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1980 Bar Question PRILIMINARY ATTACHMENT Question no.

4-2 Assuming the judgement is in plaintiffs favor, ordering the ejectment of the defendant, how may the defendant prevent immediate execution of the decision? Answer Defendant may prevent immediate execution by: a.) perfecting an appeal b.) filling a supersedeas bond covering the rents or damages in arrears; and c.) Depositing, during the pendency of the appeal, the amount of rent due under the contract, if any, found by the judgement of the inferior court to exist; or in the absence of a contract, the reasonable value of the use and occupation of the premises for the preceding month or period at the rate determined in the judgement, on or before the tenth day of each succeeding month or period. 1979 Bar Question Question no. 7 A writ of attachment was issued by the Court and, on the basis thereof, defendants credit balance with a stockbroker was garnished. Can the court order the stockbroker to surrender that credit balance to plaintiff or to the sheriff? Alternative Answer 1.) If defendants credit balance represents a sum of money due him from the stockbroker, it is subject to garnishment. 2.) However, if defendants credit balance is an over-draft account granted him by the stockbroker, it is not a credit subject to garnishment because it is a loan. (Nava vs. San Jose, 90 Phil. 341) 3.) Assuming that the credit balance is a property of defendant, the court may not order the stockbroker to surrender it to the plaintiff or to the sheriff upon garnishment. It is only after the judgement against defendant has become final and executor that such amount garnished may be ordered delivered to plaintiff or the sheriff. (Sec. 15 of Rule 57)

FORCLOSURE Question no. 8 If the debtor in a chattel mortgage refuses to deliver the chattel so it can be sold at a foreclosure sale, what is the remedy of the creditor? Explain. Answer The creditor may file an action for the judicial foreclosure of the chattel mortgage (Sec. 8, Rule 68), or He may file an action for the recovery of possession of the chattel mortgaged and apply for a writ of replevin or delivery of personal property (Rule 60) as a preliminary step to the sale on foreclosure thereof (Act 1508). In the second case, he may in the alternative pray for the payment of the obligation. (Northern Motors, Inc. vs. Herrera)

1983 Bar Exam Questions in Provisional Remedies Question No. 14 Daniel Chan owns a house and lot at Forbes Park, Makati, where his wife and children reside. He is the Chief Executive Officer of various family corporations where he owns 20% of the respective capital stocks. These family corporations owe several banks the total sum of P2.5 billion, with Chan as a solidary co-debtor. After Chan has carefully manipulated the finances of the family corporations and diverted their funds to his account in a Swiss bank, he flees from the Philippines and now resides at 127 Duphine, Zurich, Switzerland. The banks concerned now retains the services of Atty. Ramon Castillo for the purpose of filing a suit in the Philippines against Daniel Chan on his obligation as a solidary co-debtor on the loans of the family corporations. One of the procedural problems facing Atty. Castillo is the method of effecting a valid service of summons upon Daniel Chan, now residing in Switzerland, to enable the Philippine courts to acquire jurisdiction over his person. Describe the remedies and procedures, and the supporting grounds thereof that Atty. Castillo should follow as would enable him to effect a valid service of summons on Daniel Chan. Answer (Examiners Answer) Upon filing the complaint against Daniel Chan, Atty. Ramon Castillo should petition the court for the issuance of a writ of preliminary attachment. The ground for the issuance of a writ of attachment is that the case is against a party, Daniel Chan, who now permanently resides out of the Philippines,

specifically in Switzerland. Once the writ of attachment is issued, Atty. Castillo should have the same served and levied on all assets of Daniel Chan in the Philippines including his house and lot at Forbes Park, and his equity shares in the family corporations. Thereafter, Atty. Castillo should ask the court for permission to effect an extraterritorial services of summons on defendant on the ground that he does not reside and is not found in the Philippines and his assets in the Philippines had been attached. With the permission of the court, service of summons can then be effected as ordered by the court either by the personal service in Switzerland of the summons and complaint or by publication in a newspaper of general circulation in such places and for such time as the court may order, and mailing to the Swiss address of Danilo Chan, of copies of the order publication, the summons and the complain. (Committees Answer) Atty. Castillo, upon filing of the complaint, should apply to the court for a writ of preliminary attachment on the ground that Daniel Chan resides out of the Philippines. (Sec. 1(f) of Rule 57) Upon the issuance of the writ of attachment, Atty. Castillo should request the sheriff to levy attachment on the house and lot of Daniel Chan at Forbes Park, Makati. By virtue of such attachment, the court acquires jurisdiction over the res. (Asiatic Petroleum vs. Co Quico, 69 Phil. 433) Extraterritorial service of summons, through personal service, publication, or in any other manner the court may deem sufficient, shall be made on Daniel Chan. (Sec. 17 of Rule 14) The purpose of such extraterritorial service of summons is to satisfy the constitutional requirement of due process, and not to acquire jurisdiction over his person. (Banco Espanol vs. Palanca, 37 Phil. 921; Quasha et al. vs. Juan, 118 SCRA 505) Question No. 15 FORCLOSURE The Asean Banking Corporation retained the services of Atty. Victor Mamon in connection with its contemplated suit against Dapo Textile Mills, Inc. [DAPO[ for the collection of the latters loan in the amount of P650 million. Payment of the loan was secured by a real estate mortgage on the testile plant and the land it occupied, both owned by DAPO. At the time that the services of Atty. Mamon were retained, the appraised value of the mortgaged property was P256 million as compared to the loan of P650 million. DAPO defaulted on its loan after the union of its employees had declared a strike which prevented everyone from entering the factory premises. As a consequence, DAPO ceased operations and its textile plant had since then been exposed to the elements and risk of fire due to the presence of highly combustible materials consisting of synthetic fibers. The Asean Banking Corporation requested Atty. Mamon to pursue a cause of action that would realize two principal objectives: [a] obtain a judgment for the payment of any deficiency arising from the foreclosure of the mortgage

lien; [b] procure the possession and operation of the textile plant, either by the Asian Banking Corporation or by a third party during the pendency of the foreclosure proceedings and until the expiration of the redemption period after the foreclosure sale, so that the income derived therefrom could be applied in partial payment of the loan. What are the judicial remedies that Atty. Mamon should pursue to accomplish the two principal objectives of the Asean Banking Corporation? Reasons. Answer (Examiners Answer) Atty. Mamon should file on behalf of the Asean Banking Corporation an action for the judicial foreclosure of its real estate mortgage with a petition for the appointment of a receiver of the textile factory, subject matter of the foreclosure suit. A judicial foreclosure of a real estate mortgage is the proper remedy as that would permit the court to render, in the same proceedings, a deficiency judgment if the foreclosure of the mortgage lien results in a deficiency. The grounds for the petition for the appointment of a receiver are that the pending action is for the judicial foreclosure of a real estate mortgage; that the mortgage property is exposed to the danger of being wasted or materially injured as a consequence of its exposure to the elements and the risk of fire by the presence of highly combustible materials and the absence in the factory premises of responsible persons to guard against those risks; and that the value of the mortgaged property is only P356 million and therefore insufficient to discharge the mortgage debt of P650 million. (Committees Answer) Atty. Mamon should file a complaint for the foreclosure of the real estate mortgage against Dapo Textile Mills, Inc. (DAPO) and apply for two provisional remedies, namely: a.) Preliminary attachment of any other properties of DAPO on one of the grounds under Sec. 1 of Rule 57 and on the further ground that the mortgaged property is not sufficient to satisfy the loan, so that when a deficiency judgment is rendered, it may be satisfied by the sale on execution of the attached property. (Rule 57) b.) Appointment of a receiver of the mortgaged property on the ground that the mortgaged property is in danger of being wasted or materially injured and that its value is probably insufficient to discharge the mortgage debt. (Sec. 1(c) of Rule 59) The income earned by the receiver could then be applied in partial payment of the loan. (Note: Credit should be given to such answer as: Including directors as party defendants for fraudulent and stockholders for unpaid subscriptions. Resorting to the Ministry of Labor for the termination of the strike)

1984 Bar Questions in Remedial Law Question No. 3 A, a grocery owner, sued B before a regional trial court for the payment of some merchandise. When the sheriff failed to effect service of summons on B at Morong, Rizal, the address stated in the complaint, the court ordered the publication of the summons and a copy of the complaint in a newspaper of general circulation in Rizal. As B was actually no longer residing in Rizal and consequently did not become aware of the collection suit against him, he failed to file his answer in court. He was therefore declared in default and a judgment was in due time rendered against him. One year after the date of the judgment, a levy on execution was made on Bs properties. (a) Did the court have jurisdiction to render the judgment? Why? (b) What remedies, including provisional ones, if any, would be available to B, and to what forum should he go for relief? Explain. Answer: A. Furnished by Office of Justice Plana (a) No, because the court did not acquire jurisdiction over the person of B, the defendant. The action is personal, not in rem nor quasi in rem. Summons by publication is valid only in actions in rem or quasi in rem. (Dy Reyes vs. Ortega, 16 SCRA 903) (b) B could have the judgment of the regional trial court annulled, availing at the same time of the provisional remedies of a temporary restraining order and a writ of preliminary injunction against the sheriff to enjoin the execution sale. The annulment should be sought by action filed before the Intermediate Appellate Court which, under section 9 (2) of the Judiciary Reorganization Act of 1980, now has the exclusive original jurisdiction over actions to annul judgments of regional trial courts. B. Comments and Suggested Answer (a) No, because the complaint of A for the payment of merchandise is an action in personam, and in such an action, summons by publication is not sufficient for the court to acquire jurisdiction over the person of the defendant. (Magdalena Estate, Inc. vs. Nieto, 125 SCRA 758) (b) B may file a petition for certiorari to annul the judgment of the regional trial court on the ground of lack of jurisdiction over his person, and ask for the issuance of a writ of preliminary injunction to prevent the execution of said judgment. Such a petition may be filed either with the Supreme Court or with the Intermediate Appellate Court. The Intermediate Appellate Court has

original jurisdiction to issue writs of certiorari whether or not in aid of its appellate jurisdiction. (Sec. 1 of Rule 65; Sec. 5(1), Art. X, Constitution; Sec. 9(1) of BP 129) Another Answer: (b) B may file an action for annulment of the judgment of the regional trial court on the ground of lack of jurisdiction over his person, and ask for the issuance of a writ of preliminary injunction to prevent the execution of said judgment. Such an action should be filed with the Intermediate Appellate Court (Sec. 9(2) of BP 129). Question No. 16 REPLEVIN A filed an action for replevin against B for the recovery of a tractor which A had leased to B. B put up a counterbond and was thus allowed to retain possession of the tractor. After much delay, judgment rendered against B. On execution, the sheriff took possession of the tractor, but A refused to accept it on the ground, found correct by the court, that the tractor had become so dilapidated as to be unserviceable and needed very costly repairs to be of any use. Was As refusal to accept the tractor legally justified? If so, what are As rights against B? Answer: A. Furnished by Office of Justice Plana Yes, As refusal to accept the dilapidated and unserviceable tractor was justified. A judgment in an action where the provisional remedy of delivery of personal property has been sought but delivery is withheld because the defendant has filed a re-delivery of personal property has been sought but delivery is withheld because the defendant has filed a re-delivery bond, is required to be in the alternative for the delivery of the property to the party entitled to it or for the value thereof in case delivery cannot be made, plus damages if any and court costs. The order to deliver the property implies that the property is in a condition provided in the contract or obligation, and when that is not the condition, the party entitled to possession has the right to refuse delivery but instead to enforce the alternative order for payment of its value. (Ago vs. Court of Appeals, 16 SCRA 81; Rule 60, Sec. 9) B. Comments and Suggested Answer Yes, where a 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 re-delivery bond. (Ago vs. Court of Appeals, 16 SCRA 81) A should enforce the judgment against B and the surety on his counterbond for the value of the tractor and the damages awarded. (Sec. 9 of Rule 60)

Question No. 17 TRO On October 1, 1984, a regional trial court issued a temporary restraining order against the defendant. Hearing on the motion for a writ of preliminary injunction was set on October 8, 1984, but because of illness the judge was unable to issue an order either granting or denying the motion. On October 22, 1984, the defendant proceeded to perform the action subject of the restraining order. Is the defendant liable for contempt of court? Why? Answer: A. Furnished by Office of Justice Plana No. Under B.P. 224, a temporary restraining order has an effectivity of 20 days from the date of its issuance, even less if the order fixes a shorter period. The life of the temporary restraining order ended on October 21, 1984 and the order was of no effect on October 22, 1984 when the defendant performed the act subject of the order. B. Comments and Suggested Answer No, because a temporary restraining order is effective only for a period of twenty days from date of its issuance. Since no preliminary injunction was issued within said period, the restraining order was deemed automatically vacated on October 21, 1984. Hence, defendant was not liable for contempt of court when on October 23, 1984 he proceeded to perform the action subject of the restraining order. (BP 224; Sec. 3 of Interim Rules) Question No. 18 FORCLOSURE In an action for foreclosure of real estate mortgage, judgment was rendered against A, the mortgagor-debtor. As A failed to pay the mortgage debt plus interest thereon within the period stated in the judgment, the mortgaged property was sold at public auction on October 1, 1984 at a price less than the amount of the judgment. On October 3, 1984, A was able to raise enough money to fully satisfy the judgment, including all expenses of the sale of the mortgaged property. Assuming that the mortgagor has no right of redemption under the law, what steps should A take to protect his interest under the circumstances? State your reasons. Answer: A. Furnished by Office of Justice Plana A could deposit with the court an amount sufficient to satisfy the judgment plus all expenses of the mortgage sale. He should do this, however, before the court confirms the sale, otherwise the confirmation would divest A of

his rights in the property and vest them in the purchaser at auction. (Rule 68, Sec. 7) A foreclosure sale is not complete until it is confirmed, and before confirmation the court has discretion in regard to the sale, either granting or denying confirmation as the ends of justice may require. (Rural Bank of Oroquieta vs. Court of Appeals, 101 SCRA 5) B. Comments and Suggested Answer A should exercise the equity of redemption at any time before the confirmation of the sale on foreclosure. It is only the order of the Court confirming the sale on foreclosure that operates to divest the rights of all the parties to the action and to vest their rights to the purchaser, subject to such rights of redemption as may be allowed by law. Since A has no right of redemption, he should exercise his equity of redemption before the confirmation of the sale. (Sec. 3 of Rule 68; Anderson vs. Reyes, 54 Phil. 944) Like Posting for Clementine Villamor: 1975-1976 Bar Questions on Provisional Remedy

Question: Enumerate and discuss the different kinds of attachment.

Answer

There are at three kinds of attachment, to wit: (a) preliminary attachment; (b) garnishment; and (c) levy on execution. Preliminary attachment is one issued at the commencement of the action or during the progress of the action. It is a mesne process, liable to be dissolved anytime the judgment upon which may or may not affect affect the property seized. Garnishment on the other hand is the process by which the plaintiff seeks to subject to his claim property of the defendant in the hands of a third person or money owed by such third person to the defendant. In garnishment, there is no actual seizure of the property. The property remains with the third person, otherwise called the garnishee. Garnishment, therefore, simply impounds the property in the garnishees possession and maintains its status quo until the main action is finally decided. Garnishment proceedings are

usually directed to personal property. By means of garnishment, the judgment debtor and owing to him from a stranger to the litigation. By means of the citation, the stranger becomes a forced intervenor; and the court, have acquired jurisdiction over him by means of the citation requires him to pay his debts not to his former creditor, but to the new creditor who is creditor the main litigation. It is, therefore, a case of involuntary novation by the substitution of one creditor for another. (See Tayabas vs. Sharuff, 41 Phil 382). On the other hand, levy on execution is the process by which the property of the judgment debtor is subjected to a lien for the satisfaction of the final judgment. Levy on the execution is a preliminary step to the sale on execution of the property of the judgment debtor.

Alternative Anwer

There is only one kind of attachment, preliminary attachment. A levy on execution of a final and executory judgment is not an attachment. Garnishment may refer to preliminary attachment or levy on execution.

Question: INJUNCTION

A filed in the Court of First Instance of Cebu City a verified petition for injunction against the Director of the Bureau of Telecommunications to prevent him from installing a new telephone system in Cebu City in violation of As franchise. A motion to dismiss the petition was filed alleging, among others, that the court has no jurisdiction over the respondent who is holding office in Manila. Is the contention correct? Explain.

Answer The contention of the Director of Telecommunications is not correct. Its jurisdiction over the person of the respondent is acquired by means of service of summons. The service having been made, the Court of First Instance of Cebu has acquired jurisdiction over the person of the defendant Director of Telecommunications.

It is true that defendant has his office in Manila. What is sought to be restrained, however, are acts to be committed not in the City of Manila but in the City of Cebu. The injunction sought is for the purpose of preventing the defendant from installing the telephone system in Cebu City. It is true that the preliminary injunction that may be granted by a court of First Instance under said Sec 2 of Rule 58, is in its application, co-extensive with the territorial boundaries of the province or district in said court sits. But since the injunction does not purport to restrain acts outside the City of Cebu, it is valid and the court has jurisdiction to issue it.

Alternative Answer The contention of the Director of Telecommunications is not correct. Its jurisdiction over the person of the respondent is acquired by means of service of summons. The service having been made, the Court of First Instance of Cebu has acquired jurisdiction over the person of the defendant Director of Telecommunications.

Question: Pending final judgment in an action for recovery of personal property: (1) May the plaintiff apply for immediate delivery of the property in question? (2) In the affirmative, what requisites must the plaintiff comply with in order to make his remedy available to him? (3) What is the ancillary remedy called? (4) May this remedy be availed of in the Municipal Court assuming that the value of the property in litigation does not exceed P10,000.00, exclusive of of interests and costs?

Answer (1) Yes, the Rules provide that such a remedy may be applied for at the commencement of the action or at any time before answer. (Section 1 Rule 60) (2) The plaintiff must show by his own affidavit of that some other person who personally knows the facts:

(a) That the plaintiff is the owner of the property claimed, particularly describing it, or is entitled to the possession thereof; (b) That the property is wrongfully detained by the defendant, alleging the cause of detention thereof according to his best knowledge, information and belief; (c) That is has been taken for a tax assessment or fine pursuant to law, or seized under an execution or an attachment against the property of the plaintiff, or if so seized, that it is exempt from such seizure; and (d) The actual value of the property.

The plaintiff must also give a bond, executed to the defendant in double the value of the property as stated, in the affidavit aforementioned, for the return of the property to the defendant if the return thereof be adjudged, and for the payment to the defendant or such sum as he may recover from the plaintiff in the action. (Section 2 of Rule 60)

(3) Delivery of personal property or replevin. (4) Yes, provided the amount of damages claimed added to the value of the property in litigation does not exceed P10,000.00 inclusive of interest and costs. (Section 88 of Judiciary Act)

1985 Bar Question on Preliminary Attachment Avenue Lumber, the supplier of construction materials of Builders, Inc. which has a running account with the former, was paid by the latter P100,000.00 in check. The check when deposited was dishonored. Avenue notified Builders but despite notice, Builders failed to redeem the dishonored check much less deposit the necessary amount to answer for its value. Hence, Avenue Lumber sued Builders for collection and simultaneously applied for a writ of attachment on the ground of fraudulent issuance of the aforementioned check. (A) As a judge, will you grant the attachment prayed for? No. A writ of attachment could be issued if Builders, Inc. had been guilty of

fraud in contracting the debtor incurring the obligation. In this case Builders, Inc. had a running account with Avenue Lumber. This means that the sales were made on credit. The failure of Builders, Inc. to make good the dishonored check was a subsequent fraud and could not be the basis for a writ of attachment. (Javellana vs. D.O. Plaza Enterprises, Inc., 32 SCRA 261) (B) As counsel for Builders, Inc., what remedial steps will you undertake against the move to attach its properties? Discuss. If the application for a writ of attachment were set for hearing, I would oppose the move to attach its properties for the reason above stated. If the writ of attachment were issued, I would file a petition for certiorari to annul the order granting the writ on the ground of grave abuse of discretion and/or, I would file a counter-bond to discharge the attachment. 1986 Bar Question on Preliminary Attachment Matiisin made demands to no avail upon Maramot for the payment of the P60,000.00 debt incurred by the latter. When they met a party, Matiisin asked Maramot why his demand letters were not answered and why the loan remained unpaid. Maramot told Matiisin that he, Maramot, had always been of the impression that the P60,000.00 was not a loan intended to be repaid but was a balato or gift on the occasion of Matiisins winning P2,000,000.00 in the sweepstakes draw. Matiisin filed a collection suit against Maramot and prayed for a writ of preliminary attachment. In his affidavit, Matiisin stated that, to the best of his knowledge and belief, Maramot was guilty of one of the grounds for attachment and discussed the ground referred to. Is there a ground for an attachment? Is the application for a writ of preliminary attachment adequate? Should it be granted? Explain. Answer: There is no ground for an attachment. None of the grounds enumerated in Sec. 1, Rule 57 exists. One ground is when a party is guilty of fraud in contracting the debt or incurring an obligation. (Dolo Causante) The fraud in this case however, is in the refusal to pay the debt. (Dolo Incidente) (Fernandez vs Imperial, 44 Phil. 60.) Alternative Answer: A ground for attachment exists. From the facts, it may be inferred that

Maramot did not really intend to repay the loan from its inception. It has been held that a debt is fraudulently contracted if at the time of contracting it, the debtor entertained an intention not to pay. The application for the writ is not adequate. Matiisins affidavit should be made on the basis of personal knowledge and not to the best of his knowledge and belief, which is not sufficient. (Sec. 3, Rule 57; Sec. 6, Rule 7). Furthermore, the affidavit should also state that a sufficient security for the claim, and that the amount due or the value of the property to be recovered is as much as the sum for which the order of attachment is granted above all legal counterclaims. (Sec. 3, Rule 57) The application should not be granted because no valid ground for attachment exists.

1981 BAR EXAMS Question No. 14 VX and her son, Mario, are plaintiffs in a case against WX for support. A month after the filing of the complaint, plaintiffs ask the Court for support pendente lite. WX opposes the petition on the ground that Mario is not his son but the issue of VX as a result of an adulterous relationship. WX asks that he be given an opportunity to prove his defense. The Court ruling that this defense is a matter or the main case denies WX the opportunity to prove his defense at the stage of the case and grants support pendente lite. Is granting of such support pendente lite correct or not? Give your reasons. Answer No. The Court should have given WX the opportunity justice may require. This provisional determination is withhearing of the application for support pendente lite. An application for support pendente lite may not be granted without a hearing, after which the court shall determine provisionally the pertinent facts and shall issue such order as equity and injustice may require. This provisional determination is without prejudice to the trial on the merits after which a final determination may be made on the right to support.

Question No. 15

Y is a stockholder of a local corporation. Y owns 20% of the shares of said corporation. Y defaults on a manufacturing contract with Z. Z sues for specific performance and damages and, on the ground that Y is fleeing from the country to avoid creditors, seeks to attach 20% of a parcel of land that belongs to the corporation. Can Z secure such an attachment granting that the averments of petition are sufficient? Reasons. Answer No. Z may not attach property which does not belong to the defendant Y. The parcel of land sought to be attached belongs to a corporation which is a distinct entity separate and apart from its stockholders. Y owns only 20% of the shares of the corporation and there is no showing that the case is an exception al one where the corporate fiction may be disregarded. Additional Answer Attachment is not proper in a suit where plaintiff claims damages which are contingent or unliquidated.

Question No. 20 The City Fiscal of Manila received a criminal complaint against DD and EE for violation of the Corporation Law for engaging in activities not within the purpose clause of the corporation of which they are principal officers. While the complaint was under preliminary investigation, a minority stockholder of said corporation filed a minority suit before the CFI of Rizal in relation to the same activities of the corporation. One of the allegations in the CFI was the validity of the transaction subject matter of the criminal complaint before the City Fiscal of Manila. DD and EE intervened in the Rizal case and asked that the criminal investigation in Manila be enjoined since the civil case in Rizal involved a prejudicial civil question. Does the CFI of Rizal have jurisdiction to issue a Writ of Injunction to enjoin the City Fiscal of Manila as prayed for by DD and EE? Explain.

Answer No. The CFI of Rizal may not issue a writ of preliminary injunction to restrain or enjoin acts being done or about to be done outside its territorial boundaries. (This is the first alternative answer and the one that relates to provisional remedies)

1982 BAR EXAMS Question No. 3 Branch XXV of the CFI of Manila rendered a decision against Mrs. Reyes, ordering her to pay damages to Mr. Cruz. After the decision became final, personal properties of Mrs. Reyes in Bulacan were levied on execution by the sheriff. Mrs. Santos filed an action for injunction before the CFI of Bulacan to enjoin provincial sheriff of Bulacan from proceeding with the sale, alleging that she was the owner of the properties. Mr. Cruz filed a motion to dismiss the action alleging that the Bulacan court could not interfere with the action taken by the Manila Court. The CFI of Bulacan, however, denied the motion to dismiss and granted the preliminary injunction. Mr. Cruz filed a petition for certiorari, alleging that the CFI of Bulacan did not have jurisdiction to enjoin the sale because (1) said act constituted an interference with an order issued by a court with concurrent jurisdiction; and (2) Mrs. Santos did not file a third-party claim with the provincial sheriff before filing the action. If you were the judge, how would you rule on the contentions of Mr. Cruz? Give your reasons. Answer I would dismiss the petition for certiorari. The first contention of Mr. Cruz is not tenable. Mrs. Santos a third-party claimant, may vindicate her claim by action. Obviously a judgment rendered in her favor declaring her to be the owner of the property would not constitute interference with the powers or processes of the court which rendered the judgment to enforce which the execution was levied. If that be so, then an interlocutory order, such as a preliminary injunction upon a claim and prima facie showing of ownership, cannot be considered as such interference either. Moreover, the court which

rendered the judgment did not direct the sheriff to levy upon the particular property in dispute. The order was for him to levy upon properties of the judgment debtor without specifying them, not upon properties of a third party. The second contention is also not tenable. The Rules of Court provide that nothing therein contained shall prevent a third-party claimant from vindicating his claim to the property by any proper action. Hence, the filing of a third-party claim is not a pre-requisite to the filing of the action for injunction.

Question No. 15 Edward filed a complaint against Liza for accounting of the money received by her as administratrix of Edwards hacienda. In his complaint, Edward prayed for preliminary attachment, alleging that Liza was about to depart from the Philippines. Attached to the complaint was an affidavit executed by Marilyn to the effect that Liza told her that she, Liza, was planning to leave for Singapore in a few days. If you were the judge, would you grant the prayer for preliminary attachment? Why? Answer No, because the mere fact that Liza was about to depart from the Philippines is not a ground for granting preliminary attachment. Facts and circumstance should have been stated in the affidavit to show intent to defraud her creditors in order to justify such grant.