PHILIPPINE BRITISH ASSURANCE CO., INC., PETITIONER, VS. THE HONORABLE INTERMEDIATE APPELLATE COURT, SYCWIN COATING & WIRES, INC., AND DOMINADOR CACPAL, CHIEF DEPUTY SHERIFF OF M…

This is a Petition for
Review on Certiorari of the Resolution dated September
12, 1985 of the
Intermediate Appellate Court in AC-G.R. No. CR-05409^[1]
granting private respondent’s motion for execution pending appeal and ordering
the issuance of the corresponding writ of execution on the counterbond
to lift attachment filed by petitioner. 
The focal issue that emerges is whether an order of execution pending
appeal of a judgment maybe enforced on the
said bond.  In the Resolution of September
25, 1985^[2] this Court as prayed for, without
necessarily giving due course to the petition, issued a temporary restraining
order enjoining the respondents from enforcing the order complained of.

The records disclose that
private respondent Sycwin Coating & Wires, Inc., filed a complaint for collection of a sum of money
against Varian Industrial Corporation before the Regional Trial Court of Quezon City.  During
the pendency of the suit, private respondent
succeeded in attaching some of the properties of Varian Industrial Corporation
upon the posting of a supersedeas bond.^[3] The latter in turn posted a counterbond in the sum of P1,400,000.00^[4] thru petitioner Philippine British Assurance
Co., Inc., so the attached properties were released.

On December
28, 1984, the trial
court rendered a Decision, the dispositive portion of
which reads:

“WHEREFORE, plaintiff’s Motion for Summary Judgment is hereby
GRANTED, and judgment is rendered in favor of the plaintiff and against the
defendant Varian Industrial Corporation, and the latter is hereby ordered:

1.      To pay plaintiff the amount of P1,401,468.00,
the principal obligation with 12% interest per annum from the date of default
until fully paid;

2.     
To pay plaintiff 5% of the
principal obligation as liquidated damages;

3.     
To pay plaintiff P30,000.00 as
exemplary damages;

4.     
To pay plaintiff 15% of
P1,401,468.00, the principal obli­gation, as and for attorney’s fees; and

5.     
To pay the costs of suit.

Accordingly, the counterclaim of the defendant is hereby DISMISSED
for lack of merit.

SO ORDERED.”^[5]

Varian Industrial
Corporation appealed the decision to the respondent Court.  Sycwin then filed a
petition for execution pending appeal against the properties of Varian in
respondent Court.  Varian was required to
file its comment but none was filed.  In
the Reso­lution of July 5, 1985, respondent Court ordered the execution
pending appeal as prayed for.^[6] However, the writ of execution was returned
unsatisfied as Varian failed to deliver the previously attached personal
properties upon demand.  In a Petition
dated August 13, 1985
filed with respondent Court Sycwin prayed that the
surety (herein petitioner) be ordered to pay the value of its bond.^[7] In compliance with the Resolution of August
23, 1985 of the
respondent Court herein petitioner filed its comment.^[8] In the Resolution of September
12, 1985,^[9] the respondent Court granted the
petition.  Hence this
action.

It is the submission of
private respondent Sycwin that without a previous
motion for reconsideration of the questioned resolution, certiorari
would not lie.  While as a general rule a
motion for reconsideration has been considered a condition sine qua
non for the granting of a writ of certiorari, this rule does not
apply when special circumstances warrant immediate or more direct action.^[10] It has been held further that a motion for recon­sideration may be dispensed
with in cases like this where execution had been ordered and the need for
relief was extremely urgent.^[11]

The counterbond
provides:

“WHEREAS, in the above-entitled case pending in the Regional
Trial Court, National Capital Judicial Region, Branch LXXXV, Quezon City, an order of Attachment was issued against
above-named Defendant;

WHEREAS, the Defendant, for the purpose of lifting and/or
dissolving the order of attachment issued against them in the above-entitled
case, have offered to file a counter-bond in the sum of PESOS ONE MILLION FOUR
HUNDRED THOUSAND ONLY (P1,400,000.00), Philippine Currency, as provided for in
Section 5, Rule 57 of the Revised Rules of Court.

NOW, THEREFORE, we, VARIAN INDUSTRIAL CORPORATION, as Principal and
the PHILIPPINE BRITISH ASSURANCE COMPANY, INC., a corpo­ration duly organized
and existing under and by virtue of the laws of the Philippines, as Surety, in
consideration of the above and of the lifting or dissolution of the order of
attachment, hereby jointly and severally, bind ourselves in favor of the above
Plaintiff in the sum of PESOS ONE MILLION FOUR HUNDRED THOUSAND ONLY
(P1,400,000.00), Philippine Currency, under the condition that in case the
Plaintiff recovers judgment in the action, and Defendant will, on demand,
re-deliver the attached property so released to the Officer of the Court and
the same shall be applied to the payment of the judgment, or in default
thereof, the defendant and Surety will, on demand, pay to the Plaintiff the
full value of the prop­erty released.

EXECUTED at Manila, Philippines, this 28th day of June, 1984.”^[12]

Sections 5, 12, and 17 of
Rule 57 of the Revised Rules of Court also provide:

SEC. 5. 
Manner of attaching property.  – The officer executing the order shall
without delay attach, to await judgment and execution in the action, all the
properties of the party against whom the order is issued in the province, not
exempt from execution, or so much thereof as may be sufficient to satisfy the
applicant’s demand, unless the former makes a deposit with the clerk or judge
of the court from which the order issued, or gives a counter-bond executed to
the applicant, in an amount sufficient to satisfy such demand besides costs, or
in an amount equal to the value of the property which is about to be attached, to
secure payment to the applicant of any judg­ment which he may recover in the
action.  The officer shall also forthwith
serve a copy of the applicant’s affidavit and bond, and of the order of
attachment, on the adverse party, if he be found within the province.

SEC. 12. 
Discharge of attachment upon giving counterbond.  – At any time after an order of attachment
has been granted, the party whose property has been attached, or the person
appearing on his behalf, may, upon reasonable notice to the applicant, apply to
the judge who granted the order, or to the judge of the court in which the
action is pending, for an order discharging the attachment wholly or in part on
the security given.  The judge shall,
after hearing, order the discharge of the attachment if a cash deposit is made,
or a counter-bond executed to the attaching creditor is filed, on behalf of the
adverse party, with the clerk or judge of the court where the application is
made, in an amount equal to the value of the property attached as determined by
the judge, to secure the payment of any judgment that the attaching creditor
may recover in the action.  Upon the
filing of such counter-bond, copy there­of shall forthwith be served on the
attaching creditor or his lawyer.  Upon
the discharge of an attachment in accordance with the provisions of this
section the property attached, or the proceeds of any sale thereof, shall be
delivered to the party making the deposit or giving the counter-bond aforesaid
standing in place of the property so released. 
Should such counter-bond for any reason be found to be, or become, insufficient,
and the party furnishing the same fail to file an additional counter-bond, the
attaching creditor may apply for a new order of attachment.

SEC. 17. 
When execution returned unsatisfied, recovery had upon bond.  – If the execution be returned unsatisfied in
whole or in part, the surety or sureties on any counter-bond given pursuant
to the provisions of this
rule to secure the pay­ment of the judgment shall become charged
on such counter-bond, and bound to pay to the judgment creditor upon demand,
the amount due under the judgment, which amount may be recovered from such
surety or sureties after notice and summary hearing in the same action.  (Underscoring supplied)

Under Sections 5 and 12,
Rule 57 above reproduced it is provided that the counterbond
is intended to secure the payment of “any judgment” that the
attaching creditor may recover in the action. 
Under Section 17 of same rule it provides that when “the execution be returned unsatisfied in whole or in part” it is only
then that “payment of the judgment shall become charged on such counterbond.”

The counterbond
was issued in accordance with the provisions of Section 5,
Rule 57 of the Rules of Court as provided in the second paragraph aforecited which is deemed reproduced as part of the counterbond.  In the
third paragraph it is also stipulated that the counterbond
is to be “applied for the payment of the judgment”.  Neither the rules nor the provisions of the
counter­-bond limited its application to a final and executory
judgment.  Indeed, it is specified that
it applies to the payment of any judgment that maybe recovered by
plaintiff.  Thus, the only logical
conclusion is that an execution of any judgment including one pend­ing appeal
if returned unsatisfied maybe charged against such a counterbond.

It is well recognized
rule that where the Law does not distinguish, courts should not
distinguish.  Ubi
Lex non distinguit nec nos distinguere debemos.^[13] The rule, founded on logic, is a corollary
of the principle that general words and phrases in a statute should ordinarily
be accorded their natural and general significance.^[14] The rule requires that a general term or
phrase should not be reduced into parts and one part distinguished from the
other so as to justify its exclusion from the operation of the law.^[15] In other words, there should be no
distinction in the application of a statute where none is indicated.^[16] For courts are not
authorized to distinguish where the law makes no distinction.  They should instead administer the law not as
they think it ought to be but as they find it and without regard to
consequences.^[17]

A corollary of the
principle is the rule that where the law does not make any exception, courts
may not except something there­from,
unless there is compelling reason apparent in the law to justify it.^[18] Thus where a statute grants a person against
whom possession of “any land” is unlawfully withheld the right to
bring an action for unlawful detainer, this Court
held that the phrase “any land” includes all kinds of land, whether
agricultural, residential, or mineral.^[19] Since the law in this case does not make any
distinction nor intended to make any exception, when it speaks of “any
judgment” which maybe charged against the counterbond,
it should be interpreted to refer not only to a final and executory
judgment in the case but also a judgment pending appeal.

All that is required is
that the conditions provided for by law are complied with, as outlined in the
case of Towers Assurance Corporation v. Ororama Supermart,^[20]

“Under Section 17, in order that the judgment creditor might
recover from the surety on the counterbond, it is
necessary (1) that the execution be first issued against the principal debtor
and that such execution was returned unsatisfied in whole or in part; (2) that
the creditor make a demand upon the surety for the satisfaction of the
judgment, and (3) that the surety be given notice and a summary hearing on the
same action as to his liability for the judgment under his counterbond.”

The rule therefore, is that the counterbond
to lift attachment that is issued in accordance with the provisions of Section
5, Rule 57, of the Rules of Court, shall be charged with the payment of any judgment that is returned
unsatisfied.  It covers not only a final
and executory judgment but also the execution of a
judgment pending appeal.

WHEREFORE, the petition is hereby DISMISSED for lack of
merit and the restraining order issued on September 25, 1985 is hereby dissolved with costs against petitioner.

SO ORDERED.

Yap, (Chairman), Narvasa, Melencio-Herrera, Cruz, and
Sarmiento, JJ., concur.

Feliciano, J., on leave.

^[1]
Annex A, Petition, page 22, Rollo.

^[2]
Page 61, Rollo.

^[3]
Annex H, Petition, page
56, Rollo.

^[4]
Annex D, page 36, Rollo.

^[5]
Annex B, Petition, page
29, Rollo.

^[6]
Annex C, Pages 31-35, Rollo, Annex C, Page 40, Rollo.

^[7]
Annex F, Pages 41-42, Rollo.

^[8]
Annex G, Pages 47-55, Rollo.

^[9]
Annex A, Pages 22-23, Rollo.

^[10]
Uy Chu
vs. Imperial, et al., 44 Phil. 27, Matutina vs.
Buslon, et al., L-14637, Aug. 24, 1960, 109 Phil. 140.

^[11]
Luzon Surety Co.,
Inc. vs. De Marbella, et al., L-16088, September 30, 1960, 109 Phil. 734 and Socio vs. Vda. de Leary, 12 SCRA 326, 329.

^[12]
Annex D, page 36, Rollo.

^[13]
Colgate-Palmolive Phil., Inc. v.
Gimenez, G.R. No. 14787, Jan. 28, 1961, 1 SCRA 267
(1961); Libudan v. Gil, G.R. No. 21163, May
17, 1972, 45 SCRA 17 (1972); Dominador v. Derahunan, 49 Phil. 452 (1926); Guevarra
v. Inocentes, G.R. No. 25577, March 15, 1966,
16 SCRA 379 (1966); Director of Lands v. Gonzales, G.R. No. 32522, Jan.
28, 1963; Alfato v. Commission on Elections,
G.R. No. 52749, March 31, 1981, 103 SCRA 741 (1981); Statutory Construction by
Ruben E. Agpalo, 1986, pp. 143-144.

^[14]
14 Loc Cham v. Ocampo, 77 Phil.
636 (1946).

^[15]
Social Security System v. City
of Bacolod, G.R. No. 35726, July 21, 1982, 115 SCRA
412 (1982); Director of lands v. Gonzales, G.R. No. 32522, Jan. 28,
1983.

^[16]
Lo Cham vs. Ocampo, supra.

^[17]
Velasco v.
Lopez, 1 Phil. 720 (1903).

^[18]
Tolentino v.
Catoy, 82 Phil. 300 (1948).

^[19]
Social Security System v. City
of Bacolod, supra; see also Robles v. Zambales
Chromite Co., 104 Phil. 688 (1958); Government v.
Municipality of Binalonan, 32 Phil. 634 (1915);
Director of Lands v. Gonzales, G.R. No. 32522, Jan. 28, 1983; Oliva v. Lamadrid, G.R.
No. 23196, Oct. 31, 1967, 21 SCRA 737 (1967); Escosura
v. San Miguel Brewery, Inc., 114 Phil. 225 (1962); Alfato
v. Commission on Elections, G.R. No. 52749, March 31, 1981, 103 SCRA 741
(1981); Liggett & Myers Tobacco v.
Collector of Internal Revenue, G.R. No. 9415, April 22, 1957, 101 Phil. 106
(1957); Tiu San v. Republic, 96 Phil. 817
(1955); Agpalo, supra, pp. 143-147.

^[20]
80 SCRA 262, 264 (1977); See also Leelin Marketing Corp. v. C & S Agro Dev. Co.,
121 SCRA 725, 730-731 (1983); Dizon vs.
Valdez, 23 SCRA 200, 203 (1968).