There are two kinds of redemption one is Equity of Redemption is the right of mortgagor to redeem the

mortgaged property after his default in the performance of the conditions of the mortgage within the
90-day period from the date of the service of the order of foreclosure or even thereafter but before the
confirmation of the sale. It applies to judicial foreclosure of real mortgage and chattel mortgage
foreclosure.

The other is Right of Redemption is the right of mortgagor to redeem the mortgaged property within
one year from the date of registration of the certificate of sale. It applies only to extrajudicial foreclosure
of real mortgage.

Further under rule 39 Section 27 state:

Section 27. Who may redeem real property so sold. — Real property sold as provided in the last
preceding section, or any part thereof sold separately, may be redeemed in the manner hereinafter
provided, by the following persons:

(a) The judgment obligor; or his successor in interest in the whole or any part of the property;

(b) A creditor having a lien by virtue of an attachment, judgment or mortgage on the property sold, or
on some part thereof, subsequent to the lien under which the property was sold. Such redeeming
creditor is termed a redemption.

The following rules govern:

Mortgage is not a bank (Act No. 3135, in relation to Sec. 28, Rule 39 of Rules of Court)
a) Purchase price of the property
b) 1% interest per month on the purchase price
c) Taxes paid and amount of purchaser’s prior lien, if any, with the same rate of interest computed from
the date of registration of sale, up to the time of redemption

Mortgagee is a bank (General Banking Law 2000)

a) Amount due under the mortgage deed
b) Interest
c) Cost and expenses

G.R. No. 205071

JUAN G. VELASQUEZ, Petitioner,

vs.
SPOUSES GEORGE A. GALLENT, SR. and MERCEDES M. GALLENT, Respondents.

In this case the court held

The general rule in extrajudicial foreclosure of mortgage is that after the consolidation of the title over
the foreclosed property in the buyer, it is the ministerial duty of the court to issue a writ of possession
upon an ex parte petition by the new owner as a matter of right.

It is well-settled that the purchaser in an extrajudicial foreclosure of real property becomes

the absolute owner of the property if no redemption is made within one year from the registration of
the certificate of sale by those entitled to redeem. As absolute owner, he is entitled to all the rights of
ownership over a property recognized in Article 428 of the New Civil Code, not least of which is
possession, or jus possidendi:

A torrens title recognizes the owner whose name appears in the certificate as entitled to all the rights of
ownership under the civil law. The Civil Code of the Philippines defines ownership in Articles 427, 428
and 429. This concept is based on Roman Law which the Spaniards introduced to the Philippines through
the Civil Code of 1889. Ownership, under Roman Law, may be exercised over things or rights. It primarily
includes the right of the owner to enjoy and dispose of the thing owned. And the right to enjoy and
dispose of the thing includes the right to receive from the thing what it produces, [jus utendi; jus
fruendi] the right to consume the thing by its use, [jus abutendi] the right to alienate, encumber,
transform or even destroy the thing owned, [jus disponendi] and the right to exclude from the
possession of the thing owned by any other person to whom the owner has not transmitted such
thing [jus vindicandi].

Possession being an essential right of the owner with which he is able to exercise the other attendant
rights of ownership after consolidation of title the purchaser in a foreclosure sale may demand
possession as a matter of right. This is why Section 7 of Act No. 3135, as amended by Act No. 4118,
imposes upon the RTC a ministerial duty to issue a writ of possession to the new owner upon a mere ex
parte motion.Section 7 reads:

Sec. 7. In any sale made under the provisions of this Act, the purchaser may petition the Court of First
Instance of the province or place where the property or any part thereof is situated, to give him
possession thereof during the redemption period, furnishing bond in an amount equivalent to the use of
the property for a period of twelve months, to indemnify the debtor in case it be shown that the sale
was made without violating the mortgage or without complying with the requirements of this Act. Such
petition shall be made under oath and filed in form of an ex parte motion in the registration or cadastral
proceedings if the property is registered, or in special proceedings in the case of property registered
under the Mortgage Law or under Section 194 of the Administrative Code, or of any other real property
encumbered with a mortgage duly registered in the office of any register of deeds in accordance with
any existing law, and in each case the clerk of court shall, upon the filing of such petition, collect the fees
specified in paragraph 11 of Section 114 of Act No. 496, as amended by Act No. 2866, and the court
shall, upon approval of the bond, order that a writ of possession issue, addressed to the sheriff of the
province in which the property is situated, who shall execute said order immediately.

In Spouses Arquiza v. CA, it is reiterated that simply on the basis of the purchaser's ownership of the
foreclosed property there is no need for an ordinary action to gain possession thereof:
Indeed, it is well-settled that an ordinary action to acquire possession in favor of the purchaser at an
extrajudicial foreclosure of real property is not necessary. There is no law in this jurisdiction whereby
the purchaser at a sheriff's sale of real property is obliged to bring a separate and independent suit for
possession after the one-year period for redemption has expired and after he has obtained the sheriff's
final certificate of sale. The basis of this right to possession is the purchaser's ownership of the property.
The mere filing of an ex parte motion for the issuance of the writ of possession would suffice, and no
bond is required.(Citations omitted)

As also explained in Asia United Bank v. Goodland Company, Jnc., the ex parte application for writ of
possession is a non-litigious summary proceeding without need to post a bond, except when possession
is being sought even during the redemption period:

It is a time-honored legal precept that after the consolidation of titles in the buyer's name, for failure of
the mortgagor to redeem, entitlement to a writ of possession becomes a matter of right. As the
confirmed owner, the purchaser's right to possession becomes absolute. There is even no need for him
to post a bond, and it is the ministerial duty of the courts to issue the same upon proper application and
proof of title. To accentuate the writ's ministerial character, the Court has consistently disallowed
injunction to prohibit its issuance despite a pending action for annulment of mortgage or the foreclosure
itself.

The nature of an ex parte petition for issuance of the possessory writ under Act No. 3135 has been
described as a non-litigious proceeding and summary in nature. As an ex parte proceeding, it is brought
for the benefit of one party only, and without notice to or consent by any person adversely
interested. (Citations omitted)

Moreover, not even a pending action to annul the mortgage or the foreclosure sale will by itself stay the
issuance of the writ of possession, as held in BPI Family Savings Bank, Inc. v. Golden Power Diesel Sales
Center, Inc., et al.:

Furthermore, it is settled that a pending action for annulment of mortgage or foreclosure sale does not
stay the issuance of the writ of possession. The trial court, where the application for a writ of possession
is filed, does not need to look into the validity of the mortgage or the manner of its foreclosure. The
purchaser is entitled to a writ of possession without prejudice to the outcome of the pending annulment
case. (Citations omitted)

When the thing purchased at a foreclosure sale is in turn sold or transferred, the right to the
possession thereof, along with all other rights of ownership, follows the thing sold to its new owner.

In Laureano v. Bormaheco,the mortgagee-purchaser, Philippine National Cooperative Bank (PNCB), sold

the foreclosed lots located in Bel-Air, Makati City to Bormaheco, Inc. without first seeking its possession.
The latter filed an ex parte petition for a writ of possession, but the RTC of Makati City ordered the
service of a copy of the petition upon the former owners, the Spouses Laureano, who as in the case
before the Court, opposed the ex parte petition and moved to dismiss the same on the ground of the
RTC's lack of jurisdiction. The RTC denied the said motion, which was upheld by the CA in
a certiorari action. When the case reached the Court, it was held that, by the nature of an ex
parte petition for writ of possession, no notice is needed to be served upon the Spouses Laureano, the
mortgagors-debtors of PNCB, since they already lost all their interests in the properties when they failed
to redeem them. By virtue of the sale, Bormaheco, Inc. became the new owner of the lots, entitled to all
rights and interests that its predecessor PNCB acquired, including the right to a writ of possession.

As an exception, the ministerial duty of the court to issue an ex parte writ of possession ceases
once it appears that a third party, not the debtor-mortgagor, is in possession of the property under a
claim of title adverse to that of the applicant.

Section 33 of Rule 39 of the Rules of Court provides that in an execution sale, the possession of the
property shall be given to the purchaser or last redemption, unless a third party is actually holding the
property adversely to the judgment obligor.

Sec. 33. Deed and possession to be given at expiration of redemption period; by whom executed or
given. - If no redemption be made within one (1) year from the date of the registration of the certificate
of sale, the purchaser is entitled to a conveyance and possession of the property; or, if so redeemed
whenever sixty (60) days have elapsed and no other redemption has been made, and notice thereof
given, and the time for redemption has expired, the last redemptioner is entitled to the conveyance and
possession; but in all cases the judgment obligor shall have the entire period of one (1) year from the
date of the registration of the sale to redeem the property. The deed shall be executed by the officer
making the sale or by his successor in office, and in the latter case shall have the same validity as though
the officer making the sale had continued in office and executed it.

Upon the expiration of the right of redemption, the purchaser or redemptioner shall be substituted to
and acquire all the rights, title, interest and claim of the judgment obligor to the property as of the time
of the levy. The possession of the property shall be given to the purchaser or last redemptioner by the
same officer unless a third party is actually holding the property adversely to the judgment
obligor. (Emphasis ours)

Pursuant to Section 6 of Act No. 3135, the application of Section 33, Rule 39 of the Rules of Court has
been extended to extrajudicial foreclosure sales, thus:

Sec. 6. In all cases in which an extrajudicial sale is made under the special power hereinbefore referred
to, the debtor, his successors in interest or any judicial creditor or judgment creditor of said debtor, or
any person having a lien on the property subsequent to the mortgage or deed of trust under which the
property is sold, may redeem the same at any time within the term of one year from and after the date
of the sale; and such redemption shall be governed by the provisions of Sections 464 to 466, inclusive, of
the Code of Civil Procedure, in so far as these are not inconsistent with the provisions of this Act.

G.R. No. 154262 February 11, 2015

HERMINIO M. DE GUZMAN, FOR HIMSELF AND AS ATTORNEY-IN-FACT OF: NILO M. DE
GUZMAN, ANGELINO DE GUZMAN, JOSEFINO M. DE GUZMAN, ESTRELLA M. DE GUZMAN,
TERESITA DE GUZMAN, ELSA MARGARITA M. DE GUZMAN, EVELYN M. DE GUZMAN, MA.
NIMIA M. DE GUZMAN, ANTOLIN M. DE GUZMAN, and FERDINAND M.
DEGUZMAN, Petitioners,
vs.
TABANGAO REALTY INCORPORATED, Respondent.

In this case the court held

It must be remembered that the period of redemption is not a prescriptive period but a condition
precedent provided by law to restrict the right of the person exercising redemption.10 If no redemption
is made in the manner and within the period prescribed, Rule 39, Section 33 of the 1997 Rules of
Court, as amended, provides:

SEC. 33. Deed and possession to be given at expiration of redemption period; by whom executed or
given. – If no redemption be made within one (1) year from the date of the registration of the
certificate of sale, the purchaser is entitled to a conveyance and possession of the property; or, if so
redeemed whenever sixty (60) days have elapsed and no other redemption has expired, the last
redemptioner is entitled to the conveyance and possession; but in all cases the judgment obligor
shall have the entire period of one (1) year from the date of the registration of the sale to redeem the
property. The deed shall be executed by the officer making the sale or by his successor in office,
and in the latter case shall have the same validity as though the officer making the sale had
continued in office and executed it.

Upon the expiration of the right of redemption, the purchaser or redemptioner shall be substituted to
and acquire all the rights, title, interest and claim of the judgment obligor to the property as of the
time of the levy. The possession of the property shall be given to the purchaser or last redemptioner
by the same officer unless a third party is actually holding the property adversely to the judgment
obligor. (Emphasis supplied.)

Based on the allegations in the Complaint and the applicable rules, respondent was already
substituted to and acquired all the rights, title, interest, and claim of the Spouses De Guzman to the
subject property on April 13, 1989, when the one-year redemption period expired. Upon the deaths
of Amelia de Guzman on January 1, 1997 and her husband Serafin de Guzman on April 23, 2001,
they had no more rights, title, interest, and claim to the subject property to pass on by succession to
petitioners as their heirs.

Petitioners, though, insist that Rule39, Section 33 of the 1997 Rules of Court should not be applied
retroactively. According to petitioners, when the execution sale was purportedly conducted in 1988
and the redemption period expired in 1989, it was Rule 39, Section 35 of the 1964 Rules of Court
which was in effect, and it read:

Sec. 35. Deed and possession to be given at expiration of redemption period. By whom executed or
given.— If no redemption be made within twelve (12) months after the sale, the purchaser, or his
assignee, is entitled to a conveyance and possession of the property; or, if so redeemed whenever
sixty (60) days have elapsed and no other redemption has been made and notice thereof given, and
the time for redemption has expired, the last redemptioner, or his assignee, is entitled to the
conveyance and possession; but in all cases the judgment debtor shall have the entire period of
twelve (12) months from the date of the sale to redeem the property. The deed shall be executed by
the officer making the sale or by his successor in office, and in the latter case shall have the same
validity as though the officer making the sale had continued in office and executed it.
Upon the execution and delivery of said deed the purchaser, or redemptioner, or his assignee, shall
be substituted to and acquire all the right, title, interest and claim of the judgment debtor to the
property as of the time of the levy, except as against the judgment debtor in possession, in which
case the substitution shall be effective as of the date of the deed. The possession of the property
shall be given to the purchaser or last redemptioner by the same officer unless a third party is
actually holding the property adversely to the judgment debtor. (Emphasis supplied.) Under the 1964
Rules of Court, the purchaser, or redemptioner, or his assignee, shall be substituted to and acquire
all the rights, title, interest, and claim of the judgment debtor to the property only after execution and
delivery of the deed of conveyance. Petitioners point out that respondent has yet to secure such a
deed.

The issue of the retroactive application of procedural rules is not novel and had been squarely
addressed by the Court in Calacala v. Republic of the Philippines,11 as follows:

To start with, petitioners base their claim of legal title not on the strength of any independent writing
in their favor but simply and solely on respondent Republic’s failure to secure the Certificate of Final
Sale, execute an Affidavit of Consolidation of Ownership and obtain a writ of possession over the
property in dispute within ten (10) years from the registration of the Certificate of Sale.

Petitioners’ reliance on the foregoing shortcomings or in actions of respondent Republic cannot

stand.

For one, it bears stressing that petitioners’ predecessors-in-interest lost whatever right they had over
land in question from the very moment they failed to redeem it during the 1-year period of
redemption. Certainly, the Republic’s failure to execute the acts referred to by the petitioners within
ten (10) years from the registration of the Certificate of Sale cannot, in any way, operate to restore
whatever rights petitioners’ predecessors-in-interest had over the same. For sure, petitioners have
yet to cite any provision of law or rule of jurisprudence, and we are not aware of any, to the effect
that the failure of a buyer in a foreclosure sale to secure a Certificate of Final Sale, execute an
Affidavit of Consolidation of Ownership and obtain a writ of possession over the property thus
acquired, within ten (10) years from the registration of the Certificate of Sale will operate to bring
ownership back to him whose property has been previously foreclosed and sold. x x x.

Quite the contrary, Section 33, Rule 39 of the 1997 Rules of Civil Procedure explicitly provides that
"[u]pon the expiration of the right of redemption, the purchaser or redemptioner shall be substituted
to and acquire all the rights, title, interest and claim of the judgment obligor to the property as of the
time of the levy."

Concededly, the 1997 Rules of Civil Procedure was yet in existent when the facts of this case
transpired. Even then, the application thereof to this case is justified by our pronouncement in
Lascano vs. Universal Steel Smelting Co., Inc., et al., to wit:

Procedural laws are construed to be applicable to actions pending and undetermined at the time of
their passage, and are deemed retroactive in that sense and to that extent. As a general rule, the
retroactive application of procedural laws cannot be considered violative of any personal rights
because no vested right may attach to nor arise therefrom.

Moreover, with the rule that the expiration of the 1-year redemption period forecloses the obligor’s
right to redeem and that the sale thereby becomes absolute, the issuance thereafter of a final deed
of sale is at best a mere formality and mere confirmation of the title that is already vested in the
purchaser. As this Court has said in Manuel vs. Philippine National Bank, et al.: Note must be taken
of the fact that under the Rules of Court the expiration of that one-year period forecloses the owner’s
right to redeem, thus making the sheriff’s sale absolute. The issuance thereafter of a final deed of
sale becomes a mere formality, an act merely confirmatory of the title that is already in the purchaser
and constituting official evidence of that fact.

With the reality that petitioners are not holders of any legal title over the property subject of this case
and are bereft of any equitable claim thereon, the very first requisite of an action to quiet title, i.e.,
that the plaintiff or complainant has a legal or an equitable title to or interest in the real property
subject matter of the action, is miserably wanting in this case. (Emphasis supplied, citations omitted.)

Calacala thus settled that Rule 39, Section 33 of the 1997 Rules of Court can be applied
retroactively to cases still pending and undetermined at the time of its passage,12 such as the present
case. By virtue of said provision, the expiration of the one-year redemption period foreclosed the
right to redeem of the spouses De Guzman (as well as petitioners, as their successors-in-interest)
and the sale of the subject property to respondent became absolute, so that the issuance thereafter
of a final deed of sale and/or conveyance is at best a mere formality and mere confirmation of the
title that was already vested in respondent

G.R. No. 196040 August 26, 2014

FE H. OKABE, Petitioner,
vs.
ERNESTO A. SATURNINO, Respondent.

The court held

Here, petitioner does not fall under the circumstances of the aforequoted case and the provisions of
Section 7 of Act No. 3135, as amended, since she bought the property long after the expiration of
the redemption period. Thus, it is PNB, if it was the purchaser in the foreclosure sale, or the
purchaser during the foreclosure sale, who can file the ex-parte petition for the issuance of writ of
possession during the redemption period, but it will only issue upon compliance with the provisions
of Section 7 of Act No. 3135.

In fact, the Real Estate Mortgage35 contains a waiver executed by the mortgagor in favor of the
mortgagee, wherein the mortgagor even waives the issuance of the writ of possession in favor of the
mortgagee. The contract provides that "effective upon the breach of any condition ofthe mortgage
and in addition to the remedies hereinstipulated, the mortgagee is hereby likewise appointed
Attorney-in-Fact of the Mortgagor/s with full power and authority with the use of force, if necessary,
to take actual possession of the mortgaged property/ies without the necessity of any judicial order or
permission, or power, to collect rents, to eject tenants, to lease or sell the mortgaged property/ies or
any part thereof at a private sale without previous notice or advertisement of any kind and execute
the corresponding bills of sale, lease or other agreement that may be deemed convenient to make
repairs or improvements on the mortgaged property/ies and pay for the same and perform any other
act which the Mortgagee may deem convenient for the proper administration of the mortgaged
property/ies."36

Moreover, even without the waiver, the issuance of the writ of possession is ministerial and non-
adversarial for the only issue involved is the purchaser’s right to possession; thus, an ex-
parteproceeding is allowed. 1âw phi1
Nevertheless, the purchaser is not left without any remedy. Section 6 of Act No. 3135, as amended
by Act No. 4118, provides:

SEC. 6. In all cases in which anextrajudicial sale is made under the special power hereinbefore
referred to, the debtor, his successor-ininterest or any judicial creditor or judgment creditor of said
debtor, or any person having a lien on the property subsequent to the mortgage or deed of trust
under which the property is sold, may redeem the same at any time within the term of one year from
and after the date of the sale; and such redemption shall be governed by the provisions of sections
four hundred and sixty-six, inclusive, of the Code ofCivil Procedure, in so far as these are not
inconsistent with the provisions of this Act.

Consequently, the provision of Section 33, Rule 39 of the Rules of Court relative to an execution
sale ismade applicable to extrajudicial foreclosure of real estate mortgages by virtue of Section 6 of
Act No. 3135, as amended.37

Section 33, Rule 39 of the Rules of Court provides: SEC. 33. Deed and possession to be given at
expiration of redemption period; by whom executed or given. – If no redemption be made within one
(1) year from the dateof registration of the certificate of sale, the purchaser is entitled toa
conveyance and possession of the property; or, if so redeemed whenever sixty (60) days have
elapsed and no other redemption has been made, and notice thereof given, and the time for
redemption has expired, the lastredemptioner is entitled to the conveyance and possession; but in all
cases the judgment obligor shall have the entire period of one (1) year from the date of registration
of the sale to redeem the property. The deed shall be executed by the officer making the sale or his
successor in office,and in the latter case shall have the same validity as though the officermaking the
sale had continued in office and executed it.

Upon the expiration of the right of redemption, the purchaser or redemptioner shall be substituted to
and acquire all the rights, title, interest and claim of the judgment obligor to the property as of the
time of the levy. The possession of the property shall be given to the purchaser or last redemptioner
by the same officer unless a third party is actually holding the property adversely to the judgment
obligor.38

From the foregoing, upon the expiration of the right of redemption, the purchaser or redemptioner
shall besubstituted to and acquire all the rights, title, interest and claim of the judgment debtor to the
property, and its possession shall be given to the purchaser or last redemptioner unless a third party
is actually holding the property adversely to the judgment debtor. In which case, the issuance of the
writ of possession ceases to be ex-parte and non-adversarial. Thus, where the property levied upon
on execution is occupied by a party other than a judgment debtor, the procedure is for the court to
conduct a hearing to determine the nature of said possession, i.e., whether or not he is in
possession of the subject property under a claim adverse to that of the judgment debtor.

It is but logical that Section 33, Rule 39 of the Rules of Court be applied to cases involving
extrajudicially foreclosed properties that were bought by a purchaser and later sold to third-party-
purchasers after the lapse of the redemption period. The remedy of a writ of possession, a remedy
that is available to the mortgagee-purchaser to acquire possession of the foreclosed property from
the mortgagor, is made available to a subsequent purchaser, butonly after hearing and after
determining that the subject property is still in the possession of the mortgagor. Unlike if the
purchaser is the mortgagee or a third party during the redemption period, a writ of possession may
issue ex-parte or without hearing. In other words, if the purchaser is a third party who acquired the
property after the redemption period, a hearing must be conducted to determine whether possession
over the subject property is still with the mortgagor or is already in the possession of a third party
holding the same adversely to the defaulting debtor or mortgagor. If the property is in the possession
of the mortgagor, a writ of possession could thus be issued. Otherwise, the remedy of a writ of
possession is no longer available to such purchaser, but he can wrest possession over the property
through an ordinary action of ejectment.

To be sure, immediately requiring the subsequent purchaser to file a separate case of ejectment
instead of a petition for the issuance of a writ of possession, albeit not ex-parte, will only prolong the
proceedings and unduly deny the subsequent purchaser of possession of the property which he
already bought.

Rule 60 Section 2. Affidavit and bond. — The applicant must show by his own affidavit or that of
some other person who personally knows the facts:

(b) That the property is wrongfully detained by the adverse party, alleging the cause of
detention thereof according to the best of his knowledge, information, and belief ;

Rule 57 Section 1. Grounds upon which attachment may issue. — At the commencement of the
action or at any time before entry of judgment, a plaintiff or any proper party may have the property
of the adverse party attached as security for the satisfaction of any judgment that may be recovered
in the following cases:

(c) In an action to recover the possession of property unjustly or fraudulently taken, detained
or converted, when the property, or any part thereof, has been concealed, removed, or
disposed of to prevent its being found or taken by the applicant or an authorized person;

REPLEVIN
The puropose to recover the possession of personal property. of this a form of principal remedy and of
provisional relief. It may refer to the principal action itself to regain possession of personal property
wrongfully held from the plaintiff by another,or to the provisional remedy to allow the plaintiff to retain
the thing during the pendency of the main action.

Furrher it must have the following requirement(1) Affidavit – must allege that the applicant is the owner or entitled
to possess the property, the description of the property, the actual ‘market’ value of the property, and the person and why he
withheld the property from the applicant. (2)Bond – the amount to be posted must double the value of the property as stated in
the affidavit,

PRELIMINARY ATTACHMENT
The purpose of this to seize the property of the debtor in advance of the final judgment and to hold it for purposes of
satisfying the said judgment and to enable the court to acquire jurisdiction over the action by the actual or constructive seizure of
the property in instances where summons cannot be effected.

A provisional remedy in virtue of which a plaintiff or other party may have the property of the adverse
party taken into the custody of the court as security for the satisfaction of any judgment that may be
recovered
The following are the requirement (1) Affidavit – which must contain all the allegations required and the circumstances on why
it should be granted. (2) Bond – it is to answer for the damages and costs, which may be adjudged, to the adverse
party.where the defendant can file a counter bond at the courts discretion but the counter bond must not be lower than the bond
filed by the petitioner. Its purpose is to satisfy the judgment.
.
BERNARDITO A. FLORIDO, G.R. No. 146400
Vs
SHEMBERG MARKETING
CORPORATION,

In the interest of justice, petitioners can still file an independent

civil action to establish their ownership over the barge, if they
have not yet done so. (Emphasis ours)
In La Tondea Distillers, Inc. v. Court of Appeal we discussed the
remedy available to a person not a party to an action where
property is seized pursuant to a writ of delivery:

On the other hand, a stranger to the action, i.e., a person not a

party to the action, or as the law puts it, any other person than the
defendant or his agent, whose property is seized pursuant to the
writ of delivery, is accorded the remedy known as a terceria, a
third party claim to wit:

xxx xxx xxx

The remedy is identical to that granted to strangers in a

proceeding on preliminary attachment or execution of
judgments.

In lieu of, or in addition to the filing of a terceria, the third party

may, as Section 7 points out, vindicate his claim to the property by
any proper action. This effort at vindication may take the form of a
separate action for recovery of the property, or intervention in the
replevin action itself. (Emphasis ours)

A stranger to an action where property in which he claims to

have a right is attached must resort to the remedies available under
the Rules of Court. The only exception to this rule is when the
sheriff mistakenly levies on properties in which the defendant has
no interest. In such an event, a summary hearing is held upon
application to determine if he has taken hold of property not
belonging to the judgment debtor.

In this case, however, Solomon Nacua, Jr.s ownership of the

vessels attached was never disputed. Petitioner must therefore
follow the prescribed procedure for vindicating his claim on the
vessels rather than attempt to erroneously short-circuit the rules.

G.R. Nos. 65957-58 July 5, 1994

ELEAZAR V. ADLAWAN and ELENA S. ADLAWAN, petitioners,

vs.
Hon. Judge RAMON AM. TORRES, as Presiding Judge of Branch 6, Regional Trial Court Cebu
City, ABOITIZ & COMPANY, INC. and THE PROVINCIAL SHERIFFS OF CEBU, DAVAO, RIZAL
and METRO MANILA, Respectively, respondents.

Undaunted, respondent Aboitiz filed a second motion for reconsideration with a prayer that the
dispositive portion of the decision be clarified. It asserted that because the writ of preliminary
attachment was different from the writ of replevin, we should rule that the property subject of the
latter writ should remain in custodia legis of the court issuing the said writ.

In the Resolution dated September 10, 1990, the Third Division stated that "the properties to be
returned to petitioner are only those held by private respondent (Aboitiz) by virtue of the writ of
attachment which has been declared non-existent." Accordingly, the dispositive portion of the April 3,
1990 decision of the Third Division of this Court was modified to read as follows:

WHEREFORE, in view of the foregoing, this Court rules that the properties in the
custody of the private respondent Aboitiz & Company by virtue of the writ of
attachment issued in Civil Case No. R-21761 be returned to the petitioner, but
properties in the custody of the private respondent by virtue of the writ of replevin
issued in Civil Case No. 619-L be continued in custodia legis of said court pending
litigation therein.

The Decision in G.R. No. 63225 having become final and executory, entry of judgment was made on
November 15, 1990. This should have terminated the controversy between petitioners and
respondent Aboitiz insofar as the Supreme Court was concerned, but that was not to be. On
September 9, 1983 respondent Aboitiz filed against petitioners two complaints for collection of sums
of money with prayers for the issuance of writs of attachment in the Regional Trail Court, Branch 23,
Cebu City, docketed as Civil Cases Nos. CEB-1185 and CEB-1186. The complaint in Civil Case No.
CEB-1185 alleged that petitioner Eleazar Adlawan (defendant therein) was awarded a contract for
the construction of the Tago Diversion Works for the Tago River Irrigation Project by the National
Irrigation Administration and that respondent Aboitiz (plaintiff therein) loaned him money and
equipment, which indebtedness as of June 30, 1983 totaled P13,430,259.14. Paragraph 16 of the
complaint states:

16. That, in view of the enormous liabilities which the defendants have with the
plaintiff, defendants executed a real estate mortgage covering eleven (11) parcels of
land in favor of Philippine Commercial and Industrial Bank (PCIB) to secure a
P1,000,000.00 loan with said bank and was able to remove, conceal and dispose of
their properties, obviously to defraud the plaintiff, . . . (Rollo, pp. 65-66).

The complaint in Civil Case No. CEB-1186 alleged that petitioner Eleazar Adlawan (defendant
therein) was awarded a contract for the construction of the Lasang River Irrigation Project by the
National Irrigation Administration and that respondent Aboitiz (plaintiff therein) loaned him money
and equipment, which indebtedness as of June 30, 1983 totalled P5,370,672.08. Paragraph 15 of
the complaint is similarly worded as paragraph 16 of the complaint in Civil Case No. CEB-1185.

Civil Case No. CEB-1185 was raffled to the Regional Trial Court, Branch 6, presided by respondent
Judge Ramon Am. Torres. On September 14, 1983, respondent Judge ordered the issuance of a
writ of attachment upon respondent Aboitiz' filing of a bond of P5,000,000.00. Similarly, in Civil Case
No. CEB-1186, which was raffled to Branch 23, presiding Judge Emilio A. Jacinto ordered the
issuance of a writ of attachment upon the filing of a bond of P2,500,000.00. Accordingly, in Civil
Case No. CEB-1185, the Acting Provincial Sheriff of Cebu issued separate writs dated September
26, 1983 addressed to the Sheriffs of Cebu, Davao and Metro Manila. No writ of preliminary
attachment was, however, issued in Civil Case No. CEB-1186.

Petitioners then filed in Civil Cases Nos. CEB-1185 and CEB-1186 urgent motions to hold in
abeyance the enforcement of the writs of attachments. They alleged in the main that since their
property had been previously attached and said attachment was being questioned before the
Supreme Court in G.R. No. 63225, the filing of the two cases, as well as the issuance of the writs of
attachment, constituted undue interference with the processes of this court in the then pending
petition involving the same property.

Upon motion of respondent Aboitiz, Branch 23 issued on October 13, 1983, an order directing the
transfer to Branch 6 of Civil Case No. CEB-1186 for consolidation with Civil Case No. CEB-1185.

Meanwhile, in its comment on petitioners' motion to withhold the enforcement of the writs of
attachment, respondent Aboitiz alleged that the voluntary dismissal of Civil Case No. R-21761 under
Section 1, Rule 17 of the Revised Rules of Court was without prejudice to the institution of another
action based on the same subject matter. It averred that the issuance of the writ of attachment was
justified because petitioners were intending to defraud respondent Aboitiz by mortgaging 11 parcels
of land to the Philippine Commercial and Industrial Bank (PCIB) in consideration of the loan of
P1,100,000.00, thereby making PCIB a preferred creditor to the prejudice of respondent Aboitiz,
which had an exposure amounting to P13,430,259.14.

Petitioners then filed a rejoinder to said comment, contending that since the property subject of the
writ of attachment have earlier been attached or replevied, the same property were under custodia
legis and therefore could not be the subject of other writs of attachment.

On December 12, 1983, respondent Judge issued an order finding no merit in petitioners' motion for
reconsideration and directing the sheriffs of Cebu, Davao and Metro Manila "to proceed with the
enforcement and implementation of the writs of preliminary attachment." Respondent Judge ruled
that the writs of attachment were issued on the basis of the supporting affidavits alleging that
petitioner had removed or disposed of their property with intent to defraud respondent Aboitiz (Rollo,
pp. 109-113).

On December 15, petitioners filed an ex parte motion praying: (1) that the December 12, 1983 Order
be set for hearing; (2) that they be given 15 days within which to either file a motion for
reconsideration or elevate the matter to this Court or the then Intermediate Appellate Court; and (3)
that within the same 15-day period the implementation or enforcement of the writs of attachment be
held in abeyance.

On the same day, respondent Judge issued an order holding in abeyance the enforcement of the
writs of preliminary attachment in order to afford petitioners an opportunity to seek their other
remedies (Rollo, p. 116).

On December 27, petitioners filed the instant petition for certiorari and mandamus. They alleged that
respondent Judge gravely abused his discretion in ordering the issuance of the writs of preliminary
attachment inasmuch as the real estate mortgage executed by them in favor of PCIB did not
constitute fraudulent removal, concealment or disposition of property. They argued that granting the
mortgage constituted removal or disposition of property, it was not per se a ground for attachment
lacking proof of intent to defraud the creditors of the defendant.

Petitioners contended that in Civil Case No. 21761, Branch 11 had ruled that the loan for which the
mortgage was executed was contracted in good faith, as it was necessary for them to continue their
business operations even after respondent Aboitiz had stopped giving them financial aid.

Petitioners also contended that respondent Judge exceeded his jurisdiction when he issued the
Order of December 12, 1983, without first hearing the parties on the motion for attachment and the
motion to dissolve the attachment. Moreover, they argued that respondent Judge gravely abused his
discretion in proceeding with the case, notwithstanding that his attention had been called with regard
to the pendency of G.R. No. 63225 in this Court.

As prayed for by petitioners, we issued a temporary restraining order on January 6, 1984 "enjoining
the respondents from enforcing or implementing the writs of preliminary attachment against the
property of petitioners, all dated September 26, 1983 and issued in Civil Cases Nos. CEB 1185 and
1186" (Rollo, p. 118)

G.R. No. 205998

WILLIAM ANGIDAN SIY, Petitioner

vs.
ALVIN TOMLIN, Respondent

"In a complaint for replevin, the claimant must convincingly show that he is either the owner or
clearly entitled to the possession of the object sought to be recovered, and that the defendant, who
is in actual or legal possession thereof, wrongfully detains the same."24 "Rule 60 x x x allows a
plaintiff, in an action for the recovery of possession of personal property, to apply for a writ of
replevin if it can be shown that he is 'the owner of the property claimed ... or is entitled to the
possession thereof.’ The plaintiff need not be the owner so long as he is able to specify his right to
the possession of the property and his legal basis therefor." 25

In Filinvest Credit Corporation v. Court of Appeals,26 this Court likewise held that-

x x x 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 cited by the trial court, which reads:

Sec. 2. Affidavit and bond. - Upon applying for such order the plaintiff must show...

(a) That the plaintiff is the owner of the property claimed, particularly describing it, or is entitled to the
possession thereof; xxx

As correctly cited by respondent in his Comment:27

x x x [A] party praying for the recovery of possession of personal property must show by his own
affidavit or that of some other person who personally knows the facts that he is the owner of the
property claimed, particularly describing it, or is entitled to the possession thereof It must be borne in
mind that replevin is a possessory action the gist of which focuses on the right of possession that, in
turn, is dependent on a legal basis that, not infrequently, looks to the ownership of the object sought
to be replevied. Wrongful detention by the defendant of the properties sought in an action for
replevin must be satisfactorily established. If only a mechanistic averment thereof is offered, the writ
should not be issued

PRELIMINARY ATTACHMENT
Bond – it is to answer for the damages and costs, which may be adjudged, to the adverse party.
 the defendant can file a counter bond at the courts discretion but the counter bond must not be lower than the
bond filed by the petitioner. Its purpose is to satisfy the judgment.
Note: No notice to the adverse party or hearing of the application is required.

RECEIVERSHIP
Bond – in the amount fixed by the court, to cover all the damages by reason of the appointment of a receiver. The court may
require additional bond as further security. In this provisional remedy the Bond is mandatory and the court fixes it.

REPLEVIN
Bond – the amount to be posted must double the value of the property as stated in the affidavit.