Davao Light v.
Court of Appeals attachement, however, may not be availed of if the writ was issued upon a ground which is
Facts
The Davao Light and Power Co., Inc. ("Davao Light") filed a collection suit against Queensland
Hotel ("Queensland") and Teodorico Adarna ("Adarna") with an ex parte application for a
writ of preliminary attachment. On 3 May 1989, the trial court issued an Order of
Attachment, and the corresponding Writ of Attachment on 11 May 1989. On 12 May 1989,
the summons, a copy of the complaint, and the writ of attachment was served upon
Queensland and Adarna. Queensland and Adarna filed a motion to discharge the attachment
on the ground that at the time the Order of Attachment and Writ of Attachment were
issued, the trial court has yet to acquire jurisdiction over the cause of action and over the
persons of the defendants.
Issue
Whether or not the writ of preliminary attachment was validly issued.
Held
Yes. A writ of preliminary attachment may be issued before the court acquires jurisdiction
over the person of the defendant.
Ratio Decidendi
The court may validly issue a writ of preliminary injunction prior to the acquisition
of  jurisdiction over the person of the defendant. There is an appreciable period of time
between the commencement of the action (takes place upon the filing of an initiatory
pleading) and the service of summons to the defendant. In the meanwhile, there are a
number of actions which the plaintiff or the court may validly take, including the application
for and grant of the provisional remedy of preliminary attachment. There is nothing in the
law which prohibits the court from granting the remedy prior to the acquisition of
jurisdiction over the person of the defendant. In fact, Rule 57 of the Rules of Court allows the
granting of a writ of preliminary injunction at the commencement of the suit. In the cases
of Toledo v. Burgos and Filinvest Credit Corporation v. Relova, it was held that notice and
hearing are not prerequisites to the issuance of a writ of preliminary attachment. Further, in
the case of Mindanao Savings & Loan Association, Inc. v. Court of Appeals, it was ruled that
giving notice to the defendant would defeat the purpose of the remedy by affording him or
her the opportunity to dispose of his properties before the writ can be issued.
A preliminary attachment may be discharged with the same ease as obtaining it.  In any case,
the ease of availing the provisional remedy of preliminary attachment is matched by the
ease with which it can be remedied by either the posting of a counterbond, or by a showing
of its improper or irregular issuance. The second means of defeating a preliminary
at the same time the applicant's cause of action.
Preliminary attachment not binding until jurisdiction over the person of the defendant is
acquired. The writ of preliminary attachment, however, even though validly issued, is not
binding upon the defendant until jurisdiction over his person is first acquired.
G.R. No. 193572, April 04, 2018
TSUNEISHI HEAVY INDUSTRIES (CEBU), INC., Petitioner, v. MIS MARITIME
CORPORATION, Respondent.
DECISION
JARDELEZA, J.:
This is a petition for review on certiorari1 under Rule 45 of the Rules of Court filed by
petitioner Tsuneishi Heavy Industries (Cebu), Inc. (Tsuneishi) challenging the Decision 2 of the
Court of Appeals (CA) in CA-G.R. CEB-SP No. 03956 dated October 7, 2009 and its
Resolution3 dated August 26, 2010. The CA Decision reversed three Orders of Branch 7 of the
Regional Trial Court (RTC), Cebu City dated April 15, 2008, July 7, 2008, and December 11,
2008, respectively.4 The Resolution denied Tsuneishi's motion for reconsideration.
Respondent MIS Maritime Corporation (MIS) contracted Tsuneishi to dry dock and repair its
vessel M/T MIS-1 through an Agreement dated March 22, 2006. 5 On March 23, 2006, the
vessel dry docked in Tsuneishi's shipyard. Tsuneishi rendered the required services.
However, about a month later and while the vessel was still dry docked, Tsuneishi conducted
an engine test on M/T MIS-1. The vessel's engine emitted smoke. The parties eventually
discovered that this was caused by a burnt crank journal. The crankpin also showed hairline
cracks due to defective lubrication or deterioration. Tsuneishi insists that the damage was
not its fault while MIS insists on the contrary. Nevertheless, as an act of good will, Tsuneishi
paid for the vessel's new engine crankshaft, crankpin, and main bearings. 6
Tsuneishi billed MIS the amount of US$318,571.50 for payment of its repair and dry docking
services. MIS refused to pay this amount. Instead, it demanded that Tsuneishi pay
US$471,462.60 as payment for the income that the vessel lost in the six months that it was
not operational and dry docked at Tsuneishi's shipyard. It also asked that its claim be set off
against the amount billed by Tsuneishi. MIS further insisted that after the set off, Tsuneishi
still had the obligation to pay it the amount of US$152,891.10. 7 Tsuneishi rejected MIS'
demands. It delivered the vessel to MIS in September 2006. 8 On November 6, 2006, MIS
signed an Agreement for Final Price. 9 However, despite repeated demands, MIS refused to
pay Tsuneishi the amount billed under their contract.
Tsuneishi claims that MIS also caused M/T White Cattleya, a vessel owned by Cattleya
Shipping Panama S.A. (Cattleya Shipping), to stop its payment for the services Tsuneishi
rendered for the repair and dry docking of the vessel. 10
MIS argued that it lost revenues because of the engine damage in its vessel. This damage
occurred while the vessel was dry docked and being serviced at Tsuneishi's yard. MIS insisted
that since this arose out of Tsuneishi's negligence, it should pay for MIS' lost income.
Tsuneishi offered to pay 50% of the amount demanded but MIS refused any partial
payment.11
On April 10, 2008, Tsuneishi filed a complaint 12 against MIS before the RTC. This complaint
stated that it is invoking the admiralty jurisdiction of the RTC to enforce a maritime lien
under Section 21 of the Ship Mortgage Decree of 1978 13 (Ship Mortgage Decree). It also
alleged as a cause of action MIS' unjustified refusal to pay the amount it owes Tsuneishi
under their contract. The complaint included a prayer for the issuance of arrest order/writ of
preliminary attachment. To support this prayer, the complaint alleged that Section 21 of the
Ship Mortgage Decree as well as Rule 57 of the Rules of Court on attachment authorize the
issuance of an order of arrest of vessel and/or writ of preliminary attachment. 14
In particular, Tsuneishi argued that Section 21 of the Ship Mortgage Decree provides for a
maritime lien in favor of any person who furnishes repair or provides use of a dry dock for a
vessel. Section 21 states that this may be enforced through an action in rem. Further,
Tsuneishi and MIS' contract granted Tsuneishi the right to take possession, control and
custody of the vessel in case of default of payment. Paragraph 9 of this contract further
states that Tsuneishi may dispose of the vessel and apply the proceeds to the unpaid repair
bill.15
Finally, Tsuneishi's complaint alleges that there are sufficient grounds for the issuance of a
writ of preliminary attachment. In particular, it claims that MIS is guilty of fraud in the
performance of its obligation. The complaint states:
40. x x x Under the factual milieu, it is wrongful for defendant MIS Maritime to take undue
advantage of an unfortunate occurrence by withholding payment of what is justly due to
plaintiff under law and contract. Defendant MIS Maritime knew or ought to have known that
its claim for lost revenues was unliquidated and could not be set-off or legally compensated
against the dry-docking and repair bill which was liquidated and already fixed and
acknowledged by the parties.
41. Defendant CATTLEYA SHIPPING'S actions and actuations in performing its obligation were
clearly fraudulent because, firstly, it had no business getting involved as far as the M/T MIS-1
incident was concerned; secondly, no incident of any sort occurred when its vessel M/T
WHITE CATTLEYA was dry docked and repaired. It had no claim against the plaintiff. Yet, it
(defendant Cattleya Shipping) allowed itself to be used by defendant MIS Maritime when it
willfully and unlawfully stopped paying plaintiff, and conspired to make good defendant MIS
Maritime's threat to "withhold payment of any and all billings that you (plaintiff) may have
against our fleet of vessels which include those registered under Cattleya Shipping Panama
S.A. (MT White Cattleya) x x x.16
Tsuneishi also filed the Affidavit 17 of its employee Lionel T. Bitera (Bitera Affidavit), in
accordance with the requirement for the issuance of a writ of preliminary attachment under
Rule 57 of the Rules of Court. The Bitera Affidavit stated that Tsuneishi performed dry
docking and repair services for M/T MIS-1 and M/T White Cattleya. It also alleged that after
Tsuneishi performed all the services required, MIS and Cattleya refused to pay their
obligation. According to the Bitera Affidavit, this refusal to pay constitutes fraud because:
d. The breach of the obligation was willful. In the case of M/T MIS-1 no single installment
payment was made despite the fact that the vessel was accepted fully dry docked and with a
brand new engine crankshaft installed by the yard free of charge to the Owner. MIS
Maritime Corporation was blaming the yard for the damage sustained by the engine crank
shaft on 25 April 2006 when the engine was started in preparation for sea trial. When the
incident happened the drydocking had already been completed and the vessel was already in
anchorage position for sea trial under the management and supervisory control of the
Master and engineers of the vessel. Besides, the incident was not due to the fault of the
yard. It was eventually traced to dirty lube oil or defective main engine lubricating oil which
was the lookout and responsibility of the vessel's engineers.
xxxx
e. The action taken by MIS Maritime Corporation in setting off its drydocking obligation
against their claim for alleged lost revenues was unilaterally done, and without legal and
factual basis for while, on one hand, the drydocking bill was for a fixed and agreed amount,
the claim of MIS Maritime for lost revenues, on the other hand, was not liquidated as it was
for a gross amount, x x x
f. Cattleya Shipping for its part had nothing to do with the dry docking of M/T MIS-1. There
was no incident whatsoever during the dry docking of its vessel M/T WHITE CATTLEYA. In
fact, after this vessel was satisfactorily dry docked and delivered to its Owner (Cattleya
Shipping) the latter started paying the monthly installments without any complaint
whatsoever, x x x18
The RTC issued a writ of preliminary attachment in an Order 19 dated April 15, 2008 (First
Order) without hearing. Consequently, MIS' condominium units located in the financial
district of Makati, cash deposits with various banks, charter hire receivables from Shell
amounting to P26.6 Million and MT MIS-1 were attached. 20
MIS filed a motion to discharge the attachment. 21 The RTC denied this motion in an
Order[22 dated July 7, 2008 (Second Order). MIS filed a motion for reconsideration which the
RTC also denied in an Order 23 dated December 11, 2008 (Third Order).
MIS then filed a special civil action for certiorari24 before the CA assailing the three Orders.
MIS argued that the RTC acted with grave abuse of discretion when it ordered the issuance
of a preliminary writ of attachment and denied MIS' motion to discharge and motion for
reconsideration.
The CA ruled in favor of MIS. It reversed the three assailed Orders after finding that the RTC
acted with grave abuse of discretion in issuing the writ of preliminary attachment. 25
According to the CA, the Bitera Affidavit lacked the required allegation that MIS has no
sufficient security for Tsuneishi's claim. In fact, the CA held that the evidence on record
shows that MIS has sufficient properties to cover the claim. It also relied on jurisprudence
stating that when an affidavit does not contain the allegations required under the rules for
the issuance of a writ of attachment and the court nevertheless issues the writ, the RTC is
deemed to have acted with grave abuse of discretion. Consequently, the writ of preliminary
attachment is fatally defective.26 The CA further highlighted that a writ of preliminary
attachment is a harsh and rigorous remedy. Thus, the rules must be strictly construed.
Courts have the duty to ensure that all the requisites are complied with. 27
The CA also found that the RTC ordered the issuance of the writ of preliminary attachment
despite Tsuneishi's failure to prove the presence of fraud. It held that the bare and
unsubstantiated allegation in the Bitera Affidavit that MIS willfully refused to pay its
obligation is not sufficient to establish prima facie fraud. The CA emphasized that a debtor's
mere inability to pay is not fraud. Moreover, Tsuneishi's allegations of fraud were general.
Thus, they failed to comply with the requirement in the Rules of Court that in averments of
fraud, the circumstances constituting it must be alleged with particularity. The CA added that
while notice and hearing are not required for the issuance of a writ of preliminary
attachment, it may become necessary in instances where the applicant makes grave
accusations based on grounds alleged in general terms. The CA also found that Tsuneishi
failed to comply with the requirement that the affidavit must state that MIS has no other
sufficient security to cover the amount of its obligation. 28
The CA disposed of the case, thus:
WHEREFORE, the petition is GRANTED. The three (3) Orders dated April 15, 2008, July 7,
2008 and December 11, 2008, respectively, of the Regional Trial Court, Branch 7, Cebu City,
in Civil Case No. CEB-34250, are ANNULLED and SET ASIDE.29 (Emphasis in the original,
citations omitted.)
Tsuneishi filed this petition for review on certiorari under Rule 45 of the Rules of Court
challenging the CA's ruling. Tsuneishi pleads that this case involves a novel question of law. It
argues that while Section 21 of the Ship Mortgage Decree grants it a maritime lien, the law
itself, unfortunately, does not provide for the procedure for its enforcement. It posits that to
give meaning to this maritime lien, this Court must rule that the procedure for its
enforcement is Rule 57 of the Rules of Court on the issuance of the writ of preliminary
attachment. Thus, it proposes that aside from the identified grounds for the issuance of a
writ of preliminary attachment in the Rules of Court, the maritime character of this action
should be considered as another basis to issue the writ. 30
To support its application for the issuance of a writ of preliminary attachment, Tsuneishi also
invokes a provision in its contract with MIS which states that:
In case of default, either in payment or in violation of the warranties stated in Section 11, by
the Owner, the Owner hereby appoints the Contractor as its duly authorized attorney in fact
with full power and authority to take possession, control, and custody of the said Subject
Vessel and / or any of the Subject Vessel's accessories and equipment, or other assets of the
Owner, without resorting to court action; and that the Owner hereby empowers the
Contractor to take custody of the same until the obligation of the Owner to the Contractor is
fully paid and settled to the satisfaction of the Contractor. x x x 31 (Underscoring omitted.)
It insists that the writ of preliminary attachment must be issued so as to give effect to this
provision in the contract.
Tsuneishi also disputes the CA's finding that it Failed to show fraud in MIS' performance of its
obligation. It opines that MIS' failure to comply with its obligation does not arise from a mere
inability to pay. If that were the case, then the CA would be correct in saying that MIS
committed no fraud. However, MIS' breach of its obligation in this case amounts to a gross
unwillingness to pay amounting to fraud. 32
Tsuneishi adds that the CA erred in holding that the RTC acted with grave abuse of discretion
when it failed to conduct a hearing prior to the issuance of the writ of preliminary
attachment. It insisted that the Rules of Court, as well as jurisprudence, does not require a
hearing prior to issuance.33
Finally, Tsuneishi disagrees with the ruling of the CA that it did not comply with the
requirements under the rules because the Bitera Affidavit did not state that MIS has no
other sufficient security. This was already stated in Tsuneishi's complaint filed before the
RTC. Thus, the rules should be applied liberally in favor of rendering justice. 34
In its comment,35 MIS challenges Tsuneishi's argument that its petition raises a novel
question of law. According to MIS, the issue in this case is simple. A reading of Tsuneishi's
complaint shows that it prayed for the issuance of a writ of preliminary attachment under
Rule 57 of the Rules of Court or arrest of vessel to enforce its maritime lien under the Ship
Mortgage Decree.36 Thus, Tsuneishi knew from the start that a remedy exists for the
enforcement of its maritime lien—through an arrest of vessel under the Ship Mortgage
Decree. However, the RTC itself characterized the complaint as a collection of sum of money
with prayer for the issuance of a writ of preliminary attachment. Thus, what it issued was a
writ of preliminary attachment. Unfortunately for Tsuneishi, the CA reversed the RTC
because it found that the element of fraud was not duly established. Thus, there was no
ground for the issuance of a writ of preliminary attachment. 37
MIS insists that Tsuneishi is raising this alleged novel question of law for the first time before
this Court in an attempt to skirt the issue that it failed to sufficiently establish that MIS acted with
fraud in the performance of its obligation. MIS contends that fraud cannot be inferred from a debtor's
mere inability to pay. There is no distinction between inability and a refusal to pay where the refusal is
based on its claim that Tsuneishi damaged its vessel. According to MIS, its vessel arrived at Tsuneishi's
shipyard on its own power. Its engine incurred damage while it was under Tsuneishi's custody. Thus,
Tsuneishi is presumed negligent.38
MIS further highlights that Tsuneishi completed the dry docking in April 2006. It was during this time
that the damage in the vessel's engine was discovered. The vessel was turned over to MIS only in
September 2006. Thus, it had lost a significant amount of revenue during the period that it was off-
hire. Because of this, it demanded payment from Tsuneishi which the latter rejected. 39
Hence, MIS argues that this is not a situation where, after Tsuneishi rendered services, MIS simply
absconded. MIS has the right to demand for the indemnification of its lost revenue due to Tsuneishi's
negligence.[40
MIS further adds that the CA correctly held that there was no statement in the Bitera Affidavit that MIS
had no adequate security to cover the amount being demanded by Tsuneishi. Tsuneishi cannot validly
argue that this allegation is found in its complaint and that this should be deemed compliance with the
requirement under Rule 57.41
Further, in its motion to discharge the preliminary attachment, MIS presented proof that it has the
financial capacity to pay any liability arising from Tsuneishi's claims. In fact, there was an excessive levy
of MIS' properties. This is proof in itself that MIS has adequate security to cover Tsuneishi's claims.
Finally, MIS agrees with the CA that the RTC should have conducted a hearing. While it is true that a
hearing is not required by the Rules of Court, jurisprudence provides that a hearing is necessary where
the allegations in the complaint and the affidavit are mere general averments. Further, where a motion
to discharge directly contests the allegation in the complaint and affidavit, the applicant has the
burden of proving its claims of fraud. 42
There are two central questions presented for the Court to resolve, namely: (1) whether a maritime
lien under Section 21 of the Ship Mortgage Decree may be enforced through a writ of preliminary
attachment under Rule 57 of the Rules of Court; and (2) whether the CA correctly ruled that Tsuneishi
failed to comply with the requirements for the issuance of a writ of preliminary injunction.
We deny the petition.
I
We begin by classifying the legal concepts of lien, maritime lien and the provisional remedy of
preliminary attachment.
A lien is a "legal claim or charge on property, either real or personal, as a collateral or security for the
payment of some debt or obligation."43 It attaches to a property by operation of law and once attached,
it follows the property until it is discharged. What it does is to give the party in whose favor the lien
exists the right to have a debt satisfied out of a particular thing. It is a legal claim or charge on the
property which functions as a collateral or security for the payment of the obligation. 44
Section 21 of the Ship Mortgage Decree establishes a lien. It states:
Sec. 21. Maritime Lien for Necessaries; Persons entitled to such Lien. –  Any person furnishing repairs,
supplies, towage, use of dry dock or marine railway, or other necessaries to any vessel, whether
foreign or domestic, upon the order of the owner of such vessel, or of a person authorized by the
owner, shall have a maritime lien on the vessel, which may be enforced by suit in rem  and it shall be
necessary to allege or prove that credit was given to the vessel.

In practical terms, this means that the holder of the lien has the right to bring an action to seek the sale
of the vessel and the application of the proceeds of this sale to the outstanding obligation. Through this
lien, a person who furnishes repair, supplies, towage, use of dry dock or marine railway, or other
necessaries to any vessel, in accordance with the requirements under Section 21, is able to obtain
security for the payment of the obligation to him.
A party who has a lien in his or her favor has a remedy in law to hold the property liable for the
payment of the obligation. A lienholder has the remedy of filing an action in court for the enforcement
of the lien. In such action, a lienholder must establish that the obligation and the corresponding lien
exist before he or she can demand that the property subject to the lien be sold for the payment of the
obligation. Thus, a lien functions as a form of security for an obligation.
Liens, as in the case of a maritime lien, arise in accordance with the provision of particular laws
providing for their creation, such as the Ship Mortgage Decree which clearly states that certain persons
who provide services or materials can possess a lien over a vessel. The Rules of Court also provide for a
provisional remedy which effectively operates as a lien. This is found in Rule 57 which governs the
procedure for the issuance of a writ of preliminary attachment.
A writ of preliminary attachment is a provisional remedy issued by a court where an action is pending.
In simple terms, a writ of preliminary attachment allows the levy of a property which shall then be held
by the sheriff. This property will stand as security for the satisfaction of the judgment that the court
may render in favor of the attaching party. In Republic v. Mega Pacific eSolutions (Republic), 45 we
explained that the purpose of a writ of preliminary attachment is twofold:
First, it seizes upon property of an alleged debtor in advance of final judgment and holds it subject to
appropriation, thereby preventing the loss or dissipation of the property through fraud or other
means. Second, it subjects the property of the debtor to the payment of a creditor's claim, in those
cases in which personal service upon the debtor cannot be obtained. This remedy is meant to secure a
contingent lien on the defendant's property until the plaintiff can, by appropriate proceedings,
obtain a judgment and have the property applied to its satisfaction, or to make some provision for
unsecured debts in cases in which the means of satisfaction thereof arc liable to be removed beyond
the jurisdiction, or improperly disposed of or concealed, or otherwise placed beyond the reach of
creditors.46 (Citations omitted, emphasis supplied. Italics in the original.)
As we said, a writ of preliminary attachment effectively functions as a lien. This is crucial to resolving
Tsuneishi's alleged novel question of law in this case. Tsuneishi is correct that the Ship Mortgage
Decree does not provide for the specific procedure through which a maritime lien can be enforced. Its
error is in insisting that a maritime lien can only be operationalized by granting a writ of preliminary
attachment under Rule 57 of the Rules of Court. Tsuneishi argues that the existence of a maritime lien
should be considered as another ground for the issuance of a writ of preliminary attachment under the
Rules of Court.
Tsuneishi's argument is rooted on a faulty understanding of a lien and a writ of preliminary attachment.
As we said, a maritime lien exists in accordance with the provision of the Ship Mortgage Decree. It is
enforced by filing a proceeding in court. When a maritime lien exists, this means that the party in
whose favor the lien was established may ask the court to enforce it by ordering the sale of the subject
property and using the proceeds to settle the obligation.
On the other hand, a writ of preliminary attachment is issued precisely to create a lien. When a party
moves for its issuance, the party is effectively asking the court to attach a property and hold it liable for
any judgment that the court may render in his or her favor. This is similar to what a lien does. It
functions as a security for the payment of an obligation. In Quasha Asperilla Ancheta Valmonte Peña &
Marcos v. Juan,47 we held:
An attachment proceeding is for the purpose of creating a lien on the property to serve as security for
the payment of the creditors' claim. Hence, where a lien already exists, as in this case a maritime lien,
the same is already equivalent to an attachment. x x x48
To be clear, we repeat that when a lien already exists, this is already equivalent to an attachment. This
is where Tsuneishi's argument fails. Clearly, because it claims a maritime lien in accordance with the
Ship Mortgage Decree, all Tsuneishi had to do is to file a proper action in court for its enforcement. The
issuance of a writ of preliminary attachment on the pretext that it is the only means to enforce a
maritime lien is superfluous. The reason that the Ship Mortgage Decree does not provide for a detailed
procedure for the enforcement of a maritime lien is because it is not necessary. Section 21 already
provides for the simple procedure—file an action in rem  before the court.
To our mind, this alleged novel question of law is a mere device to remedy the error committed by
Tsuneishi in the proceedings before the trial court regarding the issuance of a writ of preliminary
attachment. We note that the attachment before the trial court extended to other properties other
than the lien itself, such as bank accounts and real property. Clearly, what was prayed for in the
proceedings below was not an attachment for the enforcement of a maritime lien but an attachment,
plain and simple.
II
Tsuneishi's underlying difficulty is whether it succeeded in proving that it complied with the
requirements lor the issuance of a writ of preliminary attachment. This is the only true question before
us. In particular, we must determine whether the Bitera Affidavit stated that MIS lacked sufficient
properties to cover the obligation and whether MIS acted with fraud in refusing to pay.
At the onset, we note that these questions dwell on whether there was sufficient evidence to prove
that Tsuneishi complied with the requirements for the issuance of a writ of preliminary attachment.
Sufficiency of evidence is a question of fact which this Court cannot review in a Rule 45 petition. We
are not a trier of fact. directly with respondents' foreign buyer) is sufficient allegation of fraud to support the issuance of a
writ of preliminary attachment.53
Nevertheless, we have examined the record before us and we agree with the factual findings of the CA.
In contrast, in PCL Industries Manufacturing Corporation v. Court of Appeals, 54 we found no fraud that
The record clearly shows that the Bitera Affidavit does not state that MIS has no other sufficient would warrant the issuance of a writ of preliminary attachment. In that case, petitioner purchased
security for the claim sought to be enforced. This is a requirement under Section 3, Rule 57 of the Rules printing ink materials from the private respondent. However, petitioner found that the materials
of Court. We cannot agree with Tsuneishi's insistence that this allegation need not be stated in the delivered were defective and thus refused to pay its obligation under the sales contract. Private
affidavit since it was already found in the complaint. The rules are clear and unequivocal. There is no respondent insisted that petitioner's refusal to pay after the materials were delivered to it amounted
basis for Tsuneishi's position. Nor is it entitled to the liberal application of the rules. Not only has to fraud. We disagreed. We emphasized our repeated and consistent ruling that the mere fact of
Tsuneishi failed to justify its omission to include this allegation, the facts also do not warrant the failure to pay after the obligation to do so has become due and despite several demands is not enough
setting aside of technical rules. Further, rules governing the issuance of a writ of preliminary to warrant the issuance of a writ of preliminary attachment. 55
attachment are strictly construed.
An examination of the Bitera Affidavit reveals that it failed to allege the existence of fraud with
We also agree with the CA's factual finding that MIS did not act with fraud in refusing to pay the sufficient specificity. The affidavit merely states that MIS refused to pay its obligation because it
obligation. We emphasize that when fraud is invoked as a ground for the issuance of a writ of demanded a set off between its obligation to Tsuneishi and Tsuneishi's liability for MIS' losses caused
preliminary attachment under Rule 57 of the Rules of Court, there must be evidence clearly showing by the delay in the turn-over of the vessel. The affidavit insists that this demand for set off was not
the factual circumstances of the alleged fraud. 49 Fraud cannot be presumed from a party's mere failure legally possible. Clearly, there is nothing in the affidavit that even approximates any act of fraud which
to comply with his or her obligation. Moreover, the Rules of Court require that in all averments of MIS committed in the performance of its obligation. MIS' position was clear: Tsuneishi caused the
fraud, the circumstances constituting it must be stated with particularity. 50 damage in the vessel's engine which delayed its trip and should thus be liable for its losses. There is no
showing that MIS performed any act to deceive or defraud Tsuneishi.
In Republic, we defined fraud as:
[A]s the voluntary execution of a wrongful act or a wilful omission, while knowing and intending the In Watercraft Venture Corporation v. Wolfe, 56 we ruled that an affidavit which does not contain
effects that naturally and necessarily arise from that act or omission. In its general sense, fraud is concrete and specific grounds showing fraud is inadequate to sustain the issuance of the writ of
deemed to comprise anything calculated to deceive — including all acts and omission and concealment preliminary attachment.57
involving a breach of legal or equitable duty, trust, or confidence justly reposed — resulting in damage
to or in undue advantage over another. Fraud is also described as embracing all multifarious means Moreover, the record tells a different story.
that human ingenuity can device, and is resorted to for the purpose of securing an advantage over
another by false suggestions or by suppression of truth; and it includes all surprise, trick, cunning, The record shows that Tsuneishi released the vessel in September 2006. MIS signed the Agreement of
dissembling, and any other unfair way by which another is cheated.51 (Citations omitted.) the Final Price only in November 2006. Thus, Tsuneishi's claim that MIS' act of signing the document
and making it believe that MIS will pay the amount stated is the fraudulent act which induced it to
release the vessel cannot stand. Tsuneishi agreed to release the vessel even before MIS signed the
By way of example, in Metro, Inc. v. Lara's Gifts and Decors, Inc., 52 we ruled that the factual document. It was thus not the act which induced Tsuneishi to turn over the vessel.
circumstances surrounding the parties' transaction clearly showed fraud. In this case, the petitioners
entered into an agreement with respondents where the respondents agreed that they will endorse Further, Tsuneishi is well aware of MIS' claims. It appears from the record, and as admitted by MIS in
their purchase orders from their foreign buyers to the petitioners in order to help the latter's export its pleadings, that the reason for its refusal to pay is its claim that its obligation should be set off
business. The petitioners initially promised that they will transact only with the respondents and never against Tsuneishi's liability for the losses that MIS incurred for the unwarranted delay in the turn-over
directly contact respondents' foreign buyers. To convince respondents that they should trust the of the vessel. MIS insists that Tsuneishi is liable for the damage on the vessel. This is not an act of
petitioners, petitioners even initially remitted shares to the respondents in accordance with their fraud. It is not an intentional act or a willful omission calculated to deceive and injure Tsuneishi. MIS is
agreement. However, as soon as there was a noticeable increase in the volume of purchase orders asserting a claim which it believes it has the right to do so under the law. Whether MIS' position is
from respondents' foreign buyers, petitioners abandoned their contractual obligation to respondents legally tenable is a different matter. It is an issue fit for the court to decide. Notably, MIS filed this as a
and directly transacted with respondents' foreign buyers. We found in this case that the respondents' counterclaim in the case pending before the RTC. 58 Whether MIS is legally correct should be threshed
allegation (that the petitioners undertook to sell exclusively through respondents but then transacted out there.

Even assuming that MIS is wrong in refusing to pay Tsuneishi, this is nevertheless not the fraud
contemplated in Section 1(d), Rule 57 of the Rules of Court. Civil law grants Tsuneishi various remedies
in the event that the trial court rules in its favor such as the payment of the obligation, damages and
legal interest. The issuance of a writ of preliminary attachment is not one of those remedies.
There is a reason why a writ of preliminary attachment is available only in specific cases enumerated
under Section 1 of Rule 57. As it entails interfering with property prior to a determination of actual
liability, it is issued with great caution and only when warranted by the circumstances. As we said in  Ng
Wee v. Tankiansee,59 the rules on the issuance of the writ of preliminary attachment as a provisional
remedy are strictly construed against the applicant because it exposes the debtor to humiliation and
annoyance.60
Moreover, we highlight that this petition for review on certiorari  arose out of a Decision of the CA in a
Rule 65 petition. In cases like this, this Court's duty is only to ascertain whether the CA was correct in
ruling that the RTC acted with grave abuse of discretion amounting to lack or excess of jurisdiction.
Jurisprudence has consistently held that a court that issues a writ of preliminary attachment when the
requisites are not present acts in excess of its jurisdiction. 61 In Philippine Bank of Communications v.
Court of Appeals,62 we highlighted:
Time and again, we have held that the rules on the issuance of a writ of attachment must be construed
strictly against the applicants. This stringency is required because the remedy of attachment is harsh,
extraordinary and summary in nature. If all the requisites for the granting of the writ are not present,
then the court which issues it acts in excess of its jurisdiction. 63 (Citation omitted.)
In accordance with consistent jurisprudence, we must thus affirm the ruling of the CA that the RTC, in
issuing a writ of preliminary attachment when the requisites under the Rules of Court were clearly not
present, acted with grave abuse of discretion.
WHEREFORE, in view of the foregoing, the petition is DENIED. The Decision of the Court of Appeals
dated October 7, 2009 and its Resolution dated August 26, 2010 are AFFIRMED.
SO ORDERED.
Onate v Abrogar
G.R. No. 107303
Feb 21, 1994
Rule 57
FACTS:
Sun Life Assurance Company of Canada (Sun Life) filed a complaint for a sum of money with a prayer
for a writ of attachment against petitioners (Emmanuel C. Oñate and Econ Holdings Corporation), and
Noel L. Diño, which was raffled to Branch 150 of the RTC Makati, presided over by respondent Judge.
The following day Judge Abrogar issued an order granting the issuance of a writ of attachment. Upon
Sun Life's ex-parte motion, the trial court amended the writ of attachment to reflect the alleged
amount of the indebtedness.
On January 21, 1992, petitioners filed an "Urgent Motion to Discharge/Dissolve Writ of Attachment."
That same day, Sun Life filed an ex-parte motion to examine the books of accounts and ledgers of
petitioner Brunner Development Corporation (Brunner) at the Urban Bank, Legaspi Village Branch, and
to obtain copies thereof, which motion was granted by respondent Judge. The examination of said
account took place on January 23, 1992. Petitioners filed a motion to nullify the proceedings taken
thereat since they were not present.
On January 30, 1992, petitioners and their co-defendants filed a memorandum in support of the
motion to discharge attachment. Also on that same day, Sun Life filed another motion for examination
of bank accounts, this time seeking the examination of Account No. 0041-0277-03 with the Bank of
Philippine Islands (BPI) — which, incidentally, petitioners claim not to be owned by them — and the
records of Philippine National Bank (PNB) with regard to checks payable to Brunner. Sun Life asked the
court to order both banks to comply with the notice of garnishment.
On February 6, 1992, respondent Judge issued an order (1) denying petitioners' and the co-defendants'
motion to discharge the amended writ of attachment, (2) approving Sun Life's additional attachment,
(3) granting Sun Life's motion to examine the BPI account, and (4) denying petitioners' motion to nullify
the proceedings of January 23, 1992.
Hence, the instant petitions of CERTIORARI WITH PRAYER FOR A TRO.
Issue:
1) Whether or not respondent Judge had acted with grave abuse of discretion in issuing ex parte the
original and amended writs of preliminary attachment and the corresponding notices of garnishment
and levy on attachment pending acquisition of the jurisdiction of the RTC.
2) Whether or not respondent Judge had acted with grave abuse of discretion amounting to lack or in
excess of jurisdiction in allowing the examination of the bank records though no notice was given to
them.
Ruling/Ratio:
UNMERITORIOUS FOR BOTH.
#1 Petitioners initially argue that respondent Judge erred in granting Sun Life's prayer for a writ of
preliminary attachment on the ground that the trial court had not acquired jurisdiction over them. This
argument is clearly unavailing since it is well-settled that a writ of preliminary attachment may be
validly applied for and granted even before the defendant is summoned or is heard from.
Rule 57 in fact speaks of the grant of the remedy "at the commencement of the action or at any time
thereafter." The phrase "at the commencement of the action," obviously refers to the date of the filing
of the complaint — which, as abovepointed out, its the date that marks "the commencement of the
action;" and the reference plainly is to a time before summons is served on the defendant or even
before summons issues.
RE ALLEGED FRAUD IN CONTRACTING THE OBLIGATION
Petitioners then contended that the writ should have been discharged since the ground on which it
was issued — fraud in contracting the obligation — was not present. This cannot be considered a
ground for lifting the writ since this delves into the very complaint of the Sun Life.
Moreover, an attachment may not be dissolved by a showing of its irregular or improper issuance if it is
upon a ground which is at the same time the applicant's cause of action in the main case since an
anomalous situation would result if the issues of the main case would be ventilated and resolved in a
mere hearing of the motion.
In the present case, one of the allegation in petitioner's complaint below is that the defendant spouses
induced the plaintiff to grant the loan by issuing postdated checks to cover the installment payments
and a separate set of postdated checks for payment of the stipulated interest.The issue of fraud, then,
is clearly within the competence of the lower court in the main action.
RE WRIT PRECEEDING SUMMONS
Finally, petitioners argue that the enforcement of the writ was invalid since it undisputedly preceded
the actual service of summons by six days at most. We do not agree entirely with petitioners. True, this
Court had held in a recent decision that the enforcement of writ of attachment may not validly be
effected until and unless proceeded or contemporaneously accompanied by service of summons.
But we must distinguish the case at bar from other cases. In those other cases, summons was never
served upon the defendants. The plaintiffs therein did not even attempt to cause service of summons
upon the defendants. This is not true in the case at bar. The records reveal that Sheriff Flores and Sun
Life did attempt a contemporaneous service of both summons and the writ of attachment, but we
stymied by the absence of a responsible officer in petitioners' offices. Note is taken of the fact that
petitioners Oñate and Econ Holdings admitted in their answer that the offices of both Brunner
Development Corporation and Econ Holdings were located at the same address and that petitioner
Oñate is the President of Econ Holdings while petitioner Diño is the President of Brunner Development
Corporation as well as a stockholder and director of Econ Holdings.
Thus, an exception to the established rule on the enforcement of the writ of attachment can be
made where a previous attempt to serve the summons and the writ of attachment failed due to
factors beyond the control of either the plaintiff or the process server, provided that such service is
effected within a reasonable period thereafter.
Several reasons can be given for the exception. First, there is a possibility that a defendant, having
been alerted of plaintiffs action by the attempted service of summons and the writ of attachment,
would put his properties beyond the reach of the plaintiff.
Second, the court eventually acquired jurisdiction over the petitioners six days later. To nullify the
notices of garnishment issued prior thereto would again open the possibility that petitioners would
transfer the garnished monies while Sun Life applied for new notices of garnishment.
Third, the ease by which a writ of attachment can be obtained is counter-balanced by the ease by
which the same can be discharged: the defendant can either make a cash deposit or post a counter-
bond equivalent to the value of the property attached. The petitioners herein tried to have the writ of
attachment discharged by posting a counter-bond, the same was denied by respondent Judge on the
ground that the amount of the counter-bond was less than that of Sun Life's bond.
#2 NO. Petitioners' second ground assail the acts of respondent Judge in allowing the examination of
Urban Banks' records and in ordering that the examination of the bank records of BPI and PNB as
invalid since no notice of said examinations were ever given them. Sun Life grounded its requests for
the examination of the bank accounts on Section 10, Rule 57 of the Rules of Court.
It is clear from the foregoing provision that notice need only be given to the garnishee, but the person
who is holding property or credits belonging to the defendant. The provision does not require that
notice be furnished the defendant himself, except when there is a need to examine said defendant "for
the purpose of giving information respecting his property.
Furthermore, Section 10 Rule 57 is not incompatible with Republic Act No. 1405, as amended, "An Act
Prohibiting Disclosure or Inquiry Into, Deposits With Any Banking Institution and Providing Penalty
Therefore," for Section 2 therefore provides an exception "in cases where the money deposited or
invested is the subject matter of the litigation."
WATERCRAFT VENTURE CORP. v. ALFRED RAYMOND WOLFE
G.R. No. 181721 September 09, 2015
PERALTA, J.:
RULE 57 – PRELIMINARY ATTACHMENT
FACTS
Petitioner Watercraft Venture Corporation (Watercraft) is engaged in the business of
building, repairing, storing and maintaining yachts, boats and other pleasure crafts at the Subic Bay
Freeport Zone, Subic, Zambales. It hired respondent Alfred Raymond Wolfe (Wolfe), a British national
and resident of Subic Bay Freeport Zone, Zambales, as its Shipyard Manager. During his employment,
Wolfe stored the sailboat, Knotty Gull, within Watercraft1’s boat storage facilities, but never paid for
the storage fees. Later on, Watercraft terminated Wolfe’s employment.
Sometime in June 2002, Wolfe pulled out his sailboat from Watercraft's storage facilities after
signing a Boat Pull-Out Clearance where he allegedly acknowledged the outstanding obligation of
US$16,324.82 representing unpaid boat storage fees. Despite repeated demands, he failed to pay the
said amount. Thus, Watercraft filed a Complaint for Collection of Sum of Money with Damages with an
Application for the Issuance of a Writ of Preliminary Attachment.
Wolfe on the other hand, claimed that he was hired as Service and Repair Manager, instead
of Shipyard Manager and denied owing Watercraft the amount of US$16,324.82. He explained that the
sailboat was purchased in February 1998 as part of an agreement between him and Watercraft1’s then
General Manager and President for repair and be used as training or fill-in project for the staff, and to
be sold later on.
 RTC granted Watercraft’s application for Writ of Preliminary attachment. CA on the other
hand, granted Wolfe’s petition, annulling and setting aside the Writ of attachment, and declaring null
and void the Notice of attachment and levy.
ISSUE
WON the allegations of fraud are sufficient to warrant the ex-parte issuance of the Writ of
Preliminary Attachment in favor of Petitioner Watercraft.
HELD
A writ of preliminary attachment is defined as a provisional remedy issued upon order of the
court where an action is pending to be levied upon the property or properties of the defendant
therein, the same to be held thereafter by the sheriff as security for the satisfaction of whatever
judgment that might be secured in the said action by the attaching creditor against the defendant.
For the issuance of an ex-parte issuance of the preliminary attachment to be valid, an
affidavit of merit and an applicant's bond must be filed with the court in which the action is pending.
Such bond executed to the adverse party in the amount fixed by the court is subject to the conditions
that the applicant will pay:
1. All costs which may be adjudged to the adverse party; and
2. All damages which such party may sustain by reason of the attachment, if the court shall
finally adjudge that the applicant was not entitled thereto.
As to the requisite affidavit of merit, Section 3 Rule 57 of the Rules of Court states that an order of
attachment shall be granted only when it appears in the affidavit of the applicant, or of some other
person who personally knows the facts:
1. that a sufficient cause of action exists;
2. that the case is one of those mentioned in Section 1[17] hereof;
3. that there is no other sufficient security for the claim sought to be enforced by the action;
and
4. 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 is granted above all legal
counterclaims.
The mere filing of an affidavit reciting the facts required by Section 3, Rule 57, however, is not enough
to compel the judge to grant the writ of preliminary attachment. The sufficiency or insufficiency of an
affidavit depends upon the amount of credit given it by the judge, and its acceptance or rejection, upon
his sound discretion. Watercraft failed to state with particularity the circumstances constituting fraud,
as required by Section 5 Rule 8 of the Rules of Court, and that Wolfe's mere failure to pay the boat
storage fees does not necessarily amount to fraud, absent any showing that such failure was due to
insidious machinations and intent on his part to defraud Watercraft of the amount due it. Watercraft's
Affidavit of Preliminary Attachment does not contain specific allegations of other factual circumstances
to show that Wolfe, at the time of contracting the obligation, had a preconceived plan or intention not
to pay. Neither can it be inferred from such affidavit the particulars of why he was guilty of fraud in the
performance of such obligation.
Megaworld v Majestic Finance
Facts: On September 23, 1994, Megaworld Properties and Holdings, Inc. (developer) entered
into a Joint Venture Agreement (JVA) 4 with Majestic Finance and Investment Co., Inc.
(owner) for the development of the residential subdivision located in Brgy. Alingaro, General
Trias, Cavite. According to the JVA, the development of the 215 hectares of land belonging to
the owner (joint venture property) would be for the sole account of the developer; 5 and that
upon completion of the development of the subdivision, the owner would compensate the
developer in the form of saleable residential subdivision lots. 6 The JVA further provided that
the developer would advance all the costs for the relocation and resettlement of the
occupants of the joint venture property, subject to reimbursement by the owner; 7 and that
the developer would deposit the initial amount of P10,000,000.00 to defray the expenses for
the relocation and settlement, and the costs for obtaining from the Government the
exemptions and conversion permits, and the required clearances.
On September 24, 1994, the developer and owner agreed, through the addendum to the
JVA,9 to increase the initial deposit for the settlement of claims and the relocation of the
tenants from P10,000,000.00 to P60,000,000.00. On October 27, 1994, the developer, by
deed of assignment,10 transferred, conveyed and assigned to Empire East Land Holdings, Inc.
(developer/assignee) all its rights and obligations under the JVA including the addendum.
On February 29, 2000, the owner filed in the RTC a complaint for specific performance with
damages against the developer, the developer/assignee, and respondent Andrew Tan, who
are now the petitioners herein. It was mainly based on the failure of the petitioners to
comply with their obligations under the JVA, including the obligation to maintain a strong
security force to safeguard the entire joint venture property of 215 hectares from illegal
entrants and occupants.
At the conclusion of the pre-trial conference set by the RTC, the presentation of the owner's
evidence was suspended because of the parties' manifestation that they would settle the
case amicably. It appears that the parties negotiated with each other on how to implement
the JVA and the addendum.
 It appears that upon the execution of the JVA, the parties were performing their respective
 the owner filed in the RTC a manifestation and motion, 12 praying therein that the petitioners obligations until disagreement arose between them that affected the subsequent
be directed to provide round-the-clock security for the joint venture property in order to performance of their accrued obligations. Being reciprocal in nature, their respective
defend and protect it from the invasion of unauthorized persons. The petitioners opposed obligations as the owner and the developer were dependent upon the performance by the
the manifestation and motion,13 pointing out that: (1) the move to have them provide other of its obligations; hence, any claim of delay or non-performance against the other
security in the properties was premature; and (2) under the principle of reciprocal could prosper only if the complaining party had faithfully complied with its own correlative
obligations, the owner could not compel them to perform their obligations under the JVA if obligation.
the owner itself refused to honor its obligations under the JVA and the addendum.
Yet, the record is bereft of the proof to support the lower courts' unanimous conclusion that
The RTC rendered decision directing developer to provide round-the-clock security the owner had already performed its correlative obligation under the JVA as to place itself in
protection of the joint venture property (Nov. 5, 2002 decision). CA dismissed the petition. the position to demand that the developer should already perform its obligation of providing
the round-the-clock security on the property. In issuing its order of November 5, 2002,
Issue: Whether or not the petitioners are obligated to perform their obligations under the therefore, the RTC acted whimsically because it did not first ascertain whether or not the
JVA, including that of providing round-the-clock security for the subject properties, despite precedent reciprocal obligation of the owner upon which the demanded obligation of the
respondents' failure or refusal to acknowledge, or perform their reciprocal obligations there developer was dependent had already been performed. Without such showing that the
developer had ceased to perform a continuous obligation to provide security over the joint
Held: The appeal is meritorious. The CA erred in upholding the November 5, 2002 order of venture property despite complete fulfillment by the owner of all its accrued obligations, the
the RTC. owner had no right to demand from the developer the round-the-clock security over the 215
hectares of land.
The obligations of the parties under the JVA were unquestionably reciprocal. Reciprocal
obligations are those that arise from the same cause, and in which each party is a debtor and
a creditor of the other at the same time, such that the obligations of one are dependent
upon the obligations of the other. They are to be performed simultaneously, so that the
performance by one is conditioned upon the simultaneous fulfillment by the other.
According to Article 1184 of the Civil Code, the condition that some event happen at a
determinate time shall extinguish the obligation as soon as the time expires, or if it has
become indubitable that the event will not take place. Here, the common cause of the
parties in entering into the joint venture was the development of the joint venture property
into the residential subdivision as to eventually profit therefrom. Consequently, all of the
obligations under the JVA were subject to the happening of the complete development of
the joint venture property, or if it would become indubitable that the completion would not
take place, like when an obligation, whether continuous or activity, was not performed.
Should any of the obligations, whether continuous or activity, be not performed, all the
other remaining obligations would not ripen into demandable obligations while those
already performed would cease to take effect. This is because every single obligation of each
party under the JVA rested on the common cause of profiting from the developed
subdivision.

CRIMPRO
Title GR No. 217126-27
CARPIO-Morales vs. CA Date: Nov 10, 2015
Ponente: Perlas-Bernabe, J.
CONCHITA CARPIO MORALES, IN HER COURT OF APPEALS (SIXTH DIVISION)
CAPACITY AS THE OMBUDSMAN – AND JEJOMAR ERWIN S. BINAY, JR. –
Petitioners Respondents
Before the Court is a petition for certiorari and prohibition2 filed on March 25, 2015 by petitioner
Conchita Carpio Morales, in her capacity as the Ombudsman (Ombudsman), through the
Office of the Solicitor General (OSG), assailing: (a) the Resolution 3 dated March 16, 2015 of
public respondent the Court of Appeals (CA) in CA-G.R. SP No. 139453, which granted private
respondent Jejomar Erwin S. Binay, Jr.'s (Binay, Jr.) prayer for the issuance of a temporary
restraining order (TRO) against the implementation of the Joint Order 4 dated March 10, 20,15
of the Ombudsman in OMB-C-A-15-0058 to 0063 (preventive suspension order) preventively
suspending him and several other public officers and employees of the City Government of
Makati, for six (6) months without pay; and (b) the Resolution5 dated March 20, 2015 of the CA,
ordering the Ombudsman to comment on Binay, Jr.'s petition for contempt6 in CA-G.R. SP No.
139504.
FACTS
 A complaint was filed by Atty. Renato Bondal and Nicolas Enciso VI before the
Ombudsmans against Binay, Jr and other public officers of City of Makati charging
them of of Plunder  and violation of Republic Act No. (RA) 3019, otherwise known as
"The Anti-Graft and Corrupt Practices Act," in connection with the five (5) phases of
the procurement and construction of the Makati City Hall Parking Building (Makati
Parking Building).
 A Special Panel of Investigators created by the Ombudsman to conduct a fact-finding
investigation charged them with 6 administrative cases  for Grave Misconduct,
Serious Dishonesty, and Conduct Prejudicial to the Best Interest of the Service, and
six (6) criminal cases for violation of Section 3 (e) of RA 3019, Malversation of Public
Funds, and Falsification of Public Documents (OMB Cases). <See Notes Letter “A”
for their violation/s)
 Before Binay, Jr., et al.'s filing of their counter-affidavits, the Ombudsman, the subject
preventive suspension order, placing Binay, Jr., et al.  under preventive suspension
for not more than six (6) months without pay, during the pendency of the OMB
Cases.53 The Ombudsman ruled that the requisites for the preventive suspension of a
public officer are present,54 finding that:
o (a) the evidence of Binay, Jr.,  et al.'s guilt was strong given that
 (1) the losing bidders and members of the Bids and Awards
Committee of Makati City had attested to the irregularities attending
the Makati Parking Building project;
 (2) the documents on record negated the publication of bids; and
 (3) the disbursement vouchers, checks, and official receipts showed
the release of funds; and
o (b) (1) Binay, Jr., et al. were administratively charged with Grave
Misconduct, Serious Dishonesty, and Conduct Prejudicial to the Best Interest
of the Service;
o (2) said charges, if proven to be true, warrant removal from public service
under the Revised Rules on Administrative Cases in the Civil Service
(RRACCS), and
o (3) Binay, Jr., et al.'s respective positions give them access to public records
and allow them to influence possible witnesses; hence, their continued stay
in office may prejudice the investigation relative to the OMB Cases filed
against them.
o Binay’s Contentions;
-that he could not be held administratively liable for any anomalous activity
attending any of the five (5) phases of the Makati Parking Building project
since: (a) Phases I and II were undertaken before he was elected Mayor of
Makati in 2010; and (b) Phases III to V transpired during his first term and
that his re-election as City Mayor of Makati for a second term effectively
condoned his administrative liability therefor, if any, thus rendering the
administrative cases against him moot and academic.
In any event, Binay, Jr. claimed that the Ombudsman's preventive
suspension order failed to show that the evidence of guilt presented against
him is strong, maintaining that he did not participate in any of the purported
irregularities.62 In support of his prayer for injunctive relief, Binay, Jr. argued
that he has a clear and unmistakable right to hold public office, having won
by landslide vote in the 2010 and 2013 elections, and that, in view of the
condonation doctrine, as well as the lack of evidence to sustain the charges
against him, his suspension from office would undeservedly deprive the
electorate of the services of the person they have conscientiously chosen
and voted into office.
 In view of the CA's supervening issuance of a WPI pursuant to its April 6, 2015
Resolution, the Ombudsman filed a supplemental petition99 before this Court, arguing
that the condonation doctrine is irrelevant to the determination of whether the
evidence of guilt is strong for purposes of issuing preventive suspension orders. The
Ombudsman also maintained that a reliance on the condonation doctrine is a matter
of defense, which should have been raised by Binay, Jr. before it during the
administrative proceedings, and that, at any rate, there is no condonation because
Binay, Jr. committed acts subject of the OMB Complaint after his re-election in 2013
ISSUE/S
1. Whether or not the CA has subject matter jurisdiction to issue a TRO and/or WPI
enjoining the implementation of a preventive suspension order issued by the
Ombudsman; -YES
2. Whether or not the CA gravely abused its discretion in issuing the TRO and
 eventually, the WPI in CA-G.R. SP No. 139453 enjoining the implementation of the
preventive suspension order against Binay, Jr. based on the condonation doctrine
-NO
RATIO
1. OMB contends that the CA has no jurisdiction to issue any provisional injunctive
writ against her office to enjoin its preventive suspension orders. As basis, she
invokes the first paragraph of Section 14, RA 6770 in conjunction with her office's
independence under the 1987 Constitution. She advances the idea that "[i]n order to
further ensure [her office's] independence, [RA 6770] likewise insulated it from judicial
intervention,"157particularly, "from injunctive reliefs traditionally obtainable from the
courts,"158 claiming that said writs may work "just as effectively as direct harassment
or political pressure would."
 Gonzales III v. Office of the President is the first case which grappled with the
meaning of the Ombudsman's independence vis-a-vis the independence of the other
constitutional bodies. the concept of Ombudsman's independence covers three (3)
things:
First: creation by the Constitution, which means that the office cannot be abolished,
nor its constitutionally specified functions and privileges, be removed, altered, or
modified by law, unless the Constitution itself allows, or an amendment thereto is
made;cralawlawlibrary
Second: fiscal autonomy, which means that the office "may not be obstructed from
[its] freedom to use or dispose of [its] funds for purposes germane to [its]
functions;168hence, its budget cannot be strategically decreased by officials of the
political branches of government so as to impair said functions; and
Third: insulation from executive supervision and control, which means that those
within the ranks of the office can only be disciplined by an internal authority.
Evidently, all three aspects of independence intend to protect the Office of the
Ombudsman frompolitical harassment and pressure, so as to free it from the
"insidious tentacles of politics."
 That being the case, the concept of Ombudsman independence cannot be invoked as
basis to insulate the Ombudsman from judicial power constitutionally vested unto the
courts. Courts are apolitical bodies, which are ordained to act as impartial tribunals
and apply even justice to all. Hence, the Ombudsman's notion that it can be exempt
from an incident of judicial power - that is, a provisional writ of injunction against a
preventive suspension order - clearly strays from the concept's rationale of insulating
the office from political harassment or pressure.
2. As earlier established, records disclose that the CA's resolutions directing the issuance of
the assailed injunctive writs were all hinged on cases enunciating the condonation doctrine. To
recount, the March 16, 2015 Resolution directing the issuance of the subject TRO was based
on the case of Governor Garcia, Jr., while the April 6, 2015 Resolution directing the issuance
of the subject WPI was based on the cases of Aguinaldo, Salalima, Mayor Garcia, and
again, Governor Garcia, Jr. Thus, by merely following settled precedents on the condonation
doctrine, which at that time, unwittingly remained "good law," it cannot be concluded that the
CA committed a grave abuse of discretion based on its legal attribution above. Accordingly, the
WPI against the Ombudsman's preventive suspension order was correctly issued.
With this, the ensuing course of action should have been for the CA to resolve the main
petition forcertiorari  in CA-G.R. SP No. 139453 on the merits. However, considering that the
Ombudsman, on October 9, 2015, had already found Binay, Jr. administratively liable and
imposed upon him the penalty of dismissal, which carries the accessory penalty of perpetual
disqualification from holding public office, for the present administrative charges against him,
the said CA petition appears to have been mooted.313 As initially intimated, the preventive
suspension order is only an ancillary issuance that, at its core, serves the purpose of assisting
the Office of the Ombudsman in its investigation. It therefore has no more purpose - and
perforce, dissolves - upon the termination of the office's process of investigation in the instant
administrative case.
RULING
WHEREFORE, the petition is PARTLY GRANTED. Under the premises of this Decision, the
Court resolves as follows:
(a) the second paragraph of Section 14 of Republic Act No. 6770 is
declared UNCONSTITUTIONAL, while the policy against the issuance of provisional injunctive
writs by courts other than the Supreme Court to enjoin an investigation conducted by the Office
of the Ombudsman under the first paragraph of the said provision is DECLARED ineffective
until the Court adopts the same as part of the rules of procedure through an administrative
circular duly issued therefor;cralawlawlibrary
(b) The condonation doctrine is ABANDONED, but the abandonment is PROSPECTIVE in
effect;craly
(c) The Court of Appeals (CA) is DIRECTED to act on respondent Jejomar Erwin S. Binay, Jr.'s
(Binay, Jr.) petition for certiorari in CA-G.R. SP No. 139453 in light of the Office of the
Ombudsman's supervening issuance of its Joint Decision dated October 9, 2015 finding Binay,
Jr. administratively liable in the six (6) administrative complamts, docketed as OMB-C-A-15-
0058, OMB-C-A-15-0059, OMB-C-A-15-0060, OMB-C-A-15-0061, OMB-C-A-15-0062, and
OMB-C-A-15-0063; and
(d) After the filing of petitioner Ombudsman Conchita Carpio Morales's comment, the CA is
DIRECTED to resolve Binay, Jr.'s petition for contempt in CA-G.R. SP No. 139504 with utmost
dispatch.
Notes
A. Binay’s First Term:
o Binay, Jr. issued the Notice of Award21 for Phase III, IV and V of the Makati
Parking Building project to Hilmarc's Construction Corporation (Hilmarc's),
and consequently, executed the corresponding contract without the required
publication and the lack of architectural design,24 and approved the release
of funds therefor.
Binay’s Second Term:
o Binay, Jr. approved the release of funds for the remaining balance of
contract with Hilmarc's for Phase V of the Makati Parking Building project;
and
o Approved the release of funds for the remaining balance of the
contract48 with MANA Architecture & Interior Design Co. (MANA) for the
design and architectural services covering the Makati Parking Building.
B. Section 5, Article XI of the 1987 Constitution guarantees the independence of
the Office of the Ombudsman:
Section 5. There is hereby created the independent Office of the
Ombudsman, composed of the Ombudsman to be known as Tanodbayan,
one overall Deputy and at least one Deputy each for Luzon, Visayas[,] and
Mindanao. A separate Deputy for the military establishment may likewise be
appointed.  involving infrastructure projects, the prohibition extends only to the issuance of injunctions or
C. The law sets forth two (2) conditions that must be satisfied to justify the issuance of
an order of preventive suspension pending an investigation, namely:
(1) The evidence of guilt is strong; and
(2) Either of the following circumstances co-exist with the first requirement:
(a) The charge involves dishonesty, oppression or grave misconduct or
neglect in the performance of duty;cralawlawlibrary
(b) The charge would warrant removal from the service; or
(c) The respondent's continued stay in office may prejudice the case filed
against him.
D.  CONDONATION DOCTRINE-
limited empowerment of the electorate over the accountabilities of their elective local
officials. It is limited because it does not cover criminal accountabilities. It is a legal fiction
grounded upon a presumed knowledge of all the activities and behavior of the elective local
official. It is presumed that when the electorate exercised their right to choose, they were all
aware of “all” the misconducts of the public official.
ONG
http://www.chanrobles.com/cralaw/2015novemberdecisions.php?id=941
G.R. No. 145328 March 23, 2006
EDUARDO F. HERNANDEZ et al, petitioners 
vs.
NATIONAL POWER CORPORATION, respondent
CHICO-NAZARIO, J.:
DOCTRINE:
Although Presidential Decree No. 1818 prohibits any court from issuing injunctions in cases
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.
FACTS: NAPOCOR began the construction of steel poles or towers in connection with its
Power Transmission Project. Petitioners in search of the adverse effects, 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 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. Negotiations being
unsuccessful, petitioners filed a Complaint for Damages with Prayer for the Issuance of a
Temporary Restraining Order and/or a Writ of Preliminary Injunction against NAPOCOR. The
lower court then issued an order temporarily restrained the respondent from energizing and
transmitting high voltage electric current through the said project.
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:
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
The Court of Appeals however reversed the trial court’s order hence, this petition for review.
ISSUE: Whether or not the trial court may issue a temporary restraining order and preliminary
injunction to enjoin the construction and operation of the steel poles or towers by the
NAPOCOR, notwithstanding Presidential Decree No. 1818.
HELD: AFFIRMATIVE. Presidential Decree No. 1818 was issued 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.
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.
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.
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.
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. Moreover, the Local Government
Code, requires conference with the affected communities of a government project. NAPOCOR,
palpably, made a shortcut to this requirement.
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.
04 BUYCO VS BARAQUIA
GR. NO. 84034 | December 22, 1988 | Feliciano, J.
EMERGENCY RECIT:
Baraquiafiled a complaint for the establishment of a permanent right of way, injunction and
damages with preliminary injunction and TRO to enjoin the Buycos from closing off a private
road which he uses as an access to his farm from the public highway. The RTC granted the
preliminary injunction – but after a while, the RTC dismissed the claim for failure to establish
the requisites to establish the right of way, thus, the preliminary injunction was lifter. Baraquia
filed a notice of appeal while Buyco filed a partial notice of appeal. Baraquia filed a motion to
cite Buyco in contempt for closing the road which was a violation of the injunction. RTC stated
that the injunction remained valid and held petitioners in contempt. Petitioner moved for
reconsideration and was granted by the court. SC held that the writ of injunction, being an
ancillary remedy, it is available during the pendency of the action which may be resorted to by
a litigant to preserve and protect certain rights and interests therein pending rendition, and for
purposes of the ultimate effects, of a final judgment in the case. (read doctrine)
DOCTRINE/S:
A writ of preliminary injunction is an order granted at any stage of an action or
proceeding prior to the judgment or final order, requiring a party or a court, agency or a
person to refrain from a particular act or acts. It is merely a provisional remedy, adjunct
to the main case subject to the latters outcome. It is not a cause of action in itself. Being an
ancillary or auxiliary remedy, it is available during the pendency of the action which may be
resorted to by a litigant to preserve and protect certain rights and interests therein pending
rendition, and for purposes of the ultimate effects, of a final judgment in the case.
FACTS:
 Baraquia (respondent) filed a complaint before the RTC of Iloilo against the Buycos
for the establishment of a permanent right of way, injunction and damages with
preliminary injunction and temporary restraining order, to enjoin the Buycos from
closing off a private road within their property which was used by him to access his
poultry farm from the public highway.
 The petitioner, Buyco, substituted The Buycos during the pendency of the case (the
original petitioners died).
 RTC granted Baraquias application for preliminary injunction.
 February 14, 2007: RTC dismissed the complaint for failure to establish the requisites
for right of way under Art. 649 and 650 of the Civil Code, thus, the preliminary
injunction as lifted.
 A notice of appeal was filed by Baraquia, while Buyco filed a notice of partial appeal
on the non-award of the prayer for damages.
 Baraquia filed a motion to cite Buyco and his brother in contempt for closing the road
which violated the writ of preliminary injunction.
 March 13, 2007: RTC resolved the issue by saying that the writ of preliminary
injunction remained to be valid, efficacious and obligatory, when Buyco closed the
road on March 1, which is an indirect contempt of court.
 Petitioner moved for reconsideration contending that a preliminary injunction, once
quashed, ceases to exist, and that they cannot be held guilty of indirect contempt by a
mere motion.
 April 18, 2008: The trial court set aside the March 13 Resolution and granted the
petitioners motion for reconsideration stating that there must be a verified petition for
them to be held in contempt.
o RE: lifetime of the preliminary injunction – the matter of whether a writ of
preliminary injunction remains valid until the decision annulling the same
attains finality is not firmly entrenched in jurisprudence.
 Hence, this petition for review.
ISSUE/S:
1. Whether or not the lifting of a writ of preliminary injunction due to the dismissal of the
complaint is immediately executor, even if the dismissal of the complaint is pending
appeal. – YES.
HELD:
A writ of preliminary injunction is an order granted at any stage of an action or
proceeding prior to the judgment or final order, requiring a party or a court, agency or a
person to refrain from a particular act or acts. It is merely a provisional remedy, adjunct
to the main case subject to the latters outcome. It is not a cause of action in itself. Being an
ancillary or auxiliary remedy, it is available during the pendency of the action which may be
resorted to by a litigant to preserve and protect certain rights and interests therein pending
rendition, and for purposes of the ultimate effects, of a final judgment in the case.
The writ is provisional because it constitutes a temporary measure availed of during the
pendency of the action and it is ancillary because it is a mere incident in and is dependent
upon the result of the main action.
It is well-settled that the sole object of a preliminary injunction, whether prohibitory or
mandatory, is to preserve the status quo until the merits of the case can be heard. It is
usually granted when it is made to appear that there is a substantial controversy between the
parties and one of them is committing an act or threatening the immediate commission of an
act that will cause irreparable injury or destroy the status quo of the controversy before a full
hearing can be had on the merits of the case.
Indubitably, in the case at bar, the writ of preliminary injunction was granted by the lower court
upon respondents showing that he and his poultry business would be injured by the closure of
the subject road. After trial, however, the lower court found that respondent was not entitled to
the easement of right of way prayed for, having failed to prove the essential requisites for such
entitlement, hence, the writ was lifted.
The present case having been heard and found dismissible as it was in fact dismissed, the writ
of preliminary injunction is deemed lifted, its purpose as a provisional remedy having been
served, the appeal therefrom notwithstanding.
There being no indication that the appellate court issued an injunction in respondents favor,
the writ of preliminary injunction issued on December 1, 1999 by the trial court was
automatically dissolved upon the dismissal of Civil Case No. 26015.
 
WHEREFORE, the petition is GRANTED. The Resolution dated April 18, 2007 of the trial court
is REVERSED. The writ of preliminary injunction which Branch 39 of the Iloilo Regional Trial
Court issued on December 1, 1999 was automatically dissolved upon its dismissal by Decision
of February 14, 2007 of Civil Case No. 26015.

G.R. No. 167238               March 25, 2009
DEVELOPMENT BANK OF THE PHILIPPINES, Petitioner,
vs.
SPOUSES JESUS and ANACORITA DOYON, Respondents.
DECISION
CORONA, J.:
This petition1 seeks to the set aside the November 23, 2004 decision2 and February 18, 2005
resolution3 of the Court of Appeals (CA) in CA-G.R. CV No. 74660.
In the early 1990s, respondent spouses Jesus and Anacorita Doyon obtained several loans
amounting to ₱10 million4 from petitioner Development Bank of the Philippines (DBP). As
security for the loans, respondents mortgaged their real estate properties as well as the motor
vehicles of JD Bus Lines.
Due to their inability to fully pay their obligations upon maturity, 5 respondents requested
petitioner to restructure their past due loans.6 Petitioner agreed. Hence, respondents signed
three promissory notes on June 29, 1994.7
Nonetheless, respondents still failed to pay the quarterly installments on the promissory notes.
Thus, petitioner demanded the payment of the total value of their loans from
respondents.8 Respondents, however, ignored petitioner and adamantly refused to pay their
loans.
Consequently, petitioner filed an application for extrajudicial foreclosure of real estate
mortgages in the Regional Trial Court (RTC) of Ormoc City in 1995. To forestall the foreclosure
proceedings, respondents immediately filed an action for their nullification in the RTC of Ormoc
City, Branch 35 claiming that they had already paid the principal amount of their loans (or ₱10
million) to petitioner. This was docketed as Civil Case No. 3314-O.
For three years, Civil Case No. 3314-O was not acted upon by the RTC.
In 1998, petitioner withdrew the application for extrajudicial foreclosure and thereafter moved
for the dismissal of Civil Case No. 3314-O. The RTC granted the motion in an order dated
March 2, 1998.9 It held:
In today’s hearing, which is for the reception of evidence for [petitioner], [it] informed the Court
about its withdrawal of the [application] for extrajudicial foreclosure of real estate made subject
of the present case. In view of the withdrawal, [petitioner] moved for the dismissal of the case
considering that the action would be rendered moot and academic.
When [respondents were] made to comment, they interposed no objection to the motion to
dismiss.
By agreement therefore between the parties, this case is considered DISMISSED with
prejudice.
Weeks later, petitioner demanded from respondents the payment of their outstanding
obligations which had by then ballooned to more than ₱20 million. Again, respondents ignored
petitioner.
Petitioner filed an application for extrajudicial foreclosure of respondents’ real and chattel
mortgages with the DBP special sheriff in Makati 10 and subsequently took constructive
possession of the foreclosed properties.11 It posted guards at the perimeter of respondents’
property in Barangay Cabulihan, Ormoc City (Cabulihan property) where the foreclosed motor
vehicles of JD Bus Lines were parked.12 Subsequently, the DBP special sheriff issued notices
of sale at public auction of the foreclosed properties.13
Meanwhile, respondents filed a complaint for damages 14 against petitioner and the DBP
special sheriff in the RTC of Ormoc City, Branch 35. According to respondents, by withdrawing
the application for extrajudicial foreclosure and moving for the dismissal of Civil Case No.
3314-O, petitioner led them to believe that it would no longer seek the satisfaction of its claims.
Petitioner therefore acted contrary to Article 19 of the Civil Code 15 when it foreclosed on the
real and chattel mortgages anew.
Furthermore, respondents claimed that the provision in the mortgage contracts 16 allowing
petitioner as mortgagee to take constructive possession of the mortgaged properties upon
respondents’ default was void. The provision allegedly constituted a pactum
commissorium17 since it permitted petitioner to appropriate the mortgaged properties.
Lastly, respondents assailed the validity of the public auctions conducted by the DBP special
sheriff. The September 9, 1998 notices of sale stated that the foreclosed real properties would
be sold at public auction on "September 16, 1998 at 10:00 a.m. or soon thereafter" 18 while the
foreclosed motor vehicles would be sold on "September 16, 1998 at 2:00 p.m. or soon
thereafter."19 Section 4 of Act 3135,20 however, requires that public auctions must take place
from 9 a.m. until 4 p.m. or, allegedly, for seven continuous hours.
Petitioner, in its answer, pointed out that despite the restructuring, respondents refused to pay
the amortizations on the June 29, 2004 promissory notes. Moreover, the filing of Civil Case No.
3314-O and the delay in its resolution prevented petitioner from collecting on the said notes
from respondents. It withdrew the application in the RTC and moved for the dismissal of Civil
Case No. 3314-O only for the purpose of availing of a more efficient legal remedy, that
is, foreclosure through a special sheriff, as authorized by its charter.21
In a decision dated January 25, 2002,22 the RTC found that, by withdrawing its application for
extrajudicial foreclosure and moving for the dismissal of Civil Case No. 3314-O, petitioner led
respondents to believe that their loans had been extinguished. Thus, petitioner acted in bad
faith when it foreclosed on the real and chattel mortgages anew. The dispositive portion of the
decision read:
Wherefore, after due consideration of all the foregoing, judgment is hereby rendered in favor of
[respondents] and against [petitioner], ordering as follows:
1. [petitioner] to immediately stop the presence of its security guards in the compound or
premises of the plaintiffs at Barangay Cabulihan, Ormoc City, and to vacate them from said
premises;
2. [petitioner] to pay actual damages to [respondents] in the total amount of ₱16,000 per day
for the four buses, or a total of ₱480,000 per month for these buses starting from April 27,
1998 until the time the buses shall have been allowed to leave the compound of [respondents]
or until [petitioner] shall vacate the said premises, and ₱200,000 as compensatory damages
for the injury to [respondents'] business standing;
3. [petitioner] to pay ₱1,000,000 as exemplary damages;
4. [petitioner and the DBP special sheriff] jointly and severally to pay the plaintiffs the sum of
₱2,000,000 as moral damages, the sum of ₱50,000 as attorney's fees, the sum of ₱10,000 as
litigation expenses and costs of the suit.
Aggrieved, petitioner appealed to the CA. 23
In a decision dated November 23, 2004, the CA affirmed the RTC decision with modification of
the liability for damages. Because the DBP special sheriff merely performed his ministerial duty
(when he foreclosed on the real and chattel mortgages and issued notices of sale in public
auction of the foreclosed properties), petitioner alone was liable.
Petitioner moved for reconsideration but it was denied. Hence, this petition.
Petitioner basically asserts that it did not act in bad faith when it foreclosed on respondents’
real and chattel mortgages anew. Because respondents’ loans were past due, it had the right
to satisfy its credit by foreclosing on the mortgages.
We grant the petition.
This Court is not a trier of facts and, as a rule, it only entertains questions of law in a petition
for review on certiorari. This rule, however, admits of exceptions such as when the assailed
decision is based on a misapprehension of facts.24
In this instance, the RTC and the CA both found that petitioner acted with bad faith when it
foreclosed on the real and chattel mortgages. We disagree.
What is due to a person is determined by the circumstances of each particular case. 25 Article
19 of the Civil Code provides:
Article 19. Every person must, in the exercise of his rights and in the performance of his duties,
act with justice, give everyone his due and observe honesty and good faith.
For an action for damages under this provision to prosper, the complainant must prove that:
(a) defendant has a legal right or duty;
(b) he exercised his right or performed his duty with bad faith and
(c) complainant was prejudiced or injured as a result of the said exercise or performance by
defendant.
On the first requisite, we find that petitioner had the legal right to foreclose on the real and
chattel mortgages.
Since respondents neither assailed the due execution of the June 29, 1994 promissory notes
nor presented proof of payment thereof, their obligation remained outstanding. Upon default,
by prior mutual agreement, petitioner had the right to foreclose on the real and chattel
mortgages securing their loans.
The June 29, 1994 promissory notes uniformly stated that failure to pay an installment (or
interest) on the due date was an event of default.26 Respondents were therefore in default
when they failed to pay the quarterly amortizations on the designated due dates.1avvphi1.zw+
When the principal obligation becomes due and the debtor fails to perform his obligation, the
creditor may foreclose on the mortgage27 for the purpose of alienating the (mortgaged)
property to satisfy his credit.28
Regarding the second requisite, bad faith imports a dishonest purpose or some moral obliquity
or conscious doing of a wrong that partakes of the nature of fraud.29
We note that the RTC of Ormoc City (Judge Fortunito L. Madrona) "sat" on Civil Case No.
3314-O for three long years. This inordinate delay prejudiced petitioner. Inasmuch as petitioner
was in the business of lending out money it borrowed from the public, sound banking practice
called for the exercise of a more efficient legal remedy against a defaulting debtor like
respondent.30 Thus, petitioner could not be faulted for resorting to foreclosure through a special
sheriff. Such procedure was, after all, the more efficient method of enforcing petitioner’s rights
as mortgagee under its charter.31
Moreover, the March 2, 1998 order of the RTC (quoted above) merely stated that the
withdrawal of the application for extrajudicial foreclosure in the RTC rendered Civil Case No.
3314-O moot and academic. Nothing in the said order stated, or even hinted, that respondents’
obligation to petitioner had in fact been extinguished. Thus, there was nothing on the part of
petitioner even remotely showing that it led respondents to believe that it had waived its
claims.
Lastly, inasmuch as petitioner demanded payment from them right after the dismissal of Civil
Case No. 3314-O, respondents could not have reasonably presumed that the bank had waived
its claims against them. Furthermore, the fact that a demand for payment was made negated
bad faith on the part of petitioner. Despite giving respondents the opportunity to pay their long
overdue obligations and avoid foreclosure, respondents still refused to pay. Since respondents
did not have a cause of action against petitioner, the RTC and CA erred in granting damages
to them.
A stipulation allowing the mortgagee to take actual or constructive possession of a mortgaged
property upon foreclosure is valid. In Agricultural and Industrial Bank v. Tambunting,32 we
explained:
A stipulation … authorizing the mortgagee, for the purpose stated therein specified, to take
possession of the mortgaged premises upon the foreclosure of a mortgage is not repugnant [to
either Article 2088 or Article 2137]. On the contrary, such a stipulation is in consonance or
analogous to the provisions of Article [2132], et seq. of the Civil Code regarding antichresis
and the provision of the Rules of Court regarding the appointment of a receiver as a
convenient and feasible means of preserving and administering the property in litigation.33
The real estate and chattel mortgage contracts 34 uniformly provided that petitioner could take
possession of the foreclosed properties upon the failure of respondents to pay even one
amortization. Thus, respondents’ refusal to pay their obligations gave rise to petitioner’s right to
take constructive possession of the foreclosed motor vehicles.
In Philippine National Bank v. Cabatingan,35 we held that a sale at public auction held at any
time between 9:00 a.m. and 4:00 p.m. of a particular day, regardless of duration, was valid.
Since the sale at public auction of the foreclosed real properties and chattels was conducted
between 10:00 a.m. and 11:00 a.m. and between 2:00 p.m. and 3:30 p.m., respectively, the
auctions were valid.
WHEREFORE, the petition is hereby GRANTED. The November 23, 2004 decision and
February 18, 2005 resolution of the Court of Appeals in CA-G.R. CV 74660 affirming the
January 25, 2002 decision of the Regional Trial Court of Ormoc City, Branch 35 in Civil Case
No. 3592-0 are SET ASIDE. New judgment is hereby entered dismissing Civil Case No. 3592-
0 for lack of cause of action.
No pronouncement as to costs.
SO ORDERED.

G.R. No. L-30204 October 29, 1976
PACIFIC MERCHANDISING CORPORATION, Plaintiff-Appellee, vs. CONSOLACION
INSURANCE & SURETY CO., INC., defendant-appellee,
CONSOLACION INSURANCE & SURETY CO., INC., third party plaintiff-appellee,
vs. GREGORIO V. PAJARILLO, third party defendant-appellant.
Vicente T. Velasco, Jr. & Associates for plaintiff-appellee.chanrobles virtual law library
Castro, Panlaque & De Pano for defendant and third-party plaintiff-appellee.chanrobles virtual
law library
Yuseco, Abdon & Yuseco for third-party defendant-appellant.
ANTONIO, J.:
Appeal, on a question of law, from the judgment of the Court of First Instance Of Manila, dated
August 8, 1964, affirming the decision of the City Court in Civil Case No. 117811. The issue
arose from the following facts:chanrobles virtual law library
In Civil Case No. 117811, which was an action instituted by Pacific Merchandising Corporation
(plaintiff-appellee) to collect the sum of P2,562.88 from Consolacion Insurance & Surety Co.,
Inc., (defendant- appellee) who in turn filed a third-party complaint against Gregorio V. Pajarillo
(third-party defendant-appellant). the City Court of Manila rendered judgment on April 6, 1964,
the dispositive portion of which reads, in part, thus:
WHEREFORE, in view of the foregoing, judgment is hereby rendered in favor of the plaintiff
and against the defendant, ordering the latter to pay the former the sum of P2,562.88 with
interest thereon at the rate of 12% per annum from May 30, 1963 until fully paid, P100.00 as
for attorney's fees, plus the costs of suit; condemning third defendant to pay third-party plaintiff
for whatever sums or amounts tlie latter paid the plaintiff on account of this judgment.
By virtue of the appeal interposed by the third-party defendant Gregorio V. Pajarillo, the case
was elevated, on May 12, 1964, to the Court of First Instance of Manila. On July 21, 1964, the
parties, through their respective counsel, submitted the following Stipulation of Facts:
1. That on the 19th day of October, 1962, a Writ of Execution as isstica Iy the Court of First
Instance of Manila under Civil Case No. 49691, entitled Pacific Merchandising Corporation vs.
Leo Enterprises, Inc., a copy of the said Writ of Execution is attached as ANNEX Ato the
complaint;chanrobles virtual law library
2. That by virtue of the aforesaid Writ of Execution, the Sheriff of Manila levied and attached
the following:chanrobles virtual law library
'l. Second Hand AUTOMATICKET Machine No. MG-31833;and chanrobles virtual law library
'2. Cinema Projectors Complete, trademark SIMPLEX PEERLESS MAGNARC NOS. 52625
and 62387' which items were advertised for sale on March 2, 1963, copy of Notice of sale
attached as ANNEX 'B' to the Complaint; chanrobles virtual law library
3. That Atty. Greg V. Pajarillo was appointed on March 2, 1963 as Receiver of all the assets,
properties and equipment of Paris Theatre, olwrated by Leo Enterprises, Inc. under Civil Case
No. 50201 entitled Gregorio V. Pajarillo vs. Leo Enterprises, Inc.; chanrobles virtual law library
4. That the sale at public auction of the above described properties was postponed and was
later cancelled due to thc representation of Atty. Greg V. Pajarillo as Receiver of Paris Theatre
operated by Leo Enterprises, Inc. in which he undertook the 1anient of the judgment rendered
in favor of the plaintiff against Leo Enterprises, Inc. as Ier undertaking dated March 11, 1963,
copy of which is attached as ANNEX 'C' to the complaint;chanrobles virtual law library
5. That on or about hie third of March, 1963, third-party defendant Pajarillo approached the
third-party plaintiff and applied for a surety bond in the amount of P5,000.00 to be rated in
favor of the abovenamed plaintiff in order to guarantee to said plaintiff the payment of
obligations in its favor by the Leo Enterprises, Inc.;chanrobles virtual law library
6. That the bond applied for was in fact executed in favor of the pIaintiff rith third-party
defendant Pajarillo as principal and third-party plaintiff as surety in the context of the
allegations of the preceding paragraph and a copy of the said bond is attached a ANNEX 'A' to
the third party complaint; chanrobles virtual law library
7. That to protect thirrd party plaintiff against damage and injury, the third party defendant
Pajarillo executed in favor of the former an INDEMNITY AGREEMENT, copy of which is
attached as ANNEX 'B' to third party complaint; tlie trms of which aie incorporated by
reference;chanrobles virtual law library
8. That the plaintiff received from hie aid principal, Greg V. Pajarillo the sum of P2,000.00
leaving a balance of P2,562.88 still unpaid aside from interest at the rate of 1% per month and
atto lnen s f cluiaient to 25% of tht amount due as provided for in said undertaking (ANNEX 'C'
to tlie complaint);chanrobles virtual law library
9. That on July 1, 1963, a decision was rendered tne court of First Instance of Manila in Civil
case No. 50201, copy of' which is attached its ANNEX 'A' to Answer to Third Party Complaint,
by virtue of which Greg V. Pajarillo, as said Received stololcl making payments to
plaintiff;chanrobles virtual law library
10. That the said decision in Civl Case No. 50201 dated July 1, 1963 was appealed lix
defendant Leo Enterprises, Inc. to the court of Appeals and that the records kere eleattd to the
aid ApiIiat court on August 27, 1963;chanrobles virtual law library
11. That on October 9, 1963, plaintiff's counsel demanded from the said principal, Greg V.
Paiarillo, the payment of the installments corresponding to the months of May, June, July,
August and September, 1963, which remain unpaid in spite of said demand, copy of said letter
being, attached as ANNEX 'E' to the complaint;chanrobles virtual law library
12. That the defendant was duly notified of the demand made on the principal, Greg V.
Pajarillo and in spite of said notice the defendant has failed and refused to pay the unpaid
obligation;chanrobles virtual law library
13. That on December 19, 1963, plaintiff's counsel demanded from the defendant the payment
of the unpaid obligation of the principal, Greg V. Pajarillo but refused and failed to pay the
same in spite of said demand;chanrobles virtual law library
14. That when reminded by third-party plaintiff regarding his obligations in favor of the plaintiff,
the third-party defendant, Greg V. Pajarillo replied that he no longer was bound to pay because
he had ceased to be the receiver of Paris Theatre operated by Leo Enterprises, Inc. by virtue
of the decision of the Court in Civil Case No. 50201 cited above, and for this reason, third-
party plaintiff refused to pay the demand of the plaintiff 2
On the basis of the foregoing Stipulation of Facts, the Court of First Instance rendered
judgment on August 8, 1964, which judgment was amended on August 25, 1964, affirming the
appealed decision of the City Court . 2* chanrobles virtual law library
The trial court predicated its judgment on the following considerations: (1) Since the unpaid
claim represents the cost of certain materials used in the construction of the Paris Theatre, the
possession of which reverted to Gregorio V. Pajarillo as owner of said property by virtue of the
judgment in Civil Case No. 50201, "it is only simple justice that Pajarillo should pay for the said
claim. otherwise he would be enriching himself by having the said building without paying
plaintiff for the cost of certain materials that went into its construction"; (2) "under Section 7 of
Rule 61 of the former Rules of Court, one of the powers of a receiver i8 to pay outstanding
debts, and since the said plaintiff's claim has been outstanding since August 27, 1962, if not
before, Pajarillo should have paid the same long before the alleged termination of the
receivership on July 1, 1963"; (3) the procedure outlined in Section 8 of the Rule, namely, that
whenever the court "shall determine that the necessity for a receiver no longer exists, it shall,
after due notice to all interested parties and hearing, settle the accounts of the receiver, direct
the delivery of the funds and other property in his hands to the persons adjudged entitled to
receive them, and order the discharge of the receiver from further duty as such," has not been
followed; and (4) when Gregorio V. Pajarillo undertook to pay the amount owed to plaintiff
(Annex "C") and executed the surety bond (Annex "D") in favor of plaintiff, he 4 6 stepped into
the shoes" of the dr Leo Enterprises, Inc., .4 and the properties of the said debtor having all
subsequently passed on to Pajarillo, there is no reason, legal or otherwise, for relieving
defendants of their said undertaking."chanrobles virtual law library
The court a quo likewise declared that (1) "the receivership was not terminated by virtue of the
appeal interposed by Leo Enterprises, Inc., one of the defendants in Civil Case No. 50201,
because a decision which is appealed cannot be the subject of execution"; (2) "granting
arguendo that the decision is final and executory, the said decision cannot bind nor can it be
enforced against the plaintiff in the present case because it is not a party in Civil Case No.
50201"; and (3) "when Atty. Pajarillo assumed the obligation of Leo Enterprises, Inc., as a
Receiver, there was a subrogation of the party liable and, therefore, the plaintiff cannot enforce
the judgment in Civil Case No. 49691 against Leo Enterprises, Inc." chanrobles virtual law
library
From the foregoing judgment, third-party defendant Gregorio V. Pajarillo interposed an appeal
to the Court of Appeals. The aforesaid Appellate Court, in turn certified the same to this Court
on the ground that there is no question of fact involved, but only one of
law.chanroblesvirtualawlibrarychanrobles virtual law library
The legal question is whether or not third party defendant-appellant Gregorio V. Pajarillo is,
under the facts and circumstances obtaining, liable to plaintiff for the unpaid amount claimed.
Upon the resolution of this issue will in turn depend the liability of defendant-third-party plaintiff
Consolacion Insurance & surety Co., Inc. under the Surety Bond, on the basis of which it was
ordered by the court a quo to pay the amount involved to plaintiff-
appellee.chanroblesvirtualawlibrarychanrobles virtual law library
1. A receiver is not an agent or representative of any party to the action. He is an officer of the
court exercising his functions in the interest of neither plaintiff nor defendant, but for the
common benefit of all the parties in interest. 3 He performs his duties "subject to the control of
the Court," and every question involved in the receivership may be determined by the court
taking cognizance of the receivership proceedings. 4 Thus, "a receiver, strictly speaking, has
no right or power to make any contract binding the property or fund in his custody or to pay out
funds in his hands without the authority or approval of the court ... . 5 As explained by Justice
Moran, speaking for the Court in a 1939 case 6 ... The custody of the receiver is the custody of
the court. His acts and possession are the acts and possession of the court, and his contracts
and liabilities are, in contemplation of law, the contracts and liabilities of the court. As a
necessary consequence, receiver is f subject to the control and supervision of the court
at every step in his management of the property or funds placed in his hands. ... 7 He cannot
operate independently of the court, and cannot enter into any contract without its approval.
... El depositario no puede obrar independientemente del jusgado; contrata bajo el control del
mismo; sin su autorizacion o aprobaci6n expresa, el depositario no puede perfeccionar ningun
contrato. ... 8chanrobles virtual law library
2. In the case at bar, appellant Pajarillo does not dispute the fact that he never secured the
court's approal of either the agreement of March 11, 1963, with Pacific Merchandising
Corporation or of his Indemnity Agreement with the Consolacion Insurance & Surety Co., Inc.
on March 14, 1963, in consideration of the performance bond submitted by the latter to Pacific
Merchandising Corporation to guarantee the payment of the obligation. As the person to whom
the possession of the theater and its equipment was awarded by the court in Civil Case No.
50201, it was certainly to his personal profit and advantage that the sale at public auction of
the liquipment of the theater was prevented by his execution of the aforesaid agreement and
submission of the afore-mentioned bond. In order to bind the property or fund in his hands as
receiver, he should have applied for and obtained from the court authority to enter into the
aforesaid contract. 9 Unauthorized contracts of a receiver do not bind the court in charge of
receivership. They are the receiver's own contracts and are not recognized by the courts as
contracts of the receivership. 10 Consequently, the aforesaid agreement and undertaking
entered into by appellant Pajarillo not having been approved or authorized by the receivership
court should, therefore, be considered as his personal undertaking or obligation. Certainly, if
such agreements were known by the receivership court, it would not have terminated the
receivership without due notice to the judgment creditor as required by Section 8 of Rule 59 of
the Rules of Court. This must be assumed because of the legal presumption that official duty
has been regularly performed. 11 Indeed, if it were true that he entered into the agreement and
undertaking as a receiver, he should have, as such receiver, submitted to the court an account
of the status of the properties in his hands including the outstanding obligations of the
receivership. 12 Had he done so, it is reasonable to assume that the judgment creditor would
have opposed the termination of the receivership, unless its claim was paid. Having failed to
perform his duty, to the prejudice of the creditor, appellant should not be permitted to take
advantage of his own wrong. The judgment creditor having been induced to enter into the
aforesaid agreement by appellant Pajarillo it was the duty of the latter to comply with is end of
the bargain. He not only failed to perform his undertaking, but now attempts to evade
completely his liability. Under such circumstances, appellant is not entitled to equitable relief.
No ground for equitable relief can be found in a case where a party has not only failed to
perform the conditions upon which he alone obtained the execution of the contract, but where
it is clear that he never, at any time, intended to perform them. 13chanrobles virtual law library
3. Moreover, it will be recalled that the obligation due the Pacific Merchandising Corporation
represented the cost of materials used in the construction of the Paris Theatre. There can not
be any question that such improvements, in the final analysis, redounded to the advantage and
personal profit of appellant Pajarillo because the judgment in Civil Case No. 50201, which was
in substance affirmed by the Appellate Court, ordered that the "possession of the lands,
building equipment, furniture, and accessories ..." of the theater be transferred to said
appellant as owner thereof.chanroblesvirtualawlibrarychanrobles virtual law library
As the trial court aptly observed "... it is only simple justice that Pajarillo should pay for the said
claim, otherwise he would be enriching himself without paying plaintiff for the cost of certain
materials that went into its construction. ... It is argLicd however, that he did so only as a
receiver of Leo Pajarillo by virtue of the judgment in Civil Case No. 50201 all of the properties
of Leo Enterprises, Inc. passed on to Pajarillo by virtue of the judgment in Civil Case No. %201
...". This Roman Law principle of "Nemo Cum alterious detrimento locupletari protest" is
embodied in Article 22 (Human Relations), 14 and Articles 2142 to 2175 (QuasiContracts) of the
New Civil Code. Long before the enactment of this Code, however, the principle of unjust
enrichment which is basic in every legal system, was already expressly recognized in this
jurisdiction.chanroblesvirtualawlibrarychanrobles virtual law library
As early as as 1903, in Perez v. Pomar, 15 this Court ruled that where one has rendered
services to another, and these services are accepted by the latter, in the absence of proof that
the service ",as rendered gratuitously, it is but just that he should pay a reasonable
remuneration therefore because "it is a wellknown principle of law, that no one should be
permitted to enrich himself to the damage of another." Similarly in 1914, this Court declared
that in this jurisdiction, even in the absence of statute," ... under the general principle that one
person may not enrich himself at the expense of another, a judgment creditor would not be
permitted to retain the purchase price of land sold as the property of the judgment debtor after
it has been made to appear that the judgment debtor had no title to the land and that the
purchaser had failed to secure title thereto ... 16 The foregoing equitable principle which springs
from hie fountain of good conscience are applicable to the case at
bar.chanroblesvirtualawlibrarychanrobles virtual law library
ACCORDINGLY, in view of the foregoing, the judgment unirilleal is httcf AFFIRMED. Costs
against appellant.
SERG’S PRODUCTS, INC., and SERGIO T. GOQUIOLAY, petitioners, vs. PCI LEASING
AND FINANCE, INC., respondent. [G.R. No. 137705.  August 22, 2000]
Summary: Petition for Review on Certiorari assailing the Decision of the Court of Appeals (CA)
affirming the RTC’s decision and its Resolution denying reconsideration. Regional Trial Court
(RTC) of Quezon City issued a Writ of Seizure and denied petitioners’ Motion for Special
Protective Order, praying that the deputy sheriff be enjoined “from seizing immobilized or other
real properties in (petitioners’) factory in Cainta, Rizal and to return to their original place
whatever immobilized machineries or equipments he may have removed.
FACTS:
PCI Leasing and Finance, Inc. (“PCI”) filed with the RTC-QC a complaint for sum of money
with an application for a writ of replevin. Respondent judge issued a writ of replevin directing its
sheriff to seize and deliver the machineries and equipment to PCI Leasing after 5 days and
upon the payment of the necessary expenses. In implementation of said writ, the sheriff
proceeded to petitioner’s factory, seized one machinery with word that he return for the other
machineries. Petitioners filed a motion for special protective order, praying for a directive for
the sheriff to defer enforcement of the writ of replevin. PCI Leasing opposed on the ground that
the properties were personal and therefore still subject to seizure and a writ of replevin. In their
Reply, petitioners asserted that the properties sought to be seized were immovable as defined
in Article 415 of the Civil Code, the parties’ agreement to the contrary notwithstanding. The
sheriff again sought to enforce the writ of seizure and take possession of the remaining
properties and he was able to take two more machineries. The parties appealed. The appellate
court, citing the Agreement of the parties, held that the subject machines were personal
property, and that they had only been leased, not owned, by petitioners; and ruled that the
words of the contract are clear and leave no doubt upon the true intention of the contracting
parties.
ISSUE:
WOR the said machineries are personal, not immovable and may be the subject of replevin.
HELD:
The SC ruled that the machines are personal property and therefore can be the subject of
replevin. Pursuant to Rule 60 sec. 3 of the Rules of Court only personal properties may be the
subject of replevin. However, petitioners contend that the subject machines used in their
factory were not proper subjects of the Writ issued by the RTC, because they were in fact real
property. Under Art. 415 par. 5 of the Civil code: machinery, receptacles, instruments or
implements intended by the owner of the tenement for an industry or works which may be
carried on in a building or on a piece of land, and which tend directly to meet the needs of the
said industry or works, are immovable properties. In the present case, the machines that were
the subjects of the Writ of Seizure were placed by petitioners in the factory built on their own
land and were essential and principal elements of their chocolate-making industry.  Hence,
although each of them was movable or personal property on its own, all of them have become
“immobilized by destination because they are essential and principal elements in the industry. 
However, the Court has held that contracting parties may validly stipulate that a real property
be considered as personal. After agreeing to such stipulation, they are consequently estopped
from claiming otherwise.  Under the principle of estoppel, a party to a contract is ordinarily
precluded from denying the truth of any material fact found therein.  
In the case, the Lease Agreement clearly provides that the machines in question are to be
considered as personal property.  Specifically, Section 12.1 of the Agreement states: The
PROPERTY is, and shall at all times be and remain, personal property notwithstanding that the
PROPERTY or any part thereof may now be, or hereafter become, in any manner affixed or
attached to or embedded in, or permanently resting upon, real property or any building
thereon, or attached in any manner to what is permanent.” Clearly then, petitioners are
estopped from denying the characterization of the subject machines as personal
property.   Under the circumstances, they are proper subjects of the Writ of Seizure.