The 4th class of the Superior Court of Justice has determined the release of a locomotive which was subject to the precautionary measure of arrest, taken to ensure the effectiveness of execution. The decision was given in the special appeal nº 1,423,083 / SP.

In the present case, the railway undertaking, which was not part of the procedural relationship, hired two other companies: the first, responsible for the acquisition and referral of locomotives for Brazil; and the second, to whom the reform and adaptation of wagons was attributed to its due purpose and use. The second undertaking, in turn, hired a third to displacement of the locomotives acquired by sea means, since imported.

contributing to its destination, the contracted carrier has verified unequaled expenditure by the second undertaking, a contractor of the service concerned, which originated a collection action in search of the refund of expenses by the transport against the contractors by the railway undertaking .

The first-degree magistrate granted a precautionary measure in favor of the contracted carrier, arresting a locomotive owned by the railway undertaking, avoiding supposed attempt to transfer liability for the second company, which did not possess goods in Brazil.

The railway undertaking interposed third-party embargoes under the claim which owns the pawned locomotive, aiming at the unlock of good, but unsuccessful to the Court of Justice of the State of São Paulo. In appeal to the STJ, he pointed out by the lack of legal bond with the rules and that, as he did not compute the passive pole of the original collection action, he could not have his assets seized to meet process debt in which it was not part.

The Minister Luis Felipe Solomon, welcomes the thesis of the railway undertaking, which could not respond to the request for a process where it did not compute the passive pole, and consequently guarantee the adimplement of a credit with its goods, has brought the light Article 472 of the Code of Civil Procedure. He said, in his vote, that the sentence will only have an influence on the participants in the process in the processing, not reaching the assets of those who did not participate in the procedural legal relationship, not to be confused the goods of third not interested, even in future execution.