1. G.R. No.

158271 April 8, 2008

CHINA BANKING CORPORATION, petitioner,
vs.
ASIAN CONSTRUCTION and !"!#OP$!NT CORPORATION, respondent.
! C I S I O N
AUSTRIA%$ARTIN!&, J.'
Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court filed by
petitioner China Banking Corporation (China Bank) seeking to annul the Resolution

dated !"tober
4, #$$# and the Resolution
#
dated %ay &, #$$' of the Court of (ppeals (C() in C()*.R. C+ ,o.
-#-5.
.he fa"ts of the "ase/
!n 0uly #4, 11&, China Bank granted respondent (sian Constru"tion and 2evelop3ent Corporation
((C2C) an !3nibus Credit 4ine in the a3ount of P1$,$$$,$$$.$$.
'
!n (pril #, 111, alleging that (C2C failed to "o3ply with its obligations under the !3nibus Credit
4ine, China Bank filed a Co3plaint
4
for re"overy of su3 of 3oney and da3ages with prayer for the
issuan"e of writ of preli3inary atta"h3ent before the Regional .rial Court (R.C) of %akati, Bran"h
'5, do"keted as Civil Case ,o. 11)-1&. 6n the Co3plaint, China Bank "lai3ed that (C2C, after
"olle"ting and re"eiving the pro"eeds or re"eivables fro3 the various "onstru"tion "ontra"ts and
purportedly holding the3 in trust for China Bank under several 2eeds of (ssign3ent,
3isappropriated, "onverted, and used the funds for its own purpose and benefit, instead of re3itting
or delivering the3 to China Bank.
5
!n (pril ##, 111, the R.C issued an !rder
&
granting China Bank7s prayer for writ of preli3inary
atta"h3ent. Conse8uently, as shown in the 9heriff7s Report
-
dated 0une 4, 111, the writ of
preli3inary atta"h3ent was i3ple3ented levying personal properties of (C2C, i.e., vans, du3p
tru"ks, "e3ent 3i:ers, "argo tru"ks, utility vehi"les, 3a"hinery, e8uip3ent and offi"e 3a"hines and
fi:tures.
!n %ar"h #-, #$$$, upon 3otion of China Bank, the R.C issued a 9u33ary 0udg3ent
5
in favor of
China Bank. (C2C filed its ,oti"e of (ppeal
1
dated (pril #4, #$$$.
!n 0une 5, #$$$, China Bank filed a %otion to .ake Custody of (tta"hed Properties with %otion for
*rant of (uthority to 9ell to the Bran"h 9heriff
$
with the R.C, praying that it be allowed to take
"ustody of (C2C7s properties for the purpose of selling the3 in an au"tion.

!n 0une #$, #$$$,

(C2C filed its !pposition
#
to the 0une 5, #$$$ %otion arguing that there "an be no sale of the
latter7s atta"hed properties in the absen"e of a final and e:e"utory ;udg3ent against (C2C.
!n (ugust #5, #$$$, China Bank partially appealed the 9u33ary 0udg3ent for not awarding
interest on one of its pro3issory notes.
'
Re"ords of the "ase were elevated to the C(.
4
!n (pril 5, #$$#, China Bank filed a %otion for 4eave for *rant of (uthority to 9ell (tta"hed
Properties
5
whi"h the C( denied in the herein assailed Resolution dated !"tober 4, #$$#.
(""ording to the C(, selling the atta"hed properties prior to final ;udg3ent of the appealed "ase is
pre3ature and "ontrary to the intent and purpose of preli3inary atta"h3ent for the following
reasons/ first, the re"ords reveal that the atta"hed properties sub;e"t of the 3otion are not perishable
in nature< and second, while the sale of the atta"hed properties 3ay serve the interest of China
Bank, it will not be so for (C2C. .he C( re"ogni=ed China Bank7s apprehension that by the ti3e a
final ;udg3ent is rendered, the atta"hed properties would be worthless. >owever, the C( also
a"knowledged that sin"e (C2C is a "orporation engaged in a "onstru"tion business, the
preservation of the properties is of para3ount i3portan"e< and that in the event that the de"ision of
the lower "ourt is reversed and a final ;udg3ent rendered in favor (C2C, great pre;udi"e will result if
the atta"hed properties were already sold.
China Bank filed a %otion for Re"onsideration
&
whi"h was denied in the herein assailed C(
Resolution
-
dated %ay &, #$$'.
>en"e, the present petition for review on certiorari, on the following ground/
.>? >!,!R(B4? C!@R. !A (PP?(49 R?,2?R?2 .>? B@?9.6!,?2
R?9!4@.6!,9 (ANNEXES "A" and "B") 6, ( %(,,?R ,!. 6, (CC!R2 C6.> .>?
PR!+696!,9 !A 9?C.6!, , R@4? 5- !A .>? R@4?9 !A C6+64 PR!C?2@R?, (9 6.
9>?4+?2 .>? 2?%(,29 !A ?B@6.D BD (RB6.R(R64D 269(44!C6,* .>? 9(4? !A
.>? (..(C>?2 PR!P?R.6?9, @P>!426,* !,4D .>? 6,.?R?9. !A R?9P!,2?,.,
6, @..?R P(R.6(46.D.
5
Considering that the herein assailed C( Resolutions are interlo"utory in nature as they do not
dispose of the "ase "o3pletely but leave so3ething to be done upon the 3erits,
1
the proper re3edy
should have been by way of petition for certiorari under Rule &5, as provided for in 9e"tion (b),
Rule 4 of the Rules of Court, as a3ended by (.%. ,o. $-)-)#)9C,
#$
whi"h provides/
9e"tion . Subject of appeal. - (n appeal 3ay be taken fro3 a ;udg3ent or final order that
"o3pletely disposes of the "ase, or of a parti"ular 3atter therein when de"lared by these
Rules to be appealable.
,o appeal 3ay be taken fro3/
: : : :
(b) (n interlo"utory order<
: : : :
6n any of the foregoing instan"es, the aggrieved party 3ay file an appropria() *p)+ial +i,il
a+(ion a* pro,id)d in R-l) .5. (?3phasis supplied).
.he present petition for review on certiorari should have been dis3issed outright. >owever, in 3any
instan"es, the Court has treated a petition for review on certiorari under Rule 45 as a petition
for certiorari under Rule &5 of the Rules of Court, su"h as in "ases where the sub;e"t of the re"ourse
was one of ;urisdi"tion, or the a"t "o3plained of was perpetrated by a "ourt with grave abuse of
dis"retion a3ounting to la"k or e:"ess of ;urisdi"tion.
#
.he present petition does not involve any
issue on ;urisdi"tion, neither does it show that the C( "o33itted grave abuse of dis"retion in
denying the 3otion to sell the atta"hed property.
9e"tion , Rule 5- of the Rules of Court provides/
S)+. 11. When attached propert !a be sold after le" on attach!ent and before entr of
jud#!ent.-Chenever it shall be 3ade to appear to the "ourt in whi"h the a"tion is pending,
upon hearing with noti"e to both parties, that the property atta"hed is perishable, or (/a( (/)
in()r)*(* o0 all (/) par(i)* (o (/) a+(ion will be subserved by the sale thereof, the "ourt
3ay order su"h property to be sold at publi" au"tion in su"h 3anner as it 3ay dire"t, and the
pro"eeds of su"h sale to be deposited in "ourt to abide the ;udg3ent in the a"tion.
(?3phasis supplied)
.hus, an atta"hed property 3ay be sold after levy on atta"h3ent and before entry of ;udg3ent
whenever it shall be 3ade to appear to the "ourt in whi"h the a"tion is pending, upon hearing with
noti"e to both parties, that (/) a((a+/)d prop)r(1 i* p)ri*/a2l) or (/a( (/) in()r)*(* o0 all (/)
par(i)* (o (/) a+(ion 3ill 2) *-2*)r,)d 21 (/) *al) o0 (/) a((a+/)d prop)r(1.
6n its %e3orandu3,
##
China Bank argues that the C(7s notion of perishable property, whi"h pertains
only to those goods whi"h rot and de"ay and lose their value if not speedily put to their intended
use,
#'
is a stri"t and stringent interpretation that would betray the purpose for whi"h the preli3inary
atta"h3ent was engrafted.
#4
CitingWitherspoon ". Cross,
#5
China Bank invokes the definition of
Eperishable propertyE laid down by the 9upre3e Court of California as goods whi"h de"ay and lose
their value if not speedily put to their intended use< but where the ti3e "onte3plated is ne"essarily
long, the ter3 3ay e3bra"e property liable 3erely to 3aterial depre"iation in value fro3 other
"auses than su"h de"ay.
(s stated in the 9heriff7s Report
#&
and ,oti"es of 4evy on Properties,
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all of
(C2C7s properties whi"h were levied are personal properties "onsisting of used vehi"les, i.e., vans,
du3p tru"ks, "e3ent 3i:ers, "argo tru"ks, utility vehi"les, 3a"hinery, e8uip3ent and offi"e
3a"hines and fi:tures. China Bank insists that the atta"hed properties, all pla"ed inside (C2C7s
sto"kyard lo"ated at 9ilang, Cavite and the bran"h offi"e in %aya3ot, (ntipolo City, are totally
e:posed to natural ele3ents and adverse weather "onditions.
#5
.hus, China Bank argues, that
should the atta"hed properties be allowed to depre"iate, perish or rot while the 3ain "ase is
pending, the atta"hed properties will "ontinue losing their worth thereby rendering the rules on
preli3inary atta"h3ent nugatory.
.he issue hinges on the deter3ination whether the vehi"les, offi"e 3a"hines and fi:tures are
Eperishable propertyE under 9e"tion , Rules 5- of the Rules of Court, whi"h is a"tually one of first
i3pression. ,o lo"al ;urispruden"e or authoritative work has tou"hed upon this 3atter. .his being so,
an e:a3ination of foreign laws and ;urispruden"e, parti"ularly those of the @nited 9tates where
so3e of our laws and rules were patterned after, is in order.
#1
6n $ossler Acceptance Co. ". %en!ar&,
'$
an order of the lower "ourt in dire"ting the sale of atta"hed
properties, "onsisting of #$ auto3obiles and # airplanes, was reversed by the 9upre3e Court of
4ouisiana. 6n support of its "ontention that auto3obiles are perishable, $ossler offered testi3ony to
the effe"t that auto3obile tires tend to dry)rot in storage, batteries to deteriorate, "rank"ases to
be"o3e da3aged, paint and upholstery to fade, that generally auto3obiles tend to depre"iate while
in storage.
'
Re;e"ting these argu3ents, the 9upre3e Court of 4ouisiana held that while there 3ight
be a depre"iation in the value of a "ar during storage, depending largely on e:isting e"ono3i"
"onditions, there would be no 3aterial deterioration of the "ar itself or any of its appurtenan"es if the
"ar was properly "ared for, and therefore it "ould not be said that auto3obiles were of a perishable
nature within the intend3ent of the statute, whi"h "ould only be invoked when the property atta"hed
and sei=ed was of a perishable nature.
'#
Cith respe"t to the deter3ination of the 8uestion on whether the atta"hed offi"e furniture, offi"e
e8uip3ent, a""essories and supplies are perishable properties, the 9upre3e Court of (laba3a
in $cCreer ". Berne National Ban&
''
dis"ussed the EperishableE nature of the atta"hed properties,
"onsisting of shelving, sto"k of drygoods and a "o3plete set of store fi:tures, "onsisting of "ounters
iron safe, desk and show"ases, to be within the 3eaning of EperishableE property under the (laba3a
Code whi"h authori=es a "ourt, on 3otion of either party, to order the sale, in advan"e of ;udg3ent,
of perishable property whi"h had been levied on by a writ of atta"h3ent.
'4
6n $cCreer, the 9upre3e Court of (laba3a re;e"ted the argu3ent that the sale of the atta"hed
property was void be"ause the ter3 EperishableE property, as used in the statute, 3eant only su"h
property as "ontained in itself the ele3ents of speedy de"ay, su"h as fruits, fish, fresh
3eats, etc.
'5
.he 9upre3e Court of (laba3a held that whatever 3ay be the "hara"ter of the
property, if the "ourt is satisfied that, either by reason of its perishable nature, or be"ause of the
e:pense of keeping it until the ter3ination of the litigation, it will prove, or be likely to prove, fruitless
to the "reditor, and that the purpose of its original sei=ure will probably be frustrated, the sale of the
atta"hed property is ;ustified.
$cCreer applied the do"trine in $illard's Ad!rs. ". (all
'&
where the 9upre3e Court of (laba3a held
that an atta"hed property is perishable Eif it is shown that, by keeping the arti"le, it will ne"essarily
be"o3e, or is likely to be"o3e, worthless to the "reditor, and by "onse8uen"e to the debtor, then it is
e3bra"ed by the statute. 6t 3atters not, in our opinion, what the sub;e"t 3atter is. 6t 3ay be "otton
bales, live sto"k, hardware provisions or dry goods.E (lthough the statute under whi"h $illard's was
de"ided used the words Elikely to waste or be destroyed by keeping,E instead of the word
Eperishable,E the reasons given for the "onstru"tion pla"ed on the statute apply e8ually to the
(laba3a Code whi"h uses the ter3 Eperishable.E
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6n the %otion for 4eave for *rant of (uthority to 9ell (tta"hed Properties
'5
filed before the C(, China
Bank alleged that the atta"hed properties are pla"ed in lo"ations where they are totally e:posed to
the natural ele3ents and adverse weather "onditions sin"e their atta"h3ent in 111<
'1
that as a
result, the atta"hed properties have gravely deteriorated with "orrosions eating the3 up, with weeds
ger3inating and growing thereon and their engines and 3otors sto"k up<
4$
and that the sa3e holds
true to the offi"e furniture, offi"e e8uip3ent, a""essories and supplies.
4
,o eviden"e, however, were
sub3itted by China Bank to support and substantiate these "lai3s before the C(.
,otably, in the Petition filed before the Court, China Bank, for the first ti3e, in"luded as
anne:es,
4#
photographs of the atta"hed properties whi"h were alleged to be re"ently taken, in an
atte3pt to "onvin"e the Court of the deteriorated "ondition of the atta"hed properties.
.he deter3ination on whether the atta"hed vehi"les are properly "ared for, and the burden to show
that, by keeping the atta"hed offi"e furniture, offi"e e8uip3ent and supplies, it will ne"essarily
be"o3e, or is likely to be"o3e, worthless to China Bank, and by "onse8uen"e to (C2C, are fa"tual
issues re8uiring re"eption of eviden"e whi"h the Court "annot do in a petition for certiorari. Aa"tual
issues are beyond the s"ope of certioraribe"ause they do not involve any ;urisdi"tional issue.
4'
(s a rule, only ;urisdi"tional 8uestions 3ay be raised in a petition for "ertiorari, in"luding 3atters of
grave abuse of dis"retion whi"h are e8uivalent to la"k of ;urisdi"tion.
44
.he offi"e of the writ of
"ertiorari has been redu"ed to the "orre"tion of defe"ts of ;urisdi"tion solely and "annot legally be
used for any other purpose.
45
Certiorari is truly an e:traordinary re3edy and, in this ;urisdi"tion, its use is restri"ted to truly
e:traordinary "ases ) "ases in whi"h the a"tion of the inferior "ourt is wholly void< where any further
steps in the "ase would result in a waste of ti3e and 3oney and would produ"e no result whatever<
where the parties, or their privies, would be utterly de"eived< where a final ;udg3ent or de"ree would
be nought but a snare and delusion, de"iding nothing, prote"ting nobody, a ;udi"ial pretension, a
re"orded falsehood, a standing 3ena"e. 6t is only to avoid su"h results as these that a writ of
"ertiorari is issuable< and even here an appeal will lie if the aggrieved party prefers to prose"ute it.
4&
%oreover, the Court held in )A$ *ransportation Co., +nc. ". ,lores
4-
that it is well)settled, too well)
settled to re8uire a "itation of ;urispruden"e, that this Court does not 3ake findings of fa"ts spe"ially
on eviden"e raised for the first ti3e on appeal.
45
.he Court will not 3ake an e:"eption in the "ase at
bar. >en"e, the photographs of the atta"hed properties presented before the Court, for the first ti3e
on appeal, "annot be "onsidered by the Court.
China Bank argues that if the C( allowed the atta"hed properties to be sold, whatever 3onetary
value whi"h the atta"hed properties still have will be reali=ed and saved for both parties.
41
China
Bank further "lai3s that should (C2C prevail in the final ;udg3ent
5$
of the "olle"tion suit, (C2C "an
pro"eed with the bond posted by China Bank.
5
.he Court finds said argu3ents to be spe"ious and
3ispla"ed.
9e"tion 4, Rule 5- of the Rules of Court provides/
9e"tion 4. Condition of applicant's bond. - .he party applying for the order 3ust thereafter
give a bond e:e"uted to the adverse party in the a3ount fi:ed by the "ourt in its order
granting the issuan"e of the writ, "onditioned that the latter will pay all the "osts whi"h 3ay
be ad;udged to the adverse party and all the da3ages whi"h he 3ay sustain by reason of
the atta"h3ent, if the "ourt shall finally ad;udge that the appli"ant was not entitled thereto.
6t is "lear fro3 the foregoing provision that the bond posted by China Bank answers only for the
pay3ent of all da3ages whi"h (C2C 3ay sustain if the "ourt shall finally ad;udge that China Bank
was not entitled to atta"h3ent. .he liability atta"hes if Ethe plaintiff is not entitled to the atta"h3ent
be"ause the re8uire3ents entitling hi3 to the writ are wanting,E or Eif the plaintiff has no right to the
atta"h3ent be"ause the fa"ts stated in his affidavit, or so3e of the3 are untrue.E
5#
Clearly, (C2C
"an only "lai3 fro3 the bond for all the da3ages whi"h it 3ay sustain by reason of the atta"h3ent
and not be"ause of the sale of the atta"hed properties prior to final ;udg3ent.
9ale of atta"hed property before final ;udg3ent is an e8uitable re3edy provided for the "onvenien"e
of the parties and preservation of the property.
5'
.o repeat, the Court finds that the issue of whether
the sale of atta"hed properties is for the "onvenien"e of the parties and that the interests of all the
parties will be subserved by the said sale is a 8uestion of fa"t. (gain, the foregoing issue "an only be
resolved upon e:a3ination of the eviden"e presented by both parties whi"h the Court "annot do in a
petition for certiorari under Rule &5 of the Rules of Court.
4H!R!5OR!, the petition is !NI!. .he assailed Resolutions of the Court of (ppeals dated
!"tober 4, #$$# and %ay &, #$$' in C()*.R. C+ ,o. -#-5 are hereby A55IR$!.
SO OR!R!.