MACHINERY & ENGINEERING SUPPLIES, INC., PETITIONER, VS. THE HONORABLE COURT OF APPEALS, HON. POTENCIANO PECSON, JUDGE OF THE COURT OF FIRST INSTANCE OF MANILA, IPO LIMESTONE CO.…

This is an appeal by certiorari, taken by petitioner Machinery and
Engineering Supplies Inc., from a decision of the Court of Appeals
denying an original petition for certiorari filed by said petitioner
against Hon. Potenciano Pecson, Ipo Limestone Co., Inc., and Antonio
Villarama, the respondents herein. The pertinent facts are set forth in
the decision, of the Court of Appeals, from which we quote:

“On March 13, 1953, the herein petitioner filed a
complaint for replevin in the Court of First Instance of Manila, Civil
Case No. 19067, entitled ‘Machinery & Engineering Supplies, Inc.,
Plaintiff, vs. Ipo Limestone Co,, Inc., and Dr. Antonio
Villarama, defendants’, for the recovery of the machineries and
equipments sold and delivered to said defendants at their factory in
barrio Bigti, Norzagaray, Bulacan. Upon application ex-parte of the
petitioner, accompanied by the affidavit of Ramon S. Eoco, president of
petitioner company, and upon approval of petitioner’s bond in the sum
of P15,769.00, on March 13, 1953, respondent judge issued an order,
commanding the Provincial Sheriff of Bulacan to seize and take
immediate possession of the properties specified in the order (Appendix
I, Answer). On March 19, 1953, two deputy sheriffs of Bulacan, the said
Ramon S. Roco, and a crew of technical men and laborers proceeded to
Bigti, for the purpose of carrying the court’s order into effect.
Leonardo Contreras, Manager of the respondent Company, and Pedro
Torres, in charge thereof, met the deputy sheriffs, and Contreras
handed to them a letter addressed to Atty. Leopoldo C. Palad,
ex-officio Provincial Sheriff of Bulacan, signed by Atty. Adolfo Garcia
of the defendants therein, protesting against the seizure of the
properties in question, on the ground that they are not personal
properties. Contending that the Sheriff’s duty is merely ministerial,
the deputy sheriffs, Roco, the latter’s crew of technicians and
laborers, Contreras and Torres, went to the factory. Roco’s attention
was called to the fact that the equipments could not possibly be
dismantled without causing damages or injuries to the wooden frames
attached to them. As Roco insisted in dismantling the equipments on his
own. responsibility, alleging that the bond was posted for such
eventuality, the deputy sheriffs directed that some of the supports
thereof be cut (Appendix 2). On March 20, 1953, the defendant Company
filed an urgent motion, with a counter-bond in the amount of P15,769,
for the return of the properties seized by the deputy sheriffs. On the
same day, the trial court issued an order, directing the Provincial
Sheriff of Bulacan to return the machineries and equipments to the
place where they were installed at the time of the seizure (Appendix
3). On March 21, 1953, the deputy sheriffs returned the properties
seized, by depositing them along the road, near the quarry, of the
defendant Company, at Bigti, without the benefit of inventory and
without re-installing them in their former position and replacing the
destroyed posts, which rendered their use impracticable. On March 23,
1953, the defendants’ counsel asked the Provincial Sheriff if the
machineries and equipments, dumped on the road would be re-installed to
their former position and conditi6n (letter, Appendix 4). On March 24,
1953, the Provincial Sheriff filed an urgent motion in court,
manifesting that Roco had been asked to furnish the Sheriff’s office
with expenses, laborers, technical men and equipments, to carry into
effect the court’s order, to return the seized properties in the same
way said Roco found them on the day of seizure, but said Roco
absolutely refused to do so, and asking the court that the Plaintiff
therein be ordered to provide the required aid op relieve the said
Sheriff of the duty of complying with the said order of March 20, 1953
(Appendix 5). On March 30, 1953, the trial court ordered the Provincial
Sheriff and the Plaintiff to reinstate the machineries and equipments
removed by them in their original condition in which they were found
before their removal at the expense of the Plaintiff (Appendix 7). An
urgent motion of the Provincial Sheriff dated April 15, 1953, praying
for an extension of 20 days within which to comply with the order of
the court (Appendix 10) was denied; and on May 4, 1953, the trial court
ordered the Plaintiff therein to furnish the Provincial Sheriff within
5 days with the necessary funds, technical men, laborers, equipments
and materials to effect the repeatedly mentioned re-installation
(Appendix 12).” (Petitioner’s brief, Appendix A, pp. I-IV.)

Thereupon petitioner instituted in the Court of Appeals civil case
G. R. No. 11248-R, entitled “Machinery & Engineering Supplies, inc.
vs. Honorable Potenciano Pecson, Provincial Sheriff of
Bulacan, Ipo Limestone Co., Inc., and Antonio Villarama.” In the
petition therein filed, it was alleged that, in ordering the petitioner
to furnish the provincial sheriff of Bulacan “with necessary funds,
technical men, laborers, equipment and materials, to effect the
installation of the machinery and equipment” in question, the Court of
First Instance of Bulacan had committed a grave abuse of discretion and
acted in excess of its jurisdiction, for which reason it was prayed
that its order to this effect be nullified, and that, meanwhile, a writ
of preliminary injunction be issued to restrain the enforcement of said
order of May 4, 1953. Although the aforementioned writ was issued by
the Court of Appeals, the same subsequently dismissed the case for lack
of merit, with costs against the petitioner, upon the following grounds:

“While the seizure of the equipments and personal
properties was ordered by the respondent Court, it is, however, logical
to presume that said court did not authorize the petitioner or its
agents to destroy, as they did, said machineries and equipments, by dis
mantling and unbolting the same from their concrete basements, and
cutting and sawing their wooden supports, thereby rendering them
unserviceable and beyond repair, unless those parts removed, cut and
sawed be replaced, which the petitioner, notwithstanding the respondent
Court’s order, adamantly refused to do. The Provincial Sheriff’s tortuous act, in obedience to the insistent proceedings of the president
of the petitioner, Ramon S. Roco, has no justification in law,
notwithstanding the Sheriff’s claim that his duty was ministerial. It
was the bounden duty of the respondent Judge to give redress to the
respondent Company, for the unlawful and wrongful acts committed by the
petitioner and its agents. And as this was the true object of the order
of March 30, 1953, we can not but hold that same was within its
jurisdiction to issue. The ministerial duty of the Sheriff should have
its limitations. The Sheriff knew or must have known what is
inherently,.right and inherently wrong, more so when, as in this
particular case, the deputy sheriffs were shown a letter of respondent
Company’s attorney, that the machineries and equipments were not
personal properties and, therefore, not subject to seizure by the terms
of the order. While it may be conceded that this was a question of law
too technical to decide on the spot, it would not have cost the Sheriff
much time and difficulty to bring the letter to the court’s attention
and have the equipments and machineries guarded, so as not to frustrate
the order of seizure issued by the trial court. But, acting upon the
directives of the president of the Petitioner, to seize the properties
at any cost, the deputy sheriffs lent themselves as instruments to
harass and embarrass the respondent Company. The respondent Court, in
issuing the order sought to be annulled, had not committed abuse of
discretion at all or acted in an arbitrary or despotic manner, by
reason of passion or personal hostility; on the contrary, it issued
said order, guided by the well known principle that if the property has
to be returned, it should be returned in as good a condition as when
taken (Bachrach Motor Co., Inc., vs. Bona, 44 Phil., 378). If
any one had gone beyond the scope of his authority, it is the
respondent Provincial Sheriff. But considering the fact that he acted
under the pressure of Ramon S. Roco, and that the order impugned was
issued not by him, but by the respondent Judge, We simply declare that
said Sheriff’s act was most unusual and the result of a poor judgment.
Moreover, the Sheriff not being an officer exercising judicial
functions, the writ may not reach him, for certiorari lies only to
review judicial actions.

The Petitioner complains that the
respondent Judge had completely disregarded his manifestation that the
machineries and equipments seized were and still are the Petitioner’s
property until fully paid for and as such, never became immovable. The
question of ownership and the applicability of Art. 415 of the new
Civil Code are immaterial in the determination of the only issue
involved in this case. It is a matter of evidence which should be
decided in the hearing of the case on the merits. The question as to
whether the machineries or equipments in litigation are immovable or
not is likewise immaterial, because the only issue raised before the
trial court was whether the Provincial Sheriff of Bulacan, at the
Petitioner’s instance, was justified in. destroying the machineries and
in refusing to restore them to their original form, at the expense of
the Petitioner. Whatever might be the legal character of the
machineries and equipments, would not in any way justify their
destruction by the Sheriff’s and the said Petitioner’s.” (Petitioner’s
brief, Appendix A, pp IV-VII.)

A motion for reconsideration of this decision of the Court of
Appeals having been denied, petitioner has brought the case to Us for
review by writ of certiorari. Upon examination of the record, We are
satisfied, however, that the Court of Appeals was justified in
dismissing the case. The special civil action known as replevin,
governed by Rule 62 of the Rules of Court, is applicable only to
“personal property”.

“Ordinarily replevin may be brought to recover any
specific personal property unlawfully taken or detained from the owner
thereof, provided such, property is capable of identification and
delivery; but replevin will not lie for the recovery of real property or incorporeal personal property”. (77 C. J. S. 17) (Italics supplied.)

When the sheriff repaired to the premises of respondent, Ipo
Limestone Co., Inc., the machinery and equipment in question appeared
to be attached to the land, particularly to the concrete foundation of
said premises, in a fixed manner, in such a way that the former could
not be separated from the latter “without breaking the material or
deterioration of the object.” Hence, in order

to remove said outfit, it became necessary, not only to unbolt the
same, but, also, to cut some of its wooden supports. Moreover, said
machinery and equipment were “intended by the owner of the tenement for
an industry” carried on said immovable and tended “directly to meet the
needs of the said industry.” For these reasons, they were already
immovable property pursuant to paragraphs 3 and 5 of Article 415 of
Civil Code of the Philippines, which, are substantially identical to
paragraphs 3 and 5 of Article 334 of the Civil Code of Spain. As such
immovable property, they were not subject to replevin.

“In so far as an article, including a fixture
annexed by a tenant, is regarded as part of the realty, it is not the
subject of trover, replevin, detinus, or any action lying only for
personalty; * * *.

“* * * the action of replevin does not
lie for articles so annexed to the realty as to be part thereof, as,
for example, a house or a turbine pump constituting part of a
building’s cooling system; * * *” (36 C.J.S. 1000 & 1001)

Moreover, as the provincial sheriff hesitated to remove the property
in question, petitioner’s agent and president, Mr. Ramon Roco, insisted
“on the dismantling at his own responsibility,” stating that,
precisely, “that is the reason why plaintiff posted a bond.” In this
manner, petitioner clearly assumed the corresponding risks.

Such assumption of risk becomes more apparent when we consider that,
pursuant to Section 5 of Rule 62 of the Rules of Court, the defendant
in an action for replevin is entitled to the return of the property in
dispute upon the filing of a counterbond, as provided therein. In other
words, petitioner knew that the restitution of said property to
respondent company might be ordered under said provision of the Rules
of Court, and that, consequently, it may become necessary for
petitioner to meet the liabilities incident to such return.

Lastly, although the parties have not cited, and We have not found,
any authority squarely in point—obviously because real property are not
subject to replevin—it is well settled that, when the restitution of
what has been ordered, the goods in question shall be returned in
substantially the same condition as when taken (54 C.J., 590-600,
640-641). Inasmuch as the machinery and equipment involved in this case
were duly installed and affixed in the premises of respondent company
when petitioner’s representative caused said property to be dismantled
and then removed, it follows that petitioner must also do everything
necessary to the re-installation of said property in conformity with its
original condition.

Wherefore, the decision of the Court of Appeals is hereby affirmed, with costs against the petitioner. So ordered.

Pablo, Bengzon, Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo and Reyes, J. B. L., JJ., concur.

Paras, C. J., concurs in the result.