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G.R. No.

158271 April 8, 2008 implemented levying personal properties of

ACDC, i.e., vans, dump trucks, cement mixers,
CHINA BANKING CORPORATION, petitioner, cargo trucks, utility vehicles, machinery,
vs. equipment and office machines and fixtures.
CORPORATION, respondent. On March 27, 2000, upon motion of China Bank,
the RTC issued a Summary Judgment8 in favor of
DECISION China Bank. ACDC filed its Notice of Appeal9
dated April 24, 2000.
On June 15, 2000, China Bank filed a Motion to
Before the Court is a Petition for Review on Take Custody of Attached Properties with
Certiorari under Rule 45 of the Rules of Court Motion for Grant of Authority to Sell to the
filed by petitioner China Banking Corporation Branch Sheriff10 with the RTC, praying that it be
(China Bank) seeking to annul the Resolution1 allowed to take custody of ACDC’s properties for
dated October 14, 2002 and the Resolution2 the purpose of selling them in an auction.11 On
dated May 16, 2003 of the Court of Appeals (CA) June 20, 2000, ACDC filed its Opposition12 to the
in CA-G.R. CV No. 72175. June 15, 2000 Motion arguing that there can be
no sale of the latter’s attached properties in the
The facts of the case: absence of a final and executory judgment
against ACDC.
On July 24, 1996, China Bank granted respondent
Asian Construction and Development On August 25, 2000, China Bank partially
Corporation (ACDC) an Omnibus Credit Line in appealed the Summary Judgment for not
the amount of P90,000,000.00.3 awarding interest on one of its promissory
notes.13 Records of the case were elevated to
On April 12, 1999, alleging that ACDC failed to the CA.14
comply with its obligations under the Omnibus
Credit Line, China Bank filed a Complaint4 for On April 18, 2002, China Bank filed a Motion for
recovery of sum of money and damages with Leave for Grant of Authority to Sell Attached
prayer for the issuance of writ of preliminary Properties15 which the CA denied in the herein
attachment before the Regional Trial Court (RTC) assailed Resolution dated October 14, 2002.
of Makati, Branch 138, docketed as Civil Case No.
99-796. In the Complaint, China Bank claimed According to the CA, selling the attached
that ACDC, after collecting and receiving the properties prior to final judgment of the
proceeds or receivables from the various appealed case is premature and contrary to the
construction contracts and purportedly holding intent and purpose of preliminary attachment
them in trust for China Bank under several Deeds for the following reasons: first, the records
of Assignment, misappropriated, converted, and reveal that the attached properties subject of
used the funds for its own purpose and benefit, the motion are not perishable in nature; and
instead of remitting or delivering them to China second, while the sale of the attached properties
Bank.5 may serve the interest of China Bank, it will not
be so for ACDC. The CA recognized China Bank’s
On April 22, 1999, the RTC issued an Order6 apprehension that by the time a final judgment
granting China Bank’s prayer for writ of is rendered, the attached properties would be
preliminary attachment. Consequently, as worthless. However, the CA also acknowledged
shown in the Sheriff’s Report7 dated June 14, that since ACDC is a corporation engaged in a
1999, the writ of preliminary attachment was construction business, the preservation of the
properties is of paramount importance; and that In any of the foregoing instances, the aggrieved
in the event that the decision of the lower court party may file an appropriate special civil action
is reversed and a final judgment rendered in as provided in Rule 65. (Emphasis supplied).
favor ACDC, great prejudice will result if the
attached properties were already sold. The present petition for review on certiorari
should have been dismissed outright. However,
China Bank filed a Motion for Reconsideration16 in many instances, the Court has treated a
which was denied in the herein assailed CA petition for review on certiorari under Rule 45 as
Resolution17 dated May 16, 2003. a petition for certiorari under Rule 65 of the
Rules of Court, such as in cases where the subject
Hence, the present petition for review on of the recourse was one of jurisdiction, or the act
certiorari, on the following ground: complained of was perpetrated by a court with
grave abuse of discretion amounting to lack or
THE HONORABLE COURT OF APPEALS RENDERED excess of jurisdiction.21 The present petition
THE QUESTIONED RESOLUTIONS (ANNEXES "A" does not involve any issue on jurisdiction,
and "B") IN A MANNER NOT IN ACCORD WITH neither does it show that the CA committed
THE PROVISIONS OF SECTION 11, RULE 57 OF grave abuse of discretion in denying the motion
THE RULES OF CIVIL PROCEDURE, AS IT SHELVED to sell the attached property.
DISALLOWING THE SALE OF THE ATTACHED Section 11, Rule 57 of the Rules of Court
Sec. 11. When attached property may be sold
Considering that the herein assailed CA after levy on attachment and before entry of
Resolutions are interlocutory in nature as they judgment.- Whenever it shall be made to appear
do not dispose of the case completely but leave to the court in which the action is pending, upon
something to be done upon the merits,19 the hearing with notice to both parties, that the
proper remedy should have been by way of property attached is perishable, or that the
petition for certiorari under Rule 65, as provided interests of all the parties to the action will be
for in Section 1 (b), Rule 41 of the Rules of Court, subserved by the sale thereof, the court may
as amended by A.M. No. 07-7-12-SC,20 which order such property to be sold at public auction
provides: in such manner as it may direct, and the
proceeds of such sale to be deposited in court to
Section 1. Subject of appeal. - An appeal may be abide the judgment in the action. (Emphasis
taken from a judgment or final order that supplied)
completely disposes of the case, or of a
particular matter therein when declared by Thus, an attached property may be sold after
these Rules to be appealable. levy on attachment and before entry of
judgment whenever it shall be made to appear
No appeal may be taken from: to the court in which the action is pending, upon
hearing with notice to both parties, that the
xxxx attached property is perishable or that the
interests of all the parties to the action will be
(b) An interlocutory order; subserved by the sale of the attached property.

xxxx In its Memorandum,22 China Bank argues that

the CA’s notion of perishable property, which
pertains only to those goods which rot and decay
and lose their value if not speedily put to their automobiles and 2 airplanes, was reversed by
intended use,23 is a strict and stringent the Supreme Court of Louisiana. In support of its
interpretation that would betray the purpose for contention that automobiles are perishable,
which the preliminary attachment was Mossler offered testimony to the effect that
engrafted.24 Citing Witherspoon v. Cross,25 automobile tires tend to dry-rot in storage,
China Bank invokes the definition of "perishable batteries to deteriorate, crankcases to become
property" laid down by the Supreme Court of damaged, paint and upholstery to fade, that
California as goods which decay and lose their generally automobiles tend to depreciate while
value if not speedily put to their intended use; in storage.31 Rejecting these arguments, the
but where the time contemplated is necessarily Supreme Court of Louisiana held that while there
long, the term may embrace property liable might be a depreciation in the value of a car
merely to material depreciation in value from during storage, depending largely on existing
other causes than such decay. economic conditions, there would be no
material deterioration of the car itself or any of
As stated in the Sheriff’s Report26 and Notices of its appurtenances if the car was properly cared
Levy on Properties,27 all of for, and therefore it could not be said that
automobiles were of a perishable nature within
ACDC’s properties which were levied are the intendment of the statute, which could only
personal properties consisting of used vehicles, be invoked when the property attached and
i.e., vans, dump trucks, cement mixers, cargo seized was of a perishable nature.32
trucks, utility vehicles, machinery, equipment
and office machines and fixtures. China Bank With respect to the determination of the
insists that the attached properties, all placed question on whether the attached office
inside ACDC’s stockyard located at Silang, Cavite furniture, office equipment, accessories and
and the branch office in Mayamot, Antipolo City, supplies are perishable properties, the Supreme
are totally exposed to natural elements and Court of Alabama in McCreery v. Berney National
adverse weather conditions.28 Thus, China Bank Bank33 discussed the "perishable" nature of the
argues, that should the attached properties be attached properties, consisting of shelving, stock
allowed to depreciate, perish or rot while the of drygoods and a complete set of store fixtures,
main case is pending, the attached properties consisting of counters iron safe, desk and
will continue losing their worth thereby showcases, to be within the meaning of
rendering the rules on preliminary attachment "perishable" property under the Alabama Code
nugatory. which authorizes a court, on motion of either
party, to order the sale, in advance of judgment,
The issue hinges on the determination whether of perishable property which had been levied on
the vehicles, office machines and fixtures are by a writ of attachment.34
"perishable property" under Section 11, Rules 57
of the Rules of Court, which is actually one of first In McCreery, the Supreme Court of Alabama
impression. No local jurisprudence or rejected the argument that the sale of the
authoritative work has touched upon this attached property was void because the term
matter. This being so, an examination of foreign "perishable" property, as used in the statute,
laws and jurisprudence, particularly those of the meant only such property as contained in itself
United States where some of our laws and rules the elements of speedy decay, such as fruits,
were patterned after, is in order.29 fish, fresh meats, etc.35 The Supreme Court of
Alabama held that whatever may be the
In Mossler Acceptance Co. v. Denmark,30 an character of the property, if the court is satisfied
order of the lower court in directing the sale of that, either by reason of its perishable nature, or
attached properties, consisting of 20 because of the expense of keeping it until the
termination of the litigation, it will prove, or be The determination on whether the attached
likely to prove, fruitless to the creditor, and that vehicles are properly cared for, and the burden
the purpose of its original seizure will probably to show that, by keeping the attached office
be frustrated, the sale of the attached property furniture, office equipment and supplies, it will
is justified. necessarily become, or is likely to become,
worthless to China Bank, and by consequence to
McCreery applied the doctrine in Millard’s ACDC, are factual issues requiring reception of
Admrs. v. Hall36 where the Supreme Court of evidence which the Court cannot do in a petition
Alabama held that an attached property is for certiorari. Factual issues are beyond the
perishable "if it is shown that, by keeping the scope of certiorari because they do not involve
article, it will necessarily become, or is likely to any jurisdictional issue.43
become, worthless to the creditor, and by
consequence to the debtor, then it is embraced As a rule, only jurisdictional questions may be
by the statute. It matters not, in our opinion, raised in a petition for certiorari, including
what the subject matter is. It may be cotton matters of grave abuse of discretion which are
bales, live stock, hardware provisions or dry equivalent to lack of jurisdiction.44 The office of
goods." Although the statute under which the writ of certiorari has been reduced to the
Millard’s was decided used the words "likely to correction of defects of jurisdiction solely and
waste or be destroyed by keeping," instead of cannot legally be used for any other purpose.45
the word "perishable," the reasons given for the
construction placed on the statute apply equally Certiorari is truly an extraordinary remedy and,
to the Alabama Code which uses the term in this jurisdiction, its use is restricted to truly
"perishable."37 extraordinary cases - cases in which the action of
the inferior court is wholly void; where any
In the Motion for Leave for Grant of Authority to further steps in the case would result in a waste
Sell Attached Properties38 filed before the CA, of time and money and would produce no result
China Bank alleged that the attached properties whatever; where the parties, or their privies,
are placed in locations where they are totally would be utterly deceived; where a final
exposed to the natural elements and adverse judgment or decree would be nought but a snare
weather conditions since their attachment in and delusion, deciding nothing, protecting
1999;39 that as a result, the attached properties nobody, a judicial pretension, a recorded
have gravely deteriorated with corrosions eating falsehood, a standing menace. It is only to avoid
them up, with weeds germinating and growing such results as these that a writ of certiorari is
thereon and their engines and motors stock issuable; and even here an appeal will lie if the
up;40 and that the same holds true to the office aggrieved party prefers to prosecute it.46
furniture, office equipment, accessories and
supplies.41 No evidence, however, were Moreover, the Court held in JAM Transportation
submitted by China Bank to support and Co., Inc. v. Flores47 that it is well-settled, too
substantiate these claims before the CA. well-settled to require a citation of
jurisprudence, that this Court does not make
Notably, in the Petition filed before the Court, findings of facts specially on evidence raised for
China Bank, for the first time, included as the first time on appeal.48 The Court will not
annexes,42 photographs of the attached make an exception in the case at bar. Hence, the
properties which were alleged to be recently photographs of the attached properties
taken, in an attempt to convince the Court of the presented before the Court, for the first time on
deteriorated condition of the attached appeal, cannot be considered by the Court.
China Bank argues that if the CA allowed the upon examination of the evidence presented by
attached properties to be sold, whatever both parties which the Court cannot do in a
monetary value which the attached properties petition for certiorari under Rule 65 of the Rules
still have will be realized and saved for both of Court.
parties.49 China Bank further claims that should
ACDC prevail in the final judgment50 of the WHEREFORE, the petition is DENIED. The
collection suit, ACDC can proceed with the bond assailed Resolutions of the Court of Appeals
posted by China Bank.51 The Court finds said dated October 14, 2002 and May 16, 2003 in CA-
arguments to be specious and misplaced. G.R. CV No. 72175 are hereby AFFIRMED.

Section 4, Rule 57 of the Rules of Court provides: SO ORDERED.

Section 4. Condition of applicant’s bond. - The

party applying for the order must thereafter give
a bond executed to the adverse party in the
amount fixed by the court in its order granting
the issuance of the writ, conditioned that the
latter will pay all the costs which may be
adjudged to the adverse party and all the
damages which he may sustain by reason of the
attachment, if the court shall finally adjudge that
the applicant was not entitled thereto.

It is clear from the foregoing provision that the

bond posted by China Bank answers only for the
payment of all damages which ACDC may sustain
if the court shall finally adjudge that China Bank
was not entitled to attachment. The liability
attaches if "the plaintiff is not entitled to the
attachment because the requirements entitling
him to the writ are wanting," or "if the plaintiff
has no right to the attachment because the facts
stated in his affidavit, or some of them are
untrue."52 Clearly, ACDC can only claim from the
bond for all the damages which it may sustain by
reason of the attachment and not because of the
sale of the attached properties prior to final

Sale of attached property before final judgment

is an equitable remedy provided for the
convenience of the parties and preservation of
the property.53 To repeat, the Court finds that
the issue of whether the sale of attached
properties is for the convenience of the parties
and that the interests of all the parties will be
subserved by the said sale is a question of fact.
Again, the foregoing issue can only be resolved
Rule 51 Judgment Exception: In criminal cases where the penalty
imposed is life imprisonment, or when a lesser
Memorandum decisions are permitted in the CA. penalty is imposed but involving offenses
After judgment or final resolution of the CA and committed on the same occasion or arising out
dissenting or separate opinions if any, are signed of the same occurrence which gave rise to the
by the Justices taking part, they shall be more serious offense for which the penalty of
delivered for filing to the clerk who shall indicate death or life imprisonment is imposed (Section 3,
thereon the date of promulgation and cause true Rule 122)
copies to be served upon parties or counsel.
Date when judgment or final resolution becomes Appeal by certiorari from RTC to SC submitting
executory shall be deemed as date of entry. issues of fact may be referred to the CA for
decision or appropriate action, without
RULE 56 Procedure in the Supreme prejudice to considerations on whether or not to
give due course to the appeal as provided in Rule
1. Original cases cognizable – exclusive list:
Petitions for certiorari, prohibition, mandamus,
Provisional Remedies
quo warranto, habeas corpus;
Disciplinary proceedings against judges and
Provisional remedies (ancillary/auxiliary)
Cases affecting ambassadors, other public
à Writs and processes available during the
ministers, and consuls.
pendency of the action which may be resorted to
2. An appeal to SC can only be taken by petition
by a litigant to preserve and protect rights and
for review on certiorari, except in criminal cases
interests therein pending rendition, and for the
where the penalty imposed is death, reclusion
purpose of ultimately affecting a final judgment
perpetua, or life imprisonment.
in the case.
3. Grounds for dismissal of appeal by SC
à PROVISIONAL – constituting temporary
measures availed of during the pendency of the
Failure to take appeal within the reglementary
Lack of merit in the petition;
à ANCILLIARY – incidents in and dependent on
Failure to pay the requisite docket fee and other
the result of the main action.
lawful fees or to make deposit for costs;
Failure to comply with the requirements
regarding proof of service and contents of and Rule 57 Preliminary Attachment
the documents which should accompany the
petition; 1. Preliminary Attachment
Failure to comply with any circular, directive or Available even if the recovery of personal
order of the SC without justifiable cause; property is only an incidental relief sought in the
Error in choice or mode of appeal action;
Case is not appealable to the SC. May be resorted to even if the personal property
Discretionary upon SC (and CA) to call for is in the custody of a third person;
preliminary conference similar to pre-trial. Extends to all kinds of property, real or personal
General Rule: Appeal to SC by notice of appeal or incorporeal;
shall be dismissed. To recover possession of personal property
unjustly detained, presupposes that the same is
being concealed, removed, or disposed of to
prevent its being found or taken by the discharged is with respect to particular property,
applicant; counterbond or deposit shall be equal to the
Can still be resorted to even if the property is in value of the property as determined by the
custodia legis, as long as the property belongs to court; in all other cases, amount of counterbond
the defendant, or is one in which he has should be equal to the amount fixed in the order
proprietary interests, AND with permission of of attachment.
Recovery of specified amount of money and
damages, except moral or exemplary, where b. Applicant’s bond is insufficient or
party is about to depart from the Phils with sureties fail to justify;
intent to defraud creditors; c. Attachment was improperly or
Action for money or property embezzled or for irregularly issued;
willful violation of duty by public officers, officers d. Property attached is exempt from
of corporation, agent, or fiduciary; execution;
Recovery of possession of property (both real e. Judgment is rendered against attaching
and personal) unjustly detained, when the party;
property is concealed or disposed of to prevent f. Attachment is excessive – discharge is
is being found or taken; with respect to the excess
Action against party guilty of fraud in contracting 5. Application for discharge may only be filed
the debt or incurring the obligation or in the with the court where the action is pending and
performance thereof; may be filed even before enforcement of the
Action against party who is concealing or writ so long as there has been an order of
disposing of property, or is about to do so, with attachment.
intent to defraud creditors;
Action against party who is not a resident of the 6. When to apply for damages against the
Phils and cannot be found therein or upon who attachment bond
service by publication can be made.
JURISDICTION: Before appeal perfected;
Before judgment becomes executory;
Enforcement of writ of preliminary attachment In the appellate court for damages pending
must be preceded by or simultaneously appeal, before judgment becomes executory.
accompanied by service of summons, copy of 7. When judgment becomes executory,
complaint, application and affidavits for the sureties on counterbond to lift attachment are
attachment and the bond upon the adverse charged and can be held liable for the amount of
party; BUT the requirement of prior or judgment and costs upon notice and summary
contemporaneous service of summons shall not hearing. There is no need to first execute
apply where the summons could not be served judgment against the judgment obligor before
despite diligent efforts, or the defendant is a proceeding against sureties.
resident of the Phils temporarily absent 8. Claims for damages cannot be subject of
therefrom, or the defendant is a non-resident of independent action except:
the Phils or the action is in rem or quasi in rem. a. When principal case is dismissed by the
trial court for lack of jurisdiction without giving
4. When preliminary attachment is discharged the claiming party opportunity to prove claim for
a. Debtor posts a counterbond or makes damages;
requisite cash deposit- if attachment to be
b. When damages sustained by a third
person not a party to the action. à When an application for a writ of preliminary
Rule 58 Preliminary Injunction injunction or a temporary restraining order is
included in a complaint or any initiatory
1. Preliminary injunction distinguished from pleading, the case, if filed in a multiple-sala
Prohibition court, shall be raffled only after NOTICE to and
IN THE PRESENCE of the adverse party or the
Preliminary Injunction person to be enjoined. In any event, such notice
- Generally directed against party to the action shall be preceded, or contemporaneously
but may be against any person accompanied by service of summons, together
- Does NOT involve the jurisdiction of the court with a copy of the complaint and the applicant’s
- May be main action itself or just a provisional
affidavit and bond, upon the adverse party in the
remedy in the main action
Phils; BUT the requirement of prior or
Prohibition contemporaneous service of summons shall NOT
- Directed against a court, tribunal, or person apply where the summons could not be served
exercising judicial powers despite diligent efforts, or the defendant is a
- May be on the ground that the court against resident of the Phils temporarily absent
whom the writ is sought acted without or in therefrom, or the defendant is a non-resident of
excess of jurisdiction; the Phils
- Always a main action
à Difference with principle in preliminary
2. Grounds for Preliminary Injunction
attachment – In attachment, the principle
applies only in the implementation of the writ,
Plaintiff is entitled to relief sought which consists
while in applications for injunction or TRO, this
in restraining or requiring the performance of
principle applies before the raffle and issuance
acts (latter is preliminary mandatory injunction);
of the writs or TRO.
The commission of acts or non-performance
during pendency of litigation would probably
6. TRO good for only 20 days from service; 60
work injustice to the plaintiff;
days for CA; until further orders from SC.
Defendant is doing or about to do an act violating
plaintiff’s rights respecting the subject of the
7. TRO can be issued ex parte only if matter of
action and tending to render judgment
grave urgency and plaintiff will suffer grave
injustice and irreparable injury. Good for 72
3. Injunction may be refused or dissolved when:
hours from issuance, within which judge must
comply with service of summons, complaint,
Complaint is insufficient;
affidavit and bond, and hold summary hearing to
Defendant is permitted to post a counterbond it
determine whether TRO should be extended for
appearing that he would sustain great and
20 days. In no case can TRO be longer than 20
irreparable injury if injunction granted or
days including 72 hours.
continued while plaintiff can be fully
8. No TRO, preliminary injunction or preliminary
Plaintiff’s bond is insufficient or defective
mandatory injunction may issue against the
4. No Preliminary Injunction or TRO may be
government in cases involving implementation
issued without posting of bond and notice to
of government infrastructure projects. (Garcia
adverse party and hearing.
vs. Burgos, reiterated in Administrative Circular
no. 7-99, promulgated June 25,1999)
Rule 59 Receivership Available only where the principal relief sought
in the action is the recovery of possession of
1. When receiver may be appointed: personal property;
2. When receivership may be denied/lifted Can be sought only where the defendant is in the
Party has an interest in the property or fund actual or constructive possession of the personal
subject of the action and such is in danger of property involved.
being lost, removed, or materially injured; Extends only to personal property capable of
Action by mortgagee for foreclosure of mortgage manual delivery;
when the property is in danger of being wasted Available to recover personal property even if
or materially injured and that its value is the same is NOT being concealed, removed, or
probably insufficient to discharge the mortgage disposed of;
debt, OR that the parties have stipulated in the Cannot be availed of if property is in custodia
contract of mortgage; legis, as where is it under attachment, or was
After judgment, to preserve the property during seized under a search warrant or distrained for
the pendency of the appeal, or to dispose of it, tax assessment.
or to aid in execution when execution has been He seasonably posts redelivery bond
returned unsatisfied or the judgment debtor Plaintiff’s bond is insufficient or defective
refuses to apply his property to satisfy judgment, Property is not delivered to plaintiff for any
or to carry out the judgment. reason.
When appointing one is the most convenient à Replevin bond is only intended to indemnify
and feasible means to preserve, administer, or defendant against any loss that he may suffer by
dispose of the property in litigation. being compelled to surrender the possession of
Appointment sought is without sufficient cause; the disputed property pending trial of the action.
Adverse party files sufficient bond for damages; Thus, surety not liable for payment of judgment
Applicant or receiver’s bond is insufficient. for damages rendered against plaintiff on a
3. Both the applicant for the receivership and counterclaim for punitive damages for
the receiver appointed must file separate bonds. fraudulent or wrongful acts committed by the
plaintiffs which are unconnected with the
4. In claims against the bond, it shall be filed, defendant’s deprivation of possession by the
ascertained and granted under the same plaintiff.
procedure as Section 20, Rule 57, whether is be
damages against the applicant’s bond for the Special Civil Actions
unlawful appointment of the receiver or for
enforcing the liability of the sureties of the 1. Types of Special Civil Actions
receiver’s bond by reason of the receiver’s
management (in the latter case, no longer need Mandamus
to file a separate action). Interpleader
Rule 60 Replevin Eminent Domain
Declaratory Relief
1. Replevin Quo warranto
2. Defendant entitled to return of property Partition of real estate
taken under writ if: Foreclosure of mortgage
Unlawful detainer
Forcible Entry