Philippine British Assurance Co., Inc. vs.

Intermediate Appellate Court, 150

SCRA 520, No. L-72005 May 29, 1987

Doctrine:
1. When the law does not distinguish, courts should not distinguish. ( Ubi lex non
distinguit nec nos distinguere debemos)
A. This rule requires that a general term or phrased should not be reduced into
parts and one part distinguished from the other to justify its exclusion from law.
B. The courts should administer the law as it is and not as what they ought to be
but as they find it and without regard to consequences.
C. 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.

sine qua non - an essential condition; a thing that is absolutely necessary.

Writ of Certiorari-petition shall raise only questions of law which must be distinctly
set forth to the Supreme Court.

Facts:

Sycwin Coating & Wires, Inc. Filed a complaint for collection against Varian
Industrial Corporation before the RTC of Quezon City. During the pendency of the
case the Varian Industrial Corporation was able to attach some properties upon
posting of Supersedes Bond, in turn the latter posted a counterbond in the sum of
1.4M thorough the surety Philippine British Assurance Co., Inc.
On December 28, 1984, rendered a decision in favor of the plaintiff, which reads
as:
"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 li-quidated 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.

Varian Industrial Corporation filed an appeal to the decision to the respondent

court. Sycwin Coating & Wires, Inc. Filed a Petition for Execution Pending Appeal,
Varian Industrial Corporation is required to file its comment but none has been filed.
An Order of Execution has been issued but not satisfied as the Varian Industrial
Corporation failed to deliver herein attached personal property so the plaintiff could
collect.
Sycwin Coating & Wires, Inc. filed a motion that the surety be ordered to pay the
value of its bond. On September 12, 1985 the court decided in favor of Sycwin
Coating & Wires, Inc..
Sycwin Coating & Wires, Inc. In its prayer it claims that since the respondent on
this case failed to file a Motion for Reconsideration which is considered a sine qua
non, or absolutely necessary, for a Writ of Certiorarito be granted. But this rule does
not apply under special circumstances that warrants an immediate or more direct
action, such as cases where an Order of Execution had been granted which makes the
relief extremely urgent, then a Temporary Restraining Order was granted in favor of
the defendant and surety or Philippine British Assurance Co., Inc.

***Sections 5, 12, and 17 of Rule 57 of the Revised Rules of Court also provide:
SEC. 5. Manner of attaching property.

The Plaintiff on this case issued a resolution, as a response to the petition of the
Plaintiff, for counterbond with condition, using the basis of Section 5, Rule 57 of the
Revised Rules of Court 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.

Section 12: the appellant may attach property or file a counterbond executed to
the attaching party;

Section 17: once the decision became executory, the surety or sureties in the
counter bond are bound to pay the judgement;
Issue:

The focal issue that emerges is whether an order of execution pending appeal of a
judgment maybe enforced on the counterbond.

Ruling:

Yes, the Court of Appeals may enforce the fulfillment of the judgement through
the counterbond.

Section 5 and 12 of Rule 57, are intended to secure the payment of any judgement,
while in Section 17, once the execution be returned unsatisfied such as on this case, it
is only then that the counterbond shall be used to fulfill the execution of the
judgement. It is well recognized rule that where the law does not distinguish, courts
should not distinguish.

Neither the rules nor the provision of the counterbond stipulates the limits on
counterbond being applied only for final and executory judgement.

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.