CIVPRO – RULE 57 – PRELIMINARY ATTACHMENT – NATURE This Order of September 19, 1989 was successfully challenged by Queensland and
1989 was successfully challenged by Queensland and Adarna in a
G.R. No. 93262 December 29, 1991
DAVAO LIGHT & POWER CO., INC., petitioner,
vs.
THE COURT OF APPEALS, QUEENSLAND HOTEL or MOTEL or QUEENSLAND TOURIST INN, and
TEODORICO ADARNA, respondents.
NARVASA, J.:
Subject of the appellate proceedings at bar is the decision of the Court of Appeals in CA-G.R. Sp.
No. 1967 entitled "Queensland Hotel, Inc., etc. and Adarna v. Davao Light & Power Co., Inc.,"
promulgated on May 4, 1990. 1 That decision nullified and set aside the writ of preliminary
attachment issued by the Regional Trial Court of Davao City 2 in Civil Case No. 19513-89 on
application of the plaintiff (Davao Light & Power Co.), before the service of summons on the
defendants (herein respondents Queensland Co., Inc. and Adarna).
Following is the chronology of the undisputed material facts culled from the Appellate Tribunal's
judgment of May 4, 1990.
1. On May 2, 1989 Davao Light & Power Co., Inc. (hereafter, simply Davao Light) filed a verified
complaint for recovery of a sum of money and damages against Queensland Hotel, etc. and
Teodorico Adarna (docketed as Civil Case No. 19513-89). The complaint contained an ex parte
application for a writ of preliminary attachment.
2. On May 3, 1989 Judge Nartatez, to whose branch the case was assigned by raffle, issued an
Order granting the ex parte application and fixing the attachment bond at P4,600,513.37.
3. On May 11, 1989 the attachment bond having been submitted by Davao Light, the writ of
attachment issued.
4. On May 12, 1989, the summons and a copy of the complaint, as well as the writ of attachment
and a copy of the attachment bond, were served on defendants Queensland and Adarna; and
pursuant to the writ, the sheriff seized properties belonging to the latter.
5. On September 6, 1989, defendants Queensland and Adarna filed a motion to discharge the
attachment for lack of jurisdiction to issue the same because at the time the order of attachment
was promulgated (May 3, 1989) and the attachment writ issued (May 11, 1989), the Trial Court had
not yet acquired jurisdiction over the cause and over the persons of the defendants.
6. On September 14, 1989, Davao Light filed an opposition to the motion to discharge attachment.
7. On September 19, 1989, the Trial Court issued an Order denying the motion to discharge.
special civil action of certiorari instituted by them in the Court of Appeals. The Order was, as
aforestated, annulled by the Court of Appeals in its Decision of May 4, 1990. The Appellate Court's
decision closed with the following disposition:
. . . the Orders dated May 3, 1989 granting the issuance of a writ of preliminary
attachment, dated September 19, 1989 denying the motion to discharge attachment;
dated November 7, 1989 denying petitioner's motion for reconsideration; as well as all
other orders emanating therefrom, specially the Writ of Attachment dated May 11, 1989
and Notice of Levy on Preliminary Attachment dated May 11, 1989, are hereby declared
null and void and the attachment hereby ordered DISCHARGED.
The Appellate Tribunal declared that —
. . . While it is true that a prayer for the issuance of a writ of preliminary attachment may
be included m the complaint, as is usually done, it is likewise true that the Court does
not acquire jurisdiction over the person of the defendant until he is duly summoned or
voluntarily appears, and adding the phrase that it be issued "ex parte" does not confer
said jurisdiction before actual summons had been made, nor retroact jurisdiction upon
summons being made. . . .
It went on to say, citing Sievert v. Court of Appeals, 3 that "in a proceedings in attachment," 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 . . .;" and that "the critical time is the of the
vesting of jurisdiction in the court over the person of the defendant in the main case."
Reversal of this Decision of the Court of Appeals of May 4, 1990 is what Davao Light seeks in the
present appellate proceedings.
The question is whether or not a writ of preliminary attachment may issue ex parte against a
defendant before acquisition of jurisdiction of the latter's person by service of summons or his
voluntary submission to the Court's authority.
The Court rules that the question must be answered in the affirmative and that consequently, the
petition for review will have to be granted.
It is incorrect to theorize that after an action or proceeding has been commenced and jurisdiction
over the person of the plaintiff has been vested in the court, but before the acquisition of
jurisdiction over the person of the defendant (either by service of summons or his voluntary
submission to the court's authority), nothing can be validly done by the plaintiff or the court. It is
wrong to assume that the validity of acts done during this period should be defendant on, or held
in suspension until, the actual obtention of jurisdiction over the defendant's person. The obtention
by the court of jurisdiction over the person of the defendant is one thing; quite another is the
acquisition of jurisdiction over the person of the plaintiff or over the subject-matter or nature of
the action, or the res or object hereof.
An action or proceeding is commenced by the filing of the complaint or other initiatory pleading. 4
By that act, the jurisdiction of the court over the subject matter or nature of the action or
proceeding is invoked or called into activity; 5 and it is thus that the court acquires jurisdiction over
said subject matter or nature of the action. 6 And it is by that self-same act of the plaintiff (or
petitioner) of filing the complaint (or other appropriate pleading) — by which he signifies his
submission to the court's power and authority — that jurisdiction is acquired by the court over his
person. 7 On the other hand, jurisdiction over the person of the defendant is obtained, as above
stated, by the service of summons or other coercive process upon him or by his voluntary
submission to the authority of the court. 8
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 summons is effected on the defendant in any of the ways
authorized by the Rules of Court. There is thus 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, 9 the grant of authority to the plaintiff to prosecute the suit as a pauper litigant,
10
the amendment of the complaint by the plaintiff as a matter of right without leave of court, 11
authorization by the Court of service of summons by publication, 12 the dismissal of the action by
the plaintiff on mere notice. 13
This, too, is true with regard to the provisional remedies of preliminary attachment, preliminary
injunction, receivership or replevin. 14 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. 15 It is a remedy which is
purely statutory in respect of which the law requires a strict construction of the provisions granting
it. 16 Withal no principle, statutory or jurisprudential, prohibits its issuance by any court before
acquisition of jurisdiction over the person of the defendant.
Rule 57 in fact speaks of the grant of the remedy "at the commencement of the action or at any
time thereafter." 17 The phase, "at the commencement of the action," obviously refers to the date
of the filing of the complaint — which, as above pointed out, is the date that marks "the
commencement of the action;" 18 and the reference plainly is to a time before summons is served
on the defendant, or even before summons issues. What the rule is saying quite clearly is that after
an action is properly commenced — by the filing of the complaint and the payment of all requisite
docket and other fees — the plaintiff may apply for and obtain a writ of preliminary attachment
upon fulfillment of the pertinent requisites laid down by law, and that he may do so at any time,
either before or after service of summons on the defendant. And this indeed, has been the
immemorial practice sanctioned by the courts: for the plaintiff or other proper party to
incorporate the application for attachment in the complaint or other appropriate pleading
(counter-claim, cross-claim, third-party claim) and for the Trial Court to issue the writ ex-parte at
the commencement of the action if it finds the application otherwise sufficient in form and
substance.
In Toledo v. Burgos, 19 this Court ruled that a hearing on a motion or application for preliminary
attachment is not generally necessary unless otherwise directed by the Trial Court in its discretion.
20
And in Filinvest Credit Corporation v. Relova, 21 the Court declared that "(n)othing in the Rules of
Court makes notice and hearing indispensable and mandatory requisites for the issuance of a writ
of attachment." The only pre-requisite is that the Court be satisfied, upon consideration of "the
affidavit of the applicant or of some other person who personally knows the facts, that a sufficient
cause of action exists, that the case is one of those mentioned in Section 1 . . . (Rule 57), that there
is no other sufficient security for the claim sought to be enforced by the action, and that the
amount due to the applicant, or the value of the property the possession of which he is entitled to
recover, is as much as the sum for which the order (of attachment) is granted above all legal
counterclaims." 22 If the court be so satisfied, the "order of attachment shall be granted," 23 and the
writ shall issue upon the applicant's posting of "a bond executed to the adverse party in an amount
to be fixed by the judge, not exceeding the plaintiffs claim, conditioned that the latter will pay all
the costs which may be adjudged to the adverse party and all damages which he may sustain by
reason of the attachment, if the court shall finally adjudge that the applicant was not entitled
thereto." 24
In Mindanao Savings & Loan Association, Inc. v. Court of Appeals, decided on April 18, 1989, this
Court had occasion to emphasize the postulate that no hearing is required on an application for
preliminary attachment, with notice to the defendant, for the reason that this "would defeat the
objective of the remedy . . . (since the) time which such a hearing would take, could be enough to
enable the defendant to abscond or dispose of his property before a writ of attachment issues." As
observed by a former member of this Court, 26 such a procedure would warn absconding debtors-
defendants of the commencement of the suit against them and the probable seizure of their
properties, and thus give them the advantage of time to hide their assets, leaving the creditor-
plaintiff holding the proverbial empty bag; it would place the creditor-applicant in danger of losing
any security for a favorable judgment and thus give him only an illusory victory.
Withal, ample modes of recourse against a preliminary attachment are secured by law to the
defendant. The relative ease with which a preliminary attachment may be obtained is matched and
paralleled by the relative facility with which the attachment may legitimately be prevented or
frustrated. These modes of recourse against preliminary attachments granted by Rule 57 were
discussed at some length by the separate opinion in Mindanao Savings & Loans Asso. Inc. v. CA.,
supra.
That separate opinion stressed that there are two (2) ways of discharging an attachment: first, by
the posting of a counterbond; and second, by a showing of its improper or irregular issuance.
1.0. The submission of a counterbond is an efficacious mode of lifting an attachment already
enforced against property, or even of preventing its enforcement altogether.
1.1. When property has already been seized under attachment, the attachment may be discharged
upon counterbond in accordance with Section 12 of Rule 57.
Sec. 12. Discharge of attachment upon giving counterbond. — At any time after an order
of attachment has been granted, the party whose property has been attached or the
person appearing in his behalf, may, upon reasonable notice to the applicant, apply to
the judge who granted the order, or to the judge of the court in which the action is
pending, for an order discharging the attachment wholly or in part on the security given .
. . in an amount equal to the value of the property attached as determined by the judge
 to secure the payment of any judgment that the attaching creditor may recover in the
action. . . .
1.2. But even before actual levy on property, seizure under attachment may be prevented also
upon counterbond. The defendant need not wait until his property is seized before seeking the
discharge of the attachment by a counterbond. This is made possible by Section 5 of Rule 57.
Sec. 5. Manner of attaching property. — The officer executing the order shall without
delay attach, to await judgment and execution in the action, all the properties of the
party against whom the order is issued in the province, not exempt from execution, or so
much thereof as may be sufficient to satisfy the applicant's demand, unless the former
makes a deposit with the clerk or judge of the court from which the order issued, or gives
a counter-bond executed to the applicant, in an amount sufficient to satisfy such demand
besides costs, or in an amount equal to the value of the property which is about to be
attached, to secure payment to the applicant of any judgment which he may recover in
the action. . . . (Emphasis supplied)
2.0. Aside from the filing of a counterbond, a preliminary attachment may also be lifted or
discharged on the ground that it has been irregularly or improperly issued, in accordance with
Section 13 of Rule 57. Like the first, this second mode of lifting an attachment may be resorted to
even before any property has been levied on. Indeed, it may be availed of after property has been
released from a levy on attachment, as is made clear by said Section 13, viz.:
Sec. 13. Discharge of attachment for improper or irregular issuance. — The party whose
property has been attached may also, at any time either BEFORE or AFTER the release of
the attached property, or before any attachment shall have been actually levied, upon
reasonable notice to the attaching creditor, apply to the judge who granted the order, or
to the judge of the court in which the action is pending, for an order to discharge the
attachment on the ground that the same was improperly or irregularly issued. If the
motion be made on affidavits on the part of the party whose property has been
attached, but not otherwise, the attaching creditor may oppose the same by counter-
affidavits or other evidence in addition to that on which the attachment was made. . . .
(Emphasis supplied)
This is so because "(a)s pointed out in Calderon v. I.A.C., 155 SCRA 531 (1987), The attachment
debtor cannot be deemed to have waived any defect in the issuance of the attachment writ by
simply availing himself of one way of discharging the attachment writ, instead of the other.
Moreover, the filing of a counterbond is a speedier way of discharging the attachment writ
maliciously sought out by the attaching creditor instead of the other way, which, in most
instances . . . would require presentation of evidence in a fullblown trial on the merits, and cannot
easily be settled in a pending incident of the case." 27
It may not be amiss to here reiterate other related principles dealt with in Mindanao Savings &
Loans Asso. Inc. v. C.A., supra., 28 to wit:
(a) When an attachment may not be dissolved by a showing of its irregular or improper
issuance:
. . . (W)hen the preliminary attachment is issued upon a ground which is at the same
time the applicant's cause of action; e.g., "an action for money or property embezzled or
fraudulently misapplied or converted to his own use by a public officer, or an officer of a
corporation, or an attorney, factor, broker, agent, or clerk, in the course of his
employment as such, or by any other person in a fiduciary capacity, or for a willful
violation of duty." (Sec. 1 [b], Rule 57), or "an action against a party who has been guilty
of fraud m contracting the debt or incurring the obligation upon which the action is
brought" (Sec. 1 [d], Rule 57), the defendant is not allowed to file a motion to dissolve
the attachment under Section 13 of Rule 57 by offering to show the falsity of the factual
averments in the plaintiff's application and affidavits on which the writ was based — and
consequently that the writ based thereon had been improperly or irregularly issued (SEE
Benitez v. I.A.C., 154 SCRA 41) — the reason being that the hearing on such a motion for
dissolution of the writ would be tantamount to a trial of the merits of the action. In
other words, the merits of the action would be ventilated at a mere hearing of a motion,
instead of at the regular trial. Therefore, when the writ of attachment is of this nature,
the only way it can be dissolved is by a counterbond (G.B. Inc. v. Sanchez, 98 Phil. 886).
(b) Effect of the dissolution of a preliminary attachment on the plaintiffs attachment bond:
. . . The dissolution of the preliminary attachment upon security given, or a showing of its
irregular or improper issuance, does not of course operate to discharge the sureties on
plaintiff's own attachment bond. The reason is simple. That bond is "executed to the
adverse party, . . . conditioned that the . . . (applicant) will pay all the costs which may be
adjudged to the adverse party and all damages which he may sustain by reason of the
attachment, if the court shall finally adjudge that the applicant was not entitled thereto"
(SEC. 4, Rule 57). Hence, until that determination is made, as to the applicant's
entitlement to the attachment, his bond must stand and cannot be with-drawn.
With respect to the other provisional remedies, i.e., preliminary injunction (Rule 58), receivership
(Rule 59), replevin or delivery of personal property (Rule 60), the rule is the same: they may also
issue ex parte. 29
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.

It was on account of the failure to comply with this fundamental requirement of service of
summons and the other documents above indicated that writs of attachment issued by the Trial
Court ex parte were struck down by this Court's Third Division in two (2) cases, namely: Sievert v.
Court of Appeals, 31 and BAC Manufacturing and Sales Corporation v. Court of Appeals, et al. 32 In
contrast to the case at bar — where the summons and a copy of the complaint, as well as the
order and writ of attachment and the attachment bond were served on the defendant — in
Sievert, levy on attachment was attempted notwithstanding that only the petition for issuance of
the writ of preliminary attachment was served on the defendant, without any prior or
accompanying summons and copy of the complaint; and in BAC Manufacturing and Sales
Corporation, neither the summons nor the order granting the preliminary attachment or the writ
of attachment itself was served on the defendant "before or at the time the levy was made."

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.

WHEREFORE, the petition is GRANTED; the challenged decision of the Court of Appeals is hereby
REVERSED, and the order and writ of attachment issued by Hon. Milagros C. Nartatez, Presiding
Judge of Branch 8, Regional Trial Court of Davao City in Civil Case No. 19513-89 against Queensland
Hotel or Motel or Queensland Tourist Inn and Teodorico Adarna are hereby REINSTATED. Costs
against private respondents.

SO ORDERED.
CIVPRO – RULE 57 – PRELIMINARY ATTACHMENT – NATURE preservation of the rights of the parties which do not involve any matter litigated by the appeal,
to approve compromises offered by the parties prior to the transmittal of the record on appeal
G.R. No. 81120 August 20, 1990 to the appellate court, and to permit the prosecution of pauper's appeals.

Sps. OLIB and ROBERTA R. OLIB, petitioners, On August 24, 1987, Judge Edelwina C. Pastoral, who had succeeded Judge Rallos denied the
vs. motion on the ground invoked in the opposition and declared:
Hon. EDELWINA C, PASTORAL, Judge of the Regional Trial Court of Agusan del Norte and Butuan
City, Branch III and CORAZON M, NAVIA, respondents. Settled is the rule that the trial court loses its jurisdiction over the record and over the subject of
the case once an appeal in the case has been perfected. The exception to this rule refers to the
CRUZ, J.: orders of the Court to protect and preserve the rights of the parties which do not involve any
matter litigated by appeal (Section 9, Rule 41 of the Rules of Court). The writ of preliminary
attachment was earlier granted as a security for the satisfaction of the judgment, the latter
This case could have been remanded to the Court of Appeals, which has concurrent jurisdiction
being now the subject of the appeal. To grant defendant's motion at this juncture is to disturb
with this Court in petitions for certiorari against the regional trial courts under Rule 65 of the Rules
and not to preserve the rights of the parties. It is the stand of this Court that the status quo of
of Court. We have decided to retain and rule on it directly, however, so we can emphasize the
the parties shall be maintained for it cannot predetermine the posture which the appellate
important doctrines we shall here affirm.
court will adopt, either to affirm, modify or reverse the questioned decision of this Court.

On November 13, 1981, Corazon M. Navia sued the spouses Oscar and Roberta Olib, petitioner
The petitioners moved for reconsideration, invoking the case of Galang v. Endencia, 7 where this
herein, for dissolution of their partnership and other reliefs, with a prayer for the issuance of a writ
Court held:
of a preliminary attachment. 1 The it was granted on November 10, 1983, resulting in the
attachment of six parcels of land belonging to the petitioners, along with stocks of merchandise in
their bodega.2 The writ was amended on December 14, 1983, to release the merchandise. Two The levy in attachment of the properties of the defendant upon the allegation that he is about
years later, on May 16, 1985, the petitioners filed a motion to discharge the preliminary to dispose of the same to defraud his creditors is one which is intended for the protection and
attachment on the ground that the attachment bond executed for one year from November 1983 preservation of the rights of the plaintiff and which in no way involves any matter litigated by
had already lapsed. 3 This was accompanied by a certification from the bonding company that the the defendant's appeal. And as the respondent court had jurisdiction to issue the writ of
bond had not been renewed and the corresponding payment for extension had not been made . 4 attachment, its errors, if any, committed in the appreciation of the probative value of the facts
stated in the petition for the writ do not affect its jurisdiction but merely the exercise of such
jurisdiction. We need not belabor here the rule that what makes up jurisdiction is the authority
On February 25,1986, Judge Miguel S. Rallos of the Regional Trial Court of Agusan del Norte and
to act in a particular case and not the correctness of the action taken thereon. Without such
Butuan City rendered judgment for the petitioners and sentenced the private respondent to pay
authority, as determined by law, the court cannot act, or if it does, its actuations are null and
them actual, moral and exemplary damages, plus attorney's fees and litigation expenses. 5 On April
voId; but where the authority exists, all orders and decisions of the court rendered in the
16, 1986, Navia perfected her appeal from the challenged judgment, and the records of the case
exercise thereof and within its limits are valId even if they were erroneous.
were elevated to the Court of Appeals on January 25, 1988. 6

They argued that if the court a quo could issue a writ of attachment after the appeal had been
Although the trial court found in the text of the decision that the private respondent was not
perfected, then it could a fortiori discharge such a writ, especially where, as in the case at bar, the
entitled to the issuance of the writ of preliminary attachment, no mention was made of the said
movants were the prevailing parties.
writ in the dispositive portion. As a result, the annotation of the preliminary attachment on the
certificates/titles of the attached lands was maintained and could not be canceled.
Later, somewhat inconsistently, the petitioners also contended that there was really no more need
for an order discharging the attachment as this followed by operation of Rule 57, Section 19, of the
On July 20, 1987, the petitioners moved for the discharge of the writ of preliminary attachment by
Rules of Court. Such discharge was the immediate and automatic effect of any judgment in favor of
the respondent court on the basis of the judgment in their favor. Navia filed an opposition,
the party whose property had been attached, thus:
contending that as she had perfected her appeal to the Court of Appeals, the trial court no longer
had any jurisdiction over the case. The private respondent cited Rule 41, Section 9, of the Rules of
Court, reading as follows: SEC. 19. Disposition of attached property where judgment is for party against whom attachment
is issued. — If judgment be rendered against the attaching creditor, all the proceeds of sales and
money collected or received by the sheriff, clerk, or other proper officer under the order of
When appeal deemed perfected; effect thereof. — If the notice of appeal, the appeal bond and
attachment, and all property attached remaining in any such officer's hands, shall be delivered
the record on appeal have been filed in due time, the appeal is deemed perfected upon the
to the party against whom attachment was issued, and the order of attachment discharged.
approval of the record on appeal and of the appeal bond other than a cash bond, and thereafter
the trial court loses its jurisdiction over the case, except to issue orders for the protection and
The motion having been denied, the petitioners sought reconsideration a second time, insisting
that (a) the attachment had been automatically discharged under Rule 57, Section 19; and (b) the
attachment bond had already lapsed for non-payment of the premiums. They were rebuffed again.
They then came before this Court, contending that the respondent court committed grave abuse
of discretion in denying their motion.
We hold that it did not.
Attachment is defined as a provisional remedy by which the property of an adverse party is taken
into legal custody, either at the commencement of an action or at any time thereafter, as a security
for the satisfaction of any judgment that may be recovered by the plaintiff or any proper party. 8
It is an auxiliary remedy and cannot have an independent existence apart from the main suit or
claim instituted by the plaintiff against the defendant. 9 Being merely ancillary to a principal
proceeding, the attachment must fail if the suit itself cannot be maintained as the purpose of the
writ can no longer be justified.
The consequence is that where the main action is appealed, the attachment which may hive been
issued as an incident of that action, is also considered appealed and so also removed from the
jurisdiction of the court a quo. The attachment itself cannot be the subject of a separate case
independent of the principal action because the attachment was only an incident of such action.
We held in Olsen v. Olsen: 10
The preliminary attachment is an auxiliary remedy the granting of which lies within the sound
discretion of the judge taking cognizance of the principal case upon whose existence it depends.
The order of the judge denying a motion for the annulment of a writ of preliminary attachment,
being of an incIdental or interlocutory and auxiliary character, cannot be the subject of an
appeal independently from the principal case, because our procedural law now in force
authorizes an appeal only from a final judgement which gives an end to the litigation. (Section
143, Act 190; 3 C.J., 549. par. 389.)
xxx xxx xxx
While it is true that an order denying a motion for the annulment of a preliminary attachment is
not subject to review through an appeal independently from the principal case, it is not
constituting a final order, yet when the writ of preliminary attachment becomes final by virtue
of a final judgment rendered in the principal case, saId writ is subject to review jointly with the
judgment rendered in the principal case through an ordinary appeal.
It is also worth noting, as an appropriate observation on the impropriety of the remedy employed
by the petitioners in this case, that, in Jopillo v. Court of Appeals, 11 this Court observed:
... even assuming that the trial court committed an error in denying the motion to discharge the
writ of attachment the error (if it is an error at all) is an error in judgment which cannot be
corrected through the extraordinary remedy of certiorari but by an ordinary appeal at the
proper time.
Coming now to the argument that the attachment was automatically lifted because of the non-
payment of the premium on the attachment bond, the Court feels it is time again to correct a
common misimpression. The rule is that the bond is not deemed extinguished by reason alone of
such non-payment. The Court made this clear in Luzon Surety Co. v. Quebrar, 12 where it declared:
To allow the defendants-appellants to evade their liability under the Indemnity Agreements by
non-payment of the premiums would ultimately lead to giving the administrator the power to
diminish or reduce and altogether nullify his liability under the Administrator's Bonds. As
already stated, this is contrary to the intent and purpose of the law in provIding for the
administrator's bonds for the protection of the creditors, heirs, legatees, and the estate.
xxx xxx xxx
Lastly, in Manila Surety and FIdelity Co., Inc. v. Villarama (107 Phil. 891), it was held that "the
one-year period mentioned therein refers not to the duration or lifetime of the bond, but
merely to the payment of premiums, and, consequently, does not affect at all the effectivity or
efficacy of such bond. But such non-payment alone of the premiums for the succeeding years ...
does not necessarily extinguish or terminate the effectivity of the counter-bond in the absence
of an express stipulation in the contract making such non- payment of premiums a cause for the
extinguishment or termination of the undertaking.
These principles are applicable to other kinds of bonds, including the attachment bond in the case
at bar. On this bond, the respondent court correctly observed:
... a cursory examination of the bond for levy on attachment executed between herein plaintiff
Corazon M. Navia and the branch manager of the First Continental Assurance ' Co., Inc. (Rollo,
pp. 347-348) discloses no stipulation that the surety company will terminate the bond for non-
payment of the premium. This minor matter on non-payment of premiums of the bond pertains
to the contracting parties to resolve. 13
Finally, on the correct interpretation of Rule 57, Section 19, of the Rules of Court, we hold that the
order of attachment is considered discharged only where the judgment has already become final
and executory and not when it is still on appeal. The obvious reason is that, except in a few
specified cases, execution pending appeal is not allowed. 14
WHEREFORE, the petition is DISMISSED, with costs against the petitioners. The petitioners may, if
they see fit, move for the lifting of the writ of preliminary attachment in the Court of Appeals, to
which that ancillary remedy is deemed elevated along with the principal action.
SO ORDERED.
CIVPRO – RULE 57 – PRELIMINARY ATTACHMENT – WHEN ATTACHMENT MAY BE ENFORCED Dear Atty. Balgos:
WITHOUT SERVICE OF SUMMONS
This is in response to your letter, dated 20 June 1991, which I received on 3 July 1991.
G.R. No. 108538 January 22, 1996 Please address all communications to my lawyer, Atty. Alfredo D. Valmonte, whose
address, telephone and fax numbers appear below.
LOURDES A. VALMONTE and ALFREDO D. VALMONTE, petitioners,
vs. c/o Prime Marine
THE HONORABLE COURT OF APPEALS, THIRD DIVISION and ROSITA DIMALANTA, respondents. Gedisco Center, Unit 304
1564 A. Mabini, Ermita
DECISION Metro Manila
Telephone: 521-1736
Fax: 521-2095
MENDOZA, J.:

Service of summons was then made upon petitioner Alfredo D. Valmonte, who at the time, was at
Petitioner Lourdes A. Valmonte is a foreign resident. The question is whether in an action for
his office in Manila. Petitioner Alfredo D. Valmonte accepted the summons, insofar as he was
partition filed against her and her husband, who is also her attorney, summons intended for her
concerned, but refused to accept the summons for his wife, Lourdes A. Valmonte, on the ground
may be served on her husband, who has a law office in the Philippines. The Regional Trial Court of
that he was not authorized to accept the process on her behalf. Accordingly the process server left
Manila, Branch 48, said no and refused to declare Lourdes A. Valmonte in default, but the Court of
without leaving a copy of the summons and complaint for petitioner Lourdes A. Valmonte.
Appeals said yes. Hence this petition for review on certiorari.

Petitioner Alfredo D. Valmonte thereafter filed his Answer with Counterclaim. Petitioner Lourdes A.
The facts of the case are as follows:
Valmonte, however, did not file her Answer. For this reason private respondent moved to declare
her in default. Petitioner Alfredo D. Valmonte entered a special appearance in behalf of his wife
Petitioners Lourdes A. Valmonte and Alfredo D. Valmonte are husband and wife. They are both and opposed the private respondent's motion.
residents of 90222 Carkeek Drive South Seattle, Washington, U.S.A. Petitioner Alfredo D. Valmonte,
who is a member of the Philippine bar, however, practices his profession in the Philippines,
In its Order dated July 3, 1992, the trial court, denied private respondent's motion to declare
commuting for this purpose between his residence in the state of Washington and Manila, where
petitioner Lourdes A. Valmonte in default. A motion for reconsideration was similarly denied on
he holds office at S-304 Gedisco Centre, 1564 A. Mabini Ermita, Manila.
September 23, 1992. Whereupon, private respondent filed a petition for certiorari, prohibition and
mandamus with the Court of Appeals.
On March 9, 1992, private respondent Rosita Dimalanta, who is the sister of petitioner Lourdes A.
Valmonte, filed a complaint for partition of real property and accounting of rentals against
On December 29, 1992, the Court of Appeals rendered a decision granting the petition and
petitioners Lourdes A. Valmonte and Alfredo D. Valmonte before the Regional Trial Court of
declaring Lourdes A. Valmonte in default. A copy of the appellate court's decision was received by
Manila, Branch 48. The subject of the action is a three-door apartment located in Paco, Manila.
petitioner Alfredo D. Valmonte on January 15, 1993 at his Manila office and on January 21, 1993 in
Seattle, Washington. Hence, this petition.
In her Complaint, private respondent alleged:
The issue at bar is whether in light of the facts set forth above, petitioner Lourdes A. Valmonte was
The plaintiff is of legal age, a widow and is at present a resident of 14823 Conway Road, validly served with summons. In holding that she had been, the Court of Appeals stated: 1
Chesterfield, Missouri, U.S.A., while the defendants are spouses, of legal age and at
present residents of 90222 Carkeek Drive, South Seattle, Washington, U.S.A., but, for
[I]n her above-quoted reply, Mrs. Valmonte clearly and unequivocally directed the aforementioned
purposes of this complaint may be served with summons at Gedisco Center, Unit 304,
counsel of Dimalanta to address all communications (evidently referring to her controversy with
1564 A. Mabini St., Ermita, Manila where defendant Alfredo D. Valmonte as defendant
her sister Mrs. Dimalanta over the Paco property, now the subject of the instant case) to her
Lourdes Arreola Valmonte's spouse holds office and where he can be found.
lawyer who happens also to be her husband. Such directive was made without any qualification
just as was her choice/designation of her husband Atty. Valmonte as her lawyer likewise made
Apparently, the foregoing averments were made on the basis of a letter previously sent by without any qualification or reservation. Any disclaimer therefore on the part of Atty. Valmonte as
petitioner Lourdes A. Valmonte to private respondent's counsel in which, in regard to the partition to his being his wife's attorney (at least with regard to the dispute vis-a-vis (sic) the Paco property)
of the property in question, she referred private respondent's counsel to her husband as the party would appear to be feeble or trifling, if not incredible.
to whom all communications intended for her should be sent. The letter reads:

July 4, 1991
This view is bolstered by Atty. Valmonte's subsequent alleged special appearance made on behalf
of his wife. Whereas Mrs. Valmonte had manifestly authorized her husband to serve as her lawyer
relative to her dispute with her sister over the Paco property and to receive all communications
regarding the same and subsequently to appear on her behalf by way of a so-called special
appearance, she would nonetheless now insist that the same husband would nonetheless had
absolutely no authority to receive summons on her behalf. In effect, she is asserting that
representation by her lawyer (who is also her husband) as far as the Paco property controversy is
concerned, should only be made by him when such representation would be favorable to her but
not otherwise. It would obviously be inequitable for this Court to allow private respondent
Lourdes A. Valmonte to hold that her husband has the authority to represent her when an
advantage is to be obtained by her and to deny such authority when it would turn out to be her
disadvantage. If this be allowed, Our Rules of Court, instead of being an instrument to promote
justice would be made use of to thwart or frustrate the same.
xxx xxx xxx
Turning to another point, it would not do for Us to overlook the fact that the disputed
summons was served not upon just an ordinary lawyer of private respondent Lourdes A.
Valmonte, but upon her lawyer husband. But that is not all, the same lawyer/husband
happens to be also her co-defendant in the instant case which involves real property
which, according to her lawyer/husband/co-defendant, belongs to the conjugal
partnership of the defendants (the spouses Valmonte). It is highly inconceivable and
certainly it would be contrary to human nature for the lawyer/husband/co-defendant to
keep to himself the fact that they (the spouses Valmonte) had been sued with regard to a
property which, he claims to be conjugal. Parenthetically, there is nothing in the records
of the case before Us regarding any manifestation by private respondent Lourdes A.
Valmonte about her lack of knowledge about the case instituted against her and her
lawyer/husband/co-defendant by her sister Rosita. . . .
PREMISES CONSIDERED, the instant petition for certiorari, prohibition and mandamus is
given due course. This Court hereby Resolves to nullify the orders of the court a quo
dated July 3, 1992 and September 23, 1992 and further declares private respondent
Lourdes Arreola Valmonte as having been properly served with summons.
Petitioners assail the aforequoted decision, alleging that the Court of Appeals erred (1) in refusing
to apply the provisions of Rule 14, §17 of the Revised Rules of Court and applying instead Rule 14,
§8 when the fact is that petitioner Lourdes A. Valmonte is a nonresident defendant; and (2)
because even if Rule 14, §8 is the applicable provision, there was no valid substituted service as
there was no strict compliance with the requirement by leaving a copy of the summons and
complaint with petitioner Alfredo D. Valmonte. Private respondent, upon the other hand, asserts
that petitioners are invoking a technicality and that strict adherence to the rules would only result
in a useless ceremony.
We hold that there was no valid service of process on Lourdes A. Valmonte.
To provide perspective, it will be helpful to determine first the nature of the action filed against
petitioners Lourdes A. Valmonte and Alfredo D. Valmonte by private respondent, whether it is an
action in personam, in rem or quasi in rem. This is because the rules on service of summons
embodied in Rule 14 apply according to whether an action is one or the other of these actions.
In an action in personam, personal service of summons or, if this is not possible and he cannot be
personally served, substituted service, as provided in Rule 14, §§7-8 2 is essential for the acquisition
by the court of jurisdiction over the person of a defendant who does not voluntarily submit himself
to the authority of the court. 3 If defendant cannot be served with summons because he is
temporarily abroad, but otherwise he is a Philippine resident, service of summons may, by leave of
court, be made by publication.4 Otherwise stated, a resident defendant in an action in personam,
who cannot be personally served with summons, may be summoned either by means of
substituted service in accordance with Rule 14, §8 or by publication as provided in §§ 17 and 18 of
the same Rule.5
In all of these cases, it should be noted, defendant must be a resident of the Philippines, otherwise
an action in personam cannot be brought because jurisdiction over his person is essential to make
a binding decision.
On the other hand, if the action is in rem or quasi in rem, jurisdiction over the person of the
defendant is not essential for giving the court jurisdiction so long as the court acquires jurisdiction
over the res. If the defendant is a nonresident and he is not found in the country, summons may be
served exterritorially in accordance with Rule 14, §17, which provides:
§17. Extraterritorial service. - When the defendant does not reside and is not found in
the Philippines and the action affects the personal status of the plaintiff or relates to, or
the subject of which is, property within the Philippines, in which the defendant has or
claims a lien or interest, actual or contingent, or in which the relief demanded consists,
wholly or in part, in excluding the defendant from any interest therein, or the property of
the defendant has been attached within the Philippines, service may, by leave of court,
be effected out of the Philippines by personal service as under section 7; or by
publication in a newspaper of general circulation in such places and for such time as the
court may order, in which case a copy of the summons and order of the court shall be
sent by registered mail to the last known address of the defendant, or in any other
manner the court may deem sufficient. Any order granting such leave shall specify a
reasonable time, which shall not be less than sixty (60) days after notice, within which
the defendant must answer..
In such cases, what gives the court jurisdiction in an action in rem or quasi in rem is that it has
jurisdiction over the res, i.e. the personal status of the plaintiff who is domiciled in the Philippines
or the property litigated or attached.
Service of summons in the manner provided in §17 is not for the purpose of vesting it with
jurisdiction but for complying with the requirements of fair play or due process, so that he will be
informed of the pendency of the action against him and the possibility that property in the
Philippines belonging to him or in which he has an interest may be subjected to a judgment in
favor of the plaintiff and he can thereby take steps to protect his interest if he is so minded. 6
Applying the foregoing rules to the case at bar, private respondent's action, which is for partition
and accounting under Rule 69, is in the nature of an action quasi in rem. Such an action is
essentially for the purpose of affecting the defendant's interest in a specific property and not to
render a judgment against him. As explained in the leading case of Banco Español Filipino v.
Palanca :7
[An action quasi in rem is] an action which while not strictly speaking an action in rem partakes of
that nature and is substantially such. . . . The action quasi in rem differs from the true action in rem
in the circumstance that in the former an individual is named as defendant and the purpose of the
proceeding is to subject his interest therein to the obligation or lien burdening the property. All
proceedings having for their sole object the sale or other disposition of the property of the
defendant, whether by attachment, foreclosure, or other form of remedy, are in a general way thus
designated. The judgment entered in these proceedings is conclusive only between the parties.
As petitioner Lourdes A. Valmonte is a nonresident who is not found in the Philippines, service of
summons on her must be in accordance with Rule 14, §17. Such service, to be effective outside the
Philippines, must be made either (1) by personal service; (2) by publication in a newspaper of
general circulation in such places and for such time as the court may order, in which case a copy of
the summons and order of the court should be sent by registered mail to the last known address
of the defendant; or (3) in any other manner which the court may deem sufficient.
Since in the case at bar, the service of summons upon petitioner Lourdes A. Valmonte was not
done by means of any of the first two modes, the question is whether the service on her attorney,
petitioner Alfredo D. Valmonte, can be justified under the third mode, namely, "in any . . . manner
the court may deem sufficient."
We hold it cannot. This mode of service, like the first two, must be made outside the Philippines,
such as through the Philippine Embassy in the foreign country where the defendant resides. 8
Moreover, there are several reasons why the service of summons on Atty. Alfredo D. Valmonte
cannot be considered a valid service of summons on petitioner Lourdes A. Valmonte. In the first
place, service of summons on petitioner Alfredo D. Valmonte was not made upon the order of the
court as required by Rule 14, §17 and certainly was not a mode deemed sufficient by the court
which in fact refused to consider the service to be valid and on that basis declare petitioner
Lourdes A. Valmonte in default for her failure to file an answer.
In the second place, service in the attempted manner on petitioner was not made upon prior leave
of the trial court as required also in Rule 14, §17. As provided in §19, such leave must be applied
for by motion in writing, supported by affidavit of the plaintiff or some person on his behalf and
setting forth the grounds for the application.
Finally, and most importantly, because there was no order granting such leave, petitioner Lourdes
A. Valmonte was not given ample time to file her Answer which, according to the rules, shall be
not less than sixty (60) days after notice. It must be noted that the period to file an Answer in an
action against a resident defendant differs from the period given in an action filed against a
nonresident defendant who is not found in the Philippines. In the former, the period is fifteen (15)
days from service of summons, while in the latter, it is at least sixty (60) days from notice.
Strict compliance with these requirements alone can assure observance of due process. That is
why in one case,9 although the Court considered publication in the Philippines of the summons
(against the contention that it should be made in the foreign state where defendant was residing)
sufficient, nonetheless the service was considered insufficient because no copy of the summons
was sent to the last known correct address in the Philippines..
Private respondent cites the ruling in De Leon v. Hontanosas, 67 SCRA 458,462-463 (1975), in
which it was held that service of summons upon the defendant's husband was binding on her. But
the ruling in that case is justified because summons were served upon defendant's husband in
their conjugal home in Cebu City and the wife was only temporarily absent, having gone to
Dumaguete City for a vacation. The action was for collection of a sum of money. In accordance
with Rule 14, §8, substituted service could be made on any person of sufficient discretion in the
dwelling place of the defendant, and certainly defendant's husband, who was there, was
competent to receive the summons on her behalf. In any event, it appears that defendant in that
case submitted to the jurisdiction of the court by instructing her husband to move for the
dissolution of the writ of attachment issued in that case.
On the other hand, in the case of Gemperle v. Schenker, 10 it was held that service on the wife of a
nonresident defendant was found sufficient because the defendant had appointed his wife as his
attorney-in-fact. It was held that although defendant Paul Schenker was a Swiss citizen and
resident of Switzerland, service of summons upon his wife Helen Schenker who was in the
Philippines was sufficient because she was her husband's representative and attorney-in-fact in a
civil case, which he had earlier filed against William Gemperle. In fact Gemperle's action was for
damages arising from allegedly derogatory statements contained in the complaint filed in the first
case. As this Court said, "[i]n other words, Mrs. Schenker had authority to sue, and had actually
sued, on behalf of her husband, so that she was, also, empowered to represent him in suits filed
against him, particularly in a case, like the one at bar, which is a consequence of the action brought
by her on his behalf" 11 Indeed, if instead of filing an independent action Gemperle filed a
counterclaim in the action brought by Mr. Schenker against him, there would have been no doubt
that the trial court could have acquired jurisdiction over Mr. Schenker through his agent and
attorney-in-fact, Mrs. Schenker.
In contrast, in the case at bar, petitioner Lourdes A. Valmonte did not appoint her husband as her
attorney-in-fact. Although she wrote private res- pondent's attorney that "all communications"
intended for her should be addressed to her husband who is also her lawyer at the latter's address
in Manila, no power of attorney to receive summons for her can be inferred therefrom. In fact the
letter was written seven months before the filing of this case below, and it appears that it was
written in connection with the negotiations between her and her sister, respondent Rosita
Dimalanta, concerning the partition of the property in question. As is usual in negotiations of this
kind, the exchange of correspondence was carried on by counsel for the parties. But the authority
given to petitioner's husband in these negotiations certainly cannot be construed as also including
an authority to represent her in any litigation.
For the foregoing reasons, we hold that there was no valid service on petitioner Lourdes A.
Valmonte in this case.
WHEREFORE, the decision appealed from is REVERSED and the orders dated July 3, 1992 and
September 23, 1992 of the Regional Trial Court of Manila, Branch 48 are REINSTATED.
SO ORDERED.
CIVPRO – RULE 57 – PRELIMINARY ATTACHMENT – SAME PROCEDURE IN SEC 16 RULE 39
G.R. No. L-66321 October 31 1984
TRADERS ROYAL BANK, petitioner,
vs.
THE HON INTERMEDIATE APPELATE COURT, HON., JESUS R. DE VEGA, AS PRESIDING JUDGE OF
THE RETIONAL TRIA COURT, THIRD JUDICIAL REGION, BRANCH IX, MALOLOS, Bulacan, LA
TONDEÑA, INC., VICTORINO P. EVANGELISTA IN HIS CAPACITY AS Ex-Officio Provincial Sheriff of
Bulacan, and/or any and all his deputies, respondents.
ESCOLIN, J.:ñé+.£ªwph!1
The issue posed for resolution in this petition involves the authority of a Regional Trial Court to
issue, at the instance of a third-party claimant, an injunction enjoining the sale of property
previously levied upon by the sheriff pursuant to a writ of attachment issued by another Regional
Trial Court.
The antecedent facts, undisputed by the parties, are set forth in the decision of the respondent
Intermediate Appellate Court thus: têñ.£îhqwâ£
Sometime on March 18, 1983 herein petitioner Traders Royal Bank instituted a suit against the
Remco Alcohol Distillery, Inc. REMCO before the Regional Trial Court, Branch CX, Pasay City, in
Civil Case No. 9894-P, for the recovery of the sum of Two Million Three Hundred Eighty Two
Thousand Two Hundred Fifty Eight & 71/100 Pesos (P2,382,258.71) obtaining therein a writ of
pre attachment directed against the assets and properties of Remco Alcohol Distillery, Inc.
Pursuant to said writ of attachment issued in Civil Case No. 9894-P, Deputy Sheriff Edilberto
Santiago levied among others about 4,600 barrels of aged or rectified alcohol found within the
premises of said Remco Distillery Inc. A third party claim was filed with the Deputy Sheriff by
herein respondent La Tondeña, Inc. on April 1, 1982 claiming ownership over said attached
property (Complaint, p. 17, Rollo).
On May 12, 1982, private respondent La Tondeña, Inc. filed a complaint-in- intervention in said
Civil Case No. 9894, alleging among others, that 'it had made advances to Remco Distillery Inc.
which totalled P3M and which remains outstanding as of date' and that the 'attached properties
are owned by La Tondeña, Inc.' (Annex '3' to petitioner's Motion to Dismiss dated July 27, 1983
— Annex "C" to the petition).
Subsequently, private respondent La Tondeña, Inc., without the foregoing complaint-in-
intervention having been passed upon by the Regional Trial Court, Branch CX, (Pasay City), filed
in Civil Case No. 9894-P a "Motion to Withdraw" dated October 8, 1983, praying that it be
allowed to withdraw alcohol and molasses from the Remco Distillery Plant (Annex 4 to
Petitioner's Motion to Dismiss-Annex C, Petition) and which motion was granted per order of
the Pasay Court dated January 27, 1983, authorizing respondent La Tondeña, Inc. to withdraw
alcohol and molasses from the Remco Distillery Plant at Calumpit, Bulacan (Annex "I" to Reply to
Plaintiff's Opposition dated August 2, 1983 — Annex E to the Petition).
The foregoing order dated January 27, 1983 was however reconsidered by the Pasay Court by
virtue of its order dated February 18, 1983 (Annex A — Petition, p. 15) declaring that the alcohol
"which has not been withdrawn remains in the ownership of defendant Remco Alcohol Distillery
Corporation" and which order likewise denied La Tondeña's motion to intervene.
A motion for reconsideration of the foregoing order of February 18, 1983 was filed by
respondent La Tondeña, Inc., on March 8, 1983 reiterating its request for leave to withdraw
alcohol from the Remco Distillery Plant, and praying further that the "portion of the order dated
February 18, 1983" declaring Remco to be the owner of subject alcohol, "be reconsidered and
striken off said order". This motion has not been resolved (p. 4, Petition) up to July 18, 1983
when a manifestation that it was withdrawing its motion for reconsideration was filed by
respondent La Tondeña Inc.
On July 19, 1983, private respondent La Tondeña Inc. instituted before the Regional Trial Court,
Branch IX, Malolos, Bulacan presided over by Respondent Judge, Civil Case No. 7003-M, in which
it asserted its claim of ownership over the properties attached in Civil Case No. 9894-P, and
likewise prayed for the issuance of a writ of Preliminary Mandatory and Prohibitory Injunction
(Annex B,id ).
A Motion to Dismiss and/or Opposition to the application for a writ of Preliminary Injunction by
herein respondent La Tondeña Inc. was filed by petitioner on July 27, 1983 (Annex C, p. 42, Id.)
This was followed by respondent La Tondeña's opposition to petitioner's Motion to Dismiss on
August 1, 1983 (Annex D, p. 67, Id.).
A reply on the part of petitioner was made on the foregoing opposition on August 3, 1983 (p.
92, Id.).
Hearings were held on respondent La Tondeña's application for injunctive relief and on
petitioner's motion to dismiss on August 8, 19 & 23, 1983 (p. 5, Id.).
Thereafter, the parties filed their respective memoranda (Annex F, p. 104; Annex G, p. 113,
Rollo).
Subsequently, the questioned order dated September 28, 1983 was issued by the respondent
Judge declaring respondent La Tondeña Inc. to be the owner of the disputed alcohol, and
granting the latter's application for injunctive relief (Annex H-1, Id.).
On October 6, 1983, respondent Sheriff Victorino Evangelista issued on Edilberto A. Santiago
Deputy Sheriff of Pasay City the corresponding writ of preliminary injunction (Annex N, p. 127,
Id.).
This was followed by an order issued by the Pasay Court dated October 11, 1983 in Civil Case
No. 9894-P requiring Deputy Sheriff Edilberto A. Santiago to enforce the writ of preliminary
attachment previously issued by said court, by preventing respondent sheriff and respondent La
Tondeña, Inc. from withdrawing or removing the disputed alcohol from the Remco ageing
warehouse at Calumpit, Bulacan, and requiring the aforenamed respondents to explain and
show cause why they should not be cited for contempt for withdrawing or removing said
attached alcohol belonging to Remco, from the latter's ageing warehouse at Calumpit, Bulacan
(Annex F, p. 141, Petition).
Thereafter, petitioner Traders Royal Bank filed with the Intermediate Appellate Court a petition for
certiorari and prohibition, with application for a writ of preliminary injunction, to annul and set
aside the Order dated September 28, 1983 of the respondent Regional Trial Court of Malolos,
Bulacan, Branch IX, issued in Civil Case No. 7003-M; to dissolve the writ of preliminary injunction
dated October 6, 1983 issued pursuant to said order; to prohibit respondent Judge from taking
cognizance of and assuming jurisdiction over Civil Case No. 7003-M, and to compel private
respondent La Tondeña, Inc., and Ex- Oficio Provincial Sheriff of Bulacan to return the disputed
alcohol to their original location at Remco's ageing warehouse at Calumpit, Bulacan.
In its decision, the Intermediate Appellate Court dismissed the petition for lack of legal and factual
basis, holding that the respondent Judge did not abuse his discretion in issuing the Order of
September 28, 1983 and the writ of preliminary injunction dated October 3, 1983. citing the
decision in Detective and Protective Bureau vs. Cloribel (26 SCRA 255). Petitioner moved for
reconsideration, but the respondent court denied the same in its resolution dated February 2,
1984.
Hence, this petition.
Petitioner contends that respondent Judge of the Regional T- trial Court of Bulacan acted without
jurisdiction in entertaining Civil Case No. 7003-M, in authorizing the issuance of a writ of
preliminary mandatory and prohibitory injunction, which enjoined the sheriff of Pasay City from
interferring with La Tondeña's right to enter and withdraw the barrels of alcohol and molasses
from Remco's ageing warehouse and from conducting the sale thereof, said merchandise having
been previously levied upon pursuant to the attachment writ issued by the Regional Trial Court of
Pasay City in Civil Case No. 9894-P. It is submitted that such order of the Bulacan Court constitutes
undue and illegal interference with the exercise by the Pasay Court of its coordinate and co-equal
authority on matters properly brought before it.
We find the petition devoid of merit.
There is no question that the action filed by private respondent La Tondeña, Inc., as third-party
claimant, before the Regional Trial Court of Bulacan in Civil Case No. 7003-M wherein it claimed
ownership over the property levied upon by Pasay City Deputy Sheriff Edilberto Santiago is
sanctioned by Section 14, Rule 57 of the Rules of Court. Thus — têñ.£îhqwâ£
If property taken be claimed by any person other than the party against whom attachment had
been issued or his agent, and such person makes an affidavit of his title thereto or right to the
possession thereof, stating the grounds of such right or title, and serves such affidavit upon the
officer while the latter has possession of the property, and a copy thereof upon the attaching
creditor, the officer shall not be bound to keep the property under the attachment, unless the
attaching creditor or his agent, on demand of said officer, secures aim against such claim by a
bond in a sum not greater than the value of the property attached. In case of disagreement as to
such value, the same shall be decided by the court issuing the writ of attachment. The officer
shall not be liable for damages, for the taking or keeping of such property, to any such third-
party claimant, unless such a claim is so made and the action upon the bond brought within one
hundred and twenty (120) days from the date of the filing of said bond. But nothing herein
contained shall prevent such third person from vindicating his claim to the property by proper
action ...
The foregoing rule explicitly sets forth the remedy that may be availed of by a person who claims
to be the owner of property levied upon by attachment, viz: to lodge a third- party claim with the
sheriff, and if the attaching creditor posts an indemnity bond in favor of the sheriff, to file a
separate and independent action to vindicate his claim (Abiera vs. Court of Appeals, 45 SCRA 314).
And this precisely was the remedy resorted to by private respondent La Tondeña when it filed the
vindicatory action before the Bulacan Court.
The case before us does not really present an issue of first impression. In Manila Herald Publishing
Co., Inc. vs. Ramos, 1 this Court resolved a similar question in this wise: têñ.£îhqwâ£
The objection that at once suggests itself to entertaining in Case No. 12263 the motion to
discharge the preliminary attachment levied in Case No. 11531 is that by so doing one judge
would interfere with another judge's actuations. The objection is superficial and will not bear
analysis.
It has been seen that a separate action by the third party who claims to be the owner of the
property attached is appropriate. If this is so, it must be admitted that the judge trying such
action may render judgment ordering the sheriff of whoever has in possession the attached
property to deliver it to the plaintiff-claimant or desist from seizing it. It follows further that the
court may make an interlocutory order, upon the filing of such bond as may be necessary, to
release the property pending final adjudication of the title. Jurisdiction over an action includes
jurisdiction over an interlocutory matter incidental to the cause and deemed necessary to
preserve the subject matter of the suit or protect the parties' interests. This is self-evident.
xxx xxx xxx
It is true of course that property in custody of the law can not be interfered without the
permission of the proper court, and property legally attached is property in custodia legis. But
for the reason just stated, this rule is confined to cases where the property belongs to the
defendant or one in which the defendant has proprietary interest. When the sheriff acting
beyond the bounds of his office seizes a stranger's property, the rule does not apply and
interference with his custody is not interference with another court's order of attachment.
It may be argued that the third-party claim may be unfounded; but so may it be meritorious, for
that matter. Speculations are however beside the point. The title is the very issue in the case for
the recovery of property or the dissolution of the attachment, and pending final decision, the
court may enter any interlocutory order calculated to preserve the property in litigation and
protect the parties' rights and interests.
Generally, the rule that no court has the power to interfere by injunction with the judgments or
decrees of a concurrent or coordinate jurisdiction having equal power to grant the injunctive relief
sought by injunction, is applied in cases where no third-party claimant is involved, in order to
prevent one court from nullifying the judgment or process of another court of the same rank or
category, a power which devolves upon the proper appellate court . 2 The purpose of the rule is to
avoid conflict of power between different courts of coordinate jurisdiction and to bring about a
harmonious and smooth functioning of their proceedings.
It is further argued that since private respondent La Tondeña, Inc., had voluntarily submitted itself
to the jurisdiction of the Pasay Court by filing a motion to intervene in Civil Case No. 9894-P, the
denial or dismissal thereof constitutes a bar to the present action filed before the Bulacan Court.
We cannot sustain the petitioner's view. Suffice it to state that intervention as a means of
protecting the third-party claimant's right in an attachment proceeding is not exclusive but
cumulative and suppletory to the right to bring an independent suit. 3 The denial or dismissal of a
third-party claim to property levied upon cannot operate to bar a subsequent independent action
by the claimant to establish his right to the property even if he failed to appeal from the order
denying his original third-party claim.4
WHEREFORE, the instant petition is hereby dismissed and the decision of the Intermediate
Appellate Court in AC-G.R. No. SP-01860 is affirmed, with costs against petitioner Traders Royal
Bank.
SO ORDERED.
CIVPRO – RULE 57 – PRELIMINARY ATTACHMENT – CLAIMS FOR DAMAGES ON ACCOUNT OF
IMPROPER, IRREGULAR OR EXCESSIVE ATTACHMENT
G.R. No. L-29026 August 22, 1969
PANTALEON PACIS, petitioner,
vs.
THE COMMISSION ON ELECTIONS, ATANACIO NEGRE AND MUNICIPAL BOARD OF CANVASSERS
OF SANCHEZ MIRA, CAGAYAN, respondents.
RESOLUTION
SANCHEZ, J.:
After promulgation of the September 28, 1968 main decision of this Court in the above-entitled
case confirming the May 11, 1968 resolution of the Commission on Elections, dissolving the writ of
preliminary injunction issued by this Court on June 11, 1968 and declaring valid and subsisting the
canvass of votes and the proclamation of private respondent Anatacio Negre as Mayor-elect of the
Municipality of Sanchez Mira, Province of Cagayan, the latter, through counsel, moved for
assessment and award of damages sustained by him as a result of the preliminary injunction
issued in favor of petitioner Pantaleon Pacis, upon the P1,000 cash bond deposited with this Court
by said petitioner, pursuant to Section 9, Rule 58, in connection with Section 20, Rule 57, of the
Rules of Court.
Petitioner opposed, pleaded good faith. A hearing was conducted by an officer of the Court to
ascertain the amount of damages.
The unrebutted evidence is that private respondent was enjoined from performing his duties as
Mayor of Sanchez Mira from June 19, 1968, after receipt of the injunctive writ on June 18, 1968,
until October 17, 1968 when judgment in the above-entitled case became final and executory, thus
depriving him of four months' salaries at P500 per month totalling a little less than P2,000.
1. It may be well to state at this point that the present is a motion of private respondent for
assessment and award of damages upon the P1,000 cash bond. The reglementary period within
which to file the appropriate motion is before the main judgment becomes executory.
The judgment dissolving the preliminary injunction issued in favor of petitioner and dismissing the
main cause became final and executory on October 17, 1968. The motion herein was filed on
October 16. It can be seen from the procedure laid out in the Rules of Court for proceeding against
an injunction bond that the motion of private respondent barely missed the statutory period.
Section 9 of Rule 58 on preliminary injunctions directs that the procedure in Section 20 of Rule 57
on attachment be followed, viz:
SEC. 20. Claim for damages on account of illegal attachment. — If the judgment on the
action be in favor of the party against whom attachment was issued, he may recover,
upon the bond given or deposit made by the attaching creditor, any damages resulting
from the attachment. Such damages may be awarded only upon application and after
proper hearing, and shall be included in the final judgment. The application must be filed
before the trial or before appeal is perfected or before the judgment becomes executory,
with due notice to the attaching creditor and his surety or sureties, setting forth the facts
showing his right to damages and the amount thereof.
If the judgment of the appellate court be favorable to the party against whom the
attachment was issued, he must claim damages sustained during the pendency of the
appeal by filing an application with notice to the party in whose favor the attachment
was issued or his surety or sureties, before the judgment of the appellate court becomes
executory. The appellate court may allow the application to be heard and decided by the
trial court.
The foregoing remedy has been said to be exclusive such that no claim for recovery of damages
may be filed after the judgment has become final and executory. 1
2. Good faith on his part in obtaining the injunction because the main cause was then undecided
by this Court, petitioner deposits, is fatal to any claim for damages.
The foregoing question entails an expansive discussion on the principles governing recovery of
damages sustained as a result of a wrongfully obtained injunction.
The practice of issuing restraining orders (used here in its generic term as referring to all types of
"status quo" orders) started as a common-law equitable relief in the English courts to preserve the
status quo of a case pending the final determination of the relative rights of the parties. Since
these orders cause damages to the restrained party if his rights were later affirmed — more than
what would be occasioned him as an ordinary party litigant if no restraining order were issued — a
system by which he was recompensed evolved. An account of this is recited in the case of Harless
vs. Consumers' Gas Trust Co., 43 NE. 456, 457, thus:
In the early history of equity jurisprudence temporary restraining orders were issued
without requiring any bond or other security. If upon final hearing the injunction was
dissolved, the party enjoined might recover his costs. ... As the party enjoined suffered
great damages for which he had no adequate remedy, the custom grew up in the equity
courts that the chancellor, in the exercise of his discretion, might require of the plaintiff a
pledge or bond to indemnify the defendant against loss in the event the injunctive order
should be wrongfully issued. Upon the dissolution of the injunction the court might, in
the same proceeding, determine whether or not the defendant was entitled to damages,
and assess the same, or cause them to be assessed by reference to a master. This is still
the practice in the courts of chancery in England and on the equity side of circuit courts
of the United States, and this method is adopted by statute in some of the states. 2
Damages sustained as a result of a wrongfully obtained injunction may be recovered upon the
injunction bond required to be filed with the court. This principle of recovery of damages has been
recognized in our jurisdiction in the early case of Molina vs. Somes (1913), 24 Phil. 49, 61-62.
The filing of a bond before the issuance of an injunction has been made a reglementary requisite
under the same rule which permits the issuance of an injunction. It is this same rule therefore
which must first be examined in determining whether good faith is a proper defense against a
claim for damages.
The statutory undertaking of the bond is that it shall answer for all damages which the party to be
restrained may sustain by reason of the injunction "if the court should finally decide that the
plaintiff was not entitled thereto." 3 Malice or lack of good faith is not an element of recovery on
the bond. This must be so, because to require malice as a prerequisite would make the filing of a
bond a useless formality. Too, it is axiomatic that probable cause is necessary before an injunction
may be ordered, and if good faith were tenable as a defense, it would rule out practically all relief
from actual damages sustained as a result of an injunction.
Jurisprudence, evolved from jurisdictions where this equitable relief originated and expanded,
supports the view we just expressed. The holding is that the dissolution of the injunction, even if
the injunction was obtained in good faith, "amounts to a determination that the injunction was
wrongfully obtained and a right of action on the injunction bond immediately accrues to the
defendant." 4 The dissolution of the injunction because of the failure of petitioner's main cause of
action, therefore, is an "actionable wrong," so to speak, for the purpose of recovery upon the
bond.
3. The foregoing background paves the way for a discussion whether private respondent can
recover damages in excess of the amount of the bond.
As stated, this present proceeding is upon a motion for assessment of damages on the bond. There
is nothing in the Rules of Court which allows recovery of damages other than upon the bond
pledged by the party suing for an injunction. Section 9, Rule 58, limits recovery only upon the
bond, thus:
SEC. 9. Judgment to include damages against party and sureties. — Upon the trial the
amount of damages to be awarded to the plaintiff, or to the defendant, as the case may
be, upon the bond of the other party, shall be claimed, ascertained, and awarded under
the same procedure as prescribed in Section 20 of Rule 57. 5
It would be misreading the rule to allow damages beyond the amount of the bond. The bond,
under this rule, is the only protection conceded to the party restrained. Recovery cannot be made
beyond what the law permits.
the injunction has performed all that the law requires of him as a condition precedent to
obtaining it, what more can be asked? In return for the restrictions of the injunction, the
defendant has been given certain legal rights against the plaintiff by way of an
undertaking which, by virtue of the law itself, fully compensates him for the change of
position. The bond is full compensation for the privileges which the plaintiff receives and
for those which the defendant loses. The law says so. The statute asserts that the doing
of certain things by the plaintiff shall be a complete compensation to the defendant for
that which the law requires him to give up. If it is not complete compensation, then the
law is unjust, in that it requires the defendant to give up something for which he receives
no compensation. It is not to be presumed or believed that the legislature intended to do
such a thing, and it is not to be presumed or believed that it did do it. But, even, if the
law be unjust, an injustice of the law cannot be cured by an injustice to a party. The
giving of the undertaking legally equalizes the status of the two. To put upon the plaintiff
the additional burden of a trespass or other wrong would destroy the legal equilibrium
and produce an injustice.
Recovery of private respondent must therefore be limited to the amount of the bond. Where the
bond is insufficient in amount, the law expressly gives the party affected the recourse of excepting
thereto and provides for the dissolution of the injunction if "a bond sufficient in amount with
sufficient sureties approved after justification is not filed forthwith." 6
Because petitioner's bond is only for P1,000.00, it will not be sufficient to satisfy even the actual
damages suffered by private respondent. So it is that there is no imperative need to discuss
petitioner's assertion that only actual damages may be allowed.
This Court is therefore of the view that private respondent Atanacio Negre is entitled to recover
only upon the P1,000 cash deposit of petitioner.
UPON THE FOREGOING PREMISES, judgment is hereby rendered declaring that the P1,000 cash
deposit of petitioner be forfeited in favor of private respondent Atanacio Negre. The Clerk of this
Court is hereby ordered to deliver the amount to private respondent Atanacio Negre. The present
judgment shall form part of the September 28, 1968 judgment of this Court in the above-entitled
case. No costs in this instance. So ordered.

This principle is skillfully explained in Molina vs. Somes, supra, at pp. 64-65, thus:1äwphï1.ñët

The assertion by some text writers and courts that the one who sues out an injunction
without legal cause is liable on the theory that he wrongfully induced or moved the
court to take the action which it did, is, in our judgment, without stable foundation. He
who obtains a thing by permission of the law, and by strict compliance with the law,
ought not to be held liable in any manner except that specified in the law under which
he operates. He ought not to be held for a trespass or other wrong, as they assert he
may be in replevin, etc. How can it be logically said that one who, acting in good faith,
obtains an injunction or property under a replevin in precisely the manner required by
law has committed a legal wrong against the person as to whom the law authorizes him
to obtain the injunction? The law itself, by virtue of the conditions which it imposes, fully
protects the defendant against the evil effects of the injunction; and if the party securing
CIVPRO – RULE 58 – PRELIMINARY INJUNCTION – INJUNCTION AS A MAIN ACTION
G.R. No. 145328 March 23, 2006
EDUARDO F. HERNANDEZ, MA. ENCARBACION R. LEGASPI, JAIME BLANCO, JR., ENRIQUE BELO,
CARLOS VIAPLANA, CARL FURER, VIVENCIO TINIO, MICHAEL BRIGGS, ROSA CARAM, FAUSTO
PREYSLER, ROBERT KUA, GEORGE LEE, GUILLERMO LUCHANGCO, PETER DEE, LUISA MARQUEZ,
ANGELITA LILLES, JUAN CARLOS, HOMER GO, AMADEO VALENZUELA, EMILIO CHING, ANTONIO
CHAN, MURLI SABNANI, MARCOS ROCES, RAYMUNDO FELICIANO, NORMA GAFFUD, ALF HOLST,
LOURDES P. ROQUE, MANUEL DY, RAUL FERNANDEZ, VICTORIA TENGCO, CHI MO CHENG,
BARANGAY DASMARIÑAS, and HON. FRANCISCO B. IBAY, petitioners
vs.
NATIONAL POWER CORPORATION, respondent
DECISION
CHICO-NAZARIO, J.:
Although Presidential Decree No. 1818 prohibits any court from issuing injunctions in cases
involving infrastructure projects, the prohibition extends only to the issuance of injunctions or
restraining orders against administrative acts in controversies involving facts or the exercise of
discretion in technical cases. On issues clearly outside this dimension and involving questions of
law, this Court declared that courts could not be prevented from exercising their power to restrain
or prohibit administrative acts.1 In such cases, let the hammer fall and let it fall hard.
With health risks linked to exposure to electromagnetic radiation as their battle cry, petitioners, all
residents of Dasmariñas Village, are clamoring for the reversal of the decision 2 dated 3 May 2000
of the Court of Appeals in CA-G.R. SP No. 57849 as well as the resolution dated 27 September
2000, denying their motion for reconsideration.
The assailed decision3 of the Court of Appeals reversed the order of the Regional Trial Court of
Makati, issuing a writ of preliminary injunction against respondent National Power Corporation
(NAPOCOR) to stay the latter from energizing and transmitting high voltage electric current
through its cables erected from Sucat, Parañaque to Araneta Ave., Quezon City.
But, first, the facts:
Sometime in 1996, NAPOCOR began the construction of 29 decagon-shaped steel poles or towers
with a height of 53.4 meters to support overhead high tension cables in connection with its 230
Kilovolt Sucat-Araneta-Balintawak Power Transmission Project. Said transmission line passes
through the Sergio Osmeña, Sr. Highway (South Superhighway), the perimeter of Fort Bonifacio,
and Dasmariñas Village proximate to Tamarind Road, where petitioners’ homes are.
Said project later proved to be petitioners’ bane of existence.
Alarmed by the sight of the towering steel towers, petitioners scoured the internet on the possible
adverse effects that such a structure could cause to their health and well-being. Petitioners got
hold of published articles and studies linking the incidence of a fecund of illnesses to exposure to
electromagnetic fields. These illnesses range from cancer to leukemia.
Petitioners left no stones unturned to address their malady. They aired this growing concern to the
NAPOCOR, which conducted a series of meetings with them.
NAPOCOR received flak from Representative Francis Joseph G. Escudero, who in his Privilege
Speech dated 10 May 1999, denounced the cavalier manner with which Napocor ignored safety
and consultation requirements in the questioned project.
Petitioners brought their woes to the attention of Rep. Arnulfo Fuentebella, Chairman of the
House Committee on Energy, wherein NAPOCOR was asked to shed light on the petitioners’
problem. In a letter dated 8 November 1999, Napocor President Federico Puno stated that
NAPOCOR was still in the process of coming up with a "win-win" solution to the concerns of the
Dasmariñas Village and Forbes Park residents.4
In a letter dated 10 August 1999 addressed to Congressman Arnulfo P. Fuentebella, NAPOCOR’s
President wrote:
We have discussed the matter with the Dasmariñas and Forbes residents and we have come up
with four (4) options on how to address the problem, to wit:
Option Cost
Option 1: Transfer the line to Lawton Avenue P 111.84 million
(proposal of Dasmariñas/Forbes)
Option 2: Maintain 12 meters distance along P 77.60 million the village
Option 3: Construct an underground line P 482.00 million
Option 4: Reroute along C-5 and South Luzon P 1,018.83 million
Expressway (combination of overhead and underground) 5
Negotiations between petitioners and the NAPOCOR reached an impassé, with petitioners vying
for the relocation of the transmission lines to Fort Bonifacio on one hand, and the NAPOCOR
insisting on a 12-meter easement widening, on the other. 6
Thus, petitioners, on 9 March 2000 filed a Complaint 7 for Damages with Prayer for the Issuance of
a Temporary Restraining Order and/or a Writ of Preliminary Injunction against NAPOCOR. Harping
on the hazardous effects of exposure to electromagnetic radiation to the health and safety to
themselves and their families, petitioners, through the instant case, sought what they had failed to
achieve through amicable means with NAPOCOR and prayed, inter alia, for damages and the
relocation of the transmission lines to Lawton Avenue, Fort Bonifacio.
On 13 March 2000, Judge Francisco B. Ibay issued an order 8 in Civil Case No. 00-352, which
temporarily restrained the respondent from energizing and transmitting high voltage electric
current through the said project. The pertinent portion of the said order reads:
Acting on the plaintiffs’ "Urgent Omnibus Motion," it appearing that the subject area will be
energized by midnight tonight based on a report taken from Representative Joker P. Arroyo by
plaintiffs’ counsel, so as not to render moot and academic the instant case, as prayed for,
defendant National Power Corporation is ordered to maintain the status quo and/or be enjoined
from energizing and transmitting high voltage electric current through its cables for forty eight (48)
hours starting 4 o’clock in the afternoon today and ending 4 o’clock in the afternoon of 15 March
2000.9
By order10 of 15 March 2000, the trial court extended the restraining order for 18 more days.
NAPOCOR filed a Petition for Certiorari with Prayer for Temporary Restraining Order and
Preliminary Injunction with the Court of Appeals assailing the above order by the trial court.
Alluding to Presidential Decree No. 1818 (1981), "Prohibiting Courts from Issuing Restraining
Orders or Preliminary Injunctions in Cases Involving Infrastructure and Natural Resource
Development Projects of, and Public Utilities Operated by, the Government," particularly Sec. 1,
NAPOCOR stalwartly sought the dismissal of the case on the ground of lack jurisdiction.
Presidential Decree No. 1818 provides:
Section 1. No Court in the Philippines shall have jurisdiction to issue any restraining order,
preliminary injunction or preliminary mandatory injunction in any case, dispute, or controversy
involving an infrastructure project, or a mining, fishery, forest or other natural resource
development project of the government, or any public utility operated by the government,
including among other public utilities for transport of the goods or commodities, stevedoring and
arrastre contracts, to prohibit any person or persons, entity or government official from
proceeding with or continuing the execution or implementation of any such project, or the
operation of such public utility or pursuing any lawful activity necessary for such execution,
implementation or operation.
In the interregnum, by order dated 3 April 2000, the trial court ordered the issuance of a writ of
preliminary injunction against NAPOCOR.11 The trial court articulated that an injunction was
necessary to stay respondent NAPOCOR’s activation of its power lines due to the possible health
risks posed to the petitioners. Asserting its jurisdiction over the case, the trial court was of the
view that Presidential Decree No. 1818 and jurisprudence proscribing injunctions against
infrastructure projects do not find application in the case at bar because of the health risks
involved.
The trial court, thus, enjoined the NAPOCOR from further preparing and installing high voltage
cables to the steel pylons erected near petitioners’ homes and from energizing and transmitting
high voltage electric current through said cables while the case is pending final adjudication, upon
posting of the bond amounting to P5,000,000.00 executed to the effect that petitioners will pay all
the damages the NAPOCOR may sustain by reason of the injunction if the Court should finally
decide that the petitioners are not entitled thereto. 12
In light of the foregoing order of the trial court, the petition which NAPOCOR filed with the Court
of Appeals was later amended to include the prayer for the nullification and injunction of the
Order dated 3 April 2000 of the trial court.
In the challenged decision of 3 May 2000, the Court of Appeals reversed the trial court’s order,
with the following fallo:
WHEREFORE, premises considered, the instant petition for certiorari is hereby GRANTED. The
assailed orders of the respondent court, dated March 13, 2000 and April 3, 2000, are hereby
REVERSED and SET ASIDE.13
In the Court of Appeals’ rationale, the proscription on injunctions against infrastructure projects of
the government is clearly mandated by the above-quoted Section 1 of Presidential Decree No.
1818, as reiterated by the Supreme Court in its Circulars No. 2-91 and No. 13-93, dated 15 March
1991 and 5 March 1993, respectively.
As their motion for reconsideration was met with similar lack of success, petitioners, in a last
attempt at vindication, filed the present petition for review on the following arguments:
I.
Temporary restraining orders and preliminary injunctions were purposely designed to address
matters of extreme urgency where there is probability of grave injustice and irreparable injury.14
II.
The rule on preliminary injunction merely requires that unless restrained, the act complained of
will probably work injustice to the applicant or probably violate his rights and tends to render the
judgment ineffectual.15 (Emphasis in the original.)
Fundamental to the resolution of the instant petition is the issue of whether or not the trial court
may issue a temporary restraining order and preliminary injunction to enjoin the construction and
operation of the 29 decagon-shaped steel poles or towers by the NAPOCOR, notwithstanding
Presidential Decree No. 1818.
Petitioners clutch on their stand that Presidential Decree No. 1818 could not be construed to apply
to cases of extreme urgency as in the present case when no less than the rights of the petitioners
to health and safety hangs on the balance.
We find the petition to be imbued with merit.
Presidential Decree No. 1818 was issued on 16 January 1981, prohibiting judges from issuing
restraining orders against government infrastructure projects. In part, the decree says, "No court in
the Philippines shall have jurisdiction to issue any restraining order, preliminary injunction or
preliminary order, preliminary mandatory injunction in any case, dispute or controversy involving
an infrastructure project." Realizing the importance of this decree, this Tribunal had issued
different circulars to implement this particular law.
Presidential Decree No. 1818 16 prohibits courts from issuing injunctions against government
infrastructure projects. In Garcia v. Burgos,17 Presidential Decree No. 1818 was held to prohibit
courts from issuing an injunction against any infrastructure project in order not to disrupt or
hamper the pursuit of essential government projects or frustrate the economic development effort
of the nation.
While its sole provision would appear to encompass all cases involving the implementation of
projects and contracts on infrastructure, natural resource development and public utilities, this
rule, however, is not absolute as there are actually instances when Presidential Decree No. 1818
should not find application. In a spate of cases, this Court declared that although Presidential
Decree No. 1818 prohibits any court from issuing injunctions in cases involving infrastructure
projects, the prohibition extends only to the issuance of injunctions or restraining orders against
administrative acts in controversies involving facts or the exercise of discretion in technical cases.
On issues clearly outside this dimension and involving questions of law, this Court declared that
courts could not be prevented from exercising their power to restrain or prohibit administrative
acts.18
In the case at bar, petitioners sought the issuance of a preliminary injunction on the ground that
the NAPOCOR Project impinged on their right to health as enshrined in Article II, Section 15 of the
1987 Constitution, which provides:
Sec. 15. The State shall protect and promote the right to health of the people and instill
consciousness among them.
To boot, petitioners, moreover, harp on respondent’s failure to conduct prior consultation with
them, as the community affected by the project, in stark violation of Section 27 of the Local
Government Code which provides: "no project or program shall be implemented by government
authorities unless the consultations mentioned are complied with, and prior approval of the
Sanggunian concerned is observed."
From the foregoing, whether there is a violation of petitioners’ constitutionally protected right to
health and whether respondent NAPOCOR had indeed violated the Local Government Code
provision on prior consultation with the affected communities are veritable questions of law that
invested the trial court with jurisdiction to issue a TRO and subsequently, a preliminary injunction.
As such, these questions of law divest the case from the protective mantle of Presidential Decree
No. 1818.
Moreover, the issuance by the trial court of a preliminary injunction finds legal support in Section 3
of Rule 58 of the Rules of Court which provides:
Sec. 3. Grounds for issuance of preliminary injunction. - A preliminary injunction may be granted
when it is 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. (3a) (Emphasis supplied.)
The rule on preliminary injunction merely requires that unless restrained, the act complained of
will probably violate his rights and tend to render the judgment ineffectual.
Here, there is adequate evidence on record to justify the conclusion that the project of NAPOCOR
probably imperils the health and safety of the petitioners so as to justify the issuance by the trial
court of a writ of preliminary injunction.
Petitioners adduced in evidence copies of studies linking the incidence of illnesses such as cancer
and leukemia to exposure to electromagnetic fields. The records bear out, to boot, a copy of a
brochure of NAPOCOR regarding its Quezon Power Project from which will be supplying NAPOCOR
with the power which will pass through the towers subject of the controversy. The NAPOCOR
brochure provides that because of the danger concomitant with high voltage power, Philippine
laws mandate that the power lines should be located within safe distances from residences. And
the Quezon Power Project mandates an easement of 20 meters to the right and 20 meters to the
left which falls short of the 12-meter easement that NAPOCOR was proposing to petitioners.
Likewise on record, are copies of letters of Napocor President Federico Puno to Rep. Arnulfo
Fuentebella, Chairman of the House Committee on Energy, stating updates on the negotiations
being undertaken by the NAPOCOR and the Dasmariñas Village and Forbes Park residents. Also on
file is the Privilege Speech dated 10 May 1999 of Representative Francis Joseph G. Escudero, who
denounced the cavalier manner with which Napocor ignored safety and consultation requirements
in the questioned project.
With a member of Congress denouncing the subject project of NAPOCOR because of the very
same health and safety ills that petitioners now hew to in this petition, and with documents on
record to show that NAPOCOR made representations to petitioners that they are looking into the
possibility of relocating the project, added to the fact that there had been series of negotiations
and meetings between petitioners and NAPOCOR as well as related agencies, there is ample indicia
to suggest to the mind of the court that the health concerns of the petitioners are, at the very
least, far from imaginary.
Indeed, if there is no cause for concern, NAPOCOR would not have been stirred to come up with
options to address the woes of petitioners, nor would Congressman Escudero have fired away
those strong words of censure, assailing what to Congressman Escudero smacks of a "cavalier
manner by which the NAPOCOR has responded to earnest pleas for a review of its practice of
installing massive pylons supporting high tension cables in densely populated areas." 19
True, the issue of whether or not the transmission lines are safe is essentially evidentiary in nature,
and pertains to the very merits of the action below. In fact, petitioners recognize that the
conclusiveness of their life, health and safety concerns still needs to be proved in the main case
below and they are prepared to do so especially in the light of some studies cited by respondent
that yield contrary results in a disputed subject. Despite the parties’ conflicting results of studies
made on the issue, the possibility that the exposure to electromagnetic radiation causes cancer
and other disorders is still, indeed, within the realm of scientific scale of probability.
Equally important, we take judicial notice that the area alluded to as location of the NAPOCOR
project is a fragile zone being proximate to local earthquake faults, particularly the Marikina fault,
among other zones. This is not to mention the risks of falling structures caused by killer tornadoes
and super typhoons, the Philippines, especially Central Luzon, being situated along the typhoon
belt.
Moreover, the Local Government Code, requires conference with the affected communities of a
government project. NAPOCOR, palpably, made a shortcut to this requirement. In fact, there
appears a lack of exhaustive feasibility studies on NAPOCOR’s part before making a go with the
project on hand; otherwise, it should have anticipated the legal labyrinth it is now caught in.
These are facts, which the trial court could not ignore, and form as sufficient basis to engender the
cloud of doubt that the NAPOCOR project could, indeed, endanger the lives of the petitioners. A
preliminary injunction is likewise justified prior to a final determination of the issues of whether or
not NAPOCOR ignored safety and consultation requirements in the questioned project. Indeed, the
court could, nay should, grant the writ of preliminary injunction if the purpose of the other party is
to shield a wrongdoing. A ruling to the contrary would amount to an erosion of judicial discretion.
After all, for a writ of preliminary injunction to be issued, the Rules do not require that the act
complained of be in violation of the rights of the applicant. Indeed, what the Rules require is that
the act complained of be probably in violation of the rights of the applicant. Under the Rules of
Court, probability is enough basis for injunction to issue as a provisional remedy, which is different
from injunction as a main action where one needs to establish absolute certainty as basis for a
final and permanent injunction.
Pending the final determination of the trial court on the main case for damages, of whether or not
the NAPOCOR Project infringes on petitioners’ substantive right to health and pending
determination of the question of whether there was non-observance of the prior-consultation
proviso under the Local Government Code, it is prudent to preserve the status quo. In Phil. Ports
Authority v. Cipres Stevedoring & Arrastre, Inc.,20 we held:
A preliminary injunction is an order granted at any stage of an action prior to judgment of final
order, requiring a party, court, agency, or person to refrain from a particular act or acts. It is a
preservative remedy to ensure the protection of a party’s substantive rights or interests pending
the final judgment in the principal action. A plea for an injunctive writ lies upon the existence of a
claimed emergency or extraordinary situation which should be avoided for otherwise, the
outcome of a litigation would be useless as far as the party applying for the writ is concerned.
At times referred to as the "Strong Arm of Equity," we have consistently ruled that there is no
power the exercise of which is more delicate and which calls for greater circumspection than the
issuance of an injunction. It should only be extended in cases of great injury where courts of law
cannot afford an adequate or commensurate remedy in damages; "in cases of extreme urgency;
where the right is very clear; where considerations of relative inconvenience bear strongly in
complainant’s favor; where there is a willful and unlawful invasion of plaintiff’s right against his
protest and remonstrance, the injury being a continuing one, and where the effect of the
mandatory injunction is rather to reestablish and maintain a preexisting continuing relation
between the parties, recently and arbitrarily interrupted by the defendant, than to establish a new
relation." (Emphasis supplied.)
What is more, contrary to respondents’ assertion, there is not a single syllable in the circulars
issued by this Court enjoining the observance of Presidential Decree No. 1818, which altogether
and absolutely, ties the hands of the courts from issuing a writ of preliminary injunction. What
Circular 2-9121 dated 15 March 1991 seeks to enjoin is the indiscriminate issuance of court
injunctions. The same holds for Circular 13-93 22 dated 5 March 1993 and Circular 68-94. 23 And, in
Circular No. 7-99, judges are enjoined to observe utmost caution, prudence and judiciousness in
the issuance of temporary restraining order and in the grant of writs of preliminary injunction to
avoid any suspicion that its issuance or grant was for consideration other than the strict merits of
the case.24
There is not a hint from the foregoing circulars suggesting an unbridled prohibition against the
issuance of temporary restraining orders or preliminary injunctions.
In sum, what Presidential Decree No. 1818 aims to avert is the untimely frustration of government
infrastructure projects, particularly by provisional remedies, to the detriment of the greater good
by disrupting the pursuit of essential government projects or frustrate the economic development
effort of the nation. Presidential Decree No. 1818, however, was not meant to be a blanket
prohibition so as to disregard the fundamental right to health, safety and well-being of a
community guaranteed by the fundamental law of the land. 25
Lest we be misconstrued, this decision does not undermine the purpose of the NAPOCOR project
which is aimed towards the common good of the people. But, is the promotion of the general
welfare at loggerheads with the preservation of the rule of law? We submit that it is not. 26
In the present case, the far-reaching irreversible effects to human safety should be the primordial
concerns over presumed economic benefits per se as alleged by the NAPOCOR.
Not too long ago, the Court, in Metropolitan Manila Development Authority (MMDA) v. Bel-Air
Village Association, Inc.,27 upheld the validity of the writ of preliminary injunction issued by the
Court of Appeals enjoining the implementation of the Metropolitan Manila Development
Authority’s proposed action of opening of the Neptune Street to public vehicular traffic. We were
categorical -
Not infrequently, the government is tempted to take legal shortcuts to solve urgent problems of
the people. But even when government is armed with the best of intention, we cannot allow it to
run roughshod over the rule of law. Again, we let the hammer fall and fall hard on the illegal
attempt of the MMDA to open for public use a private road in a private subdivision. While we hold
that the general welfare should be promoted, we stress that it should not be achieved at the
expense of the rule of law.28
In hindsight, if, after trial, it turns out that the health-related fears that petitioners cleave on to
have adequate confirmation in fact and in law, the questioned project of NAPOCOR then suffers
from a paucity of purpose, no matter how noble the purpose may be. For what use will
modernization serve if it proves to be a scourge on an individual’s fundamental right, not just to
health and safety, but, ostensibly, to life preservation itself, in all of its desired quality?
WHEREFORE, the petition is granted. The decision dated 3 May 2000 of the Court of Appeals in CA-
G.R. SP No. 57849 is REVERSED as well as the resolution dated 27 September 2000. The Order
dated 3 April 2000 of the Regional Trial Court of Makati in Civil Case No. 00-352 is hereby
REINSTATED. No pronouncement as to costs
SO ORDERED.
CIVPRO – RULE 58 – PRELIMINARY INJUNCTION – NATURE AND PURPOSE
G.R. No. 106169 February 14, 1994
SAMSON T. SABALONES, petitioner,
vs.
THE COURT OF APPEALS and REMEDIOS GAVIOLA-SABALONES, respondents.
CRUZ, J.:
The subject of this petition is the preliminary injunction issued by the respondent court pending
resolution of a case on appeal. We deal only with this matter and not the merits of the case.
As a member of our diplomatic service assigned to different countries during his successive tours
of duties, petitioner Samson T. Sabalones left to his wife, herein respondent Remedios Gaviola-
Sabalones, the administration of some of their conjugal, properties for fifteen years.
Sabalones retired as ambassador in 1985 and came back to the Philippines but not to his wife and
their children. Four years later, he filed an action for judicial authorization to sell a building and lot
located at
#17 Eisenhower St., Greenhills, San Juan, Metro Manila, belonging to the conjugal partnership. He
claimed that he was sixty-eight years old, very sick and living alone without any income, and that
his share of the proceeds of the sale to defray the prohibitive cost of his hospitalization and
medical treatment.
In her answer, the private respondent opposed the authorization and filed a counterclaim for legal
separation. She alleged that the house in Greenhills was being occupied by her and their six
children and that they were depending for their support on the rentals from another conjugal
property, a building and lot in Forbes Park which was on lease to Nobumichi Izumi. She also
informed the court that despite her husband's retirement, he had not returned to his legitimate
family and was instead maintaining a separate residence in Don Antonio Heights, Fairview, Quezon
City, with Thelma Cumareng and their three children.
In her prayer, she asked the court to grant the decree of legal separation and order the liquidation
of their conjugal properties, with forfeiture of her husband's share therein because of his adultery.
She also prayed that it enjoin the petitioner and his agents from a) disturbing the occupants of the
Forbes Park property and b) disposing of or encumbering any of the conjugal properties.
After trial, Judge Mariano M. Umali, found that the petitioner had indeed contracted a bigamous
marriage on October 5, 1981, with Thelma Cumareng, to whom he had returned upon his
retirement in 1985 at a separate residence. The court thus decreed the legal separation of the
spouses and the forfeiture of the petitioner's share in the conjugal properties, declaring as well
that he was not entitled to support from his respondent wife. 1
This decision was appealed to the respondent court. Pendente lite, the respondent wife filed a
motion for the issuance of a writ of preliminary injunction to enjoin the petitioner from interfering
with the administration of their properties in Greenhills and Forbes Park. She alleged inter alia that
he had harassed the tenant of the Forbes Park property by informing him that his lease would not
be renewed. She also complained that the petitioner had disposed of one of their valuable
conjugal properties in the United States in favor of his paramour, to the prejudice of his legitimate
wife and children.
The petitioner opposed this motion and filed his own motion to prevent his wife from entering into
a new contract of lease over the Forbes Park property with its present tenant, or with future
tenants, without his consent.
After hearing, the Court of Appeals, in an order dated April 7, 1992, granted the preliminary
injunction prayed for by his wife.2
The petitioner now assails this order, arguing that since the law provides for a joint administration
of the conjugal properties by the husband and wife, no injunctive relief can be issued against one
or the other because no right will be violated. In support of this contention, he cites Art. 124 of the
Family Code, reading as follows:
Art. 124. The administration and enjoyment of the conjugal partnership
property shall belong to both spouses jointly. In case of disagreement, the
husband's decision shall prevail, subject to recourse to the court by the wife
for proper remedy, which must be availed of within five years from the date of
the contract implementing such decision.
In the event that one spouse is incapacitated or otherwise unable to
participate in the administration of the conjugal properties, the other spouse
may assume sole powers of the administration. These powers do not include
disposition or encumbrance without authority of the court or the written
consent of the other spouse. In the absence of such authority or consent, the
disposition or encumbrance shall be void. However, the transaction shall be
construed and the third person, and may be perfected as a binding contract
upon the acceptance by the other spouse or the authorization by the court
before the offer is withdrawn by either or both offerors.
He further notes that the respondent court failed to appoint an administrator of the conjugal
assets as mandated by Art. 61 of the Code, thus:
Art. 61 After the filing of the petition for legal separation, the spouses shall be
entitled to live separately from each other.
The court, in the absence of a written agreement between the spouses, shall
designate either of them or a third person to administer the absolute
community or conjugal partnership property. The administrator appointed by
the court shall have the same powers and duties as those of a guardian under
the Rules of Court.
The Court has carefully considered the issues and the arguments of the parties and finds that the
petition has no merit.
We agree with the respondent court that pending the appointment of an administrator over the
whole mass of conjugal assets, the respondent court was justified in allowing the wife to continue
with her administration. It was also correct, taking into account the evidence adduced at the
hearing, in enjoining the petitioner from interfering with his wife's administration pending
resolution of the appeal.
The law does indeed grant to the spouses joint administration over the conjugal properties as
clearly provided in the above-cited Article 124 of the Family Code. However, Article 61, also above
quoted, states that after a petition for legal separation has been filed, the trial court shall, in the
absence of a written agreement between the couple, appoint either one of the spouses or a third
person to act as the administrator.
While it is true that no formal designation of the administrator has been made, such designation
was implicit in the decision of the trial court denying the petitioner any share in the conjugal
properties (and thus also disqualifying him as administrator thereof). That designation was in
effect approved by the Court of Appeals when it issued in favor of the respondent wife the
preliminary injunction now under challenge.
The twin requirements of a valid injunction are the existence of a right and its actual or threatened
violation.5 Regardless of the outcome of the appeal, it cannot be denied that as the petitioner's
legitimate wife (and the complainant and injured spouse in the action for legal separation), the
private respondent has a right to a share (if not the whole) of the conjugal estate. There is also, in
our view, enough evidence to raise the apprehension that entrusting said estate to the petitioner
may result in its improvident disposition to the detriment of his wife and children. We agree that
inasmuch as the trial court had earlier declared the forfeiture of the petitioner's share in the
conjugal properties, it would be prudent not to allow him in the meantime to participate in its
management.
Let it be stressed that the injunction has not permanently installed the respondent wife as the
administrator of the whole mass of conjugal assets. It has merely allowed her to continue
administering the properties in the meantime without interference from the petitioner, pending
the express designation of the administrator in accordance with Article 61 of the Family Code.
WHEREFORE, the petition is DENIED for lack of merit. It is so ordered.

The primary purpose of the provisional remedy of injunction is to preserve the status quo of the
things subject of the action or the relations between the parties and thus protect the rights of the
plaintiff respecting these matters during the pendency of the suit. Otherwise, the defendant may,
before final judgment, do or continue doing the act which the plaintiff asks the court to restrain
and thus make ineffectual the final judgment that may be rendered afterwards in favor of the
plaintiff.3

As observed by Francisco, "Injunction is primarily a preventive remedy. Its province is to afford

relief against future acts which are against equity and good conscience and to keep and preserve
the thing in the status quo, rather than to remedy what is past or to punish for wrongful acts
already committed. It may issue to prevent future wrongs although no right has yet been
violated."4

The Court notes that the wife has been administering the subject properties for almost nineteen
years now, apparently without complaint on the part of the petitioner. He has not alleged, much
less shown, that her administration has caused prejudice to the conjugal partnership. What he
merely suggests is that the lease of the Forbes Park property could be renewed on better terms, or
he should at least be given his share of the rentals.

In her motion for the issuance of a preliminary injunction, the respondent wife alleged that the
petitioner's harassment of their tenant at Forbes Park would jeopardize the lease and deprive her
and her children of the income therefrom on which they depend for their subsistence. She also
testified the numerous . . . including various dollar accounts, two houses in Quezon City and Cebu
City, and a Mercedes Benz. The private respondent also complained that on June 10, 1991, the
petitioner executed a quitclaim over their conjugal property in Apple Valley, San Bernardino,
California, U.S.A., in favor of Thelma Cumareng, to improve his paramour's luxurious lifestyle to the
prejudice of his legitimate family.

These allegations, none of which was refuted by the husband, show that the injunction is
necessary to protect the interests of the private respondent and her children and prevent the
dissipation of the conjugal assets.
CIVPRO – RULE 58 – PRELIMINARY INJUNCTION – TERRITORIAL JURISDICTION TO ISSUE WRIT
G.R. No. L-30070 August 29, 1980
FEDERICO DECANO, petitioner-appellee,
vs.
ROMEO F. EDU, as Acting Commissioner of Land Transportation and CIPRIANO POSADAS, as
Acting Registrar, Land Transportation Commission, Dagupan City Agency, respondents-appellants.
TEEHANKEE, J.:
In this appeal, the Court upholds the jurisdiction of the Court of First Instance of Pangasinan over
the petition for "Mandamus and Injunction" filed by herein petitioner-appellee against
respondents-appellants, although the official station of the first named respondent, whose official
actuation is assailed, is in Quezon City which is outside the jurisdictional district of the said court.
The main issue raised is the correctness and legality of said national official's order dismissing
petitioner from the service of the Land Transportation Commission, and the power of judicial
review of the administrative decisions of national officials is not confined to the courts of first
instance of Metropolitan Manila where their offices are maintained to the exclusion of the courts
of first instance in those localities where the aggrieved parties reside and the questioned decisions
are sought to be enforced. The Court further affirms the decision of said court adjudging the order
of removal from office as null and void for having been issued by said respondent who was not the
appointing authority and had no authority to remove, since under the applicable law, the power to
remove petitioner was vested in the department head as the appointing authority.
The facts are undisputed.
On September 12, 1962, the then Undersecretary of Public Works and Communications issued to
Federico Decano, herein petitioner-appellee, a temporary appointment to the position of janitor in
the Motor Vehicles Office, 1 Dagupan City Agency, with compensation at the rate of P1,440.00 per
annum. The appointment having been approved by the Commissioner of Civil Service, the said
appointee assumed office on September 10, 1962 and he served therein for almost four years, or
until April 29, 1966 when herein respondent-appellant Cipriano Posadas, as Acting Registrar, Land
Transportation Commission, Dagupan City, received a telegram from respondent-appellant Romeo
F. Edu, in his then capacity as Acting Commissioner of Land Transportation Commission (LTC),
terminating his (Decano's) services effective as of the close of business on that day.
Shortly thereafter, the aggrieved petitioner-appellee filed before the Court of First Instance of
Pangasinan a petition for "Mandamus and Injunction" claiming that the aforementioned officials of
the LTC acted without power and in excess of authority in removing him from the service, and
therefore praying of the court to declare as null and void the order for his removal, to declare him
entitled to the position, to compel his reinstatement and payment of his regular salary, and to
enjoin, preliminary, and then permanently, respondents from disturbing, molesting or otherwise
ousting him from his position as janitor.
As prayed for, a writ of preliminary injunction was issued by the trial court at the commencement
of the proceedings commanding respondents "to desist and refrain from disturbing, molesting or
otherwise ousting the petitioner from his position as janitor in the Land Transportation
Commission, Dagupan City Agency, and to pay the petitioner his corresponding salary from the
date of notice of said preliminary injunction, until further orders from the Court."
After trial, while agreeing with respondent Edu that petitioner's appointment as janitor was
temporary and therefore the latter could be ousted from his position at any time with or without
cause, the lower court nevertheless declared in its judgment of October 29, 1968 that petitioner's
removal was null and void upon the ground that under the law, respondent Commissioner of Land
Transportation was not the appointing authority insofar as the position of petitioner and an other
minor positions in his office were concerned; and thus lacking the power of appointment, said
respondent had neither the power of removal.
Hence, this appeal interposed by respondents-appellants which we find to be not well taken.
There is no question that petitioner could be removed from office at any time, for it has been held
repeatedly 2 that the acceptance of a temporary appointment divests an appointee of the right to
security of tenure against removal without cause. it is readily apparent from petitioner's
appointment papers that the character of his term of office was "Temporary" and signed by the
then Undersecretary of Public Works and Communications. 3 He could therefore be removed at the
pleasure of the appointing official.
But this is not to say that petitioner could be removed by the respondent Commissioner of Land
Transportation since the latter was not the official who appointed him but the Undersecretary
acting for the Secretary of Public Works and Communications nor had said respondent been
granted by law the power of removal.
Per section 79(d) of the Revised Administrative Code, the provision then in force, it is the
department head, upon the recommendation of the chief of the bureau or office concerned, who
has the power to "appoint all subordinate officers and employees whose appointment is not
expressly vested by the law in the President of the Philippines; 4 and it is also the department head
who may remove or punish such employees, except as especially provided otherwise in the Civil
Service Law." 5 It appears that this provision has been precisely applied in the appointment of
petitioner, for upon the recommendation of the then Administrator of the defunct Motor Vehicles
Office, it was signed and issued by the Undersecretary of Public Works and Communications.
It should be further noted that after petitioner's aforementioned appointment as janitor in the
then Motor Vehicles Office, Republic Act No. 4136 known as the Transportation and Traffic Code
created the Land Transportation Commission from which law respondent Edu is supposed to have
derived his powers as Commissioner. Perusal of this law however shows nothing that vests in the
said commissioner any power to appoint or to remove employees in that new office. On the
contrary, the placement of said commission under the Department of Public Works and
Communications is specifically provided. 6 Hence, the power to appoint, and the corollary power to
remove, employees in the Land Transportation Commission thus remained with the Secretary of
Public Works and Communications. As generally the power to remove is inherent in the power to
appoint 7, it follows that the termination of petitioner's services by respondent Edu, who then had
no power to appoint, was without authority and therefore null and void.
In seeking reversal of the trial court's decision, respondents make capital of the fact that the
petition for mandamus with injunction was filed in the Court of First Instance of Pangasinan while
respondent Edu holds office in Quezon City which, they claim, is beyond the territorial jurisdiction
of the said court. Respondents cite the long line of cases from the 1960 case of Acosta vs. Alvendia
8
where this Court, pursuant to sec. 44 (h) of the Judiciary Act, jointly or alternatively with sec. 4,
Rule 65 of the Rules of Court and/or section 2 of Rule 58, ruled that a court of first instance has no
jurisdiction to require or control the execution of an act committed beyond the limits of its
territorial jurisdiction. These cases invariably involved petitions for writs of injunction seeking to
control the actions of courts or officers outside the territorial jurisdiction of the respondent courts
of first instance where said petitions had been filed. The Acosta ruling of non-jurisdiction does not
apply, however, to the facts and circumstances at bar.
Here, petitioner seeks primarily the annulment of the dismissal order issued by respondent Edu,
mandamus and injunction being then merely coronary remedies to the main relief sought, and
what is prayed to be enjoined, as in fact the trial court did enjoin by preliminary injunction, is the
implementation of the termination order against the petitioner. It is true that the order of
dismissal was issued by respondent Edu, but it was to be implemented in Dagupan City by his
subordinate officer, respondent Acting Registrar of the LTC stationed at Dagupan City. Insofar,
therefore, as respondent Edu is concerned, the order terminating the services of respondent was a
fait accompli and this he had done without authority, as earlier discussed. The injunction is
question, consequently, must be taken only to restrain the implementation of respondent Edu's
order by his co-respondent whose official station at Dagupan City is within the territorial
boundaries of the trial court's jurisdictional district.
Thus, in Director of the Bureau of Telecommunications vs. Aligaen, et al., 9 in which the acts sought
to be controlled by "Injunction with Preliminary Injunction" were relative to the establishment of a
local telephone system being done within the territorial boundaries of the judicial district of the
Court of First Instance of Roxas, the Court similarly upheld the jurisdiction of the Court of First
Instance of Roxas over the petition, although two of the respondents named therein the Director
of the Bureau of Telecommunications, and the Regional Superintendent of Region IV of the Bureau
of Telecommunications — had their official stations at Manila and Iloilo City, respectively, as
follows:
... In the instant case, the acts relative to the establishment of a local telephone system by
petitioners were being done within the territorial boundaries of the province or district of
respondent Court, and so said Court had jurisdiction to restrain them by injunction. It does not
matter that some of the respondents in the trial court, at whom the injunction order was issued,
had their official 'residence outside the territorial jurisdiction of the trial court. In the case of
Gonzales vs. Secretary of Public Works, et al., (G.R. No. L-21988, September 30, 1966, 18 SCRA
296), wherein the only question raised was whether the Court of First Instance of Davao had
jurisdiction to entertain a case the main purpose of which was to prevent the enforcement of a
decision of the Secretary of Public Works who was in Manila this Court held that, inasmuch as
the acts sought to be restrained were to be performed within the territorial boundaries of the
province of Davao, the Court of First Instance of Davao had jurisdiction to hear and decide the
case, and to issue the necessary injunction order. This Gonzales case was an action for certiorari
and prohibition with preliminary injunction and/or preliminary mandatory injunction to prevent
the demolition of Gonzales' dam in Davao in compliance with the order of the Secretary of
Public Works.
It follows, therefore, that since the acts to be restrained were being done in Roxas City, or within
the territorial jurisdiction of respondent court, the latter had jurisdiction to restrain said acts
even if the office of respondent Director of the Bureau of Telecommunications is in Manila, and
that of respondent Regional Superintendent of Region IV is in Iloilo City.
As in the above-cited case of Aligaen, the national official stationed at Quezon City, namely,
respondent Commissioner Edu, was impleaded as respondent in the Pangasinan court for a
complete determination of the issues involved, the legality of Edu's order of dismissal being the
pivotal issue to determine the merits of the mandamus and injunction aspects of the petition. In
other words, Mr. Edu was joined as respondent not for injunction purposes but mainly for testing
the legality of his dismissal order and his transmittal thereof to his corespondent registrar at
Dagupan City to implement the same and terminate the services of the petitioner in Dagupan City.
As held by the Court in the 1965 case of Gayacao vs. The Honorable Executive Secretary, etc, et al.,
10
where the issue is the correctness of a national official's decision, the provincial courts of first
instance have equal jurisdiction with the Manila courts to review decisions of national officials, as
otherwise litigants of ted means would practically be denied access to the courts of the localities
where the reside and where the questioned acts are sought to be enforced. Thus, Justice J.B.L.
Reyes stressed on behalf of the Court that —
A careful analysis of the allegations made in the petition wig show that the petitioner's principal
complaint was that the decision of the Director of Lands, as affirmed by the Secretary of
Agriculture and the Executive Secretary, was contrary to law in giving retroactive application to
Lands Administrative Order No. 7-1. In other words, the remedy sought was the judicial review
of the administrative decision in question and its annulment on account of errors of law
allegedly committed. ...
The doctrines invoked in support of the theory of non-jurisdiction (Castano vs. Lobingier, 7 Phil.
91; Acosta vs. Alvendia, L-14958, Oct. 31, 1960; Samar Mining Co. vs. Arnado, L-17109, June 30,
1961) are inapplicable, in that those cases involved petitions for writs of injunction seeking to
control the actions of courts or officers outside the territorial jurisdiction of the respondent
courts involved. Here the sole point in issue is whether the decision of the respondent public
officers was legally correct or not and without going into the merits of the case, we see no
cogent reason why this power of judicial review should be confined to the courts of first instance
of the locality where the offices of respondents are maintained, to the exclusion of the courts of
first instance in those localities where the plaintiffs reside, and where the questioned decisions
are being enforced.
It is easy to see that if the contested ruling of the court below is sustained, the same would
result not only in hardship to litigants of limited means, practically amounting to denial of
access to the courts, but would also unnecessarily encumber the Manila courts whose dockets
are already over — burdened. Actually, since Ortua vs. Singson, 59 Phil. 440, the power of
provincial courts of first instance to review administrative decisions of national officials has been
consistently recognized.
While the petitioner herein also prayed that the land authorities be ordered to reinstate her
original application, such remedy is purely a corollary to the main relief sought; for, as the
allegations now stand, reversal' of the questioned administrative decision would necessarily lead
to the same result.
Respondents finally raise a technical point referring to the allegedly defective verification of the
petition filed in the trial court, contending that the clause in the verification statement "that I have
read the contents of the said petition; and that [to] the best of my knowledge are true and
correct" is insufficient since under section 6 of Rule 7, 11 it is required that the person verifying
must have read the pleading and that the allegations thereof are true of his own knowledge. We
do not see any reason for rendering the said verification void. The statement "to the best of my
knowledge are true and correct" referring to the allegations in the petition does not mean mere
"knowledge, information and belief." It constitutes substantial compliance with the requirement of
section 6 of Rule 7, as held in Madrigal vs. Rodas. 12 At any rate, this petty technicality deserves
scant consideration where the question at issue is one purely of law and there is no need of
delving into the veracity of the allegations in the petition, which are not disputed at all by
respondents. As we have held time and again, imperfections of form and technicalities of
procedure are to be disregarded except where substantial rights would otherwise be prejudiced.
ACCORDINGLY, the decision appealed from is hereby affirmed.
CIVPRO – RULE 58 – PRELIMINARY INJUNCTION – ACTS CONSUMMATED MAY
NOT BE ENJOINED – EXCEPTIONS
G.R. No. 119511 November 24, 1998
WILFREDO P. VERZOSA and PILAR MARTINEZ, petitioners,
vs.
COURT OF APPEALS, HON. NICODEMO FERRER, and FE GIRON USON, respondents.
PANGANIBAN, J.:
What constitutes the status quo ante in the application of an injunctive writ, in the event a
complaint's subsequently amended?
The Case
This is the main question raised in the present Petition for Review seeking to set aside the
consolidated January 31, 1994 Decision 1 of the Court of Appeals2 in CA-GR SP No. 26626 and CA-
GR SP No. 27300, which dismissed the petitions in this wise:
Succinctly put, petitioners have failed to show any grave abuse of discretion, or any act without
or in excess of jurisdiction, on the part of respondent judge in issuing the assailed orders.
WHEREFORE, the instant petitions are hereby dismissed for lack of merit.
Also assailed is the public respondent's February 28, 1995 Reconsideration 3 denying the Motion for
Reconsideration.
Facts of the Case
The undisputed facts, as narrated by the Court of Appeals (CA) and reiterated by petitioners, are as
follows:4
Records reveal that Fe Giron Uson is the owner of a parcel of land consisting of 19,955 square
meters located at Baquioen, Sual, Pangasinan, covered by O.C.T. No. 12783. She mortgaged the
land to Wilfredo Verzosa.
Fe Uson failed to pay her entire obligation to Verzosa, prompting the latter to have the mortgage
foreclosed. On July 21, 1988, the Provincial Sheriff of Pangasinan set the foreclosure sale on
August 17, 1988 at 10:00 A.M.
To prevent the Office of the Provincial Sheriff from proceeding with the foreclosure sale, Fe
Uson, on August 12, 1988, filed with the Regional Trial Court, Branch 37, Lingayen, Pangasinan, a
complaint against Wilfredo Verzosa and the Provincial Sheriff, docketed as Civil Case No. 16590,
for annulment of mortgage with prayer for the issuance of a writ of preliminary injunction.
On August 22, 1988, defendant Verzosa filed a motion to dismiss the complaint.
On June 8, 1989, the complaint was dismissed on the ground that it was not personally verified
by plaintiff Fe Uson.
On June 27, 1989, Fe Uson filed a motion for reconsideration which was granted by the court.
On June 29, 1989, she filed her amended complaint which bears the proper verification.
Meantime, Verzosa wrote the Provincial Sheriff to proceed with the foreclosure of mortgage.
Whereupon, Fe Uson, through counsel, wrote the Provincial Sheriff requesting him to
discontinue the foreclosure sale in deference to "the said pending case and to the action to be
taken by the Honorable Presiding Judge of the Court.
On July 4, 1989, the foreclosure sale was conducted by the sheriff. The property was sold to
Verzosa being the highest bidder. Thereafter, the Sheriff's Certificate of Sale was approved by
Executive Judge Antonio Belen and issued to Verzosa.
On September 5, 1989, the trial court issued an order admitting the amended complaint of Fe
Uson.
At this point, Verzosa filed with the Court of Appeals CA-G.R. SP No. 18898 for certiorari. He
alleged that the said order, admitting the amended complaint was issued with grave abuse of
discretion.
On June 20, 1990, the Sheriffs Certificate of Sale was registered in the Registry of Deeds of
Alaminos, Pangasinan.
On July 5, 1990, or after the expiration of the redemption period of one year, the defendant
Sheriff issued the Sheriff's Final Deed of Sale. Thus, O.C.T. No. 12783 in Fe Uson's name was
cancelled and in lieu thereof, T.C.T. No. 11087 was issued in the name of Wilfredo Verzosa.
On July 12, 1990, Verzosa sold the land to Pilar Martinez. As a result, Verzosa's T.C.T. No. 11087
was cancelled and T.C.T. No. 11107 was issued to Martinez.
Meantime, on October 16, 1990, or after one year from the filing of Verzosa's petition for
certiorari with the Court of Appeals, the said court dismissed the petition, thus sustaining the
validity of respondent court's order dated September 5, 1989 admitting Fe Uson's amended
complaint.
On May 20, 1991, Fe Uson filed her second amended complaint impleading as additional
defendants the Register of Deeds of Alaminos, Pangasinan and Pilar Martinez and praying,
among others, the annulment of the latter's title — T.C.T. No. 11107.
 On August 20, 1991, upon Uson's application for preliminary injunction embodied in her Second
Amended Complaint (which was opposed by Verzosa and Martinez), respondent court issued an
order directing the latter to cease and desist from entering, making constructions and
performing any act of possession or ownership over the land in question covered by O.C.T. No.
12783, upon posting by plaintiff Uson of a bond of P10,000.00.
Defendant Martinez filed a motion for consideration which was denied on September 18, 1991.
On October 30, 1991, after hearing and upon posting of a bond in the amount of P10,000.00 by
Uson, respondent Judge issued an order directing defendants Verzosa and Martinez and/or any
and other persons acting under their command to desist and cease from entering, intruding and
making constructions on the land covered by O.C.T. No. 12783.
On November 22, 1991, respondent judge, acting on Verzosa's motion for clarification of the
order dated September 18, 1991, issued an order to the effect that the status quo being
maintained is the possession of plaintiff Fe Uson of the land and that such status quo does not
refer to defendant Pilar Martinez being the registered owner of T.C.T. No. 11107.
It should be noted that the Complaint alleged that Private Respondent Uson mortgaged the
property to Verzosa for P25,000, and that the remaining, unpaid balance was P915.75, an amount
she was willing to consign to the trial court.5
Petitioners challenged by certiorari the two orders of the trial court. Because the CA dismissed
their petition, petitioners availed themselves of the present recourse. 6
Public Respondent's Ruling
In dismissing the petition for certiorari, the Court of Appeals held that "the last peaceable
uncontested status that preceded the controversy [was] that point . . . when private respondent Fe
Uson was the registered owner of the land in dispute mortgaged to petitioner Verzosa. As owner
of this property, Fe Uson has every right to protect her rights as such. Clearly, the issuance of the
writ would certainly preserve that status quo."7
In debunking petitioners' theory that the status quo referred to the period when Martinez had
already purchased the property from Verzosa, the Court of Appeals held that "the property was
registered in her name two years after the start of the controversy, or when private respondent
filed her complaint against Verzosa." 8 Thus, the CA sustained the following findings of the trial
court:9
For as long as the instant case (Civil Case No. 16590) remains pending, no act of the defendants
subsequent to the filing of this case can make TCT No. 11107 in the name of defendant Pilar
Martinez, and the alleged possession of the latter of the property in question, valid and be
considered the status quo."
Issues
Petitioners raise the following issues for the consideration of the Court: 10
I The Court of Appeals erred in not taking into account or dealing squarely with the nature,
effects and proper interpretation and/or application of the doctrine on amendment of
pleadings/complaints to the instant case.
II The Court of Appeals erred when it concurred with the Respondent judge that the status quo
should be reckoned at the time of the filing of the original complaint.
III The Court of Appeals erred when it completely disregarded the legal implications and effects
of foreclosure, foreclosure sale, expiration of the redemption period, the consolidation of
ownership to your petitioner and the sale to Pilar Martinez.
IV The Court of Appeals erred when it concurred with the respondent judge in granting an
injunction to restrain consummated acts, and in forcing a transfer of possession from Pilar
Martinez to private respondent Fe Uson who has not shown her right thereto.
The present controversy hinges on two questions. First, is private respondent entitled to an
injunctive writ? Second, what is the status quo ante that the said writ seeks to preserve?
The Court's Ruling
The petition is devoid of merit.
First Issue:
Issuance of the Injunctive Writ
Petitioners primarily allege that the injunctive writ was wrongfully issued in favor of private
respondent, as the latter had a doubtful, unclear and unadjudicated right for recovery of the
property which had been mortgaged, foreclosed and sold to a third party. We disagree.
An injunctive writ may be issued when the following requisites are established:
1. The invasion of the right is material and substantial;
2. The right of complainant is clear and unmistakable;
3. There is an urgent and permanent necessity for the writ to prevent serious damage. 11
The foregoing requisites are present in this case. The undisputed owner of the property which was
mortgaged to Petitioner Verzosa was private respondent who, upon learning of the scheduled
foreclosure, immediately filed a Complaint to annul the mortgage, praying that a restraining order
be issued to restrain such foreclosure. Private respondent insisted that she had paid her P25,000
debt, except for the remaining unpaid balance of P915.75 which she was willing to consign to the
court. In other words, she had title to and possession of the property and she claimed to have paid
her obligation, except for the nominal unpaid balance which she was willing to consign judicially.
Hence, she had a clear and unmistakable right to protect her title to and possession of the
mortgaged property by enjoining the foreclosure sale.
Given the above factual allegations, it is clear that private respondent was entitled to the
injunctive writ.
Second Issue: Status Quo Ante
The "status quo" is the last actual peaceful uncontested situation which precedes a controversy,
and its preservation is the office of an injunctive writ. 12 Petitioners insist that the status quo refers
to the point when Pilar Martinez was already the owner of the property, having purchased it from
Verzosa.
We cannot sustain the petitioners, for Martinez' claim to the property is precisely the bone of
contention. Private respondent, the origin owner of the property, filed a Complaint against
Wilfredo Verzosa and the provincial sheriff for the annulment of mortgage and the issuance of an
injunctive writ to prevent the foreclosure of the property and the subsequent transfer of
ownership. Although the Complaint was subsequently amended, the controversy began when the
first Complaint was filed.
Nevertheless, Petitioner Verzosa and the sheriff proceeded with the foreclosure before the filing of
the Amended Complaint. Worse, Verzosa sold the property to Martinez one week later. Now,
Verzosa and Martinez claim that the status quo to be preserved refers to the time before the filing
of the second Complaint and after Martinez had acquired the property from Verzosa.
Petitioners contend that the controversy started only when the Amended Complaint was filed,
because the previous Complaints were expunged from the records. Petitioners invoke Ruymann v.
Director of Lands, 13 in which the Court ruled that the filing of an amended pleading does not
retroact to the date of the filing of the original. Citing other jurisprudence, such as Waje v. Court of
Appeals 14 and Paradise v. Ng, 15 petitioners contend that the original pleading is deemed
abandoned when it is amended.
The cited cases offer scant support to the thesis of petitioners. In Ruymann, the Court held that
"an amendment to a complaint which introduces a new or different cause of action, making a new
or different demand, is equivalent to a fresh suit upon a new cause of action, and the statute of
limitations continues to run until the amendment is filed." 16 In the said case, a complaint for
injunction was amended to include a larger tract of land which had not been included in the
original suit. The Court held that "the suit will be deemed to have been commenced upon the date
of amendment, in determining whether the defendant had acquired title by adverse possession to
the portion of the tract of land not included in the original complaint (Montgomery v. Shaver, 40
Oregon 244)." 17 It is clear therein that the Complaint was amended to include a new or different
cause of action or demand; hence, it was as if a new complaint was filed.
It follows that when the amended complaint does not introduce new issues, causes of action, or
demands, the suit is deemed to have commenced on the date the original complaint was filed, not
on the date of the filing of the amended complaint. In other words, for demands already included
in the original complaint, the suit is deemed to have commenced upon the filing of such original
complaint. In short, for purposes of determining the commencement of a suit, the original,
complaint is deemed abandoned and superseded by the amended complaint only if the amended
complaint introduces a new or different cause of action or demand.
Hence, it has been held that "an amendment which merely supplements and amplifies the facts
originally alleged relates back to the date of the commencement of the action and is not barred by
the statute of limitations, the period of which expires after service of the original complaint but
before service of amendment." 18 It is the actual filing in court that controls and not the date of the
formal admission of the amended pleading. 19 The Court in Republic v. Marsman 20 elucidated:
While in the procedural sense, especially in relation to the possible necessity of and time for the
filing of responsive and other corresponding pleadings, an amended complaint is deemed filed
only as of the date of its admission, . . ., the self-evident proposition [is] that for practical
reasons and to avoid the complications that may arise from undue delays in the admission
thereof, such an amended complaint must be considered as filed, for the purpose of such a
substantive matter as prescription, on the date it is actually filed with the court, regardless of
when it is ultimately formally admitted by the court. After all, the only purpose of requiring
leave of and formal admission by the court of an amended pleading after issues have already
been joined as to the original ones is to prevent the injection of other issues which ought either
to be considered as barred already or made the subject of another proceeding, if they are not
anyway indispensable for the resolution of the original ones and no unnecessary multiplicity of
suits would result; so, when the court ultimately admits the amendment, the legal effect, for
substantive purposes, of such admission retroacts as a rule to the date of its actual filing.
In the instant case, the Amended Complaint did not introduce a new or different cause of action or
demand. The original Complaint was amended only to rectify the lack of verification and thereafter
to implead Martinez, who had purchased the contested property from Verzosa.
In the same vein, Waje and Paradise do not apply because the Amended Complaints therein
alleged new causes of action.
Similarly unavailing is petitioners' contention that the injunctive writ was applied retroactively and,
hence, violative of Ruymann and other subsequent cases. To repeat, Ruymann was wrongly
applied by petitioners. There being no new issues introduced in the Amended Complaint herein,
the present suit is deemed to have commenced on the date of the filing of the original Complaint.
Hence, the CA was correct in upholding the trial court that the status quo was the situation of the
parties at the time of the filing of the original Complaint.
Finally, petitioners assert that Respondent Court violated the well-entrenched doctrine that
consummated acts can no longer be restrained by injunction. As earlier noted, despite the fact
that Pilar Martinez already had title to and possession of the disputed property, the CA affirmed
the order of the trial court enjoining her from "entering, intruding and making construction and/or
performing any act of ownership or possession and any activity over the
land . . .; " Petitioners cite the following ruling in Reyes v. Harty: 21
It is a universal principle of the law that an injunction will not issue to restrain the performance
of an act already done. It is undisputed proof in this case, presented by the plaintiffs themselves,
that, at the time this [case] was tried, the plaintiffs had been completely dispossessed, the
defendant being in full and complete possession of the lands in question . . . .
Again, the case cited by petitioner is incongruous with the factual milieu of the present
controversy. In that case, the party praying for an injunctive writ had been completely
dispossessed of the land in question prior to the commencement of the action. In the case at bar,
private respondent was still the owner and was in possession of the property at the time the SO ORDERED.
original Complaint was filed. The rule is that a court should not by means of preliminary injunction
transfer the property in litigation from the possession of one party to another where the legal title
is in dispute and the party having possession asserts ownership thereto. 22 When private
respondent filed the original Complaint, she had title to and possession of the property and was
asserting ownership thereto.

Where the acts have been performed prior to the filing of the injunction suit, the general rule is
that consummated acts can no longer be restrained by injunction. However, "where the acts are
performed after the injunction suit is brought, a defendant may not as [a matter] of right proceed
to perform the acts sought to be restrained and then be heard to assert in the suit that the
injunction will not lie because he has performed these acts before final hearing has been had, but
after the beginning of the action. A defendant thus acts at his peril." 23 It has been held that "[t]he
general rule of law is that, where a defendant completes, after the beginning of an action, the act
thereby sought to be restrained, and before the issue of any final order or decree, the court has
the power to, and may, compel, by a mandatory injunction, the restoration of the former condition
of things and thereby prevent the giving of an advantage by reason of the wrongful act. And where
a defendant does an act thus sought to be restrained, he proceeds at his peril, and the court in
which the action is pending may compel a restoration of the former status or grant to the plaintiff
such relief as may be proper." 24

In this case, an action was brought to enjoin Petitioner Verzosa from proceeding with the
mortgage sale, yet he proceeded to do so while the action was still pending. Such conduct is
reprehensible. "If one in the face of a pending suit for injunction, does the thing sought to be
enjoined, he cannot thus outwit equity and the court, but must restore the status quo. . . . Even
where an injunction has not been issued, if the suit is one for injunction, the defendant, if he does
the thing sought to be enjoined does so at his peril." 25 Hence, in proceeding with the mortgage
sale and subsequently selling the property to Pilar Martinez, Petitioner Verzosa was acting at his
peril.

Clearly, the Respondent Court did not err in sustaining the Decision of the lower court that the
status quo to be maintained was the situation when title to and possession of the property were
still with Private Respondent Uson. The precise ruling of the appellate court is aptly reproduced
hereunder:

When the present Civil Case No. 16590 was commenced on August 12, 1988, the property in
dispute was still covered by Original Certificate of Title No. 12783, in the name of plaintiff Fe
Giron Uson, and there is no dispute that the possession of the said property was still with the
plaintiff. That is the status quo sought to be maintained in the questioned preliminary injunction.
It is, therefore, incorrect for defendant Wilfredo P. Verzosa to claim that the status quo refers to
Transfer Certificate of Title No. 11107 in the name of Pilar Martinez, which is precisely what is
sought to be annul[l]ed in the present case, and that the possessor of the property is defendant
Pilar Martinez who may possibly have entered into the property while the present case has long
been pending, and by virtue of the purported sale of the same to her by defendant Verzosa,
whose claim of ownership thereof is, in turn, based on the sheriff's sale which is also the very
subject matter of the present case for annulment. 26

WHEREFORE, the petition is DENIED for lack of merit and the assailed Decision of the Court of
Appeals is AFFIRMED.
CIVPRO – RULE 58 – PRELIMINARY INJUNCTION – WHEN INJUNCTION IS
IMPROPER
G.R. No. 93640 January 7, 1994
TAY CHUN SUY, petitioner,
vs.
COURT OF APPEALS AND DEVELOPMENT BANK OF THE PHILIPPINES, respondents.
BELLOSILLO, J.:
As between the buyer of a vessel at a prior extrajudicial foreclosure and the buyer at a subsequent
auction sale, both buyers failing to register their transactions, who has a better right of dominion
over the vessel?
On 9 May 1978, Sta. Clara Lumber Co., Inc. (SCLC), obtained a loan of P18,514,357.56 from private
respondent Development Bank of the Philippines (DBP). As security for the loan, SCLC mortgaged
some of its properties, among which was a vessel, MV Sta. Clara I . Upon SCLC's failure to pay the
loan, the mortgage was foreclosed. On 18 August 1982, the Clerk of Court and Provincial Sheriff Ex-
Officio of Sultan Kudarat, Aurelio M. Rendon, conducted an auction sale and sold the vessel to DBP
for P3,600,000.00. He thereafter issued a certificate of sale dated 18 August 1982 in favor of DBP. 1
However, DBP did not register with the Philippine Coast Guard the mortgage; neither the
foreclosure nor the auction sale.
In December 1983, DBP and Sta. Clara Housing Industries, Inc. (SCHI), entered into a
Lease/Purchase Agreement 2 which provided that DBP should lease some of the former properties
of SCLC, including MV Sta. Clara I, to the latter and transfer actual ownership over these properties
upon completion by the lessee of the stipulated lease/purchase payment.
On 10 July 1986, petitioner caused the levy and attachment of the same vessel, MV Sta. Clara I, in
order to satisfy a judgment rendered by the Regional Trial Court, Br. XII, Davao City, in Civil Case
No. 15970, "Tay Chun Suy v. Sta. Clara Lumber Co., Inc." At the time of the levy, the coastwise
license of the vessel was in the name of Sta. Clara Lumber Co., Inc.
On the scheduled date of the execution sale, Atty. Necitas Kintanar, counsel for SCHI, verbally
informed Deputy Sheriff Manases M. Reyes, Jr., who was to conduct the sale, that MV Sta. Clara I
was no longer owned by SCLC but by DBP pursuant to a prior extrajudicial foreclosure sale. Despite
such information, Sheriff Reyes, Jr., proceeded with the sale and awarded the vessel to petitioner
for P317,000.00.3
Meanwhile, on 23 July 1986, MV Sta. Clara I was again levied upon and attached by Deputy Sheriff
Alfonso M. Zamora by virtue of a writ of attachment issued by the Regional Trial Court, Br. XI, Cebu
City, in Civil Case No. CEB-5162, "Philippine Trigon Shipyard Shipping Corp. v. Sta. Clara Housing
Industries, Inc., et al." 4 On 24 July 1986, the same court issued an order appointing Philippine
Trigon Shipyard Shipping Corporation as depository of the attached vessel with authority to
operate the vessel temporarily. MV Sta. Clara I was then taken from the port of Davao City to Cebu
City.
Upon being informed of the execution sale to petitioner, DBP filed a complaint before the Regional
Trial Court, Br. XVII, Davao City, for annulment of the execution sale, recovery of possession,
damages and attorney's fees with prayer for restraining order and preliminary injunction. 5
Petitioner moved to dismiss the complaint for alleged lack of jurisdiction, cause of action and/or
legal personality to sue on the part of DBP. 6
On 28 October 1986, the court denied the motion to dismiss but granted DBP's prayer for a writ of
preliminary injunction. 7 Petitioner moved for reconsideration of the denial but on 19 November
1986, the motion was likewise denied. 8
Forthwith, petitioner filed with the Court of Appeals a petition for certiorari and mandamus with
prohibition assailing the Orders of 28 October and 19 November 1986 of the trial court. On 11
March 1987, the Court of Appeals dismissed the petition. 9
Petitioner appealed to this Court by way of a petition for review on certiorari, docketed as G.R. No.
78383, "Tay Chun Suy vs. Development Bank of the Philippines, et al." In the resolution of 28
September 1987 (not 30 September 1987), the Third Division of this Court denied the petition for
lack of merit. 10
On 4 December 1987, the trial court issued a decision which, among other matters, declared that
DBP was the lawful owner of MV Sta. Clara I and that the public auction sale conducted by Deputy
Sheriff Manases Reyes, Jr., on 16 July 1986 and the resultant certificate of sale were null and void.
11
On 16 December 1987, petitioner sought recourse to the Court of Appeals. On 28 February 1990,
the appellate court dismissed his appeal. 12 On 23 May 1990, the motion to reconsider the
dismissal was denied. 13
Hence, this petition for review on certiorari. Petitioner contends that the Court of Appeals erred
(1) in finding that the sheriff's auction sale of the vessel did not enjoy the presumption of
regularity; and (2) in affirming the decision of the trial court declaring DBP as the true and
exclusive owner of MV Sta. Clara I. 14
Well-entrenched is the rule that factual findings of the trial court, as well as those of the Court of
Appeals, are entitled to great weight and respect. 15 This rule once more finds application in the
case at bar.
The records show that SCHI, lessee of the vessel, is an entity separate from SCLC, and was not a
party to the case filed by petitioner against the latter. 16 Yet, SCHI was furnished, on a Saturday,
copy of the auction sale of MV Sta. Clara I . Sta. Clara Lumber Co., Inc., which was the proper party,
does not appear to have been notified. Upon being informed of the auction sale, counsel for SCHI
immediately went to the auction site and requested that the sale be reset that day on the ground
that SCLC was no longer the owner of the vessel. To support this claim, the Manager of SCHI
hurriedly left for her office to secure a copy of the certificate of sale in favor of DBP as this was
demanded by the sheriff. 17
Given the circumstances obtaining in this case, a delay of a few hours could not have prejudiced Q: Atty. Positos, counsel for the defendant also bidded, it seems to me?
petitioner. A sheriff's ministerial duty to conduct an auction sale is not without any limitation. In Sheriff Reyes, Jr.:
the performance of this duty, he is deemed to know what is inherently right and inherently wrong. A: That is, Atty. Positos was present.
Nonetheless, Sheriff Reyes, Jr., upon the persistent proddings of petitioner, proceeded with the Q: After the word — Present: is the word Plaintiff (Bidder), are we to understand or are we
auction sale. His poor judgment alone would not have caused any suspicion of bias. However, his made to believe that these people here bidded because there are amounts corresponding to
precipitate action taken together with the anomalous proceedings that ensued, and the haste with their names?
which he delivered the certificate of sale to petitioner in the afternoon of the day of the auction A: No, actually Mr. Ang, Mr. Arceo and the plaintiff bidded actually during the auction sale.
sale lead to the inevitable conclusion that the whole operation was contrived to benefit petitioner. Q: Why is it that corresponding to the name of Atty. Positos here there are amounts here —
18
The handwritten Minutes (Exh. "D") of the auction sale clearly indicate the haste with which they 140,000 — 270,000
were prepared, a telltale evidence of the anomalous conduct of the proceedings. On its face, one 180,000 — 290,000
cannot determine the name of the successful bidder of the vessel. The 16 July 1986 minutes 19 220,000 — 300,000
read: and Atty. Kintanar, 240,000 — 310,000?
A: Atty. Kintanar never gave his bid, he just observed the proceedings of the auction sale.
MINUTES Q: How come you stated in the minutes that there are amounts opposite their names there?
A: They were present at that time.
Q: Why was it that opposite their names appear some amounts here if they did not actually bid
Time: 10:15 o'clock in the morning.
during the auction sale, what is the use of this (sic) amounts here?
Conducting Officer: Sheriff Reyes
A: We put that only in the paper that they are (sic) present.
Present:
Atty. Positos and Atty. Kintanar were really present at that time and only Mr. Ang, Mr. Arceo
and the plaintiff were the regular bidders of the auction sale.
Plaintiff (Bidder) 100,000 — 250,000 Q: So you believe that should be the only thing that should appear there in the minutes as what
140,000 — 270,000 you have placed there?
A: That is our procedure in the making of minutes, we have placed there those present, the
Atty. Positos 180,000 — 290,000 bidders, we have different style in making minutes.
220,000 — 300,000 Q: We have seen other minutes prepared by others. . .
COURT:
Atty. Kintanar 240,000 — 310,000 Do not argue, he said that is how he prepares minutes. Ask him only insofar as what is relevant
in this case.
ATTY. FABRO:
Mr. Ang (Bidder) 245,000 — 315,000 Q: When you stated here — Mr. Ang, are you referring to the Chairman who bought the vessel?
ATTY. APORTADERA:
Mr. Arceo (Bidder) 317,000 — Winner The question is misleading, counsel is referring to Mr. Ang who bought the vessel? That is
misleading.
Mr. Ang (Davao Metal Enterprises) ATTY. FABRO:
I am asking him your Honor.
Q: Who is this Mr. Ang?
Al — 120,000 — 246,000 311,000
A: A bidder.
160,000 — 251,000 315,000
Q: He also bidded?
200,000 — 272,000
A: Yes.
225,000 — 291,000
Q: His bid was 245,000 — 315,000?
242,000 — 310,000
A: Yes, sir.
Q: There is also this Mr. Arceo, Mr. Arceo bidded also?
xxx xxx xxx A: Yes, sir.
Q: Will you please explain to the Honorable Court why is it that the name of Mr. Arceo (Bidder)
Sold to Plaintiff — P317,000 here there appears the amount of P317,000 and there is the word — Winner? Would you please
try to explain to the Honorable Court what are those entries there ?
The minutes became even more vague when Sheriff Reyes, Jr., testified that there were only three A: Mr. Ang's bid starts here from the amount P100,00 and plaintiff starts from AL — P120,000.
bidders. From the minutes, however, we find that all those present offered bids as there were ATTY. FABRO:
amounts placed opposite their names — May we pray that these entries here found under the word — Present: be marked as Exhibit "D-
2".
COURT:
Atty. Fabro, counsel for DBP:
 Mark it.
ATTY. FABRO:
And we would also like to have this (sic) words: "Sold to Plaintiff P317,000" encircled and
marked Exhibit "D-3".
COURT:
Mark it.
ATTY. FABRO:
We would like to manifest your Honor that on the basis of this (sic) minutes submitted by
Deputy Sheriff Manases Reyes, there appears here no name of Buyer, although it stated here
that it was sold to plaintiff for P317,000.00.
This counsel is wondering where is the name of the buyer who bought the vessel, your Honor 20
(Emphasis supplied)
Significantly, the above testimony of Sheriff Reyes, Jr., to the effect that Atty. Positos did not
participate in the bidding was rebutted by the latter. 21 In view of the ambiguity of the minutes, the
trial court was constrained to ask clarificatory questions from Sheriff Reyes, Jr. —
COURT:
Q: The highest bidder, who is the plaintiff here as the highest bidder?
A: AL.
Q: Who is this AL?
A: AL is the plaintiff.
Q: What is the name of AL, you stated there AL, what does that mean?
Q: Actually there is some significance of the word AL as far as you are concerned?
A: Yes, sir.
Q: What is that AL?
A: Initial (sic) of plaintiff.
Q: Why did you not record the full name of the plaintiff there as the name of the highest
bidder?
A: I only put there the initial (sic) during the proceedings.
xxx xxx xxx
Q: On the face of your minutes I can say that this is not the proper minutes that should be done
by any Sheriff. You should even type your minutes after the auction sale in order to inform any
person later on what actually happened during the proceedings. Even in stating merely the
name of the plaintiff, you just place here — AL, what is the significance of this AL, when you
know that he is supposed to be the plaintiff . He is the plaintiff-bidder but you placed there only
AL.
Now, in your certificate of sale what did you state there as the highest bidder?
A: The name of the plaintiff.
Q: Do you have a certificate of sale?
A: Yes, sir. (Witness hands to the Court carbon original of a copy of the certificate of sale).
Q: Do you have in the records copy of this certificate of sale?
A: Yes, Your Honor.
Q: You stated here that you awarded the vessel to Tay Chun Suy, as he is the highest bidder. You
stated in your certificate of sale — the Plaintiff herein was the successful bidder who offered his
oral bid in the amount of P317,000.00 you are basing this statement of yours from the minutes
of July 16, 1986, is that correct?
A: Yes, Your Honor.
Q: Why did you not state in your certificate of sale that this AL is actually the one you referred
her as Tay Chun Suy, are you not aware that that is the very material where you based your
certificate of sale and that the certificate of sale will tally with the minutes of your proceedings
— of the auction sale?
(No answer).
COURT:
You are not only to explain that, you have to explain why your certificate of sale does not tally
with your minutes, you awarded the vessel to one Tay Chun Suy while what appears in your
minutes is that a certain AL . . . (emphasis supplied) 22
The procedure followed by Sheriff Reyes, Jr., was patently irregular. The unexplained
inconsistencies in the minutes and the certificate of sale are so material as to affect the integrity of
the whole proceedings. Noteworthy, too, is the fact that the Minutes (Exh. "D") do not mention
the request of counsel for SCHI for deferment of the auction sale. While the request was made
prior to the auction sale, the trial court was correct in its observation that the same should have
been entered in the minutes because of its importance and relevance to the sale. 23 Under these
circumstances, the ruling of the appellate court sustaining the trial court on the nullity of the
auction sale cannot be faulted.
Petitioner vigorously maintains that the failure of DBP to register its title to MV Sta. Clara I with
the Philippine Coast Guard is fatal to its claim of ownership. Likewise, he raises doubts as to
whether the trial court has jurisdiction to issue the writ of preliminary injunction. 24
In G.R. No. 78383, we rejected these arguments in our resolution of
28 September 1987 —
The respondent appellate court correctly held that the Regional Trial Court of
Davao City, Branch 17, had jurisdiction over the action brought in Civil Case No.
18188 concerning the vessel herein involved which was allegedly purchased by
petitioner in an execution sale, and which execution sale was the result of the
judgment rendered by Branch 12 of the same Regional Trial Court in Civil Case
No. 15970. Branch 17, Regional Trial Court of Davao City, did not undertake to
annul the judgment of the Regional Trial Court of Davao City, Branch 12,
jurisdiction to annul belonging to the Court of Appeals. Respondent appellate
court also correctly held that a certificate of registration of ownership of a
vessel is only presumptive evidence that the registered owner has a legal title
to the vessel, and that DBP's failure to register with the Philippine Coast Guard
its prior acquisition of the vessel is not fatal to its ownership of said vessel, vis-
a-vis petitioner herein, who similarly failed to register the alleged subsequent
sale of the vessel to itself (sic) in an execution sale. 25
This resolution is now final and executory. The question of whether the non-registration by DBP is
fatal to its claim to the vessel or whether the trial court has jurisdiction over the action should no
longer be raised anew. Once a case has been decided one way, then another case involving exactly
the same point at issue should be decided in the same manner. 26 At any rate, our ruling in Santos v.
Bayhon27 should put to rest petitioner's doubt as to the jurisdiction of the trial court —
The general rule that no court has the power to interfere by injunction with the judgments or
decrees of another court with concurrent or coordinate jurisdiction possessing equal power to
grant injunctive relief, applies only when no third-party claimant is involved (Traders Royal Bank
v. Intermediate Appellate Court, 133 SCRA 142). When a third-party, or a stranger to the action,
asserts a claim over the property levied upon, the claimant may vindicate his claim by an
 independent action in the proper civil court which may stop the execution of the judgment on sale and/or corresponding notices required by law, all matters were contained in the Order of
property not belonging to the judgment debtor. (emphasis supplied) this Court dated August 6, 1986.

Further, petitioner contends that he is a bona fide purchaser for value at the auction sale and that In effect, defendant Tay Chun Suy, admitted the ownership of plaintiff over said vessel way back
he came to know about the acquisition by DBP only upon its filing of complaint for annulment of on August 18, 1982. 31
the execution sale.28
Petitioner takes exception to the aforequoted ruling. He asserts that he never admitted that he
The evidence on record belies such contention. Before the auction sale started, counsel for knew of DBP's prior acquisition at the time of the execution sale on 16 July 1986.
petitioner was already aware of the cloud on the title of SCLC to the vessel as shown hereunder —
Petitioner never challenged this particular ruling in his appeal to the Court of Appeals. Hence, he
Atty. Fabros, counsel for DBP: cannot be allowed to ventilate it now in this proceeding. Points of law, theories, issues and
Q: But you know for a fact that Atty. Kintanar requested for the postponement of the auction arguments not adequately brought to the attention of the trial court need not be, and ordinarily
sale in the afternoon because they were filing a third party claim or that they will still inform will not be, considered by a reviewing Court as they cannot be raised for the first time on appeal. 32
DBP of that pending sale, you know that?
Atty. Positos, counsel for petitioner: The evidence on record fully supports the findings of the lower courts. We therefore find no need
A: No, because it was Atty. Kintanar and the sheriff who were talking and I only interfered to to discuss the other arguments raised by the petitioner to support his cause.
proceed with the sale considering there was no formal third party claim.
Q: You want to tell the Honorable Court that during all the time you were ignorant of the
WHEREFORE, finding no reversible error in the decision of the court
proceedings that they were making?
a quo, the petition for review on certiorari is DISMISSED, with costs against petitioner.
A: No, sir, the conversation is only between the sheriff and Atty. Kintanar and the sheriff
informed me afterwards but I did not personally talk to Atty. Kintanar.
xxx xxx xxx SO ORDERED.
Court:
Q: You are sure that during that proceedings of the auction sale,
Atty. Kintanar made it known to the sheriff that the vessel is already owned by DBP?
A: That is the allegation.
Q: The question can be answered with yes or no?
A: Yes, sir.
Q: And you also heard Atty. Kintanar requesting the sheriff to postpone the proceedings in the
afternoon?
A: I was informed by the sheriff only.
Q: By the way, how far were you from Atty. Kintanar and the sheriff during the actual
proceedings?
A: Before the actual auction sale there was a conversation between Atty. Kintanar and the
sheriff, but I was already around 4 or 5 meters away. (emphasis supplied). 29

Notwithstanding his knowledge of the prior claim of DBP, petitioner insisted that the sheriff
proceeded with the auction sale. Under the caveat emptor rule, he assumed the risk of losing the
vessel because his right to it cannot be considered superior to that of DBP. As we held in one case,
30
an execution creditor generally acquires no higher or better right than what the execution debtor
has in the property levied upon. It follows then that if the judgment debtor had no interest in the
property, the execution creditor acquires no interest therein.

Moreover, petitioner is now estopped from denying knowledge of the prior claim of DBP to the
vessel in the light of his judicial admission. Thus, the trial court ruled —

By way of factual background, defendant Tay Chun Suy through counsel, admitted all prior
proceedings pertinent to the testimony of plaintiff witness, Aurelio Rendon, in order to dispense
with his testimony, Exh. "A" to "F" and submarkings for plaintiff, were admitted referring to the
foreclosure sale of the subject vessel by the sheriff of Sultan Kudarat province; the certificate of