PROVISIONAL REMEDIES |1

ONATE vs. ABROGAR FACTS: The petitioner filed a motion seeking reconsideration of the decision of the Second Division (previous case), holding that although the levy on attachment of petitioners' properties had been made before the trial court acquired jurisdiction over them, the subsequent service of summons on them cured the invalidity of the attachment. Petitioners maintain that, in accordance with prior decisions of this Court, the attachment of their properties was void because the trial court had not at that time acquired jurisdiction over them and that the subsequent service of summons on them did not cure the invalidity of the levy. On the other hand private respondent Sun Life stresses the fact that the trial court eventually acquired jurisdiction over petitioners and contends that this cured the invalidity of the attachment of petitioners' properties. It invoked the ruling in Davao Light & Power Co . v. Court of Appeals in support of its contention that the subsequent acquisition of jurisdiction by the court cured the defect in the proceedings for attachment. It is also contended that the Deputy Sheriff had tried to serve the summons with a copy of the complaint on petitioners on January 3, 1992 but that there was no one in the offices of petitioners on whom he could make a service. Respondent Sun Life Assurance Company of Canada (Sun Life, for brevity) filed a complaint for a sum of money with a prayer for the immediate issuance of a writ of attachment against petitioners, and Noel L. Dio On January 3, 1992, upon Sun Life's ex-parte motion, the trial court amended the writ of attachment to reflect the alleged amount of the indebtedness. Attempts to serve summons and copy of the amended writ of attachment upon petitioners were done but it failed since no responsible officer to receive the same o Nonetheless, the sheriff proceeded with the levy and notices of garnishments. Summons was served eventually Petitioners filed an "Urgent Motion to Discharge/Dissolve Writ of Attachment." o Sun life filed an ex-parte motion to examine the books of accounts and ledgers of petitioner Brunner Development Corporation (Brunner, for brevity) at the Urban Bank, Legaspi Village Branch, and to obtain copies thereof, which motion was granted by respondent Judge. o Also, Sun Life filed another motion for examination of bank accounts, this time seeking the examination of Account No. 0041-0277-03 with the Bank of Philippine Islands (BPI) which, incidentally, petitioners claim not to be owned by them and the records of Philippine National Bank (PNB) with regard to checks payable to Brunner. Respondent judge denied the urgent motion of petitioners Hence, this petition o Petitioners argued that the judge acted with grave abuse of discretion amounting to lack or in excess of jurisdiction in issuing ex parte the original and amended writs of preliminary attachment and the corresponding notices of garnishment and levy on attachment since the trial court had not yet acquired jurisdiction over them It is clear from the above excerpt, however, that while the petition for a writ of preliminary attachment may be granted and the writ itself issued before the defendant is summoned, the writ of attachment cannot be implemented until jurisdiction over the person of the defendant is obtained. As this Court explained, "levy on property pursuant to the writ thus issued may not be validly effected unless preceded, or contemporaneously accompanied, by service on the defendant of summons, a copy of the complaint (and of the appointment of guardian ad litem, if any), the application for attachment (if not incorporated in but submitted separately from the complaint), the order of attachment, and the plaintiff's attachment bond." Indeed, as this Court through its First Division has ruled on facts similar to those in these cases, the attachment of properties before the service of summons on the defendant is invalid, even though the court later acquires jurisdiction over the defendant. 14 At the very least, then, the writ of attachment must be served simultaneously with the service of summons before the writ may be enforced . As the properties of the petitioners were attached by the sheriff before he had served the summons on them, the levies made must be considered void. The Rules of Court do not require that issuance of the writ be kept a secret until it can be enforced. Otherwise in no case may the service of summons on the defendant precede the levy on attachment. To the contrary, Rule 57, 13 allows the defendant to move to discharge the attachment even before any attachment is actually levied upon, thus negating any inference that before its enforcement, the issuance of the writ must be kept secret. On the other hand, to authorize the attachment of property even before jurisdiction over the person of the defendant is acquired through the service of summons or his voluntary appearance could lead to abuse. It is entirely possible that the defendant may not know of the filing of a case against him and consequently may not be able to take steps to protect his interests. Nor may sheriff's failure to abide by the law be excused on the pretext that after all the court later acquired jurisdiction over petitioners. More important than the need for insuring success in the enforcement of the writ is the need for affirming a principle by insisting on that "most fundamental of all requisites the jurisdiction of the court issuing attachment over the person of the defendant." 18 It may be that the same result would follow from requiring that a new writ be served all over again. The symbolic significance of such an act, however, is that it would affirm our commitment to the rule of law. 19 Davao Light and Power v. CA FACTS: Petitioner filed a complaint for recovery of a sum of money and damages against Queensland Hotel, etc. and Teodorico Adarna. o It contained an ex parte application for a writ of preliminary attachment The judge granted the ex parte application An attachment bond was submitted by petitioner, the writ of attachment was issued. Defendants filed a motion to discharge the attachment for lack of jurisdiction over the cause and their person when the said writ of attachment was promulgated TC denied the motion to discharge CA ruled in favor of the defendants and declared the orders of TC as null and void Hence, this petition. ISSUE: WON THE WRIT OF PRELIMINARY ATTACHMENT MAY ISSUE EX PARTE AGAINST DEFENDANT BEFORE ACQUISITION OF THE JURISDICTION OF THE LATTER. HELD: The Court rules that the question must be answered in the affirmative and that consequently, the petition for review will have to be granted. The events that follow the filing of the complaint as a matter of routine are well known. After the complaint is filed, summons issues to the defendant, the summons is then transmitted to the sheriff, and finally, service of the

HELD: We find petitioners' contention respecting the validity of the attachment of their properties to be well taken. We hold that the ATTACHMENT of petitioners' properties PRIOR TO THE ACQUISITION OF JURISDICTION by the respondent court is VOID and that the subsequent service of summons on petitioners did not cure the invalidity of such attachment. The records show that before the summons and the complaint were served on petitioners Oate and Econ Holdings Corporation (Econ) on January 9, 1992, Deputy Sheriff Arturo C. Flores had already served on January 3, 1992 notices of garnishment on the PNB Head office 2 and on all its Metro Manila branches and an A.B capital. In a portion of the decision in Davao Light, the SC said that , when the sheriff or other proper officer commences implementation of the writ of attachment, it is essential that he serve on the defendant not only a copy of the applicant's affidavit and attachment bond, and of the order of attachment, as explicitly required by Section 5 of Rule 57, but also the summons addressed to said defendant as well as a copy of the complaint and order for appointment of guardian ad litem, if any, as also explicitly directed by Section 3, Rule 14 of the Rules of Court.

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summons is effected on the defendant in any of the ways authorized by the Rules of Court. There is ordinarily some appreciable interval of time between the day of the filing of the complaint and the day of service of summons of the defendant. During this period, different acts may be done by the plaintiff or by the Court, which are unquestionable validity and propriety. Among these, for example, are the appointment of a guardian ad litem, the grant of authority to the plaintiff to prosecute the suit as a pauper litigant, the amendment of the complaint by the plaintiff as a matter of right without leave of court, authorization by the Court of service of summons by publication, the dismissal of the action by the plaintiff on mere notice. This, too, is true with regard to the provisional remedies of preliminary attachment, preliminary injunction, receivership or replevin. They may be validly and properly applied for and granted even before the defendant is summoned or is heard from. 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. It is a remedy which is purely statutory in respect of which the law requires a strict construction of the provisions granting it. Withal no principle, statutory or jurisprudential, prohibits its issuance by any court before acquisition of jurisdiction over the person of the defendant. It goes without saying that whatever be the acts done by the Court prior to the acquisition of jurisdiction over the person of defendant, as above indicated issuance of summons, order of attachment and writ of attachment (and/or appointments of guardian ad litem, or grant of authority to the plaintiff to prosecute the suit as a pauper litigant, or amendment of the complaint by the plaintiff as a matter of right without leave of court 30 and however valid and proper they might otherwise be, these do not and cannot bind and affect the defendant until and unless jurisdiction over his person is eventually obtained by the court, either by service on him of summons or other coercive process or his voluntary submission to the court's authority. Hence, when the sheriff or other proper officer commences implementation of the writ of attachment, it is essential that he serve on the defendant not only a copy of the applicant's affidavit and attachment bond, and of the order of attachment, as explicity required by Section 5 of Rule 57, but also the summons addressed to said defendant as well as a copy of the complaint and order for appointment of guardian ad litem, if any, as also explicity directed by Section 3, Rule 14 of the Rules of Court. Service of all such documents is INDISPENSABLE not only for the acquisition of JURISDICTION OVER THE PERSON of the defendant, but also upon CONSIDERATIONS OF FAIRNESS, to apprise the defendant of the complaint against him, of the issuance of a writ of preliminary attachment and the grounds therefor and thus accord him the opportunity to prevent attachment of his property by the posting of a counterbond in an amount equal to the plaintiff's claim in the complaint pursuant to Section 5 (or Section 12), Rule 57, or dissolving it by causing dismissal of the complaint itself on any of the grounds set forth in Rule 16, or demonstrating the insufficiency of the applicant's affidavit or bond in accordance with Section 13, Rule 57. For the guidance of all concerned, the Court reiterates and reaffirms the proposition that writs of attachment may properly issue ex parte provided that the Court is satisfied that the relevant requisites therefor have been fulfilled by the applicant, although it may, in its discretion, require prior hearing on the application with notice to the defendant; but that levy on property pursuant to the writ thus issued may not be validly effected unless preceded, or contemporaneously accompanied, by service on the defendant of summons, a copy of the complaint (and of the appointment of guardian ad litem, if any), the application for attachment (if not incorporated in but submitted separately from the complaint), the order of attachment, and the plaintiff's attachment bond. ALBERTO SIEVERT, petitioner, vs. COURT OF APPEALS, HON. JUDGE ARTEMON D. LUNA and AURELIO CAMPOSANO, respondents. DOCTRINE: Attachment is an ancillary remedy. It is not sought for its own sake but rather to enable the attaching party to realize upon relief sought and expected to be granted in the main or principal action. A court which has not acquired jurisdiction over the person of defendant, cannot bind that defendant whether in the main case or in any ancillary proceeding such as attachment proceedings. The service of a petition for preliminary attachment without the prior or simultaneous service of summons and a copy of the complaint in the main case and that is what happened in this case does not of course confer jurisdiction upon the issuing court over the person of the defendant. However, where the petition for a writ of preliminary attachment is embodied in a discrete pleading, such petition must be served either simultaneously with service of summons and a copy of the main complaint or after jurisdiction over the defendant has already been acquired by such service of summons. Notice of the separate attachment petition is not notice of the main action.

FACTS: Alberto Sievert, a citizen and resident of the Philippines, received by mail a Petition for Issuance of a Preliminary Attachment filed with the Regional Trial Court of Manila Branch 32. Petitioner had not previously received any summons and any copy of a complaint against him in Civil Case No. 88-44346. On the day set for hearing of the Petition for a Preliminary Writ of Attachment, petitioner's counsel went before the trial court and entered a special appearance for the limited purpose of objecting to the jurisdiction of the court. o He simultaneously filed a written objection to the jurisdiction of the trial court to hear or act upon the Petition for Issuance of a Preliminary Writ of Attachment. (No jurisdiction over the person-lack of notice) The trial court denied the petitioner's objection. Thereupon, on the same day, petitioner filed a Petition for certiorari with the Court of Appeals. Court of Appeals dismissed the petition.

ISSUE: Whether respondent Judge may issue a writ of preliminary attachment against petitioner before summons is served on the latter RULING: We rule for respondent Judge. Under Sec. 1, Rule 57, it is clear that, at the commencement of the action, a party may have the property of the adverse party attached as security. The resolution of this issue depends, therefore, on what is meant by "Commencement of the action." o COMMENCEMENT OF ACTION. Action is commenced by filing of the complaint, even though summons is not issued until a later date." Thus, a writ of preliminary attachment may issue upon filing of the complaint even before issuance of the summons . Both the trial court and the Court of Appeals held that the defendant may be bound by a writ of preliminary attachment even before summons together with a copy of the complaint in the main case has been validly served upon him. There is no question that a writ of preliminary attachment may be applied for a plaintiff "at the commencement of the action or at any time thereafter" in the cases enumerated in Section 1 of Rule 57 of the Revised Rules of Court.

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However, the issue posed in this case is not to be resolved by determining when an action may be regarded as having been commenced, a point in time which, in any case, is not necessarily fixed and Identical regardless of the specific purpose for which the determination is to be made. Rather, the critical time which must be identified is when the trial court acquires authority under law to act coercively against the defendant or his property in a proceeding in attachment . We believe and so hold that critical time is the time of the vesting of jurisdiction in the court over the person of the defendant in the main case. Ordinarily, the prayer in a petition for a writ of preliminary attachment is embodied or incorporated in the main complaint itself as one of the forms of relief sought in such complaint. Thus, valid service of summons and a copy of the complaint will in such case vest jurisdiction in the court over the defendant both for purposes of the main case and for purposes of the ancillary remedy of attachment. In such case, notice of the main case is at the same time notice of the auxiliary proceeding in attachment. However, where the petition for a writ of PRELIMINARY ATTACHMENT is embodied in a DISCRETE PLEADING, such petition must be served either simultaneously with service of summons and a copy of the main complaint, or after jurisdiction over the defendant has already been acquired by such service of summons. Notice of the separate attachment petition is not notice of the main action. If a court has no jurisdiction over the subject matter or over the person of the defendant in the principal action, it simply has no jurisdiction to issue a writ of preliminary attachment against the defendant or his property. In the case at bar, the want of jurisdiction of the trial court to proceed in the main case against the defendant is quite clear. It is not disputed that neither service of summons with a copy of the complaint nor voluntary appearance of petitioner Sievert was had in this case. Yet, the trial court proceeded to hear the petition for issuance of the writ. This is reversible error and must be corrected on certiorari. WHEREFORE, the Petition for Review on certiorari is GRANTED due course and the Order of the trial court dated 20 May 1988 and the Decision of the Court of Appeals dated 13 July 1988 are hereby SET ASIDE and ANNULLED. No pronouncement as to costs. JUAN DE DIOS CARLOS vs. FELICIDAD SANDOVAL FACTS: Carlos filed a Complaint in the RTC against Sandoval. He claimed that he was the sole compulsory heir of his parents and he has survived his brother Teofilo who died intestate in 1992. Carlos claimed that prior to their fathers death in 1963, Teofilo developed a scheme to save the elder Carloss estate from inheritance taxes. Felix assented to the plan and Carlos entered into certain agreements with Sandoval in connection with the subject properties. Subsequently, Carlos discovered that Sandoval and his brother were never validly married (no marriage license). Carlos sought to nullify the agreements with Sandoval for want of consideration. Carlos prayed of the RTC to declare the alleged marriage between Teofilo and Sandoval void ab initio, provided that Teofilo died without issue, order that new titles covering the subject properties be issued in the name of Carlos and require Sandoval to restitute Carlos in the amount of P18,924,800.00. Carlos likewise prayed for the issuance of the provisional relief of PRELIMINARY ATTACHMENT which the RTC granted. Carlos posted a bond for P20M issued by SIDDCOR Insurance Corporation (SIDDCOR). Shortly thereafter, a Notice of Garnishment was served upon the PNB over the deposit accounts maintained by respondents. Respondents filed an URGENT MOTION TO DISCHARGE THE WRIT OF ATTACHMENT. The RTC denied the motion. Thus, respondents filed a Petition for Certiorari. o CA ordered the discharge and dissolution of the Writ of Attachment and Notice of Garnishment. The CA found that there was no sufficient cause of action to warrant the preliminary attachment. Carlos elevated the said Decision to this Court by way of Petition for Review on Certiorari, but the Court denied Carloss Petition and thus the CA Decision ordering the dissolution of the Writ of Attachment and Notice of Garnishment became final. Meanwhile, the hearing on Carloss Complaint ensued before the RTC. Respondents duly filed their Answer and thereafter filed a Motion for Summary Judgment. The RTC rendered a summary judgment in favor of Carlos. Upon promulgation of the Summary Judgment, Carlos moved before the RTC for execution pending appeal, which was granted upon the filing of a bond. Respondents o Filed a Motion for Reconsideration of the Summary Judgment Denied o Appealed the RTC Decision to the CA, docketed as CA-G.R. CV No. 53229 o In CA-G.R. CV No. 53229, respondents filed a Motion for Judgment On the Attachment Bond. They noted that the CA had already ruled that the Writ of Preliminary Attachment issued by the RTC was improperly granted and that its Decision, as affirmed by the SC, had attained finality. Accordingly, they were entitled to damages under Section 20, Rule 57 of the then Rules of Civil Procedure, which governed claims for damages on account of unlawful attachment. Resolution (3/2301998): The Court of Appeals deemed that the case may be already be referred to the Raffle Committee for assignment to a ponente for study and report; denied without elaboration Carlos MTD. o Carlos filed a MR. o Sandoval also filed a Motion for Partial Reconsideration, arguing that under the Revised Internal Rules of the CA (RIRCA), the case may be re-raffled for assignment for study and report only after there is a resolution that the case is deemed submitted for decision. They pointed out that re-raffle could not yet be effected, as there were still pending incidents, particularly the motions for reconsideration of Carlos and themselves, as well as the Motion for Judgment on Attachment Bond. CA promulgated two resolutions: o FIRST: Denied Carloss Motion to Dismiss the Appeal and Motion for Suspension, but explained the reasons for such denial. o SECOND (THE assailed Resolution): CA resolved the Motion for Judgment on Attachment Bond and ruled that it was not necessary for the determination of damages on the injunction bond to await the decision on appeal. CA did not award moral and exemplary damages, but rendered against the attachment bond, ordered SIDDCOR and Carlos to pay Sandoval. CA granted respondents Motion for Immediate Execution. G.R. No. 135830: Carlos argues that the CA could not have resolved the Motion for Judgment on the Attachment Bond since the case had not yet been re-raffled under the two-raffle system for study and report; that the CA erred in resolving the motion without conducting any hearing; that the CA had no jurisdiction over the motion as the docketing fees had not yet been filed. G.R. No. 136035: CA erred in ruling on the motion for damages without awaiting judgment in the main case; granting that damages may be awarded, these should encompass only such damages incurred during the pendency of the appeal; and that a hearing was necessary to prove the claim for damages and the appellate court erred in granting the award for damages despite lack of hearing. G.R. No. 137743: Assails the allowance by the CA of the immediate execution of the award of damages. SIDDCOR points out that no hearing was conducted on the Motion for Immediate Execution despite the requirement in Section 2, Rule 39 that discretionary execution may only issue upon good reasons to be stated in a special order after due hearing. [COMMENTO: To simplify what happened, Carlos filed a case in the RTC and one of the reliefs prayed for is the issuance of WPA (which was granted and was followed by a Notice of Garnishment). Before the RTC case could be heard, respondents filed a Motion to Lift the WPA. It was initially denied by the RTC, but it was approved by the CA and was affirmed by the SC. Subsequently, the judgment became final. The respondents filed a Motion against the Attachment Bond and the immediate execution of it. The judgment of CA in this case settled the issue of damages because of the improper issuance of the WPA in the first place.

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The RTC case was heard. Carlos obtained a favorable judgment to which the respondents filed an appeal. Carlos contends that the award of damages should have been included in this case and it was wrongfully included/prematurely awarded in the Motion against the Attachment Bond. Nahilo akosorry! The main issue related to our topic is concerned with the propriety of the judgment on the ATTACHMENT BOND and the MOTION FOR ITS IMMEDIATE EXECUTION which was granted. G.R. Nos. 135830 and 136035 are concerned with the award of damages on the attachment bond. They may be treated separately from the petition in G.R. No. 137743, which relates to the immediate execution of the said award.] ISSUES: Whether or not (1) The assailed judgment on the attachment bond could have been rendered, as it was, prior to the adjudication of the main case; (2) The CA properly complied with the hearing requirement under Section 20, Rule 57 prior to its judgment on the attachment bond; (3) The CA properly ascertained the amount of damages it awarded in the judgment on the attachment bond. RULING: Scope and Import of Section 20, Rule 57 of the 1997 Rules of Civil Procedure Section 20 allows the application to be filed at any time before the judgment becomes executory . It should be filed in the same case that is the main action and cannot be instituted separately . It should be filed with the court having jurisdiction over the case at the time of the application. The remedy provided by law is exclusive and by failing to file a motion for the determination of the damages on time and while the judgment is still under the control of the court, the claimant loses his right to damages. The Motion for Judgment on the Attachment Bond filed by respondents was properly filed since it was filed with the CA during the pendency of the appeal in the main case and also as an incident thereto. The core questions though lie in the proper interpretation of the condition under Section 20, Rule 57 that reads: Such damages may be awarded only after proper hearing and shall be included in the judgment on the main case. Petitioners assert that there was no proper hearing on the application for damages and that the CA had wrongfully acted on the application in that it resolved it prior to the rendition of the main judgment. Such Damages May Be Awarded Only After Proper Hearing Both Carlos and SIDDCOR were duly notified of the Motion for Judgment on the Attachment Bond and were required to file their respective comments. Carlos and SIDDCOR filed their respective comments in opposition to private respondents motion. All the relevant parties had been afforded the bare right to be heard on the matter. In this case, there were no open court hearings conducted by the CA and it is precisely this absence that the petitioners assert as fatal. HOWEVER, there is no express requirement under the rule that the hearing be done in open court, or that the parties be allowed to confront adverse witnesses to the claim of damages on the bond . The PROPER HEARING contemplated would not merely encompass the right of the parties to submit their respective positions, but also to present evidence in support of their claims, and to rebut the submissions and evidence of the adverse party. The necessary elements to be established in an application for damages are essentially factual: the fact of damage or injury and the quantifiable amount of damages sustained . HOWEVER, there is no requirement under the rule that a full-blown hearing on the merits should be had. It must be noted that the judicial finding on the wrongfulness of the attachment was then already CONCLUSIVE AND BEYOND REVIEW and that the amount of actual damages sustained was likewise indubitable as it could be found in the official case record in CA-G.R. CV No. 53229. The only matter of controversy that could be litigable through the traditional hearing would be the matter of moral and exemplary damages, but the CA appropriately chose not to award such damages. It should be noted that this case poses a situation different from what is normally contemplated under Section 20, Rule 57 wherein the very wrongfulness of the attachment remains one of the issues in contention in the main case. In such a case, there would be a greater demand for a more extensive hearing on the application of damages . And Shall be Included in the Judgment on the Main Case Section 20, Rule 57 does state that the award of damages shall be included in the judgment on the main case, and seemingly indicates that it should not be rendered prior to the adjudication of the main case. However, the determination that the attachment was wrongful did not come from the trial court or any court having jurisdiction over the main action. It was rendered by the Court of Appeals in the exercise of its certiorari jurisdiction in the original action reviewing the propriety of the issuance of the Writ of Preliminary Attachment against the private respondents. Said ruling attained finality when it was affirmed by this Court. The courts are bound to respect the conclusiveness of this final judgment, deeming as it does the allowance by the RTC of preliminary attachment as improper. This conclusion is no longer subject to review, even by the court called upon to resolve the application for damages on the attachment bond. The only matter left for adjudication is the proper amount of damages. Respondents are generally correct on the point that a case can only be deemed submitted for decision only after all pending incidents are resolved. It is clear that the award for damages need not be resolved before the case is submitted for decision, but should instead be resolved and included in the judgment on the main case, or the decision on the Appeal by Certiorari filed by the respondents. Thus, the action of the Court of Appeals in resolving the application for damages even before the main judgment was issued does not conform to Section 20, Rule 57. However, the special particular circumstances of this case lead us to rule that such error is not mortal to the award of damages. The award of damages was made after a proper hearing had occurred wherein all the concerned parties had been given the opportunity to present their arguments and evidence in support and in rebuttal of the application for damages. The premature award of damages DOES NOT NEGATE the fact that the parties were accorded due process, and indeed availed of their right to be heard. Even SIDDCOR acknowledges that there are recognized instances where the award of damages or judgment on the attachment bond may not be included in the decision on the main case, such as if the main case was dismissed for lack of jurisdiction and no claim for damages could have been presented in the main case. Scope of Damages Properly Awardable The rule is thus well-settled that the bond issued upon an application for preliminary attachment answers for all damages, incurred at whatever stage, which are sustained by reason of the attachment. The award of actual damages by the Court of Appeals is thus proper in amount. However, we disagree that the rate of legal interest be counted from the date of the unlawful garnishment, or on 27 June 1996. Properly, interest should start to accrue only from the moment it had been finally determined that the attachment was unlawful, since it is on that basis that the right to damages comes to existence. In this case, legal interest commences from the date the Court of Appeals decision in CA-G.R. SP No. 39267 became final, by reason of its affirmation by this Court. WHEREFORE, the petitions are DISMISSED. [G.R. No. 155868. February 6, 2007.] SPOUSES GREGORIO and JOSEFA YU, petitioners, vs. NGO YET TE, doing business under the name and style, ESSENTIAL MANUFACTURING, respondent. AUSTRIA-MARTINEZ, J p: FACTS: Spouses Yu purchased from Ngo Yet Te (Te) bars of detergent soap, and issued to the latter three postdated checks as payment of the purchase price. When Te presented the checks at maturity for encashment, said checks were returned dishonored and stamped "ACCOUNT CLOSED". Te demanded payment from Spouses Yu but the latter did not heed her

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demands. Acting through her son and attorney-in-fact, Charry Sy (Sy), Te filed with the Complaint for Collection of Sum of Money and Damages with Prayer for Preliminary Attachment. In support of her prayer for preliminary attachment, Te attached to her Complaint an Affidavit executed by Sy that Spouses Yu were guilty of fraud in entering into the purchase agreement for they never intended to pay the contract price, and that, based on reliable information, they were about to move or dispose of their properties to defraud their creditors. Upon Te's posting of an attachment bond, RTC issued an Order of Attachment/Levy on the basis of which Sheriff Alimurung of RTC Cebu City levied and attached Spouses Yu's properties in Cebu City consisting of one parcel of land and four units of motor vehicle, specifically, a Toyota Ford Fierra, a jeep, a Canter delivery van, and a passenger bus. Spouses Yu filed an Answer with counterclaim for damages arising from the wrongful attachment of their properties , specifically, actual damages, moral damages, and exemplary damages, They also sought payment of attorney's fees and litigation expenses. On the same date, Spouses Yu filed an Urgent Motion to Dissolve Writ of Preliminary Attachment. They also filed a Claim Against Surety Bond in which they demanded payment from Visayan Surety and Insurance Corporation (Visayan Surety), the surety which issued the attachment bond, representing the damages they allegedly sustained as a consequence of the wrongful attachment of their properties. While the RTC did not resolve the Claim Against Surety Bond, it issued an Order, discharging from attachment the Toyota Ford Fierra, jeep, and Canter delivery van on humanitarian grounds, but maintaining custody of Lot No. 11 and the passenger bus. Spouses Yu filed a Motion for Reconsideration which the RTC denied. In a Petition for Certiorari CA lifted the RTC Order of Attachment on their remaining properties ruling that neither pleading states in particular how the fraud was committed or the badges of fraud purportedly committed by the petitioners to establish that the latter never had an intention to pay the obligation; neither is there a statement of the particular acts committed to show that the petitioners are in fact disposing of their properties to defraud creditors. It also appears that the order of attachment was upheld because of the admitted financial reverses the petitioner is undergoing. This is reversible error. Insolvency is not a ground for attachment especially when defendant has not been shown to have committed any act intended to defraud its creditors . . . . From said CA Decision, Te filed a Motion for Reconsideration but to no avail. Te filed with SC a Petition for Review in on Certiorari but denied the same in a Resolution for having been filed late and for failure to show that a reversible error was committed by the CA. Entry of Judgment of Resolution was made on July 22, 1994. However, the RTC, apparently not informed of the SC Decision, rendered a Decision, finding that the plaintiff has established a valid civil cause of action against the defendants, and therefore ordered Defendants to pay the plaintiff with interest and denies the grant of damages. On the counterclaim, this RTC declines to rule on this, considering that the question of the attachment which allegedly gave rise to the damages incurred by the defendants is being determined by the Supreme Court. Spouses Yu filed with the RTC a MR questioning the disposition of their counterclaim. They contend that they are entitled to their counterclaim for damages as a matter of right in view of the finality of SC Resolution in which affirmed the finding of the CA that respondent Te had wrongfully caused the attachment of their properties. They also filed a Manifestation informing the RTC of the SC Resolution in G.R. No. 114700. The RTC issued an Order which reiterates in toto its Decision reasoning that both the High Court and the CA, merely declared the previous issuance of the writ of attachment by this Court thru its former presiding judge to be improvidently issued, but it did not award any damages of any kind to the defendants, hence RTC could not grant any damages by virtue of the improvident attachment made by this Court thru its former presiding judge, which was claimed by the defendants in their counter claim. (having exhausted all their remedy in RTC they went to CA again questioning the disposition of their counterclaim...dami nangyari eh, dami finile like Notices of Appeal, etc.) CA affirmed in toto the RTC Decision declaring that the latter had failed to adduce sufficient evidence of their entitlement to damages. Spouses Yu filed a Motion for Reconsideration but the CA denied it. Hence the present petition. ISSUE: 1. 2. Whether or not the appellate court erred in not holding that the writ of attachment was procured in bad faith, after it was established by final judgment that there was no true ground therefor NO Whether or not the appellate court erred in refusing to award actual, moral and exemplary damages after it was established by final judgment that the writ of attachment was procured with no true ground for its issuance Sps. Only entitled to temperate damages and attorney's fees

HELD: CA finding that the attachment of the properties of Spouses Yu was wrongful DID NOT RELIEVE SPOUSES YU OF THE BURDEN OF PROVING THE FACTUAL BASIS OF THEIR COUNTERCLAIM FOR DAMAGES. To merit an award of actual damages arising from a wrongful attachment, the attachment defendant must prove, with the best evidence obtainable, the fact of loss or injury suffered and the amount thereof. Such loss or injury must be of the kind which is not only capable of proof but must actually be proved with a reasonable degree of certainty. As to its amount, the same must be measurable based on specific facts, and not on guesswork or speculation . In particular, if the claim for actual damages covers unrealized profits, the amount of unrealized profits must be established and supported by independent evidence of the mean income of the business undertaking interrupted by the illegal seizure. In ruling that Spouses Yu failed to adduce sufficient evidence to support their counterclaim for actual damages based on unrealized income, the CA stated that despite her submission of the used and unused ticket stubs, there was no evidence on the daily net income, the routes plied by the bus and the average fares for each route . The submitted basis is too speculative and conjectural . No reports regarding the average actual profits and other evidence of profitability necessary to prove the amount of actual damages were presented. Thus, the Court a quo did not err in not awarding damages in favor of defendants-appellants. SC usually defer to the expertise of the CA, especially when it concurs with the factual findings of the RTC. Indeed, findings of fact may be passed upon and reviewed by the Supreme Court in the following instances: (1) when the conclusion is a finding grounded entirely on speculations, surmises, or conjectures; (2) when the inference made is manifestly mistaken, absurd, or impossible; (3) where there is a grave abuse of discretion in the appreciation of facts; (4) when judgment is based on a misapprehension of facts; (5) when the lower court, in making its findings, went beyond the issues of the case and such findings are contrary to the admissions of both appellant and appellee; (6) when the factual findings of the CA are contrary to those of the trial court; (7) when the findings of fact are themselves conflicting; (8) when the findings of fact are conclusions made without a citation of specific evidence on which they are based; (9) when the facts set forth in the petition as well as in the petitioner's main and reply briefs are not disputed by the respondents; (10) when the findings of fact of the lower court are premised on the supposed absence of evidence and are contradicted by the evidence on record. 66 However, the present case does not fall under any of the exceptions. We are in full accord with the CA that Spouses Yu failed to prove their counterclaim. Besides, based on the Manifestation filed by Sheriff Alimurung, it would appear that long before the passenger bus was placed under preliminary attachment in, the same had been previously attached by the Sheriff of Mandaue City in connection with another case and that it was placed in the Cebu Bonded Warehousing Corporation, Cebu City. Thus, Spouses Yu cannot complain that they were unreasonably deprived of the use of the passenger bus by reason of the subsequent wrongful attachment issued. Nor can they also attribute to the wrongful attachment their failure to earn income or profit from the operation of the passenger bus.

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Moreover, petitioners did not present evidence as to the damages they suffered by reason of the wrongful attachment of Lot No. 11. Nonetheless, we recognize that Spouses Yu suffered some form of pecuniary loss when their properties were wrongfully seized, although the amount thereof cannot be definitively ascertained. Hence, an award of temperate or moderate damages in the amount of P50,000.00 is in order. 70 As to moral and exemplary damages , to merit an award thereof, it must be shown that the wrongful attachment was obtained by the attachment plaintiff with malice or bad faith, such as by appending a false affidavit to his application . However, the testimony of petitioner Josefa Yu herself negates their claim for moral and exemplary damages since she admitted that there is really a transfer of fund from their previous bank to another bank. Hence, it is not difficult to understand why Te concluded that Spouses Yu never intended to pay their obligation for they had available funds in their bank but chose to transfer said funds instead of cover the checks they issued. Thus, SC cannot attribute malice nor bad faith to Te in applying for the attachment writ. We cannot hold her liable for moral and exemplary damages. As a rule, attorney's fees cannot be awarded when moral and exemplary damages are not granted, the exception however is when a party incurred expenses to lift a wrongfully issued writ of attachment. Without a doubt, Spouses Yu waged a protracted legal battle to fight off the illegal attachment of their properties and pursue their claims for damages. It is only just and equitable that they be awarded reasonable attorney's fees in the amount of P30,000.00. In sum, SC affirm the dismissal of the counterclaim of petitioners Spouses Yu for actual, moral, and exemplary damages. However, we grant them temperate damages and attorney's fees. WHEREFORE, the petition is partly GRANTED. The March 21, 2001 Decision of the Court of Appeals is AFFIRMED with the MODIFICATION that petitioners' counterclaim is PARTLY GRANTED. Gregorio Yu and Josefa Yu are awarded P50,000.00 temperate damages and P30,000.00 attorney's fees. No costs. BACOLOD CITY WATER DISTRICT, petitioner, vs. THE HON. EMMA C. LABAYEN, Presiding Judge, RTC of Bacolod City, Br. 46 and the City of Bacolod, respondents. [G.R. No. 157494. December 10, 2004.] SYLLABUS: REMEDIAL LAW; CIVIL PROCEDURE; ACTION FOR INJUNCTION; DISTINGUISHED FROM PRELIMINARY INJUNCTION; ELUCIDATED. INJUNCTION is a judicial writ, process or proceeding whereby a party is ordered to do or refrain from doing a certain act. It may be the main action or merely a provisional remedy for and as an incident in the main action. The main action for injunction is distinct from the provisional or ancillary remedy of preliminary injunction which cannot exist except only as part or an incident of an independent action or proceeding. As a matter of course, in an action for injunction, the auxiliary remedy of preliminary injunction, whether prohibitory or mandatory, may issue. Under the law, the main action for injunction seeks a judgment embodying a final injunction which is distinct from, and should not be confused with, the provisional remedy of preliminary injunction, the sole object of which is to preserve the status quo until the merits can be heard . A preliminary injunction is granted at any stage of an action or proceeding prior to the judgment or final order. It persists until it is dissolved or until the termination of the action without the court issuing a final injunction . On the other hand, a RESTRAINING ORDER is issued to preserve the status quo until the hearing of the application for preliminary injunction which cannot be issued ex parte . Under Rule 58 of the Rules of Court, a judge may issue a temporary restraining order with a limited life of twenty (20) days from date of issue. If before the expiration of the twenty (20)-day period the application for preliminary injunction is denied, the temporary restraining order would be deemed automatically vacated. If no action is taken by the judge on the application for preliminary injunction within the said twenty (20) days, the temporary restraining order would automatically expire on the 20th day by the sheer force of law, no judicial declaration to that effect being necessary. The rule against the non-extendibility of the twenty (20)-day limited period of effectivity of a temporary restraining order is absolute if issued by a regional trial court. The failure of respondent court to fix a period for the ordered restraint did not lend the temporary restraining order a breath of semi-permanence which can only be characteristic of a preliminary injunction. The twenty (20)-day period provided by the Rules of Court should be deemed incorporated in the Order where there is an omission to do so. SYNOPSIS: Respondent City filed a case for Injunction with Prayer for Temporary Restraining Order (TRO) and/or Preliminary Mandatory Injunction against petitioner who announced the implementation of its water rates adjustment. The trial court issued a restraining order but the same was put in issue: Whether the Order was a TRO or a preliminary injunction. The Court ruled that the attendant facts and circumstances of the case clearly showed that the trial court issued a TRO. That the Order failed to state the period for the restraint does not convert it from a TRO to a preliminary injunction. And the 20-day limited period of effectivity of the TRO is absolute. The 20-day period should be deemed incorporated in the Order where there is an omission to do so. FACTS Petitioner Bacolod City Water District (BACIWA) is a water district established pursuant to Presidential Decree No. 198 as a government-owned and controlled corporation with original charter. It is in the business of providing safe and potable water to Bacolod City. Public respondent City of Bacolod is a municipal corporation created by Commonwealth Act No. 326, otherwise known as the Charter of Bacolod. On March 26, 1999, respondent City filed a case for Injunction with a Prayer for Temporary Restraining Order And/Or Preliminary Mandatory Injunction against petitioner . The petition stated that on January 15, 1999, BACIWA published a Schedule of Automatic Water Rates Adjustments for the years 1999, 2000 and 2001 . The rates were supposed to take effect seven (7) days after its posting in the local papers or on January 22, 1999. The increase was aborted after petitioner unilaterally suspended the January 22, 1999 scheduled implementation. March 15, 1999, however, petitioner announced that the rate hike will be implemented on April 1, 1999. Respondent City opposed, it alleged that the proposed water rates would violate due process as they were to be imposed without the public hearing required under Letter of Instructions No. 700 and Presidential Decree No. 1479. Hence, it prayed that before the hearing of the main case, a temporary restraining order or a preliminary injunction be issued. Petitioner filed its Position Paper dated April 15, 1999. It attached documents evidencing the conduct of extensive and lengthy public hearings in fifty-eight (58) of the sixty-one (61) barangays of Bacolod City. It opined that original jurisdiction over cases on rate review is vested in the Local Water Utilities Administration (LWUA); On June 17, 1999, respondent City filed a Motion to Set [for] Hearing its application for a temporary restraining order or preliminary mandatory injunction. It alleged that the parties had already submitted their respective memoranda. It also alleged that petitioner had already effected the water rates increase and collection, hence, causing irreparable injury to the public. On July 22, 1999, respondent trial court issued an Order stating that there was no more need to hear the case on the merits as both parties have already submitted their position papers and documents to prove their respective allegations. After a hiatus of nearly seven (7) months, or on February 18, 2000, respondent City filed an Urgent Motion for the Issuance of Temporary Restraining Order And[/]Or Writ of Preliminary Injunction praying that the case be set for hearing on February 24, 2000. On the same date requested, respondent court heard respondent's application for temporary restraining order and issued an Order commanding petitioner to stop, desist and refrain from implementing the proposed water rates for the year 2000 which were then supposed to take effect on March 1, 2000. On March 7, 2000, petitioner filed an Urgent Motion for Reconsideration and Dissolution of the Temporary Restraining Order. Respondent court a quo issued on March 10, 2000 an Order 19 directing respondent City to file an Opposition to the Urgent Motion. In its Opposition, respondent

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City contended that the temporary restraining order issued was not infirmed with procedural and substantive defects. Respondent court continued with the proceedings by receiving the evidence of petitioner in support of its Motion for Reconsideration and Dissolution of Temporary Restraining Order. It further issued Orders dated March 17, 2000 21 and March 20, 2000. On April 6, 2000, respondent court issued an Order finding petitioner's Urgent Motion for Reconsideration and Dissolution of Temporary Restraining Order moot and academic considering petitioner's compliance of said temporary restraining order. On December 21, 2000, respondent court issued the assailed Decision granting the final injunction which allegedly confirmed the previous preliminary injunction. Petitioner filed its Motion for Reconsideration of the assailed Decision on January 11, 2001 asserting, among others, that the case was not yet ripe for decision when the court granted the final injunction, the petitioner having had no opportunity to file its answer, avail of the mandatory pre-trial conference and have the case tried on the merits. Respondent court denied the Motion for Reconsideration for lack of merit in an Order dated January 24, 2001. Petitioner then filed a special civil action for certiorari under Rule 65 in the Court of Appeals. It alleged that public respondent judge acted without or in excess of jurisdiction and/or with grave and patent abuse of discretion amounting to lack or excess of jurisdiction when she issued the final injunction in disregard of petitioner's basic right to due process. The Court of Appeals dismissed the petition for review on certiorari, ratiocinating thus: The Spouses Castro and Nogoy demanded from the Cos to stop the construction of the said perimeter wall because it closed the only means of ingress and egress and impeded ventilation. Spouses Castro and Nogoy filed before RTC Pampanga a complaint for injunction, restoration of road lot/right of way and damages with prayer for temporary restraining order and/or writ of preliminary injunction. The complaint was subsequently amended modifying the prayer for a writ of preliminary injunction to a writ of preliminary mandatory injunction to restore the road because the wall was almost finished. The RTC denied the application for a writ of preliminary mandatory injunction. On appeal, the CA dismissed the petition and denied their MR. Hence this petition. Issue: Whether or not the circumstances would warrant the issuance of the writ of preliminary mandatory injunction? Held: NO because the petitioners have not shown a clear and unmistakable right for the court to issue the writ. As found by the trial court during its ocular inspection, Cos lot is not a road lot which could have been used by petitioners as ingress and egress. Said lot is covered by wild plants, grasses and bushes. There is no visible pathway either beaten or paved on the lot. Also, there is an existing secondary road within the subdivision that serves as the main access road to the highway. Also, the certificate of title in the name of Co covering the subject lot does not have an annotation to the effect that said lot is a road lot. An annotation of the TCT is the best evidence to prove that said lot is a road lot. The grant of a preliminary mandatory injunction rests on the sound discretion of the court, and the exercise of sound judicial discretion by the lower court should not be interfered with except in cases of manifest abuse. It is likewise settled that a court should avoid issuing a writ of preliminary mandatory injunction which would effectively dispose of the main case without trial. To be entitled to a writ of preliminary injunction, however, the petitioners must establish the following requisites: (a) the invasion of the right sought to be protected is material and substantial; (b) the right of the complainant is clear and unmistakable; and (c) there is an urgent and permanent necessity for the writ to prevent serious damage. Since a preliminary mandatory injunction commands the performance of an act, it does not preserve the status quo and is thus more cautiously regarded than a mere prohibitive injunction. Accordingly, the issuance of a writ of preliminary mandatory injunction is justified only in a clear case, free from doubt or dispute. When the complainants right is thus doubtful or disputed, he does not have a clear legal right and, therefore, the issuance of injunctive relief is improper. ESTARES v. COURT OF APPEALS FACTS: Petitioner Spouses Eliseo F. Estares and Rosenda P. Estares (Estares spouses for brevity) filed a complaint for "Damages and Preliminary Prohibitory Injunction" against private respondent Prominent Lending & Credit Corporation (PLCC) o They alleged that the obtained a loan from PLCC which is secured by a real estate mortgage and that the promissory note and the real estate mortgage were falsified because they affixed their signatures on two blank documents; the monthly interest of 3.5% and 3% penalty on each delayed monthly interest are different from the 18% interest per annum to which they agreed to; for failure to pay their obligation despite repeated demands, PLCC filed a petition for extrajudicial foreclosure o Now, the petitioner sought to declare as null and void the promissory note and the real estate mortgage for not reflecting their true agreement. In the interim, they prayed for a temporary restraining order (TRO) and/or writ of preliminary injunction to enjoin PLCC from taking possession of the

In the case at bar, the [O]rder of public respondent dated 24 February 2000, though termed by BACIWA as a temporary restraining order, is in fact a preliminary injunction. The period of the restraint was not limited. By its wordings, it can be safely inferred that the increased water rates must not be effected until final disposition of the main case. This note of semipermanence simply cannot issue from a mere temporary restraining order. It must be further noted that the temporary restraining order has been elevated to the same level as the preliminary injunction in the procedure, grounds and requirements of its obtention by S[ection] 4, Rule 58. Thus, to set [a] distinction, the present practice is to categorically refer to it as a temporary restraining order. In which case, the omission by the public respondent in referring to the 24 February 2000 order as a temporary restraining order could not have been a mere oversight but deliberate. Resorting to this Court, petitioner raises the following issues: ISSUE: WON the order issued is a TRO or a PI? TRO HELD: The sequence of events and the proceedings that transpired in the trial court make a clear conclusion that the Order issued was a temporary restraining order and not a preliminary injunction. Again, it was only when petitioner expressed its vehement objection on the ruling that the final injunction confirmed the preliminary injunction previously issued, when the respondent City and the respondent trial court started to insist that the questioned Order was a preliminary injunction. Given the previous undeviating references to it as a temporary restraining order, respondents cannot now consider it as a preliminary injunction to justify the validity of the assailed Decision. The attendant facts and circumstances clearly show that the respondent trial court issued a temporary restraining order. Injunction is a judicial writ, process or proceeding whereby a party is ordered to do or refrain from doing a certain act. It may be the main action or merely a provisional remedy for and as an incident in the main action. CHINA BANKING CORPORATION, SPOUSES JOEY & MARY JEANNIE CASTRO and SPOUSES RICHARD & EDITHA NOGOY, Petitioners, versus - BENJAMIN CO, ENGR. DALE OLEA and THREE KINGS CONSTRUCTION & REALTY CORPORATION, Respondents. FACTS: China Banking sold lots situated at St. Benedict Subdivision to the Spouses Castro and Spouses Nogoy . These lots have a common boundary on their southeastern side by a lot owned by respondent Co and his siblings. Co entered into a joint venture with Three Kings Construction and Realty Corp for the development of their lot. A perimeter wall was constructed on Cos lot.

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mortgaged property and proceeding with the extrajudicial sale TC Issued a TRO in favor of the petitioners At the hearing on the Estares spouses application for a writ of preliminary injunction, Rosenda P. Estares (Rosenda for brevity) testified that: the loan proceeds of P637,000.00, received on January 12, 1998, was used in the improvement and renovation of their boarding house; they did not question PLCC in writing why they only received P637,000.00; when they received the Statement of Account, they did not question the figures appearing therein; when they received PLCCs demand letter, they went to the formers office not to question the loans terms and conditions but merely to request for extension of three months to pay their obligation. The trial court denied the Estares spouses application for a writ of preliminary injunction, holding that the latter failed to establish the facts necessary for an injunction to issue CA dismissed the petition of the spouses holding that the trial court did not abuse its discretion in denying the Estares spouses application for a writ of preliminary injunction since the latter failed to prove the requisites for the issuance thereof MR was denied, hence, this petition

Nelson Baraquia (respondent) filed before the Regional Trial Court (RTC) of Iloilo City a complaint 1 against Dominico Buyco and Clemente Buyco (Buycos), for the establishment of a permanent right of way, injunction and damages with preliminary injunction and temporary restraining order, o This is to enjoin the Buycos from closing off a private road within their property which he has been using to go to and from the public highway to access his poultry farm.

RTC granted the application of preliminary injunction On February 14, 2007, the trial court dismissed respondents complaint for failure to establish the concurrence of the essential requisites for the establishment of an easement of right of way under Articles 649 and 650 of the Civil Code. 3 It accordingly lifted the writ of preliminary injunction Respondent filed a notice of appeal of the trial courts decision Respondent filed with the trial court a motion to cite petitioner and his brother Gonzalo in contempt, alleging that they had closed off the subject road, thus violating the writ of preliminary injunction. o The trial court, noting that respondent received on March 5, 2007 his copy of its decision while petitioner received his on February 21, 2007, held that the February 14, 2007 decision had not yet become final and executory, hence, the writ of preliminary injunction remained to be valid, efficacious and obligatory, rendering petitioners act of closing the road on March 1, 2007 an indirect contempt of court. It thus declared petitioner and his brother in contempt of court Upon MR of petitioner, the TC granted it and ruled that the petitioners cannot be held in contempt by mere motion and not by verified petition

ISSUE: WON THE WRIT OF PRELIMINARY INJUNCTION MUST BE ISSUED TO THE SPOUSES. HELD: In any event, we find that this petition must still be dismissed as the Court of Appeals did not commit any grave abuse of discretion amounting to want or excess of jurisdiction in dismissing the petition. Generally, injunction is a preservative remedy for the protection of substantive rights or interests. It is not a cause of action in itself but merely a provisional remedy, an adjunct to a main suit. The controlling reason for the existence of the judicial power to issue the writ is that the court may thereby prevent a threatened or continuous irremediable injury to some of the parties before their claims can be thoroughly investigated and advisedly adjudicated. It is to be resorted to only when there is a pressing necessity to avoid injurious consequences which cannot be remedied under any standard of compensation. The application of the writ rests upon an alleged existence of an emergency or of a special reason for such an order before the case can be regularly heard, and the essential conditions for granting such temporary injunctive relief are that the complaint alleges facts which appear to be sufficient to constitute a cause of action for injunction and that on the entire showing from both sides, it appears, in view of all the circumstances, that the injunction is reasonably necessary to protect the legal rights of plaintiff pending the litigation. The Estares spouses had the burden in the trial court to establish the following requirements for them to be entitled to injunctive relief: (a) the existence of their right to be protected; and (b) that the acts against which the injunction is to be directed are violative of such right. 33] To be entitled to an injunctive writ, the petitioner must show, inter alia, the existence of a clear and unmistakable right and an urgent and paramount necessity for the writ to prevent serious damage. In the present case, the Estares spouses failed to establish their right to injunctive relief. They do not deny that they are indebted to PLCC but only question the amount thereof. Their property is by their own choice encumbered by a real estate mortgage. Upon the nonpayment of the loan, which was secured by the mortgage, the mortgaged property is properly subject to a foreclosure sale. It must be stressed that the assessment and evaluation of evidence in the issuance of the writ of preliminary injunction involve findings of facts ordinarily left to the trial court for its conclusive determination. 38 As such, a trial courts decision to grant or to deny injunctive relief will not be set aside on appeal unless the court abused its discretion. In granting or denying injunctive relief, a court abuses its discretion when it lacks jurisdiction, fails to consider and make a record of the factors relevant to its determination, relies on clearly erroneous factual findings, considers clearly irrelevant or improper factors, clearly gives too much weight to one factor, relies on erroneous conclusions of law or equity, or misapplies its factual or legal conclusions BUYCO v. BARAQUIA FACTS:

ISSUE: WHETHER THE LIFTING OF A WRIT OF PRELIMINARY INJUNTION DUE TO THE DISMISSAL OF THE COMPLAINT IS IMMEDIATELY EXECUTORY, EVEN IF THE DISMISSAL OF THE COMPLAINT IS PENDING APPEAL. HELD: A writ of preliminary injunction is an order granted at any stage of an action or proceeding prior to the judgment or final order, requiring a party or a court, agency or a person to refrain from a particular act or acts. 8 It is merely a provisional remedy, adjunct to the main case subject to the latters outcome.9 It is not a cause of action in itself. 10 Being an ancillary or auxiliary remedy, it is 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. The writ is provisional because it constitutes a temporary measure availed of during the pendency of the action and it is ancillary because it is a mere incident in and is dependent upon the result of the main action. 11 It is well-settled that the sole object of a preliminary injunction, whether prohibitory or mandatory, is to preserve the status quo until the merits of the case can be heard. It is usually granted when it is made to appear that there is a substantial controversy between the parties and one of them is committing an act or threatening the immediate commission of an act that will cause irreparable injury or destroy the status quo of the controversy before a full hearing can be had on the merits of the case. 12 The present case having been heard and found dismissible as it was in fact dismissed, the writ of preliminary injunction is deemed lifted, its purpose as a provisional remedy having been served, the appeal therefrom notwithstanding. In one case, the SC ruled that: a dismissal, discontinuance or non-suit of an action in which a restraining order or temporary injunction has been granted operates as a dissolution of the restraining order or temporary injunction," regardless of whether the period for filing a motion for reconsideration of the order dismissing the case or appeal therefrom has expired. The rationale therefor is that even in cases where an appeal is taken from a judgment dismissing an action on the merits, the appeal does not suspend the judgment, hence the general

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rule applies that a temporary injunction terminates automatically on the dismissal of the action." There being no indication that the appellate court issued an injunction in respondents favor, the writ of preliminary injunction issued on December 1, 1999 by the trial court was automatically dissolved upon the dismissal of Civil Case No. 26015. Heirs of the Late Justice JOSE B. L. REYES represented by Adoracion D. Reyes, et al, Petitioners, v. CA and Metro Manila Builders, Inc., Respondents. DOCTRINE: CA has no authority to issue immediate execution pending appeal of its own decision. Discretionary execution under Rule 39, Section 2 (a) is allowed pending appeal of a judgment or final order of the trial court, upon good reasons to be stated in a special order after due hearing. A judgment of the CA cannot be executed pending appeal . Once final and executory, the judgment must be remanded to the lower court, where a motion for its execution may be filed only after its entry. In other words, before its finality, the judgment cannot be executed . There can be no discretionary execution of a decision of the Court of Appeals. FACTS: PARDO, J.: Justice Jose Benedicto Luna Reyes (aka Justice JBL. Reyes) and his brother Dr. Edmundo A. Reyes were co-owners of a parcel of land located at Taft Avenue. November 30, 1976, they entered into a 25year lease contract (15-30K) with Metro Manila Builders, Inc. (MMB). Petitioners found out that respondent MMB had not properly maintained the premises or covered the same with an adequate insurance policy. Worse, respondent had sub-leased the property to 3rd parties and was earning about P500K a month. December 2, 1996, petitioners served on respondent a notice terminating the lease contract and demanding that they vacate and surrender the premises. Failing to do so, petitioners filed with the MTC-Pasay a complaint for unlawful detainer based on breach of the contract of lease. Respondent MMB, Inc. did not deny the violations imputed to it but questioned the absence of a judicial rescission of the contract of lease. May 9, 1997, MTC ruled in favor of petitioners. May 16, 1997, petitioners filed with the MTC a motion for execution of the judgment of eviction. On the other hand, respondent appealed the decision to the RTC. But, respondents failed to file their appeal memorandum on time and so the court dismissed their appeal. Respondent never raised the issue of jurisdiction. November 5, 1997, respondent filed an appeal to the CA. MTC granted the motion for execution that petitioners filed. Consequently, the trial court issued the corresponding writ of execution. However, the CA issued a TRO against the execution of the ejectment judgment. Before the appellate court could rule on the injunctive relief, respondent withdrew its appeal; which the CA allowed. Simultaneously with the withdrawal of the first CA case, private respondent also filed a petition for annulment of the ejectment decision before the RTC on the ground that the MTC had no jurisdiction over the ejectment case . MMB prayed for a TRO and/or preliminary injunction against the execution of the ejectment decision; denied. March 5, 1998, petitioners filed with the RTC their memorandum opposing the injunctive relief sought by respondent. March 20, 1998, petitioners filed with the same court a MTD. March 23, 1998, respondent filed another petition with CA for certiorari and mandamus complaining about what it termed as the sub-silencio denial by the lower court of their application for injunctive relief. March 23, 1998, the CA issued a resolution giving petitioners (10) days from notice to file their comment on the petition and in the meantime, restrained them from enforcing the writ of execution. Incidentally, this resolution was signed by only 2 members of the CA, 1 member did not sign. Hence, the resolution was void . The clerk of court should not have received for filing, much less served on the parties. <unanimous vote of three members of a division shall be necessary for the pronouncement of a decision, or final resolution which shall be reached in consultation before the writing of the opinion by any member of the division. This rule applies to interlocutory resolutions>. April 14, 1998, upon motion of petitioners, the RTC dismissed the petition on the ground that respondent's remedy is appeal in due time which, when withdrawn, was effectively abandoned . With the imminent expiration of the TRO, respondent filed with the CA a series of petitions and motions to issue injunctive relief. Respondent filed with the CA a manifestation alleging that it filed with the RTC an action for annulment of the unilateral termination of lease contract and damages. On the ground that such case was still pending, respondents prayed for a TRO and a writ of preliminary injunction to prevent the execution of the judgment. Respondent filed with the CA another case seeking to set aside the order of the RTC dismissing the action and praying that a TRO be issued against the MTC enjoining the writ of execution etc. CA consolidated the 2nd and 3rd CA cases. Respondents filed with the RTC a petition seeking a TRO to enjoin MTC and the sheriff from enforcing the writ of execution. August 21, 1998, the CA promulgated its decision setting aside the decision of the MTC and ruled in favor of the respondent. August 25, 1998, respondent filed with the CA another motion exparte for execution pending appeal, motion to cite in contempt and motion to stop demolition. On August 31, 1998, petitioners filed with the Court of Appeals a motion requesting for an extension of time to file explanation on the motion to declare petitioners and counsel in contempt. September 14, 1998, petitioners filed with the SC a petition for review of the decision of the CA. CA, despite the pending petition with the SC, promulgated its resolution adjudging petitioner and their counsel guilty of indirect contempt CA enforced the writ, evicted petitioners, and restored possession in favor of private respondent. September 29, 1998, petitioners filed with the SC a petition for certiorari to nullify the resolution of the CA allowing execution pending appeal and the writ of execution issued pursuant thereto and more, finding petitioners guilty of indirect contempt of court.

ISSUE: Was there was a need for judicial rescission of the contract of lease before respondent may be compelled to move out of the leased premises? NONE. HELD: SUBSTANTIVE: There is no need for a judicial rescission of the lease contract. As long as such agreements are not contrary to law, morals, good customs, public policy or public order they shall have the force of law between them. PROCEDURAL: It was worse that the CA immediately enforced its decision pending appeal restoring respondent in possession of the leased premises and worst, appointed a special sheriff to carry out the writ of execution. In discretionary executions, the same must be founded upon good reasons. The court must state in a special order the "good reasons" justifying the issuance of the writ. The good reasons allowing execution pending appeal must constitute superior circumstances demanding urgency that will outweigh the injuries or damages to the adverse party if the decision is reversed. The good reasons given by the CA to support the discretionary execution of its decision are (1) that respondent would be deprived of income from its business endeavors; (2) that "it is of public knowledge" that the CA and the SC are clogged with cases and it may take some time before the decision in the case may attain its finality; and (3) that petitioners acted with bad faith and malice. None of the cited reasons is "good" enough . According to jurisprudence, respondent's precarious financial condition is not a compelling circumstance warranting immediate execution . Urgency resulting from years of delay in the disposal of a case is not a good reason for premature execution of the decision. Bad faith and malice are not indicated simply because petitioners insisted on their rights and exhausted judicial remedies. On the contrary, good faith is always presumed. Petitioners elevated the decision of the CA to the SC by petition for review. By the mere fact of the filing of the petition, the finality of the CA's decision

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was stayed, and there could be no entry of judgment therein, and, hence, no premature execution could be had. The CA adopted its resolution granting execution pending appeal after the petition for review was already filed in the SC. It thereby encroached on the hallowed grounds of the SC. Worst of all, the CA has no authority to appoint a special sheriff. It appointed an employee of the mailing section, who was not even bonded as required by law. Such display of keen interest in the immediate execution of its decision coupled with the exercise of excessive authority by illegally appointing a "special sheriff' makes the concerned members of the CA liable to disciplinary action and the imposition of appropriate penalty. WHEREFORE, the Court declares VOID the resolution of the CA and the writ of execution. Petitioners are acquitted of the charge of contempt of court. [G.R. No. 69863-65 : December 10, 1990.] LINO BROCKA vs. JUAN PONCE ENRILE FACTS: Jeepney strike called by the Alliance of Concerned Transport Organization (ACTO) a demonstration held in sympathy of this strike, forcibly and violently dispersed a petitioners arrested by Northern Police District Officers Jan 28 85 Petitioners charged with Illegal Assembly RPC146 par.3 in 3 crim cases filed before RTC QC All petitioners released on bail P3,000 each EXCEPT for Lino Brocka, Ben Cervantes, Cosme Garcia and Rodolfo Santos (Brocka, et al.), who were charged as leaders of the offense of Illegal Assembly for whom no bail was recommended Urgent petition for bail filed before the RTC a daily hearings held between Feb.1-7 85 a On Feb. 7 or 9 85, RTC QC Judge Miriam Defensor Santiago ordered Brocka, et als provisional release; recommended bail at P6,0000 each a Brocka, et al filed respective bail bonds BUT Despite service of release order, Brocka, et al remained in detention a respondents-police officers invoked Preventive Detention Action (PDA) allegedly issued against Brocka, et al on Jan. 28 85 Neither original nor certified true copy of this PDA was shown to Brocka, et al. Feb 11 85 Brocka, et al charged with Inciting to Sedition in 3 crim cases; hasty and spurious filing of this second offense as follows: 10:30 AM counsel informed by phone that Brocka, et al will be brought before the QC Fiscal at 2:30PM for undisclosed reasons a another phone call subsequently received informing counsel that appearance of Brocka, et al was to be at 2:00PM 2:00PM Brocka, et al arrived at office of Asst. City Fiscal a complainants affidavits had not yet been received 3:00PM representative of the military arrived with alleged statements of complainants against Brocka, et al for alleged inciting to sedition 3:15PM counsel inquired from Records Custodian when the charges against Brocka, et al had been officially received a informed that said charges were never coursed through the Records Office ALSO, utterances allegedly constituting Inciting to Sedition under RPC142 are, almost verbatim, the same utterances which are the subject of the crim cases for Illegal Assembly for which Brocka, et al are entitled to be relased on bail as a matter of Constitutional right a appears that respondents have conspired to deprive Brocka, et al of the right to bail AND, panel of assistant fiscals demanded that Brocka, et al sign a waiver of their rights under RPC125 as a condition for the grant of the counsels request that they be given 7 days within which counsel may conferwith their clients a no such requirement required under the rules Brocka, et al released provisionally on Feb.14 85 on orders of then Pres. Marcos a release narrated in Courts resolution in petition for habeas corpus filed by Sedfrey Ordonez in behalf of Brocka, et al: In Return of the Writ of Habeas Corpus, respondents said all accused had already been released a four on Feb15 85 and one on Feb.8 85 Petitioners, nevertheless, still argue that the petition has not become moot and academic because the accused continue to be in the custody of the law under an invalid charge of inciting to sedition. Hence, this petition. Brocka, et al contend: bad faith and/or harassment sufficient bases for enjoining their criminal prosecution second offense of Inciting to Sedition manifestly illegal premised on one and the same act of participating in the ACTO jeepney strike a matter of defense in sedition charge so, only issue here is

ISSUE: Whether or not criminal prosecution of a case may be enjoined YES RULING: We rule in favor of Brocka, et al. and enjoin their criminal prosecution for the second offense of inciting to sedition. GEN. RULE: Criminal prosecution may not be restrained or stayed by injunction, preliminary or final EXCEPTIONS: To afford adequate protection to the constitutional rights of the accused When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions When there is no prejudicial question which is subjudice When the acts of the officer are without or in excess of authority Where the prosecution is under an invalid law, ordinance or regulation When double jeopardy is clearly apparent When the court has no jurisdiction over the offense Where it is a case of persecution rather than prosecution Where the charges are manifestly false and motivated by lust for vengeance When there is clearly no prima facie case against the accused and a motion to quash on that ground had been denied Preliminary injunction has been issued by the SC to prevent the threatened unlawful arrest of petitioners In the case at bar, criminal proceedings had become a case of persecution, have been undertaken by state officials in bad faith: 1. Respondents invoked a spurious PDA in refusing Brocka, et als release from detention BUT this PDA was issued on Jan.28 85 and invoked only on Feb.9 85 upon receipt of TCs order of release a violates guideline that PDA shall be invoked within 24 hrs in Metro, Manila or 48 hours outside Metro, Manila Despite subpoenas for PDAs production, prosecution merely presented a purported xeerox copy of it a violates Court pronouncement that individuals against whom PDAs have been issued should be furnished with the original, and the duplicate original, and a certified true copy issued by the official having official custody of the PDA, at the time of the apprehension (Ilagan v Enrile) 2. SolGens manifestation: Brocka, et al should have filed a motion to quash the information instead of a petition for Habeas Corpus The Court agreed with the contention of the SolGen. However, it noted that such course of action would have been a futile move, considering the circumstances then prevailing: 1. Spurious and inoperational PDA 2. Sham and hasty Preliminary Investigation Clear signals that the prosecutors intended to keep Brocka, et al in detention until the second offense could be facilitated and justified without need of issuing a warrant of arrest anew "Infinitely more important than conventional adherence to general rules of criminal procedure is respect for the citizen's right to be free not only from arbitrary arrest and punishment but also from unwarranted and vexatious prosecution. If there is manifest bad faith that accompanies the filing of criminal charges (as in this case where petitioners were barred from enjoying provisional release until such time that charges were filed) and where a sham preliminary investigation was hastily conducted THEN charges that are filed as a result should lawfully be enjoined. The petition is hereby GRANTED. The trial court is PERMANENTLY ENJOINED from proceeding in any manner with the cases subject of the petition. No costs. [G.R. No. 140228. November 19, 2004.] Fancisco Medina, et al. vs. Greenfield Development DOCTRINE: PRELIMINARY INJUNCTION; WHEN PROPER. Section 3, Rule 58 of the Rules of Court provides for the grounds justifying the issuance of a preliminary injunction, to wit: SEC. 3. Grounds for issuance of preliminary injunction. A preliminary injunction may be granted when it is

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established: (a) That the applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, or in requiring the performance of an act or acts, either for a limited period or perpetually; (b) That the commission, continuance or non-performance of the act or acts complained of during the litigation would probably work injustice to the applicant; or (c) That a party, court, agency or a person is doing, threatening or is attempting to do, or is procuring or suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual. The purpose of a preliminary injunction is to prevent threatened or continuous irremediable injury to some of the parties before their claims can be thoroughly studied and adjudicated. Its sole aim is to preserve the status quo until the merits of the case can be heard fully. Thus, to be entitled to an injunctive writ, the petitioner has the burden to establish the following requisites: (1) a right in esse or a clear and unmistakable right to be protected; (2) a violation of that right; (3) that there is an urgent and permanent act and urgent necessity for the writ to prevent serious damage. Hence, petitioners' entitlement to the injunctive writ hinges on their prima facie legal right to the properties subject of the present dispute. Where the complainant's right or title is doubtful or disputed, injunction is not proper. The possibility of irreparable damage without proof of actual existing right is not a ground for an injunction. FACTS: Pedro, his brother and his niece executed a notarized Contract to Sell in favor of respondent Greenfield Development Corporation over a parcel of land located in Muntinlupa City. A notarized Deed of Sale covering said property was subsequently entered into in favor of respondent, and this time signed by Pedro, et al., all surnamed Medina, and Nazaria Cruz, as vendors. By virtue of these sales, respondent was able to register in its name the title to the two parcels of land. Petitioners, grandchildren of Pedro Medina from two marriages instituted an action for annulment of titles and deeds, reconveyance, damages with preliminary injunction and restraining order, against respondent and the Register of Deeds. Petitioners alleged that they were co-owners of the lands in issue and the deeds of sale on the properties were simulated and fictitious; that they remained in possession of the property through their caretaker who resides thereon. Petitioners caused an adverse claim to be annotated on the titles. After discovering the annotation, respondent constructed a fence on the property and posted security personnel, barring their ingress and egress. Thus, petitioners sought, among others, the issuance of a temporary restraining order and a writ of preliminary injunction enjoining respondent and its agents and representatives from preventing petitioners to exercise their rights over the properties. Respondent denied the allegations, stating that petitioners have no valid claim on the properties and insisted on the fact that the properties were already in the name of respondent by virtue of public documents executed by petitioners' predecessors. The trial court granted the prayer for injunctive relief but the same was nullified by the Court of Appeals. ISSUE: Whether the issuance of the writ of preliminary injunction was proper. (NO) HELD: The Court ruled in the negative. Petitioners' entitlement to the injunctive writ hinges on their prima facie legal right to the subject properties. Petitioners' clear and unmistakable right, however, was yet to be established. Where the complainant's right is doubtful or disputed, injunction is not proper. The possibility of irreparable damage without proof of actual existing right is not a ground for injunction. Equally pertinent is the rule that courts should avoid issuing a writ of preliminary injunction, which in effect, would dispose of the main case without trial. The ground relied upon by the trial court in issuing the writ of preliminary injunction in this case is its doubt over the acquisition of the properties by respondent. Such basis would be virtually recognizing petitioners' claim that the deeds of conveyances and the titles are a nullity without further proof, to the detriment of the doctrine of presumption of validity in favor of these documents. There would, in effect, be a prejudgment of the main case and a reversal of the rule on the burden of proof since it would assume the proposition which the petitioners are inceptively duty bound to prove. NATIONAL INVESTMENT AND DEVELOPMENT CORPORATION, EUSEBIO VILLATUYA MARIO Y. CONSING and ROBERTO S. BENEDICTO, petitioners, vs. HON. BENJAMIN AQUINO, in his official capacity as Presiding Judge of Branch VIII of the Court of First Instance of Rizal, BATJAK INC., GRACIANO A. GARCIA and MARCELINO CALINAWAN JR., respondents. G.R. No. L-34192 June 30, 1988 FACTS: Batjak, (Basic Agricultural Traders Jointly Administered Kasamahan) is a Filipino-American corporation, primarily engaged in the manufacture of coconut oil and copra cake for export. Its financial condition deteriorated to the point of bankruptcy. As of that year, Batjak's indebtedness to some private banks and to the Philippine National Bank (PNB) amounted to P11,915,000.00. As security for the payment of its obligations and advances against shipments, Batjak mortgaged its three (3) coco-processing oil mills in Sasa, Davao City, Jimenez, Misamis Occidental and Tanauan, Leyte to Manila Banking Corporation (Manila Bank), Republic Bank (RB), and Philippine Commercial and Industrial Bank (PCIB), respectively. In need for additional operating capital to place the three (3) cocoprocessing mills at their optimum capacity and maximum efficiency and to settle, pay or otherwise liquidate pending financial obligations with the different private banks, Batjak applied to PNB for additional financial assistance. A Financial Agreement was submitted by PNB to Batjak for acceptance, which the latter duly accepted. Under said Agreement, NIDC (whollyowned subsidiary of PNB) would, as it actually did, invest in Batjak in the form of preferred shares of stock convertible within five (5) years at par into common stock, to liquidate Batjak's obligations to Republic Bank (RB), Manufacturers Bank and Trust Company (MBTC) and Philippine Commercial & Industrial Bank (PCIB), and the balance of the investment was to be applied to Batjak's past due account of P 5 million with the PNB. A Voting Trust Agreement was also executed in favor of NIDC by the stockholders representing 60% of the outstanding paid-up and subscribed shares of Batjak. This agreement was for a period of five (5) years and, upon its expiration, was to be subject to negotiation between the parties. However, forced by the insolvency of Batjak, PNB instituted extrajudicial foreclosure proceedings against the oil mills of Batjak located in Tanauan, Leyte and Jimenez, Misamis Occidental. The properties were sold to PNB as the highest bidder. One year thereafter, final Certificates of Sale were issued by the provincial sheriffs of Leyte and Misamis Occidental for the two (2) oil mills in Tanauan and Jimenez in favor of PNB, after Batjak failed to exercise its right to redeem the foreclosed properties within the allowable one year period of redemption. Subsequently, PNB transferred the ownership of the two (2) oil mills to NIDC. Three (3) years thereafter, Batjak wrote a letter to NIDC inquiring if the latter was still interested in negotiating the renewal of the Voting Trust Agreement. Batjak sent another letter to NIDC, this time asking for a complete accounting of the assets, properties, management and operation of Batjak, preparatory to their turn-over and transfer to the stockholders of Batjak.

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NIDC replied, confirming the fact that it had no intention whatsoever to comply with the demands of Batjak. Batjak filed a special civil action for mandamus with preliminary injunction against herein petitioners. It also filed on a petition for receivership as alternative to writ of preliminary prohibitory and mandatory injunction. Respondent judge issued the now assailed order denying petitioners' motion to dismiss and appointing a set of three (3) receivers. ISSUE: WON receivership was proper in the case at bar? NO HELD: A receiver of real or personal property, which is the subject of the action, may be appointed by the court when it appears from the pleadings that the party applying for the appointment of receiver has an interest in said property. The right, interest, or claim in property, to entitle one to a receiver over it, must be present and existing. As borne out by the records of the case, PNB acquired ownership of two (2) of the three (3) oil mills by virtue of mortgage foreclosure sales. NIDC acquired ownership of the third oil mill also under a mortgage foreclosure sale. Certificates of title were issued to PNB and NIDC after the lapse of the one (1) year redemption period. Subsequently, PNB transferred the ownership of the two (2) oil mills to NIDC. There can be no doubt, therefore, that NIDC not only has possession of, but also title to the three (3) oil mills formerly owned by Batjak. The interest of Batjak over the three (3) oil mills ceased upon the issuance of the certificates of title to PNB and NIDC confirming their ownership over the said properties. More so, where Batjak does not impugn the validity of the foreclosure proceedings. Neither Batjak nor its stockholders have instituted any legal proceedings to annul the mortgage foreclosure aforementioned. The prevention of imminent danger to property is the guiding principle that governs courts in the matter of appointing receivers. Under Sec. 1 (b), Rule 59 of the Rules of Court, it is necessary in granting the relief of receivership that the property or fired be in danger of loss, removal or material injury. In the case at bar, Batjak in its petition for receivership, or in its amended petition therefor, failed to present any evidence, to establish the requisite condition that the property is in danger of being lost, removed or materially injured unless a receiver is appointed to guard and preserve it. Batjak premises its right to the possession of the three (3) off mills on the Voting Trust Agreement, claiming that under said agreement, NIDC was constituted as trustee of the assets, management and operations of Batjak, that due to the expiration of the Voting Trust Agreement, on 26 October 1970, NIDC should tum over the assets of the three (3) oil mills to Batjak. Nowhere in the said provisions or in any other part of the Voting Trust Agreement is mention made of any transfer or assignment to NIDC of Batjak's assets, operations, and management. NIDC was constituted as trustee only of the voting rights of 60% of the paid-up and outstanding shares of stock in Batjak. G.R. No. 111357 June 17, 1997 TRADERS ROYAL BANK, petitioner, vs. INTERMEDIATE APPELLATE COURT, and HEIRS OF THE LATE JOSE C. TAYENGCO, respondents. FACTS: In an earlier case, the SC ruled that the Spouses Tayengco are the lawful owners of properties under receivership and in another case the SC affirmed the validity of the appointment of Traders Royal Bank (TRB) as receiver pendent lite. Receivership proceedings were duly terminated. TRB rendered its final accounting of funds under receivership wherein it retained P219,016.24 as its receivers fee. RTC approved the final accounting including the deduction of fee. The Spouses Tayengco assailed the RTC order before the CA. The CA ruled that it was improper for TRB to deduct its fee from the funds under receivership. Hence this petition. ISSUE: Who should shoulder the payment of the receivers fee? HELD: Section 8, Rule 59 of the Rules of Court, however, explicitly provides for the manner in which the receivers fee shall be paid for its services, to wit:
Sec. 8. Termination of receivership; compensation of receiver. Whenever the court, of its own motion or on that of either party, shall determine that the necessity for a receiver no longer exists, it shall, after due notice to all interested parties and hearing, settle the accounts of the receiver, direct the delivery of the funds and other property in his hands to the persons adjudged entitled to receive them, and order the discharge of the receiver from further duty as such. The court shall allow the receiver such reasonable compensation as the circumstances of the case warrant, to be taxed as costs against the defeated party, or apportioned, as justice requires.

It is, therefore, clear that when the services of a receiver who has been properly appointed terminates, his compensation is to be charged against the defeated party, or the prevailing litigant may be made to share the expense, as justice requires. Consequently, the trial court's order approving TRB's compensation to be charged solely against the funds under its receivership is without legal justification; hence, it was correctly reversed by the Court of Appeals. CA decision is AFFIRMED. YANG v. VALDEZ FACTS: Respondent spouses Morante brought an action in the RTC against petitioner Yang and Yaphockun to recover possession of two cargo trucks. o It was alleged that they had actual use and possession of the trucks. o However, the trucks were registered in the name of petitioner Thomas Yang, who was the Treasurer of the Morante spouses business of buying and selling corn. o The spouses further alleged that they were deprived of the possession of the said vehicles and despite repeated demands, petitioner Yang refused to release the trucks to the respondents. To obtain immediate possession of the trucks, the respondents applied for a writ of replevin and put up a replevin bond of P560,000.00. o Judge issued an order of seizure to take immediate possession of the vehicles Yaphockun filed a motion seeking repossession of the trucks and posted a counter bond of the same amount. Respondent spouses amended their complaint and excluded Yaphockun as party-defendant. o Then, the respondent submitted an opposition on the counter bond, contending that since Yaphockun was merely a nominal defendant =, he had no standing to demand the return of the cargo trucks. Respondent judge disapproved the counter bond. Petitioner Yang also put up a counter bond which was rejected for having filed out of time Petitioner went to the SC o It was contended that the replevin bond was merely an undertaking of one of the respondents and their counsel and that no tangible security (cash, property or surety) was placed at the custody of the court o Also, the replevin bond was defective since it had been filed by only one of the respondents and that the bondsmen had failed by its terms to undertake to return the cargo trucks to petitioner if the latter will be adjudged lawful owner of those vehicles. ISSUE: WON the replevin bond of the respondents is defective. HELD:

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A bond that is required to be given by law is commonly understood to refer to an obligation or undertaking in writing that is sufficiently secured. 2 It is not indispensably necessary, however, that the obligation of the bond be secured or supported by cash or personal property or real property or the obligation of a surety other than the person giving the bond. Most generally understood, a "bond" is an obligation reduced to writing binding the obligor to pay a sum of money to the obligee under specified conditions. The sufficiency of a bond is a matter that is addressed to the sound discretion of the court which must approve the bond. In the case at bar, the replevin bond given by the respondent Morante spouses was properly secured by the sureties themselves who declared their solvency and capacity to answer for the undertaking assumed, through an Affidavit of Justification. Petitioner Yang never put in issue the financial capability of these two (2) sureties. It follows that the approval of the replevin bond by respondent judge, before whom it was presented and who was in a better position than this Court to appreciate the financial standing of the sureties, can scarely be questioned as a grave abuse of discretion. The other objections to the replevin bond are equally lacking in merit. The fact that the other respondent, Ricardo Morante, did not act as surety on the same bond as his wife did, does not affect the validity or the sufficiency of that bond. It would appear to the benefit of petitioner that Atty. Bayani L. Calonzo signed up as the other or second surety or bondsman on that bond, since petitioner thereby acquired a right of recourse not only against the respondent spouses but also against a third person, not a party to the replevin suit. Further, the failure of the replevin bond to state expressly that it was "conditioned for the return of the property to the defendant, if the return thereof be adjudged," 5 is not fatal to the validity of the replevin bond. The replevin bond put up by Milagros Morante and Bayani L. Calonzo stated that it was given "under the condition that [they] will pay all the costs, which may be adjudged to the said defendants and all damages which said defendants may sustain by reason of the order of replevin, if the court shall finally adjudge that the plaintiffs were not entitled thereto." 6 We believe that the condition of the bond given in this case substantially complied with the requirement of Section 2, Rule 60. Moreover, the provisions of Rule 60, Section 2 of the Revised Rules of Court under which the replevin bond was given may be regarded as having become part of the bond as having been imported thereunto. All the particular conditions prescribed in Section 2, Rule 60, although not written in the bond in printer's ink, will be read into the bond in determining the scope and content of the liability of the sureties or bondsmen under that bond. The provisional remedy of replevin is in the nature of a possessory action and the applicant who seeks immediate possession of the property involved need not be holder of the legal title to the property. It suffices, if at the time he applies for a writ of replevin, he is, in the words of Section 2, Rule 60, "entitled to the possession thereof." Petitioner would finally challenge the order of respondent judge dated 28 February 1985 rejecting his counter-replevin bond for having been filed out of time. Petitioner received summons on the amended complaint on 25 January 1985 and on the same day, filed his counterbond. It is his contention that his redelivery bond was not filed out of time, since he was served with summons only on 25 January 1985. A defendant in a replevin suit may demand return of possession of the property replevied by filing a redelivery bond within the periods specified in Sections 5 and 6 of Rule 60 . Under Section 5, petitioner may "at any time before the delivery of the property to the plaintiff" require the return of the property; in Section 6, he may do so, "within five (5) days after the taking of the property by the officer." Both these periods are mandatory in character. 9 Thus, a lower court which approves a counterbond filed beyond the statutory periods, acts in excess of its jurisdiction. In the instant case, the cargo trucks were taken into custody by the Sheriff on 7 January 1985. Petitioner Yang's counter-replevin bond was filed on 25 January 1985. We agree with the conclusion of respondent judge that petitioner's right to file a counterbond had already prescribed. PETITION IS DENIED ALIBSAR ADOMA, complainant, vs. ROMEO GATCHECO, Sheriff III, and EUGENIO TAGUBA, Process Server, of Branches 1 and 2, In its Memorandum dated June 4, 2004, the OCA affirmed the investigating Judges report . It recommended that respondent sheriff be fined in the amount of P5,000.00 for conduct unbecoming a court employee and that respondent Taguba be reprimanded for Yang v. Valdez respectively, of the Municipal Trial Court in Cities of Santiago City, respondents. DOCTRINE: The Rules require the sheriff to estimate his expenses in the execution of the decision. The prevailing party will then deposit the said amount to the Clerk of Court who will disburse the amount to the sheriff, subject to liquidation. Any unspent amount will have to be returned to the prevailing party. SEC. 6. Disposition of property by sheriff.If within five (5) days after the taking of the property by the sheriff, the adverse party does not object to the sufficiency of the bond, or of the surety or sureties thereon; or if the adverse party so objects and the court affirms its approval of the applicants bond or approves a new bond, or if the adverse party requires the return of the property but his bond is objected to and found insufficient and he does not forthwith file an approved bond, the property shall be delivered to the applicant. If for any reason the property is not delivered to the applicant, the sheriff must return it to the adverse party.

FACTS: The instant administrative complaint filed against respondents for violation of Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act) and conduct unbecoming a court employee , arose from the execution of a writ of replevin in Adoma v. Spouses Edmundo Andres and Luzviminda Andres , for recovery of possession of motor vehicle with prayer for the issuance of a writ of replevin before Branch 1 of the Municipal Trial Court in Cities (MTCC) of Santiago City, presided by Judge Ruben Plata. Complainant Alibsar Adoma claimed that on August 16, 2003 a writ of replevin for the recovery of an L-300 van was issued in his favor. On the same day, respondent sheriff Romeo Gatcheco implemented the writ. He was accompanied by respondent Eugenio Taguba, a process server of Branch 2 of MTCC, Santiago City, who volunteered to assist respondent sheriff. After the two respondents seized the vehicle, they demanded payment of P8,000.00, allegedly promised by complainant but the latter was able to give only P1,000.00 and another P1,000.00 the following day. The writ of replevin stated that the vehicle will be delivered to complainant after 5 days from the implementation thereof. With the vehicle still undelivered on the 7th day, complainant threatened to file an administrative case against respondent sheriff. Finally, on August 29, 2003, the latter was forced to release the vehicle to complainant. Respondents, however, continued to demand P6,000.00, hence complainant filed the instant administrative case. Judge Madrid found the testimony of complainant which was corroborated by two witnesses, to be more credible. She refused to believe the claim of respondent sheriff that he did not release the vehicle to complainant after 5 days from the implementation of the writ on August 16, 2003, because he was awaiting instructions from Judge Plata. However, she found that respondent sheriff did not actually demand money for the implementation of the writ because it was complainant who promised to give money in exchange for the implementation of the writ of replevin. She concluded that respondent sheriff is guilty of misconduct considering that he accepted partial payment and insisted on its full payment.

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FACTS: Respondent spouses Morante brought an action in the RTC against petitioner Yang and Yaphockun to recover possession of two cargo trucks. o It was alleged that they had actual use and possession of the trucks. o However, the trucks were registered in the name of petitioner Thomas Yang, who was the Treasurer of the Morante spouses business of buying and selling corn. o The spouses further alleged that they were deprived of the possession of the said vehicles and despite repeated demands, petitioner Yang refused to release the trucks to the respondents. To obtain immediate possession of the trucks, the respondents applied for a writ of replevin and put up a replevin bond of P560,000.00. o Judge issued an order of seizure to take immediate possession of the vehicles Yaphockun filed a motion seeking repossession of the trucks and posted a counter bond of the same amount. Respondent spouses amended their complaint and excluded Yaphockun as party-defendant. o Then, the respondent submitted an opposition on the counter bond, contending that since Yaphockun was merely a nominal defendant =, he had no standing to demand the return of the cargo trucks. Respondent judge disapproved the counter bond. Petitioner Yang also put up a counter bond which was rejected for having filed out of time Petitioner went to the SC o It was contended that the replevin bond was merely an undertaking of one of the respondents and their counsel and that no tangible security (cash, property or surety) was placed at the custody of the court o Also, the replevin bond was defective since it had been filed by only one of the respondents and that the bondsmen had failed by its terms to undertake to return the cargo trucks to petitioner if the latter will be adjudged lawful owner of those vehicles. which may be adjudged to the said defendants and all damages which said defendants may sustain by reason of the order of replevin, if the court shall finally adjudge that the plaintiffs were not entitled thereto." 6 We believe that the condition of the bond given in this case substantially complied with the requirement of Section 2, Rule 60. Moreover, the provisions of Rule 60, Section 2 of the Revised Rules of Court under which the replevin bond was given may be regarded as having become part of the bond as having been imported thereunto. All the particular conditions prescribed in Section 2, Rule 60, although not written in the bond in printer's ink, will be read into the bond in determining the scope and content of the liability of the sureties or bondsmen under that bond. The provisional remedy of replevin is in the nature of a possessory action and the applicant who seeks immediate possession of the property involved need not be holder of the legal title to the property. It suffices, if at the time he applies for a writ of replevin, he is, in the words of Section 2, Rule 60, "entitled to the possession thereof." Petitioner would finally challenge the order of respondent judge dated 28 February 1985 rejecting his counter-replevin bond for having been filed out of time. Petitioner received summons on the amended complaint on 25 January 1985 and on the same day, filed his counterbond. It is his contention that his redelivery bond was not filed out of time, since he was served with summons only on 25 January 1985. A defendant in a replevin suit may demand return of possession of the property replevied by filing a redelivery bond within the periods specified in Sections 5 and 6 of Rule 60 . Under Section 5, petitioner may "at any time before the delivery of the property to the plaintiff" require the return of the property; in Section 6, he may do so, "within five (5) days after the taking of the property by the officer." Both these periods are mandatory in character. 9 Thus, a lower court which approves a counterbond filed beyond the statutory periods, acts in excess of its jurisdiction. In the instant case, the cargo trucks were taken into custody by the Sheriff on 7 January 1985. Petitioner Yang's counter-replevin bond was filed on 25 January 1985. We agree with the conclusion of respondent judge that petitioner's right to file a counterbond had already prescribed. PETITION IS DENIED Trying to abet the misconduct of a fellow employee of another court. On July 5, 2004, the Court required the parties to manifest whether they are willing to submit the case for resolution based on the pleadings filed. However, to date, the parties have yet to file their manifestation. Hence, we are constrained to dispense the filing of such manifestation. ISSUE: Whether or not the respondents are guilty of the administrative charges against them? RULING: The Court agrees with the findings of the investigating Judge and the OCA that respondents received the amount of P2,000.00 and that they demanded the payment of an additional P6,000.00 from complainant. The testimony of complainant before the investigating Judge is worthy of belief because the same was not only candid and direct but also corroborated by two witnesses who attested to the veracity of complainants accusations. The writ of replevin has been implemented and the vehicle is now in complainants possession. Under Section 9, Rule 141 of the Rules of Court, the procedure for the execution of writs and other processes are: o first, the sheriff must make an estimate of the expenses to be incurred by him; o second, he must obtain court approval for such estimated expenses; o third, the approved estimated expenses shall be deposited by the interested party with the Clerk of Court and ex-oficio sheriff; o fourth, the Clerk of Court shall disburse the amount to the executing sheriff; and o fifth, the executing sheriff shall liquidate his expenses within the same period for rendering a return on the writ. Any amount received by the sheriff in excess of the lawful fees allowed by the Rules of Court is an unlawful exaction which renders him liable for grave misconduct and gross dishonesty.

ISSUE: WON the replevin bond of the respondents is defective. HELD: A bond that is required to be given by law is commonly understood to refer to an obligation or undertaking in writing that is sufficiently secured. 2 It is not indispensably necessary, however, that the obligation of the bond be secured or supported by cash or personal property or real property or the obligation of a surety other than the person giving the bond. Most generally understood, a "bond" is an obligation reduced to writing binding the obligor to pay a sum of money to the obligee under specified conditions. The sufficiency of a bond is a matter that is addressed to the sound discretion of the court which must approve the bond. In the case at bar, the replevin bond given by the respondent Morante spouses was properly secured by the sureties themselves who declared their solvency and capacity to answer for the undertaking assumed, through an Affidavit of Justification. Petitioner Yang never put in issue the financial capability of these two (2) sureties. It follows that the approval of the replevin bond by respondent judge, before whom it was presented and who was in a better position than this Court to appreciate the financial standing of the sureties, can scarely be questioned as a grave abuse of discretion. The other objections to the replevin bond are equally lacking in merit. The fact that the other respondent, Ricardo Morante, did not act as surety on the same bond as his wife did, does not affect the validity or the sufficiency of that bond. It would appear to the benefit of petitioner that Atty. Bayani L. Calonzo signed up as the other or second surety or bondsman on that bond, since petitioner thereby acquired a right of recourse not only against the respondent spouses but also against a third person, not a party to the replevin suit. Further, the failure of the replevin bond to state expressly that it was "conditioned for the return of the property to the defendant, if the return thereof be adjudged," 5 is not fatal to the validity of the replevin bond. The replevin bond put up by Milagros Morante and Bayani L. Calonzo stated that it was given "under the condition that [they] will pay all the costs,

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In the instant case, respondent sheriff totally disregarded the aforecited procedure. He failed to make and submit estimate of the sheriffs expenses. The amounts received and demanded by him are therefore unauthorized fees. His acts of accepting and soliciting said monetary considerations make him liable not only for conduct unbecoming a court employee but also for grave misconduct and dishonesty. As correctly found by the OCA, respondent sheriff deliberately failed to place complainant in possession of the vehicle after five days from the implementation of the writ because the latter failed to give the whole amount he promised. However, it took respondent sheriff 13 days before he released the vehicle to complainant, a clear violation of Section 6, Rule 60 of the 1997 Revised Rules of Civil Procedure. Furthermore, respondents act of demanding money and receiving P1,500.00 from the complainant for the lunch and merienda of the policemen who will accompany him in executing the decision of the Court is a clear violation of section 9, Rule 141. In this case, no estimate of sheriffs expenses was submitted to the court by respondent. In fact, the money which respondent deputy sheriff had demanded and received from complainant was not among those prescribed and authorized by the Rules of Court. This Court has ruled that any amount received by the sheriff in excess of the lawful fees allowed by the Rules of Court is an unlawful exaction and renders him liable for grave misconduct and gross dishonesty. Clearly, in this case, respondent not only utterly failed to live up to the high ethical standards required of a sheriff, but also, he totally ignored Section 9, Rule 141 of the Rules of Court. Respondent failed to demonstrate that he followed the procedure laid down by Rule 141. WHEREFORE, in view of all the foregoing, respondent Romeo Gatcheco, Sheriff III, Municipal Trial Court in Cities, Branch 1, Santiago City is found GUILTY of Grave Misconduct, Dishonesty and Conduct Grossly Prejudicial to the Best Interest of the Service and is SUSPENDED for one (1) year, without pay. Respondent Eugenio Taguba, Process Server, Municipal Trial Court in Cities, Branch 2, Santiago City is found GUILTY of Conduct Prejudicial to the Best Interest of the Service and is SUSPENDED for six (6) months without pay. Respondents are warned that a repetition of the same or any other act of infraction in the future shall be dealt with most severely. [G.R. No. 111107. January 10, 1997.] LEONARDO A. PAAT vs. COURT OF APPEALS, SPOUSES BIENVENIDO and VICTORIA DE GUZMAN FACTS The truck of private respondent Victoria de Guzman was seized by the DENR personnel while on its way to Bulacan because the driver could not produce the required documents for the forest product found concealed in the truck. Petitioner Jovito Layugan, CENRO ordered the confiscation of the truck and required the owner to explain. Private respondents failed to submit required explanation. The DENR Regional Executive Director Rogelio Baggayan sustained Layugans action for confiscation and ordered the forfeiture of the truck. Private respondents brought the case to the DENR Secretary. Pending appeal, private respondents filed a replevin case before the RTC against petitioner Layugan and Baggayan. RTC granted the same. Petitioners moved to dismiss the case contending, inter alia, that private respondents had no cause of action for their failure to exhaust administrative remedies. The trial court denied their motion. Hence, this petition for review on certiorari. Petitioners aver that the trial court could not legally entertain the suit for replevin because the truck was under administrative seizure proceedings. ISSUE: Whether or not the instant case falls within the exception of the doctrine. HELD: The Court held in the negative. The Court has consistently held that before a party is allowed to seek the intervention of the court, it is a precondition that he should have availed of all the means of administrative processed afforded him. Hence, if a remedy within the administrative machinery can still be resorted to by giving the administrative officer concerned every opportunity to decide on a matter that comes within his jurisdiction then such remedy should be exhausted first before courts judicial power can be sought. The premature invocation of court intervention is fatal to ones cause of action. The doctrine is a relative one and its flexibility is called upon by the peculiarity and uniqueness of the factual and circumstantial settings of a case. Hence, it is disregarded (1) when there is violation of due process, (2) when the issue involved is purely a legal question, (3) when the administrative action is patently illegal amounting to lack or excess of jurisdiction, (4) when there is estoppels on the part of the administrative agency concerned, (5) when there is irreparable injury, (6) when the respondent is a department secretary whose acts as an alter ego of the President bears the implied and assumed approval of the latter, (7) when to require exhaustion of administrative remedies would be unreasonable, (8) when it would amount to nullification of a claim, (9) when the subject matter is a private land in land case proceedings, (10) when the rule does not provide a plain, speedy and adequate remedy, and (11) when there are circumstances indicating the urgency of judicial intervention. Moreover, the suit for replevin is never intended as a procedural tool to question the orders of confiscation and forfeiture issued by the DENR in pursuance to the authority given under P.D. 705, as amended. Section 8 of the said law is explicit that actions taken by the Director of the Bureau of Forest Development concerning the enforcement of the provisions of the said law are subject to review by the Secretary of DENR and that courts may not review the decisions of the Secretary except through a special civil action for certiorari or prohibition. It reads: SEC. 8. REVIEW . All actions and decisions of the Director are subject to review, motu propio or upon appeal of any person aggrieved thereby, by the Department Head whose decision shall be final and executory after the lapse of thirty (30) days from the receipt of the aggrieved party of said decision, unless appealed to the President in accordance with Executive Order No. 19, Series of 1966. The Decision of the Department Head may not be reviewed by the courts except through a special civil action for certiorari or prohibition. G.R. No. 61508. March 17, 1999.] CITIBANK, N.A. (Formerly First National City Bank), petitioner, vs. THE HONORABLE COURT OF APPEALS AND DOUGLAS F. ANAMA, respondents. DOCTRINE: REPLEVIN; AFFIDAVIT COMPLIANCE THEREOF. OF MERIT; SUBSTANTIAL

There is substantial compliance with the rule requiring that an affidavit of merit to support the complaint for replevin if the complaint itself contains a statement of every fact required to be stated in the affidavit of merit and the complaint is verified like an affidavit. And similarly, in the case of an attachment which likewise requires an affidavit of merit, the Court held that the absence of an affidavit of merit is not fatal where the petition itself, which is under oath, recites the circumstances or facts constitutive of the grounds for the petition. The facts that must be set forth in the affidavit of merit are (1) that plaintiff owns the property particularly describing the same, or that he is entitled to its possession; (2) wrongful detention by defendant of said property; (3) that the property is not taken by virtue of a tax assessment or fine pursuant to law or seized under execution or attachment or, if it is so seized, that it is exempt from such seizure; and (4) the actual value of the property. Lastly, pertinent rules require that the affidavit of merit should state the actual value of the property subject of a replevin suit and not just its probable value. Actual value (or actual market value) means "the price which an article would command in the ordinary course of business, that is to say, when offered for sale by one willing to sell, but not under compulsion to sell, and purchased by another who is willing to buy, but under no obligation to purchase it." It bears stressing that the actual value of the properties subject of a replevin is, required to be stated in the affidavit because such actual value will be the basis of the replevin bond required to be posted by the plaintiff. Facts:

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In consideration of a loan obtained from Citibank, N.A., Anama executed a promissory note to pay the same and constituted a Chattel Mortgage in favor of the Bank, on his various machineries and equipment. Later, for failure of Anama to pay the promissory note despite demand, the Bank filed a complaint for the collection of the unpaid balance, for the delivery and possession of the chattels preparatory to the foreclosure thereof. An Order of Replevin over the properties covered by the Chattel Mortgage was issued but the same was not immediately implemented in view of an amicable settlement then being worked out. But when the same failed, the lower court proceeded to try the case on the merits. The Bank filed a Motion for the Issuance of an Alias Writ of Seizure, and the same was granted despite opposition by Anama. Thereafter, the Bank took possession of the mortgaged chattels and they were advertised for public auction. Anama then went to the Court of Appeals. Finding that the trial court acted with grave abuse of discretion amounting to excess or lack of jurisdiction in issuing the assailed resolutions, the Court of Appeals granted the petition, holding that the provisions of the Rules of Court on Replevin and Receivership have not been complied with, in that (1) there was no Affidavit of Merit accompanying the Complaint for Replevin; (2) the bond posted by Citibank was insufficient; and (3) there was non-compliance with the requirement of a receiver's bond and oath of office. The questioned resolutions issued by the respondent judge together with the writs and processes emanating or deriving therefrom, are hereby declared null and void ab initio. Hence, the respondent ex-officio sheriff of Quezon City and the respondent First National City Bank are ordered to return all the machineries and equipment with their accessories seized, dismantled and hauled, to their original and respective places and positions in the shop flooring of the petitioner's premises where these articles were, before they were dismantled, seized and hauled at their own expense. The said respondents are further ordered to cause the repair of the concrete foundations destroyed by them including the repair of the electrical wiring and facilities affected during the seizure, dismantling and hauling. The writ of preliminary injunction heretofore in effect is hereby made permanent. Costs against the private respondents. Hence, this petition for certiorari. ISSUE: 1. WON CA erred in practically and in effect rendering judgment on the merits against the herein petitioner by ordering the return of the machineries and equipment and its accessories to their original and respective places and positions. 2. WON the CA erred in ruling that the provisions of the Rules of Court on Replevin have not been complied with (NO) HELD: 1. NO. A judgment is on the merits when it determines the rights and liabilities of the parties on the basis of the disclosed facts, irrespective of formal, technical or dilatory objections, and it is not necessary that there should have been a trial. The assailed decision of the Court of Appeals did not make any adjudication on the rights and liabilities between Citibank and Douglas Anama. There was no finding yet of the fact of default. The decision only ruled on the propriety of the issuance of the writ of seizure by the trial court. As worded by the respondent court itself, "the main issues to be resolved are whether there was lack or excess of jurisdiction, or grave abuse of discretion, in the issuance of the orders in question, and there is no appeal nor any plain, speedy, and adequate remedy in the ordinary course of law." 2. NO Petitioner is correct insofar as it contends that substantial compliance with the affidavit requirement may be permissible. There is substantial compliance with the rule requiring that an affidavit of merit to support the complaint for replevin if the complaint itself contains a statement of every fact required to be stated in the affidavit of merit and the complaint is verified like an affidavit. But, as correctly taken note of by the Court of Appeals, petitioner's complaint does not allege all the facts that should be set forth in Petitioner also maintains that, assuming for the sake of argument that its replevin bond was grossly inadequate or insufficient, the recourse of the respondent should be to post a counterbond or a redelivery bond as provided under Section 5 of Rule 60. In the case under consideration, the private respondent did not opt to cause redelivery of the properties to him by filing a counter-bond precisely because he objected to the sufficiency of the bond posted by plaintiff. Therefore, he need not file a counter-bond or redelivery bond. When such objection was not given due course in the court below when, instead of requiring the plaintiff to post a new bond, the court approved the bond in the amount of P400,000.00, claimed by respondent to be insufficient, and ordered the seizure of the properties recourse to a petition for certiorari before the Court of Appeals assailing such order is proper under the circumstances. For erroneously issuing the alias writ of seizure without inquiring into the sufficiency of the replevin bond and for allowing petitioner to assume receivership without the requisite oath, the Court of Appeals aptly held that the trial court acted with grave abuse of discretion in dealing with the situation. Under the Revised Rules of Court, the property seized under a writ of replevin is not to be delivered immediately to the plaintiff. This is because a possessor has every right to be respected in its possession and may not be deprived of it without due process. As enunciated by this Court in the case of Filinvest Credit Corporation vs. Court of Appeals, "The reason why the law does not allow the creditor to possess himself of the mortgaged property with violence and against the will of the debtor is to be found in the fact that the creditor's right of possession is conditioned upon the fact of default, and the existence of this fact may naturally be the subject of controversy. The debtor, for instance, may claim in good faith, and rightly or wrongly, that the debt is paid, or that for some other reason the alleged default is nonexistent. His possession in this situation is as fully entitled to protection as that of any other person, and in the language of Article 446 of the Civil Code, he must be respected therein. To allow the an affidavit of merit. Although the complaint alleges that petitioner is entitled to the possession of subject properties by virtue of the chattel mortgage executed by the private respondent, upon the latter's default on its obligation, and the defendant's alleged "wrongful detention" of the same, the said complaint does not state that subject properties were not taken by virtue of a tax assessment or fine imposed pursuant to law or seized under execution or attachment or, if they were so seized, that they are exempt from such seizure. At any rate, the defense of lack of affidavit of merit was interposed only in the Reply to the Comment of the Bank on the Petition for Certiorari which Anama filed with the Court of Appeals. Procedurally therefore, such defense was no longer available for failure to plead the same in the Answer as required by the omnibus motion rule. Other matters The Bank also questioned the finding of the Court of Appeals that the bond posted was insufficient. What was posted was merely an amount which was double the probable value as declared by the Bank and, therefore, inadequate should there be a finding that the actual value is actually greater. The Rules of Court requires the plaintiff to "give a bond, executed to the defendant in double the value of the property as stated in the affidavit . . . ." Hence, the bond should be double the actual value of the properties involved. In this case, what was posted was merely an amount which was double the probable value as declared by the plaintiff and, therefore, inadequate should there be a finding that the actual value is actually far greater than P200,000.00. Since the valuation made by the petitioner has been disputed by the respondent, the lower court should have determined first the actual value of the properties. It was thus an error for the said court to approve the bond, which was based merely on the probable value of the properties. It should be noted that a replevin bond is intended to indemnify the defendant against any loss that he may suffer by reason of its being compelled to surrender the possession of the disputed property pending trial of the action. The same may also be answerable for damages if any when judgment is rendered in favor of the defendant or the party against whom a writ of replevin was issued and such judgment includes the return of the property to him. Thus, the requirement that the bond be double the actual value of the properties litigated upon. Such is the case because the bond will answer for the actual loss to the plaintiff, which corresponds to the value of the properties sought to be recovered and for damages, if any.

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creditor to seize the property against the will of the debtor would make the former to a certain extent both judge and executioner in his own cause a thing which is inadmissible in the absence of unequivocal agreement in the contract itself or express provision to the effect in the statute." WHEREFORE, for lack of merit, the petition is hereby DISMISSED. No pronouncement as to costs. SO ORDERED. MANUEL J. C. REYES, petitioner, vs. HON. LEONOR INES-LUCIANO, as Judge of the Juvenile & Domestic Relations Court, Quezon City, COURT OF APPEALS and CELIA ILUSTRE-REYES, respondents. SYLLABUS: HUSBAND AND WIFE; SUPPORT PENDENTE LITE; ADULTERY AS A DEFENSE IN ACTION FOR SUPPORT MUST BE ESTABLISHED BY COMPETENT EVIDENCE. Adultery of the wife is a defense in an action for support. However, the being sufficient that the court ascertain the kind and amount of evidence which it may deem sufficiently to enable it to justly resolve the application, one way or the other, in view of the merely provisional character of the resolution to be entered. More affidavits may satisfy the court to pass upon the application for support pendente lite. It is enough that the facts be established by affidavits or other documentary evidence appearing in the record. Facts: Manuel Reyes attacked his wife twice with the intent to kill. A complaint was filed on June 3, 1976: the first attempt on March was prevented by her father and the second attempt, wherein she was already living separately from her husband, was stopped only because of her drivers intervention. She filed for legal separation on that ground and prayed for support pendente lite for herself and her three children. The husband opposed the application for support on the ground that the wife committed adultery with her physician. The respondent Judge Ines-Luciano of the lower court granted the wife pendente lite. The husband filed a motion for reconsideration reiterating that his wife is not entitled to receive such support during the pendency of the case, and that even if she is entitled to it, the amount awarded was excessive. The judge reduced the amount from P5000 to P4000 monthly. Husband filed a petition for certiorari in the CA to annul the order granting alimony. CA dismissed the petition which made the husband appeal to the SC. Issue: WON adultery of the wife was a defense in an action for support. WON support can be administered during the pendency of an action. Held/Ratio: Yes provided that adultery is established by competent evidence. Mere allegations will not bar her right to receive support pendente lite. Support can be administered during the pendency of such cases. In determining the amount, it is not necessary to go into the merits of the case. It is enough that the facts be established by affidavits or other documentary evidence appearing in the record. The SC on July, 1978 ordered the alimony to beP1000/month from the period of June to February 1979, after the trial, it was reverted to P4000/month based on the accepted findings of the trial court that the husband could afford it because of his affluence and because it wasnt excessive. Subsequently, Adriana filed a Motion to Re-Open the case on the ground of newly discovered evidence. Adriana found out that Jose had been married twice before he married Adriana. The Marriage Contracts were presented. The RTC declared the marriage between Adriana and Jose null and void for being bigamous. Jose was ordered to give monthly support of P20,000 to his son. Jose filed a Motion for Reconsideration with respect to the award of support to his son arguing that they already had a compromise agreement approved by the RTC Makati court whereby they agreed to contribute to a common fund for the support of the child. The Motion was Denied. On appeal, the CA affirmed the RTC decision. Joses MR was denied. Hence this petition. ISSUES: 1. Whether or not the compromise agreement approved by RTC Makati is a bar to any further award of support in favor of the child? 2. Whether or not the trial court is correct in awarding 20,000 monthly support? HELD: 1. No, it is not a bar. There is no merit to the claim of Jose that the compromise agreement between him and Adriana, as approved by the Makati RTC and embodied in its decision dated February 28, 1994 in the case for voluntary dissolution of conjugal partnership of gains, is a bar to any further award of support in favor of their child John Paul. The provision for a common fund for the benefit of their child John Paul, as embodied in the compromise agreement between herein parties which had been approved by the Makati RTC, cannot be considered final and res judicata since any judgment for support is always subject to modification, depending upon the needs of the child and the capabilities of the parents to give support. Judgment for support does not become final . The right to support is of such nature that its allowance is essentially provisional; for during the entire period that a needy party is entitled to support, his or her alimony may be modified or altered, in accordance with his increased or decreased needs, and with the means of the giver. It cannot be regarded as subject to final determination. 2. No. The Pasay RTC should have been aware that in determining the amount of support to be awarded, such amount should be in proportion to the resources or means of the giver and the necessities of the recipient, pursuant to Articles 194, 201 and 202 of the Family Code, to wit: Art. 194. Support comprises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family. The education of the person entitled to be supported referred to in the preceding paragraph shall include his schooling or training for some profession, trade or vocation, even beyond the age of majority. Transportation shall include expenses in going to and from school, or to and from place of work. Art. 201. The amount of support, in the cases referred to in Articles 195 21 and 196,22 shall be in proportion to the resources or means of the giver and to the necessities of the recipient. Art. 202. Support in the cases referred to in the preceding article shall be reduced or increased proportionately, according to the reduction or increase

G.R. No. 131286

March 18, 2004

JOSE LAM, petitioner, vs. ADRIANA CHUA, respondent. FACTS: Adriana and Jose were married in 1984. They begot one son. In 1994, Adriana filed a petition for declaration of nullity of her marriage on the ground of psychological incapacity of Jose. In the said petition, there was no prayer for the support of their common child. During the hearing, no evidence was presented regarding the support of the child or the capacity of Jose to give support.

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of the necessities of the recipient and the resources or means of the person obliged to furnish the same. It is incumbent upon the trial court to base its award of support on the evidence presented before it. The evidence must prove the capacity or resources of both parents who are jointly obliged to support their children as provided for under Article 195 of the Family Code; and the monthly expenses incurred for the sustenance, dwelling, clothing, medical attendance, education and transportation of the child. In this case, the only evidence presented by respondent Adriana regarding her claim for support of the child is her testimony. Such testimony does not establish the amount needed by the child nor the amount that the parents are reasonably able to give. Case remanded to RTC Pasay City to conduct hearings for further reception of evidence for the proper determination of the proper amount of support to be awarded to the child.