First Division

FIRST DIVISION
G.R. No. 187944, March 12, 2014
CARMENCITA SUAREZ, Petitioner, v. MR. AND MRS. FELIX E. EMBOY, JR. AND MARILOU P.
EMBOY–DELANTAR, Respondents.
DECISION
REYES, J.:
For review in the instant Petition1 is the Decision2 rendered on March 19, 2009 and Resolution3 issued on
May 5, 2009 by the Court of Appeals (CA) in CA–G.R. SP No. 03489. The CA granted the Petition for
Review4 filed by Mr. and Mrs. Felix Emboy, Jr. (Felix) and Marilou Emboy–Delantar (Marilou)
(respondents), seeking to reverse the decisions of the Regional Trial Court (RTC), Branch 12,5 and
Municipal Trial Court in Cities (MTCC),
Branch 3,6 of Cebu City, rendered on February 26, 2008 in Civil Case No. CEB–
33328,7 and on September 25, 2006 in Civil Case No. R–49832, respectively. The RTC affirmed
the MTCC in upholding the claims of Carmencita Suarez (Carmencita) in her complaint for unlawful
detainer instituted against the respondents.
Antecedents
At the center of the dispute is a 222–square meter parcel of land, designated as Lot No. 1907–A–
2 (subject lot) of the subdivision plan Psd–165686, situated in Barangay Duljo, Cebu City, and
covered by Transfer Certificate of Title (TCT) No. T–174880 issued in the name of Carmencita on
February 9, 2005. The subject lot used to be a part of Lot No. 1907–A,8 which was partitioned in the
following manner among the heirs of Spouses Carlos Padilla (Carlos) and Asuncion Pacres (Asuncion):9
Lot No. TCT No. Heirs

1907–A–1 T–54359 Spouses Rogelio and Praxedes Padilla
1907–A–2 T–54360 Heirs of Vicente Padilla (Vicente),
namely: (1) Azucena Padilla, married
to Felly Carrera; (2) Remedios Padilla
(Remedios), married to Oscar
Dimay; (3) Veronica Padilla
(Veronica);10 and (4) Moreno Padilla
(Moreno), married to Teresita Curso
(Teresita)
1907–A–3 T–54361 Cresencio Padilla
1907–A–4 T–54362 Fructousa Baricuatro
1907–A–5 T–54363 Claudia Padilla–Emboy (Claudia)
A house, which is occupied by respondents Felix and Marilou, stands in the subject lot. The respondents
claim that their mother, Claudia, had occupied the subject lot during her lifetime and it was earmarked
to become her share in Lot No. 1907–A. They had thereafter stayed in the subject lot for decades after
inheriting the same from Claudia, who had in turn succeeded her own parents, Carlos and Asuncion.11
In 2004, respondents Felix and Marilou were asked by their cousins, who are the Heirs of Vicente, to
vacate the subject lot and to transfer to Lot No. 1907–A–5, a landlocked portion sans a right of
way. They refused to comply insisting that Claudia’s inheritance pertained to Lot No. 1907–A–2.12
Not long after, the respondents received from Carmencita’s counsel, Atty. Jufelenito R. Pareja (Atty.
Pareja), a demand letter, dated February 23, 2004, requiring them to vacate the subject lot. They were
informed that Carmencita had already purchased on February 12, 2004 the subject lot from the former’s
relatives. However, the respondents did not heed the demand. Instead, they examined the records
pertaining to the subject lot and uncovered possible anomalies, i.e., forged signatures and alterations, in
the execution of a series of deeds of partition relative to Lot No. 1907–A. On August 13, 2004, they
filed before the RTC of Cebu City a complaint13 for nullification of the partition and for the issuance of
new TCTs covering the heirs’ respective portions of Lot No. 1907–A.14
On December 8, 2004, Carmencita filed before the MTCC and against the respondents a complaint for
unlawful detainer, the origin of the instant petition. She alleged that she bought the subject lot from
Remedios, Moreno, Veronica and Dionesia,15 the registered owners thereof and the persons who allowed
the respondents to occupy the same by mere tolerance. As their successor–in–interest, she claimed her
entitlement to possession of the subject lot and the right to demand from the respondents to vacate the
same.16
The MTCC upheld Carmencita’s claims in its decision rendered on September 25, 2006. The respondents
were ordered to vacate the subject lot and remove at their expense all the improvements they had built
thereon. They were likewise made solidarily liable to pay Carmencita Php 20,000.00 as attorney’s fees.17
In the Decision dated February 26, 2008, the RTC affirmed in its entirety the MTCC ruling.18
The respondents challenged the MTCC and RTC judgments through a Petition for Review19 filed before
the CA.
The respondents argued that they have been occupying the subject lot in the concept of owners for
several decades. Carmencita, on the other hand, was a buyer in bad faith for having purchased the
property despite the notice of lis pendens clearly annotated on the subject lot’s title. Even her complaint
for unlawful detainer was filed on December 8, 2004 subsequent to the respondents’ institution on
August 13, 2004 of a petition for nullification of the partition. Citing Sarmiento v. CA,20 the respondents
emphasized that “even if one is the owner of the property, the possession thereof cannot be wrested
from another who had been in the physical or material possession of the same for more than one year
by resorting to a summary action of ejectment.”21 The respondents also invoked the doctrine
enunciated in Amagan v. Marayag22 that the pendency of another action anchored on the issue of
ownership justifies the suspension of an ejectment suit involving the same real property. The foregoing
is especially true in the case at bar where the issue of possession is so interwoven with that of
ownership. Besides, the resolution of the question of ownership would necessarily result in the
disposition of the issue of possession.
The respondents also stressed that the deed of sale dated April 1, 2004, which was attached to the
complaint for unlawful detainer, bore tell–tale signs of being spurious. First, Atty. Pareja’s demand
letter sent to the respondents instead referred to a deed of sale dated February 12, 2004. Secondly,
Teresita, who now lives in Luzon and has been estranged from Moreno since the 1980s, was a signatory
in the deed of sale. Thirdly, a certain Veronida Padilla, a fictitious person, also signed the deed of sale
as among the vendors, but she, too, was impleaded as a co–defendant in the ejectment suit. Fourthly,
the deed was only registered the following year after its supposed execution.
The respondents insisted that the Heirs of Vicente, who had allegedly sold the subject lot to Carmencita,
had never physically occupied the same. Hence, there was no basis at all for Carmencita’s claim that the
respondents’ possession of the subject lot was by mere tolerance of the alleged owners.
The respondents also presented before the CA a newly discovered evidence, which they found in an old
wooden chest in their ancestral home. A duly notarized document captioned as an “Agreement,”23 dated
February 23, 1957, showed that Vicente and his spouse, Dionesia, had waived their hereditary rights to
Lot No. 1907–A. The document stated that Vicente obtained a loan from the Philippine National Bank
using Lot No. 1907–A as a collateral. The loan was paid by Carlos and Asuncion and the waiver must
have been executed in order to be fair to Vicente’s siblings. Prescinding from the above, the Heirs of
Vicente no longer had ownership rights over the subject lot to convey to Carmencita.
The respondents also averred that Carmencita’s complaint lacked a cause of action. The certification to
file an action was issued by the officials of Barangay Duljo in the name of James Tan Suarez,
Carmencita’s brother, who had no real rights or interests over the subject lot. Further, while Carmencita
based her claim over the subject lot by virtue of a deed of sale executed on April 1, 2004, no demand to
vacate was made upon the respondents after that date. The absence of such demand rendered the
complaint fatally defective, as the date of its service should be the reckoning point of the one–year
period within which the suit can be filed.
In support of the respondents’ prayer for the issuance of injunctive reliefs, they argued that their loss
would be irreparable. Moreover, the resolution of the respondents’ petition for nullification of the
partition of Lot No. 1907–A, in which Carmencita was likewise impleaded as a defendant, would be
rendered useless in the event that the latter’s complaint for unlawful detainer would be granted and the
former’s ancestral house demolished.
The Ruling of the CA
On March 19, 2009, the CA rendered the herein assailed Decision reversing the disquisitions of the
courts a quo and dismissing Carmencita’s complaint for unlawful detainer. The CA explained: cha nRoblesv irt ual Lawlib rary
Section 1, Rule 70 of the Rules of Court provides:

Section 1. Who may institute proceedings, and when.—Subject to the provisions of the next succeeding
section, a person deprived of the possession of any land or building by force, intimidation, threat,
strategy, or stealth, or a lessor, vendor, vendee, or other person against whom the possession of any
land or building is unlawfully withheld after the expiration or termination of the right to hold possession,
by virtue of any contract, express or implied, or the legal representatives or assigns of any such lessor,
vendor, vendee, or other person, may, at any time within one (1) year after such unlawful deprivation or
withholding of possession, bring an action in the proper Municipal Trial Court against the person or
persons unlawfully withholding or depriving of possession, or any
person or persons claiming under them, for the
restitution of such possession, together with damages and costs.
The distinction between forcible entry and unlawful detainer was lucidly explained in Sarmiento vs. Court
of Appeals,:
Forcible entry and unlawful detainer cases are two distinct actions defined in Section 1, Rule 70 of the
Rules of Court. [In] forcible entry, one is deprived of physical possession of land or building by means
of force, intimidation, threat, strategy, or stealth. In unlawful detainer, one unlawfully withholds
possession thereof after the expiration or termination of his right to hold possession under any contract,
express or implied. In forcible entry, the possession is illegal from the beginning and the basic inquiry
centers on who has the prior possession de facto. In unlawful detainer, the possession was originally
lawful but became unlawful by the expiration or termination of the right to possess, hence the issue of
rightful possession is decisive for, in such action, the defendant is in actual possession and the plaintiffs
cause of action is the termination of the defendant’s right to continue in possession.
What determines the cause of action is the nature of defendant’s entry into the land. If the entry is
illegal, then the action which may be filed against the intruder within one (1) year therefrom is forcible
entry. If, on the other hand, the entry is legal but the possession thereafter became illegal, the case is
one of unlawful detainer which must be filed within one (1) year from the date of the last demand.
A close perusal of [Carmencita’s] complaint a quo reveals that the action was neither one of forcible
entry nor unlawful detainer but essentially involved an issue of ownership which must be resolved in
an accion reivindicatoria. It did not characterize [the respondents’] alleged entry into the land: whether
the same was legal or illegal. It did not state how [the respondents] entered the land and constructed a
house thereon. It was also silent on whether [the respondents’] possession became legal before
[Carmencita] demanded from them to vacate the land. The complaint merely averred that their
relatives previously owned the lot [the respondents] were occupying and that after [Carmencita]
purchased it[,] she, as its new owner, demanded [for the respondents] to vacate the land. Moreover, it
is undisputed that [the respondents] and their ancestors have been occupying the land for several
decades already. There was no averment as to how or when [Carmencita’s] predecessors tolerated [the
respondents’] possession of the land. Consequently, there was no contract to speak of, whether express
or implied, between [the respondents], on one hand, and [Carmencita] or her predecessors, on the
other, as would qualify [the respondents’] possession of the land as a case of unlawful detainer. Neither
was it alleged that [the respondents] took possession of the land through force, intimidation, threat,
strategy or stealth to make out a case of forcible entry. In any event, [Carmencita] cannot legally
assert that [the respondents’] possession of the land was by mere tolerance. This is because
[Carmencita’s] predecessors–in–interest did not yet own the property when [Claudia] took possession
thereof. Take note that [Carmencita’s] predecessors–in–interest merely stepped into the shoes of their
parents who were also co–heirs of [Claudia]. Finally, to categorize a cause of action as one constitutive
of unlawful detainer, plaintiff’s supposed acts of tolerance must have been present from the start of the
possession which he later seek[s] to recover. This is clearly wanting in the case at bar.
Indeed, when the complaint fails to aver facts constitutive of forcible entry or unlawful detainer, as
where it does not state how entry was effected or how and when dispossession started, as in the case at
bar, the remedy should either be an accion publiciana or an accion reivindicatoria in the proper RTC. If
[Carmencita] is truly the owner of the subject property and she was unlawfully deprived of the real right
of possession or ownership thereof, she should present her claim before the RTC in an
accion publiciana or an accion reivindicatoria, and not before the municipal trial court in a summary
proceeding of unlawful detainer or forcible entry.
Munoz vs. Court of Appeals enunciated:

For even if he is the owner, possession of the property cannot be wrested from another who had been in
possession thereof for more than twelve (12) years through a summary action for ejectment. Although
admittedly[,] petitioner may validly claim ownership based on the muniments of title it presented, such
evidence does not responsibly address the issue of prior actual possession raised in a forcible entry
case. It must be stated that regardless of actual condition of the title to the property, the party in
peaceable quiet possession shall not be turned out by a strong hand, violence or terror. Thus, a party
who can prove prior possession can recover such possession even against the owner himself. Whatever
may be the character of his prior possession, if he has in his favor priority in time, he has the security
that entitles him to remain on the property until he is lawfully ejected by a person having a better right
by accion publiciana or accion reivindicatoria.24 (Citations omitted and underscoring supplied)
In Carmencita’s Motion for Reconsideration25 filed before the CA, she alleged that the case
of Sarmiento cited by the respondents is not applicable to the present controversy since it involves a
boundary dispute, which is properly the subject of an accion reivindicatoria and over which the MTCC
has no jurisdiction. She claimed that Rivera v. Rivera26 finds more relevance in the case at
bar. In Rivera, the contending parties were each other’s relatives and the Court ruled that in an
unlawful detainer case, prior physical possession by the complainant is not necessary.27 Instead, what is
required is a better right of possession. Further, the MTCC cannot be divested of jurisdiction just
because the defendants assert ownership over the disputed property.
In the herein assailed Resolution dated May 5, 2009, the CA denied Carmencita’s Motion for
Reconsideration.
In essence, the instant petition presents the following issues:
Whether or not Carmencita’s complaint against the respondents had sufficiently alleged and proven a
cause of action for unlawful detainer.
II
Whether or not the pendency of the respondents’ petition for nullification of partition of Lot No. 1907–A
and for the issuance of new certificates of title can abate Carmencita’s ejectment suit.
Carmencita’s Allegations
In support of the petition, Carmencita reiterates that she purchased the subject lot from the Heirs of
Vicente, who were then the registered owners thereof. At the time of the sale, respondents Felix and
Marilou were occupying the subject lot. Thus, Atty. Pareja, in Carmencita’s behalf, demanded that they
vacate the property. The respondents’ refusal to comply with the demand turned them into deforciants
unlawfully withholding the possession of the subject lot from Carmencita, the new owner, whose
recourse was to file a complaint for unlawful detainer.
Further, Carmencita insists that a certificate of title shall not be subject to a collateral attack28 and the
issue of ownership cannot be resolved in an action for unlawful detainer. A pending suit involving the
question of ownership of a piece of real property will not abate an ejectment complaint as the two are
not based on the same cause of action and are seeking different reliefs.29
Additionally, Carmencita invokes the doctrine in Eastern Shipping Lines, Inc. v. CA30 that the registered
owner of a property is entitled to its possession. In Arcal v. CA,31 the Court also explained that the
occupation of a property not by its registered owner but by others depends on the former’s tolerance,
and the occupants are bound by an implied promise to vacate upon demand, failing at which, a suit for
ejectment would be proper.32
The Respondents’ Arguments
In their Comment33 to the instant petition, the respondents stress that Carmencita’s complaint for
unlawful detainer was fundamentally inadequate. There was practically no specific averment as to when
and how possession by tolerance of the respondents began. In the complaint, Carmencita made a
general claim that the respondents possessed “the property by mere tolerance ‘with the understanding
that they would voluntarily vacate the premises and remove their house(s) thereon upon demand by the
owners’.”34 In Spouses Valdez, Jr. v. CA,35 the Court ruled that the failure of the complainants to allege
key jurisdictional facts constitutive of unlawful detainer is fatal and deprives the MTCC of jurisdiction
over the action.
In their rejoinder,36 the respondents likewise argue that the issues of possession and ownership are
inseparably linked in the case at bar. Carmencita’s complaint for ejectment was based solely on her
spurious title, which is already the subject of the respondents’ petition for nullification of partition of Lot
No. 1907–A.
Our Disquisition
The instant petition lacks merit.
Carmencita had not amply alleged

and proven that all the requisites for
unlawful detainer are present in the
case at bar.
“Without a doubt, the registered owner of real property is entitled to its possession. However, the
owner cannot simply wrest possession thereof from whoever is in actual occupation of the property. To
recover possession, he must resort to the proper judicial remedy and, once he chooses what action to
file, he is required to satisfy the conditions necessary for such action to prosper.”37
In Spouses Valdez, Jr.,38 the Court is instructive anent the three kinds of actions available to recover
possession of real property, viz: cha nRoblesv irt ual Lawlib rary
(a) accion interdictal; (b) accion publiciana; and (c) accion reivindicatoria.
Accion interdictal comprises two distinct causes of action, namely, forcible entry (detentacion) and
unlawful detainer (desahuico) [sic]. In forcible entry, one is deprived of physical possession of real
property by means of force, intimidation, strategy, threats, or stealth whereas in unlawful detainer, one
illegally withholds possession after the expiration or termination of his right to hold possession under
any contract, express or implied. The two are distinguished from each other in that in forcible entry, the
possession of the defendant is illegal from the beginning, and that the issue is which party has prior de
facto possession while in unlawful detainer, possession of the defendant is originally legal but became
illegal due to the expiration or termination of the right to possess.
The jurisdiction of these two actions, which are summary in nature, lies in the proper municipal trial
court or metropolitan trial court. Both actions must be brought within one year from the date of actual
entry on the land, in case of forcible entry, and from the date of last demand, in case of unlawful
detainer. The issue in said cases is the right to physical possession.
Accion publiciana is the plenary action to recover the right of possession which should be brought in the
proper regional trial court when dispossession has lasted for more than one year. It is an ordinary civil
proceeding to determine the better right of possession of realty independently of title. In other words, if
at the time of the filing of the complaint more than one year had elapsed since defendant had turned
plaintiff out of possession or defendant’s possession had become illegal, the action will be, not one of the
forcible entry or illegal detainer, but an accion publiciana. On the other hand, accion reivindicatoria is an
action to recover ownership also brought in the proper regional trial court in an ordinary civil
proceeding.39 (Citations omitted)
In a complaint for unlawful detainer, the following key jurisdictional facts must be alleged and
sufficiently established:
chanRob lesvi rtua lLawl ibra ry
(1) initially, possession of property by the defendant was by contract with

or by tolerance of the plaintiff;
(2) eventually, such possession became illegal upon notice by plaintiff to
defendant of the termination of the latter’s right of possession;
(3) thereafter, the defendant remained in possession of the property and
deprived the plaintiff of the enjoyment thereof; and
(4) within one year from the last demand on defendant to vacate the
property, the plaintiff instituted the complaint for ejectment.40
In the case at bar, the first requisite mentioned above is markedly absent. Carmencita failed to clearly
allege and prove how and when the respondents entered the subject lot and constructed a house upon
it.41 Carmencita was likewise conspicuously silent about the details on who specifically permitted the
respondents to occupy the lot, and how and when such tolerance came about.42 Instead, Carmencita
cavalierly formulated a legal conclusion, sans factual substantiation, that (a) the respondents’ initial
occupation of the subject lot was lawful by virtue of tolerance by the registered owners, and (b) the
respondents became deforciants unlawfully withholding the subject lot’s possession after Carmencita, as
purchaser and new registered owner, had demanded for the former to vacate the property.43 It is worth
noting that the absence of the first requisite assumes even more importance in the light of the
respondents’ claim that for decades, they have been occupying the subject lot as owners thereof.
Again, this Court stresses that to give the court jurisdiction to effect the ejectment of an occupant or
deforciant on the land, it is necessary that the complaint must sufficiently show such a statement of
facts as to bring the party clearly within the class of cases for which the statutes provide a remedy,
without resort to parol testimony, as these proceedings are summary in nature. In short, the
jurisdictional facts must appear on the face of the complaint. When the complaint fails to aver facts
constitutive of forcible entry or unlawful detainer, as where it does not state how entry was effected or
how and when dispossession started, the remedy should either be an accion publiciana or accion
reivindicatoria.44
As an exception to the general rule, the respondents’ petition for nullification of the partition
of Lot No. 1907–A can abate Carmencita’s suit for unlawful detainer.
In Amagan, the Court is emphatic that: chanRoblesvirtual Lawlib ra ry
As a general rule, therefore, a pending civil action involving ownership of the same property does not
justify the suspension of ejectment proceedings. “The underlying reasons for the above ruling were that
the actions in the Regional Trial Court did not involve physical or de facto possession, and, on not a few
occasions, that the case in the Regional Trial Court was merely a ploy to delay disposition of the
ejectment proceeding, or that the issues presented in the former could quite as easily be set up as
defenses in the ejectment action and there resolved.”
Only in rare instances is suspension allowed to await the outcome of the pending civil action. One such
exception is Vda. de Legaspi v. Avendaño, wherein the Court declared: cha nRoblesv irt ual Lawlib rary
“x x x. Where the action, therefore, is one of illegal detainer, as distinguished from one of forcible
entry, and the right of the plaintiff to recover the premises is seriously placed in issue in a proper judicial
proceeding, it is more equitable and just and less productive of confusion and disturbance of physical
possession, with all its concomitant inconvenience and expenses. For the Court in which the issue of
legal possession, whether involving ownership or not, is brought to restrain, should a petition for
preliminary injunction be filed with it, the effects of any order or decision in the unlawful detainer case in
order to await the final judgment in the more substantive case involving legal possession or
ownership. It is only where there has been forcible entry that as a matter of public policy the right to
physical possession should be immediately set at rest in favor of the prior possession regardless of the
fact that the other party might ultimately be found to have superior claim to the premises involved,
thereby to discourage any attempt to recover possession thru force, strategy or stealth and without
resorting to the courts.”
xxxx
Indisputably, the execution of the MCTC Decision would have resulted in the demolition of the house
subject of the ejectment suit; thus, by parity of reasoning, considerations of equity require the
suspension of the ejectment proceedings. We note that, like Vda. de Legaspi, the respondent’s suit is
one of unlawful detainer and not of forcible entry. And most certainly, the ejectment of petitioners
would mean a demolition of their house, a matter that is likely to create the “confusion, disturbance,
inconveniences and expenses” mentioned in the said exceptional case.
Necessarily, the affirmance of the MCTC Decision would cause the respondent to go through the whole
gamut of enforcing it by physically removing the petitioners from the premises they claim to have been
occupying since 1937. (Respondent is claiming ownership only of the land, not of the
house.) Needlessly, the litigants as well as the courts will be wasting much time and effort by
proceeding at a stage wherein the outcome is at best temporary, but the result of enforcement is
permanent, unjust and probably irreparable.
We should stress that respondent’s claim to physical possession is based not on an expired or a violated
contract of lease, but allegedly on “mere tolerance.” Without in any way prejudging the proceedings for
the quieting of title, we deem it judicious under the present exceptional circumstances to suspend the
ejectment case.45 (Citations omitted)
The Court then quoted with favor the following portion of the Decision dated July 8, 1997, penned by
Associate Justice Artemio G. Tuquero in CA–G.R. No. 43611–SP, from which the Amagan case
sprang: chanRoblesv irtual Lawlib rary
“ONE. Private respondent Teodorico T. Marayag anchors his action for unlawful detainer on the theory
that petitioners’ possession of the property in question was by mere tolerance. However, in answer to
his demand letter dated April 13, 1996 x x x, petitioners categorically denied having any agreement with
him, verbal or written, asserting that they are ‘owners of the premises we are occupying at 108 J.P.
Rizal Street, San Vicente, Silang, Cavite.’ In other words, it is not merely physical possession but
ownership as well that is involved in this case.[”]
“TWO. In fact, to protect their rights to the premises in question, petitioners filed an action for
reconveyance, quieting of title and damages against private respondents, docketed as Civil Case No.
TG–1682 of the Regional Trial Court, Branch 18, Tagaytay City. The issue of ownership is squarely
raised in this action. Undoubtedly, the resolution of this issue will be determinative of who is entitled to
the possession of the premises in question.[”]
“THREE. The immediate execution of the judgment in the unlawful detainer case will include the removal
of the petitioners’ house [from] the lot in question.[”]
“To the mind of the Court it is injudicious, nay inequitable, to allow demolition of petitioners’ house prior
to the determination of the question of ownership [of] the lot on which it stands.”46 (Citation omitted)
We find the doctrines enunciated in Amagan squarely applicable to the instant petition for reasons
discussed hereunder.
Carmencita’s complaint for unlawful detainer is anchored upon the proposition that the respondents
have been in possession of the subject lot by mere tolerance of the owners. The respondents, on the
other hand, raise the defense of ownership of the subject lot and point to the pendency of Civil
Case No. CEB–30548, a petition for nullification of the partition of Lot No. 1907–A, in which
Carmencita and the Heirs of Vicente were impleaded as parties. Further, should Carmencita’s complaint
be granted, the respondents’ house, which has been standing in the subject lot for decades, would be
subject to demolition. The foregoing circumstances, thus, justify the exclusion of the instant petition
from the purview of the general rule.
All told, we find no reversible error committed by the CA in dismissing Carmencita’s complaint for
unlawful detainer. As discussed above, the jurisdictional requirement of possession by mere tolerance of
the owners had not been amply alleged and proven. Moreover, circumstances exist which justify the
abatement of the ejectment proceedings. Carmencita can ventilate her ownership claims in an action
more suited for the purpose. The respondents, on other hand, need not be exposed to the risk of having
their house demolished pending the resolution of their petition for nullification of the partition of Lot No.
1907–A, where ownership over the subject lot is likewise presented as an issue.
IN VIEW OF THE FOREGOING, the instant petition is DENIED. The Decision rendered on March 19,
2009 and Resolution issued on May 5, 2009 by the Court of Appeals in CA–G.R. SP No. 03489
are AFFIRMED.
SO ORDERED.
Sereno, C.J., (Chairperson), Leonardo–De Castro, Bersamin, and Villarama, Jr., JJ., concur.
Endnotes:
SECOND DIVISION
G.R. No. 169380 : November 26, 2012
FIORELLO R. JOSE, Petitioner, v. ROBERTO ALFUERTO, ERNESTO BACAY, ILUMINADO BACAY,

MANUEL BANTACULO, LETTY BARCELO, JING BERMEJO, MILNA BERMEJO, PABLO BERMEJO,
JHONNY BORJA, BERNADETTE BUENAFE, ALFREDO CALAGOS, ROSAURO CALAGOS, ALEX
CHACON, AIDA CONSULTA, CARMEN CORPUZ, RODOLFO DE VERA, ANA DELA ROSA, RUDY
DING, JOSE ESCASINAS, GORGONIO ESPADERO, DEMETRIO ESTRERA, ROGELIO ESTRERA,
EDUARDO EVARDONE, ANTONIO GABALE, ARSENIA GARING, NARCING GUARDA, NILA
LEBATO, ANDRADE LIGAYA, HELEN LOPEZ, RAMON MACAIRAN, DOMINGO NOLASCO, JR.,
FLORANTE NOLASCO, REGINA OPERARIO, CARDING ORCULLO, FELICISIMO PACATE,
CONRADO P AMINDALAN, JUN PARIL, RENE SANTOS, DOMINADOR SELVELYEJO, VILLAR,
JOHN DOE, JANE DOE and Unknown Occupants of Olivares Compound, Phase II, Barangay San
Dionisio, Paraque City, Respondents.
DECISION
BRION, J.:
Before us is a petition for review on certiorari under Rule 45 of the Rules of Court assailing the
decision1 dated March 14, 2005 of the Court of Appeals in CA-G.R. SP No. 80166. The Court of Appeals
Ï‚rÎ½l l
decision reversed the decisions of the Regional Trial Court (RTC) of Paraque City, Branch 257, and of the
Metropolitan Trial Court (MeTC) of Paraque City, Branch 77, by dismissing petitioner Fiorello R. Joses
complaint for ejectment against Roberto Alfuerto, Ernesto Bacay, Iluminado Bacay, Manuel Bantaculo,
Letty Barcelo, Jing Bermejo, Milna Bermejo, Pablo Bermejo, Jhonny Borja, Bernadette Buenafe, Alfredo
Calagos, Rosauro Calagos, Alex Chacon, Aida Consulta, Carmen Corpuz, Rodolfo De Vera, Ana Dela
Rosa, Rudy Ding, Jose Escasinas, Gorgonio Espadero, Demetrio Estrera, Rogelio Estrera, Eduardo
Evardone, Antonio Gabale, Arsenia Garing, Narcing Guarda, Nila Lebato, Andrade Ligaya, Helen Lopez,
Ramon Macairan, Domingo Nolasco, Jr., Florante Nolasco, Regina Operario, Carding Orcullo, Felicisimo
Pacate, Conrado Pamindalan, Jun Paril, Rene Santos, Dominador Selvelyejo, Rosario Ubaldo, Sergio
Villar, John Doe, Jane Doe and Unknown Occupants of Olivares Compound, Phase II, Barangay San
Dionisio, Paraque City (respondents), on the ground that the petitioners cause of action was not for
unlawful detainer but for recovery of possession. The appellate court affirmed this decision in its
resolution of August 22, 2005.2 Ï‚rÎ½l l
The dispute involves a parcel of land registered in the name of Rodolfo Chua Sing under Transfer
Certificate of Title No. 52594,3 with an area of 1919 square meters, located in Barangay San Dionisio,
Ï‚rÎ½l l
Paraque City. Chua Sing purchased the land in 1991. On April 1, 1999, Chua Sing leased the property to
the petitioner. Their contract of lease was neither notarized nor registered with the Paraque City Registry
of Deeds.4 Ï‚rÎ½ll
The lease contract provided that: chanroble svirtual lawlib rary
That the term of this lease shall be FIVE (5) years and renewable for the same period upon mutual
agreement of the parties to commence upon the total eviction of any occupant or occupants. The
LESSOR hereby transfers all its rights and prerogative to evict said occupants in favor of the LESSEE
which shall be responsible for all expenses that may be incurred without reimbursement from the
LESSOR. It is understood however that the LESSOR is hereby waiving, in favor of the LESSEE any and
all damages that may be recovered from the occupants.5 (Underscore ours) Ï‚rÎ½ll
Significantly, the respondents already occupied the property even before the lease contract was
executed.
On April 28, 1999, soon after Chua Sing and the petitioner signed the lease contract, the petitioner
demanded in writing that the respondents vacate the property within 30 days and that they pay a
monthly rental of P1,000.00 until they fully vacate the property.6 Ï‚ rÎ½ll
The respondents refused to vacate and to pay rent. On October 20, 1999, the petitioner filed an
ejectment case against the respondents before Branch 77 of the Paraque City MeTC, docketed as Civil
Case No. 11344.7 Ï‚rÎ½ll
In this complaint, no mention was made of any proceedings before the barangay. Jose then brought the
dispute before the barangay for conciliation.8 The barangay issued a Certification to File Action on March
Ï‚ rÎ½ll
1, 2000.9 Jose was then able to file an amended complaint, incorporating the proceedings before the
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barangay before the summons and copies of the complaint were served upon the named defendants.10 Ï‚rÎ½l l
In the Amended Complaint11 dated March 17, 2000, the petitioner claimed that as lessee of the subject
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property, he had the right to eject the respondents who unlawfully occupy the land. He alleged that: cha nrob lesvi rtua llawlib ra ry
7. Defendants, having been fully aware of their unlawful occupancy of the subject lot, have defiantly
erected their houses thereat without benefit of any contract or law whatsoever, much less any building
permit as sanctioned by law, but by mere tolerance of its true, lawful and registered owner, plaintiffs
lessor.12
Ï‚ rÎ½ll
The petitioner also stated that despite his written demand, the respondents failed to vacate the property
without legal justification. He prayed that the court order the respondents; (1) to vacate the premises;
(2) to pay him not less than P41,000.00 a month from May 30,1999 until they vacate the premises; and
(3) to pay him attorneys fees of no less than P50,000.00, and the costs of suit.13 Ï‚rÎ½ll
In their Answer, the respondents likewise pointed out that they have been in possession of the land long
before Chua Sing acquired the property in 1991, and that the lease contract between the petitioner and
Chua Sing does not affect their right to possess the land. The respondents also presented a Deed of
Assignment,14 dated February 13, 2000, issued by David R. Dulfo in their favor. They argued that the
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MeTC had no jurisdiction over the case as the issue deals with ownership of the land, and sought the
dismissal of the complaint for lack of cause of action and for lack of jurisdiction. They also filed a
counterclaim for actual and moral damages for the filing of a baseless and malicious suit.
After the required position papers, affidavits and other pieces of evidence were submitted, the MeTC
resolved the case in the petitioners favor. In its decision15 of January 27, 2003, the MeTC held that the
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respondents had no right to possess the land and that their occupation was merely by the owners
tolerance. It further noted that the respondents could no longer raise the issue of ownership, as this
issue had already been settled: the respondents previously filed a case for the annulment/cancellation of
Chua Sings title before the RTC, Branch 260, of Paraque City, which ruled that the registered owners
title was genuine and valid. Moreover, the MeTC held that it is not divested of jurisdiction over the case
because of the respondents assertion of ownership of the property. On these premises, the MeTC
ordered the respondents to vacate the premises and to remove all structures introduced on the land; to
each pay P500.00 per month from the date of filing of this case until they vacate the premises; and to
pay Jose, jointly and severally, the costs of suit and P20,000.00 as attorneys fees.
On appeal before the RTC, the respondents raised the issue, among others, that no legal basis exists for
the petitioners claim that their occupation was by tolerance, "where the possession of the defendants
was illegal at the inception as alleged in the complaint, there can be no tolerance."16 Ï‚rÎ½ll
The RTC affirmed the MeTC decision of January 27, 2003. It issued its decision17 on October 8, 2003,
Ï‚rÎ½l l
reiterating the MeTCs ruling that a case for ejectment was proper. The petitioner, as lessee, had the
right to file the ejectment complaint; the respondents occupied the land by mere tolerance and their
possession became unlawful upon the petitioners demand to vacate on April 28, 1999. The RTC,
moreover, noted that the complaint for ejectment was filed on October 20, 1999, or within one year
after the unlawful deprivation took place. It cited Pangilinan, et al. v. Hon. Aguilar, etc., et al.18 and Yu Ï‚rÎ½ ll
v. Lara, et al.19 to support its ruling that a case for unlawful detainer was appropriate.
Ï‚rÎ½ ll
On March 14, 2005, the Court of Appeals reversed the RTC and MeTC decisions.20 It ruled that the Ï‚rÎ½ ll
respondents possession of the land was not by the petitioner or his lessors tolerance. It defined
tolerance not merely as the silence or inaction of a lawful possessor when another occupies his land;
tolerance entailed permission from the owner by reason of familiarity or neighborliness. The petitioner,
however, alleged that the respondents unlawfully entered the property; thus, tolerance (or authorized
entry into the property) was not alleged and there could be no case for unlawful detainer. The
respondents allegation that they had been in possession of the land before the petitioners lessor had
acquired it in 1991 supports this finding. Having been in possession of the land for more than a year, the
respondents should not be evicted through an ejectment case.
The Court of Appeals emphasized that ejectment cases are summary proceedings where the only issue
to be resolved is who has a better right to the physical possession of a property. The petitioners claim,
on the other hand, is based on an accion publiciana: he asserts his right as a possessor by virtue of a
contract of lease he contracted after the respondents had occupied the land. The dispositive part of the
decision reads: c hanro blesvi rt uallawl ibra ry
WHEREFORE, the instant petition is GRANTED. The decision dated October 8, 2003 of the RTC, Branch
257, Paraque City, in Civil Case No. 03-0127, is REVERSED and SET ASIDE and the amended complaint
for ejectment is DISMISSED.21 Ï‚rÎ½l l
The petitioner filed a motion for reconsideration,22 which the Court of Appeals denied in its Ï‚rÎ½ll
resolution23 of August 22, 2005. In the present appeal, the petitioner raises before us the following
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issues:
WHETHER OR NOT THE COURT OF APPEALS ERRED IN HOLDING THAT THE CAUSE OF ACTION OF THE
SUBJECT COMPLAINT IS NOT FOR UNLAWFUL DETAINER BUT FOR RECOVERY OF POSSESSION AND
THEREFORE DISMISSIBLE
II
WHETHER OR NOT THE COURT OF APPEALS ERRED IN DECIDING THE CASE BASED ON RESPONDENTS
MATERIAL CHANGE OF THEORY WHICH IS COMPLETELY INCONSISTENT WITH THEIR DEFENSES
INVOKED BEFORE THE MUNICIPAL TRIAL COURT
III
WHETHER OR NOT THIS HONORABLE COURT MAY DECIDE THIS CASE ON THE MERITS TO AVOID
CIRCUITOUS PROCEDURE IN THE ADMINISTRATION OF JUSTICE.24 Ï‚rÎ½ ll
The Courts Ruling
We find the petition unmeritorious.
Unlawful detainer is not the proper remedy for the present case.
The key issue in this case is whether an action for unlawful detainer is the proper remedy.
Unlawful detainer is a summary action for the recovery of possession of real property. This action may
be filed by a lessor, vendor, vendee, or other person against whom the possession of any land or
building is unlawfully withheld after the expiration or termination of the right to hold possession by
virtue of any contract, express or implied. In unlawful detainer, the possession of the defendant was
originally legal, as his possession was permitted by the plaintiff on account of an express or implied
contract between them. However, the defendants possession became illegal when the plaintiff demanded
that the defendant vacate the subject property due to the expiration or termination of the right to
possess under the contract, and the defendant refused to heed such demand. A case for unlawful
detainer must be instituted one year from the unlawful withholding of possession.25 Ï‚rÎ½l l
The allegations in the complaint determine both the nature of the action and the jurisdiction of the court.
The complaint must specifically allege the facts constituting unlawful detainer. In the absence of these
allegations of facts, an action for unlawful detainer is not the proper remedy and the municipal trial court
or the MeTC does not have jurisdiction over the case.26 Ï‚ rÎ½ll
In his amended complaint, the petitioner presents the following allegations in support of his unlawful
detainer complaint: cha nrob lesvi rtua llawlib ra ry
3. On April 1, 1999, plaintiff leased from lessor, Mr. Rudy Chuasing, that parcel of lot owned and
registered in the lessors name, covering the area occupied by the defendants.
xxxx
6. Plaintiffs lessor had acquired the subject property as early as 1991 through sale, thereafter the
aforesaid Transfer Certificate of Title was subsequently registered under his name.
7. Defendants, having been fully aware of their unlawful occupancy of the subject lot, have defiantly
erected their houses thereat without benefit of any contract or law whatsoever, much less any building
permit as sanctioned by law, but by mere tolerance of its true, lawful and registered owner, plaintiffs
lessor.
8. By reason of defendants continued unlawful occupancy of the subject premises, plaintiff referred the
matter to his lawyer who immediately sent a formal demand upon each of the defendants to vacate the
premises. Copies of the demand letter dated 28 April 1999 are xxx hereto attached as annexes "C" to
"QQ."
9. Despite notice, however, defendants failed and refused and continues to fail and refuse to vacate the
premises without valid or legal justification.27 (emphasis ours)
Ï‚ rÎ½ll
The petitioners allegations in the amended complaint run counter to the requirements for unlawful
detainer. In an unlawful detainer action, the possession of the defendant was originally legal and his
possession was permitted by the owner through an express or implied contract.
In this case, paragraph 7 makes it clear that the respondents occupancy was unlawful from the start and
was bereft of contractual or legal basis. In an unlawful detainer case, the defendants possession
becomes illegal only upon the plaintiffs demand for the defendant to vacate the property and the
defendants subsequent refusal. In the present case, paragraph 8 characterizes the defendants
occupancy as unlawful even before the formal demand letters were written by the petitioners counsel.
Under these allegations, the unlawful withholding of possession should not be based on the date the
demand letters were sent, as the alleged unlawful act had taken place at an earlier unspecified date.
The petitioner nevertheless insists that he properly alleged that the respondents occupied the premises
by mere tolerance of the owner. No allegation in the complaint nor any supporting evidence on record,
however, shows when the respondents entered the property or who had granted them permission to
enter. Without these allegations and evidence, the bare claim regarding "tolerance" cannot be upheld.
In Sarona, et al. v. Villegas, et al.,28 the Court cited Prof. Arturo M. Tolentinos definition and
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characterizes "tolerance" in the following manner: chan rob lesvi rtua llawlib ra ry
Professor Arturo M. Tolentino states that acts merely tolerated are "those which by reason of
neighborliness or familiarity, the owner of property allows his neighbor or another person to do on the
property; they are generally those particular services or benefits which ones property can give to
another without material injury or prejudice to the owner, who permits them out of friendship or
courtesy." He adds that: "they are acts of little disturbances which a person, in the interest of
neighborliness or friendly relations, permits others to do on his property, such as passing over the land,
tying a horse therein, or getting some water from a well." And, Tolentino continues, even though "this is
continued for a long time, no right will be acquired by prescription." Further expounding on the concept,
Tolentino writes: "There is tacit consent of the possessor to the acts which are merely tolerated. Thus,
not every case of knowledge and silence on the part of the possessor can be considered mere tolerance.
By virtue of tolerance that is considered as an authorization, permission or license, acts of possession
are realized or performed. The question reduces itself to the existence or non-existence of the
permission. [citations omitted; italics supplied]
The Court has consistently adopted this position: tolerance or permission must have been present at the
beginning of possession; if the possession was unlawful from the start, an action for unlawful detainer
would not be the proper remedy and should be dismissed.29 Ï‚ rÎ½ll
It is not the first time that this Court adjudged contradictory statements in a complaint for unlawful
detainer as a basis for dismissal. In Unida v. Heirs of Urban,30 the claim that the defendants possession Ï‚rÎ½ll
was merely tolerated was contradicted by the complainants allegation that the entry to the subject
property was unlawful from the very beginning. The Court then ruled that the unlawful detainer action
should fail.
The contradictory statements in the complaint are further deemed suspicious when a complaint is silent
regarding the factual circumstances surrounding the alleged tolerance. In Ten Forty Realty Corporation
v. Cruz,31 the complaint simply stated that: "(1) defendant immediately occupied the subject property
Ï‚rÎ½ll
after its sale to her, an action merely tolerated by the plaintiff; and (2) the respondents allegedly illegal
occupation of the premises was by mere tolerance." The Court expressed its qualms over these
averments of fact as they did not contain anything substantiating the claim that the plaintiff tolerated or
permitted the occupation of the property by the defendant: chanro blesvi rt uallawl ibra ry
These allegations contradict, rather than support, plaintiffs theory that its cause of action is for unlawful
detainer. First, these arguments advance the view that defendants occupation of the property was
unlawful at its inception. Second, they counter the essential requirement in unlawful detainer cases that
plaintiffs supposed act of sufferance or tolerance must be present right from the start of a possession
that is later sought to be recovered.
As the bare allegation of plaintiffs tolerance of defendants occupation of the premises has not been
proven, the possession should be deemed illegal from the beginning. Thus, the CA correctly ruled that
the ejectment case should have been for forcible entry an action that had already prescribed, however,
when the Complaint was filed on May 12, 1999. The prescriptive period of one year for forcible entry
cases is reckoned from the date of defendants actual entry into the land, which in this case was on April
24, 1998.32 Ï‚rÎ½l l
Similarly, in Go, Jr. v. Court of Appeals,33 the Court considered the owners lack of knowledge of the
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defendants entry of the land to be inconsistent with the allegation that there had been tolerance.
In Padre v. Malabanan,34 the Court not only required allegations regarding the grant of permission, but
Ï‚rÎ½l l
proof as well. It noted that the plaintiffs alleged the existence of tolerance, but ordered the dismissal of
the unlawful detainer case because the evidence was "totally wanting as to when and under what
circumstances xxx the alleged tolerance came about." It stated that: chanroblesvi rtua llawli bra ry
Judging from the respondents Answer, the petitioners were never at all in physical possession of the
premises from the time he started occupying it and continuously up to the present. For sure, the
petitioners merely derived their alleged prior physical possession only on the basis of their Transfer
Certificate of Title (TCT), arguing that the issuance of said title presupposes their having been in
possession of the property at one time or another.35 Ï‚rÎ½l l
Thus, the complainants in unlawful detainer cases cannot simply anchor their claims on the validity of
the owners title. Possession de facto must also be proved.
As early as the 1960s, in Sarona, et al. v. Villegas, et al.,36 we already ruled that a complaint which fails
Ï‚rÎ½l l
to positively aver any overt act on the plaintiffs part indicative of permission to occupy the land, or any
showing of such fact during the trial is fatal for a case for unlawful detainer. As the Court then explained,
a case for unlawful detainer alleging tolerance must definitely establish its existence from the start of
possession; otherwise, a case for forcible entry can mask itself as an action for unlawful detainer and
permit it to be filed beyond the required one-year prescription period from the time of forcible entry: chan roble svirtuallaw lib rary
A close assessment of the law and the concept of the word "tolerance" confirms our view heretofore
expressed that such tolerance must be present right from the start of possession sought to be
recovered, to categorize a cause of action as one of unlawful detainer not of forcible entry. Indeed, to
hold otherwise would espouse a dangerous doctrine. And for two reasons: First. Forcible entry into the
land is an open challenge to the right of the possessor. Violation of that right authorizes the speedy
redress in the inferior court provided for in the rules. If one year from the forcible entry is allowed to
lapse before suit is filed, then the remedy ceases to be speedy; and the possessor is deemed to have
waived his right to seek relief in the inferior court. Second. If a forcible entry action in the inferior court
is allowed after the lapse of a number of years, then the result may well be that no action of forcible
entry can really prescribe. No matter how long such defendant is in physical possession, plaintiff will
merely make a demand, bring suit in the inferior court upon plea of tolerance to prevent prescription to
set in and summarily throw him out of the land. Such a conclusion is unreasonable. Especially if we bear
in mind the postulates that proceedings of forcible entry and unlawful detainer are summary in nature,
and that the one year time-bar to the suit is but in pursuance of the summary nature of the
action.37 (italics supplied)
Ï‚rÎ½ll
Given these rulings, it would be equally dangerous for us to deprive the respondents of possession over
a property that they have held for at least eight years before the case was filed in 1999, by means of a
summary proceeding, simply because the petitioner used the word "tolerance" without sufficient
allegations or evidence to support it.
There was no change in the

respondents theory during
the appeal that would amount
to a deprivation of the petitioners
right to due process.
The petitioner alleges that the respondents had never questioned before the MeTC the fact that their
occupancy was by tolerance. The only issues the respondents allegedly raised were: (1) the title to the
property is spurious; (2) the petitioners predecessor is not the true owner of the property in question;
(3) the petitioners lease contract was not legally enforceable; (4) the petitioner was not the real party-
in-interest; (5) the petitioners predecessor never had prior physical possession of the property; and (6)
the respondents right of possession was based on the "Deed of Assignment of Real Property" executed
by Dulfo. The respondents raised the issue of tolerance merely on appeal before the RTC. They argue
that this constitutes a change of theory, which is disallowed on appeal.38Ï‚rÎ½l l
It is a settled rule that a party cannot change his theory of the case or his cause of action on appeal.
Points of law, theories, issues and arguments not brought to the attention of the lower court will not be
considered by the reviewing court. The defenses not pleaded in the answer cannot, on appeal, change
fundamentally the nature of the issue in the case. To do so would be unfair to the adverse party, who
had no opportunity to present evidence in connection with the new theory; this would offend the basic
rules of due process and fair play.39 Ï‚rÎ½l l
While this Court has frowned upon changes of theory on appeal, this rule is not applicable to the present
case. The Court of Appeals dismissed the action due the petitioners failure to allege and prove the
essential requirements of an unlawful detainer case. In Serdoncillo v. Spouses Benolirao,40 we held Ï‚ rÎ½ll
that:chanroble svirtual lawlib rary
In this regard, to give the court jurisdiction to effect the ejectment of an occupant or deforciant on the
land, it is necessary that the complaint must sufficiently show such a statement of facts as to bring the
party clearly within the class of cases for which the statutes provide a remedy, without resort to parol
testimony, as these proceedings are summary in nature. In short, the jurisdictional facts must appear on
the face of the complaint. When the complaint fails to aver facts constitutive of forcible entry or unlawful
detainer, as where it does not state how entry was effected or how and when dispossession started, the
remedy should either be an accion publiciana or accion reivindicatoria. (emphasis ours; italics supplied)
Regardless of the defenses raised by the respondents, the petitioner was required to properly allege and
prove when the respondents entered the property and that it was the petitioner or his predecessors, not
any other persons, who granted the respondents permission to enter and occupy the property.
Furthermore, it was not the respondents defense that proved fatal to the case but the petitioners
contradictory statements in his amended complaint which he even reiterated in his other pleadings.41 Ï‚rÎ½l l
Although the respondents did not use the word "tolerance" before the MeTC, they have always
questioned the existence of the petitioners tolerance. In their Answer to Amended Complaint, the
respondents negated the possibility of their possession of the property under the petitioner and his
lessors tolerance when the respondents alleged to have occupied the premises even before the lessor
acquired the property in 1991. They said as much in their Position Paper: chan roble svirtuallaw lib rary
RODOLFO CHUA SING never had actual physical possession of his supposed property, as when he
became an owner of the 1,919 square meters property described in TCT No. 52594, the property had
already been occupied by herein DEFENDANTS since late 1970. Therefore, DEFENDANTS were already
occupants/possessors of the property from where they are being ejected by FIORELLO JOSE, a supposed
LESSEE of a property with a dubious title. The main thing to be proven in the case at bar is prior
possession and that the same was lost through force, intimidation, threat, strategy and stealth, so that
it behooves the court to restore possession regardless of title or even ownership xxx. In the case at bar,
neither RODOLFO CHUA SING nor herein PLAINTIFF ever had any actual physical possession of the
property where DEFENDANTS have already possessed for more than ten (10) years in 1991 when
RODOLFO CHUA SING got his fake title to the property.42 (citation omitted)
Ï‚rÎ½ ll
In addition, whether or not it was credible, the respondents claim that their possession was based on the
Deed of Assignment executed by Dulfo, in behalf of the estate of Domingo de Ocampo, shows that they
considered the petitioner and his lessor as strangers to any of their transactions on the property, and
could not have stayed there upon the latters permission.
We note that even after the issue of tolerance had been directly raised by the respondents before the
RTC, the petitioner still failed to address it before the RTC, the Court of Appeals, and the Supreme
Court.43 At best, he belatedly states for the first time in his Memorandum44 before this Court that his
Ï‚rÎ½ll Ï‚rÎ½ll
lessor had tolerated the respondents occupancy of the lot, without addressing the respondents allegation
that they had occupied the lot in 1970, before the petitioners lessor became the owner of the property in
1991, and without providing any other details. His pleadings continued to insist on the existence of
tolerance without providing the factual basis for this conclusion. Thus, we cannot declare that the Court
of Appeals had in anyway deprived the petitioner of due process or had unfairly treated him when it
resolved the case based on the issue of tolerance.
The Court cannot treat an ejectment

case as an accion publiciana or
accion reivindicatoria.
The petitioner argues that assuming this case should have been filed as an accion publiciana or accion
reivindicatoria, this Court should still resolve the case, as requiring him to properly refile the case serves
no other ends than to comply with technicalities.45 Ï‚rÎ½l l
The Court cannot simply take the evidence presented before the MeTC in an ejectment case and decide
it as an accion publiciana or accion reivindicatoria. These cases are not interchangeable and their
differences constitute far more than mere technicalities.
In Regis, Jr. v. Court of Appeals,46 we ruled that an action for forcible entry cannot be treated as an
Ï‚rÎ½ ll
accion publiciana and summarized the reasons therefor. We find these same reasons also applicable to
an unlawful detainer case which bears the same relevant characteristics: chanro blesvi rtua llawli bra ry
On the issue of whether or not an action for forcible entry can be treated as accion publiciana, we rule in
the negative. Forcible entry is distinct from accion publiciana. First, forcible entry should be filed within
one year from the unlawful dispossession of the real property, while accion publiciana is filed a year
after the unlawful dispossession of the real property. Second, forcible entry is concerned with the issue
of the right to the physical possession of the real property; in accion publiciana, what is subject of
litigation is the better right to possession over the real property. Third, an action for forcible entry is
filed in the municipal trial court and is a summary action, while accion publiciana is a plenary action in
the RTC. [italics supplied]
The cause of action in ejectment is different from that in an accion publiciana or accion reivindicatoria.
An ejectment suit is brought before the proper inferior court to recover physical possession only or
possession de facto, not possession de jure. Unlawful detainer and forcible entry cases are not processes
to determine actual title to property. Any ruling by the MeTC on the issue of ownership is made only to
resolve the issue of possession, and is therefore inconclusive.47 Because they only resolve issues of
Ï‚ rÎ½ll
possession de facto, ejectment actions are summary in nature, while accion publiciana (for the recovery
of possession) and accion reivindicatoria (for the recovery of ownership) are plenary actions.48 The Ï‚rÎ½ll
purpose of allowing actions for forcible entry and unlawful detainer to be decided in summary
proceedings is to provide for a peaceful, speedy and expeditious means of preventing an alleged illegal
possessor of property from unjustly taking and continuing his possession during the long period it would
take to properly resolve the issue of possession de jure or ownership, thereby ensuring the maintenance
of peace and order in the community; otherwise, the party illegally deprived of possession might take
the law in his hands and seize the property by force and violence.49 An ejectment case cannot be a Ï‚rÎ½l l
substitute for a full-blown trial for the purpose of determining rights of possession or ownership. Citing
Mediran v. Villanueva,50 the Court in Gonzaga v. Court of Appeals51 describes in detail how these two
Ï‚rÎ½ ll Ï‚rÎ½l l
remedies should be used: cha nrob lesvi rtua llawlib rary
In giving recognition to the action of forcible entry and detainer the purpose of the law is to protect the
person who in fact has actual possession; and in case of controverted right, it requires the parties to
preserve the status quo until one or the other of them sees fit to invoke the decision of a court of
competent jurisdiction upon the question of ownership. It is obviously just that the person who has first
acquired possession should remain in possession pending the decision; and the parties cannot be
permitted meanwhile to engage in a petty warfare over the possession of the property which is the
subject of dispute. To permit this would be highly dangerous to individual security and disturbing to
social order. Therefore, where a person supposes himself to be the owner of a piece of property and
desires to vindicate his ownership against the party actually in possession, it is incumbent upon him to
institute an action to this end in a court of competent jurisdiction; and he cannot be permitted, by
invading the property and excluding the actual possessor, to place upon the latter the burden of
instituting an action to try the property right. [italics supplied]
Thus, if we allow parties to file ejectment cases and later consider them as an accion publiciana or
accion reivindicatoria, we would encourage parties to simply file ejectment cases instead of plenary
actions. Courts would then decide in summary proceedings cases which the rules intend to be resolved
through full-blown trials. Because these "summary" proceedings will have to tackle complicated issues
requiring extensive proof, they would no longer be expeditious and would no longer serve the purpose
for which they were created. Indeed, we cannot see how the resulting congestion of cases, the hastily
and incorrectly decided cases, and the utter lack of system would assist the courts in protecting and
preserving property rights.Ï‚Î· Î±Î¿bl Îµ Î½Î¹rÏ…Î±ll Î±Ï‰l Î¹b rÎ± r
WHEREFORE, we DENY the petition, and AFFIRM the Court of Appeals' decision dated March 14, 2005
and resolution dated August 22, 2005 in CA-G.R. SP No. 80116. Ï‚rÎ±lÎ± Ï‰ lÎ¹brÎ±r
SO ORDERED.
Endnotes:
FIRST DIVISION
G.R. No. 196864, July 08, 2015
SPOUSES VICTOR P. DULNUAN AND JACQUELINE P. DULNUAN, Petitioners, v. METROPOLITAN

BANK & TRUST COMPANY, Respondent.
DECISION
PEREZ, J.:
This is a Petition for Review on Certiorari1 filed by petitioners Spouses Victor Dulnuan and Jacqueline
Dulnuan (Spouses Dulnuan) seeking to reverse and set aside the 14 January 2011 Decision2 of the Court
of Appeals and its 29 April 2011 Resolution3 in CA-G.R. SP No. 108628. The assailed decision and
resolution reversed the 3 December 2008 Order of the Regional Trial Court (RTC) of La Trinidad,
Benguet, which, in turn, enjoined the extrajudicial foreclosure sale of a parcel of land covered by
Transfer Certificate of Title (TCT) No. T-46390 registered under the name of the Spouses Dulnuan. The
dispositive portion of the Court of Appeals Decision reads: Lawlib raryofCR Alaw
ChanRobles Vi rtualaw lib rary
WHEREFORE, the petition is GRANTED. The Order dated December 3, 2008 of the Regional Trial
Court, Branch 63 of La Trinidad, Benguet in Civil Case No. 08-CV-2470 which granted [the Spouses
Dulnuan’s] application for writ of preliminary injunction and the RTC’s Order dated March 24, 2009,
which denied [Metropolitan Bank and Trust Company’s] motion for reconsideration, are
hereby REVERSED and SET ASIDE.4
The Facts
On several occasions, the Spouses Dulnuan obtained loans from Metropolitan Bank and Trust Company
(Metrobank), the total of which reached the sum P3,200,000.00, as evidenced by promissory notes
executed by them.5 redarclaw
As a security for the loan obligations, the Spouses Dulnuan executed a Real Estate Mortgage (REM) over
a parcel of land covered by TCT No. 46390 registered under their names and located at La Trinidad,
Benguet with an area of 392 square meters (subject property).6 reda rclaw
Subsequently, however, the Spouses Dulnuan incurred default and therefore the loan obligations
became due and demandable.
On 22 April 2008, Metrobank filed an application for extra-judicial foreclosure proceedings over the
subject property before the RTC of La Trinidad, Benguet. After due notice and publication, the
mortgaged property was sold at a public auction where Metrobank was declared as the highest bidder
after tendering the bid of P6,189,000.00, as shown in the Certificate of Sale.7 redarclaw
In order to validly effect the foreclosure, a copy of the said Notice of Public Auction Sale was posted on
the bulletin boards of Barangay Betag, Municipal Hall of La Trinidad, Benguet, Provincial Capitol
Benguet.8 Before the expiration of the one-year redemption period allowed by law, Metrobank filed a
Petition for the Issuance of Writ of Possession docketed as LRC Case No. 08-60 which was raffled before
Branch 63 of the RTC.9 redarclaw
On 30 September 2008, the Spouses Dulnuan instituted a Complaint seeking the issuance of a
temporary restraining order and preliminary and final injunction and, for the annulment of extra-judicial
foreclosure and real estate mortgage before the RTC of La Trinidad, Benguet, Branch 10, which case was
docketed as Civil Case No. 08-CV-2470. The complaint alleged that the mortgage constituted over the
property is null and void because at the time the agreement was entered on 18 October 2000, no
contract of loan was yet executed by the parties. It was only on 19 December 2003 that they received
the proceeds of the loan, as evidenced by the Promissory Note. In other words, there is no principal
obligation upon which the ancillary contract of mortgage was attached to.
Upon motion of the Spouses Dulnuan, Civil Case No. 08-CV-2470 was consolidated before Branch 63 of
the RTC wherein the LRC Case No. 08-60 was pending. After summary hearing, the court a quo in an
Order dated 5 November 2008, issued a Temporary Restraining Order and set the hearing for the
issuance of Writ of Preliminary Injunction. Both parties proceeded to adduce evidence for and against
the issuance of the writ of preliminary injunction.
Finding an imperative need to protect and preserve the rights of the Spouses Dulnuan during the
pendency of the principal action, the RTC issued an Order dated 3 December 2008, enjoining Metrobank
from taking possession of the subject property until the final disposition of the annulment of mortgage
case. The decretal portion of the Order reads: Lawli bra ryofCRAlaw
WHEREFORE, premises considered, and finding compelling reason at this point in time to grant for the
application for preliminary injunction, the same is hereby granted upon posting of preliminary injunction
bond in the amount of P200,000.00 duly approved by the court, let the writ of preliminary injunction be
issued to take effect pendente lite, commanding the [Metrobank] including its agents and
representatives, as well as persons acting under its control, supervision, instruction, order or
authorization, to desist from entering, occupying, possessing, using, or from performing any act of
possession and occupation of the aforedescribed property, as well as from causing the cancellation of the
existing transfer certificate of title of the [Spouses Dulnuan] and from securing in lieu thereof a transfer
certificate of title over the aforedescribed property in its favor.10
In an Order dated 24 March 2009, the RTC refused to reconsider its earlier Order.
Arguing that the RTC gravely abused its discretion in enjoining its taking of possession over the subject
realties, Metrobank filed a Petition for Certiorari before the Court of Appeals.
On 14 January 2011, the Court of Appeals rendered a Decision reversing the questioned Orders and
declared that the issuance of the writ of preliminary injunction is unjustified under the
circumstances. The appellate court made a pronouncement that as the highest bidder at the auction
sale, Metrobank is entitled to occupy the subject property, and, any question regarding the validity of
the mortgage or the foreclosure thereof shall not preclude the purchaser from taking possession. The
disquisition the Court of Appeals reads: Lawlib ra ryofCRAlaw
WHEREFORE, the petition is GRANTED. The Order dated December 3, 2008 of the Regional Trial
Court, Branch 63 of La Trininidad, Benguet in Civil Case 08-CV-2470 which granted respondents’
application for writ of preliminary injunction and the RTC’s Order dated March 24, 2009 which denied
[Metrobank’s] motion for reconsideration are hereby RESERVED and SET ASIDE.11
For lack of merit, the Spouses Dulnuan’s Motion for Reconsideration was denied by the Court of Appeals
in a Resolution dated 29 April 2011.
The Spouses Dulnuan is now before this Court via this instant Petition for Review on Certiorari seeking
the reversal of the Court of Appeals Decision and Resolution on the following grounds: Lawlib raryofCR Alaw
I.
THE HONORABLE COURT OF APPEALS COMMITTED GRAVE AND SERIOUS ERROR IN OVERLOOKING THE
UNDISPUTED FACT THAT THE PETITION FOR WRIT OF POSSESSION WAS FILED DURING THE
REDEMPTION PERIOD AND NO BOND HAD BEEN POSTED BY RESPONDENT TO WARRANT ITS
ISSUANCE; AND
II.
THE HONORABLE COURT OF APPEALS COMMITTED A GRAVE AND SERIOUS ERROR IN OVERLOOKING
THE FACT THAT CIVIL CASE NO. 08-CV-2470 AND LRC CASE NO. 08-60 WERE CONSOLIDATED.12
The Court’s Ruling
The Court is urged to resolve the issue of whether or not the Court of Appeals erred in dissolving the
writ of preliminary injunction issued against Metrobank. The writ of preliminary injunction enjoined
Metrobank from entering, occupying, possessing, using, or performing any act of possession and
occupation over the subject property. Without going into the merits of this case, the Court will confine
itself in the determination of the propriety of the preliminary injunction, such being a preservative
remedy for the protection of substantive rights or interests, is not a cause of action in itself but merely a
provisional remedy, an adjunct to a main suit.13 redarclaw
A writ of preliminary injunction and a TRO are injunctive reliefs and preservative remedies for the
protection of substantive rights and interests. An application for the issuance of a writ of preliminary
injunction and/or TRO may be granted upon the filing of a verified application showing facts entitling the
applicant to the relief demanded.14 The purpose of injunction is to prevent threatened or continuous
irremediable injury to some of the parties before their claims can be thoroughly studied and
educated. Its sole aim is to preserve the status quo until the merits of the case is heard fully.15 reda rclaw
The status quo is the last actual, peaceable and uncontested situation which precedes a
controversy.16 The status quo should be that existing at the time of the filing of the case. A preliminary
injunction should not establish new relations between the parties, but merely maintain or re-establish
the pre-existing relationship between them.
Pertinent are the provisions of Section 3, Rule 58 of the Rules of Court, enumerates the grounds for the
issuance of a writ of preliminary injunction, to wit: Lawlib raryofCRAlaw
SEC. 3. Grounds for issuance of preliminary injunction. — A preliminary injunction may be granted when
it is established: Lawli bra ryofCRAlaw
(a) That the applicant is entitled to the relief demanded, and the whole or part of such relief consists in
restraining the commission or continuance of the act or acts complained of, or in requiring the
performance of an act or acts, either for a limited period or perpetually;
(b) That the commission, continuance or non-performance of the act or acts complained of during the
litigation would probably work injustice to the applicant; or
(c) That a party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring
or suffering to be done, some act or acts probably in violation of the rights of the applicant respecting
the subject of the action or proceeding, and tending to render the judgment ineffectual.
Thus, to be entitled to the injunctive writ, petitioners must show that (1) there exists a clear and
unmistakable right to be protected; (2) this right is directly threatened by an act sought to be enjoined;
(3) the invasion of the right is material and substantial; and (4) there is an urgent and paramount
necessity for the writ to prevent serious and irreparable damage.17 redarclaw
As such, a writ of preliminary injunction may be issued only upon clear showing of an actual existing
right to be protected during the pendency of the principal action. The requisites of a valid injunction are
the existence of the right and its actual or threatened violations. Thus, to be entitled to an injunctive
writ, the right to be protected and the violation against the right must be shown.18 redarc law
Extant from the pleadings of the parties is the failure of the Spouses Dulnuan to establish the essential
requisites for the issuance of the writ of preliminary injunction.
First. The court a quo cannot enjoin Metrobank, at the instance of the Spouses Dulnuan, from taking
possession of the subject property simply because the period of redemption has not yet expired. As the
highest bidder in the foreclosure sale upon whom a certificate sale was issued by the sheriff, Metrobank
has the right to be placed in possession of the subject property even during the redemption period
provided that the necessary amount of bond is posted. As elucidated by the Court in Spouses Tolosa v.
United Coconut Planters Bank:19 redarclaw
A writ of possession is simply an order by which the sheriff is commanded by the court to place a person
in possession of a real or personal property. Under Section 7 of Act No. 3135, as amended, a writ of
possession may be issued in favor of a purchaser in a foreclosure sale either (1) within the one-year
redemption period, upon the filing of a bond; or (2) after the lapse of the redemption period, without
need of a bond. Within the one-year redemption period, the purchaser may apply for a writ of
possession by filing a petition in the form of an ex parte motion under oath, in the registration or
cadastral proceedings of the registered property. The law requires only that the proper motion be filed,
the bond approved and no third person is involved. After the consolidation of title in the buyer’s name
for failure of the mortgagor to redeem the property, entitlement to the writ of possession becomes a
matter of right. In the latter case, the right of possession becomes absolute because the basis thereof is
the purchaser’s ownership of the property.
It is an established rule that the purchaser in an extra-judicial foreclosure sale is entitled to the
possession of the property and can demand that he be placed in possession of the same either during
(with bond) or after the expiration (without bond) of the redemption period therefor.20 The non-
expiration of the period of redemption shall not preclude the purchaser from taking possession of the
property provided that the necessary is posted. The buyer can in fact demand possession of the land
even during the redemption period except that he has to post a bond in accordance with Section 721 of
Act No. 3135, as amended. In the case at bar, Metrobank manifested its willingness to post a bond but
its application for the issuance of the writ of possession was unjustly denied by the RTC.
Second. The pendency of the action assailing the validity of the mortgage should not bar the issuance of
the writ of possession. A pending action for annulment of mortgage or foreclosure does not stay the
issuance of a writ of possession.22 Regardless of the pendency of such suit, the purchaser remains
entitled to a writ of possession, without prejudice, of course, to the eventual outcome of the pending
annulment case. Emphatic to the point is the ruling of the Court in Spouses Fortaleza v. Spouses
Lapitan:23 redarclaw
Lastly, we agree with the CA that any question regarding the regularity and validity of the mortgage or
its foreclosure cannot be raised as a justification for opposing the petition for the issuance of the writ of
possession. The said issues may be raised and determined only after the issuance of the writ of
possession. Indeed, “[t]he judge with whom an application for writ of possession is filed need not look
into the validity of the mortgage or the manner of its foreclosure.” The writ issues as a matter of
course. “The rationale for the rule is to allow the purchaser to have possession of the foreclosed
property without delay, such possession being founded on the right of ownership.”
Without prejudice to the final disposition of the annulment case, Metrobank is entitled to the writ of
possession and cannot be barred from enjoying the property, possession being one of the essential
attributes of ownership.
Third. While the grant or denial of the preliminary injunction rests on the sound discretion of the court
taking cognizance of the case, and judicial discretion of the court in injunctive matters should not be
interfered with,24 in the absence of clear and legal right, however, the issuance of a writ of injunction
constitutes a grave abuse of discretion.25 redarclaw
Grave abuse of discretion in the issuance of writs of preliminary injunction implies a capricious and
whimsical exercise of judgment equivalent to lack of jurisdiction; or the exercise of power in an arbitrary
despotic manner by reason of passion, prejudice or personal aversion amounting to an evasion of a
positive duty or to a virtual refusal to perform a duty enjoined or to act at all in contemplation of
law.26 The burden is thus on petitioner to show in his application that there is meritorious ground for the
issuance of TRO in his favor.27 When the complainant’s right is doubtful or disputed, he does not have a
clear legal right and, therefore, the issuance of injunctive writ is improper.28 Herein, the Spouses
Dulnuan failed to show that they have clear and unmistakable right to the issuance of writ in question.
In fine, we find that the Court of Appeals committed no reversible error in reversing the injunction
issued by the RTC. The record shows that Metrobank caused the extrajudicial foreclosure of the
mortgage on the subject realties as a consequence of the Spouses Dulnuan’s default on their mortgage
obligation. As the highest bidder at the foreclosure sale, Metrobank can exercise its right of possession
over the subject realty, and the issuance of writ of preliminary injunction, enjoining the bank from
occupying the property in question, is erroneous.
WHEREFORE, premises considered, the instant petition is hereby DENIED. The assailed Decision dated
14 January 2011 and Resolution dated 29 April 2011 of the Court of Appeals in CA-G.R. SP No. 108628
are hereby AFFIRMED.
SO ORDERED. cralawlawlibra ry
Sereno, C.J., (Chairperson), Leonardo De-Castro, Bersamin, and Perlas-Bernabe, JJ., concur.
Endnotes:
SECOND DIVISION
[G.R. NO. 124642. February 23, 2004]
ALFREDO CHING and ENCARNACION CHING, Petitioners, v. THE HON. COURT OF APPEALS and
ALLIED BANKING CORPORATION, Respondents.
DECISION
CALLEJO, SR., J.:
This Petition for Review , under Rule 45 of the Revised Rules of Court, assails the Decision1 of the
Court of Appeals (CA) dated November 27, 1995 in CA-G.R. SP No. 33585, as well as the
Resolution2 on April 2, 1996 denying the petitioners motion for reconsideration. The impugned
decision granted the private respondents Petition for Certiorari and set aside the Orders of the trial
court dated December 15, 19933 and February 17, 19944 nullifying the attachment of 100,000 shares
of stocks of the Citycorp Investment Philippines under the name of petitioner Alfredo Ching.
The following facts are undisputed:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
On September 26, 1978, the Philippine Blooming Mills Company, Inc. (PBMCI) obtained a loan
of P9,000,000.00 from the Allied Banking Corporation (ABC). By virtue of this loan, the PBMCI,
through its Executive Vice-President Alfredo Ching, executed a promissory note for the said amount
promising to pay on December 22, 1978 at an interest rate of 14% per annum.5 As added security for
the said loan, on September 28, 1978, Alfredo Ching, together with Emilio Taedo and Chung Kiat
Hua, executed a continuing guaranty with the ABC binding themselves to jointly and severally
guarantee the payment of all the PBMCI obligations owing the ABC to the extent
of P38,000,000.00.6 The loan was subsequently renewed on various dates, the last renewal having
been made on December 4, 1980.7 ςrνll
Earlier, on December 28, 1979, the ABC extended another loan to the PBMCI in the amount
of P13,000,000.00 payable in eighteen months at 16% interest per annum. As in the previous loan,
the PBMCI, through Alfredo Ching, executed a promissory note to evidence the loan maturing on
June 29, 1981.8 This was renewed once for a period of one month.9 ςrνll
The PBMCI defaulted in the payment of all its loans. Hence, on August 21, 1981, the ABC filed a
complaint for sum of money with prayer for a writof preliminary attachment against the PBMCI to
collect the P12,612,972.88 exclusive of interests, penalties and other bank charges. Impleaded as co-
defendants in the complaint were Alfredo Ching, Emilio Taedo and Chung Kiat Hua in their capacity
as sureties of the PBMCI.
The case was docketed as Civil Case No. 142729 in the Regional Trial Court of Manila, Branch
XVIII.10 In its application for a writ of preliminary attachment, the ABC averred that the defendants
are guilty of fraud in incurring the obligations upon which the present action is brought11 in that they
falsely represented themselves to be in a financial position to pay their obligation upon maturity
thereof.12 Its supporting affidavit stated, inter alia, that the [d]efendants have removed or disposed
of their properties, or [are] ABOUT to do so, with intent to defraud their creditors.13 ςrνll
On August 26, 1981, after an ex-parte hearing, the trial court issued an Order denying the ABCs
application for a writ of preliminary attachment. The trial court decreed that the grounds alleged in
the application and that of its supporting affidavit are all conclusions of fact and of law which do not
warrant the issuance of the writ prayed for.14 On motion for reconsideration, however, the trial
court, in an Order dated September 14, 1981, reconsidered its previous order and granted the ABCs
application for a writ of preliminary attachment on a bond of P12,700,000. The order, in relevant
part, stated:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
With respect to the second ground relied upon for the grant of the writ of preliminary attachment
ex-parte, which is the alleged disposal of properties by the defendants with intent to defraud
creditors as provided in Sec. 1(e) of Rule 57 of the Rules of Court, the affidavits can only barely
justify the issuance of said writ as against the defendant Alfredo Ching who has allegedly bound
himself jointly and severally to pay plaintiff the defendant corporations obligation to the plaintiff as
a surety thereof.
WHEREFORE, let a writ of preliminary attachment issue as against the defendant Alfredo Ching
requiring the sheriff of this Court to attach all the properties of said Alfredo Ching not
exceeding P12,612,972.82 in value, which are within the jurisdiction of this Court and not exempt
from execution upon, the filing by plaintiff of a bond duly approved by this Court in the sum of
Twelve Million Seven Hundred Thousand Pesos (P12,700,000.00) executed in favor of the defendant
Alfredo Ching to secure the payment by plaintiff to him of all the costs which may be adjudged in his
favor and all damages he may sustain by reason of the attachment if the court shall finally adjudge
that the plaintiff was not entitled thereto.
SO ORDERED.15 ςrνll
Upon the ABCs posting of the requisite bond, the trial court issued a writ of preliminary attachment.
Subsequently, summonses were served on the defendants,16 save Chung Kiat Hua who could not be
found.
Meanwhile, on April 1, 1982, the PBMCI and Alfredo Ching jointly filed a petition for suspension of
payments with the Securities and Exchange Commission (SEC), docketed as SEC Case No. 2250, at
the same time seeking the PBMCIs rehabilitation.17 ςrνll
On July 9, 1982, the SEC issued an Order placing the PBMCIs business, including its assets and
liabilities, under rehabilitation receivership, and ordered that all actions for claims listed in Schedule
A of the petition pending before any court or tribunal are hereby suspended in whatever stage the
same may be until further orders from the Commission.18 The ABC was among the PBMCIs creditors
named in the said schedule.
Subsequently, on January 31, 1983, the PBMCI and Alfredo Ching jointly filed a Motion to Dismiss
and/or motion to suspend the proceedings in Civil Case No. 142729 invoking the PBMCIs pending
application for suspension of payments (which Ching co-signed) and over which the SEC had already
assumed jurisdiction.19 On February 4, 1983, the ABC filed its Opposition thereto.20 ςrνll
In the meantime, on July 26, 1983, the deputy sheriff of the trial court levied on attachment the
100,000 common shares of Citycorp stocks in the name of Alfredo Ching.21 ςrνll
Thereafter, in an Order dated September 16, 1983, the trial court partially granted the
aforementioned motion by suspending the proceedings only with respect to the PBMCI. It denied
Chings motion to dismiss the complaint/or suspend the proceedings and pointed out that P.D. No.
1758 only concerns the activities of corporations, partnerships and associations and was never
intended to regulate and/or control activities of individuals.Thus, it directed the individual
defendants to file their answers.22 ςrνll
Instead of filing an answer, Ching filed on January 14, 1984 a Motion to Suspend Proceedings on the
same ground of the pendency of SEC Case No. 2250. This motion met the opposition from the
ABC.23 ςrνll
On January 20, 1984, Taedo filed his Answer with counterclaim and cross-claim.24 Ching eventually
filed his Answer on July 12, 1984.25 ςrνll
On October 25, 1984, long after submitting their answers, Ching filed an Omnibus Motion,26 again
praying for the dismissal of the complaint or suspension of the proceedings on the ground of the July
9, 1982 Injunctive Order issued in SEC Case No. 2250. He averred that as a surety of the PBMCI, he
must also necessarily benefit from the defenses of his principal. The ABC opposed Chings omnibus
motion.
Emilio Y. Taedo, thereafter, filed his own Omnibus Motion27 praying for the dismissal of the
complaint, arguing that the ABC had abandoned and waived its right to proceed against the
continuing guaranty by its act of resorting to preliminary attachment.
On December 17, 1986, the ABC filed a Motion to Reduce the amount of his preliminary attachment
bond from P12,700,000 to P6,350,000.28 Alfredo Ching opposed the motion,29 but on April 2, 1987,
the court issued an Order setting the incident for further hearing on May 28, 1987 at 8:30 a.m. for
the parties to adduce evidence on the actual value of the properties of Alfredo Ching levied on by
the sheriff.30 ςrνll
On March 2, 1988, the trial court issued an Order granting the motion of the ABC and rendered the
attachment bond of P6,350,000.31 ςrνll
On November 16, 1993, Encarnacion T. Ching, assisted by her husband Alfredo Ching, filed a Motion
to Set Aside the levy on attachment. She alleged inter alia that the 100,000 shares of stocks levied
on by the sheriff were acquired by her and her husband during their marriage out of conjugal funds
after the Citycorp Investment Philippines was established in 1974. Furthermore, the indebtedness
covered by the continuing guaranty/comprehensive suretyship contract executed by petitioner
Alfredo Ching for the account of PBMCI did not redound to the benefit of the conjugal partnership.
She, likewise, alleged that being the wife of Alfredo Ching, she was a third-party claimant entitled to
file a motion for the release of the properties.32 She attached therewith a copy of her marriage
contract with Alfredo Ching.33 ςrνll
The ABC filed a comment on the motion to quash preliminary attachment and/or motion to expunge
records, contending that:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
2.1The supposed movant, Encarnacion T. Ching, is not a party to this present case; thus, she has no
personality to file any motion before this Honorable Court;chanroblesvirtuallawlibrary
2.2Said supposed movant did not file any Motion for Intervention pursuant to Section 2, Rule 12 of
the Rules of Court;chanroblesvirtuallawlibrary
2.3Said Motion cannot even be construed to be in the nature of a Third-Party Claim conformably
with Sec. 14, Rule 57 of the Rules of Court.
3.Furthermore, assuming in gracia argumenti that the supposed movant has the required
personality, her Motion cannot be acted upon by this Honorable Court as the above-entitled case is
still in the archives and the proceedings thereon still remains suspended. And there is no previous
Motion to revive the same.34 ςrνll
The ABC also alleged that the motion was barred by prescription or by laches because the shares of
stocks were in custodia legis.
During the hearing of the motion, Encarnacion T. Ching adduced in evidence her marriage contract
to Alfredo Ching to prove that they were married on January 8, 1960;35 the articles of incorporation
of Citycorp Investment Philippines dated May 14, 1979;36 and, the General Information Sheet of the
corporation showing that petitioner Alfredo Ching was a member of the Board of Directors of the
said corporation and was one of its top twenty stockholders.
On December 10, 1993, the Spouses Ching filed their Reply/Opposition to the motion to expunge
records.
Acting on the aforementioned motion, the trial court issued on December 15, 1993 an Order37 lifting
the writ of preliminary attachment on the shares of stocks and ordering the sheriff to return the said
stocks to the petitioners. The dispositive portion reads:
WHEREFORE, the instant Motion to Quash Preliminary Attachment, dated November 9, 1993, is
hereby granted. Let the writ of preliminary attachment subject matter of said motion, be quashed
and lifted with respect to the attached 100,000 common shares of stock of Citycorp Investment
Philippines in the name of the defendant Alfredo Ching, the said shares of stock to be returned to
him and his movant-spouse by Deputy Sheriff Apolonio A. Golfo who effected the levy thereon on
July 26, 1983, or by whoever may be presently in possession thereof.
SO ORDERED.38
The plaintiff Allied Banking Corporation filed a motion for the reconsideration of the order but
denied the same on February 17, 1994. The petitioner bank forthwith filed a petition
for certiorari with the CA, docketed as CA-G.R. SP No. 33585, for the nullification of the said order of
the court, contending that:
1.The respondent Judge exceeded his authority thereby acted without jurisdiction in taking
cognizance of, and granting a Motion filed by a complete stranger to the case.
2.The respondent Judge committed a grave abuse of discretion in lifting the writ of preliminary
attachment without any basis in fact and in law, and contrary to established jurisprudence on the
matter.39
On November 27, 1995, the CA rendered judgment granting the petition and setting aside the
assailed orders of the trial court, thus:
WHEREFORE, premises considered, the petition is GRANTED, hereby setting aside the questioned
orders (dated December 15, 1993 and February 17, 1994) for being null and void.
SO ORDERED.40
The CA sustained the contention of the private respondent and set aside the assailed orders.
According to the CA, the RTC deprived the private respondent of its right to file a bond under Section
14, Rule 57 of the Rules of Court.The petitioner Encarnacion T. Ching was not a party in the trial
court; hence, she had no right of action to have the levy annulled with a motion for that purpose.
Her remedy in such case was to file a separate action against the private respondent to nullify the
levy on the 100,000 Citycorp shares of stocks. The court stated that even assuming that Encarnacion
T. Ching had the right to file the said motion, the same was barred by laches.
Citing Wong v. Intermediate Appellate Court,41 the CA ruled that the presumption in Article 160 of
the New Civil Code shall not apply where, as in this case, the petitioner-spouses failed to prove the
source of the money used to acquire the shares of stock. It held that the levied shares of stocks
belonged to Alfredo Ching, as evidenced by the fact that the said shares were registered in the
corporate books of Citycorp solely under his name. Thus, according to the appellate court, the RTC
committed a grave abuse of its discretion amounting to excess or lack of jurisdiction in issuing the
assailed orders. The petitioners motion for reconsideration was denied by the CA in a Resolution
dated April 2, 1996.
The petitioner-spouses filed the instant Petition for Review on Certiorari , asserting that the RTC did
not commit any grave abuse of discretion amounting to excess or lack of jurisdiction in issuing the
assailed orders in their favor; hence, the CA erred in reversing the same. They aver that the source of
funds in the acquisition of the levied shares of stocks is not the controlling factor when invoking the
presumption of the conjugal nature of stocks under Art. 160,42 and that such presumption subsists
even if the property is registered only in the name of one of the spouses, in this case, petitioner
Alfredo Ching.43 According to the Petitioners, the suretyship obligation was not contracted in the
pursuit of the petitioner-husbands profession or business.44 And, contrary to the ruling of the CA,
where conjugal assets are attached in a collection suit on an obligation contracted by the husband,
the wife should exhaust her motion to quash in the main case and not file a separate
suit.45 Furthermore, the petitioners contend that under Art. 125 of the Family Code, the petitioner-
husbands gratuitous suretyship is null and void ab initio,46 and that the share of one of the spouses
in the conjugal partnership remains inchoate until the dissolution and liquidation of the
partnership.47 ςrνll
In its comment on the petition, the private respondent asserts that the CA correctly granted its
petition for certiorari nullifying the assailed order. It contends that the CA correctly relied on the
ruling of this Court in Wong v. Intermediate Appellate Court.Citing Cobb-Perez v. Lantin and G-
Tractors, Inc. v. Court of Appeals, the private respondent alleges that the continuing guaranty and
suretyship executed by petitioner Alfredo Ching in pursuit of his profession or business.
Furthermore, according to the private respondent, the right of the petitioner-wife to a share in the
conjugal partnership property is merely inchoate before the dissolution of the partnership; as such,
she had no right to file the said motion to quash the levy on attachment of the shares of stocks.
The issues for resolution are as follows: (a) whether the petitioner-wife has the right to file the
motion to quash the levy on attachment on the 100,000 shares of stocks in the Citycorp Investment
Philippines; (b) whether or not the RTC committed a grave abuse of its discretion amounting to
excess or lack of jurisdiction in issuing the assailed orders.
On the first issue, we agree with the petitioners that the petitioner-wife had the right to file the said
motion, although she was not a party in Civil Case No. 142729.48 ςrνll
In Ong v. Tating,49 we held that the sheriff may attach only those properties of the defendant against
whom a writ of attachment has been issued by the court. When the sheriff erroneously levies on
attachment and seizes the property of a third person in which the said defendant holds no right or
interest, the superior authority of the court which has authorized the execution may be invoked by
the aggrieved third person in the same case. Upon application of the third person, the court shall
order a summary hearing for the purpose of determining whether the sheriff has acted rightly or
wrongly in the performance of his duties in the execution of the writ of attachment, more
specifically if he has indeed levied on attachment and taken hold of property not belonging to the
plaintiff. If so, the court may then order the sheriff to release the property from the erroneous levy
and to return the same to the third person. In resolving the motion of the third party, the court does
not and cannot pass upon the question of the title to the property with any character of finality. It
can treat the matter only insofar as may be necessary to decide if the sheriff has acted correctly or
not. If the claimants proof does not persuade the court of the validity of the title, or right of
possession thereto, the claim will be denied by the court.The aggrieved third party may also avail
himself of the remedy of terceria by executing an affidavit of his title or right of possession over the
property levied on attachment and serving the same to the office making the levy and the adverse
party. Such party may also file an action to nullify the levy with damages resulting from the unlawful
levy and seizure, which should be a totally separate and distinct action from the former case. The
above-mentioned remedies are cumulative and any one of them may be resorted to by one third-
party claimant without availing of the other remedies.50 ςrνll
In this case, the petitioner-wife filed her motion to set aside the levy on attachment of the 100,000
shares of stocks in the name of petitioner-husband claiming that the said shares of stocks were
conjugal in nature; hence, not liable for the account of her husband under his continuing guaranty
and suretyship agreement with the PBMCI.The petitioner-wife had the right to file the motion for
said relief.
On the second issue, we find and so hold that the CA erred in setting aside and reversing the orders
of the RTC.The private respondent, the petitioner in the CA, was burdened to prove that the RTC
committed a grave abuse of its discretion amounting to excess or lack of jurisdiction. The tribunal
acts without jurisdiction if it does not have the legal purpose to determine the case; there is excess
of jurisdiction where the tribunal, being clothed with the power to determine the case, oversteps its
authority as determined by law. There is grave abuse of discretion where the tribunal acts in a
capricious, whimsical, arbitrary or despotic manner in the exercise of its judgment and is equivalent
to lack of jurisdiction.51 ςrνll
It was incumbent upon the private respondent to adduce a sufficiently strong demonstration that
the RTC acted whimsically in total disregard of evidence material to, and even decide of, the
controversy before certiorari will lie. A special civil action for certiorari is a remedy designed for the
correction of errors of jurisdiction and not errors of judgment. When a court exercises its
jurisdiction, an error committed while so engaged does not deprive it of its jurisdiction being
exercised when the error is committed.52 ςrνll
After a comprehensive review of the records of the RTC and of the CA, we find and so hold that the
RTC did not commit any grave abuse of its discretion amounting to excess or lack of jurisdiction in
issuing the assailed orders.
Article 160 of the New Civil Code provides that all the properties acquired during the marriage are
presumed to belong to the conjugal partnership, unless it be proved that it pertains exclusively to
the husband, or to the wife. In Tan v. Court of Appeals ,53 we held that it is not even necessary to
prove that the properties were acquired with funds of the partnership. As long as the properties
were acquired by the parties during the marriage, they are presumed to be conjugal in nature.In
fact, even when the manner in which the properties were acquired does not appear, the
presumption will still apply, and the properties will still be considered conjugal. The presumption of
the conjugal nature of the properties acquired during the marriage subsists in the absence of clear,
satisfactory and convincing evidence to overcome the same.54 ςrνll
In this case, the evidence adduced by the petitioners in the RTC is that the 100,000 shares of stocks
in the Citycorp Investment Philippines were issued to and registered in its corporate books in the
name of the petitioner-husband when the said corporation was incorporated on May 14, 1979. This
was done during the subsistence of the marriage of the petitioner-spouses. The shares of stocks are,
thus, presumed to be the conjugal partnership property of the petitioners. The private respondent
failed to adduce evidence that the petitioner-husband acquired the stocks with his exclusive
money.55 The barefaced fact that the shares of stocks were registered in the corporate books of
Citycorp Investment Philippines solely in the name of the petitioner-husband does not constitute
proof that the petitioner-husband, not the conjugal partnership, owned the same.56 The private
respondents reliance on the rulings of this Court in Maramba v. Lozano57 and Associated Insurance &
Surety Co., Inc. v. Banzon58 is misplaced. In the Maramba case, we held that where there is no
showing as to when the property was acquired, the fact that the title is in the wifes name alone is
determinative of the ownership of the property. The principle was reiterated in the Associated
Insurance case where the uncontroverted evidence showed that the shares of stocks were acquired
during the marriage of the petitioners.
Instead of fortifying the contention of the respondents, the ruling of this Court in Wong v.
Intermediate Appellate Court59 buttresses the case for the petitioners. In that case, we ruled that he
who claims that property acquired by the spouses during their marriage is not conjugal partnership
property but belongs to one of them as his personal property is burdened to prove the source of the
money utilized to purchase the same. In this case, the private respondent claimed that the
petitioner-husband acquired the shares of stocks from the Citycorp Investment Philippines in his
own name as the owner thereof. It was, thus, the burden of the private respondent to prove that the
source of the money utilized in the acquisition of the shares of stocks was that of the petitioner-
husband alone. As held by the trial court, the private respondent failed to adduce evidence to prove
this assertion.
The CA, likewise, erred in holding that by executing a continuing guaranty and suretyship agreement
with the private respondent for the payment of the PBMCI loans, the petitioner-husband was in the
exercise of his profession, pursuing a legitimate business. The appellate court erred in concluding
that the conjugal partnership is liable for the said account of PBMCI under Article 161(1) of the New
Civil Code.
Article 161(1) of the New Civil Code (now Article 121[2 and 3]60 of the Family Code of the Philippines)
provides:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
Art. 161.The conjugal partnership shall be liable for:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
(1) All debts and obligations contracted by the husband for the benefit of the conjugal partnership,
and those contracted by the wife, also for the same purpose, in the cases where she may legally bind
the partnership.
The petitioner-husband signed the continuing guaranty and suretyship agreement as security for the
payment of the loan obtained by the PBMCI from the private respondent in the amount
of P38,000,000. In Ayala Investment and Development Corp. v. Court of Appeals ,61 this Court ruled
that the signing as surety is certainly not an exercise of an industry or profession. It is not embarking
in a business. No matter how often an executive acted on or was persuaded to act as surety for his
own employer, this should not be taken to mean that he thereby embarked in the business of
suretyship or guaranty.
For the conjugal partnership to be liable for a liability that should appertain to the husband alone,
there must be a showing that some advantages accrued to the spouses. Certainly, to make a
conjugal partnership responsible for a liability that should appertain alone to one of the spouses is to
frustrate the objective of the New Civil Code to show the utmost concern for the solidarity and well
being of the family as a unit. The husband, therefore, is denied the power to assume unnecessary
and unwarranted risks to the financial stability of the conjugal partnership.62 ςrνll
In this case, the private respondent failed to prove that the conjugal partnership of the petitioners
was benefited by the petitioner-husbands act of executing a continuing guaranty and suretyship
agreement with the private respondent for and in behalf of PBMCI. The contract of loan was
between the private respondent and the PBMCI, solely for the benefit of the latter. No presumption
can be inferred from the fact that when the petitioner-husband entered into an accommodation
agreement or a contract of surety, the conjugal partnership would thereby be benefited. The private
respondent was burdened to establish that such benefit redounded to the conjugal
partnership.63 ςrνll
It could be argued that the petitioner-husband was a member of the Board of Directors of PBMCI
and was one of its top twenty stockholders, and that the shares of stocks of the petitioner-husband
and his family would appreciate if the PBMCI could be rehabilitated through the loans obtained; that
the petitioner-husbands career would be enhanced should PBMCI survive because of the infusion of
fresh capital. However, these are not the benefits contemplated by Article 161 of the New Civil
Code. The benefits must be those directly resulting from the loan. They cannot merely be a by-
product or a spin-off of the loan itself.64 ςrνll
This is different from the situation where the husband borrows money or receives services to be
used for his own business or profession. In the Ayala case, we ruled that it is such a contract that is
one within the term obligation for the benefit of the conjugal partnership.
Thus:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
(A) If the husband himself is the principal obligor in the contract, i.e., he directly received the money
and services to be used in or for his own business or his own profession, that contract falls within the
term obligations for the benefit of the conjugal partnership. Here, no actual benefit may be proved.
It is enough that the benefit to the family is apparent at the time of the signing of the contract. From
the very nature of the contract of loan or services, the family stands to benefit from the loan facility
or services to be rendered to the business or profession of the husband. It is immaterial, if in the
end, his business or profession fails or does not succeed.Simply stated, where the husband contracts
obligations on behalf of the family business, the law presumes, and rightly so, that such obligation
will redound to the benefit of the conjugal partnership.65 ςrνll
The Court held in the same case that the rulings of the Court in Cobb-Perez and G-Tractors, Inc. are
not controlling because the husband, in those cases, contracted the obligation for his own business.
In this case, the petitioner-husband acted merely as a surety for the loan contracted by the PBMCI
from the private respondent.
IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Decision and Resolution of the
Court of Appeals are SET ASIDE AND REVERSED. The assailed orders of the RTC are AFFIRMED.
SO ORDERED.
Puno, (Chairman), Quisumbing, Austria-Martinez, and TINGA, JJ., concur.
Endnotes:
Ching v. CA, 423 SCRA 356, February 23, 2004
FACTS: Philippine Blooming Mills Company, Inc. (PBMCI) obtained two loans from the Allied Banking
Corporation (ABC). (PBMCI) Executive Vice-President Alfredo Ching executed a continuing guaranty
with the ABC for the payment of the said loan. The PBMCI defaulted in the payment of all its loans so
ABC filed a complaint for sum of money against the PBMCI. Trial court issued a writ of preliminary
attachment against Alfredo Ching requiring the sheriff of to attach all the properties of said Alfredo
Ching to answer for the payment of the loans. Encarnacion T. Ching, wife of Alfredo Ching, filed a
Motion to Set Aside the levy on attachment allegeing inter alia that the 100,000 shares of stocks
levied on by the sheriff were acquired by her and her husband during their marriage out of conjugal
funds. Petitioner spouses aver that the source of funds in the acquisition of the levied shares of
stocks is not the controlling factor when invoking the presumption of the conjugal nature of stocks
under Art. !21 and that such presumption subsists even if the property is registered only in the name
of one of the spouses, in this case, petitioner Alfredo Ching. According to the petitioners, the
suretyship obligation was not contracted in the pursuit of the petitioner-husband’s profession or
business.44
ISSUE: WON 100,000 shares of stocks may be levied on by the sheriff to answer for the loans
guaranteed by petitioner Alfredo Ching
HELD: No.
RATIO: The CA erred in holding that by executing a continuing guaranty and suretyship agreement
with the private respondent for the payment of the PBMCI loans, the petitioner-husband was in the
exercise of his profession, pursuing a legitimate business.
The shares of stocks are, thus, presumed to be the conjugal partnership property of the petitioners.
The private respondent failed to adduce evidence that the petitioner-husband acquired the stocks
with his exclusive money.
The appellate court erred in concluding that the conjugal partnership is liable for the said account of
PBMCI.
Article 121 provides: The conjugal partnership shall be liable for: (1) All debts and obligations
contracted by the husband for the benefit of the conjugal partnership, and those contracted by the
wife, also for the same purpose, in the cases where she may legally bind the partnership.
For the conjugal partnership to be liable for a liability that should appertain to the husband alone,
there must be a showing that some advantages accrued to the spouses.
In this case, the private respondent failed to prove that the conjugal partnership of the petitioners
was benefited by the petitioner-husband’s act of executing a continuing guaranty and suretyship
agreement with the private respondent for and in behalf of PBMCI. The contract of loan was
between the private respondent and the PBMCI, solely for the benefit of the latter. No presumption
can be inferred from the fact that when the petitioner-husband entered into an accommodation
agreement or a contract of surety, the conjugal partnership would thereby be benefited. The private
respondent was burdened to establish that such benefit redounded to the conjugal partnership.
G.R. No. 185734 July 3, 2013
ALFREDO C. LIM, JR., PETITIONER,
vs.
SPOUSES TITO S. LAZARO AND CARMEN T. LAZARO, RESPONDENTS.
FACTS: Petitioner Lim Jr filed a complaint for a sum of money with a prayer for the issuance of a writ
of preliminary attachment against the respondent Sps Lazaro. The RTC granted the writ of
preliminary attachment application and upon the posting of the required bond issued the
corresponding writ on October 14, 2005. 3 parcels of land owned by the respondent spouses were
levied upon.
The parties later entered into a Compromise Agreement whereby Sps. Lazaro agreed to pay Lim, Jr.
the amount of P2,351,064.80 on an installment basis, following a schedule of payments covering the
period from September 2006 until October 2013. The RTC rendered a decision on the basis of the
compromise.
Sps. Lazaro then filed an Omnibus Motion, seeking to lift the writ of preliminary attachment
annotated on the subject TCTs.
In granting the Motion, the RTC ruled that a writ of preliminary attachment is a mere provisional or
ancillary remedy, resorted to by a litigant to protect and preserve certain rights and interests
pending final judgment. Considering that the case had already been considered closed and
terminated by the rendition of the decision based on the compromise agreement, the writ of
preliminary attachment should be lifted and quashed.
ISSUE: Whether or not the writ of preliminary attachment was properly lifted.
HELD: NO. By its nature, preliminary attachment, under Rule 57 of the Rules of Court (Rule 57), is an
ancillary remedy applied for not for its own sake but to enable the attaching party to realize upon
the relief sought and expected to be granted in the main or principal action; it is a measure auxiliary
or incidental to the main action. As such, it is available during its pendency which may be resorted to
by a litigant to preserve and protect certain rights and interests during the interim, awaiting the
ultimate effects of a final judgment in the case. In addition, attachment is also availed of in order to
acquire jurisdiction over the action by actual or constructive seizure of the property in those
instances where personal or substituted service of summons on the defendant cannot be effected.
In this relation, while the provisions of Rule 57 are silent on the length of time within which an
attachment lien shall continue to subsist after the rendition of a final judgment, jurisprudence
dictates that the said lien continues until the debt is paid, or the sale is had under execution issued
on the judgment or until the judgment is satisfied, or the attachment discharged or vacated in the
same manner provided by law.
Applying these principles, the Court finds that the discharge of the writ of preliminary attachment
against the properties of Sps. Lazaro was improper.
Records indicate that while the parties have entered into a compromise agreement which had
already been approved by the RTC in its January 5, 2007 Amended Decision, the obligations
thereunder have yet to be fully complied with – particularly, the payment of the total compromise
amount of P2,351,064.80. Hence, given that the foregoing debt remains unpaid, the attachment of
Sps. Lazaro’s properties should have continued to subsist.
In the earlier case of Chemphil Export & Import Corporation v. CA, the Court ruled that a writ of
attachment is not extinguished by the execution of a compromise agreement between the parties.
In that case the Court held thus:
xxxx
The case at bench admits of peculiar character in the sense that it involves a compromise
agreement. Nonetheless, x x x. The parties to the compromise agreement should not be deprived of
the protection provided by an attachment lien especially in an instance where one reneges on his
obligations under the agreement, as in the case at bench, where Antonio Garcia failed to hold up his
own end of the deal, so to speak.
xxxx
If we were to rule otherwise, we would in effect create a back door by which a debtor can easily
escape his creditors. Consequently, we would be faced with an anomalous situation where a debtor,
in order to buy time to dispose of his properties, would enter into a compromise agreement he has
no intention of honoring in the first place. The purpose of the provisional remedy of attachment
would thus be lost. It would become, in analogy, a declawed and toothless tiger. (Emphasis and
underscoring supplied; citations omitted)
In fine, the Court holds that the writ of preliminary attachment subject of this case should be
restored and its annotation revived in the subject TCTs, re-vesting unto Lim, Jr. his preferential lien
over the properties covered by the same as it were before the cancellation of the said writ. Lest it be
misunderstood, the lien or security obtained by an attachment even before judgment, is in the
nature of a vested interest which affords specific security for the satisfaction of the debt put
in suit.30 Verily, the lifting of the attachment lien would be tantamount to an abdication of Lim, Jr.’s
rights over Sps. Lazaro’s properties which the Court, absent any justifiable ground therefor, cannot
allow.

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G.R. No. 187944, March 12, 2014

Lot No. TCT No. Heirs

Section 1, Rule 70 of the Rules of Court provides:

Munoz vs. Court of Appeals enunciated:

In essence, the instant petition presents the following issues:

The Respondents’ Arguments

The instant petition lacks merit.

Carmencita had not amply alleged

(1) initially, possession of property by the defendant was by contract with

In Amagan, the Court is emphatic that: chanRoblesvirtual Lawlib ra ry

G.R. No. 169380 : November 26, 2012

FIORELLO R. JOSE, Petitioner, v. ROBERTO ALFUERTO, ERNESTO BACAY, ILUMINADO BACAY,

The lease contract provided that: chanroble svirtual lawlib rary

The Courts Ruling

We find the petition unmeritorious.

There was no change in the

that:chanroble svirtual lawlib rary

The Court cannot treat an ejectment

remedies should be used: cha nrob lesvi rtua llawlib rary

G.R. No. 196864, July 08, 2015

SPOUSES VICTOR P. DULNUAN AND JACQUELINE P. DULNUAN, Petitioners, v. METROPOLITAN

ChanRobles Vi rtualaw lib rary

ChanRobles Vi rtualaw lib rary

ChanRobles Vi rtualaw lib rary

ChanRobles Vi rtualaw lib rary

The Court’s Ruling

ChanRobles Vi rtualaw lib rary

ChanRobles Vi rtualaw lib rary

ChanRobles Vi rtualaw lib rary

[G.R. NO. 124642. February 23, 2004]

CALLEJO, SR., J.:

The following facts are undisputed:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

Puno, (Chairman), Quisumbing, Austria-Martinez, and TINGA, JJ., concur.

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