MACHINERY & ENGINEERING SUPPLIES vs .

THE HONORABLE COURT OF APPEALS

EN BANC

[G.R. No. L-7057. October 29, 1954.]

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., INC., and ANTONIO VILLARAMA , respondents.

Vicente J. Francisco for petitioner.

Capistrano & Capistrano for respondents.

SYLLABUS

1. REPLEVIN; DUTY OF SHERIFF IS MINISTERIAL IN CARRYING OUT THE

COURT'S ORDER BUT NOT TO DESTROY; POWER OF COURT TO ISSUE ORDER OF
REINSTALLATION OF EQUIPMENTS DESTROYED. While the seizure of the
equipments and personal properties was ordered by the respondent court, it is
however, logical to presume that the same did not authorize the petitioner or its agents
to destroy, said machineries and equipments. The Provincial Sheriff's tortious act 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 we can not but hold that same was
within its jurisdiction to issue.
2. ID.; ID.; SCOPE OF SHERIFF'S DUTY. The ministerial duty of the sheriff
should have its limitations. The sheriff knew and must have known what is inherently
right and inherently wrong, more so when a letter was shown to him 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
guarded so as not to frustrate the order of seizure issued by the trial court.
3. ID.; APPLICABLE ONLY TO RECOVER 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.
4. ID.; MACHINERY AND EQUIPMENT, WHEN IMMOVABLE. The machinery
and equipment in question appeared to be attached to the land, particularly to the
concrete foundation of a building, 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 to also cut some of its wooden supports. Said machinery and equipment
were "intended by the owner of the tenement for an industry" carried on said immovable
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 and tended "directly to meet the needs of said industry." For these reasons, they were
already immovable pursuant to paragraph 3 and 5 of Article 415 of Civil Code of the
Philippines.
5. ID.; RESTITUTION; REINSTALLATION OF DISMANTLED AND REMOVED
PROPERTY IN ITS ORIGINAL CONDITION. When the restitution of what has been
taken by way of replevin has been ordered, the goods in question shall be returned in
substantially the same condition as when taken (54 C. J., 599-600, 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 reinstallation of said property in conformity with its original
condition.

DECISION

CONCEPCION , J : p

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 led 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. Roco, 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
letter'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
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 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 he re-installed to
their former position and condition (letter, Apendix 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 or 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 13)." (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 led, 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 nulli ed, 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 dismantling 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
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 Provincial Sheriff's tortious act, in obedience to the insistent proddings 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 embarras 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 satis ed, however, that the Court of
Appeals was justified in dismissing the case.
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 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 xed 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 out t, 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 personality; . . .
". . . 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 ling 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 af xed 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 reinstallation of said property in conformity with its original condition.
Wherefore, the decision of the Court of Appeals is hereby af rmed, with
costs against the petitioner. So ordered.
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 Pablo, Bengzon, Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo and
Reyes, J. B. L., JJ., concur.
Paras, C. J., concurs in the result.

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