G.R. No.

L-38971 April 28, 1983

LEELIN, MARKETING CORPORATION, plaintiff-appellant, vs. C & S AGRO DEVELOPMENT COMPANY, MARIO SANTOS & AURELIO CARTANO, defendants, BELFAST SURETY & INSURANCE CO., INC., bondsman-appellee.

Martin Badong, Jr. for plaintiff-appellant.

Geronimo Vibal, Jr. for bondsman-appellee.

MELENCIO-HERRERA, J.:

Is the counterbond put up by a surety company for the discharge of an attachment liable for the money judgment in favor of the judgment creditor? That issue being purely legal, the then Court of Appeals certified the appeal before it to this Tribunal.

This was an action originally for a sum of money filed by plaintiff Leelin Marketing Corp. (LEELIN, for short) against defendants Mario Santos and Aurelio Cartano doing business under the name and style of C & S Agro Development Company before the Court of First Instance of Camarines Sur. LEELIN procured a writ of preliminary attachment upon its filing of a bond of P12,962.17, the amount of its claim, by virtue of which the merchandise in the stores of defendants in Tabaco and Legazpi, Albay, one panel car and one sedan car were attached. However, upon presentation by defendants of a counterbond executed by Belfast Surety and Insurance Co., Inc., (the Surety, for brevity) in the amount of P20,000.00, and approved by the Trial Court, the attachment was dissolved.

The counterbond provides as follows:

WHEREFORE, we Mario Santos, Aurelio Cartao and C & S Development Co., as principals and Belfast Surety & Insurance Co., Inc. of Manila, Philippines, as surety in consideration of the lifting of said attachment hereby jointly and severally bind ourselves in the sum of TWENTY THOUSAND (P20,000.00) PESOS in favor of the plaintiff under the condition that we will pay all costs which may be adjudged to plaintiff and all damages which it may sustain by reason of the attachment, if the same shall finally be adjudged to have been wrongful and without sufficient cause. 1 (Emphasis supplied )

Defendants having failed to appear for trial, a commissioner appointed by the Court received the evidence. In due course, decision was rendered ordering defendants:

... to pay jointly and severally to the plaintiff, Leelin Marketing Corporation, the amounts of P14,020.26 in full payment of their account together with their corresponding interests as of January 15, 1969 with interest at the rate of 12% per annum on the amount of P12,962.17 until fully paid; P3,505.07 as attorney's fees, and Pl,312.25 to indemnify plaintiff of the expenses incurred by it in connection with this case and the writ of preliminary attachment therein. Without pronouncement as to costs.

The decision having become final and executory, a writ of execution was issued but the same was returned unsatisfied. LEELIN moved to charge the Surety on its counterbond, setting the motion for hearing. The Surety filed an opposition denying all liability for payment of the monetary judgment.

Resolving the motion, the Trial Court "reluctantly" held that the Surety cannot be held liable for the judgment under the terms and conditions set forth in the bond. Said the Court:

In the spirit prevailing in Section 20, Rule 57, Revised Rules of Court, we believe, the plaintiff should have notified the surety (Belfast Surety & Insurance Co., Inc.) when it presented its evidence during the trial in the spirit of fairness and to comply with the strict requirements of due process. A day in Court must be given the Surety before it should be adjudged or held liable under the counterbond. This should have been done by the plaintiff either before trial or before entry of the final judgment, i.e., not later than the date when the judgment becomes final and executory. This is the rule and has been reiterated by our Supreme Court in numerous cases. Plaintiff failed to observe or follow this procedure; accordingly, we cannot hold the surety liable even if the terms and conditions of the bond were differently words as quoted. ... 2

We reverse.

There is an apparent confusion between a bond put up by an attaching creditor for the issuance of writs of attachment covered by Section 4 of Rule 57 of the Rules of Court, and the counterbond given by the adverse party for the discharge of writs of attachment already issued covered by Section 12 of the same Rule 57. It is the bond posted by the attaching creditor under Section 4, Rule 57, in an amount not exceeding its claim, that answers for costs and all damages which may be sustained by the adverse party by reason of the attachment, if the Court shall finally adjudge that the attaching creditor was not entitled thereto. Explicitly, Section 4, Rule 57 provides:

Sec. 4. Condition of applicant's bond. The party applying for the order must give a bond executed to the adverse party in an amount to be fixed by the judge, not exceeding the applicant's claim, conditioned that the latter will pay all the costs which may be adjudged to the adverse party and all damages which he may sustain by reason of the attachment, if the court shall finally adjudge that the applicant was nnot entitled thereto.

And, it is the claim for damages on account of illegal attachment that may be awarded only after the proper hearing and which shall be included in the final judgment. That claim must be filed before the trial or before appeal is perfected or before the judgment becomes executory, with due notice to the attaching creditor and his surety, pursuant to Section 20 of Rule 57 of the Rules of Court, reading:

Sec. 20. Claim for damages on account of illegal attachment. If the judgment on the action be in favor of the party against whom attachment was issued, he may recover, upon the bond given or deposit made by the attaching creditor, any damages resulting from the attachment. Such damages may be awarded only upon application and after proper hearing, and shall be included in the final judgment. The application must be filed before the trial or before appeal is perfected or before the judgment becomes executory, with due notice to the attaching creditor and his surety or sureties, setting forth the facts showing his right to damages and the amount thereof.

xxx xxx xxx

On the other hand, a counterbond under Section 12 of Rule 57 of the Rules of Court is filed by the party whose property has been attached, equal to the value of the property attached, in order to secure the payment of any judgment that the attaching creditor may recover in the action. To discharge attachment upon said counterbond, said Rule explicitly provides:

Sec. 12. Discharge of attachment upon giving counterbond. At any time after an order of attachment has been granted, the party whose property has been attached, or the person appearing on his behalf, may, upon reasonable notice to the applicant, apply to the judge who granted the order, or to the judge of the court in which the action is pending, for an order discharging the attachment wholly or in part on the security given. The judge shall, after hearing, order the discharge of the attachment if a cash deposit is made, or a counterbond executed to the attaching creditor is filed, on behalf of the adverse party, with the clerk-or judge of the court where the application is made, in an amount equal to the value of the property attached as determined by the judge, to secure the payment of any judgment that the attaching creditor may recover in the action. Upon the firing of such counter-bond, copy thereof shall forthwith be served on the attaching creditor or his lawyer. Upon the discharge of an attachment in accordance with the provisions of this section the property attached, or the proceeds of any sale thereof, shall be delivered to the party making the deposit or giving the counter-bond, or the person appearing on his behalf, the deposit or counter-bond aforesaid standing in place of the property so released. Should such counter-bond for any reason be found to be, or become, insufficient, and the party furnishing the same fail to file an additional counter-bond, the attaching creditor may apply for a new order of attachment. (Emphasis supplied)

And, when execution against the principal debtor is returned unsatisfied, Section 17 of Rule 57 allows recovery upon the bond as follows:

Sec. 17. When execution returned unsatisfied, recovery had upon bond. If the execution be returned unsatisfied in whole or in part, the surety or sureties on any counterbond given pursuant to the provisions of this rule to secure the payment of the judgment shall become charged on such counterbond, and bound to pay to the judgment creditor upon demand, the amount due under the judgment which amount may be recovered from such surety or sureties after notice and summary hearing in the same action. (Emphasis supplied)

It is thus clear that the cases cited by the Surety requiring notice of hearing before the finality of the judgment in regards the claim of damages have no applicability in the case at bar. The application by the Trial Court of Section 20, Rule 57, is likewise misplaced.

Under Section 17 of Rule 57, in order that the judgment creditor may recover from the Surety on the counterbond, it is necessary (1) that execution be first issued against the principal debtor and that such execution was returned unsatisfied in whole or in part; (2). that the creditor made a demand upon the

surety for the satisfaction of the judgment; and (3) the surety be given notice and a summary hearing in the same action as to his hability for the judgment under his counterbond. 3

In the case at bar, we find that LEELIN had substantially complied with the foregoing requisites. A writ of execution had been issued and had been returned unsatisfied. It had filed a motion to charge the Surety on its counterbond. A notice for the hearing of the motion had been served on the Surety and summary hearing was held.

It must be conceded that there is nothing in the language or terms of the bond executed by the Surety under which it could be held liable for the amount of the judgment. Admittedly, too, LEELIN did not contest the words of the bond but remained silent with respect thereto at the time it was presented. As good faith is presumed, we assume that the parties had committed a mutual mistake believing that its terms correctly reflected the purpose for which it had been filed, that is, to secure the discharge of the writ of attachment. Mutual mistake and good faith having attended the execution of the bond, the reformation of the instrument is in order. 4

The Surety should be held estopped from denying that the purpose and intent of the bond was for the lifting of the attachment for that would be allowing it to enrich itself by its own bad faith. 5 By the very wording of its bond, the same was issued "in consideration of the lifting of (the) attachment".

A modification of the bond is declared and the provision of section 12 of Rule 57 of the Rules of Court considered read into and embodied in the bond in question. It is not the terms of the bond that control but the provisions of the law requiring the filing of such bond. In statutory or judicial bonds, the rule is "that the statute under which the bond is given shall be read into and considered as a part thereof, and that whatever conditions contrary to law that may be embodied therein will be ruled out and treated as surplusage, the theory being that when a contract of suretyship is entered into pursuant to a statute, the parties are deemed to have had the law in contemplation when the contract was executed." 6

WHEREFORE, the Order appealed from is reversed, and the Court of origin is hereby ordered to proceed with the execution against Belfast Surety and Insurance Co., Inc., to the extent of the amount of the counterbond, with costs against said surety company.

SO ORDERED.

Teehankee (Chairman), Plana, Vasquez, Relova and Gutierrez, Jr., JJ., concur.

Republic of the Philippines SUPREME COURT Manila

EN BANC

G.R. No. L-10006

October 31, 1957

DIONISIA BAUTISTA, SEVERO ABELLERA as sheriff of Quezon City and FILEMON CAJATOR, petitionersappellants, vs. HON. MINERVA R. INOCENCIO PIGUING, ET AL., respondents-appellees.

Filemon Cajator for appellants. Quesada, De Leon, Alejandro and Quijano and Azores for appellees.

FELIX, J.:

Consuelo Vda. de Buencamino purchased from Emilio E. Lim, on installment, 7 dinner sets for 4 persons consisting of 7 steel tables and 2, steel chairs with upholstered seats valued at P2,170. It was embodied in the contract of conditional sale entered into by the parties on January 16, 1954, that the title to said property will only pass to the buyer upon payment of the full purchase price and that default or failure to make 2 installments would cause the entire remaining obligation to become due and immediately demandable.

On March 8, 1954, a certain Dionisia Bautista brought an action for the recovery of a sum of money in the Municipal Court of Quezon City (Civil Case No. 1250) against Consuelo Vda. de Buencamino and caused the attachment of certain personal properties found in the possession of the latter, including the dinner sets aforementioned. As Consuelo Vda. de Buencamino had made a total payment of only P450 on these sets, Emilio E. Lim filed a third party claim with the Sheriff of Quezon City alleging that he was the owner of said specific personal property, but he was not able to gain custody of the same because Dionisia Bautista posted a bond, undertaken by the First National Surety and Assurance Co. Inc. (Bond No. 1518) in the sum of P1,712, to answer for any damages that the third party claimant may suffer. Lim, therefore, filed an action for the recovery and possession of the 7 dinner sets with the Municipal Court of Manila (Civil Case No, 31901, Branch IV) against Consuelo Vda. de Buencamino, wherein judgment was consequently rendered in his favor, ordering Consuelo de Buencamino to surrender possession of the property subject of the litigation. The writ of execution subsequently issued by the court was returned unsatisfied be cause the personal property adjudge to be returned to Lim had already been sold at public auction to Dionisia Bautista on July 16, 1954, by virtue of the writ of execution issued in Civil Case No. Q-1016 of the Court of First Instance of Quezon City (Dionisia Bautista vs. Consuelo Vda. de Buencamino) and that the amount claimed by Emilio E. Lim could not also be satisfied because Consuelo Vda. de Buencamino was not in a position to pay the same. Thus, Emilio E. Lim filed a complaint for damages with the Municipal Court of Quezon City (Civil Case No. 1578) against Dionisia Bautista, the Sheriff Of Quezon City and the First National Surety and Assurance Co., Inc., contending that because of the wrongful attachment of his property by the Sheriff of Quezon City and its subsequent sale at public auction, said plaintiff suffered damages in the amount of P1,712. The surety was joined as defendant because it bound itself solidarity with Dionisia Bautista in the bond posted to answer for damages that the attachment may cause the third party (Lim). It was, therefore, prayed that defendants be ordered to pay, jointly and severally, plaintiff Lim in the sum of P1,712, the value of the property sold at public auction which was the amount of damages suffered by said owner; for attorney's fees and costs.

The First National Surety and Assurance Co., Inc., filed an answer with cross-claim against its codefendant Dionisia Bautista on the strength of the indemnity bond, executed by said defendant and Filemon Cajator in favor of the surety; under the indemnity clause of the counterbond, cross-defendant Bautista agreed to indemnify the surety for damages, loses, costs, charges and expenses which it may incur or sustain, plus interests thereon and attorney's fees. And with leave of court, said surety company also file with the court a third-party complaint against Filemon Cajator to hold him solidarity liable with Dionisia Bautista under the counterbond and prayed that said third-party defendant be ordered to indemnify the First National Surety and Assurance Co., Inc., for whatever amount it may be sentenced to pay in the original case by virtue of Bond No. 1518.

Dionisia Bautista and the Sheriff of Quezon City and the third-party defendant Filemon Cajator filed separate motions to dismiss contending that venue was improperly laid and that the court acquired no

jurisdiction over the persons of the defendants. It was their stand that the action sought to enforce the indemnity bond for P1,712 should have been presented in the Municipal Court of Manila because it appeared that said band was executed in that city and, consequently, the Municipal Court of Quezon City acquired no jurisdiction over them. After due hearing on the motion to dismiss, the Municipal Judge of Quezon City issued an order denying the same and holding that as the action was one done for damages by virtue of the wrongful attachment levied by the Sheriff of Quezon City on certain personal property belonging to Emilio E. Lim, and as defendants Dionisia Bautista and the First National Surety and Assurance Co., Inc., fully aware of the claim of said plaintiff, filed a bond in favor of the Sheriff of Quezon City to answer for whatever damages plaintiff Lim might suffer by reason of that attachment, and as one of the defendants, the Sheriff of Quezon City, resides in said city, venue was properly laid in that case. In a separate order, the same court denied the motion to dismiss filed by Filemon Cajator on the ground that although there was a provision in the counterbond specifying that any question which may arise between them and the surety by reason of the said bond must be submitted for decision before the court of competent jurisdiction in the city of Manila, yet jurisdictional and venue requirements of an independent action need not be met in a third party proceeding since such action was merely ancillary to the original case and the necessity of bringing two or more actions involving the same subject matter should be avoided.

Defendants thereafter filed a petition for prohibition with the Court of First Instance of Quezon City to enjoin the Municipal Judge from proceeding with the trial of Civil Case No. 1578, and pursuant to their prayer, a writ of preliminary injunction was issued upon the filing by said petitioners of a bond for P500.00. The First National Surety and Assurance Co., Inc., and Emilio E. Lim filed their respective answers to the petition setting up in their defense the reasons supporting the orders of the Municipal Judge in her denial of the motions to dismiss filed by petitioners. On June 9, 1955, the Court of First Instance of Quezon City affirmed the ruling of the Municipal Judge in so far as the motion to dismiss filed by defendants Dionisia Bautista and the Sheriff was concerned because the proper venue was in Quezon City since the action was one for damages wherein in the Sheriff of Quezon City, who had a permanent residence in said place, was made of one of the party-defendants. The Court ruled, however, that in view of the waiver clause in the counterbond specifying the place where action should be brought, any question arising from the counterbond between the surety and third party defendant Filemon Cajator should fall with in the jurisdiction of the competent court in the City of Manila.

From this order petitioners Dionisia Bautista and the Sheriff of Quezon City appealed to this Court.

The only issue in the case at bar is whether the action for damages in Civil Case No, 1578 was properly brought in Quezon City and consequently, whether the Municipal Court of said city acquired jurisdiction over the same.

There is no question that the indemnity bond No. 1518 of the First National Surety and Assurance Co. Inc., in the sum of P1,712 was posted by Dionisia Bautista and the surety in favor of the Sheriff of Quezon City to answer for whatever damages the attachment of the personnel property claimed by Emilio E. Lim may produce (although there were originally 7 dinner sets, the Sheriff was able to attach only 6 tables and 24 chairs). There is likewise no controversy that this indemnity bond by the principal and the surety in the City of Manila, as appearing in said instrument. Both parties also claim as supporting their respective views the provisions of section 2 of Rule 4 of the Rules of Court which reads as follows:

SEC. 2 VENUE IN INFERIOR COURTS. . . .

All other civil actions in inferior courts shall be brought:

(a) In the place specified by the parties by means of a written agreement, whenever the court shall have jurisdiction to try the action by reason of its nature or the amount involved;

(b) If there is no such agreement, in the place of the execution of the contract sued upon as appears therefrom;

(c) When the place of execution of the written contract sued upon does not appear therein, or the action is not upon a written contract, then in the municipality where the defendant or any of defendants resides or may be served with summons.

Defendants-appellants assert that the action was one to enforce the indemnity bond and therefore, in accordance with paragraph (b) of section 2 of Rule 4 aforequoted, the action should be brought in the place of execution of the contract which in this case is the City of Manila. To this, We cannot agree, for defendants started with the wrong premise and consequently arrived at the incorrect conclusion. It requires no clarification that the complaint in Civil Case No. 1578 of the Municipal Court of Quezon City filed by Emilio E. Lim against said defendants was for damages be suffered by reason of the attachment of the personal property belonging to him. There is also no need for explanation that to answer for damages that said attachment may produce, Indemnity Bond. No. 1518 was filed by Dionisia Bautista and the First National Surety and Assurance Co., Inc., and thus when the third-party claimant Emilio Lim

failed to recover his property, he filed the corresponding complaint for damages against the principal and surety to the bond. Emilio E. Lim who suffered loss by reason of the attachment certainly is entitled to collect damages for that wrongful act, an eventuality which the execution of the indemnity bond intended to meet. Under the circumstances obtaining in this case Lim could not be held answerable for any terms in said bond, nor could he be governed by the provisions thereof because he was not a party to said contract. The terms of the same would be determinative only of the rights of the signatories therein, the principal and the surety, but not of third persons. In view of the fact that the action for damages was not based on any contract entered into between plaintiff and defendants, paragraph (c) of section 2 of Rule 4 of the Rules of Court is the pertinent provision on the matter and as one of the defendants is a resident of Quezon City, venue was properly laid when the action was commenced in the Municipal Court of said place.

Wherefore, the order appealed from is hereby affirmed, with costs against appellants. It is so ordered.

Paras, C.J., Bengzon, Padilla, Montemayor, Reyes

G.R. No. 86301 January 23, 1990

SPOUSES JULIAN SY and ROSA Q. TAN, petitioners, vs. HON. JAIME D. DISCAYA, JARDINE-MANILA FINANCE, INC., and THE PROVINCIAL SHERIFF OF RIZAL, respondents.

Alfredo I. Raya for petitioners.

I.M. Barredo & Associates for private respondent.

REGALADO, J.:

Assailed in this petition are the orders of the Regional Trial Court of Lucena City, Branch LIV, in Civil Case No. 88-109, entitled "Sps. Julian Sy and Rosa Q. Tan vs. Jardine-Manila Finance, Inc. and the Provincial Sheriff of Rizal," dated October 13, 1988 and December 5, 1988 and respectively dismissing the complaint for cancellation of entry on Transfer Certificate of Title No. T-28299 for lack of jurisdiction and denying the motion for reconsideration thereof. 1

The factual background of this case is simple and undisputed. It appears that Branch XIII of the Regional Trial Court, National Capital Judicial Region, Pasig, Metro Manila, promulgated a decision in Civil Case No. 39816 thereof against herein petitioner Julian Sy Bang and his co-defendants therein, Enrique Sy and Lester Sy, ordering them to pay the amount of P360,877.18, with interest at the rate of 14% per annum on the principal balance from July 30, 1982 until fully paid, plus attorney's fees and costs of suit.

Upon proper motion, the decision was ordered executed pending appeal. Consequent thereto, respondent sheriff, through his deputy, levied upon a parcel of land covered by Transfer Certificate of Title No. T-28294 of the Registry of Deeds for the City of Lucena, which notice of levy is annotated thereon as Entry No. 4651.

Thereafter, herein petitioners filed a complaint in the Regional Trial Court of Lucena, against respondents Jardine-Manila Finance, Inc. and the Provincial Sheriff of Rizal for the cancellation of the said notice of levy and to enjoin them from causing the auction sale of said property. They alleged that the land involved is the paraphernal property of petitioner Rosa Q. Tan and may not be attached or levied upon for the obligation of her husband. Furthermore, even assuming that the property is conjugal, it cannot also be attached or levied upon because the obligation sought to be enforced did not benefit the conjugal partnership.

Both respondents filed a motion to dismiss the complaint for lack of jurisdiction, which motion was granted by respondent judge in an order dated October 13, 1988 holding that Rosa Q. Tan has to institute the proper action in the Regional Trial Court, Branch 157 at Pasig, it being the court which issued the writ of execution. Reliance was placed by the court below on the case of De Leon vs. Salvador et al. 2 wherein, under the facts thereof, it was held that a court which has control of the property levied upon exercises exclusive jurisdiction over the same and that no court, except one having supervisory control or superior jurisdiction in the premises, has a right to interfere therewith.

A motion for reconsideration of said order was denied by the trial court, hence this present petition raising the issue of whether or not respondent judge erred in dismissing petitioner's complaint for lack of jurisdiction.

We find the petition meritorious. The right of a third-party claimant to file an independent action to vindicate his claim of ownership over the properties seized is reserved by Section 17, Rule 39 of the Rules of Court, as follows:

If property levied on be claimed by any other person than the judgment debtor or his agent, and such person makes an affidavit of his title thereto or right to the possession thereof, stating the grounds of such right or title, and serve the same upon the officer making the levy, and a copy thereof upon the judgment creditor, the officer shall not be bound to keep the property, unless such judgment creditor or his agent, on demand of the officer, indemnify the officer against such claim by a bond in a sum not greater than the value of the property levied on. In case of disagreement as to such value, the same shall be determined by the court issuing the writ of execution.

The officer is not liable for damages, for the taking or keeping of the property, to any third-party claimant unless a claim is made by the latter and unless an action for damages is brought by him against the officer within one hundred twenty (120) days from the date of the filing of the bond. But nothing herein contained shall prevent such claimant or any third person from vindicating his claim to the property by any proper action.

xxx xxx xxx

As held in the case of Ong vs. Tating et al., 3 construing the aforecited rule, a third person whose property was seized by a sheriff to answer for the obligation of the judgment debtor may invoke the supervisory power of the court which authorized such execution. Upon due application by the third person and after summary hearing, the court may command that the property be released from the mistaken levy and restored to the rightful owner or possessor. What said court can do in these instances, however, is limited to a determination of whether the sheriff has acted rightly or wrongly in the performance of his duties in the execution of judgment, more specifically, if he has indeed taken hold of property not belonging to the judgment debtor. The court does not and cannot pass upon the question of title to the property, with any character of finality. It can treat of the matter only insofar as

may be necessary to decide if the sheriff has acted correctly or not. It can require the sheriff to restore the property to the claimant's possession if warranted by the evidence. However, if the claimant's proofs do not persuade the court of the validity of his title or right of possession thereto, the claim will be denied.

Independent of the above-stated recourse, a third-party claimant may also avail of the remedy known as "terceria," provided in Section 17, Rule 39, by serving on the officer making the levy an affidavit of his title and a copy thereof upon the judgment creditor. The officer shall not be bound to keep the property, unless such judgment creditor or his agent, on demand of the officer, indemnifies the officer against such claim by a bond in a sum not greater than the value of the property levied on. An action for damages may be brought against the sheriff within one hundred twenty (120) days from the filing of the bond.

The aforesaid remedies are nevertheless without prejudice to "any proper action" that a third-party claimant may deem suitable to vindicate "his claim to the property." Such a "proper action" is, obviously, entirely distinct from that explicitly prescribed in Section 17 of Rule 39, winch is an action for damages brought by a third-party claimant against the officer within one hundred twenty (120) days from the date of the filing of the bond for the taking or keeping of the property subject of the "terceria."

Quite obviously, too, this "proper action" would have for its object the recovery of ownership or possession of the property seized by the sheriff, as well as damages resulting from the allegedly wrongful seizure and detention thereof despite the third party claim; and it may be brought against the sheriff and such other parties as may be alleged to have colluded with him in the supposedly wrongful execution proceedings, such as the judgment creditor himself. Such "proper action," as above pointed out, is and should be an entirely separate and distinct action from that in which execution has issued, if instituted by a stranger to the latter suit. 4

The remedies above mentioned are cumulative and may be resorted to by a third-party claimant independent of or separately from and without need of availing of the others. If a third party claimant opted to file a proper action to vindicate his claim of ownership, he must institute an action, distinct and separate from that in which the judgment is being enforced, with the court of competent jurisdiction even before or without need of filing a claim in the court which issued the writ, the latter not being a condition sine qua non for the former. In such proper action, the validity and sufficiency of the title of the third-party claimant will be resolved 5 and a writ of preliminary injunction against the sheriff may be issued. 6

In the case at bar, the filing by herein petitioners of an independent action with the court other than the one which issued the writ of execution is proper. Petitioner Rosa Tan is a stranger to the action where the writ of execution was issued and, therefore, cannot be compelled to present her claim with the said court which issued the writ.

Civil Case No. 88-109 filed by herein petitioner has a bearing on the issue of ownership which must be resolved by a court of competent jurisdiction. Such an independent action cannot be regarded as an encroachment upon the jurisdiction of a coequal and coordinate court. The levy by the sheriff on property by virtue of a writ of execution may be considered as made under authority of the court only when the property levied upon unquestionably belongs to the judgment debtor. If he should attach any property other than those of said debtor, he acts beyond the limits of his authority. Stated otherwise, the court issuing a writ of execution is supposed to enforce its authority only over properties of the judgment debtor, and should a third party appear to claim the property levied upon by the sheriff, the procedure laid down by the rules is that such claim should be the subject of a separate and independent action. 7 A money judgment is enforceable only against property unquestionably belonging to the judgment debtor. 8 As once noted by this Court, one man's goods shall not be sold for another man's debts. Ergo, the sheriff acts properly only when he subjects to execution property undeniably belonging to the judgment debtor, but to the extent that he levies on assets of a third person in which the judgment debtor has no interest, to that extent he is amenable to control and correction by the court. 9

It is, therefore, undeniable that respondent judge erred in dismissing the complaint for lack of jurisdiction. The action filed by petitioner in the trial court is well within the procedure contemplated by the Rules of Court, particularly Section 17 of Rule 39.

WHEREFORE, the petition is GRANTED and the questioned orders issued by respondent judge are hereby ANNULLED and SET ASIDE. This case is remanded to the court a quo for further proceedings.

SO ORDERED.

Melencio-Herrera, Paras, Padilla and Sarmiento, JJ., concur.