G.R. Nos. 65957-58 July 5, 1994
ELEAZAR V. ADLAWAN and ELENA S. ADLAWAN, petitioners, vs. Hon. Judge RAMON AM. TORRES, as Presiding Judge of Branch 6, Regional Trial Court Cebu City, ABOITIZ & COMPANY, INC. and THE PROVINCIAL SHERIFFS OF CEBU, DAVAO, RIZAL and METRO MANILA, Respectively, respondents.

FACTS

Respondent Aboitiz and Company, Inc. filed a collection case (Civil Case No. R-21761) against petitioners Eleazar and Elena Adlawan. The court issued a writ of preliminary attachment, and properties of petitioners were seized. Petitioners moved to set aside the writ, and the court ordered it lifted. Aboitiz then filed a notice of dismissal of its complaint, which the court confirmed. Subsequently, Aboitiz filed a replevin suit (Civil Case No. 619-L) in another branch, and a writ of seizure was issued. Petitioner Eleazar Adlawan challenged this in the Supreme Court (G.R. No. 63225). The Supreme Court ruled that properties held under the attachment writ in the dismissed case should be returned to Adlawan, but properties under the replevin writ remained in custodia legis of the replevin court. After this decision became final, Aboitiz filed two new complaints for collection (Civil Cases Nos. CEB-1185 and CEB-1186) with prayers for writs of attachment. The complaints alleged petitioners mortgaged parcels of land to secure a bank loan, thereby removing and disposing of properties to defraud Aboitiz. The trial courts granted the ex parte applications and issued writs of preliminary attachment. Petitioners filed motions to hold the enforcement in abeyance, arguing the properties were under custodia legis due to the prior Supreme Court case. The cases were consolidated. Respondent Judge denied petitioners’ motion and ordered the sheriffs to proceed with the attachment enforcement. Petitioners filed the present petition for certiorari and mandamus.

ISSUE

Whether the trial court acted with grave abuse of discretion in issuing the writs of preliminary attachment in Civil Cases Nos. CEB-1185 and CEB-1186.

RULING

Yes. The petition is GRANTED. The Supreme Court ruled that the affidavit supporting the application for attachment was insufficient. The affidavit merely recited the grounds for attachment under the Rules of Court without stating the factual circumstances constituting fraud. The bare allegation that petitioners mortgaged properties to defraud Aboitiz, without stating factual bases, did not suffice. The execution of a mortgage is not a means of fraudulently disposing of property, as it merely creates a lien without parting with ownership. Inability to pay is not synonymous with fraudulent intent. The judge should have treated petitioners’ motion for reconsideration as a motion to discharge the attachment and conducted a hearing or required counter-affidavits, as mandated by the Rules. Attachment is a harsh remedy, and the rules must be construed strictly against the applicant. The writ can only be granted on concrete and specific grounds, not on general averments. The Temporary Restraining Order is made permanent. The presiding judge of the Regional Trial Court, Branch 6, Cebu City, is directed to proceed with the resolution of the consolidated civil cases.