE OF REM
by the court. Upon Ailing of the report, the clerk of
N O T E S F R O M J U S T I C E M A R I LY N YA P
court shall immediately notify the parties who are
given ten (10) days to make their objection, if they so FORECLOSURE OF REAL ESTATE MORTGAGE
desire.
(FROM RIANO)
Action of the court on the report 1.Real estate mortgage (REM) is an accessory
1.) Accept the report and render judgment in contract. The principal obligation is a simple loan
accordance therewith; or mutuum described in Art. 1953 of the CC.
2.) Recommit the same to the commissioner for
further report of facts; 2.REM contract constituted on either immovable
3.) Set aside the report and appoint a new or alienable rights. Chattel mortgage of constituted
commissioner; on movables.
4.) Accept the report in part and reject it in part;
5.) Make such order that it is fair and reasonable to 3.Mortgagor need not be the debtor and the latter
the parties; need not be the mortgagpr. If he is not the debtor
in the principal obligation, he shall be referred to
Con;licting Claims as accommodation mortgagor. (art. 2085)
Republic vs CFI of Pampanga et al., L-27006, June 4.Liability of accommodation mortgagors extends
30, 1970 The trial court handing the expropriation only up to the loan value of the mortgaged
proceeding has the jurisdiction to determine property and not the entire loan itself.
conAlicting claims of ownership over the property
involved in expropriation and to declare the lawful 5.Failure to register the mortgage in the Registry
owner thereof. of Property does not affect the validity between
the parties.
Rights of plaintiff after judgment and payment

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6.Registration of the mortgage is necessary for the Proceedings either judicial or extrajudicial
purpose of binding third persons.
J U D I C I A L EXTRAJUDICIAL
(Discussion proper) FORECLOSURE FORECLOSURE
A.Governed by the a.Governed by Act
Section 1. Complaint in action for foreclosure. ROC. 3135 as
In an action for the foreclosure of a mortgage or other amended.
encumbrance upon real estate, the complaint shall set A.Involves filing of a.Does not require
forth the date and due execution of the mortgage; its an independent the filing of an
assignments, if any; the names and residences of the action. action.
mortgagor and the mortgagee; a description of the A.E q u i t y o f a.R i g h t of
mortgaged property; a statement of the date of the redemption is redemption is
note or other documentary evidence of the obligation recognized but no available.
secured by the mortgage, the amount claimed to be right of redemption
unpaid thereon; and the names and residences of all except when
persons having or claiming an interest in the property mortgagee is a
subordinate in right to that of the holder of the banking institution.
mortgage, all of whom shall be made defendants in the A.D e f i c i e n c y a.No judgment for a
action. judgment rendered d e f i c i e n c y
by the court in the because there is
same proceeding. no judicial
proceeding
Jurisdiction though recovery
1.Exclusive original jurisdiction fall either in the of the deficiency
MTC or RTC depending on the assessed value pf is allowed.
the property involved. A.R e c o v e r y o f a.R e c o v e r y o f
deficiency by mere deficiency
2.MTC has jurisdiction if the assessed value of the motion for a through an
real estate is not more that 20T OR in Metro d e f i c i e n c y independent
Manila, not more that 50T, and the amount of judgment. action. Although
mortgage debt is not more that 300T, or in nothing about
Metro Manila, not more than 400T; OW action recovery is
shall be Ailed with the RTC. provided in Act
3135, there is no
3.MTC has jurisdiction to take cognizance of real
prohibition
actions or those affecting title to real property, or
either.
condemnation of or foreclosure if a mortgage on
real property depending on the assessed value
ACT 3135 APPLICATION OF EXTRAJUDICIAL FORECLOSURE
•Not applicable to chattel mortgage OF MORTGAGE IS GOVERNED BY SC RESOLUTION
OF DECEMBER 14, 1999 IN ADMINISTRATIVE
•Covers only real estate mortgage MATTER NO. 99-10-05 RE: PROCEDURE IN
EXTRAJUDICIAL FORECLOSURE OF MORTGAGE AS
•Act is intended merely to regulate the AMMENDED BY THE RESOLUTIONS DATED
extrajudicial sale of the mortgaged property if JANUARY 30, 2001 AND AUGUST 7, 2001.
and when the mortgagee is given a special power
or express authority to do so in the deed itself or Pactum commisorium; not valid agreement
in a document attachment thereto
1.A s t i p u l a t i o n e m p owe r i n g c re d i to r to
What is the remedy of foreclosure? appropriate the things as guaranty for the
fulAillment of the obligation in the event the
Remedy available to the mortgagee by which he obligor fails to live up to his undertakings without
subjects the mortgaged property to the stipulation further proceedings and a public sale.
of the obligation for which mortgage was given
2.Art. 2088 expressly prohibits the creditor from
appropriating the things given by pledge or
mortgage, and any stipulation to the contrary is
null and void.

2018-2019
Under Article 1062 of the CC, the contract of sale will than one hundred twenty (120) days from the
be presumed to be an equitable mortgage in any of the entry of judgment, and that in default of such
ff cases: payment the property shall be sold at public
auction to satisfy the judgment.
1.When the price of the sle with right to
repurchase is unusually inadequate; QUESTIONS:
2.When the vendor remains in possession as a 1.What shall the courts do if it Ainds the facts in the
lessee or otherwise; complaint to be true? (cite procedure in sec. 2)
3.When upon or after the expiration of the right to 2.What is the remedy of the mortgagor/judgment
repurchase, another instrument extending the obligor on the judgment of foreclosure? (to
period of redemption or granting a new period is appeal)
executed;
3.How shall the period period to pay the judgment
4.When the purchaser retains for himself a part of of foreclosure be counted? (within a period not
the purchase value; less than 90D nor more than 120D from the entry
of judgment and that in default of such payment
5.When the vendor binds himself to pay the taxes the property shall be sold at public auction to
on the things sold; satisfy judgment)
6.In any other x=case where it may be fairly
inferred that the real intention of the parties is
that the transaction shall secure the payment of a Sec. 3. Sale of mortgaged property; effect.
debt or the performance of any other obligation.
When the defendant, after being directed to do so as
Questions: provided in the next preceding section, fails to pay the
amount of the judgment within the period speciAied
1.Can the creditor appropriate things given by way therein, the court, upon motion, shall order the
of pledge or mortgage or dispose of them? (no. any property to be sold in the manner and under the
stipulation to the contrary is null and void. Art. provisions of Rule 39 and other regulations governing
2088, CC) sales of real estate under execution. Such sale shall not
2.What are the remedies available to a creditor by affect the rights of persons holding prior
a mortgage? (foreclosure of the mortgage, simple encumbrances upon the property or a part thereof,
action for collection of sum with attachment upon and when conAirmed by an order of the court, also
proper afAidavit that the value of the mortgaged upon motion, it shall operate to divest the rights in the
property is insufAicient to cover the debt and that property of all the parties to the action and to vest
the properties of the defendant are in danger of their rights in the purchaser, subject to such rights of
being lost or disposed of with intent to defraud redemption as may be allowed by law.
creditors; receivership whenever it appears in the
action for foreclosure that the property is in
danger of being wasted or materially injured and Upon the Ainality of the order of conAirmation or upon
its value is insufAicient of the parties have so the expiration of the period of redemption when
stipulated in the contract) allowed by law, the purchaser at the auction sale or
last redemptioner, if any, shall be entitled to the
3.What is the remedy of a creditor in a pacto de possession of the property unless a third party is
retro sale, considered as equitable mortgage, in actually holding the same adversely to the judgment
order to collect his credits? (avail himself of obligor. The said purchaser or last redemptioner may
foreclosure proceedings) secure a writ of possession, upon motion, from the
Sec. 2. Judgment on foreclosure for payment or court which ordered the foreclosure.
sale. Questions:
If upon the trial in such action the court shall Aind 1.What is equity of redemption? (the right of
the facts set forth in the complaint to be true, it defendant to extinguish the mortgage and retain
shall ascertain the amount due to the plaintiff ownership in the property by paying the secured
upon the mortgage debt or obligation, including debt within 90-120 days after entry of judgment,
interest and other charges as approved by the in accordance with rule 68, or even after
court, and costs, and shall render judgment for the foreclosure sale but prior to its conAirmation)
sum so found due and order that the same be paid
to the court or to the judgment obligee within a 2.Differentiate equity of redemption from right of
period of not less than ninety (90) days nor more redemption. (right of redemption in relation to a

2018-2019
mortgage is right granted to the debtor, his pursuant sec. 18, rule 39 as modiAied under SC
successor in interest or any judicial creditor or Circular no. 8, may 15, 1987)
judgment debtor or any person having lien on the
property subsequent to the mortgage or deed of 15.Does the purchaser already have a right to the
trust under which the property is sold to redeem possession of the property foreclosed? (no, title to
the property within a period of one year from the the mortgaged property does not vest in the
registration of the Sheriff ’s certiAicate of purchaser until after the conAirmation of sale)
foreclosure sale, and such redemption is governed 16.Is there a right of redemption after the judicial
by secs. 29, 30 and 31, rule 39) sale is conAirmed? (no, there is no right of
3.Is there a right of redemption in judicial redemption after judicial sale is conAirmed \, title
foreclosure of a mortgage? (no. unless the vests upon the purchaser in foreclosure sale and
mortgagee is a bank or banking institution as the conAirmation retroacts to the date of the sale.
provided by General Banking Laws) 17.Is an order of conAirmation in court foreclosure
4.Is there a right of redemption in judicial proceedings an interlocutory order? (no. it is the
foreclosure if mortgagee is the GSIS? (GR no Ainal order from which appeal may be taken in
because GSIS is not a bank/ banking institution) judicial foreclosure proceedings)
5.How should the right to redeem be seasonably 18.Does the purchaser have the right to the
invoked? (as a counterclaim) issuance of writ of possession? (yes, the court has
the power to give possession to the purchaser, and
6.Can the part who exercises the right of the purchaser will not be driven to an action at law
redemption question the validity of the foreclosure to obtain such possession.
sale? (no. redemption is an implied admission of
the regularity of the sale and estops the petitioner 19.Is th \e issuance of writ of possession in
from later on impugning its validity) foreclosure proceedings an execution of judgment?
(no. merely ministerial and complimentary duty of
7.Does the Ailing of an action for annulment of the court to put an end to litigation)
mortgage toll the period of redemption. NO
20.The judgment is already Ainal and executory.
8.If the mortgagor insists on the nullity of The properties mortgaged have been sold by order
mortgage, can he raise the right to redeem for the of the court. The purchaser have transferred the
1st time on appeal? NO properties to athird person. Can the court issue a
writ of possession to the 3rd person? (yes. In the
9.Who may exercise right of redemption? (if one exercise of it interlocutory duty and to make the
has privity in the title with the mortgagor, and he ultimate purchaser in the possession of the prop)
has such an interest that he would be a loser by
the foreclosure, he may redeem.) 21.Effects of conAirmation of sale
10.What is the amount to be oaid under sec. 2-4 Title to the Mortgagors have no
under rule 68? (judgment debt) mortgaged real means of
property does not compelling the
11.How about the amount payable in redemption vest in the purchaser to comply
of property sold at execution sale under rule 39? purchaser until after with the terms of the
Purchaser’s price confirmation of the sale until after
12.Re no. 11. Redemption of properties mortgaged sale. Prior to confirmation. If
with PNB and DBP and foreclosed either judicially confirmation, mortgagor attempt
or extrajudicially are governed by special laws purchaser has no to compel a
which provided for the payment of all amounts right to possession purchaser to pay, an
owed by the debtor. Special protection given to of p r o p e r t y. answer by
gov’t lending institutions but not accorded to Purchaser has no purchaser that the
judgment creditors in ordinary civil action) legal cause of sale had not been
complaint against confirmed would be
13.Does failure to give notice of motion affect the the defendants who sufficient.
validity of the foreclosure sale? (no, motion is not remain in
of a litigable nature. Order maybe had as a matter p o s s e s s i o n
of course) exercising the rights
of ownership.
14.But written notice of the sale of property on
execution shall be given to judgment debtor 22.Difference of writ of possession from judgment
of foreclosure

2018-2019
Judgment o f Writ of possession: 1.Will violation of Sec. 4 affect the validity of sale?
foreclosure: 1.A f t e r t h e (no. the violation simply gives the mortgagor a
1.L o s e s property is sold cause of action to recover surplus)
executory force pursuant to
by the lapse of judgment and 2.In suing for the return of surplus proceeds, is the
5yrs. confirmed by the mortgagor deemed to have afAirmed the validity of
2.Under the Gen court, purchaser the sale? (yes, since nothing is due if no valid sale
Banking Act, is entitled to writ has been made)
there is a right of possession. Sec. 5. How sale to proceed in case the debt is not all
of redemption due.
within one year
from sale. If the debt for which the mortgage or encumbrance
3.J u d i c i a l was held is not all due as provided in the judgment, as
foreclosure must soon as a sufAicient portion of the property has been
be confirmed in sold to pay the total amount and the costs due, the sale
a hearing with shall terminate; and afterwards, as often as more
notice to the becomes due for principal or interest and other valid
mortgagee, charges, the court may, on motion, order more to be
debtor, creditor, sold. But if the property cannot be sold in portions
purchaser at without prejudice to the parties, the whole shall be
auction sale. ordered to be sold in the Airst instance, and the entire
4.P r i o r to debt and costs shall be paid, if the proceeds of the sale
confirmation of be sufAicient therefor, there being a rebate of interest
auction sale, where such rebate is proper.
court may grant
debtor sufficient
time to redeem
mortgage estate
even if bidder Sec. 6. DeAiciency judgment.
sold property to
a third person. If upon the sale of any real property as provided in the
next preceding section there be a balance due to the
23.When may a writ of possession issue in plaintiff after applying the proceeds of the sale, the
foreclosure? (when sale is validly conAirmed. Until court, upon motion, shall render judgment against the
the sale is validly conAirmed, the purchaser is defendant for any such balance for which, by the
nothing more than a preferred bidder.) record of the case, he may be personally liable to the
plaintiff, upon which execution may issue immediately
24.How about a purchaser in an extrajudicial sale? if the balance is all due at the time of the rendition of
(purchaser have a right to possession of property the judgment; otherwise, the plaintiff shall be entitled
even during the one year redemption period to execution at such time as the balance remaining
provided he Ailes indemnity bond.) becomes due under the terms of the original contract,
which time shall be stated in the judgment.
Sec. 4. Disposition of proceeds of sale. Questions:
The amount realized from the foreclosure sale of the 1.When may there be deAiciency of judgment?
mortgaged property shall, after deducting the costs of (made only after the sale and after it becomes
the sale, be paid to the person foreclosing the known that a deAiciency exists)
mortgage, and when there shall be any balance or 2.DeAiciency judgment cannot be rendered against
residue, after paying off the mortgage debt due, the a non-resident defendant.
same shall be paid to junior encumbrancers in the
order of their priority, to be ascertained by the court, 3.What is the effect on the deAiciency if the debtor
or if there be no such encumbrancers or there be a dies? (deAiciency be Ailed as a claim against the
balance or residue after payment to them, then to the estate.)
mortgagor or his duly authorized agent, or to the
person entitled to it. Sec. 7. Registration.
Questions: A certiAied copy of the Ainal order of the court

conAirming the sale shall be registered in the registry
of deeds. If no right of redemption exists, the
certiAicate of title in the name of the mortgagor shall
2018-2019
be cancelled, and a new one issued in the name of the the purchaser after the owner’s duplicate of certiAicate
purchaser. has been previously delivered and cancelled.
Questions:
Where a right of redemption exists, the certiAicate of 1.Can the court still grant the judgment debtor an
title in the name of the mortgagor shall not be opportunity to pay the amount of the judgment
cancelled, but the certiAicate of sale and the order after the sale of mortgaged property and before
conAirming the sale shall be registered and a brief conAirmation? (yes, until sheriff ’s sale is
memorandum thereof made by the registrar of deeds conAirmed, judgment debtor may exercise a right
upon the certiAicate of title. In the event the property is of redemption)
redeemed, the deed of redemption shall be registered
with the registry of deeds, and a brief memorandum 2.Is there right of redemption after conAirmation
thereof shall be made by the registrar of deeds on said of judicial sale? (no. title is vested upon the
certiAicate of title. purchaser in the foreclosure sale. ConAirmation
retroacts to the date of sake. Right of the
mortgagor and person holding under him are cut
off by the sale upon conAirmation, and with them
If the property is not redeemed, the Ainal deed of sale the equity of redemption)
executed by the sheriff in favor of the purchaser at the
foreclosure sale shall be registered with the registry of 3.In judicial foreclosure under General banking
deeds; whereupon the certiAicate of title in the name of act, when is the right of redemption exercised?
the mortgagor shall be cancelled and a new one issued (within 1 year from sale. A judicial foreclosure
in the name of the purchaser. must be conAirmed by a hearing with a notice to
the mortgage debtor, creditor and purchaser at the
PD NO. 1529 (PROPERTY REGISTRATION DECREE) auction sale)
Sec. 63. Foreclosure of mortgage- (a) if the property 4.What are the choices available to a creditor
was foreclosed judicially, a certiAied copy of the Ainal holding a claim against the estate secured by
order of the court conAirming the sale shall be mortgage or other collateral security? (abandon
registered with the registrar of deeds, if no right of this security and prosecute his claim in the
redemption exists, certiAicate of title of mortgagor probate court and share in the general distribution
shall be cancelled, new certiAicate is issued in the of the assets of the estate; or foreclosure his
name of purchaser. Where right of redemption exists, mortgage and rely on his security by action in
the certiAicate of title of the mortgagor shall not be court, making the executor or administrator a
cancelled but the certiAicate of sale and order party defendant and if there is a judgment for
conAirming the sale shall be registered by a brief deAiciency after the sale, Aile a claim in the in the
memorandum made by the Registrar of Deeds on the estate for such deAiciency under sec. 5 of rule 56;
cert of title. or rely upon his mortgage and foreclose the same
If the property is not redeemed, the Ainal deed of sale at anytime within the statute of limitations.
executed by the sheriff in favor of the purchaser at the 5.Does the mortgage creditor in foreclosure have
foreclosure sale shall be registered with the registry of the same standing and enjoy the same rights as the
deeds; whereupon the certiAicate of title in the name of mortgage creditor in administration proceedings?
the mortgagor shall be cancelled and a new one issued (YES)
in the name of the purchaser.
6.Can there be foreclosure after declaration of
(b) If the mortgage was foreclosed extrajudicially a insolvency and the insolvency court has acquired
certiAicate of sale executed by the ofAicer of the court control of his estate? (No. unless the insolvent
who conducted the sale shall be Ailed with the court gives consent)
registrar of deeds who shall make a brief
memorandum in cert of title. 7.What is the effect upon the declaration of nullity
of torrens title where the property thereon was
Second paragraph applies in the event of redemption given as security to a bank loan? (does not
by the mortgagor. authorize the cancellation of the mortgage right of
In case of non-redemption, purchaser at foreclosure the bank which acted in good faith.
sale shall Aile with the registrar of deeds, either a Ainal 8.What is the effect of default in payment of any
deed of sale executed by the person authorized by installation of a debt secured by mortgage?
virtue of the power of attorney embodied in the deed (mortgagee’s right to foreclose as to such
of mortgage or his sworn statement attesting to the installments without waiting for the maturity of
fact of non-redemption, whereupon the register of the whole debt.)
deeds shall issue a new certiAicate of title in favor of
2018-2019
9.Who are the parties in the foreclosure suit? 1.A provision in the mortgage contract in which
(persons obligated to pay mortgage debt; person the mortgage is a security for past, present and
who own, occupy or control the mortgaged future indebtedness; clause originated from
premises or junior encumbrancer or any persons American jurisprudence.
claiming right or interest in the property
subordinate to the mortgage sought to be 2.Valid and legal contracts.
foreclosed; mortgagor even if not the owner of the 3.Operates as a convenience and accommodation
mortgaged property should be included to satisfy to the borrowers as it makes available additional
the deAiciency judgment) funds without their having to execute additional
10.What is the effect of failure to implead second security documents, this saving time. Travel loan
mortgagee? (foreclosure ineffective against him, a closing costs, cost of extra legal services, etc.
subordinate lien holder, with the result that there 4.While REM may exceptionally secure future
remains an unforeclosed equity of redemption.) loans or advancements, these future debts must be
11.What is the remedy in the preceding question? sufAiciently described in the mortgage contract. An
( require the second mortgagee to redeem the 1st obligation is not secured by a mortgage unless it
mortgage within 3 months under penalty of being comes fairly within the terms of the mortgage
debarred from the exercise of his right to redeem.) contract.
12.Are adverse claimants necessary or proper NOTES FROM DEAN ALEX MONTECLAR
parties to a foreclosure suit? (adverse claimants
asserting title antagonistic to the mortgagor are Complaint for foreclosure
neither necessary or proper parties, unless they Sec. 1- In an action for the foreclosure of a mortgage
are asserting rights or interest acquired by them or other encumbrance upon real estate, the
prior to the registration of mortgage sought to be complaint shall set forth the date and due
foreclosed in which case they may be necessary execution of the mortgage; its assignments, if any;
but not indispensable) the names and residences of the mortgagor and
the mortgagee; a description of the mortgaged
13.Is the Airst mortgagee a necessary party in the property; a statement of the date of the note or
foreclosure of the 2nd mortgage? (no, but he maybe other documentary evidence of the obligation
joined or may intervene when the mortgage debt secured by the mortgage, the amount claimed to
is already due) be unpaid thereon; and the names and residences
14.Does the rule apply to judicial foreclosure of of all persons having or claiming an interest in
chattel mortgage? (yes. Accdng to justice ferra the the property subordinate in right to that of the
rule is now limited to judicial foreclosure of chattel holder of the mortgage, all of whom shall be made
mortgage is deleted from the present rule, it may defendants in the action.
be applied to judicial foreclosure of chattel
mortgage subject to the provisions of chattel Where to ;ile complaint
mortgage law)
15.Does the rule preclude the extrajudicial Foreclosure may be judicial or extra-judicial
foreclosure under sec. 14 act 1508? NO This Rule 68 governs judicial foreclosure
16.What is the remedy if the property is in the
Extra-judicial foreclosure is allowed only when so
mortgagor’s possession? Replevin
provided in the contract in accordance with [x] 135,
17.Can sale of property be done under act 3135? as amended by Act 4118
(no, absence of stipulation.)
Who must be joined as defendant?
Sec. 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 Right of junior encumbrancer if not impleaded
estate mortgages under this Rule insofar as the former When the defendant xxx fails to pay the amount of
are not inconsistent with or may serve to supplement the judgment within the period speciAied therein, the
the provisions of the latter. 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.
DRAGNET CLAUSE OR BLANKET MORTGAGE
CLAUSE (BAR 2012)

2018-2019
Such sale shall not affect the rights of persons

holding prior encumbrances upon the property or a *However, in judicial foreclosure of mortgages by
part thereof, and when conAirmed by an order of the PNP, DBP, and the other banking institutions, the
court, also upon motion, it shall operate to divest the mortgagor has one year from the registration of
rights in the property of all the parties to the action the deed of sale, whether the foreclosure was
and to vest their rights in the purchaser, subject to judicial or extra-judicial. But, the party,
such rights of redemption as may be allowed by law. redeeming must pay the amount ;ixed by the
court in the order or execution, not the amount
Effect of Sale of Mortgaged property for which the property was purchased at public
Sec. 3(2) - Upon the Ainality of the order of auction.
conAirmation or upon the expiration of the period of
redemption when allowed by law, the purchaser at Disposition of the proceeds of sale
the auction sale or last redemptioner, if any, shall be Sec. 4- The amount realized from the foreclosure sale
entitled to the possession of the property unless a of the mortgaged property shall, after deducting the
third party is actually holding the same adversely to costs of the sale, be paid to the person foreclosing
the judgment obligor. The said purchaser or last the mortgage, and when there shall be any balance or
redemptioner may secure a writ of possession, upon residue, after paying off the mortgage debt due, the
motion, from the court which ordered the same shall be paid to junior encumbrancers in the
foreclosure. order of their priority, to be ascertained by the court,
or if there be no such encumbrancers or there be a
Judgment on foreclosure (90 to 120 days to pay) balance or residue after payment to them, then to the
Sec. 2- If upon the trial in such action the court shall mortgagor or his duly authorized agent, or to the
Aind the facts set forth in the complaint to be true, it person entitled to it.
shall ascertain the amount due to the plaintiff upon
the mortgage debt or obligation, including interest De;iciency Judgment
and other charges as approved by the court, and Sec. 6- If upon the sale of any real property as
costs, and shall render judgment for the sum so provided in the next preceding section there be a
found due and order that the same be paid to the balance due to the plaintiff after applying the
court or to the judgment obligee within a period of proceeds of the sale, the court, upon motion, shall
not less than ninety (90) days nor more than one render judgment against the defendant for any such
hundred twenty (120) days from the entry of balance for which, by the record of the case, he may
judgment, and that in default of such payment the be personally liable to the plaintiff, upon which
property shall be sold at public auction to satisfy the execution may issue immediately if the balance is all
judgment due at the time of the rendition of the judgment;
otherwise; the plaintiff shall be entitled to execution
Multiple appeal in judicial foreclosure, thus. The at such time as the balance remaining becomes due
period of appeal is 30 days under the terms of the original contract, which time
shall be stated in the judgment.
3 Stages of Judicial Foreclosure Subject of appeal
1.) Judgment of Foreclosure Registration
2.) Order conAirming foreclosure sale 3.) A certiAied copy of the Ainal order conAirming the sale
DeAiciency judgment shall be registered in the Registry of Deeds.
If no right of redemption exists, the certiAicate of title

N.B. In judicial foreclosure, there is no right of the mortgagor shall be cancelled, and a new one will
redemption except mortgages with the bank, but the be issued in the name of the purchaser.
mortgagor has the equity of redemption before the
conAirmation of the foreclosure sale. If there is right of redemption, the order shall be
annotated only.
* If debt is not paid within the period provided, a - In the event the property is redeemed, the deed
motion for issuance of an order for the of redemption shall be registered with the
foreclosure sale is non litigable and can be issued registry of deeds, and a brief memorandum
ex-parte. However, motion for the con;irmation of thereof shall be made by the registrar of
sale requires a hearing. deeds on said certiAicate of title.
*Upon con;irmation of the foreclosure sale, the - If not redeemed, the Ainal deed of sale executed
equity of redemption is cut off and the title vests by the sheriff shall be registered and only
in favor of the purchaser retroactive to the date then that the title of the mortgagor will be
of actual sale

2018-2019
cancelled and a new one is issued in the If the co-owners cannot agree on the partition, the
name of the purchaser. court shall appoint commissioners.
RULE 69 — PARTITION Appointment of Commissioners

The court shall appoint not more than 3
NOTES FROM DEAN ALEX MONTECLAR commissioners if the co- owners cannot agree as to
the manner of the partition. The commissioners will
be the ones who shall do the actual partition of the
PARTITION property.
Presupposes that there is a property co-owned by
co-owners and one of the co-owners would want to As opposed to Rule 32 wherein appointment of
dissolve the co-ownership for him to get his own commissioners is discretionary upon the court, in
share in the co-owned property. For the co-owner to partition and expropriation the appointment is not a
get his or her share, he or she must Aile a complaint matter of discretion but mandatory.
for partition.
Obligations and duties of commissioners
Complaint for Partition of Real Estate Must take their oath before the judge
Order of Partition and Partition by Agreement of
Parties Two Kinds of Partitions They shall conduct a hearing to hear the defendants
1. Extrajudicial Partition to determine how the property is to be partitioned.
2. Judicial Partition
Assignment or sale of real property
Rule 69 refers to Judicial Partition. Generally, If the property is either very small or impossible to
partitions should be done extrajudicially by the co- partition, the commissioners shall ask who amongst
owners by deciding amongst themselves on how to the co-owners is willing to buy-out the other co-
partition the property and execute an extrajudicial owners. Once paid, the co-owners will sign a deed of
partition. Only if the co-owners cannot agree on how assignment.
to partition should they go to court.
If one of the co-owners refuses to sell his or her
How commenced/Where to File and Proceedings share to one of the co-owners, the commissioner will
Partition is commenced by the Ailing of a veriAied sell the entire property in a public auction to any
complaint in the RTC of the place where the real interested property outside the co-owners and the
property is located. proceeds instead will be partitioned.
The one who Ailed (the co-owner) must implead all Report of the commissioners
the other co- owners since they are all considered as The commissioners will make a report to the court
indispensable parties. If even one co-owner is not after conducting the hearing and how the partition is
impleaded, such is fatal to the complaint since it is a done
ground to dismiss the case for failure to implead all
indispensable parties. Action of the court on the report
The report may either be dismissed or adopted by
Once Ailed, the summons will be served to the the court. Just like the rule in expropriation, the
defendants who are ordered to Aile Answers. After commissioner’s report is not binding.
the latter, the court will conduct hearing to
determine whether or not the plaintiff has a valid Accounting for rents and pro;its
cause of action: if the plaintiff is a co-owner or not. If the property that is co-owned and subject to
judicial partition is in the possession of only one co-
If the court is convinced of the plaintiff’s right as a owner and he is the one enjoying the fruits on the
co-owner, the court will render judgment which will rental of the property, then he shall be accountable to
be contained in the Order of Partition. the other co-owners. The other co-owners may ask
for an accounting for rents and proAits from the co-
After the Order is issued, the court will give the owner who is the sole possessor of the co-owned
parties a chance to partition it themselves (a second property.
chance aside from the extrajudicial partition).
Costs and expenses Who will shoulder?
If the co-owners can agree as to how the partition is All costs and expenses in the judicial partition shall
made, their agreement shall be reduced in writing be shouldered by all the co-owners which shall be
and submitted to the court for its approval charged as costs against the property itself.

2018-2019
Register of Deeds  
Once the partition is approved, then the court will 2. What real actions are contemplated to be under
render a judgment of partition which shall be the exclusive jurisdiction of the MTCs under RA
registered in the register of deeds. In the partition of 7691? 
the property, the metes and bounds of the property  
which are adjudicated to the different co-owners Note: RA 7691 expands the jurisdiction of the MTC
must be speciAically described in the judgment since which are now vested with exclusive original
this will be the basis of the register of deeds to issue jurisdiction over other real actions where the assessed
new titles. value does not exceed P 20,000 and P 50,000 in Metro
Manila.  
Dean Monteclar So in the partition of the property,  
the metes and bounds of the property that are Ans: Accion Publiciana and Accion Reinvindicatoria
adjudicated to the different co-owners must be where the assessed value of the property DOES NOT
speciAically described in the judgment because that exceed the mentioned amounts.
will be the basis for the Registry of Deeds to issue  
new titles (from one title into several titles) and the 3. Can recovery of possession / ownership of public
RD will issue new titles based on the technical land be Ailed with the regular courts while a sales
description of the property adjudicated to each of the application for said parcel is pending adjudication
co-owners. before the Bureau of Lands? 
So the judgment on partition, must state speciAically  
the metes and bounds of each portion of the Ans: Yes, Regular courts are not divested of their
property that is assigned or adjudicated to one of the jurisdiction over possessory actions instituted by
co-owners. applicants to protect their possession.  
 
4. Who may Aile action? 
Ans:  
RULE 70 — FORCIBLE ENTRY AND a. In Forcible entry - the person deprived of possession
UNLAWFUL DETAINER by force, intimidation , threat , strategy or stealth  
b. In Unlawful detainer - by the landlord, vendor or
N O T E S F R O M J U S T I C E M A R I LY N YA P vendee or other person against whom possession of
land or building is unlawfully withheld , legal
representative or assignee of any landlord , vendor or
1. What are the 3 kinds of possessory actions of vendee or other person.  
real property?   
Ans:   TN: a purchaser who has consolidated title may Aile an
a. ejectment case or Writ of possession even if there is a
A.) Accion Interdictal – (Ejectment) pending action for annulment of mortgage or
- the only issue is material or physical possession; foreclosure.  
even if issue on ownership is raised, under the new  
rules, the MTC can already passed upon the issue on 5. Distinguish between FE and UD 
ownership but only for purposes of determining Ans:  
possession a. Nature of Possession  
FE- possession was done or removed from him by way
- the determination of ownership by the court does of force, intimidation , threat , stealth or strategy
not really resolve the issue of who is really the owner; ( FISTS)  
does not really declare one as the owner. UE - possession by defendant at Airst lawful , But later
on, the possession of the defendant becomes unlawful
- the determination of ownership is only for –like when the contract of lease has already expired.
purposes of aiding the court in determining the issue When the contract of lease has already expired, the
of possession. owner of the property, the lessor, has the right to
recover the property. If the defendant will refuse to
return possession of the property, then that is when
B.) Accion Publiciana – recovery of the real right of the action for Unlawful Detainer will lie.  
possession and is a plenary action in an ordinary civil  
proceeding in the RTC b. Requirement of Demand 
FE- no need of demand , you can immediately Aile the
C.) Accion Reivindicatoria – seeks the recovery case for forcible entry without making demand  
ownership & possession ( jus utendi and jus fruendi) UD- demand is jurisdictional , since possession of the
this is also before the RTC   property by the defendant was lawful at Airst it only

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became unlawful later   emption or prior purchase of leased premises? 

   
TN: demand must be for rental and to vacate to be Ans: No, ejectment case is not abated by action for
sufAicient  ownership because the actions in the RTC did not
  involve physical or de facto possession and just actions
c. Prior Physical possession of the premises   was merely to delay disposition of the ejectment
FE- unlawful from the very beginning   proceeding.
UE - lawful at the beginning just became unlawful
from the expiration of lease  Does an injunction suit in the RTC instituted by
  defendant in ejectment avat the later case? ( Lim Si
d. One Year period from date or actual entry / last v. Lim)  
demand   
FE-  Ans: Injunction suits instituted in the RTC by
> Aile the case within 1 year from dispossession or   defendants in ejectment actions in the MTC or other
> 1 year from knowledge of dispossession ( if based courts of the Airst level DO NOT abate the latter; and
on stealth or strategy )   neither do proceedings on consignation of rentals.  
   
UD- 1 year will start from notice to vacate   10. Cannot abate ejectment actions :  
  -Proceedings consignation  
NOTE: If one year period has already expired from the -accion publiciana does not suspend an ejectment suit
time you were dispossessed or from the time you against plaintiff in the former ( Ramirez vs Bleza) 
demanded to vacate, then the action you will Aile shall -Writ of possession case  
be action publiciana or action reinvidicatoria.   -Action for quieting of title  
  - Suits for speciAic performance to compel renewal of
6. Distinguish from Quieting of title   lease with damages  
When is it proper?  -Action for reformation of instrument from a deed of
Ans:   absolute sale to one of sale with pacto de retro  
a.Whenever there is a cloud on title to real property or -Action for reconveyance or accion reindivicatori  
any interest therein, by reason of any instrument , -Suits for annulment of sale, or title or document
record , claim , encumbrance or proceeding which is affecting property to operate 
apparently valid or effective but is in truth and in fact  
invalid, ineffective, voidable or unenforceable and 11. Reason (for num 9 )  
may be prejudicial to sid title, an action may be  
brought to remove such cloud or to quiet title. ( Art. Ans: The underlying reasons for the above rulings
476 NCC)   were that the actions in the RTC did not involve
  physical or de facto possession and on not a few
b. When the contract , instrument or other obligation occassions, that the case in the RTC was merely a ploy
has been extinguish or has terminated or has been to delay disposition of the ejectment proceeding , or
barred by extinctive prescription that the issues presented in the former could quite as
easily be set up as defenses in the ejectment action
c. To prevent a cloud from being cast upon title to real and there resolved.  
property or any interest therein.    
  12. Is the lessor required to bring ;irst an action
Requisites of quieting of title  for rescission ? (Estern Shipping Lines v Ca) 
The plaintiff must have legal or   Ans: No, when the relationship between lessor and
  lessee is established in an unlawful detainer case, any
7. How is jurisdiction determined? Would attempt to inject the question of ownership into the
assertion of ownership by defendant or tenancy case is futile , except as might throw light on the right
relation oust the court of its jurisdiction? (no)   of possession.  
   
Ans: Jurisdiction is determined by the nature of the 13. Can the MTC resolve issue of ownership in FE
action set forth in the complaint , and mere assertion and UD cases? 
of ownership by the defendant or tenancy relationship  
does not oust the court of its jurisdiction.   Ans: Yes, Under BP 129 , when the defendant raises
  the question of ownership in his pleadings and the
  question of possession cannot be resolved without
8. Should the unlawful detainer suits be abated by deciding the issue of ownership.. only to determine the
the actions ;iled in the RTC by petitioners lessees issue on possession.  
contending that they are entitled to a right of pre-  

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14. Would the adjudication by the MTC on the issue of the subject property and not the status of private
of ownership bar an action between the parties respondent’s tenant (plaintiff in the DARAB case) and
involving title?  his alleged FE form the property is not the issue raised
  in the FE case. ( Bena videz v CA)  
Ans: No, The adjudication is merely provisional.  
Necessary consequence of the nature of FE AND UD 28. Does the MTC have jurisdiction if the ground
cases where the only issue is physical or material for ejectment involved consideration of the rights
possession over the real property, that is , possession and obligations of the parties in a sale of real
de facto.   estate under PD 957? 
  Ans: No, jurisdiction is with HLURB  
15. Is ownerhsip a valid defense in UD?   
  29. What is possession de facto?  
Ans: Yes, while possession is the main issue in  
ejectment, it is also one of the essential attributes of Ans: Physical possession of real property. If plaintiff
ownership. It follows that an owner of real property is has priority in time, he has security that entitles him
entitled to possession.   to stay in the property even against the owner until he
is lawfully ejected by a person having better right by
Name the seven attributes of ownership.   accion publiciana or accion reindivicatoria.  
Ans: Right to possess, use and enjoy , to abuse or  
consume, to accessories, to dispose or alienate, to 30. Discuss the jurisprudence on the validity of
recover or vindicate and to the fruits)   stipulation to take over without judicial action.  
A. SC sustained validity of stipulation in a lease
  agreement. Stipulation is in the nature of a resolutory
17. Does Rule 70 apply to agricultural tenants  condition. Upon exercise of sub-lessor of his right to
Ans: No, But there must be evidence of tenancy take possession of the leased property, the contract is
relationship. Mere allegation is not enough.   deemed terminated.. Contractual provision is NOT
  illegal , there being nothing in the law proscribing such
18. What shall the court do if there is a defense of kind of agreement.( consing v Jamandre)  
tanancy?    
Ans: There must be a preliminary hearing on the b. Validity of stipulation to extrajudicially rescind
question of tenancy relationship   contarct and recover possession of the proerty in case
  of breach of contract; stipulation empowers the lessor
19. does the allegation that an agricultural tenant to repossess the apartment extrajudicially.  
tilled the land automatically make the case an agrarian  
dispute?  C. Clarifying the rule - Sc stressed that the application
Ans: No, it is necessary to Airst establish the existence of the provision is limited to situations where the term
of a tenancy relationship between paty litigants   of the lease has expired and the logic in allowing the
  lessor to dispossess the tenant who has padlocked the
20. What are the essential requisites to establish a premises to prevent re-entry by the owner despite the
tenancy relationship?  expiration of the term of the lease CANNOT BE
Ans:   ASSAILED.  
-Parties are landowner and tenant    
-agricultural land   30. D. Resort to courts may be necessary when the
-consent   right involves the retaking of the property which is
-purpose is for agricultural production , personal not voluntarily surrendered by the other party.. 
cultivation by tenant   - SC agreed with the CA that such broad stipulation
-sharing of harvests between parties  CANNOT be sanctioned for the reason that it would
  allow the lessor/ owner to take the law into his own
26. If issues of ownership and possession de facto hands , and undetermined, the philisophy behind the
are intricately interwoven can these cause the remedy of FE which is to prevent breach of peach and
dismissal of the ejectment case?  criminal disorder and to compel the party out of
Ans: No, Under BP 129 , the MTC retains jurisdiction possession to respect and resort to the law alone to
even if the question of possession cannot be resolved obtain what he claims to be his.  
without passing upon the issue of ownership provided  
that such issue shall be resolved only for the purpose  
of determining possession.   31. When the tenant denies his landlord’s title, this
  gives rise to a right of action of the part if the
27. The question in the FE case is the right of private landlord to recover immediate possession of the
respondent to be restored to the physical possession demised premises; and it follows as a necessary

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corollary that if the landlord acquires possession Ans:  

peacefully , by the mere act of re-entry , the tenant -Who had actual possession over the real property  
cannot maintain an action to put the landlord out.   -Was the possessor ousted from within one year form
  the Ailing of the complaint by force stealth ,threat ,  
32. What must be alleged in a complaint for FE>  -Does plaintiff ask for the restoration of his possession  
Ans: That one in physical possession of a land or
building has been deprived of that possession by What is the proper remedy against a person who
another through force, intimidation, threat , strategy occupies the land of another at the latter’s
or stealth.  tolerance or permission , without any contract
  between them ?  
33. Is the bare allegation that the plaintiff has been  
deprived of the land of which he is and has been Ans: A summary action for ejectment as the person is
the legal owner , suf;icient?   necessarily bound by an implied promise that he will
Ans: NO vacate upon demand.  
Is the allegation that the defendant has unlawfully Was there tolerance , where there was FE at the
turned the plaintiff out of possession of the land/ start but the lawful possessor did not attempt to
building in litigation , sufAicient?  oust the intruder for over a year and only
  thereafter ;iled FE following the demand to vacate? 
Ans: No, the phrase “turned the plaintiff out of TN: Tolerance cannot convert FE case into UD case 
possession “ suggests the use of force in the taking of  
the possession away from him.   Ans:No, tolerance must be presented right right from
  the start of possession sought to be recovered to
35. Is the phrase “thereby depriving said owners of categorize a cause of action as one of unlawful
the possession of the same” suf;icient averment of detainer.  
prior physical possession? 
  Where the petitioner’s alleged ownership over the
Ans: No, cannot be inferred that the possession that property is evidence by a TCT and that upon
petitioners were supposedly deprived of is a prior issuance thereof, she demanded through counsel ,
physical possession. that private respondents vacate the premises
  within ;ifteen days from notice but the latter
36. What does possession as used in FE and UD refused to vacate , are these allegations suf;icient
mean?  to make a case of UD? 
   
Ans: Nothing more than physical possession , NOT Ans: Yes, the allegations amount to an UD withholding
LEGAL possession contemplated in civil law; must of the property because private respondents
likewise show priority in time.   continuously refused to vacate the premises even after
petitioner’s counsel had already send them notices.  
In case of “stealth” when is the one year period to
be counted?  In the RTC , petitioner ;iled a complaint for “
Ans: form the time the plaintiff learned thereof   Termination of Civil Law Lease ; Recovery of
Possession ; REcovery of Unpaid rentals and
What is stealth?  damages .” After alleging the lease of the property
Ans: Any secret, sly or clandestine act to avoid including Inayan’s refusal to pay rent and to vacate
discovery and to gain entrance into or remain within , petitioner prayed that the trial court declare the
residence of another without permission. Plaintiff civil law lease terminated , that the defendant be
must establish when and how the alleged entry was ordered to vacate , pay back rentals, unpaid
made on the portion of their lot to prove that irrigation fees and moral and exemplary damages
defendants encroached upon their property through and litigation expenses. Is the case for UD under
stealth.   the MTC jurisdiciton? 
 
What is the legal remedy where adobe wall and Ans: No, case did not concern merely the issue of
overhang window grill encroaches on one’s possession but the nature of the lease contracted by
property?  the petitioner’s predecessor-in-interset and private
Ans: accion publiciana or reindivicatoria as this respondent , propriety of terminating relationship
involves boundary dispute   contracted by parties, demand to deliver premises ,
pay unpaid rentals , damages and incidental fees.  
What are the questions to be resolved in an action
for FE? 

2018-2019
What is the case to ;ile if the sheriff places the -if the objec+ve is only -is proper to compel lessor
purchaser in possession before the expiration of restora+on of possession to perform part of contract
the redemption period?  even if there is another case to maintain lessee in
  for resale of property of peaceful enjoyment of the
Ans: Forcible Entry  
defendant   lease for the dura+on of
-where lessee was deprived contract, where lessor with
If after the defendant ;iled his answer in an action
for UD , he vacates the property and is no longer in by lessor by strategy or aid of armed men forcibly
possession , does the case remain to an UD and not stealth   dispossessed lessee of
for collection?  -where there was neither fishpond
  demand to pay rental or
Ans: Yes, the UD continues as such even if defendant refusal by lessee to pay  
vacates.  -when landlord entered into
a new contract of lease
Is the defense that the contract of lease authorized effec+vely depriving the
lessees to continue occupying the premises as long lessee of his lease.
as they pay the rents an untenable defense? 
   
Ans: Yes, it leaves to the lessess the sole power to
determine whether the lessee shall continue or not.   What is the effect if the contract of lease expired
during pendency of appeal? 
Do courts have jurisdiction to resolve who has  
prior possession of public land?  Ans: Maybe dismissed for being moot and academic.
  Sub-lessee without right to remain in possession of
Ans: Yes. , Courts have jurisdiction to resolve who has property beyonf lease period. 
prior possession of public land  
Can an ejectment case survive the death of a party? 
Renewal of the contract connotes death of the old Ans: TYes, the lessor’s demise DID NOT extinguish the
contract and the birth or emergence of a new one. A desahucio suit instituted by her thru her guardian. The
clause in a lease providing for an extension operates of action , not being a purely personal one, survived her
its own force to create an additional term. A clause death, her heirs have taken her place and now
providing for a renewal creates an obligation to execute repersent her interests in the appeal at bar.  
a new lease contract for an additional term. Renewal of
contract contemplates the cessation of the old contract, What are the incidents to the main issue of possession
hence , it is necessary that a new one be executed de facto? 
between parties. ( Buse vs CA)    
Ans: Whether or not relationship between parties is
one of landlord and tenant 
Also , the demand not being ( able) to pay rent and to - WON there is a lease contract  
vacate did not render the cause of action de=icient. -WON it had expired  
Based on the complaint , the petitioner’s possession was -their rights according to CC 
allegedly based on the respondent’s tolerance , not on - power of court to Aix period of lease.
any contract between them. Hence, the demand to
vacate suf=iced.  Sec. 2 Lessor to proceed against lessee only a4er
( Dolores vs Renato)   demand  
  -Unless otherwise s-pulated, such ac-on by the lessor
FE vs Speci;ic Performance shall be commenced only a7er demand to pay or comply
  with the condi-ons of the lease and to vacate is made
FORCIBLE ENTRY SPECIFIC PERFORMANCE upon the lessee, or by serving wri;en no-ce of such
demand upon the person found on the premises, or by
pos-ng such no-ce on the premises if no person be found
thereon, and the lessee fails to comply therewith a7er
fi7een (15) days in the case of land or five (5) days in the
case of buildings. (2a)
How is demand made by the lessor against the

lessee? 
Ans: 

2018-2019
a. Personally upon tenant (may be oral)   

b. Service of written notice of such demand upon Ans: It is the owner’s demand for the tenant for the
person found in premises   tenant to vacate the premises, when the tenant has
c. Posting in premises of no persons are found thereon  failed to pay the rents on time , and the tenant’s
  refusal or failure to vacate , which make Unlawful
2. What is the effect of non-recourse to barangay withholding of possession.  
conciliation?   
Ans: Non-compliance with the condition precedent 8. The owner noti;ied the tenants to pay rent and
prescribed by PD 1508 could affect the sufAiciency of failing to do so, a case of ejectment would be ;iled
plaintiff’s cause of action and make his complaint against them . Does the notice make a demand
vulnerable to dismissal on the ground of lack of cause upon them to vacate the premises?  
of action or prematurity.    
  Ans: When the lessor demanded payment of the due
3. How shall the one-year period counted from last and unpaid rentals or a case of ejectment would be
demand to be interpreted?  Ailed against them , the owner was giving strong notice
Ans: Can accrue when the second demand for rents that “you either pay your unpaid rentals or I will Aile a
and for surrender of possession was not complied court case to have you thrown out of my property” 
with. There is the assumption that after the Airst  
demand, the lessor (has the privilege to ) waive (d) the 9. Does acceptance by the lessor of payment by
right to bring proper action and allowed lessee to lessee of rentals in arrears constitute waiver if the
continue in his occupation until the second demand is default in payment rentals as a valid cause of
waived.   action for ejectment ?  
   
EXC: Subsequent demands were mere reminders to Ans: Acceptance of Arrears not a waiver  
comply with previous agreement to voluntarily vacate,  
one-year period counted form the Airst demand.   10. How shall Sec. 2 , Rule 70 be interpreted?  
   
4. Is the allegation that defendant is unlawfully Ans: Rule on Strictissimi Juris  
withholding possession from plaintiff suf;icient?   
Ans: Yes RULE: A complaint for ejectment which does not allege
a de=inite demand to vacate the premises before
bringing the action nor that such demand has been
What should be alleged in complaint for unlawful made in the form required Section 2 of Rule 72,
detainer against tenant?  personally, or by serving written notice, or by posting
  such notice is held not to establish a cause of action. 
Ans:    
a. Tenant withholding possession of property illegally - since jurisdiction hinges on the one year period after
because his right to possess under his contract with such unlawful deprivation or withholding of
landlord has expired.   possession does not clearly appear on the face of the
b. Landlord has made a demand upon the tenant to complaint and for the reason that petitioner’s have
comply with the terms of contract and to return admitted that private respondents were in the land
possession of the property; tenant failed to satisfy and for more than one year prior to the time
demand within 15-5 days ) incase of buildings)   complaint was lodged , case should be dismissed.  
c. Complaint Ailed within one year from date of  
demand   11. A liberal interpretation of technical rules which
  does not subvert the nature of the Rule on Summary
6. Does failure to pay rent make tenant’s Procedure nor defeat its objective of expediating
possession unlawful?  adjudication of suits is not disfavored by the court  
   
Ans: No, Based on Sec. 2 Rule 70 , it is the failure to 12. Con;licting rulings suf;iciency of alternative
pay rents after a demand is made that entitles the demand to pay increase or vacate 
lessor to bring an action of UD. Demand contemplated  
in this provision is not a demand to vacate but a  
demand made by the landlord upon his tenant for the 13. Need of notice of prior termination and to
latter to pay rents due or comply conditions of his vacate in month-to month contract  
lease within 15-5 days..)   -The rule is applicable only where there is a lessor-
  lessee relationship and where the grounds relied upon
7. What makes the withholding of possession for ejectment are nonpayment of rentals or violation
unlawful?  of the conditions of the lease, but not when the action

2018-2019
is to terminate the lease because of the expiration of Sec. 3. Summary procedure  

the term.  -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
14. Notice of termination and to vacate is to make amount of damages or unpaid rentals sought to be
termination effective  recovered, shall be governed by the summary procedure
- It would seem that the notice and demand to vacate here under provided, (n) 
required on a lease on a month-to-month period is to  
render effective the termination of the lease upon the SEC. 4. Pleadings allowed. — The only pleadings allowed
expiration of the month, and prevent an implied to be =iled are the complaint, compulsory counterclaim and
renewal of the lease.  cross-claim pleaded in the answer, and the answer thereto.
-demand to vacate is not required when the action is All pleadings shall be veri=ied. (3a, RSP) 
to terminate the lease because of the expiration of its
term. Upon the expiration of the term, the tenant SEC. 5. Action on complaint. — The court may, from an
becomes a deforciant unlawfully withholding the examination of the allegations in the complaint and such
property.  evidence as may be attached thereto, dismiss the case
  outright on any of the grounds for the dismissal of a civil
15. Power to extend lease  action which are apparent therein. If no ground for
GR: if the period for the lease has not been Aixed , it is dismissal is found, it shall forthwith issue summons, (n)
understood to be from month to month basis.    
However, the courts may Aix a longer term for the lease  
after the lessee has occupied the premises for over a 1. Is the reglementary period in ;iling answer
year  mandatory and non-extendable?  
  Ans: Yes 
16. Other cases   
  2. Is an answer after the relementary period to be
17. Purchaser at public auction may ;ile unlawful expunged from the records?Can an entry of default
detainer  be entered if defendant fails to ;ile answer? 
-since under the rules, if the mortgaged property is not  
redeemed within one year form the foreclosure sale, Ans: No, no provision in the law.  
the purchaser at public auction is entitled to  
possession of the property .   3. Compulsory counterclaim for improvement.  
  - said claim for compensation should have been
18. Non-payment of rentals as ground for presented as a counter claim in the ejectment suit
ejectment even if complaint is prematurely ;iled.   since it is essentially in the nature of a counterclaim
  which is interwoven with the fact of possession  
   
TN:  
-where terms of lease expires; NO NEED OF prior SEC. 11. Period for Rendition oFjudgment. — Within
demand to vacate. thirty
- alternative demand to vacate is insuf=icient   (30) days after receipt of the af=idavits and position
- Prior physical possession is not always a condition papers, or the expiration of the period for =iling the
precedent in Unlawful detainer   same, the court shall render judgment.
- On the other hand, Prior physical possession is  
indispensable ONLY in actions for FE. However, should the court =ind it necessary to clarify
  certain material facts, it may, during the said period,
issue
an order specifying the matters to be clari=ied, and
require
the parties to submit af=idavits or other evidence on the
said matters within ten (10) days from receipt of said
order. Judgment shall be rendered within =ifteen (15)
days after the receipt of the last af=idavit or the
expiration of the period for =iling the same. 
The court shall not resort to the foregoingprocedure

just to gain time for the rendition of the judgment, (n)

2018-2019
  value are not recoverable in an ejectment case. Other

1. What are the provisional remedies that the damages must be claimed in an ordinary action.2 But
inferior court can issue ?  while actual, moral and exemplary damages are not
  permissible,3 a counterclaim for moral and exemplary
Ans: preliminary attachment , FE and UD preliminary damages within the court's jurisdiction is permissible. 
injunction   
  TN: Atty.’s fees may be awarded in ejectment cases  
 
SEC. 16. Resolving defense of ownership. — When the 2. Can liquidated damages for breach of contract of
defendant raises the defense of ownership in his pleadings lease allowed in an unlawful detainer case? 
and the question of possession cannot be resolved without  
deciding the issue of ownership, the issue of ownership Ans: Yes 
shall be resolved only to determine the issue of possession.  
(4a)
  SEC. 18. Judgment conclusive only on possession; not
1. What are the guidelines that must be observed conclusive in actions involving title or ownership. —
in the implementation of the prescription in BP The judgment rendered in an action for forcible entry or
129 m vesting upon the inferior courts detainer shall be conclusive with respect to the possession
adjudicatory power over the issue of title or only and shall in no wise bind the title or affect the
ownership in ejectment suit?   ownership of the land or building. Such judgment shall not
  bar an action between the same parties respecting title to
A. Principle issue must be that of possession and that the land or building. The judgment or =inal order shall be
ownerhsip is merely ancillary  appealable to the appropriate Regional Trial Court which
B. The allegations in the complaint must sufAiciently shall decide the same on the basis of the entire record of
appear that what plaintiff really seek is the restoration the proceedings had in the court of origin and such
of possession   memoranda and/or briefs as may be submitted by the
c. Inferior court cannot adjudicate on the nature of parties or required by the Regional Trial Court. (7a)
ownership where relationship of lessor and lessee has  
been sufAiciently established in the ejectment  1. Against who is the judgement binding? 
d. in FE , a party who can prove prior possession even  
against owner himself   Ans: Trespassers, squatters or agents of defendant,
e. Any pronouncement affecting ownerhsip is merely guests or other occupants of the premises with
provisional and does not prejudice an action between permission of defendant ; transferee pendente lite;
same parties involving title to the land.   subleases; members of the family ,relatives and other
  privies of defendants  
 
SEC. 17. Judgment. — If after trial the court Ainds that 2. Power of the court in ejectment cases to decide
the allegations of the complaint are true, it shall render issue of builder in good faith.  
judgment in favor of the plaintiff for the restitution of the - as an incident to the main issue of possession de
premises, the sum justly due as arrears of rent or as facto the inferior court can decide if the defendant has
reasonable compensation for the use and occupation of built on the land a substantial and valuable building
the premises, attorney's fees and costs. If it Ainds that said and there is no dispute between the parties as to the
allegations are not true, it shall render judgment for the ownership of the land and building , their rights
defendant to recover his costs. If a counterclaim is according to the civil code.  
established, the court shall render judgment for the sum  
found in arrears from either party and award costs as
justice requires. (6a) Sec. 19. Immediate execu;on of judgement ; how to stay same
 
1. Is a counterclaim for moral and exemplary  
damages permissible?  1. What are the requisites to stop execution ?  
  Ans:  
Ans: Yes, provided it is within the court’s jurisdiction.   a. Perfect appeal to RTC 
- The only damage that may be recovered in a forcible b. Aile supersedeas bond
entry Deposit current rentals or reasonable compensation
and unlawful detainer cases is the fair rental value or for the use and occupation of the premises.  
the reasonable compensation for the use and  
occupation of the leased property. TN: pendency of another action is not a ground to
A damage other than reasonable rentals or fair prevent execution  
rental  

2018-2019
2. Exceptions to the general rule that pendency of defeated litigant with a view to frustrating the
another action is not ground to prevent execution.   judgement
Ans: 
a. FAME ( fraud , accident, mistakeor excusable 2017 Slides
negligence)  
b. if judgement is silent on rentals m defendant is not 1.Three kinds of real actions affecting title to or
bound to make a deposit and CFI has no jurisdiction to possession of real property, or interest, namely: action
supply omission   reinvindicacion, accion publicana, and action
  interdictal. (Penta PaciAic Realty Corporation v. Ley
3. Where the judgement ordered lessee to pay but Construction and Development Corporation, 2014)
lessor appealed because he was not satis;ied with
the rental ;ixed by the court , should appellee 2.Forcible Entry or Desahucio — two mandatory
comply with payment of rental and supersedeas allegations for the municipal court to acquire
bond?   jurisdiction: plaintiff must allege prior physical
  possession of the property; and that he was deprived
Ans: yes, otherwise , execution will issue.   of possession by force, intimidation, threat, strategy or
  stealth; in resolution thereof what is important is
4. What is the rationale for requiring a losing party determining who is entitled to the physical possession
to ;ile a supersedeas bond?  of t he property; plaintiff needs merely to prove prior
Ans: Bond assures payment of damages to the winning physical possession de facto and undue deprivation
party in case the appeal is found frivolous or thereof. (Munoz vs. Atty. Yabut, 2011)
judgement appealed form is afAirmed.  
  3.Title is never an issue in forcible entry; the court
5. What are the items on superseadeas bond?  should base its decision on who had prior physical
Ans: I  possession.
a. Is Ailed with the MTC or with RTC if not executed yet.  
b. Timeliness   4.For forcible entry to prosper, plaintiffs must allege
  and prove that they have prior physical possession of
6. What does damages include in ejectment cases ?  property; that they were deprived of possession by
Ans: Limited to rent and fair rental value or the force, intimidation, threat, strategy, and stealth; that
reasonable compensation for the use and occupation action was Ailed within one year from the time the
of the property .   owners or legal possessors learned of their
  deprivation of physical possession. (Mangaser vs.
7. When does the MTC lose jurisdiction to issue a Ugay, 2014)
writ of execution , even if no supersedeas bond is
;iled?  5.Action for unlawful detainer is an improper remedy.
Ans: After perfection of appeal. Writ may be issued by But the action cannot be considered as one for forcible
the RTC. But once judgement is Ainal , writ should be entry without any allegation in the complaint that the
issued by the MTC.   entry of the defendant was by means of force,
  intimidation, threats, strategy, or stealth. (Quijano v.
8. Exceptional ruling based on strong reasons of equity Atty. Amante, 2014)
where court in certiorari and prohibition ordered
suspension of enforcement of writ of execution and 6.Unlawful detainer is the withholding by the person
order of denomination in illegal detainer in view of the from another of the possession of a land or building to
action Ailed by petitioner for quieting of title over the which the latter is entitled after the expiration or
lot.   termination of the former’s right to hold possession by
  virtue of a contract, express or implied. (Tagalog v.
9. What is the procedure where possession is Gonzalez, 2014)
claimed by stranger to case?  
Ans:  7.Complaint in unlawful detainer must allege that
a. Court suspends implementation of the writ of defendant originally had unlawful possession of the
execution   property, either by virtue of a contract or by tolerance
b. Court orders a hearing on the matter of such of plaintiff; defendant’s possession of property
possession and to deny or accede to the enforcement eventually became illegal or unlawful upon notice by
of a writ of possession as the Ainding shall warrant plaintiff to defendant of the expiration or termination
(where actual possessor may be claimed to be a privy of defendant’s right of possession; defendant
to any of the parties to the action, or his bona Aide remained in possession of the property and thereby
possession may be disputed or where it is alleged that deprived plaintiff of the enjoyment thereof; plaintiff
possession has been taken in connivance with the instituted the action within one year from unlawful

2018-2019
deprivation or withholding of possession. (Penta

PaciAic Realty Corporation v. Ley Construction and 16.Execution of RTC’s judgment under Section 21, Rule
Development Corporation, 2014) 70 is not discretionary execution but a ministerial
duty of the RTC. It is governed by Section 4, Rule 39 on
8.In ejectment cases, the ruling of the courts are judgments not stayed on appeal. It is an exception to
immediately executory and can only be stayed via the general rule that judgment of the RTC is staled by
compliance with Section 19 of Rule 70 of the Rules of appeal to the Court of Appeals under Section 8(b),
Court, i.e. (a) by perfecting an appeal; (b) Ailing a Rule 42 (Except in civil cases decided under the Rule
supersedeas bond; (c) making a periodic deposit of on Summary Procedure, the appeal shall stay the
the rental or reasonable compensation for the use and judgment or Ainal order unless the Court of Appeals,
occupancy of the property during the pendency of the the law or these rules shall provide otherwise). (Ato v.
appeal; failure to comply with any of these conditions CA, 2014)
is ground for outright execution of the judgment; duty
of the court is ministerial and imperative; supersedeas
bond should be Ailed within the period for the EXECUTION OF RTC
perfection of the appeal. (Alconera v. Pailanan, 2014) DISCRETIONARY JUDGMENT IN
EXECUTION EJECTMENT CASE ON
9.Rule 70, Section 19 applies only when the judgment APPEAL TO THE CA
of a municipal trial court xxx in an ejectment case
pending appeal before the RTC. When the RTC had May be availed of in the May be availed of in the
already resolved the appeal and its judgment, in turn RTC only before the Court RTC at any stage of the
is pending appeal before the Court of Appeals, then o f A p p e a l s g ive s d u e appeal to the Court of
Rule 70, Section 21, of the Rules given; authorises the course to the appeal Appeals
RTC to immediately issue a writ of execution without
prejudice to the appeal taking due course. (Republic As a rule, judgment of the
vs. Hon. Mangotara, 2010) R T C r e n d e r e d i n i t s
appellate jurisdictions CA may stay the writ of
10.Supreme Court’s opinion that on appeal, the b e i n g s o u g h t t o b e execution by the RTC
appellate court may stay said writ should executed in a discretionary s h o u l d c i rc u m s t a n c e s
circumstances so require. (Republic vs. Mangotara) execution is stayed by the require
appeal to the CA pursuant
11.Even if RTC judgments in unlawful detainer cases to Section 8b Rule 42
are immediately executory, preliminary injunction
may still be granted. There need only be clear showing
that there exists a right to be protected and that the Discretionary execution is
acts against which the writ is to be directed violates authorized while the trial
said right. (Republic v. Mangotara) court which rendered the
judgment sought to be Execution of the RTC
12.The RTC, in an appeal of the judgment in an e x e c u t e d s t i l l h a s judgment under Section 21
ejectment case, shall not conduct a rehearing or trial jurisdiction over the case R u l e 7 0 i s n o t
de novo. (Manalang v. Bacani, (Bersamin)) as the period to appeal has discretionary execution
not lapsed is in possession but a ministerial duty,
13.Absent a TRO, an order of quashal, or compliance of the original record or governed y Rule 39
with Seciton 19, Rule 70, respondent sheriff has no the record on appeal, at the
alternative but to enforce the writ. (Alconera v. time of the Ailing of the
Pailanan, 2014) motion for execution
14.Under the amendatory procedure introduced by

the present Section 21, Rule 70, the judgement of the 17. Ejectment suit cannot be abated or suspended by
RTC shall no be stayed by the mere continuing deposit the mere Ailing of another action raising ownership of
of monthly rentals by the dispossessor during the the property as an issue or injunction suits; or accion
pendency of the case with the Court of Appeals or the publiciana ; or writ of possession case; or an action for
Supreme Court, although such execution of the quieting of title to property ; or for speciAic
judgement shall be without prejudice to the appeal performance with damage ; or an action for
taking its due course. (Ato v. CA, 2014) reformation of instrument ; or for an action for
reconveyance of property or accion reinvindicatoria ;
15.RTC’s duty to issue a writ of execution under or suits for annulment of sale , title or document
Section 21, Rule 70 is ministerial and may be affecting property to abate ejectment actions
compelled by mandamus. (Ato v. CA, 2014) regarding same property

2018-2019
18. Only in rare instances is suspension allowed to

await the outcome of a pending civil action.
19. In VDA and amagan v Marayag , the SC ordered the

suspension of the ejectment proceedings on
consideration of equity.
- since the ejectment of petitioners would mean
demolition of their house and would create confusion ,
disturbance , inconvenience and expense… The court
would be wasting much time and effort by proceeidng
to a stage wherein the outcome would at best be
temporary but the result of enforcement would be
permanent , unjust and probably irreparable
20. Ejectment case fall within the original and

exclusive jurisdiction of the Airs level courts by express
provision of Sec. 33 (2) 49 of BP 129 , in relation of
Sec. 1 of Rule 70
21. The issue of ownership maybe resolved in deciding

the issue of possession if the quesiton of possession is
intertwined with the issue of ownership.
22. A judgement rendered in a FE case will not bar an
action between the same parties respecting title or
ownership because between a case for FE and an
accion reinvindicatoria , there is no idendity of causes
of action
23. A boundary dispute must be resolved in the

context of accion reinvindicatoria , NOT ejectment case

2018-2019
conduct directed against the authority and dignity of a

RULE 71 - CONTEMPT court.judge, as in unlawfully assailing/discrediting the
authority/dignity of the court/judge or in doing a duly
N O T E S F R O M J U S T I C E M A R I LY N YA P
forbidden act.
Strictly speaking, contempt proceedings are
S e c t i o n 1 . D i re c t co n te m p t p u n i s h e d not criminal prosecutions. The proceeding has been
summarily characterised as sui generis, partaking of some of the
A person guilty of misbehaviour in the presence of elements of both a civil and criminal proceeding, but
or so near a court as to obstruct or interrupt the really constituting neither.
proceedings before the same, including disrespect In general, criminal proceedings should be
toward the court, offensive personalities towards conducted in accordance with the principles and rules
others, or refusal to be sworn or to answer as a applicable to criminal cases, insofar as such procedure
witness, or to subscribe an af=idavit or deposition is consistent with the summary nature of contempt
when lawfully required to do so and punished by a proceedings.
=ine not exceeding two thousand pesos or
imprisonment not exceeding ten (10) days, or xxx Strict rules that govern criminal
equivalent or higher rank, or by a =ine not prosecutions apply to a prosecution for criminal
exceeding two hundred pesos or imprisonment contempt, that the accused is to be afforded many of
not exceeding one (1) day, or both, if it be a lower the protections provided in regular criminal cases, and
court. that proceedings under statues governing them are to
be strictly construed.
Section 2. Remedy therefrom. However, criminal proceedings are not require
The person adjudged in direct contempt by any to take any particular form so long as the substantial
court may not appeal therefrom, but may avail rights of the accused are preserved.
himself of the remedies of certiorari or Character of the contempt proceeding. Determined
prohibition. The execution of the judgement shall by the relief sought or the dominant purpose;
be suspended pending resolution of such petition, contempt proceedings are criminal when the purpose
provided such person =iles a bond =ixed by the is primarily punishment and civil when the purpose is
court which rendered the judgment and primarily compensatory or remedial.
conditioned that he will abide by and perform the
judgment should the petition be decided against Nature of Criminal contempt proceedings.
him. Generally in the nature of criminal or quasi-criminal
actions.
De;ine contempt — disobedience to the court by By whom initiated. In civil contempt, by the
acting in opposition to its authority, justice, and aggrieved party or his successor or someone with
dignity, signiAies not only a wilful disregard or pecuniary interest in the right to be protected; in
disobedience of the court’s orders but such conduct as criminal contempt, general by the State as the real
tends to bring the authority of the court and the prosecutor.
administration of law into disrepute or in some
Presumption and burden of proof. Defendant in
manner impede the due administration of justice.
criminal contempt proceedings is presumed innocent
Why is contempt power inherent in all courts? and the burden is on the prosecution to prove charges
Respect of the courts guarantees the stability of beyond reasonable doubt; in civil proceedings, burden
judicial institution. of proof is on the complainant which must amount to
more than mere preponderance of evidence.
What is the two-fold aspect of contempt power of
the court? Classi;ication of contempt. Direct and Indirect.
(a) The proper punishment of the guilty party for Direct contempt. Committed in the presence of or so
his disrespect to the court or its order; near the court or judge or obstruct or interrupt the
proceedings before the same and can be punished
(b) To compel his performance of some act or duty summarily without hearing. (Ex. Violation of the rule
required of him by the court which he refuses on forum shopping or false certi=ication punished
to perform; summarily, misbehaviour of lawyer in court in refusing
Distinguish civil contempt from criminal to abide by ruling.)
contempt. Civil contempt is the failure to do Indirect contempt. Committed our or not in the
something ordered to be done by a court or a judge for presence of the court, act done in a distance which
the beneAit of the opposing party; criminal contempt is tends to belittle, degrade, obstruct, interrupt or
2018-2019
embarrass the court and judge. There must be a dispossessed or ejected from any real property
charge in writing, a hearing and the judgment is by the judgment or process of any court of
appealable. (Ex. Refusing to obey its order or lawful competent jurisdiction, enters or attempts or
process and punished only after hearing.) induces another to enter into or upon such
real property, for the purpose of executing
Illustrations of direct contempt. Atty. Adaza’s acts of ownership or possession, or in any
characterisation of the mandatory injection as “unjust manner disturbs the possession given to the
and miscarriage of justice” and “has no legal not person adjudged to be entitled thereto;
factual basis” is unfounded, unwarranted and (c) Any abuse of or any unlawful interference
disrespectful, which carries with It obvious derogatory with the processes or proceeding of the a
implications or innuendos labelling the judge as court not constituting direct contempt, under
corrupt; use by an attorney of intemperate and Section 1 of this Rule.
disrespectful language to the judge while in the court (d) Any improper conduct tending, directly or
is in session. indirectly, to impede, obstruct, or degrade the
Cases of direct contempt. administration of justice;
(e) Assuming to be an attorney or an of=icer of a
A. Ex parte motion for Judge Sebastian to court, and acting as such without authority;
inhibit states “that because of certain personal acts or (f) ailure to obey a subpoena duly served;
conduct displayed by the Presiding Judge in handling (g) The rescue, or attempted rescue, of a person
the above case, which the Defendant and her counsel or property in the custody of an of=icer by
deem as highly irregular, corrupt, and a gross virtue of an order or process of a court held by
misconduct for a judge to do, the undersigned counsel him.
for defendant has already Ailed an Administrative case But nothing in this section shall be so construed as
against the presiding Judge xxx” to prevent the court from issuing process to bring
HELD: Finding of respondent judge that there the respondent into court, or from holding him in
was direct contempt committed was sustained. But custody pending such proceedings. (3a)
conformably to the controlling doctrine that the power
to punish for contempt should be exercised on the NPC Drivers and Mechanics Association (NPC
preservative and not vindictive principle, the Supreme DAMA) v. The National Power Corporation (NPC)
Court modiAied the judgement by lifting the warrant of (2014)
arrest by increasing the Aine imposed to P500. (Ceniza
vs. Sebastian, 130 SCRA 295) Section 3(b), Rule 71 of the Rules of Court lists the
disobedience of or resistance to a lawful writ as one of
B . S t a t e m e n t s by a t t o r n e y i m p u t i n g the grounds for indirect contempt.
irregularity in internal proceedings of the Supreme
Court and the laxity in similar matters We held in BPI v. Labor Arbiter Calanza that to be
considered contemptuous, the act of disobedience
C. Statements in a motion before the CFI that must be clearly contrary to or prohibited by the order
“this is not the kind of administration of justice that of the court. We declared that “a person cannot, for
should be made to prevail in the Court, this is disobedience, be punished for contempt unless the act
obnoxious to the principle of New Society xxx” which is forbidden or required to be done is clearly
Remedy. Person adjudged in direct contempt by any and exactly deAined, so that there can be no reasonable
court may not appeal but may avail himself of the doubt or uncertainty as to what speciAic act or thing is
remedies of certiorari or prohibition. forbidden.”
Section 3. Indirect contempt to be punished Section 4. How proceedings commenced.

after charge and hearing.
Proceedings for indirect contempt may be
After a charge in writing has been =iled, and an initiated motu proprio by the court against which
opportunity given to the respondent to comment the contempt was committed by an order or any
thereon within such period as may be =ixed by the other formal charge requiring the respondent to
court and to be heard by himself or counsel, a show cause why he should not be punished for
person guilty of any of the following acts may be contempt.
punished for indirect contempt: (7)
(a) Misbehaviour of an of=icer of a court in the In all other cases, charges for indirect contempt
performance of his of=icial duties or in his shall be commenced by a veri=ied petition with
of=icial transactions; supporting particulars and certi=ied true copies of
(b) Disobedience of or resistance to a lawful writ, documents or papers involved therein, and upon
process, order, or judgment of a court, full compliance with the requirements for =iling
including the act of person who, after being initiatory pleadings for civil actions in the court

2018-2019
concerned. If the contempt charges arose out of or consists in the violation of a writ of injunction,
are related to a principal action pending in the temporary restraining order or status quo order,
court, the petition for contempt shall allege that he may also be ordered to make complete
fact but said petition shall be docketed, heard and restitution to the party injured by such violation
decided separately, unless the court in its of the property involved or such amount as may
discretion orders the consolidation of the be alleged and proved.
contempt charge and the principal action for joint
hearing and decision, (n) The writ of execution as in ordinary civil action
shall issue for the enforcement of a judgment
imposing a =ine, unless the court otherwise
Section 5. Where charge to be Filed. provides. (6a)
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 DIRECT CONTEMPT INDIRECT CONTEMPT
of=icer appointed by it, the charge may be =iled F i n e n o t e x c e e d i n g
with such court. Where such contempt has been F i n e n o t e x c e e d i n g
P 3 0 , 0 0 0 o r
committed against a lower court the charge may P2,000 or imprisonment
i m p r i s o n m e n t n o t
be =iled with the Regional Trial Court of the place not exceeding 10 days, or
exceeding 6 months, or
in which the lower court is sitting; but the b o t h , i f c o m m i t t e d
b o t h i s c o m m i t t e d
proceedings may also be instituted in such lower against an RTC or a court
against an RTC or a court
court subject to appeal to the Regional Trial Court of equivalent or higher
of equivalent or higher
of such place in the same manner as provided in rank.
rank
Section 2 of this Rule. (4a)
F i n e n o t e x c e e d i n g
Fine not exceeding P200
P5,000 or imprisonment
Angeles v. Court of Appeals (2014) or imprisonment not
not exceeding 1 month
exceeding 1 dat or both if
Sections 4 and 5, Rule 71 of the Rules of Court states or both if committed
it be a lower court
that “proceedings for indirect contempt may be against a lower court
initiated moot proprio by the court against which the
contempt was committed” and “where the charge for Complete restitution to
indirect contempt has been committed against a the party injured if the
Regional Trial Court or a court of equivalent or higher contempt consists in the
rank or against an ofAicer appointed by it, the charge violation of a WI, TRO or
may be Ailed with such court.” status quo order.
Section 6. Hearing; release on bail. Section 8. Imprisonment until order obeyed.
If the hearing is not ordered to be had forthwith, When the contempt consists in the refusal or
the respondent may be released from custody omission to do an act which is yet in the power of
upon =iling a bond, in an amount =ixed by the the respondent to perform, he may be imprisoned
court, for his appearance at the hearing of the by order of the court concerned until he performs
charge. On the day set therefor, the court shall it. (7a)
proceed to investigate the charge and consider
such comment, testimony or defense as the Section 9. Proceeding where party released on
respondent may make or offer. (5a) bail fails to answer.
Section 7. Punishment for indirect contempt. When a respondent released on bail fails to
If the respondent is adjudged guilty of indirect appear on the day =ixed for the hearing, the court
contempt committed against a Regional Trial may issue another order of arrest or may order
Court or a court of equivalent or higher rank, he the bond for his appearance to be forfeited and
may be punished by a =ine of not exceeding thirty con=iscated, or both; and, if the bond be proceeded
thousand (P30,000) pesos or imprisonment not against, the measure of damages shall be the
exceeding six (6) months, or both. If he is adjudged extent of the loss or injury sustained by the
guilty of contempt committed against a lower aggrieved party by reason of the misconduct for
court, he may be punished by a =ine not exceeding which the contempt charge was prosecuted, with
=ive thousand (P5,000) pesos or imprisonment not the costs of the proceedings, and such recovery
exceeding one (1) month, or both. If the contempt shall be for the bene=it of the party injured. If

2018-2019
there is no aggrieved party, the bond shall be Leonidas v. Supnet; Sangguniang Panlungsod ng
liable and disposed of as in criminal cases. (8a) Baguio City v. Jadewell Parking Systems
Corporation (2014)
Section 10. Court may release respondent.
A party cannot be held in indirect contempt for
The court which issued the order imprisoning a disobeying a court order which is not addressed to
person for contempt may discharge him from him.
imprisonment when it appears that public interest  
will not be prejudiced by his release. (9a)
Lorenzo Shipping v. Distribution Button Direct Constructive or

Management Association of the Philippines (2011) Contempt Indirect Contempt
Proceedings for contempt are sui generis, in nature
criminal, but may be resorted to in civil as well as
criminal actions, and independently of any action.
Two classes: criminal or punitive; and civil or Committed in the
remedial. presence of or so
near the judge as to Willful disobedience
Criminal Contempt: conduct that is directed against of the lawful process
obstruct him in the
the authority and dignity of a court or of a judge acting or order of the court
administration of
judicially, as in unlawfully assailing or discrediting the
justice
authority and dignity of the court forjudge or doing a
forbidden act. Dominant purpose is to vindicate the
dignity and authority of the court and to protect the
interests of the general public.
Punishment is
Civil Contempt: failure to do something ordered to be summary and
done by a court or judge in a civil case for the beneAit immediate; no
of the opposing party. Dominant purpose is to enforce process or evidence
compliance with an order of a court for the beneAit of a Requires proceeding
necessary; act
party in whose favor the order runs. less summary than
committed in facie
direct contempt
Inong vs Judge Ibay (2009) curiae
The phrase “improper conduct tending, directly or

indirectly, to impede, obstruct, or degrade the
administration of justice” is so broad and general that
it encompasses wide spectrum of acts that could
In-Court Out-of-Court
constitute indirect contempt.
Contempts Contempts
A person cannot, for disobedience, be punished for
contempt unless the act which is forbidden or
required to be one is clearly and exactly deAined, so
that there can be no reasonable doubt or uncertainty
as to what speciAic act or thing is forbidden or Require normal
Disrupt court
required. adversary
proceedings where a
Judges have been enjoined to exercise their contempt hearing and formal procedures, drawn
power judiciously, sparingly, with utmost restraint and presentation of for the purpose of
with the end in view of utilizing the same for evidence is prescribing what
correction and preservation of the dignity of the court, dispensed with procedures must
not for retaliation or vindication. attend the exercise
of sour’s authority
Respondent judge’s act of unceremoniously citing to deal with
complainant in contempt is a clear evidence of his contempt
justiAied use of the authority vested upon him by law.

2018-2019
NOTES FROM DEAN ALEX MONTECLAR There is no need for hearing in direct contempt. This
may be imposed by the judge right then and there,
without any need for explanation.
Kinds of contempt Direct contempt can be imposed by the court
1. Direct summarily or without hearing.
2. Indirect Indirect Contempt
Indirect contempt requires a hearing.
As to purpose:
a. Criminal - is for the purpose of vindicating How committed
public authority which is usually the one A. Misbehavior of an ofAicer of the court in the
referred to in direct contempt performance of his ofAicial duties
B. Disobedience or resistance to a lawful writ,
a. Civil - is for the purpose of protecting the rights process, order, or judgment of the court;
of the litigant and is applicable to indirect C. Any abuse of or unlawful interference with the
contempt. process of a court not constituting direct
contempt
Direct Contempt D. Any improper conduct tending, directly or
indirectly to be an, to impede, obstruct or degrade
How committed the the administration of justice;
E. Assuming to be an attorney or an ofAicer of a
a. Misbehavior in the presence of or so near a court, and acting as such without authority;
court as to F. Failure to obey subpoena duly served
interrupt the proceeding before the same. - except if you reside more than 100
o This may be committed against the kilometers from the court because you
judge or so near the court, meaning cannot be compelled under your viatory
outside the court, if for example you right;
shout and interrupt the proceedings.; G. The rescue, or attempted rescue, of a person or
a. Disrespect towards the court, towards the property in the custody of an [x] the court.
judge;
b. Offensive personalities towards others,
opposing counsel or towards a party to How commenced
the case, insulting in open court is also An indirect contempt is commenced by a veriAied
direct contempt; petition OR by court, motu propio. The plaintiff may
c. Refusal to be sworn or to answer as witness, commence the action by Ailing a petition to cite the
or to subscribe and afAidavit or deposition defendant in direct contempt.
when lawfully required to do so.
Where to ;ile
Penalty • In the same court where the contumacious act
If direct contempt is committed in the presence of a was commited.
Judge: • In the very same court where the case is pending.
It may motu proprio cite a party in indirect
RTC – F i n e n o t exc e e d i n g P 2 , 0 0 0 O R contempt. The court will ask such party why
Imprisonment not exceeding 10 days OR Both he will not be cited in indirect contempt and
M T C – F i n e n o t e x c e e d i n g P 2 0 0 O R the defendant is required to explain. Thus
Imprisonment not exceeding one (1) day OR there should be a hearing.
both.
Hearing and release on bail
Remedy If the hearing will be delayed, the person may put up
Certiorari or Prohibition not appeal. If you think a bail bond for his release.
that grave abuse of discretion was committed, you
can avail of certiorari under Rule 65. Penalty
RTC – Fine not exceeding P30,000 OR
Execution will be suspended during the Imprisonment not exceeding six months OR
pendency of the petition for certiorari provided Both
he will ;ile a bond. MTC – Fine not exceeding P5,000 OR
Imprisonment not exceeding one (1) month
NO NEED FOR HEARING OR both.
*Imprisonment if order is obeyed

2018-2019
*Court may release respondent if public interest

will not be prejudiced.
The court may issue an order for your imprisonment
until you obey the order of the court. In the case of
indirect contempt is given the discretion to release
the respondent even before the lapse of the period of
imprisonment if public interest will not be
prejudiced.
*Judgment in indirect contempt is appealable as

in criminal cases. But, appeal does not stay
execution unless respondent ;iles a bond.
*Contempt against quasi-judicial entities

There is also contempt power in quasi-judicial
bodies. The procedure shall be based on the law
granting such bodies contempt power. But in the
absence of such rules, the Rules of Court shall apply
suppletorily. The proceedings for contempt may also
be Ailed before the RTC.

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PROVISIONAL REMEDIES

PETITION FOR CERTIORARI (SEC.1) Veri;ied Petition

Aside from the party in interest, it includes a What is to be Corrected in Certiorari

Rule 43 have an enumeration of the quasi-judicial

JUSTICE YAP / DEAN MONTECL AR GLORIA MALAZARTE WEE — 1

1.Where the proceeding in the lower court are a

Basis of petition (Grounds) Against whom ;iled (Respondent)

JUSTICE YAP / DEAN MONTECL AR GLORIA MALAZARTE WEE — 2

JUSTICE YAP / DEAN MONTECL AR GLORIA MALAZARTE WEE — 3

JUSTICE YAP / DEAN MONTECL AR GLORIA MALAZARTE WEE — 4

JUSTICE YAP / DEAN MONTECL AR GLORIA MALAZARTE WEE — 5

compensation in Rule 67 from assessed value to

RULE 67 — EXPROPRIATION Order of Expropriation

JUSTICE YAP / DEAN MONTECL AR GLORIA MALAZARTE WEE — 6

JUSTICE YAP / DEAN MONTECL AR GLORIA MALAZARTE WEE — 7

JUSTICE YAP / DEAN MONTECL AR GLORIA MALAZARTE WEE — 8

JUSTICE YAP / DEAN MONTECL AR GLORIA MALAZARTE WEE — 9

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Sec. 4. Disposition of proceeds of sale. Questions:

Questions: A certiAied copy of the Ainal order of the court

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Such sale shall not affect the rights of persons

If no right of redemption exists, the certiAicate of title

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RULE 69 — PARTITION Appointment of Commissioners

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became unlawful later emption or prior purchase of leased premises?

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corollary that if the landlord acquires possession Ans:

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How is demand made by the lessor against the

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a. Personally upon tenant (may be oral)

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is to terminate the lease because of the expiration of Sec. 3. Summary procedure

The court shall not resort to the foregoingprocedure

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value are not recoverable in an ejectment case. Other

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deprivation or withholding of possession. (Penta

14.Under the amendatory procedure introduced by

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18. Only in rare instances is suspension allowed to

19. In VDA and amagan v Marayag , the SC ordered the

20. Ejectment case fall within the original and

21. The issue of ownership maybe resolved in deciding

23. A boundary dispute must be resolved in the

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conduct directed against the authority and dignity of a

Section 3. Indirect contempt to be punished Section 4. How proceedings commenced.

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Section 6. Hearing; release on bail. Section 8. Imprisonment until order obeyed.

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Lorenzo Shipping v. Distribution Button Direct Constructive or

The phrase “improper conduct tending, directly or

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*Imprisonment if order is obeyed

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*Court may release respondent if public interest

*Judgment in indirect contempt is appealable as

*Contempt against quasi-judicial entities

became unlawful later   emption or prior purchase of leased premises? 

corollary that if the landlord acquires possession Ans:  

a. Personally upon tenant (may be oral)   

is to terminate the lease because of the expiration of Sec. 3. Summary procedure  

  value are not recoverable in an ejectment case. Other