Replevin as a provisional relief

Replevin is an action for the recovery of personal property. It is both a principal remedy and a provisional relief. When utilized as a principal remedy, the objective is to recover possession of personal property that may have been wrongfully detained by another. When sought as a provisional relief, it allows a plaintiff to retain the contested property during the pendency of the action.In Tillson v. Court of Appeals:

The term replevin is popularly understood as "the return to or recovery by a person of goods or chattels claimed to be wrongfully taken or detained upon the person's giving security to try the matter in court and return the goods if defeated in the action;" "the writ by or the common-law action in which goods and chattels are replevied," i.e., taken or gotten back by a writ for replevin;" and to replevy, means to recover possession by an action of replevin; to take possession of goods or chattels under a replevin order. Bouvier's Law Dictionary defines replevin as "a form of action which lies to regain the possession of personal chattels which have been taken from the plaintiff unlawfully . . ., (or as) the writ by virtue of which the sheriff proceeds at once to take possession of the property therein described and transfer it to the plaintiff upon his giving pledges which are satisfactory to the sheriff to prove his title, or return the chattels taken if he fail so to do;" the same authority states that the term, "to replevy" means "to re-deliver goods which have been distrained to the original possessor of them, on his giving pledges in an action of replevin." The term therefore may refer either to the action itself, for the recovery of personality, or the provisional remedy traditionally associated with it, by which possession of the property may be obtained by the plaintiff and retained during the pendency of the action. In this jurisdiction, the provisional remedy is identified in Rule 60 of the Rules of Court as an order for delivery of personal property.

Similarly, in BA Finance Corporation v. Court of Appeals:

Replevin, broadly understood, is both a form of principal remedy and of a provisional relief. It may refer either to the action itself, i.e., to regain the possession of personal chattels being wrongfully detained from the plaintiff by another, or to the provisional remedy that would allow the plaintiff to retain the thing during the pendency of the action and hold it pendente lite. The action is primarily possessory in nature and generally determines nothing more than the right of possession. Replevin is so usually described as a mixed action, being partly in rem and partly in personam-in rem insofar as the recovery of specific property is concerned, and in personam as regards to damages involved. As an "action in rem," the gist of the replevin action is the right of the plaintiff to obtain possession of specific personal property by reason of his being the owner or of his having a special interest therein. Consequently, the person in possession of the property sought to be replevied is ordinarily the proper and only necessary party defendant, and the plaintiff is not required to so join as defendants other persons claiming a right on the property but not in possession thereof. Rule 60 of the Rules of Court allows an application for the immediate possession of the property but the plaintiff must show that he has a good legal basis, i.e., a clear title thereto, for seeking such interim possession.

As a provisional remedy, a party may apply for an order for the delivery of the property before the commencement of the action or at any time before an answer is filed. Rule 60 of the Rules of Court outlines the procedure for the application of a writ of replevin. Rule 60, Section 2 requires that the party seeking the issuance of the writ must first file the required affidavit and a bond in an amount that is double the value of the property:

Section 2. Affidavit and bond. — The applicant must show by his own affidavit or that of some other person who personally knows the facts:

(a) That the applicant is the owner of the property claimed, particularly describing it, or is entitled to the possession thereof;

(b) That the property is wrongfully detained by the adverse party, alleging the cause of detention thereof according to the best of his knowledge, information, and belief;

(c) That the property has not been distrained or taken for a tax assessment or a fine pursuant to law, or seized under a writ of execution or preliminary attachment, or otherwise placed under custodia legis, or if so seized, that it is exempt from such seizure or custody; and

(d) The actual market value of the property.

The applicant must also give a bond, executed to the adverse party in double the value of the property as stated in the affidavit aforementioned, for the return of the property to the adverse party if such return be adjudged, and for the payment to the adverse party of such sum as he may recover from the applicant in the action.

Once the affidavit is filed and the bond is approved by the court, the court issues an order and a writ of seizure requiring the sheriff to take the property into his or her custody. If there is no further objection to the bond filed within five (5) days from the taking of the property, the sheriff shall deliver it to the applicant. The contested property remains in the applicant's custody until the court determines, after a trial on the issues, which among the parties has the right of possession.

ADDITIONAL READINGS:

[1] See RULES OF COURT, Rule 60, sec. 1.
[2] 274 Phil. 880 (1991) [Per J. Narvasa, First Division].
[3] Id. at 892-893 citing Webster's Third New International Dictionary, copyright 1986 and Third (Rawle's) Revision, Vol. 2.
[4] 327 Phil. 716 (1996) [Per J. Vitug, First Division].

[5] Id. at 724-725 citing Tillson v. Court of Appeals, 327 Phil. 716 (1996) [Per J. Vitug, First Division); Bouvier's Dictionary, Third (Rawle's) Revision, Vol. 2; Black's Law Dictionary, Sixth Edition, p. 1299; and 37 WORDS AND PHRASES 17, further citing the Young Chevrolet Co. case, 127 P.2d 813, 191 Okl. 161 (1942).

[6] See RULES OF COURT, Rule 60, sec. 1.
[7] RULES OF COURT, Rule 60, sec. 2.
[8] See RULES OF COURT, Rule 60, sec. 3.
[9] See RULES OF COURT, Rule 60, sec. 6.
[10] See RULES OF COURT, Rule 60, sec. 9.