G.R. No. 173333. August 13, 2008.
Main Topic – Rule 57.
Ong instituted a Complaint for the collection of the sum of money with prayer for issuance of a writ of preliminary attachment against Spouses Magaling and Termo Loans Corporation for its failure to pay its signed promissory note. The RTC granted the issuance of a writ of preliminary attachment grounded on the allegation that Spouses Magaling and Termo Loans “were guilty of fraud in contracting the obligation subject of the complaint for sum of money”. The RTC also issued an Order directing the issuance of the writ prayed for upon the filing of a bond in the amount of P390,000.00.
Spouses Magaling moved for the reconsideration of the Order of the RTC granting the writ of preliminary attachment on the ground that it was improperly or irregularly issued. The RTC promulgated the first of two decisions in this case, ruling in favor of Ong, and against Termo Loans. On the second case, RTC found the Motion to Discharge Attachment impressed with merit thus, promulgated its second decision holding the Spouses Magaling free and clear of any obligation or liability with respect to the sum of money claimed by Ong.
Ong appealed the instant case, the Court of Appeals reversed the second decision and and held the spouses Magaling solidarily liable with Termo Loans. The Spouses Magaling’s motion for reconsideration was denied by the Court of Appeals.
Whether or not the Court of Appeals acted with grave abuse of discretion and in excess of jurisdiction in reinstating the preliminary attachment.
No. Once the writ of preliminary attachment is issued, the same rule provides for two ways by which it can be dissolved or discharged: (1) the writ of preliminary attachment may be discharged upon a security given and (2) said provisional remedy must be shown to have been irregularly or improperly issued. There is no question that no counter bond was given by the Spouses Magaling for the discharge or dissolution of the writ of preliminary attachment, as their position is that the provisional remedy was irregularly or improperly issued.
There is no showing that a hearing was conducted prior to the issuance of the 19 February 1999 Order of the RTC discharging or dissolving the writ of preliminary attachment. That Ong was able to file an opposition to the motion of the Spouses Magaling to discharge the preliminary attachment is of no moment. The written opposition filed is not equivalent to a hearing. The absence of a hearing before the RTC bars the discharge of the writ of preliminary attachment for the simple reason that the discharge or dissolution of said writ, whether under Sec. 12 or Sec. 13 of Rule 57 of the Rules of Court, as amended, shall be granted only “after due notice and hearing.”
A writ of preliminary attachment is a provisional remedy by virtue of which a plaintiff or other proper party may, at the commencement of the action or at any time thereafter, have the property of the adverse party taken into the custody of the court as security for the satisfaction of the judgment that may be recovered.