3.18. Provisional remedies

Provisional remedies are writs and processes available during the pendency of the action which may be resorted to by a litigant to preserve and protect certain rights and interests therein pending rendition, and for purposes of the ultimate effects, of a final judgment in the case. They are provisional because they constitute temporary measures availed of during the pendency of the action, and they are ancillary because they are mere incidents in and are dependent upon the result of the main action. The subject orders on the matter of support pendente lite are but an incident to the main action for declaration of nullity of marriage.

(Ma. Carminia C. Calderon (formerly Ma. Carminia Calderon-Roxas), represented by her attorney-in-fact, Marycris V. Baldevia Vs. Jose Antonio F. Roxas,G.R. No. 185595. January 9, 2013)

Nature of provisional remedies

Provisional remedies are not causes of action in themselves but merely

adjuncts to a main suit.

They are

temporary measures

availed of during the pendency of the action and

ancillary

because they are mere incidents. [

Estares v. Court of Appeals, 459 SCRA 604

]

Purpose of provisional remedies

The provisional remedies denominated attachment, preliminary injunction, receivership, and delivery of personal property, provided in Rules 59, 60, 61, and 62 of the Rules of Court, respectively, are remedies to which parties litigant may resort for the preservation or protection of their rights or interest, and for no other purpose, during the pendency of the principal action. If an action, by its nature, does not require such protection or preservation, said remedies can not be applied for and granted. [

Calo v. Roldan, G.R. No. L-252, March 30, 1946

]

Jurisdiction over provisional remedies

MTC has exclusive original jurisdiction over civil actions and probate proceedings, testate and intestate, including the grant of provisional remedies in proper cases, where the value of the personal property, estate, or amount of the demand does not exceed One hundred thousand pesos (P100,000.00) or, in Metro Manila where such personal property, estate, or amount of the demand does not exceed Two hundred thousand pesos (P200,000.00) exclusive of interest damages of whatever kind, attorney's fees, litigation expenses, and costs. [

B.P. 129, Sec. 33

]

3.18.3. Preliminary attachment

A preliminary attachment may be defined, paraphrasing the Rules of Court, as the provisional remedy in virtue of which a plaintiff or other party may, at the commencement of the action or at any time thereafter, have the property of the adverse party taken into the custody of the court as security for the satisfaction of any judgment that may be recovered. [

Davao Light v. Court of Appeals, 204 SCRA 343

]

Grounds for issuance of writ of attachment

(a) In an action for the recovery of a specified amount of money or damages, other than

moral and exemplary, on a cause of action arising from law, contract, quasi-contract, delict or quasi-delict against a party who is about to depart from the Philippines with intent to defraud his creditors; (b) In an action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty; (c) In an action to recover the possession of property unjustly or fraudulently taken, detained or converted, when the property, or any part thereof, has been concealed, removed, or disposed of to prevent its being found or taken by the applicant or an authorized person; (d) In an action against a party who has been guilty of a fraud in contracting the debt or incurring the obligation upon which the action is brought, or in the performance thereof; (e) In an action against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his creditors; or (f) In an action against a party who does not reside and is not found in the Philippines, or on whom summons may be served by publication. [

Rule 57, Sec. 1

]

Requisites

1) The case must be any of those where preliminary attachment is proper 2) The applicant must file a motion 3) The applicant must show by affidavit that there is of sufficient security for the claim sought to be enforced; that the amount claimed in the action is as much as the sum of which the order is granted above all counterclaims 4) The applicant must post a bond executed to the adverse party (attachment bond) (Section 3, Rule 57 of the Rules of Court)

Attachment will not lie if there is an existing real estate mortgage

The writ will not be issued if a real estate mortgage exists to secure the obligation even if instead of filing an action for foreclosure, an action for a sum of money was instead filed. [

Salgado v. Court of Appeals, G.R. No. 55381, March 26, 1984

]