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[ G.R. No. 143208. June 21, 2000]

SMILE TOUR CORP. vs. HON JUDGE HIPOLITO DELA VEGA, et al.

THIRD DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated JUN 21 2000.

G.R. No. 143208 (Smile Tour Corporation vs. Hon. Judge Hipolito Dela Vega, Pairing Judge of MTC Branch XIX, Manila, Rogelio G. Jundarino, Sheriff III and Lyben Realty and Development Corporation.)

The instant pleading is denominated as an "Application for Preliminary Injunction and to Lift the Order of Garnishment" filed by petitioner Smile Tour Corporation which is represented by one Myung Soon Ra, a Korean national. The pleading prays that the "petition be given due course" and that a writ of preliminary injunction be issued to restrain, enjoin and prohibit respondent Sheriff III Rogelio G. Jundarino from further proceeding with the auction sale of the equipment and properties allegedly owned by petitioner corporation. Petitioner further prays that the order of garnishment against its company funds deposited with the Security Bank, EDSA extension branch be lifted.

The pleading alleges that a case for unlawful detainer involving the leased premises located at Nos. 1721 and 1723 Lyben Building, A. Mabini St., Malate, Manila was filed against the Smile Group of Companies Philippines Corporation by respondent Lyben Realty and Development Corporation before Judge Hipolito dela Vega of the Metropolitan Trial Court Manila, Branch XIX; that Judge dela Vega rendered a decision therein in favor of herein respondent corporation and thereafter a writ of execution was issued; that respondent corporation filed a Motion to Break Open dated May 29, 2000 but the Smile Group of Companies Philippines Corporation never received any court order relative to the said motion; that prior to the filing of the said motion, Sheriff Jundarino proceeded to the office of the Smile Tour Corporation at Room 304 Do�a Generosa Bldg., No. 282 EDSA Extension, Pasay City, instead of at Smile Group of Companies Philippines Corporation at Lyben Bldg. in Makati; that the latter company is different and distinct from the former; that respondents violently enforced the execution against the office equipments and furnitures of petitioner and an order of garnishment was issued against its bank account; and that an inventory was effected and the public auction was scheduled on June 1, 2000. Petitioner contends that the respondents violated the writ of execution as the notice of levy and sale on execution was directed against the properties of Smile Group of Companies Philippines Corporation and not against herein petitioner.

The "petition" must fail.

Firstly, petitioner is allegedly a corporation and is represented by one Myung Soon Ra. Petitioner failed to state in the pleading specific facts showing the capacity of the party-petitioner to sue or the authority of the party to sue in a representative capacity or the legal existence of an organized association of persons in violation of Section 4, Rule 8 of the 1997 Rules of Civil Procedure.

Secondly, the writ of execution and order of garnishment assailed by petitioner as well as pleadings and documents relevant and pertinent thereto are not attached to the petition.

Thirdly, it is alleged that the public auction was scheduled on June 1, 2000. Clearly, there is no more act or proceeding to be enjoined.

Fourthly, the writ of execution and order of garnishment assailed from were issued by the Metropolitan Trial Court of Manila. The pleading is denominated as an Application for preliminary injunction and to Life Order of Garnishment" which is merely a provisional or ancillary remedy under Rule 58. The appropriate remedy is a special civil action of certiorari under Rule 65. This notwithstanding, while this Court has concurrent jurisdiction with the Court of Appeals and the Regional Trial Court to issue writs of mandamus, prohibition or certiorari, the litigants are well advised against the taking a direct recourse to the Supreme Court. Instead, they should initially seek the proper relief from the lower courts (Pearson vs. IAC, 295 SCRA 27) under the principle of hierarchy of courts.

Finally, the present "petition" is not the speedy and adequate remedy in the ordinary course of law. Where the property levied on is claimed by a third person other than the judgment obligor or his agent, Rule 39 of the Rules on Civil Procedure provides for the proper recourse.

WHEREFORE, the "petition" denominated as an "Application for Preliminary Injunction and to Lift the Order of Garnishment" is hereby DISMISSED.

Very truly yours,

(Sgd.) JULIETA Y. CARREON

Clerk of Court

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