MAXIMO UY AND SYLVIA VASQUEZ-UY, PETITIONERS, VS. THE HON. COURT OF APPEALS, ENRIQUE ANLAP AND ROSALINDA MORENO-ANLAP, RESPONDENTS.

Petitioners, spouses Maximo Uy and Sylvia Vasquez, are before Us
praying for the review of the decision of respondent Court of Appeals, dated
April 24, 1990, and its resolution dated September 26, 1990, denying their
motion for reconsideration. The questioned
decision dismissed the petition for certiorari and upheld the order of
attachment against petitioner’s properties, issued by Judge Jesus Tabilon,
Branch 40 of the 7th Judicial Region, Dumaguete City.

Records show that private respondents Enrique Anlap and Rosalinda
Moreno-Anlap are the owners of a fishing vessel known as “cub-cub”
valued at P350,000.00. On September 20,
1985, they rented said vessel and its accessories to petitioners for a period
of sixty (60) days commencing September 20, 1985 until November 19, 1985, at
the rental rate of P8,000.00 per 30-days or for a total sum of P16,000.00,
which petitioners fully paid. The
agreement was that should petitioners continue using the vessel after the
expiration of the lease, the same shall be considered renewed for another
period of one hundred twenty (120) days, provided petitioners pay the amount of
P16,000.00 as advance payment for the first sixty (60) days and another
P16,000.00 after the expiration of the first sixty (60) days. However, despite the expiration of the
original 60-day period petitioners failed to return the fishing vessel and
instead continued using the vessel without paying rentals in spite of repeated
demands.

Hence, respondents filed a complaint against petitioners for
recovery of a sum of money, return of the fishing vessel and damages before the
Regional Trial Court of Negros Oriental, Dumaguete City, Branch 40. After trial on the merits, a judgment, dated
November 29, 1989, was rendered against petitioners ordering them to:

1. Return the fishing
vessel which they leased from respondents, together with its accessories or to
pay its value of P350,000.00 if delivery cannot be made;

2. To pay respondents the
following sums:

a) P32,000.00 for unpaid
rentals plus legal rate of interest from the filing of the civil case until
paid;

b) P400/day representing
the daily income of the fishing vessel or its value paid;

c) P3,000.00 as expenses
for litigation;

d) P5,000.00 as moral
damages;

and 20% of all the aforementioned amount as attorneys fees and to
pay cost.

The judgment was predicated on the following findings of the
trial court, to wit:

“Defendants however, failed to deliver
to plaintiffs at Basay, Negros Oriental, the fishing vessel and its accessories
in question up to the present nor pay the rentals thereof, in violation of the
contract of lease . . . which is the law between plaintiffs and
defendants. Obligations arising from
contracts had (sic) the force of law between the contracting parties and should
be complied with in good faith (Art. 1159, New Civil Code). Those who in the performance of their
obligations are guilty of fraud, negligence, or delay and those who in any
manner contravene the tenor thereof, are liable for damages (Art. 1170, New
Civil Code). Defendants (sic) allegation
that on December 21, 1985, plaintiffs went to their house and informed them
that they (plaintiffs) were terminating the lease of the fishing vessel in
question and had already informed Edson Celle the boat engineer to bring the
fishing vessel in question from Zamboanga to Basay do not absolve defendants
from complying with their obligations mandated in the contract of lease, for
aside from the fact that those allegations were not supported with clear and
convincing evidence and therefore, lacks the ring of truth, they were denied by
plaintiffs. That even granting that
those allegations were true, the same cannot be considered delivery of the
fishing vessel . . . as contemplated in . . . the lease contract . . .

x          x          x

“Defendants cannot also claimed (sic) exemption from any
liability regarding the non-delivery of the fishing boat . . . on the ground
that the same got lost due to fortuitous event because in the contract of lease
. . . defendants are bound to pay plaintiffs the value of the fishing boat . .
. in the event of total loss or destruction by fortuitous events. When by law or stipulation, the obligor is
liable even for fortuitous events, the loss of the thing does not extinguish
the obligation and he shall be responsible for damages.”^[1]

On December 15, 1989, petitioners filed a notice of appeal from
the aforesaid decision, while respondents filed an ex-parte motion for writ of
attachment dated December 18, 1989, which was granted, and the same issued on
December 19, 1989. Petitioners’
ex-parte motion to discharge said writ failed. Likewise, their attempt at securing a reversal with the Court of Appeals
was a failure with the dismissal of their petition for certiorari.

Elevating the matter to this Court, petitioners specifically
challenge the propriety of the order of preliminary attachment issued by the
trial court, which reads as follows:

“It appearing that the appeal taken by the defendants by
filing a Notice of Appeal has not been perfected on account of the fact that
the last day for taking an appeal has not yet expired and finding the Ex-parte
Motion for Writ of Attachment to be meritorious, the same is hereby
granted.”^[2]

Petitioners contend that the above-quoted Order does not measure
up to the rigid standard set by this Court in the issuance of preliminary
attachment orders since it does not contain any findings of fact or of
law. The lower court in denying the
motion of the petitioners to discharge the writ of attachment admitted that
“there was no hearing in the granting of the question (sic) writ for this case
was decided by this Court and its factual findings supporting the decision
supports the issuance of the question (sic) writ pursuant to paragraphs (c) and
(d) of Sec. 1, Rule 57 of the Rules of Court. That to conduct a hearing of said motion will just be a repetition in
the presentation of evidence already on record.”^[3]

Petitioners argue that there is nothing in the trial court’s
decision which would support any kind of fraud or concealment which could serve
as basis for attachment. At any rate,
petitioners do not agree that a writ of attachment may be issued upon a ground
established from the evidence in the main case. Petitioners went further to say that during the entire hearing of
the main case, no petition for attachment was filed by the respondents, and it
was only after the appeal was perfected that an ex-parte motion for attachment
was filed.

Attachment is a provisional remedy by which the property of an
adverse party is taken into legal custody as a security for the satisfaction of
any judgment that may be recovered by the plaintiff or any proper party.^[4]
It is an auxiliary remedy the granting of which lies within the sound
discretion of the judge taking cognizance of the principal case upon whose
existence it depends. Its purpose is to
secure a contingent lien on defendant’s property until plaintiff can obtain a
judgment and have such property applied to its satisfaction or to make
provision for unsecured debts in cases where the means of satisfaction thereof
are liable to be removed beyond the jurisdiction or improperly disposed of or
concealed or placed beyond the reach of creditors.^[5]

We find nothing in the Rules of Court which makes notice and
hearing indispensable and mandatory for the issuance of a writ of
attachment. It is simply the duty of
the court to ensure that the writ is issued on concrete and specific grounds
and not on general averments. Such
being the rule, there is no reason why the evidence in the main case cannot be
used as basis for issuance of a writ of attachment, more so if it was proved
that the defendants unjustly detained, improperly disposed of or concealed or
placed the personal property beyond the reach of their creditors.

In the case before Us the writ of attachment sought for was
granted only after trial on the merits and a finding on petitioners’ liability
for the return of the boat leased or its value in case delivery cannot be
effected. Nevertheless, We agree with
the petitioners that We find nothing in the judgment that would justify the issuance
of a writ of attachment.

The statement in respondents’ motion for a writ of attachment
that they are incorporating “by way of reference the allegations of
plaintiffs’ complaint and all the evidence already adduced in this case insofar
as they are applicable;”^[6]
and in which complaint, respondents alleged that petitioners refused and/or
denied them information as to the whereabouts of their fishing vessel,^[7]
are not grounds justifying the issuance of a writ of attachment. Moreover, such allegation was not proved in
the main case. Petitioners’ liability,
if any, is predicated on their non-fulfillment of their obligation under the
lease contract.

Be that as it may, petitioners’ impression that the trial court
loses jurisdiction to issue a writ of attachment upon perfection of the appeal
is misplaced. The rules specifically
state that a motion for a writ of attachment may be filed at the commencement
of an action or at anytime thereafter.^[8]
The trial court may even issue orders for the protection and preservation of
the rights of the parties which do not involve any matter litigated by the
appeal.^[9]

In the case of Galang v. Endencia^[10]
this Court upheld the issuance of a writ of attachment even though appeal had
been perfected. Relying on Sec. 9, Rule
41 of the then Rules of Court, the Court said that “[t]he levy in
attachment of the properties of the defendant upon the allegation that he is
about to dispose of the same to defraud his creditors is one which is intended
for the protection and preservation of the rights of the plaintiff and which in
no way involves any matter litigated by defendant’s appeal.”

In the same case, the Court said that errors committed by the
trial in the appreciation of the probative value of the facts stated in the
petition for the writ do not affect its jurisdiction, but merely the exercise
of such jurisdiction. In such cases,
appeal together with the main case, not certiorari, is the proper
remedy.

PREMISES CONSIDERED, the Petition for Review is hereby
GRANTED, the decision of the Court of Appeals dated April 24, 1990 is hereby
REVERSED and the trial court’s order of preliminary attachment against the
properties of the petitioners is hereby LIFTED and CANCELLED. It is further ordered that properties
attached be restituted to the petitioners or if this is not possible, to allow
petitioners to claim on the bond.

SO ORDERED.

Narvasa, C.J., (Chairman), Feliciano, Regalado, and Campos, Jr., JJ., concur.

^[1]
Trial Court’s Decision, Annex “C” of the petition, pp. 13-14; Rollo,
pp. 37-38.

^[2]
Annex “E” of the petition; Rollo, p. 42; CA-G.R. SP No. 19759
with Justice Luis A. Javellana as ponente and Justice Felipe B. Kalalo and
Justice Luis E. Victor concurring.

^[3]
Annex “I” of the petition, p. 3; Rollo, p. 65

^[4]
Olib v. Pastoral, G.R. No. 81120, 188 SCRA 692 (1990).

^[5]
Insular Bank of Asia & America, Incorporated v. Court of Appeals,
G.R. No. 61011, 190 SCRA 629 (1990).

^[6]
Annex “F” of the Petition, p. 3; Rollo, p. 45.

^[7]
Annex “A” of the Petition, p. 4; Rollo, p. 17.

^[8]
Section 1, Rule 57, Rules of Court.

^[9]
Sec. 9, Rule 41, Rules of Court.

^[10]
73 Phil 399 (1941).