D.P. LUB OIL MARKETING CENTER, INC., Petitioner, vs. RAUL NICOLAS, SOCORRO VALERIE GUTIERREZ, an T!E !

ONORABLE PONCIANO C. INOPI"UEZ #In $is o%%i&ia' &a(a&it) as t$e Presi in* +, *e o% Re*iona' Tria' Co,rt o% Mani'a, Bran&$ -IV., Res(on ents.

Presidential Decree /PD0 "o. 5*. thereby rendering the 'ormer abrogated and o' no more 'orce and e''ect.

A complaint was lodged by the petitioner D.P. Lub Oil Marketing Center, Inc., against pri ate respondents !aul "icolas and #ocorro $alerie %utierre& 'or a sum o' money and damages Complaint ( contained prayer 'or the issuance o' a writ o' preliminary attachment on the ground that the claim resulted 'rom the non)payment o' the purchase price o' 'uel oil used 'or the *+ essels o' the pri ate respondents)de'endants that pursuant to the pro isions o' the Code o' Commerce, Article ,-. in relation to Article ,-+ /subpar. -0, the said essels may be attached 1here was an a erment that the pri ate respondents were about to dispose o' the said essels in 'raud o' their creditors including the petitioner herein

Art. ,-+ /par. -0 states> all 9udicial sales o' essels 'or the payment o' creditors, the said creditors shall ha e pre'erence in the order stated> 1he part o' the price which has not been paid the last endor, the credits pending 'or the payment o' materials and work in the construction o' the essel, when it has not na igated, and those arising 'rom the repair and e;uipment o' the essel and 'rom its pro isioning with ictuals and 'uel during its last oyage. In order that the credits pro ided 'or in this subdi ision may en9oy the pre'erence they must appear by contracts recorded in the registry o' essels, or i' they were contracted 'or the essel while on a oyage and said essel has not returned to the port o' her registry, they must be made under the authority re;uired 'or such cases and entered in the certi'icate o' registry o' the said essel.

May ., *2-3 ) A writ o' preliminary attachment was issued e4 parte by a court upon he posting o' a bond by the petitioner in the amount o' P55+,+++.++. Armed with the writ, the #heri'' o' Manila on 6une *-, *2-3, boarded the pri ate respondents7 'ishing essel, 8#tar $angeline,8 and placed it under custodia legis. 1he ne4t day, an order was issued by the respondent 9udge li'ting the attachment upon the posting o' a counterbond in the amount o' P55+,+++.++, upon motion o' the pri ate respondents without wai ing or abandoning their ob9ections to the alleged grounds 'or the issuance o' the writ o' attachment. !espondents then 'iled a 8Motion to :ithdraw Counter)bond and to Dissol e :rit o' Attachment

#ec. 5 PD 5*. which is the repealing clause, states that particularly the pro isions o' Art. ,-+ @ ,-. o' the Code o' commerce ha e been repealed.

B. /ON t$e &ase o% Sa'as v. A i' a(('i&a5'e in t$e instant &ase so as to :,sti%) t$e !onora5'e Res(on ent +, *e in or erin* t$e ;it$ ra;a' o% t$e 5on

As to pro isional rememies, such as attachment, respondent 9udge acted in accordance with the e4isting laws and pre ailing 9urisprudence.

1he 6udge issued a *st order which dissol ed the writ o' attachment and allowed the pri ate respondents7 withdrawal o' their counterbond Petitioner7s subse;uent M! was also denied ( Petitioner 'urther ad ances the argument that the case o' #alas . Adil is not applicable to the case at bar I##<=> a. /ON t$e (rovisions o% Arti&'es 012 an 013 o% t$e Co e o% Co44er&e 5ein* #si&. e6(ress') re(ea'e 5) t$e (rovisions o% PD 783 so as to ren er t$e sa4e a5ro*ate an ne*ate a'rea )9

1he rules on the issuance o' a writ o' attachment must be construed strictly against the applicants. 1his stringency is re;uired because the remedy o' attachment is harsh, e4traordinary, and summary in nature. I' all the re;uisites 'or the granting o' the writ are not present, then the court which issues it acts in e4cess o' its 9urisdiction. *3

1he petitioner7s prayer 'or a preliminary attachment hinges7 on the allegations in par. *3 o' the complaint and par. . o' the a''ida it o' Daniel Pe which are couched in general terms de oid o' particulars o' time, persons, and places to support such a serious assertion that 8de'endants are disposing o' their properties in 'raud o' the creditors.8

?=#. we a''irm the conclusion o' the respondent 9udge that, indeed, Articles ,-+ and ,-. o' the Code o' Commerce had been e4pressly repealed by the pro isions o'

1here is thus the necessity o' gi ing to the pri ate respondents an opportunity to entilate their side in a hearing, in accordance with due process, in order to determine the truth'ulness o' the allegations. Aut no hearing was a''orded to the pri ate respondents the writ ha ing been issued e4 parte. A writ o' attachment can only be granted on concrete and speci'ic grounds and not on general a erments merely ;uoting the words o' the rules. *2

1he respondent 9udge merely corrected himsel' by issuing the ;uestioned orders, thereby making his actions con'orm with the applicable laws and his 'indings o' 'act. #ince the writ o' attachment was improperly granted, the respondent trial court7s orders discharging it were compelling and 9usti'ied to recti'y the initial error. Bence, there was no need at all incepti ely 'or the pri ate respondents to post a counterbond.

P=1I1IO" I# DI#MI##=D.