G.R. No.

L-50378 September 30, 1982

FILINVEST CREDIT CORPORATION, petitioner,

vs.
THE HONORABLE JUDGE BENJAMIN RELOVA (In his capacity as Presiding Judge of the
Court of First Instance of Manila, Branch XI) and ERNESTO SALAZAR, respondents.

Facts:
Respondent Ernesto Salazar executed a promissory note in favour of RALLYE for the amount
of P99,828.00. To secure the note, Salazar executed in favour of RALLYE a deed of chattel
mortgage over a one (1) unit of MAZDA DIESEL SCHOOL BUS. RALLYE, on the other hand, for
valuable consideration, assigned all its rights, title and interest to the chattel mortgage to
FILINVEST. Thereafter, FILINVEST came to know that RALLYE had not delivered the motor
vehicle subject of the chattel mortgage to Salazar, "as the said vehicle (had) been the subject of
a sales agreement between the codefendants." Salazar defaulted in complying with the terms
and conditions of the aforesaid promissory note and chattel mortgage. RALLYE, as assignor
who guaranteed the validity of the obligation, also failed and refused to pay FILINVEST despite
demand.

According to FILINVEST, the defendants intentionally, fraudulently and with malice concealed
from it the fact that there was no vehicle delivered under the documents negotiated and
assigned to it, otherwise, it would not have accepted the negotiation and assignment of the
rights and interest covered by the promissory note and chattel mortgage. The case is one of
those mentioned in Section 1, Rule 57 of his Rules of Court, particularly an action against
parties who have been guilty of a fraud in contracting the debt or incurring the obligation
upon which the action is brought. Petitioner Filinvest prayed for a writ of preliminary
attachment against defendants RALLYE and Salazar.

Finding the complaint sufficient in form and substance, the lower court granted the writ of
attachment. More than a year later, defendant Salazar filed an Urgent Motion praying that the
writ of preliminary attachment issued ex parte and implemented solely against his property be
recalled and/or quashed. He argued that when he signed the promissory note and chattel
mortgage on May 5, 1977 in favor of RALLYE and FILINVEST was not his creditor or obligee,
therefore, he could not be said to have committed fraud when he contracted the obligation.
Salazar added that as the motor vehicle which was the object of the chattel mortgage and the
consideration for the promissory note had admittedly not been delivered to him by RALLYE,
his repudiation of the loan and mortgage is more justifiable.

FILINVEST filed an Opposition, but on February 2, 1979, respondent judge ordered the
dissolution and setting aside of the writ of preliminary attachment issued and the return to
defendant Salazar of all his properties attached by the Sheriff by virtue of the said writ.
Respondent judge explained that while it is true that the plaintiff may have been defrauded in
this transaction, it having paid Rallye Motor the amount of the promissory note, there is no
evidence that Ernesto Salazar had connived or in any way conspired with Rallye Motor in the
assignment of the promissory note to the plaintiff, because of which the plaintiff paid Rallye
Motor the amount of the promissory note. Defendant Ernesto Salazar was himself a victim of
fraud. Rallye Motor was the only party which committed it.

Issue:
WON respondent judge erred in dissolving the writ of preliminary attachment for finding that
there was no fraud on the part of defendant Salazar.

Held:
YES. The Court held that considering the claim of respondent Salazar that Rallye Motors did
not deliver the motor vehicle to him, it follows that the Invoice for the motor vehicle and the
Receipt for its delivery and both signed by Salazar, were fictitious. It also follows that the
Promissory Note to pay the price of the undelivered vehicle was without consideration and
therefore fake; the Chattel Mortgage, over the non-existent vehicle was likewise a fraud; the
registration of the vehicle in the name of Salazar was a falsity and the assignment of the
promissory note by RALLYE with the conforme of respondent Salazar in favor of petitioner over
the undelivered motor vehicle was fraudulent and a falsification.

Respondent Salazar, knowing that no motor vehicle was delivered to him by RALLYE, executed
and committed all the above acts as shown the exhibits enumerated above. He agreed and
consented to the assignment by RALLYE of the fictitious promissory note and the fraudulent
chattel mortgage, affixing his signature thereto, in favor of petitioner FILINVEST who, in the
ordinary course of business, relied on the regularity and validity of the transaction.
Respondent had previously applied for financing assistance from petitioner FILINVEST and his
application was approved, thus he negotiated for the acquisition of the motor vehicle in
question from Rallye Motors. Since he claimed that the motor vehicle was not delivered to him,
then he was duty-bound to reveal that to FILINVEST, it being material in inducing the latter to
accept the assignment of the promissory note and the chattel mortgage. More than that, good
faith as well as commercial usages or customs require the disclosure of facts and
circumstances which go into the very object and consideration of the contractual obligation.

Wherefore, the Court ruled that the failure of respondent Salazar to disclose the material fact
of non-delivery of the motor vehicle, there being a duty on his part to reveal them, constitutes
fraud.
 G.R. No. 102448 August 5, 1992

RICARDO CUARTERO, petitioner,

vs.
COURT OF APPEALS, ROBERTO EVANGELISTA and FELICIA EVANGELISTA, respondents.

Facts:
Petitioner Ricardo Cuartero filed a complaint before the RTC of Quezon City against the private
respondents, Evangelista spouses, for a sum of money plus damages with a prayer for the
issuance of a writ of preliminary attachment. The lower court issued an order granting ex-
parte the petitioner's prayer for the issuance of a writ of preliminary attachment and likewise
prepared the summons for the spouses Evangelista. The copy of the writ of preliminary
attachment, summons and the complaint were all simultaneously served upon the respondent
spouses. Immediately thereafter, the Deputy Sheriff levied, attached and pulled out the
properties in compliance with the court's directive to attach all the properties of private
respondents not exempt from execution, or so much thereof as may be sufficient to satisfy the
petitioner's principal claim in the amount of P2,171,794.91.

Subsequently, the spouses Evangelista filed motion to set aside the order and discharge the
writ of preliminary attachment for having been irregularly and improperly issued. The lower
court denied the motion for lack of merit. Private respondents, then, filed a special civil action
for certiorari with the Court of Appeals questioning the orders of the lower court with a prayer
for a restraining order or writ of preliminary injunction to enjoin the judge from taking further
proceedings below.

In a Resolution, the Court of Appeals resolved not to grant the prayer for restraining order or
writ of preliminary injunction, there being no clear showing that the spouses Evangelista were
entitled thereto. However, the CA granted the petition for certiorari declaring that the trial
court did not acquire jurisdiction over the person of the defendants (private respondents). It
explained that the want of jurisdiction of the trial court to proceed in the main case as well as
the ancillary remedy of attachment is quite clear. It is not disputed that neither service of
summons with a copy of the complaint nor voluntary appearance of petitioners was had in this
case before the trial court issued the assailed order, as well as the writ of preliminary
attachment dated. This is reversible error and must be corrected on certiorari. Hence, the
present recourse to this Court.

Issue:
WON the CA gravely erred and committed a grave abuse of discretion, amounting to lack of
jurisdiction when it held that the regional trial court did not acquire jurisdiction over
respondent spouses.

Held:
YES. 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 might be secured in said action by the attaching creditor against the
defendant.

It is clear from the Court’s pronouncements that a writ of preliminary attachment may issue
even before summons is served upon the defendant. However, we have likewise ruled that the
writ cannot bind and affect the defendant until jurisdiction over his person is eventually
obtained. Therefore, it is required that when the proper officer commences implementation of
the writ of attachment, service of summons should be simultaneously made.

It must be emphasized that the grant of the provisional remedy of attachment practically
involves three stages: first, the court issues the order granting the application; second, the writ
of attachment issues pursuant to the order granting the writ; and third, the writ is
implemented. For the initial two stages, it is not necessary that jurisdiction over the person of
the defendant should first be obtained. However, once the implementation commences, it is
required that the court must have acquired jurisdiction over the defendant for without such
jurisdiction, the court has no power and authority to act in any manner against the defendant.
Any order issuing from the Court will not bind the defendant.
 G.R. No. 135830, September 30, 2005

Juan De Dios Carlos, petitioner

Vs
Felicidad Sandoval and Teofilo Carlos II, respondents

Facts:
Petitioner Carlos sought to nullify the agreements he entered with respondent Sandoval, whom
he believe to be the lawful wife of his deceased brother, involving the six parcels of land owned
by their parents. After discovering that Sandoval and his brother, who died intestate, were
never validly married, as their marriage was contracted without a marriage license. Petitioner
filed a complaint before the RTC praying among others, the issuance of new titles covering the
subject properties in his name and require Sandoval to restitute Carlos in the amount of
P18,924,800.00. Carlos likewise prayed for the issuance of the provisional relief of preliminary
attachment. The RTC issued an Order granting the prayer for preliminary attachment, and a
writ of preliminary attachment.

Respondents filed an Urgent Motion to Discharge the Writ of Attachment, which was opposed by
Carlos. On 4 December 1995, the RTC rendered an order denying the motion, which caused
respondents to file a Petition for Certiorari with the Court of Appeals, seeking to set aside the
RTC order granting the writ of preliminary attachment denying the motion for the discharge of
the writ. The Court of Appeals granted the Petition for Certiorari and ordered the discharge and
dissolution of the Writ of Attachment and Notice of Garnishment.

Respondents filed a Motion for Judgment On the Attachment Bond.  They noted that the Court
of Appeals had already ruled that the Writ of Preliminary Attachment issued by the RTC was
improperly granted and that its Decision, as affirmed by the Supreme Court, had attained
finality. Accordingly, they were entitled to damages under Section 20, Rule 57 of the
then Rules of Civil Procedure, which governed claims for damages on account of
unlawful attachment. In an Addendum to Motion for Judgment on the Attachment Bond,
respondents additionally prayed for moral and exemplary damages.

Issue:
WON private respondents are entitled to damages as provided under Section 20, Rule 57.

Held:
YES. The SC held that there is no longer need for a favorable judgment in favor of the party
against whom attachment was issued in order that damages may be awarded. It is indubitable
that even a party who loses the action in main but is able to establish a right to damages
by reason of improper, irregular, or excessive attachment may be entitled to damages.
This bolsters the notion that the claim for damages arising from such wrongful attachment
may arise and be decided separately from the merits of the main action.

In this case, we are confronted with a situation wherein the determination that the attachment
was wrongful did not come from the trial court, or any court having jurisdiction over the main
action. It was rendered by the Court of Appeals in the exercise of its certiorari jurisdiction in
the original action reviewing the propriety of the issuance of the Writ of Preliminary Attachment
against the private respondents. Said ruling attained finality when it was affirmed by this
Court.

Moreover, when the said right is already made viable by reason of a final judgment which is no
longer subject to review, there should be no unnecessary impediments to its immediate
implementation.
 G.R. No. L-52823 November 2, 1982

PHILIPPINE NATIONAL BANK, petitioner,

vs.
Hon. MIDPANTAO ADIL, in his capacity as Presiding Judge of the CFI Iloilo, et al., respondents.

Facts:
Respondent Angelina Lobaton Melliza obtained a loan from petitioner PNB in the amount of P80,000.00
which was secured by a mortgage over two parcels of land. After failure of said respondent to pay the
loan on maturity, the mortgage was foreclosed extrajudicially at which foreclosure sale, petitioner
purchased the properties for P97,923.73. The properties were not redeemed within the period, hence the
title over the same were consolidated in the name of petitioner.

Petitioner, then, filed an ex-parte petition for issuance of a writ of possession, which the Court of First
Instance of Iloilo granted it. Upon issuance of the writ, the Deputy Sheriff served the same upon private
respondents, but the latter requested for a grace period of seven (7) days to vacate the premises in
question to which the Sheriff agreed. On May 8, 1979, the Sheriff found out that private respondents
are still staying in the premises and had not complied with the writ of possession, thus, he immediately
ordered their ejectment. Before the ejectment was completed, the Sheriff received an order dated May 8,
1979, issued motu proprio by respondent judge, suspending the implementation of the writ of
possession for "humanitarian reasons" for a period of fifteen (15) days.

Before the expiration of the fifteen (15) day period, private respondents filed a complaint for the
annulment of the extrajudicial foreclosure, writ of possession and consolidation of ownership on ground
that the properties were foreclosed without personal notice to any of the private respondents. On June
1, 1979, respondent judge, acting on private respondents' prayer for injunction, issued an order
restraining petitioner from disturbing the status quo, and on July 5, 1979, respondent judge issued an
order granting the writ of preliminary injunction.

Issue:
WON respondent judge committed grave abused of discretion, amounting to lack of jurisdiction in
issuing injunctive orders.

Held:
YES. The writ of possession was issued but its enforcement was suspended by the grace period given by
the Sheriff who has no authority to do so, and later by the order of the judge on a very dubious ground
as "humanitarian reason." When the reason given by the judge in issuing the order of suspension was
not specified in the order, but stated only in general term, as "humanitarian reasons," the Court did not
act within the bounds of the law. The order was, furthermore, issued motu proprio and without the
petitioner being afforded the right to present its side.

A prohibitory injunction cannot be issued when the act sought to be enjoined has already been
committed. 4 Neither can a mandatory injunction issue, for it is a well-settled rule that injunction will
not lie to take the property out of control of the party in possession. 5 The orders of the judge enjoining
the enforcement of the writ of possession are vulnerable to attack. Firstly, the right of private
respondents to injunctive order is, at least, doubtful, and it is a settled rule that to be entitled to the
injunction, the applicant's right or title must be clear and unquestioned.

G.R. No. 121158.  December 5, 1996

 CHINA BANKING CORPORATION, ATTYS. REYNALDO M. CABUSORA and RENATO C.
TAGUIAM, petitioners, vs. COURT OF APPEALS, HON. PEDRO T. SANTIAGO, SPS. SO
CHING and CRISTINA SO, and NATIVE WEST INTERNATIONAL TRADING CORP.,
respondents.

Facts:
China Banking Corporation (China Bank) extended several loans to Native West International
Trading Corporation (Native West) and to So Ching, Native West’s president. Native West in
turn executed promissory notes in favor of China Bank.  So Ching, with the marital consent of
his wife, Cristina So, additionally executed two mortgages over their properties. The
promissory notes matured and despite due demands by China Bank neither private
respondents Native West nor So Ching paid.  Pursuant China Bank, then, filed petitions for
the extra-judicial foreclosure of the mortgaged properties, copies of which were given to the
spouses So Ching and Cristina So. After due notice and publication, the notaries public
scheduled the foreclosure sale of the spouses’ real estate properties on April 13, 1993.  Eight
days before the foreclosure sale, however, private respondents filed a complaint with the
Regional Trial Court for accounting with damages and with temporary restraining order
against petitioners. The trial court issued a temporary restraining order to enjoin the
foreclosure sale. After filing of their respective pleading and submitting the case for resolution,
the trial court, without passing upon the material averments of the complaint, issued an Order
granting the private respondents’ prayer for the issuance of preliminary injunction. Petitioners
elevated the case through certiorari and prohibition before public respondent Court of Appeals,
which the latter dismissed.

Issue:
WON the writ of preliminary injunction issued by the trial court is valid.

Held:
NO. A writ of preliminary injunction, as an ancillary or preventive remedy, may only be
resorted to by a litigant to protect or preserve his rights or interests and for no other purpose
during the pendency of the principal action. But before a writ of preliminary injunction may be
issued, there must be a clear showing by the complaint that there exists a right to be
protected and that the acts against which the writ is to be directed are violative of the said
right. In the case at bench, we fail to see any reason why the foreclosure of the mortgages
should be enjoined.  On the face of the clear admission by private respondents that they were
unable to settle their obligations which were secured by the mortgages, petitioners have a
clear right to foreclose the mortgages which is a remedy provided by law. 

 
 G.R. No. 125008 June 19, 1997

COMMODITIES STORAGE & ICE PLANT CORPORATION, SPOUSES VICTOR & JOHANNAH
TRINIDAD, petitioners, vs. COURT OF APPEALS, JUSTICE PEDRO A.. RAMIREZ, CHAIRMAN and
FAR EAST BANK & TRUST COMPANY, respondents.

Facts:
Petitioner spouses Victor and Johannah Trinidad obtained a loan of P31,000,000.00 from respondent
Far East Bank & Trust Company to finance the purchase of the Sta. Maria Ice Plant & Cold Storage in
Sta. Maria, Bulacan. The loan was secured by a mortgage over the ice plant and the land on which the
ice plant stands. Petitioner spouses failed to pay their loan. The bank extrajudicially foreclosed the
mortgage and the ice plant was sold by public bidding. Respondent bank was the highest bidder.
Afterwhich, registered the certificate of sale and later took possession of the property.

Petitioner spouses first filed a case against respondent bank before the RTC of Malolos, Bulacan for
reformation of the loan agreement, annulment of the foreclosure sale and damages, which the trial court
dismissed for failure to pay the docket fees and without prejudice to refiling of the complaint. Petitioner
spouses then filed a case against respondent bank before the RTC of Manila for damages, accounting,
fixing of redemption period and an "Urgent Petition for Receivership." They alleged that respondent bank
took possession of the ice plant forcibly and without notice to them; that their occupation resulted in
the destruction of petitioners' financial and accounting records making it impossible for them to pay
their employees and creditors; and, the bank has failed to take care of the ice plant with due diligence,
among others. Petitioners thus prayed for the appointment of a receiver to save the ice plant, conduct
its affairs and safeguard its records during the pendency of the case.

The trial court granted the petition for receivership and appointed petitioners' nominee, Ricardo
Pesquera, as receiver. However, the Court of Appeals annulled the order for receivership.

Issue:
WON the appointment of the receiver is valid.

Held:
NO. A receiver is a person appointed by the court in behalf of all the parties to the action for the
purpose of preserving and conserving the property in litigation and prevent its possible destruction or
dissipation, if it were left in the possession of any of the parties. The appointment of a receiver is not a
matter of absolute right. It depends upon the sound discretion of the court and is based on facts and
circumstances of each particular case.

A petition for receivership under Section 1 (b) of Rule 59 requires that the property or fund which is the
subject of the action must be in danger of loss, removal or material injury which necessitates protection
or preservation. The guiding principle is the prevention of imminent danger to the property. If an action
by its nature, does not require such protection or reservation, said remedy cannot be applied for and
granted.

In the instant case, we do not find the necessity for the appointment of a receiver. Petitioners have not
sufficiently shown that the Sta. Maria Ice Plant is in danger of disappearing or being wasted and
reduced to a "scrap heap." Neither have they proven that the property has been materially injured which
necessitates its protection and preservation.

Moreover, the receiver appointed by the court appears to be a representative of petitioners. Respondent
bank alleges that it was not aware that petitioners nominated one Mr. Pesquera as receiver. The general
rule is that neither party to a litigation should be appointed as receiver without the consent of the other
because a receiver should be a person indifferent to the parties and should be impartial and
disinterested. The receiver is not the representative of any of the parties but of all of them to the end
that their interests may be equally protected with the least possible inconvenience and expense.

The power to appoint a receiver must be exercised with extreme caution. There must be a clear showing
of necessity therefor in order to save the plaintiff from grave and irremediable loss or damage. It is only
when the circumstances so demand, either because there is imminent danger that the property sought
to be placed in the hands of a receiver be lost or because they run the risk of being impaired,
endeavouring to avoid that the injury thereby caused be greater than the one sought to be avoided.

G.R. No. 111357 June 17, 1997

 TRADERS ROYAL BANK, petitioner, vs. IAC respondents.

Facts:
By order of the Court, the properties of deceased spouses Jose and Salvacion Tayengco were put under
receivership and affirmed the validity of the appointment of petitioner Traders Royal Bank (TRB) as
receiver pendente lite. In view of these rulings, the receivership proceeding was duly terminated. Thus,
TRB rendered its final accounting of the funds under receivership wherein it retained the amount of
P219,016.24 as its receiver's fee, instead of turning over the entire fund to the Tayengcos. The Regional
Trial Court of Iloilo, Branch 5, in an order dated July 5, 1988, approved the final accounting submitted
by TRB, including the deduction of its fee from the fund under receivership.

The Tayengcos assailed said order before the Court of Appeals, contending that TRB's compensation
should have been charged against the losing party and not from the funds under receivership. In
resolving this issue the Court of Appeals, ruled that TRB cannot deduct its fee from the funds under its
receivership since this must be shouldered by the losing party or equally apportioned among the
parties-litigants.

Issue:
WON the compensation of the receiver should be charge from the receiver funds.

Held:
NO. The Court held that when the services of a receiver who has been properly appointed terminates,
his compensation is to be charged against the defeated party, or the prevailing litigant may be made to
share the expense, as justice requires. Consequently, the trial court's order approving TRB's
compensation to be charged solely against the funds under its receivership is without legal justification;
hence, it was correctly reversed by the Court of Appeals.

G.R. No. 94285           August 31, 1999

 JESUS SY, petitioners, vs. THE COURT OF APPEALS, respondents.

Facts:
Sy Yong Hu & Sons is a partnership of Sy Yong Hu(+) and his sons. During the lifetime of all the
partners, Keng Sian brought an action, against the partnership as well as against the individual
partners for accounting of all the properties allegedly owned in common by Sy Yong Hu and the plaintiff
(Keng Sian), and for the delivery or reconveyance of her one-half (1/2) share in said properties and in
the fruits thereof. Keng Sian averred that she was the common law wife of partner Sy Yong Hu, that Sy
Yong Hu, together with his children, who were partners in the partnership, connived to deprive her of
her share in the properties acquired during her cohabitation with Sy Yong Hu, by diverting such
properties to the partnership.

During the pendency of the case, Hearing Officer Tongco came out with an order placing the partnership
under a receivership committee. Petitioners appealed before the CA, which ordered the partition and
distribution of the partnership properties. However, the CA reversed its decision and remanding the
case to the SEC for the formation of a receivership committee. On appeal, respondent contended that
the CA erred in reinstating the Tongco order, which had placed the partnership properties under
receivership, explaining that "it is the most equitable fair and just manner to preserve the assets of the
partnership during the pendency of the case."

Issue:
WON the placing of the partnership under receivership is valid.

Held:
YES. The Court ruled that to ensure that no further disposition shall be made of the questioned assets
and in view of the pending civil case in the lower court, there is a compelling necessity to place all these
properties and assets under the management of a receivership committee. The receivership committee,
which will provide active participation, through a designated representative, on the part of all interested
parties, can best protect the properties involved and assure fairness and equity for all.

Receivership, which is admittedly a harsh remedy, should be granted with extreme caution. Sound
bases therefor must appear on record, and there should be a clear showing of its necessity. The need for
a receivership in the case under consideration can be gleaned from the aforecited disquisition by the
Court of Appeals finding that the properties of the partnership were in danger of being damaged or lost
on account of certain acts of the appointed manager in liquidation.

The dispositions of certain properties by the said manager, on the basis of an order of partial partition,
dated December 2, 1986, by Hearing Officer Sison, which was not yet final and executory, indicated that
the feared irreparable injury to the properties of the partnership might happen again. So also, the
failure of the manager in liquidation to submit to the SEC an accounting of all the partnership assets as
required in its order of April 29, 1988, justified the SEC in placing the subject assets under
receivership.

Moreover, it has been held by this Court that an order placing the partnership under receivership so as
to wind up its affairs in an orderly manner and to protect the interest of the plaintiff (herein private
respondent) was not tainted with grave abuse of discretion. 54 The allegation that respondents' rights are
adequately protected by the notices of lis pendens in Civil Case 903 is inaccurate. As pointed out in
their Comment to the Petition, the private respondents claim that the partnership assets include the
income and fruits thereof. Therefore, protection of such rights and preservation of the properties
involved are best left to a receivership committee in which the opposing parties are represented

RIVERA vs VARGAS
 GR NO. 165895 June 5, 2009

Facts:
Respondent Florencio Vargas filed a complaint against petitioner and several John Does for the recovery
of a 150 T/H rock crushing plant located in Sariaya, Quezon. In his complaint and affidavit, Vargas
claims ownership of the said equipment, having purchased and imported the same directly from Hyun
Dae Trading Co., in Seoul, South Korea, in December 1993. The equipment was allegedly entrusted to
petitioner’s husband, Jan T. Rivera, who died sometime in late 2002, as caretaker of respondent’s
construction aggregates business in Batangas. According to Vargas, petitioner failed to return the said
equipment after her husband’s death despite his repeated demands. The complaint was accompanied by
a prayer for the issuance of a writ of replevin and the necessary bond amounting to P2,400,000.00.

Summons dated February 24, 2003 was served upon petitioner through her personal secretary on April
28, 2003 at her residence in Parañaque City. Interestingly, however, the writ of replevin was served
upon and signed by a certain Joseph Rejumo, the security guard on duty in petitioner’s crushing plant
in Sariaya, Quezon on April 29, 2003, contrary to the sheriff’s return stating that the writ was served
upon Rivera.  On May 8, 2003, Rivera filed her answer, manifestation, and motion for the acceptance of
petitioner’s redelivery bond.

On May 12, 2003, the RTC issued an Order disapproving petitioner’s redelivery bond application for
failure to comply with the requirements under Sections 5 and 6 of Rule 60 of the Rules of Court.
Without directly saying so, the RTC faulted petitioner for her failure to file the application for redelivery
bond within five (5) days from the date of seizure as provided in the Rules of Court.

Issue:
WON there is an improper service of the writ.

Held:
Yes. Replevin is both a form of principal remedy and of provisional relief.  It may refer either to the
action itself, i.e., to regain the possession of personal chattels being wrongfully detained from the
plaintiff by another, or to the provisional remedy that would allow the plaintiff to retain the thing during
the pendency of the action and to hold it pendente lite. The action is primarily possessory in nature and
generally determines nothing more than the right of possession.

The process regarding the execution of the writ of replevin in Section 4 of Rule 60 is unambiguous: the
sheriff, upon receipt of the writ of replevin and prior to the taking of the property, must serve a copy
thereof to the adverse party (petitioner, in this case) together with the application, the affidavit of merit,
and the replevin bond. The reasons are simple, i.e., to provide proper notice to the adverse party that
his property is being seized in accordance with the court’s order upon application by the other party,
and ultimately to allow the adverse party to take the proper remedy consequent thereto.

Service of the writ upon the adverse party is mandatory in line with the constitutional guaranty
on procedural due process and as safeguard against unreasonable searches and seizures. If the writ
was not served upon the adverse party but was instead merely handed to a person who is neither an
agent of the adverse party nor a person authorized to receive court processes on his behalf, the service
thereof is erroneous and is, therefore, invalid, running afoul of the statutory and constitutional
requirements. The service is likewise invalid if the writ of replevin was served without the
required documents.  Under these circumstances, no right to seize and to detain the property shall
pass, the act of the sheriff being both unlawful and unconstitutional.

In the case at bar, the RTC denied the redelivery bond for having been filed beyond the five-day
mandatory period prescribed in Sections 5 and 6 of Rule 60. But since the writ was invalidly served,
petitioner is correct in contending that there is no reckoning point from which the mandatory five-day
period shall commence to run.

The trial court is reminded that not only should the writ or order of replevin comply with all the
requirements as to matters of form or contents prescribed by the Rules of Court. The writ must also
satisfy proper service in order to be valid and effective: i.e. it should be directed to the officer who is
authorized to serve it; and it should be served upon the person who not only has the possession or
custody of the property involved but who is also a party or agent of a party to the action. Consequently,
a trial court is deemed to have acted without or in excess of its jurisdiction with respect to the ancillary
action of replevin if it seizes and detains a personalty on the basis of a writ that was improperly served,
such as what happened in this case. At the outset, petitioner’s proper remedy should have been to
file a motion to quash the writ of replevin or a motion to vacate the order of seizure.