Provisional Remedies by Atty.
Joel Famador
Cases
6.
BA FINANCE CORPORATION,
vs. HON. COURT OF
APPEALS and ROBERTO M.
REYES, G.R. No. 102998. July
5, 1996
5.
FILINVEST CREDIT
CORPORATION vs. CA and
SPOUSES TADIAMA, [G.R. No.
115902. September 27, 1995.]
WON employees of plaintiff may
seize the property (NO)
WON it is only the owner who
can institute an action for
Replevin. (NO)
COMPILATION OF CASES: RULE 60
FACTS

 Spouses Tadiama purchased a 10 wheeler truck. They
executed a PN and a chattel mortgage over the motor
vehicle purchased to secure the PN
 Spouses defaulted and the petitioner filed an action for
Replevin and damages
 The Replevin was issued and the truck was seized by men
who turned out to be employees of petitioner
 The spouses filed a counter bond but the property was not
returned. The representatives of FILINVEST said their
Insurance was one that is black listed and they had to wait
for their lawyer to tell them it was ok to return
 They went to the warehouse of FILINVEST with the
representatives, the property custodian and the security
guard of the FILINVEST garage
 Instead the spouses and their lawyer was sent on a goose
case for the truck and petitioner would always deny knowing
where the truck was.
 They found the truck in a garage of another company and it
was “cannibalized”, meaning stripped for parts.
 RTC ruled in favor of FILINVEST and ordered sps to pay
remaining balance of PN. However, ordering FILINVEST to
pay damages to sps for the illegal seizure of property.
 CA affirmed in toto
RULING
AFFIRMED
Section 3 and 4 of Rule 60 states that it should be a “public officer” to implement
the replevin. In this case, it was not the sheriff or any proper officer of the trial
court who implemented it.
The petitioner, actually asked the court to appoint a special sheriff. Yet it used its
own employees who misrepresented themselves as deputy sheriffs. They insist
on Bachrach Motor v Summers which stated that the only restriction of the
mortgagee from seizure is that he must act in an orderly manner and without
creating a breach of the peace, subjecting himself to an action of Trespass.
Where, however, debtor refuses to yield up the property, the
creditor must institute an action, either to effect a judicial
foreclosure directly, or to secure possession as a preliminary to
the sale contemplated in the provision above quoted. He cannot
lawfully take the property by force against the will of the debtor.
Upon this point the American authorities are even more
harmonious than they are upon the point that the creditor is
entitled to possession. As was said many years ago by the writer
of this opinion in a monographic article contributed to an
encyclopedic legal treatise, "if possession cannot be peaceably
obtained the mortgagee must bring an action." (Trust Deeds and
Power of Sale Mortgages, 28 Am. & Eng. Encyc. of Law, 2d ed.,
783.) In the Article of Chattel Mortgages, in Corpus Juris, we nd
the following statement of the law on the same point: "The only
restriction on the mode by which the mortgagee shall secure
possession of the mortgaged property after breach of condition is
that he must act in an orderly manner and without creating a
carminotes 1

6.
NORTHERN MOTORS, INC,
vs. HON. AMEURFINA
MELENCIO HERRERA, Judge
of CFI, and RALPH R. TAGUB,
[G.R. No. L-32674. February
22, 1973.]
Provisional Remedies by Atty. Joel Famador
COMPILATION OF CASES: RULE 60
 Respondent Taguba executed a PN in favor of Petitioner
 Upon default, Petitioner filed a complaint against Taguba
and attached an Affidavit for Replevin, executed by an officer
of Petitioner.
 RTC DENIED, because an affidavit must be submitted
alleging that the plaintiff is the owner or that he is entitled to
possession. It ruled that petitioner was not an owner and it is
breach of the peace, subjecting himself to an action to trespass."
(11 C.J., 560; see also 5 R.C.L., 462.)
The reason why the law does not allow the creditor to possess
himself of the mortgaged property with violence and against the
will of the debtor is to be found in the fact that the creditor's right
of possession is conditioned upon the fact of default, and the
existence of this fact may naturally be the subject of controversy.
The debtor, for instance, may claim good faith, and rightly or
wrongly, that the debt is paid, or that for some other reason the
alleged default is nonexistent. His possession in this situation is
as fully entitled to protection as that of any other person, and in
the language of Article 446 of the Civil Code he must be respected
therein. To allow the creditor to seize the property against the will
of the debtor would make the former to a certain extent both judge
and executioner in his own cause — a thing which is inadmissible
in the absence of unequivocal agreement in the contract itself or
express provision to that effect in the statute.
Replevin is, of course, the appropriate action to recover possession preliminary to
the extrajudicial foreclosure of a chattel mortgage. Filinvest did in fact instituted
such an action and obtained a writ of replevin. And, by ling it, Filinvest admitted that
it cannot acquire possession of the mortgaged vehicle in an orderly or peaceful
manner. Accordingly, it should have left the enforcement of the writ in accordance
with Rule 60 of the Rules of Court which it had voluntarily invoked. Parenthetically,
it must be observed that the trial court erred in holding that the action for replevin
was "not in order as [Filinvest] is not the owner of the property (Sec. 2 par. (a) Rule
60)." 11 It is not only the owner who can institute a replevin suit. A person "entitled
to the possession" of the property also can, as provided in the same paragraph.
Reversed, petition GRANTED.
There can be no question that persons having a special right of property in the
goods the recovery of which is sought, such as a chattel mortgagee, may
maintain an action for replevin therefor. Where the mortgage authorizes the
mortgagee to take possession of the property on default, he may maintain an
action to recover possession of the mortgaged chattels from the mortgagor or
carminotes 2
 Provisional Remedies by Atty. Joel Famador
COMPILATION OF CASES: RULE 60

not entitled to its possession merely because the mortgagor from any person in whose hands he may find them. This is irrespective of whether
has failed to pay the account guaranteed by the mortgage. the mortgage contemplates a summary sale of the property or foreclosure by
o MR was filed but same was denied, the court saying court action
that the Petitioner may only file a Replevin only for
the purpose of delivering the chattel to the public As early as the case of Bachrach Motor Co. v. Summers (42 Phil. 6) We
officer for foreclosure sale explained that when the debtor defaults, and the creditor desires to foreclose the
o that even if the mortgagee has a right of possession, mortgaged chattel, he must necessarily take the mortgaged property in his hands,
that right is not unqualified but is subject to the but when the debtor refuses to yield the possession of the property, the creditor
obligation of delivering the possession of the must institute an action, either to effect a judicial foreclosure directly, or to secure
mortgaged chattel to the public officer for foreclosure possession as a preliminary to the sale contemplated under Section 14 of Act No.
 1508. The right of the mortgagee to have possession of the mortgaged chattel
 after the condition of the mortgage is breached must be therefore deemed to be
 well settled.

All what is required by Section 2 of Rule 60 is that upon applying for an order for
replevin, the plaintiff must show
 that he is "the owner of the property claimed, particularly describing it, or
is entitled to the possession thereof";
 that the property is wrongfully detained by the defendant with an
allegation on the cause of detention;
 that the same has not been taken for any tax assessment or fine levied
pursuant to law nor seized under any execution, or an attachment against
the property of such plaintiff or if so seized that it is exempt from seizure.
 The affidavit must also state the actual value of the property.

The affidavit of S. M. Laureola, Assistant to the General Manager of Northern

Motors, Inc. attached to the complaint, substantially complies with the aforecited
requirements.

There is nothing in the rules which state that it is only when the mortgagor refuses
to surrender the chattel to the sheriff that the action of replevin may be instituted.

while Section 14 of Act 1508 places upon "a public officer" the responsibility of
conducting the sale of the mortgaged chattel, there is nothing in said statute
which would authorize the officer to seize the mortgaged property; and that for the
recovery of possession of said property, where the right is disputed, "the creditor
must proceed along the channels by action in court."

carminotes 3

7.
Sps FERNANDEZ vs. THE
INTERNATIONAL
CORPORATE BANK, now
UNION BANK OF THE
PHILIPPINES and PREMIERE
INSURANCE & SURETY CORP
WON the Writ of Replevin
issued by MTC Pasay City could
be enforced outside? (YES)
WON
Provisional Remedies by Atty. Joel Famador
COMPILATION OF CASES: RULE 60
 Petitioners purchased a Nissan Sedan through a financing
scheme from private respondent, ICB (Union Bank) and a
chattel mortgage was instituted in favor of the respondent
bank.
 Respondent filed a complaint for sum of money with
replevin.
 Petitioner field a MTD because the principal amount involved
was 553,944.00, they claim MTC does not have jurisdiction.
o Petitioners contested the venue saying that their
principal office was in Makati and residence was in
Quezon
o Baseless filing = robbery
o They cannot be considered in default since they
attempted many times to pay the bank their
installments and they never received any statement
of delinquency.
The basic reason why the creditor should initiate such action is because of the
circumstances that the creditor's right of possession of the subject-matter of the
chattel mortgage, as a preliminary to an extrajudicial foreclosure proceeding, is
conditioned upon the fact of actual default on the part of the principal
obligor, and the existence of this fact may naturally be the subject of
controversy. In case of such default and the mortgagee refuses upon demand,
to surrender possession of the mortgaged chattel so that it may be sold at public
auction pursuant to Section 14 of Act 1508, it would certainly be an exercise in
futility for the mortgagee to first request or direct the sheriff to "foreclose the
mortgage" or take possession of the property, before filing an action in court to
recover its possession. Such a procedure is completely unnecessary not only
because the sheriff has no duty or authority in the first instance to seize the
mortgaged property, but also because whenever the sheriff proceeds under
section 14 of the Chattel Mortgage Law, he becomes pro hac vice the mere agent
of the creditor. In any event it is only upon receiving the order of the Court
requiring the sheriff to take forthwith such property into his custody, that the duty
of said officer to take possession of the mortgaged chattel arises (Section 4, Rule
60, Revised Rules of Court).
It was therefore error for the court a quo to hold that petitioner has not sufficiently
averred its right to the possession of the property sought to be recovered.
DENIED
Territorial Enforcement of the Writ
Resolution of SC, Jan. 11, 1983, a writ of Replevin may be served anywhere in
the Philippines. As the resolution only specifically mentions the following to be
enforced anywhere in the REGION:
1. Certiorari
2. Prohibition
3. Mandamus
4. Quo Warranto,
5. Habeas Corpus
Therefore, any other writ whether produced by RTC, MTC, MeTC, MCTC may be
served anywhere in the Philippines.
carminotes 4

8.
ETHEL CASE and MINNA
NANTZ, vs. FERNANDO
JUGO, and FELIPE F. CRUZ,
G.R. No. L-832. October 10,
1946.
WON there is still a need to
serve a copy of the counterbond
to the plaintiff, when counsel
already has personal
knowledge. (NO)
Provisional Remedies by Atty. Joel Famador
COMPILATION OF CASES: RULE 60
o They attempted to consign the amount but was
refused by the court for no reason.
 RTC denied the petition for dismissal as well as the lifting of
the replevin
o The parties had prior agreement of the venue in
case there is case filed in court, in that case, MTC,
Pasay, had jurisdiction
o Under the ROC, the defendant had 5 days to post a
redelivery bind in order to secure the return of the
subject vehicle and to post a counterbond, double
the amount of the chattel. In this respect, the
defendant failed to exercise his right
 CA, affirmed
o The basic claim of the case did not exceed
200,000.00, hence within the JD of MTC Pasay.
o The issue of venue should have been raised before
a responsive pleading was filed, otherwise, it is
considered waived.
o The Writ of Replevin could be validly executed
anywhere in Metro Manila because Sec 27, BP 129
authorizes establishment of MTC MM with 82
branches could issue writs that could be validly be
served and executed anywhere within MM
 Hence, this present petition.
 Petitioners applied for a writ of seizure for the recovery of the
truck and filed a bond of 20k as provided by Sec 5 and 6 of
Rule 62
 The order was issued and carried out
 Respondent field an ex parte motion for the return of the
truck and filed a counterbond
o Alleged: Attorney of Petitioner was asked WON the
Cbond was sufficient and he had no objections.
o This was denied by Petitioner counsel but stated he
was present.
Malaloan v. Court of Appeals 11 reiterated the foregoing distinction between the
jurisdiction of the trial court and the administrative area:
The rule enumerates the writs and processes which, even if
issued by a regional trial court, are enforceable only within its
judicial region. In contrast, it unqualifiedly provides that all other
writs and processes, regardless of which court issued the same,
shall be enforceable anywhere in the Philippines.
The objection to Venue was too late, it should have been filed before the filing of
a Responsive Pleading, otherwise, it is waived. In this case, the issue of Venus
was raised on time, their objection is thus waived.
Petitioners argue that the value of the property seized is greater than 200,000.00,
thus MTC does not have jurisdiction. However, what Petitioner fails to see is the
fact that the amount on which jurisdiction should be based, is not on the property
itself, but on the claim owing to the petitioners. The fundamental claim in the main
action against petitioners, as shown in respondent bank's Complaint, is the
collection of the sum of P190,635.90, an amount that is clearly within the
jurisdiction of the MTC
Finally, the redelivery bond alone should have been double the amount of the
chattel, thus, the consigned amount of the petitioner did not satisfy the
requirments of ROC.
DENIED
According to sections 5 and 6, Rule 62, of the Rules of Court, if the defendant in a
case of replevin wants to have the property returned to him, he must put up a
bond in double the amount of the chattel and furnish the plaintiff with a copy of the
undertaking within ve days from the date the sheriff took possession of the
property. Both requirements are mandatory. The furnishing of a copy of the
counterbond has to be accomplished within the prescribed period if the plaintiff s
to have an opportunity to contest the redelivery of the property sought by the
defendant.
carminotes 5

9.
PASTOR D. AGO vs CA, HON.
MANUEL P. BARCELONA,
BENITO MACROHON,
VENANCIO CASTAÑEDA and
NICETAS HENSON, G.R. No.
L-19718. January 31, 1966
So basically what happened was, R filed an action for Replevin
against P. it was issued but P gave counterbond so the property was
Provisional Remedies by Atty. Joel Famador
COMPILATION OF CASES: RULE 60
 Respondents Venancio Castañeda and Niceta Henson, set
up an action for Replevin in CFI, Manila to recover from
Pastor Ago a Caterpillar Tractor, a jaeger hoist and a cargo
truck. Asked for immediate delivery and thus posted a
BOND.
o CFI approved the bond and the seizure.
o Petitioner Ago field counterbond to retain the
possession of machinery.
 CFI rendered judgement for respondent, ordering the
petitioner to return the machineries.
 Hence, appeal to SC.
o During appeal, it was found out that the Surety
became bankrupt.
o Thus petitioner were ordered to issue a new
sufficient counterbond.
 PETITIONER challenged the JD of trial court to issue the
writ both in the CA and SC, but both were dismissed.
 SHERIFF served the writ to manager of Petitioner and found
out that the machineries were severely deteriorated and has
become useless.
o Because of the “dilapidated condition” of the
machineries the respondents refuse to take them.
o The sheriff made a report to the court, stating that,
because of respondents' refusal to take possession
of the machines, "there is no other recourse but to
return (them) to defendant Pastor D. Ago."
However, there was substantial compliance with the last requirement. Since the
sole purchase of furnishing a copy of the counterbond is to enable the plaintiff to
see if the bond is the prescribed from and for right amount and to resist the return
of the property to the defendant if it is not, that opportunity was afforded the
petitioners to the fullest extent when their attorney was shown in the sheriff's
office the defendant's counterbond. After the plaintiffs' attorney read or saw the
counterbond, service of a copy thereof on him became a purposeless,
unnecessary formality. There is no reason why the maxim, "Equity regards
substance rather than form," should not hold good here.
Affirmed, Petition DENIED.
To begin with, where judgment is rendered for the articles or their value and they
cannot be returned in substantially the same condition, it is settled that the
prevailing party may refuse to take them and instead sue on the redelivery bond
or, as in this case, execute on the judgment for value (Kunz v s . Nelson, 76 P2d
577 [1938]). If the prevailing party has this right after judgment, it is at once
obvious that he must also have the same right when, asking for the delivery p e n
d e n t e lit e of the same property, he afterwards nds them in a substantially
depreciated condition. Here, the Court of Appeals found "beyond dispute" that the
tractor and the hoist had so deteriorated that they had become unserviceable.
This right to reject is assured in the first instance by the provision that the
judgment in a suit for replevin must be in the alternative so as to afford a measure
of relief where the property cannot be returned (Rule 60, sec. 9); in the second
case it is implied from the requirement that "if for any reason the property is not
delivered to the plaintiff, the officer must return it to the defendant." (Rule 60, sec.
6). It then becomes the defendant's obligation to take them back upon tender of
the sheriff.
But if, as explained, it was petitioner's obligation to accept redelivery of the
machines after their rejection by respondents, then it is clear that whether he took
them back or not, he was liable for their detention. An action for replevin has for
its object the recovery of some personal property; it is obvious that if the plaintiff
in that action refuses to take delivery of the very property he sought to recover, it
must be for very good reasons which defeat his object.
But there is an even more fundamental reason why we think the lower court
correctly ordered execution to proceed. As Moran aptly states: "[A] court cannot
carminotes 6
 Provisional Remedies by Atty. Joel Famador
COMPILATION OF CASES: RULE 60
returned to P. However, CFI went ahead and ruled in favor of R, thus
the order of seizure was served to P. but the machineries were now
useless. R now refuses to accept the machinery saying that when they
returned the machinery it was in good condition. Now the SC affirmed
the decision in the appeal and remanded to lower court.
 SC remanded to CFI and CFI issued a Writ of Execution for
a total of P172,923.87.
o Petitioner now claim that because of the “change in
the situation of the parties” it made it inequitable to
execute the writ. Petitioner claims that the
machinery was never returned to him.
o Since the truck was basically junk, its value could
not be determined, P should not be made to pay
99,877.09
o DENIED motion of Petitioner saying he should have
raised this before the judgement became final.
 petitioner's house and lot in Quezon City
were levied upon by the Sheriff and
advertised for sale on October 25, 1961.
o Petitioner filed MOTION to Stop the Sale, which was
DENIED. MR was also denied.
o Petitioner then filed Certiorari to CA, which was
dismissed.
o Hence, the appeal.
o
 Elias Aboitiz executed a chattel mortgage upon Nash
BACHRACH MOTOR automobile, in favor of the Bachrach Motor Company to
COMPANY, INC. vs RICARDO secure a debt.
SUMMERS, G.R. No. 17393.  Mortgagor defaulted in payment of the installments. As a
July 21, 1921 consequence the Motor Company determined to have the
car sold for the purpose of foreclosing
 Motor Company requested Ricardo Summers, Sheriff of
WON after default by the Manila to take the car from the debtor and expose it to the
mortgage, the sheriff is public sale.
unconditionally bound to seize  The mortgagor refused to surrender possession
the mortgaged property  Motor Company instituted a Replevin
 Aboitiz gave a bond for the retention of the automobile
pende lite
refuse to issue a writ of execution upon a nal and executory judgment, or quash it,
or order its stay, for, as a general rule, the parties will not be allowed, after nal
judgment, to object to the execution by raising new issues of fact or of law, nor
can it refuse — and the reason is more compelling — to issue such writ, or quash
it or order its stay, when the judgment had been reviewed and armed by an
appellate court, for it cannot review or interfere with any matter decided on
appeal, or give other or further relief, or assume supervisory jurisdiction to
interpret or reverse the judgment of the higher court." (2 Comments on the Rules
of Court 257 [1963])
But those cases, as A m o r v s . J u g o, 77 Phil. 703 (1946) subsequently
explained, cannot be invoked when the supposed change in the circumstances of
the parties took place while the case was pending. The reason is that there is
then no excuse for not bringing the matter to the attention of the court the fact or
circumstance that affects the outcome of the case. Such was the supposed
change in the situation of the parties in this case when, so it is claimed, the
petitioner lost possession of the machines for the detention of which he was
ordered by final judgment to pay damages.
Thus, affirmed.
Demurrer sustained, Writ DENIED.
In commercial usage the property which is the subject of a chattel mortgage is, as
is well known, almost invariably left in the possession of the mortgagor, and this
possession is not disturbed until the mortgagor defaults in the payment of the
secured debt or otherwise fails to comply with the conditions of the mortgage.
When default occurs and the creditor desires to foreclose, he must necessarily
take the mortgaged property into his hands
As will be seen, this provision supposes that the creditor has possession of the
mortgaged property, for the power to sell imports a power to make delivery of the
thing sold to the purchaser; and without actual possession delivery would be
carminotes 7
 Provisional Remedies by Atty. Joel Famador
COMPILATION OF CASES: RULE 60
 Motor Company filed a MANDAMUS to compel the sheriff to
seized the car from the mortgagor and sell it.
 The sheriff instituted a Demurrer.
 Hence, this case
impossible. The right of the mortgagee to have possession after condition broken
must therefore be taken to be unquestionable; and to this effect is the great
weight of American authority.
Where, however, the debtor refuses to yield up the property, the creditor must
institute an action, either to effect a judicial foreclosure directly, or to secure
possession as a preliminary to the sale contemplated in the provision above
quoted.
“The only restriction on the mode by which the mortgagee shall secure
possession of the mortgaged property after breach of condition is that he must act
in an orderly manner and without creating a breach of the peace, subjecting
himself to an action for trespass."
The reason why the law does not allow the creditor to possess himself of the
mortgaged property with violence and against the will of the debtor is to be found
in the fact that the creditor's right of possession is conditioned upon the fact of
default, and the existence of this fact may naturally be the subject of controversy.
The debtor, for instance, may claim in good faith, and rightly or wrongly, that the
debt is paid, or that for some other reason the alleged default is nonexistent. His
possession in this situation is as fully entitled to protection as that of any other
person, and in the language of article 446 of the Civil Code he must be respected
therein. To allow the creditor to seize the property against the will of the debtor
would make the former to a certain extent both judge and executioner in his own
cause — a thing which is inadmissible in the absence of unequivocal agreement
in the contract itself or express provision to that effect in the statute.
It will be observed that the law places the responsibility of conducting the sale
upon "a public ocer;" and it might be supposed that an ocer, such as the sheriff,
can seize the property where the creditor could not. The sheriff or officer becomes
the pro hac vice the mere agent of the creditor.
The conclusion is clear that for the recovery of possession, where the right is
disputed, the creditor must proceed along the usual channels by action in court.
Whether the sheriff, upon being indemnified by the creditor, could safely proceed
to take the property from the debtor, is a point upon which we express no opinion.
While it is true that in some sense the mortgage law puts the mortgagee in a
position of owner upon default, any person versed in the English language would
carminotes 8

ROMEO S. CHUA, petitioner,
vs. THE HON. COURT OF
APPEALS, DENNIS CANOY,
and ALEX DE LEON, G.R. No.
79021. May 17, 1993
WON the validity of a seizure
made pursuant to a search
warrant issued by a court can be
questioned in another branch of
the same court, where the
criminal action filed in
connection with which the
search warrant was issued, had
been dismissed provisionally.
Provisional Remedies by Atty. Joel Famador
COMPILATION OF CASES: RULE 60
 Judge Francisco of RTC cebu after examining 2Lt Dennis
Canoy and 2 other witnesses issued a Search Warrant to
search the premises of RR Construction and the seizure of
an Isuzu dump truck.
 Shortly after, a civil action for Replevin/ Sum of Money was
instituted by Petitioner against Respondent Canoy and one
John Doe in the RTC presided by one Judge Canares: that
he had not carnapped, that he did not sell the vehicle that he
is the owner.
 The RTC issued the writ.
 Canoy filed a motion for dismissal of the complaint and to
quash the writ. Both were DENIED.
 Respondent Canoy filed Certiorari with the CA
 CA, REVERSED RTC. The appellate court ordered the
dismissal of the Replevin action, and directed that
possession of the subject vehicle be restored to Canoy. it
was also pointed out in the same case that the validity of a
know that the mortgage is meant as a security . The contract in fact merely
imposes on the mortgaged property a subsidiary obligation by which it is bound
for the debt or other principal obligation of the mortgagor. This is the equitable
conception of the mortgage
But whatever conclusion may be drawn in the premises with respect to the true
nature of a chattel mortgage, the result must in this case be the same; for whether
the mortgagee becomes the real owner of the mortgaged property — as some
suppose — or acquires only certain rights therein, it is none the less clear that he
has after default the right of possession; though it cannot be admitted that he may
take the law into his own hands and wrest the property violently from the
possession of the mortgagor. Neither can he do through the medium of a public
ocer that which he cannot directly do himself. The consequence is that in such
case the creditor must either resort to a civil action to recover possession as a
preliminary to a sale, or preferably he may bring an action to obtain a judicial
foreclosure in conformity, so far as practicable, with the provisions of the Chattel
Mortgage Law.
The demurrer must be sustained, and the writ prayed for will be denied. It is so
ordered, with costs against the petitioner.
DENIED.
A criminal prosecution for carnapping need not establish the fact that complainant
therein is the absolute owner of the motor vehicle. What is material is the
existence of evidence which would show that respondent took the motor vehicle
belonging to another.
Another aspect which needs to be stressed is the fact that since a preliminary
investigation is not part of the trial, the dismissal of a case by the fiscal will not
constitute double jeopardy and hence there is no bar to the filing of another
complaint for the same offense (People vs. Medted, 68 Phil 435).
The principle followed among courts in the dispensation of justice is that a judge
who presides in a branch of a court cannot modify or annul the orders issued by
another branch of the same court, since the two (2) courts are of the same rank,
and act independently but coordinately
carminotes 9
 Provisional Remedies by Atty. Joel Famador
COMPILATION OF CASES: RULE 60
search warrant may only be questioned in the same court
that issued it
 Meanwhile a case for CARNAPPING was filed by Alex De
Leon against Romeo Chua. It was provisionally dismissed
without prejudice
It is a basic tenet of civil procedure that replevin will not lie for property in custodia
legis. A thing is in custodia legis when it is shown that it has been and is
subjected to the official custody of a judicial executive officer in pursuance of his
execution of a legal writ (Bagalihog vs. Fernandez, 198 SCRA 614 [1991]). The
reason posited for this principle is that if it was otherwise, there would be
interference with the possession before the function of the law had been
performed as to the process under which the property was taken. Thus, a
defendant in an execution or attachment cannot replevy goods in the possession
of an officer under a valid process, although after the, levy is discharged, an
action to recover possession will lie (Francisco, Revised Rules of Court in the
Philippines: Provisional Remedies, p. 402 [1985]).
It stated that in the Pagkalinawan case, there was a conflict in jurisdiction. On the
other hand, in the Vlasons case, it was certain that no criminal case would ensue
subsequent to or in connection with the search warrant, hence no conflict in
jurisdiction or in the ultimate disposition of the property could arise. Thus, where
personal property is seized under a search warrant and it appears that the seizure
will not be followed by the filing of any criminal action, but there are conflicting
claims asserted over the seized property, the appropriate remedy is the institution
of an ordinary civil action by any interested party, or of an interpleader action by
the Government itself, in the proper competent court to which the seizing court
shall transfer custody of the articles. Another branch of the same court, in an
action to recover said property and during the pendency thereof, cannot order the
delivery of said personal property to therein plaintiff pendente lite.
Construing the Pagkalinawan case together with the Vlasons case, we rule that
where personal property is seized under a search warrant and there is reason to
believe that the seizure will not anymore be followed by the filing of a criminal
action, and there are conflicting claims over the seized property, the proper
remedy is the filing of an action for replevin, or an interpleader filed by the
Government in the proper court, not necessarily the same one which issued the
search warrant; however, where there is still a probability that the seizure will be
followed by the filing of a criminal action, as in the case at bar where the case for
carnapping was "dismissed provisionally, without prejudice to its reopening once
the issue of ownership is resolved in favor of complainant" (emphasis supplied),
or the criminal information has actually been commenced, or filed, and actually
prosecuted, and there are conflicting claims over the property seized, the proper
remedy is to question the validity of the search warrant in the same court which
issued it and not in any other branch of the said court. llcd
carminotes 10

LA TONDEÑA DISTILLERS,
INC., petitioner, vs. COURT OF
APPEALS, NATIVIDAD
ADDURU SANTILLAN, Judge,
Branch 38, RTC, Manila,
DEPUTY SHERIFF REGIO
RUEFA and TEE CHIN HO,
G.R. No. 88938. June 8, 1992
MACHINERY & ENGINEERING
SUPPLIES, INC., petitioner, vs.
THE HONORABLE COURT OF
APPEALS, HON.
POTENCIANO PECSON,
JUDGE OF THE COURT OF
FIRST INSTANCE OF MANILA,
IPO LIMESTONE CO., INC.,
and ANTONIO VILLARAMA,
G.R. No. L-7057. October 29,
1954
Provisional Remedies by Atty. Joel Famador
COMPILATION OF CASES: RULE 60
 Petitioner filed a complaint for Recovery of machineries and
equipment sold and delivered to defendant at their factory.
 Respondent judge issued an order commanding thr dheriff to
seize the property. (upon bond, attachment of affidavit of
president of Petitioner)
 the defendants therein, protesting against the seizure of the
properties in question, on the ground that they are not
personal properties.
 The president’s attention was bought to the fact that the
equipments could not be dismantled without causing
damage. Despite that they told sheriff that a bind has been
filed and directed for the support to be cut.
 Defendant filed a counterbond
 On March 21, 1953, the deputy sheriffs returned the
properties seized, by depositing them along the road, near
the quarry, of the defendant Company, at Bigti, without the
benefit of inventory and without re-installing them in their
former position and replacing the destroyed posts, which
rendered their use impracticable.
Thus, the Regional Trial Court of Cebu Branch VIII erred when it ordered the
transfer of possession of the property seized to petitioner when the latter filed the
action for replevin. It should have dismissed the case since by virtue of the
"provisional dismissal" of the carnapping case there is still a probability that a
criminal case would be filed, hence a conflict in jurisdiction could still arise. The
basic principle that a judge who presides in one court cannot annul or modify the
orders issued by another branch of the same court because they are co-equal
and independent bodies acting coordinately, must always be adhered to.
AFFIRMED.
Lastly, although the parties have not cited, and We have not found, any authority
squarely in point - obviously because real property are not subject to replevin - it
is well settled that, when the restitution of what has been ordered, the goods in
question shall be returned in substantially the same condition as when taken (54
C.J., 590-600, 640-641). Inasmuch as the machinery and equipment involved in
this case were duly installed and affixed in the premises of respondent company
when petitioner's representative caused said property to be dismantled and then
removed, it follows that petitioner must also do everything necessary to the
reinstallation of said property in conformity with its original condition.
carminotes 11

REYNALDO SEBASTIAN vs.
SHERIFF ALBERTO A.
VALINO,
A.M. No. P-91-549. July 5, 1993
Provisional Remedies by Atty. Joel Famador
COMPILATION OF CASES: RULE 60
 The Sheriff filed an urgent motion manifesting that Rocco
the president, has been informed that the machineries
should be reinstalled but it was not heeded.
 The court issued an order fot he plaintiff and the sheriff to
reinstall
 Petitioner then filed a complaint in CA saying that CA acted
in grave abuse of discretion for issuing the order to furnish
the sheriff of Bulacan money to reinstall the
 CA
o The question of ownership and the applicability of
Art. 415 of the new Civil Code are immaterial in the
determination of the only issue involved in this case.
It is a matter of evidence which should be decided in
the hearing of the case on the merits. The question
as to whether the machineries or equipments in
litigation are immovable or not is likewise immaterial,
because the only issue raised before the trial court
was whether the Provincial Sheriff of Bulacan, at the
Petitioner's instance, was justified in destroying the
machineries and in refusing to restore them to their
originalform, at the expense of the Petitioner.
Whatever might be the legal character of the
machineries and equipments, would not in any way
justify their destruction by the Sheriff's and the said
Petitioner's."
o MR denied.
o
 Private Development Corporation of the Philippines (PDCP) the Court finds respondent GUILTY of serious misconduct
filed a Replevin against Marble, Inc. in order to foreclose the
chattel mortgaged by Marblecraft Under the Revised Rules of Court, the property seized under a writ of replevin is
 RTC Makati issued a writ of seizure directed against not to be delivered immediately to the plaintiff. The sheriff must retain it in his
Marblecraft custody for five days and he shall return it to the defendant, if the latter, as in the
 The enforcement of the writ of seizure was delayed because instant case, requires its return and files a counterbond (Sec. 4, Rule 60, Revised
of the writ of preliminary injunction enjoining PDCP from Rules of Court). In violation of said Rule, respondent immediately turned over the
proceeding with the foreclosure sale issued by the Regional seized articles to PDCP. His claim that the Office of the Regional Sheriff did not
Trial Court, Pasig, Metro Manila have a place to store the seized items, cannot justify his violation of the Rule. As
 When it was dissolved, the respondent went to the office of aptly noted by the Investigating Judge, the articles could have been deposited in
Marblecraft to implement the writ Respondent and his a bonded warehouse.
carminotes 12
 Provisional Remedies by Atty. Joel Famador
COMPILATION OF CASES: RULE 60

companions forcibly opened the lockers and desk drawers of Respondent must serve on Marblecraft not only a copy of the order of seizure but
the employees of complainant and took their personal also a copy of the application, affidavit and bond (Sec. 4, Rule 60, Revised Rules
belongings, as well as some office equipment issued to of Court). Respondent did not furnish defendant with a copy of the application,
them. affidavit and bond. By his own admission, he only served it with a copy of the
 The employees filed with the Office of the Provincial order of seizure (Rollo, p. 37). LLpr The more serious infraction of respondent is
Prosecutor of Rizal two criminal complaints for robbery his refusal to implement the orders of the Regional Trial Court, Makati for him to
against respondent and his companions. return to complainant the articles seized pursuant to the writ of seizure dated
 In implementing the writ, machinery and equipment were March 30, 1990.
destroyed.
 Respondent turned over the seized articles to the counsel of Respondent could have avoided getting into his present predicament had he not
PDCP and allowed these items to be stored in PDCP's turned over the possession of the seized goods prematurely to the PDCP. The
warehouse in Taguig, Metro Manila. complainant cannot be blamed if it harbored the suspicion that respondent was
 Complainant posted a counterbond beholden to PDCP. The zeal with which respondent enforced the order of seizure
 On November 14, 1990, complainant posted a counterbond. in favor of PDCP was in sharp contrast with his inaction in enforcing the three
In an order issued on the same day, the Regional Trial orders of the trial court directing him to return the seized items to complainant.
Court, Makati, approved the bond and directed the llcd It is not for respondent to question the validity of the orders of the trial court. It
immediate return of the seized items. After denying PDCP's is for him to execute them.
motion to set aside the November 14 Order, the trial court
reiterated the directive for the return of the seized items in its
November 26 Order. Respondent did not implement the
orders
 In his comment, respondent branded the administrative
complaint against him as pure harassment filed by
Marblecraft after he had refused to defer the implementation
of the writ of seizure.
 Admin case was refered to RTC Pasig, which found
respondent guilty of partiality when he immediately turned
over the seized items to PDCP





carminotes 13