Rule 57 Preliminary Attachment

Provisional Remedies | Rule 57 Yza
Provisional Remedies interest damages of whatever kind,

attorney's fees, litigation expenses, and
Provisional remedies are writs and costs. [B.P. 129, Sec. 33]
processes available during the pendency of
the action which may be resorted to by a
litigant to preserve and protect certain rights
and interests therein pending rendition, and CALO vs ROLDAN
for purposes of the ultimate effects, of a
final judgment in the case. They are The plaintiff filed an action for Injunction and
provisional because they constitute filed a petition for Preliminary Injunction
temporary measures availed of during the and/or Receivership, which was granted by
pendency of the action, and they are the court.
ancillary because they are mere incidents in
and are dependent upon the result of the Issue: W the Provisional Remedy of
main action. (Ma. Carminia C. Calderon
(Preliminary Attachment) is applicable in an
(formerly Ma. Carminia Calderon-Roxas),
Injunction Case. NO
represented by her attorney-in- fact,
Marycris V. Baldevia Vs. Jose Antonio F.
The provisional remedies denominated
Roxas, G.R. No. 185595. January 9, 2013)
attachment, preliminary injunction,
receivership, and delivery of personal
Nature of provisional remedies
property remedies to which parties litigant
may resort for the preservation or protection
Provisional remedies are not causes of of their rights or interest, and for no other
action in themselves but merely adjuncts to purpose, during the pendency of the
a main suit. They are temporary measures principal action. If an action, by its nature,
availed of during the pendency of the action does not require such protection or
and ancillary because they are mere preservation, said remedies can not be
incidents. [Estares v. Court of Appeals, 459 applied for and granted. To each kind of
SCRA 604] action or actions a proper provisional
remedy is provided for by law. The Rules of
Purpose of provisional remedies Court clearly specify the case in which they
may be properly granted. .
The provisional remedies denominated
attachment, preliminary injunction, Attachment may be issued only in the case
receivership, and delivery of personal or actions specifically stated in section 1,
property, provided in Rules 59, 60, 61, and Rule 59, in order that the defendant may not
62 of the Rules of Court, respectively, are dispose of his property attached, and thus
remedies to which parties litigant may resort secure the satisfaction of any judgment that
for the preservation or protection of their may be recovered by plaintiff from
rights or interest, and for no other purpose, defendant. For that reason a property
during the pendency of the principal action. subject of litigation between the parties, or
If an action, by its nature, does not require claimed by plaintiff as his, can not be
such protection or preservation, said attached upon motion of the same plaintiff.
remedies can not be applied for and
granted. [Calo v. Roldan, G.R. No. L-252, Undoubtedly, according to law, the
March 30, 1946] provisional remedy proper to plaintiffs'
action of injunction is a preliminary
Jurisdiction over provisional remedies prohibitory injunction.
The court where the main action is pending.

– MTC has exclusive original jurisdiction
over civil actions and probate proceedings,
testate and intestate, including the grant of
provisional remedies in proper cases, where
the value of the personal property, estate, or
amount of the demand does not exceed
One hundred thousand pesos
(P100,000.00) or, in Metro Manila where
such personal property, estate, or amount of
the demand does not exceed Two hundred
thousand pesos (P200,000.00) exclusive of
1 “Do not pray for an easy life, pray for the strength to endure a difficult one.”
RULE 57
Preliminary Attachment Section 1. Grounds upon which attachment

may issue. — At the commencement of the
A preliminary attachment may be defined, action or at any time before entry of
paraphrasing the Rules of Court, as the judgment, a plaintiff or any proper party may
provisional remedy in virtue of which a have the property of the adverse party
plaintiff or other party may, at the attached as security for the satisfaction of
commencement of the action or at any time any judgment that may be recovered in the
thereafter, have the property of the adverse following cases:
party taken into the custody of the court as
security for the satisfaction of any judgment When can the Plaintiff file for PA –
that may be recovered. [Davao Light v.
Court of Appeals, 204 SCRA 343] 1. At the commencement of the action
(refer to discussions in the cases
cited in Sec. 2); or
2. At any time before entry of
Preliminary attachment has three types:
judgment.
(a) Preliminary attachment – one issued
at the commencement of the action or at (a) In an action for the recovery of a
any time before entry of judgment as specified amount of money or
security for the satisfaction of any judgment damages, other than moral and
that may be recovered. Here the court takes exemplary, on a cause of action
custody of the property of the party against arising from law, contract, quasi-
whom attachment is directed. contract, delict or quasi-delict
against a party who is about to
(b) Garnishment – plaintiff seeks to depart from the Philippines with
subject either the property of defendant in intent to defraud his creditors;
the hands of a third person (garnishee) to
his claim or the money which said third Basis of the action – Cause of action arising
person owes the defendant. Garnishment from law, contract, quasi-contract,
does not involve actual seizure of property delict, or quasi delict.
which remains in the hands of the
garnishee. It simply impounds the property Object of the action – recovery of a
in the garnishee’s possession and maintains specified amount of money or
the status quo until the main action is finally damages. (Collection Case, Specific
decided. Garnishment proceedings are Performance, Claim for Damages
usually directed against personal property, arising from QD
tangible or intangible and whether capable
of manual delivery or not. KO Glass vs Valenzuela
(c) Levy on execution – writ issued by the
Pinzon sought for recovery o sum of money
court after judgment by which the property
from KO Glass.
of the judgment obligor is taken into custody
of the court before the sale of the property
on execution for the satisfaction of a final A writ of Preliminary Attachment was issued
judgment. It is the preliminary step to the by the court at the instance of Pinzon on the
sale on execution of the property of the ground that Glass is a Foreigner.
judgment debtor.
Issue: W the PA is validly issued. NO
Purpose of Preliminary Attachment Attachment; In pleading for attachment

1. To seize the property of the debtor in against a foreigner, allegation must not be
advance of the final judgment and to merely that defendant is a foreigner.—
hold it for purposes of satisfying the Pinzon, however, did not allege that the
said judgment; and defendant Kenneth O. Glass “is a foreigner
2. To enable the court to acquire (who) may, at any time, depart from the
jurisdiction over the action by the Philippines with intent to defraud his
actual or constructive seizure of the creditors including the plaintiff.” He merely
property in instances where stated that the defendant Kenneth O. Glass
summons cannot be effected. is a foreigner.
There being no showing, much less an Kinds of Damages that may be a ground
allegation, that the defendants are about to for PA – Except moral and exemplary
depart from the Philippines with intent to (i.e., Nominal, Temperate, Actual,
defraud their creditor, or that they are Liquidated)
nonresident aliens, the attachment of their
properties is not justified. MIALHE vs DE LENCQUESAING
William filed a complaint against Elaine, for

(Moral) Damages and attorney's fees
The amount of money must be specified, allegedly sustained by him by reason of the
and due and demandable. filing by Elaine of a criminal complaint for
estafa, solely for the purpose of
General vs De Venecia embarrassing William and besmirching his
honor and reputation as a private person
and as an Honorary Consul of the Republic
Ruedas filed a collection case based on a
of the Philippine's in the City of Bordeaux,
Promissory Note against General with
France. In his verified complaint, petitioner
Petition for Attachment on the ground that
prayed for the issuance of a writ of
General was about to dispose of his assets
preliminary attachment of the properties of
to defraud creditors.
respondent consisting of 1/6 undivided
interests in certain real properties in the City
PN: For value received, I promise to pay Mr.
of Manila on the ground that "respondent-
Gregorio Ruedas the amount of four
defendant is a non-resident of the
thousand pesos (P4,000), in Philippine
Philippines.
currency within six (6) months after peace
has been declared and government
The court granted the petition and issued a
established in the Philippines.
WPA.
It being a matter of contemporary history
Issue: W an attachment can be issued in a
that the peace treaty between the United
case for Moral Damages. NO
States and Japan has not even been
drafted (at the time of this case), and that no
competent official has formally declared the We find, therefore, and so hold that
advent of peace, it is obvious that the six- respondent court had exceeded its
month period has not begun; and Luis F. jurisdiction in issuing the writ of attachment
General has at present and in June, 1946, on a claim based on an action for damages
no demandable duty to make payment to arising from delict and quasi delict the
plaintiffs amount of which is uncertain and had not
been reduced to judgment just because the
defendant is not a resident of the
On the question of validity of the
Philippines. Because of the uncertainty of
attachment, "the general rule is that, unless
the amount of plaintiff's claim it cannot be
the statute expressly so provides, the
remedy by attachment is not available in said that said claim is over and above all
legal counterclaims that defendant may
respect to a demand which is not due and
have against plaintiff
payable, and if an attachment is issued
upon such a demand without statutory
authority it is void." It is imperative that the amount sought be
liquidated.
It must be observed that under our rules
governing the matter the person seeking a (b) In an action for money or
preliminary attachment must show that "a property embezzled or fraudulently
sufficient cause of action exists" and that misapplied or converted to his own
the amount due him is as much as the sum use by a public officer, or an officer
for which the order of attachment is of a corporation, or an attorney,
granted" (sec. 3, Rule 59). Inasmuch as the factor, broker, agent, or clerk, in the
commitment of Luis F. General has not as course of his employment as such,
yet become demandable, there existed no or by any other person in a fiduciary
cause of action against him, and the capacity, or for a willful violation of
complaint should have been dismissed and duty;
the attachment lifted. (Orbeta vs. Sotto, 58
Phil., 505.)
Tan vs Zandueta money and the certificates of title of his
shares, as well as of his estate, a statement
Tan Kia filed an action to to recover from of his account with a debit balance was
him the amount of P22,500 which he submitted to and approved by the stock
alleged to be the half corresponding to him holders.
of the P45,000 which they won as a prize in
the last drawing of the sweepstakes with Olsen admitted that he has an outstanding
ticket No. 228619 which they purchased debt with the company but denied that he
with a part of the capital invested in a sari- contracted it fraudulently.
sari store. Simultaneously with his
complaint, said Tiu Chay (alias Tan Kia) Issue: W PA is validly issued. YES
asked and obtained from the respondent
judge the attachment of the property of the Having, as he had, absolute and almost
petitioner Isidro Tan exclusive control over the function of the
corporation and its funds by virtue of his
Issue: W the PA was validly issued. YES triple capacity as president, treasurer and
general manager, the defendant-appellant
The writ of preliminary attachment in this should have been more scrupulous in the
case was issued in strict conformity to the application of the funds of said corporation
law, because the complaint wherein it was to his own use. As a trustee of said
issued alleged that the petitioner, after corporation, it was his duty to see by all
collecting the prize of a ticket in the last legal means possible that the interests of
sweepstakes, consisting of the amount of the stockholders were protected, and should
P50,000, belonging to the two, that is, the not abuse the extraordinary opportunity
petitioner and the respondent T. C. (alias T. which his triple position offered him to
K.) appropriated the entire prize exclusively dispose of the funds of the corporation.
for himself, in complete disregard of said T. Ordinary delicacy required that in the
C. (alias T. K.) knowing that one-half thereof disposition of the funds of the corporation
did not belong to him but to said for his personal use, he should be very
respondent; that he was merely a careful, so as to do it in such a way as
depository or agent of the latter as to would be compatible with the interest of the
said half, and that the petitioner acted in stockholders and his fiduciary character.
the manner stated notwithstanding the fact
that he was required to turn over to the Olsen was in effect a lender and a borrower
respondent the part of the prize won at the same time. The conduct of the
corresponding to the latter. defendant-appellant in connection with the
funds of the corporation he represented was
more than an irregularity; and while it is not
sufficiently serious to constitute a criminal
fraud, it is undoubtedly a fraud of a civil
Walter E. Olsen & Co vs Olsen
character, because it is an abuse of
confidence to the damage of the corporation
Olsen and Co filed a collection suit against and its stockholders, and constitutes one of
Olsen, with a prayer for PA. the grounds for application of a PA
Olsen was president-treasurer and general
manager of the Olsen & Co corporation and
exercised direct and almost exclusive
supervision over its function, funds and
books of account. He has been taking
money of the corporation without being duly (c) In an action to recover the
authorized to do so either by the board of possession of property unjustly or
directors or by the by-laws. Of this money, fraudulently taken, detained or
he purchased a house and lot now under converted, when the property, or any
attachment in this case, and shares of stock part thereof, has been concealed,
of Prising at the price of P100 per share, removed, or disposed of to prevent
which he later sold at a higher price. Olsen its being found or taken by the
attempted to justify his conduct, alleging applicant or an authorized person;
that the withdrawal of the funds of the
corporation for his personal use was made
in his current account with said corporation,
in whose treasury he deposited his own
Generally in Attachment, the property cavans, 398.49 thereof and Pablo Tiongson,
sought to be attached must belong to or who deposited 1,026 cavans, 525.51 or the
owned by the ADVERSE party. value thereof at the rate of P3 per cavan.
Santos vs Bernabe Sec. 1 Par (c.) speaks about

POSSESSION, and not ownership. The
Santos(778) and Tiongson(1026) deposited plaintiff may be the owner of the property
some palay with Bernabe. T sued Bernabe sought to be attached, and that this property
for recovery of palay, with prayer for PA. PA may have been unjustly or fraudulently
was issued. There were only 924 cavans of taken by the adverse party.
palay in the warehouse, all were sold in a
public auction by the sheriff and proceeds
were given to Santos pursuant to the writ. S
sues T to recover his portion. The sacks of (d) In an action against a party who
palay bore no marks or signs to distinguish has been guilty of a fraud in
T's from S's. S now contends that T cannot contracting the debt or incurring the
claim the palay attached and sold because obligation upon which the action is
in soliciting the attachment, he impliedly brought, or in the performance
admitted that the palay belonged to B. thereof;
Issue: W Attachment was properly issued. The FRAUD pertains to the “contracting the
YES debt.” Necessarily, the fraud must have
induced or enticed the other party to enter
It will be seen that the action brought by to a contract by reason of such fraud.
Pablo Tiongson against Jose C. Bernabe is
that provided for the delivery of personal Fraud:
property. Although it is true that the plaintiff
and his attorney did not follow strictly the
1. Must be specifically alleged;
procedure provided in said section for
2. Must be stated with factual
claiming the delivery of said personal
averments; and
property, nevertheless, the procedure
3. There must be proof of fraud.
followed by him may be construed as
equivalent thereto, considering that under
the law, "the provisions of this Code, and Philippine Bank of Communications vs
the proceedings under it, shall be liberally CA
construed, in order to promote its object and
assist the parties in obtaining speedy PBCom filed a collection suit for a sum of
justice." money representing proceeds of goods
covered by a trust receipt. PBCom applied
Liberally construing, therefore, the writ of for a PA on the ground that Filipinas
attachment applied for by Pablo Tiongson violated the trust receipt law, as such it
against the property of Jose C. Bernabe constitutes estafa (meaning there is fraud).
may be construed as a claim for the delivery
of the sacks of palay deposited by the Issue: W the PA is validly issued. NO
former with the latter.
An order of attachment cannot be issued on
"ART. 381. If, by the will of their owners, two a general averment, such as one
things of identical or dissimilar nature are ceremoniously quoting from a pertinent
mixed, or if the mixture occurs accidentally, rule.—While the Motion refers to the
if in the latter case the things cannot be transaction complained of as involving trust
separated without injury, each owner shall receipts, the violation of the terms of which
acquire a right in the mixture proportionate is qualified by law as constituting estafa, it
to the part belonging to him, according to does not follow that a writ of attachment can
the value of the things mixed or com and should automatically issue. Petitioner
mingled." cannot merely cite Section 1(b) and (d),
Rule 57, of the Revised Rules of Court, as
The number of kilos in a cavan not having mere reproduction of the rules, without
been deter mined, we will take the more, cannot serve as good ground for
proportion only of the 924 ca vans of palay issuing a writ of attachment. An order of
which were attached and sold, thereby attachment cannot be issued on a general
giving Urbano Santos, who deposited 778
averment, such as one ceremoniously personalities or from other legitimate
quoting from a pertinent rule. business transactions.
A debt is fraudulently contracted if at the P.O. Valdez, Inc. was required to provide
time of contracting it the debtor has a collateral security for the loan: 1. certificates
preconceived plan or intention not to of stock of several corporations 2. executed
pay.—To sustain an attachment on this a Real Estate Mortgage in favor of the SIHI
ground, it must be shown that the debtor in covering two parcels of land
contracting the debt or incurring the
obligation intended to defraud the creditor. When Pedro Valdez' two checks were
The fraud must relate to the execution of the deposited by the petitioner upon maturity,
agreement and must have been the reason they bounced for insufficient funds.
which induced the other party into giving
consent which he would not have otherwise SIHI filed a collection suit with petition for
given. To constitute a ground for attachment PA on the ground of Valdez Inc alleged
in Section 1 (d), Rule 57 of the Rules of misrepresentation in the Agreement for
Court, fraud should be committed upon Discounting Receivables and in the deeds
contracting the obligation sued upon. A debt of sale of said receivables.
is fraudulently contracted if at the time of
contracting it the debtor has a preconceived ISSUE: W there is a valid ground for PA.
plan or intention not to pay, as it is in this NO
case. Fraud is a state of mind and need not
be proved by direct evidence but may be It can hardly be doubted that those
inferred from the circumstances attendant in representations in petitioner's printed deeds
each case (Republic v. Gonzales, 13 SCRA of sale were false. But false though they
633). were, the SIHI cannot claim to have been
deceived or deluded by them because it
Fraudulent intent not to honor the admitted knew, or should have known, that the issuer
obligation cannot be inferred from the of the checks, Pedro O. Valdez, wks not a
debtor’s inability to pay or to comply with the "buyer" of the "merchandise and
obligations.—We find an absence of factual personalities made in the ordinary course of
allegations as to how the fraud alleged by business" by P.O. Valdez, Inc. of which he
petitioner was committed. As correctly held was the president.
by respondent Court of Appeals, such
fraudulent intent not to honor the admitted SIHI was not defrauded by their issuance
obligation cannot be inferred from the because the loans had been contracted and
debtor’s inability to pay or to comply with the released to P.O. Valdez, Inc. long before
obligations. On the other hand, as stressed, the checks were issued.
above, fraud may be gleaned from a
preconceived plan or intention not to pay.
As to the other collaterals:
This does not appear to be so in the case at
bar.
1. With respect to the shares of
stock, the decline in their value did not
mean that the Valdez entered into the loan
transaction in bad faith or with fraudulent
Falsities or misrepresentations in the intent for they could not have foreseen how
execution of collaterals for a loan are not a the stocks would fare in the market. And if
ground for PA. SIHI thought they were worthless at the
time, it should have rejected them as
State Investment House Inc vs CA collateral.
Valdez executed Surety Agreements to 2. With respect to the two parcels of land
secure loans of P.O. Valdez, Inc. from the which were mortgaged to the petitioner,
petitioner State Investment. SIHI should also have declined to accept
them as collateral if it believed they were
Later, SIHI and P.O. Valdez, Inc. entered worth less than their supposed value.
into an agreement for discounting with the
SIHI the receivables of P.O. Valdez, Inc.
The two checks or "receivables" were
issued by Pedro Valdez allegedly for "actual
sales of its merchandise and/or
A general averment of fraud is not sufficient insufficient allegations, it should at once be
to justify the issuance of a PA. corrected.
Wee vs Tankiansee
Wee filed an action for recovery of his AS TO FRAUD IN THE PERFORMANCE

money placements plus damages, with a OF THE OBLIGATION
prayer for attachment on the ground that
Tankiansee, being an officer of Wincorp, Metro, Inc. vs Lara’s Gifts
connived with other defendants to defraud
Wee. Sps. Villafuerte (Lara’s) filed an action
against against Sps. Juan (Metro) for sum
Issue: W a PA can be issued based on such of money and damages with prayer for PA.
ground. NO
Lara and Metro entered into a contract
For a writ of attachment to issue under this where Lara will submit to Metro purchase
rule, the applicant must sufficiently show the orders received from Lara’s US buyer and
factual circumstances of the alleged fraud that Lara will receive a commission from
because fraudulent intent cannot be inferred such sale. Metro did not give Lara the
from the debtor’s mere non-payment of the commission and worse, Metro transacted
debt or failure to comply with his obligation. directly to Lara’s customers, in violation of
The applicant must then be able to their agreement.
demonstrate that the debtor has intended to
defraud the creditor. Issue: W there is a sufficient ground for
issuance of PA. YES
The affidavit must contain such particulars
as to how the fraud imputed to Tankiansee To sustain an attachment on this ground, it
was committed for the court to decide must be shown that the debtor in
whether or not to issue the writ. Absent any contracting the debt or incurring the
statement of other factual circumstances to obligation intended to defraud the creditor.
show that respondent, at the time of The fraud must relate to the execution of the
contracting the obligation, had a agreement and must have been the reason
preconceived plan or intention not to pay, or which induced the other party into giving
without any showing of how respondent consent which he would not have otherwise
committed the alleged fraud, the general given. To constitute a ground for attachment
averment in the affidavit that respondent is in Section 1(d), Rule 57 of the Rules of
an officer and director of Wincorp who Court, fraud should be committed upon
allegedly connived with the other contracting the obligation sued upon. A debt
defendants to commit a fraud, is insufficient is fraudulently contracted if at the time of
to support the issuance of a writ of contracting it the debtor has a preconceived
preliminary attachment. In the application plan or intention not to pay, as it is in this
for the writ under the said ground, case.
compelling is the need to give a hint about
what constituted the fraud and how it was
The applicant for a writ of preliminary
perpetrated because established is the rule attachment must sufficiently show the
that fraud is never presumed.
factual circumstances of the alleged fraud
because fraudulent intent cannot be inferred
The provisional remedy of preliminary from the debtor’s mere non-payment of the
attachment is harsh and rigorous for it debt or failure to comply with his obligation.
exposes the debtor to humiliation and
annoyance. The rules governing its
We rule that respondents’ allegation that
issuance are, therefore, strictly construed
petitioners undertook to sell exclusively and
against the applicant, such that if the
only through JRP/LGD for Target Stores
requisites for its grant are not shown to be Corporation but that petitioners transacted
all present, the court shall refrain from
directly with respondents’ foreign buyer is
issuing it, for, otherwise, the court which
sufficient allegation of fraud to support their
issues it acts in excess of its jurisdiction.
application for a writ of preliminary
Likewise, the writ should not be abused to attachment.
cause unnecessary prejudice. If it is
wrongfully issued on the basis of false or
(e) In an action against a party who Moreover, as the buses were mortgaged to
has removed or disposed of his the DPB, their removal or disposal as
property, or is about to do so, with alleged by petitioner to provide the basis for
intent to defraud his creditors; or its prayer for the issuance of a writ of
attachment should be very remote, if not nil.
There is a physical removal of a property. If removal of the buses had in fact been
The mere removal is not sufficient, it must committed, which seems to exist only in
be qualified with his intent to defraud petitioner’s apprehensive imagination, the
creditors. DBP should not have failed to take proper
court action, both civil and criminal, which
Insolvency is not a ground for a PA apparently has not been done.
The dwindling of respondent’s bank account

“Insolvency is not a ground for attachment,
despite its daily income of from P10,000.00
especially when defendant has not been
to P14,000.00 is easily explained by its
shown to have committed any act intended
having to meet heavy operating expenses,
to defraud its creditors. To authorize an
which include salaries and wages of
attachment, at least one of the causes
employees and workers. If, indeed the
mentioned in the statute must exist. Mere
income of the company were sufficiently
insolvency ... is not a ground of attachment.
profitable, it should not allow its buses to fall
A man may be unable to pay his debts in
into disuse by lack of repairs. It should also
full, and still be doing all in his power to pay
maintain a good credit standing with its
them, and, so long as he furnishes no
suppliers of equipment and other needs of
statutory cause of attachment against him,
the company to keep its business a going
no attachment will be against his
concern. Petitioner is only one of the
property." (Max Chamorro & Co vs
suppliers.
Philippine Ready Mix)
It is, indeed, extremely hard to remove the
The removal must be driven by defendant’s
buses, machinery and other equipments
intent to defraud. In Aboitiz, the removal of
which respondent company have to own
the buses was to put it into repair precisely
and keep to be able to engage and continue
to guarantee safety of the riding public.
in the operation of its transportation
business. The sale or other form of
Aboitiz vs Cotabato Bus disposition of any of this kind of property is
not difficult of detection or discovery, and
Aboitiz filed a collection case against strangely, petitioner has adduced no proof
Cotabato Bus and prayed for the issuance of any sale or transfer of any of them, which
of a PA on the ground that there has been should have been easily obtainable.
removal of buses to defraud Aboitiz. It is an
undisputed fact that, as averred by
The attachment grounded on the actual
petitioner itself, the several buses attached removal of property is justified when there is
are nearly junks. However, upon permission physical removal thereof by the debtor.
by the sheriff, five of them were repaired,
but they were substituted with five buses
Intent to defraud is inferred from facts and
which were also in the same condition as
circumstances of the case; Principle that
the five repaired ones before the repair.
every person is presumed to intend the
natural consequences of his acts.
ISSUE: W the removal for the purpose of
repair is a valid ground for PA. NO
People’s Bank & Trust vs Syvel’s Inc.
This cannot be the removal intended as
ground for the issuance of a writ of People’s Bank filed an action for foreclosure
attachment under Section 1(e), Rule 57, of of chattel mortgage against Syvel’s.
the Rules of Court. The repair of the five People’s bank applied for Attachment on the
buses was evidently motivated by a desire ground that Syvel’s has been removing
to serve the interest of the riding public, goods for the purpose of defrauding
clearly not to defraud its creditors, as there People’s Bank.
is no showing that they were not put on the
run after their repairs, as was the obvious Witnesses testified that Syvel’s Inc. had
purpose of their substitution to be placed in disposed of all the articles covered by the
running condition. chattel mortgage but had not remitted the
proceeds to appellee bank; that the Syvel’s
Stores at the Escolta, Rizal Avenue and with intent to defraud defendant’s creditors.
Morayta Street were no longer operated by Proof of fraud is mandated by paragraphs
appellants and that the latter were disposing (d) and (e) of Section 1, Rule 57 of the
of their properties to defraud appellee bank. Revised Rules of Court on the grounds
The actuations of appellants were clearly upon which attachment may issue. Thus,
seen by the witnesses who “saw a Fiat the factual basis on defendant’s intent to
Bantam Car—fiat Car, a small car and defraud must be clearly alleged in the
about three or four persons hurrying; they affidavit in support of the prayer for the writ
were carrying goods coming from the back of attachment if not so specifically alleged in
portion of this store of Syvel’s at the the verified complaint.
Escolta, between 5:30 and 6:30 o’clock in
the evening.” Bare allegation that an encumbrance of a
property is in fraud of the creditor does not
Issue: W the removal of goods is a ground suffice. Factual bases for such conclusion
for PA. YES must be clearly averred.
The attachment sought on the ground of The execution of a mortgage in favor of

actual removal of property is justified where another creditor is not conceived by the
there is physical removal thereof by the Rules as one of the means of fraudulently
debtor, as shown by the records disposing of one’s property. By mortgaging
a piece of property, a debtor merely
Fraudulent concealment of property to delay subjects it to a lien but ownership thereof is
and defraud creditors supports the not parted with.
attachment. Therefore, “the act of debtor
(appellant) in taking his stock of goods from Inability to pay one’s creditors is not
the rear of his store at night, is sufficient to necessarily synonymous with fraudulent
support an attachment upon the ground of intent not to honor an obligation. (Insular
the fraudulent concealment of property for Bank of Asia & America, Inc. v. Court of
the purpose of delaying and defrauding Appeals, 190 SCRA 629 [1990]).
creditors.”
In any case, intent to defraud may be and

usually is inferred from the facts and (f) In an action against a party who
circumstances of the case; it can rarely be does not reside and is not found in
proved by direct evidence. It may be the Philippines, or on whom
gleaned also from the statements and summons may be served by
conduct of the debtor, and in this publication. (1a)
connection, the principle may be applied
that every person is presumed to intend the
natural consequences of his acts. This paragraph pertains to non-resident
defendant.
Q: Is the act of mortgaging the property in
Persons on whom summons may be served
favor of another creditor an act of removal?
by publication:
NO (Adlawan vs Torres)
1. When his identity or whereabouts is
ADLAWAN VS TORRES unknown (Sec. 14, Rule 14);
2. Non residents (Sec. 15, Rule 14);
Adlawan obtained a loan from Aboitiz, which and
he was not able to pay. Later, he executed 3. Residents temporarily out of the
a REM in favour of PCIB covering 11 Philippines (Sec 16, Rule 14).
parcels of land.
RULE 14
Aboitiz filed a collection suit and a petition
for PA on the ground of fraud, i.e, the Section 14. Service upon defendant whose
mortgage executed in favour of PCIB. PA identity or whereabouts are unknown. — In
was issued.
any action where the defendant is
designated as an unknown owner, or the
ISSUE: W PA was properly issued. NO like, or whenever his whereabouts are
unknown and cannot be ascertained by
To justify a preliminary attachment, the diligent inquiry, service may, by leave of
removal or disposal must have been made
court, be effected upon him by publication in "arrested" or who is "not residing in the
a newspaper of general circulation and in Philippine Islands". Only by fiction can it be
such places and for such time as the court held that a corporation is "not residing in the
may order. (16a) Philippine Islands". A corporation has no
home or residence in the sense in which
Section 15. Extraterritorial service. — those terms are applied to natural persons.
When the defendant does not reside and is It can not be said that every statute
not found in the Philippines, and the action applicable to natural persons is applicable
affects the personal status of the plaintiff or to corporations.
relates to, or the subject of which is,
property within the Philippines, in which the There is not the same reason for subjecting
defendant has or claims a lien or interest, a duly licensed foreign corporation to the
actual or contingent, or in which the relief attachment of its property by a plaintiff, as
demanded consists, wholly or in part, in may exist in the case of a natural person not
excluding the defendant from any interest residing in the Philippine Islands.
therein, or the property of the defendant has Corporations, as a rule, are less mobile than
been attached within the Philippines, individuals. This is specially true of foreign
service may, by leave of court, be effected corporations that are carrying on business
out of the Philippines by personal service as by proper authority in these Islands.
under section 6; or by publication in a
newspaper of general circulation in such Said section should not be held applicable
places and for such time as the court may to foreign corporations duly licensed to do
order, in which case a copy of the summons business in the Philippine Islands both
and order of the court shall be sent by because the language and the reason of the
registered mail to the last known address of statute limit it to natural persons. Also, this
the defendant, or in any other manner the does not apply to a domestic corporation.
court may deem sufficient. Any order Our laws and jurisprudence indicate a
granting such leave shall specify a purpose to assimilate foreign
reasonable time, which shall not be less corporations, duly licensed to do
than sixty (60) days after notice, within business here, to the status of domestic
which the defendant must answer. (17a) corporations.
Section 16. Residents temporarily out of May a foreign corporation be considered a

the Philippines. — When any action is resident of the Philippines?
commenced against a defendant who
ordinarily resides within the Philippines, but What effectively makes such a foreign
who is temporarily out of it, service may, by corporation a resident corporation in the
leave of court, be also effected out of the Philippines is its actually being in the
Philippines, as under the preceding section. Philippines and licitly doing business here,
(18a) "locality of existence" being the "necessary
element in the signification" of the term,
Can a foreign corporation be considered a resident corporation.
non-resident defendant for the purpose of
issuance of a PA? NO State Investment House vs Citibank
Claude Neon Lights vs Phil. Advertising CMI obtained loans from Citibank, HSBC,
Bank of America, and SIHI.
Claude is a foreign corporation, with
principal business in Washington. SIHI filed a collection suit against CMI. SIHI
also succeeded in having CMI’s properties
Phil. Advertising sued Claude for damages attached.
for alleged breach of contract, with petition
for PA on the ground that Claude is a Citibank et. al filed a petition for an
foreign corporation. involuntary solvency of CMI. This was
opposed by SIHI contending that the banks
ISSUE: W a foreign corporation be were non resident creditors of CMI.
considered a non-resident defendant for the
purpose of issuance of a PA. NO ISSUE: W Foreign banks licensed to do
business in the Philippines may be
The words of section 1(f) refer to a physical considered as resident of the Philippines.
defendant who is capable of being YES
The assimilation of foreign corporations an action to recover the purchase price paid
authorized to do business in the Philippines to Gallemore.
“to the status of domestic corporations,”
subsumes their being found and operating Gallemore is said to be residing in
as corporations, hence, residing, in the California, USA and his only property is a
country. receivable from a residet in Misamis.
This Court itself has already had occasion This receivable is initially attached to the
to hold that a foreign corporation licitly doing extent of Mabanag’s claim.
business in the Philippines, which is a
defendant in a civil suit, may not be ISSUE: W the court can render a judgment
considered a non-resident within the scope in a case where it failed to obtain jurisdiction
of the legal provision authorizing attachment over the person of the defendant. YES
against a defendant “not residing in the
Philippine Islands;” Parenthetically, if it may Attachment or garnishment of property of a
not be considered as a party not residing in non-resident defendant located in the
the Philippines, or as a party who resides Philippines confers jurisdiction on the court
out of the country, then, logically, it must be in an otherwise personal action. In other
considered a party who does reside in the words, though no jurisdiction is obtained
Philippines, who is a resident of the country. over the debtor’s person, the case may
Be this as it may, this Court pointed out that: proceed to judgment if there is property in
“x x Our laws and jurisprudence indicate a the custody of the court that can be applied
purpose to assimilate foreign corporations, to its satisfaction.
duly licensed to do business here, to the
status of domestic corporations. We think it Attachment is not always necessary if the
would be entirely out of line with this policy ground is that the defendant is temporarily
should we make a discrimination against a out of the Philippines.
foreign corporation, like the petitioner, and
subject its property to the harsh writ of
seizure by attachment when it has complied PCIB vs Alejandro
not only with every requirement of law made
specially of foreign corporations, but in Alejandro, who is temporarily in Hongkong,
addition with every requirement of law made executed a Promissory Note in favour of
of domestic corporations. xx.” PCIB. Alejandro did not meet the terms of
the Note.
What is an action in rem and action in
personam? PCIB filed a collection suit, with petition for
PA on the ground that Alejandro is not a
resident of the Philippines. PCIB contends
A proceeding in personam is a proceeding
that service of summons may be effected
to enforce personal rights and obligations
through publication.
brought against the person and is based on
the jurisdiction of the person. The purpose
of a proceeding in personam is to impose, WPA was granted, and issued.
through the judgment of a court, some
responsibility or liability directly upon the ISSUE: W Sec1(f) covers defendants
person of the defendant. temporarily out of the Philippines. NO
A proceeding in rem is one brought against In order to acquire jurisdiction in actions in

persons seeking to subject the property of personam where defendant resides out of
such persons to the discharge of the claims and is not found in the Philippines, it
assailed. In an action in rem, an individual is becomes a matter of course for the court to
named as defendant and the purpose of the convert the action into a proceeding in rem
proceeding is to subject his interests therein or quasi in rem by attaching the defendant’s
to the obligation or loan burdening the property. The service of summons in this
property. case is no longer for the purpose of
acquiring jurisdiction but for compliance with
the requirements of due process.
Mabanag vs Gallemore
Where the defendant is a resident who is
Gallemore sold to Mabanag parcels of land.
temporarily out of the Philippines,
The sale was later annulled. Mabanag filed
attachment of his/her property in an action
in personam, is not always necessary in consent to be sued had been previously
order for the court to acquire jurisdiction to granted and the state liability adjudged.
hear the case.
Substituted service of summons is the
against a party
against a party
for removal of
against a non
normal mode of service of summons that
Recovery of
Recovery of
Action
possession
recovery of
will confer jurisdiction on the court over the
money or
for fraud
property
property
resident
person of residents temporarily out of the
money
Philippines. Meaning, service of summons
may be effected by (a) leaving copies of the
summons at the defendant’s residence with
Nature of the action

some person of suitable discretion residing
Nature of Action
therein, or (b) by leaving copies at the
defendant’s office or regular place of
Describes the
Describes the
Describes the
Describes the
Describes the
Describes the
business with some competent person in
defendant
defendant
defendant
charge thereof. Hence, the court may
acquire jurisdiction over an action in
personam by mere substituted service
without need of attaching the property of the
defendant.
possession of a property was taken

through fraud to prevent it being
PUBLIC FUND, however, cannot be the
Fraud in contracting a debt, or

Fraud or abuse of confidence
subject of attachment.
removal to defraud creditors

Intent to defraud creditor
PROFESSIONAL VIDEO vs TESDA

Fraud
Provi and TESDA entered into a contract

whereby Provi is to deliver goods and
performance
services to TESDA. Upon delivery of the
goods and services, TESDA’s outstanding
balance remained at 35M despite demands.
found
Provi filed for a complaint for sum of money

against TESDA, and prayed for PA on the
Property
Personal
personal
personal
personal
personal
personal
Kind of
ground of embezzlement by public officials

or real
or real
or real
(Sec1(b)). WPA was issued.
TESDA contends that the public funds

cannot be the subject of attachment and
a party who is about
claimed immunity from suit, being a

Against whom
fiduciary capacity
governmental instrumentality.
non resident
to depart Ph
ISSUE: W public funds can be subject to

attachment. NO
TESDA being a government instrumentality

performing governmental functions, is
immune from suit.
over the res
Jurisdiction
Purpose
Judgment
Judgment
Judgment
Judgment
Judgment
Even assuming that TESDA entered into a

Secure
Secure
Secure
Secure
Secure
Obtain
proprietary contract with PROVI and thereby

gave its implied consent to be sued,
TESDA’s funds are still public in nature and,
thus, cannot be the valid subject of a writ of
A
d
c
garnishment or attachment. TESDA funds,

being sourced from the Treasury, are
moneys belonging to the government, or
any of its departments, in the hands of
public officials. The basic concept, is that
public funds cannot be the object of
garnishment proceedings even if the
Section 2. Issuance and contents of order. issued, not exempt from execution, as may
— An order of attachment may be issued be sufficient to satisfy the applicant's
either ex parte or upon motion with notice demand.
and hearing by the court in which the action
is pending, or by the Court of Appeals or the Section 2 specifically provides that
Supreme Court, and must require the sheriff only properties located in the Philippines
of the court to attach so much of the may be attached. The Courts have no
property in the Philippines of the party jurisdiction over the properties outside of its
against whom it is issued, not exempt from territorial jurisdiction. Properties located
execution, as may be sufficient to satisfy the outside the Philippines are beyond the
applicant's demand, unless such party reach of the Court.
makes deposit or gives a bond as
hereinafter provided in an amount equal to Q: Can writs of attachment be issued by the
that fixed in the order, which may be the Court applicable to different parts of the
amount sufficient to satisfy the applicant's Philippines?
demand or the value of the property to be
attached as stated by the applicant, Yes. Writs issued by the Court of
exclusive of costs. Several writs may be Appeals and Supreme Court are applicable
issued at the same time to the sheriffs of the anywhere in the Philippines.
courts of different judicial regions. (2a)
Q: When the writ is issued by the RTC or
MTC where the case is pending, where is it
How is an order issued:
enforceable?
1. Ex-parte 1 It is enforceable even outside the
2. Upon motion with notice and judicial region of the Court which issued it.
hearing by the court in which the
action is pending.
Q: When may Writs of attachment issue ex Q: How do you defeat a Writ?

parte?
The party against whom the writ is
Writs of attachment may properly issued may defeat such by making a
issue ex-parte provided that the Court is deposit or by giving a bond in an amount
satisfied that the relevant requisites therefor equal to that fixed in the order, which may
have been fulfilled by the applicant, be the amount sufficient to satisfy the
although it may, in its discretion, require applicant's demand or the value of the
prior hearing on the application with notice property to be attached as stated by the
to the defendant; (Davao Light & Power Co., applicant, exclusive of costs.
Inc. vs. Court of Appeals, 204 SCRA 343,
G.R. No. 93262 November 29, 1991) Q. What is Levy of Attachment?
Q: Who issues the writ? Levy of attachment is the service

upon the defendant a copy of plaintiff's
The Court (MTC or RTC) in which the action affidavit and bond and of the order of
is pending issues the writ, CA or SC. attachment. (Reinsurance Company of the
Orient Inc. Vs. Barcelona)
Q: Who can enforce the order of
attachment? Q: How is levy on property validly effected?
1. Sheriff of the Court; Levy on property pursuant to the writ

2. Chief of Police deputized as sheriff. thus issued may not be validly effected
unless preceded, or contemporaneously
Q: What properties can be attached? accompanied, by service on the defendant
of summons, a copy of the complaint, the
So much of the property in the application for attachment, the order of
Philippines of the party against whom it is attachment, and the plaintiff ‘s attachment
bond. (Davao Light & Power Co., Inc. vs.
1
Court of Appeals)
Ex- Parte - A judicial proceeding, order, injunction, etc., is
said to be ex-parte when it is taken or granted at the
instance and for the benefit of one party only, and without
notice to or contestation by, any person adversely interested
(Black’s Law Dictionary)
Q. What is the duty of the sheriff with the prior or simultaneous service of
regard to the Levy of Attachment? summons and a copy of the complaint in the
main case does not of course confer
The sheriff is required to attach only jurisdiction upon the issuing court over the
so much of the property in the Philippines, person of the defendant.
not exempt from execution, as may be
sufficient to satisfy the applicant's demand, Ordinarily, the prayer in a petition for a writ
the amount of which is stated in the order. of preliminary attachment is embodied or
incorporated in the main complaint itself as
Q. When can the Court issue several writs? one of the forms of relief sought in such
complaint. Thus, valid service of summons
Several writs may be issued at the and a copy of the complaint will in such
same time to the sheriffs of the courts of case vest jurisdiction in the court over the
different judicial regions. defendant both for purposes of the main
case and for purposes of the ancillary
remedy of attachment. In such case, notice
of the main case is at the same time notice
SIEVERT vs CA of the auxiliary proceeding in attachment.
Sievert, a resident of the Philippines, Where the petition for a writ of preliminary
received by mail, the petition for issuance of attachment is embodied in a discrete
Preliminary Attachment, however he had pleading, such petition must be served
not received any summons or copy of the either simultaneously with service of
complaint against him. summons and a copy of the main complaint,
or after jurisdiction over the defendant has
During the hearing for Petition for PA, already been acquired by such service of
Sievert’s counsel opposed claiming lack of summons. Notice of the separate
jurisdiction of the Court over his person attachment petition is not notice of the
since no summons had been served to him main action.
in the main case.
If a court has no jurisdiction over the subject
ISSUE: W a Court which did not acquire matter or over the person of the defendant
jurisdiction over the person of the defendant in the principal action, it simply has no
in the main case may bind such defendant jurisdiction to issue a writ of preliminary
or his property by issuing a PA. NO attachment against the defendant or his
property.
There is no question that a writ of
preliminary attachment may be applied for a When a petition for PA is embodied
plaintiff “at the commencement of the action in a discrete pleading, such petition must be
or at any time thereafter”. However, is not to served either simultaneously with service of
be resolved by determining when an action summons and a copy of the main complaint
may be regarded as having been or after jurisdiction over the defendant is
commenced, a point in time which is not acquired.
necessarily fixed and identical regardless of
the specific purpose for which the Q: When is an action or proceeding
determination is to be made. The critical commenced?
time which must be identified is, rather,
when the trial court acquires authority under An action or proceeding is
law to act coercively against the defendant commenced by the filing of the complaint
or his property in a proceeding in or other initiatory pleading. By that act,
attachment. We believe and so hold that the jurisdiction of the court over the subject
that critical time is the time of the vesting matter or nature of the action or proceeding
of jurisdiction in the court over the is invoked or called into activity; and it is
person of the defendant in the main thus that the court acquires jurisdiction over
case. said subject matter or nature of the action.
And it is by that self-same act of the plaintiff
A court which has not acquired jurisdiction of filing the complaint (or other appropriate
over the person of defendant, cannot bind pleading) that jurisdiction is acquired by the
that defendant whether in the main case or court over his person.
in any ancillary proceeding such as
attachment proceedings. The service of a On the other hand, jurisdiction over
petition for preliminary attachment without the person of the defendant is obtained by
the service of summons or other coercive
process upon him or by his voluntary DAVAO
submission to the authority of the court. SIEVERT LIGHT vs
vs CA CA
Davao Light vs CA Service
of No Service A valid
Davao Light filed a complaint for recovery of summo of summons service of
money & damages against Queensland. n and on the Main summon
The complaint contained an ex-parte other Case was effected
application for PA. docs
Attempt to
On May 3, 1989, the Court granted the ex- be effected
parte application and on May 11, 1989, the The levy was
Levy on despite lack
WPA was issued. made after
Attach- of service of
service of
ment summon in
On May 12, 1989, the Sheriff served the summon
the main
summons, copy of the complaint, WPA, and case
copy of attachment bond to Queensland. petition for a
writ of
Queensland contends that the Court could Filed preliminary
not have validly granted and issued the separately attachment
WPA on May 3 and 11, since the Court did Petition with the is
not acquire jurisdiction over the person of for PA main case incorporated
the defendant. in the main
complaint
ISSUE: W a PA may be issued before the PA is valid
Court acquired jurisdiction over the person but for it to
of the defendant. YES Effect of be effective,
PA is not
lack of jurisdiction
The events that follow the filing of the validly
juris’n over the
complaint as a matter of routine are well issued
over defendant
known. After the complaint is filed,
defend’t must be
summons issues to the defendant, the
acquired
summons is then transmitted to the sheriff,
and finally, service of the summons is
effected on the defendant in any of the ways Stages in the issuance of the writ:
authorized by the Rules of Court. FIRST STAGE: The court issues the
order granting the application.
There is thus ordinarily some appreciable
SECOND STAGE: The writ of
interval of time between the day of the filing
attachment is issued pursuant to
of the complaint and the day of service of
the order granting the writ.
summons of the defendant. During this
THIRD STAGE: The Writ is
period, different acts may be done by the
implemented.
plaintiff or by the Court, which are
unquestionable validity and propriety.
No principle, statutory or jurisprudential,

Cuartero vs CA
prohibits its issuance by any court
before acquisition of jurisdiction over
Cuartero filed a complaint against
the person of the defendant.
Evangelista for sum of money with
damages, with a prayer for issuance of PA.
It goes without saying that whatever be the
acts done by the Court prior to the
On Aug. 24, 1990, the Court issued an
acquisition of jurisdiction over the person of
order granting ex-parte the issuance of the
defendant, and however valid and proper
PA.
they might otherwise be, these do not and
cannot bind and affect the defendant until
Sept 19, 1990, the WPA was issued.
and unless jurisdiction over his person is
eventually obtained by the court, either by On Sept. 20, 1990, the writ was
service on him of summons or other implemented and the copy of WPA,
coercive process or his voluntary summons and complaint were
submission to the court's authority. simultaneously served on Evangelista.
Evangelista contends that the WPA is Q: In what instance is a hearing required
improperly issued for lack of jurisdiction despite compliance with the requirements of
over his person and that there is a violation affidavit and bond of the applicant?
of his constitutional right to due process
when the writ was issued without notice and 1. If the ground to which the
hearing. Attachment is issued is stated in
general terms or averments; and
ISSUE: W the WPA is properly issued. YES
2. If the Judge is not convinced of
On Due Process: the sufficiency of the affidavit.
As has been expressly ruled in BF Homes, Salas vs Adil

Inc. v. Court of Appeals, no notice to the
adverse party or hearing of the application Bedro and Yu filed an action against Salas
is required inasmuch as the time which the for the annulment of a deed of sale covering
hearing will take could be enough to enable a lot which is said to be a subdivision lot,
the defendant to abscond or dispose of his and recovery of damages. They also filed
property before a writ of attachment issues. for a motion for Attachment on the ground
In such a case, a hearing would render that defendants have removed or disposed
nugatory the purpose of this provisional of their properties or about to do so with
remedy. The ruling remains good law. There intent to defraud the plaintiffs.
is, thus, no merit in the private respondents'
claim of violation of their constitutionally The Judge issued ex-parte a WPA, and
guaranteed right to due process. subsequently the Sheriff levied upon the
properties stated in the writ.
On Lack of Jurisdiction:
ISSUE: W the issuance ex-parte of a WPA
A writ of preliminary attachment may issue is proper. NO
even before summons is served upon the
defendant. However, we have likewise ruled Considering the gravity of the allegation that
that the writ cannot bind and affect the herein petitioners have removed or
defendant until jurisdiction over his person disposed of their properties or are about to
is eventually obtained. do so with intent to defraud their creditors,
and further considering that the affidavit in
When is jurisdiction necessary: 3rd stage. support of the preliminary attachment
merely states such ground in general terms,
For the first and second stages, it is not without specific allegations of circumstances
necessary that jurisdiction over the person to show the reason why plaintiffs believe
of the defendant should first be obtained. that defendants are disposing of their
However, once the implementation properties in fraud of creditors, it was
commences, it is required that the court incumbent upon respondent Judge to give
must have acquired jurisdiction over the notice to petitioners and to allow them to
defendant for without such jurisdiction, the present their position at a hearing wherein
court has no power and authority to act in evidence is to be received.
any manner against the defendant. Any
order issuing from the Court will not bind the “All in all due process would seem to require
defendant. that both parties further ventilate their
respective contentions in a hearing that
Writ of attachment may be issued ex-parte could indeed reveal the truth. Fairness
or without a hearing provided that the Court would be served thereby, the demand of
is satisfied that the relevant requisites reason satisfied.”
therefore have been fulfilled by the
applicant. Moreover, it appears from the records that
private respondent are claiming unliquidated
Q: What are the requisites? damages, including moral damages, from
petitioners. The authorities agree that the
Under section 3, Rule 57 of the writ of attachment is not available in a suit
Rules of Court, the only requisites for the for damages where the amount claimed is
issuance of the writ are the affidavit and contigent or unliquidated.
bond of the applicant.
La Granja vs Samson
La Granja filed a complaint against Chua for

the recovery of the sum of money, and
prayed for the issuance of attachment on
the ground that defendants have disposed
or are disposing of their properties in favor
of the Asiatic Petroleum Co., with intent to
defraud their creditors.
The judge, wishing to ascertain or convince

himself of the truth of the alleged disposal,
required La Granja to present evidence to
substantiate its allegation, before granting
its petition.
La Granja refused to comply with the court's

requirement, alleging as its ground that was
not obliged to do so.
The Judge dismissed said petition for an

order of attachment.
ISSUE: W the mere filing of an affidavit in

due form is sufficient to compel a judge to
issue an order of attachment. NO
Although the law requires nothing more than

the affidavit as a means of establishing the
existence of such facts, nevertheless, such
affidavit must be sufficient to convince
the court of their existence, the court
being justified in rejecting the affidavit if it
does not serve this purpose and in denying
the petition for an order of attachment.
The sufficiency or insufficiency of an

affidavit depends upon the amount of credit
given it by the judge, and its acceptance or
rejection, upon his sound discretion.
Hence, the respondent judge, in requiring

the presentation of evidence to establish the
truth of the allegation of the affidavit that the
defendants had disposed or were disposing
of their property to defraud their creditors,
has done nothing more than exercise his
sound discretion in determining the
sufficiency of the affidavit.
Section 3. Affidavit and bond required. — KO Glass vs Valenzuela
An order of attachment shall be granted
only when it appears by the affidavit of the Pinzon sought for recovery of sum of money
applicant, or of some other person who from KO Glass.
personally knows the facts, that a sufficient
cause of action exists, that the case is one A writ of Preliminary Attachment was issued
of those mentioned in section 1 hereof, that by the court at the instance of Pinzon on the
there is no other sufficient security for the ground that Glass is a Foreigner.
claim sought to be enforced by the action,
and that the amount due to the applicant, or KO Glass opposed saying that the writ of
the value of the property the possession of preliminary attachment upon the ground that
which he is entitled to recover, is as much the affidavit filed was not sufficient for the
as the sum for which the order is granted reason that:
above all legal counterclaims. The affidavit,
and the bond required by the next (1) the affidavit did not state that the amount
succeeding section, must be duly filed with of plaintiff’s claim was above all legal set-
the court before the order issues. (3a) offs or counterclaims, as required by Sec. 3,
Rule 57 of the Revised Rules of Court;
Q: When can an order of attachment
granted? (2) the affidavit did not state that there is no
other sufficient security for the claim sought
The order of attachment may be granted to be recovered by the action as also
when it appears by the affidavit of the required by said Sec. 3; and
applicant, or of some other person who
personally knows the facts: (3) the affidavit did not specify any of the
grounds enumerated in Sec. 1 of Rule 57.
1. That a sufficient cause of action
exists; Issue: W the PA is validly issued. NO
2. That the case is one of those
mentioned in section 1; It has been held that the failure to allege in
3. That there is no other sufficient the affidavit the requisites prescribed for the
security for the claim sought to be issuance of a writ of preliminary attachment,
enforced by the action; and renders the writ of preliminary attachment
4. that the amount due to the applicant, issued against the property of the defendant
or the value of the property the fatally defective, and the judge issuing it is
possession of which he is entitled to deemed to have acted in excess of his
recover, is as much as the sum for jurisdiction.
which the order is granted above all
legal counterclaims.
Q: What are the requisites for an

attachment to be granted? Guzman vs Catolico
The affidavit, and the bond (Sec. 4) Catolico filed an action against Guzman for
must be duly filed with the court before the the recovery of his fees for services
order issues. rendered as an attorney, and prayed for the
issuance of PA on the ground that
Q: What is the effect if the affidavit does not defendant is trying to sell and dispose his
contain all the matters required to be stated properties with intent to defraud his
therein? creditors.
Writ issued on the basis of such The TC issued an order granting the
affidavit is fatally defective. petition, and subsequently issued the WPA.
Guzman contends that the PA was

improperly issued since there is no
allegation in the affidavit that (a.) there is no
other sufficient security for the claim sought
to be enforced by the action; (b.) the
amount due to the applicant, or the value of
the property the possession of which he is
entitled to recover, is as much as the sum Jardine admits that they did not use the
for which the order is granted above all legal exact words of the Rules but the provision in
counterclaims; and (c.) the fact that the (D.) is compliant, and while they did not
affidavit is based on mere information and state that the sum due is above all legal
belief of the plaintiff. counterclaim, such is not necessary in the
face of actual proof in the answer which did
Issue: W the PA is validly issued. NO not carry any counterclaim. They stressed
that mere forms must not be given more
As to (a.) and (b.): There is no allegation, weight than substance.
either in the complaint or in the affidavit
solemnizing it, to the effect that there is no ISSUE: W the non compliance of the formal
other sufficient security for the claim which requirements invalidate the PA. YES.
the plaintiff seeks to enforce by his action,
and that the amount due him from the It has been held that the failure to allege in
defendant, above all legal set-offs and the affidavit the requisites prescribed for the
counterclaims, is as much as the sum for issuance of the writ of preliminary
which the writ of preliminary attachment has attachment, renders the writ of preliminary
been granted. Now then, does the omission attachment issued against the property of
of these two requisites constitute a defect the defendant fatally defective, and the
preventing a judge of the Court of First judge issuing it is deemed to have acted in
Instance from issuing a writ of preliminary excess of his jurisdiction. In such cases, the
attachment. defect cannot even be cured by
amendment.
As to (c.): The affidavit is not defective
because in it the therein plaintiff and herein The general rule is that the affidavit is the
respondent Alfredo Catolico states "that all foundation of the writ, and if none be filed or
the allegations thereof are certain and true, one be filed which wholly fails to set out
to the best of my knowledge and belief", some facts required by law to be stated
and not that they are so according to his therein, there is no jurisdiction and the
information and belief. proceedings are null and void. Thus, while
not unmindful of the fact that the property
seized under the writ and brought into court
is what the court finally exercises jurisdiction
JARDINE MANILA FINANCE vs CA over, the court cannot subscribe to the
proposition that the steps pointed out by
statutes to obtain such writ are
Jardine filed a collection suit against Impact,
inconsequential, and in no sense
and impleaded de Leons by reason of their
jurisdictional. Considering that petitioner’s
Surety Agreement Undertaking. Jardine
application for the subject writ of preliminary
prayed for the issuance of PA on the ground
attachment did not actually fully comply with
of fraud in contracting the obligation.
the requisites prescribed by law, said writ is,
as it is hereby declared null and void and of
In their affidavit, they state that (D.) Impact, no effect whatsoever.
Ricardo and Eduardo (de Leon) have no
visible other sufficient security for the claim
Further it must be noted that in Clause (D.)
sought to be enforced by the action other
Jardine stated that they have sufficient
than their real and personal properties
property.
located in Metro Manila, Province of Rizal,
Province of Nueva Ecija, or elsewhere.
The TC granted and issued the PA.

Ting vs Villarin
Impact et al contends that the issuance of
PA is irregular because it failed to allege Consolidated bank filed an action against
that (a.) there is no other sufficient security Perlon Mills and Roberto (Director) and
for the claim sought to be enforced by the Dolores (Wife – impleaded so as to bind
action; (b.) the amount due to the applicant, conjugal partnership which allegedly
or the value of the property the possession benefitted). The first cause of action is
of which he is entitled to recover, is as much based on the promissory notes which
as the sum for which the order is granted Roberto signed binding himself jointly and
above all legal counterclaims. severally liable to Conso.
The second cause of action of Consolidated Simultaneously with the filing of the
is the violation of the trust receipts. They complaint, plaintiffs asked for a writ of
prayed for PA on the ground of fraud in attachment, which was granted.
contracting the obligations.
Cu Unjieng filed a motion to dismiss on the
In their affidavit, Ting stated that [16. ground that the affidavit is defective
Defendants are guilty of fraud in contracting because it fails to state (a) that there is no
their obligations more specifically illustrated allegation, either in the affidavit or the
by their violation of the trust receipt complaint, that there was no other sufficient
agreement which is a ground defined under security for the claim sought to be enforced
Sec. 1, Rule 57 of the Rules of Court for the by the action and (b) that the amount due to
issuance of a writ of preliminary the plaintiff above all legal set-offs or
attachment.] counterclaims is as much as the sum for
which the order is granted.
ISSUE: W the writ is validly issued. NO
The bank asked leave to file an amended
The complaint did not provide for a sufficient affidavit in support of its petition for a writ of
basis for the issuance of a writ of attachment.
preliminary attachment. It is not enough for
the complaint to ritualistically cite, as here, ISSUE: W a defective affidavit can be cured
that the defendants are “guilty of fraud in by an amendment so as to justify issuance
contracting an obligation.” An order of of a PA. NO.
attachment cannot be issued on a general
averment, such as one ceremoniously Citing Winters vs Pearsons, “on a motion to
quoting from a pertinent rule.6 The need for discharge a writ of attachment, on the
a recitation of factual circumstances that ground that it was improperly or irregularly
support the application becomes more issued, the affidavit on which the writ was
compelling here considering that the ground issued is not amendable. This, in our
relied upon is “fraud in contracting an opinion, is in accordance with the rule,
obligation.” The complaint utterly failed to which provides that the writ was improperly
even give a hint about what constituted the or irregularly issued, it must be discharged.
fraud and how it was perpetrated. Fraud
cannot be presumed. To allow the affidavit to be made good by
amendment, and upon such action refused
to discharge the writ, would violate the
requirements of the rule on motion to
A defective affidavit cannot be cured by discharge a writ.
amendment so as to support the issuance
of PA, and WPA issued based on such It therefore allows that where the affidavit
affidavit must be discharged. for attachment is fatally defective, the
attachment must be held to have been
Q: What, then, may be the remedy of the improperly or irregularly issued and must be
plaintiff? discharged, and such fatal defect cannot be
cured by amendment. The writ of
A: Before the issuance of a PA, the affidavit attachment in this case should therefore
can be amended, or the plaintiff may file for have been discharged.
the application of a new WPA.
Cu Unjieng vs Goddard
Carlos vs Sandoval
Cu Unjieng allegedly entered into a
fraudulent conspiracy or combination with Carlos sought to nullify the agreements he
one Fernandez, by which the conspirators contracted with Sandoval for want of
would hypothecate and pledge forged consideration, the premise for these
securities of various kinds with the various contracts being non-existent, and prayed for
banking institutions and other commercial the issuance of PA. The RTC granted and
firms of the City of Manila, and pursuant to issued a WPA. Carlos posted a bond
said fraudulent conspiracy, secured credit for P20,000,000.00.
with the bank, and the plaintiff was
defrauded by the defendants and Sandoval filed Motion to discharge WPA.
Fernandez in the sum of P1,411,312.80.
ISSUE: W the writ was validly issued. NO creditors from attaching additional property
and thus tying up more of the debtor’s
The WPA issued by the RTC was property than was necessary to secure the
improperly granted because there was no indebtedness.
sufficient cause of action to warrant the
preliminary attachment, since Carlos had Thus, to sustain an order of attachment, "it
merely alleged general averments in order is incumbent upon plaintiff to establish
to support his prayer. either of these two facts, to wit:
If the affidavit is proven to be false, the (a) that the obligation had not been secured
WPA issued will be discharged pursuant to originally, or
Sec. 13, Rule 57.
(b) that, if secured at its beginning, the
security later became valueless." 3
When the facts or some of them, stated in

Q: May a PA be issued if there already the plaintiff’s affidavit, are shown by the
exists a security or collateral for a debt? NO defendant to be untrue, the writ of
attachment may be considered as
Salgado vs CA improperly or irregularly issued.
PCIB filed an action against Salgado to

recover sum of money on a Promissory
Note, and prayed for issuance of PA, which When there exist misrepresentation in the
was granted by the Court and PA was affidavit, the issuance of a PA on the basis
issued. In the affidavit, plaintiff stated: of such affidavit, is not valid.
1. that Salgado has fraudulently
PCIB vs Alejandro
misappropriated or converted to their own
personal use and benefit the proceeds of
the sugar given as security for the payment Alejandro, who is temporarily in Hongkong,
of the indebtedness; executed a Promissory Note in favour of
PCIB. Alejandro did not meet the terms of
2. that petitioners are guilty of fraud in the Note.
contracting their obligation and have
concealed, removed or disposed of the PCIB filed a collection suit, with petition for
properties mortgaged or assigned to the PA. In praying for the issuance of WPA,
plaintiff, or are concealing, removing or plaintiff alleged in the affidavit that Alejandro
disposing or about to do so, with intent to is not a resident of the Philippines.
defraud their creditor;
The TC granted the application and issued
3. that the obligation sought to be enforced the writ after petitioner posted a bond.
is genuine and, therefore, a sufficient cause
of action exists; and Subsequently, respondent filed a motion to
quash WPA contending that PCIB knew that
4. that there is no sufficient security for the he maintains a permanent residence
claim sought to be enforced by the action. at Quezon City, and an office address
in Makati City, where PCIB regularly
Salgado moved to quash the writ alleging communicated with him through its
that the indebtedness is secured by a Real representatives.
Estate Mortgage.
ISSUE: W the writ was validly issued. NO
ISSUE: W the writ was validly issued. NO
The representatives of PCIB personally
Sec. 3 provides that an order of attachment transacted with respondent through his
shall be granted when there is no sufficient home address in Quezon City and/or his
security for the claim sought to be enforced office in Makati City. PCIB misrepresented
by the action, among others. and suppressed the facts regarding
Alejandro’s residence considering that it has
The reason for the rule prohibiting personal and official knowledge that for
attachment where indebtedness was purposes of service of summons,
already secured is to prevent the secured Alejandro’s residence and office addresses
are located in the Philippines.
There being misrepresentations in the which the adverse party may be entitled in
affidavit, the issuance of the WPA lacks case there is a subsequent finding that the
basis. applicant is not entitled to the writ. The
Republic of the Philippines need not give
this security as it is presumed to be always
solvent and able to meet its obligations.
Q: Is the state required to post an
attachment bond before a WPA may be
issued? NO
Section 4. Condition of applicant's bond2.
Republic vs Flores — The party applying for the order must
thereafter give a bond executed to the
Republic of the Philippines filed a petition adverse party in the amount fixed by the
for forfeiture of unlawfully acquired court in its order granting the issuance of
properties, with a verified urgent ex-parte the writ, conditioned that the latter will pay
application for the issuance of a writ of all the costs which may be adjudged to the
preliminary attachment, against Maj. Gen. adverse party and all damages which he
Carlos F. Garcia, his wife, and children, in may sustain by reason of the attachment, if
the Sandiganbayan. In praying for the the court shall finally adjudge that the
issuance of a WPA, the Republic applicant was not entitled thereto. (4a)
maintained that, as a sovereign political
entity, it was exempt from filing the required Q: What is the amount of the applicant’s
attachment bond. bond?
A: The Court shall fix in its order granting
The Sandiganbayan issued a resolution the writ the amount of the bond. It may be
ordering the issuance of a WPA against the equal to the applicant’s demand or to the
properties of the Garcias upon the filing by value of the property to be attached.
the Republic of a P1 million attachment
bond. To promptly protect and secure its
claim, the republic filed the attachment Q: What is the bond answerable for?
bond. A: If the court shall finally adjudge that the
applicant was not entitled to PA, the bond
shall answer for the payment of:
1. All the costs which may be adjudged
ISSUE: W the Republic of the Philippines is
to the adverse party; and
required to post an attachment bond in
2. All damages which he may sustain
compliance with Sec. 3 and Sec. 4, Rule 57.
by reason of the attachment.
NO
Q: What the effect of the insufficiency of the

This rule does not cover the State. bond?
In Tolentino vs Carlos, this Court declared A: If the applicant’s bond is insufficient to
that the State as represented by the fully satisfy the costs and damages, any
government is exempt from filing an property of the attaching party not exempt
attachment bond on the theory that it is from execution could be levied on
always solvent. execution. (Sec. 20, Rule 57)
In other words, the issuance of a writ of

preliminary attachment is conditioned on the Q: When plaintiff moves to dismiss an
filing of a bond unless the applicant is the action, may the defendant be entitled to
State. Where the State is the applicant, the damages for wrongful attachment?
filing of the attachment bond is excused. A: Yes. If the plaintiff, by his MTD the action
admits that the attachment was wrongful or
The attachment bond is contingent on and without sufficient cause, the court should
answerable for all costs which may be hear proof of the alleged damage caused to
adjudged to the adverse party and all the defendant for the wrongful attachment.
damages which he may sustain by reason
of the attachment should the court finally
rule that the applicant is not entitled to the
writ of attachment. Thus, it is a security for
2
the payment of the costs and damages to A bond is a financial instrument used as a form of
guarantee or promise. (Black’s Law Dictionary)
Q: What are the kinds of bonds? Arellano vs Flojo
A: They may be:
1. Cash Bonds; Arellano filed a verified complaint for neglect
2. Surety Bonds; or of duty, misconduct, bias, and partiality
3. Property Bonds. against
Q: What damages may an attachment bond (b) Felino Bangalan, then Acting Clerk of
be answerable for? Court III, for issuing the WPA despite the
A: As a general rule, it is limited to actual, or failure of the plaintiffs to post the required
in some cases, temperate or nominal attachment bond of P100,000.00.
damages. However, exemplary damages
may be recovered where the attachment
It appears that what is posted is only a
was established to be maliciously sued out. promissory note in the form of an affidavit
(PCIB vs Alejandro)
executed by Victor Suguitan, Andres
Langaman, and Mariano Retreta.
PCIB vs Alejandro
ISSUE: W a bond can be substituted by an
Alejandro filed a claim for damages in the
undertaking or promissory note. NO
amount of P25 M on the attachment bond
posted by Prudential Guarantee on account
of the wrongful garnishment of his deposits. Where a statute authorizing attachment
requires, as a condition to the issuance of
HELD: PCIB is liable for damages for the the writ, that a bond shall be given by
wrongful issuance of a writ of attachment plaintiff to indemnify defendant for any loss
against respondent, but 25M is excessive. or injury resulting from the attachment in
case it proves to be wrongful, a failure to
ACTUAL damages to be recoverable, they give such bond is fatal, and an attachment
must constitute actual damages duly issued without the necessary bond is
established by competent proofs, which is invalid.
wanting in this case. Hence not awarded
NOMINAL damages may be awarded to a Calderon vs IAC

plaintiff whose right has been violated or
invaded by the defendant, for the purpose of Calderon purchased from the Schulze LBC
vindicating or recognizing that right, and not and its 5 affiliate companies. Thereafter,
for indemnifying the plaintiff for any loss BOC suspended the operations of LBC for
suffered by him. Considering that the right failure to pay customs taxes and duties
of respondent to use his money has been incurred prior to the execution of the sale.
violated by its garnishment. (P50,000) To lift the suspension Calderon paid the
duties to the BOC.
The award of attorneys fees is proper
when a party is compelled to incur Calderon filed a complaint against private
expenses to lift a wrongfully issued writ of respondents to recover said amount paid to
attachment. (P200,000) BOC, with damages by reason of breach of
warranty, and prayed for a PA, alleging: (1.)
Moral damages is awarded on account of that private respondents had deliberately
petitioners misrepresentation and bad faith and willfully concealed from his knowledge
(P500,000) such staggering liability of the LBC for the
purpose of misleading him into buying the
Exemplary damages is awarded six aforesaid companies; and (2.) that
considering petitioners bad faith in securing private respondent Schulze is about to
the writ of attachment, by way of example or depart from the Philippines in order to
correction for public good. This should deter defraud his creditors.
parties in litigations from resorting to
baseless and preposterous allegations to Calderon posted a surety bond of
obtain writs of attachments. (500,000) P1,475,840.00. The TC issued a WPA,
thereafter the properties of Schulze were
attached and their bank deposits were
garnished.
Schulze filed a counterbond, so the TC

issued an order directing the sheriff to return
all real and personal properties already of the surety on the attachment bond
levied upon and to lift the notices of subsists because the final reckoning is
garnishment issued in connection with the when "the Court shall finally adjudge that
said attachment. the attaching creditor was not entitled" to
the issuance of the attachment writ in the
After trial, the TC dismissed the complaint, first place.
holding Calderon and his surety First
integrated Bonding and Insurance Co., Inc., The attachment debtor cannot be deemed
jointly and severally liable to pay the to have waived any defect in the issuance of
damages prayed for by the private the attachment writ by simply availing
respondents. himself of one way of discharging the
attachment writ, instead of the other.
Petitioner surety contends: 1. that the Moreover, the filing of a counterbond is a
dissolution of the attachment extinguishes speedier way of discharging the attachment
its obligation under the bond, for the basis writ maliciously sought out by the attaching
of its liability, which is wrongful attachment, creditor instead of the other way, which, in
no longer exists, the attachment bond most instances like in the present case,
having been rendered void and ineffective; would require presentation of evidence in a
and 2. that by filing a counterbond, private full-blown trial on the merits and cannot
respondents waived any defect or flaw in easily be settled in a pending incident of the
the issuance of the attachment writ, for they case.
could have sought, without need of filing
any counterbond, the discharge of the
attachment if the same was improperly or
irregularly issued.
ISSUE: W the Surety is liable for damages

on its contracted suretyship despite the
dissolution of the WPA as a result of the
filing of a counter-bond by the defendant.
YES
While Section 12, Rule 57 provides that

upon the filing of a counterbond, the
attachment is discharged or dissolved,
nowhere is it provided that the attachment
bond is rendered void and ineffective upon
the filing of counterbond.
The liability of the attachment bond is

defined in Section 4, Rule 57.
It is clear that the responsibility of the surety

arises "if the court shall finally adjudge that
the plaintiff was not entitled thereto." The
liability attaches if the plaintiff is not entitled
to the attachment because the requirements
entitling him to the writ are wanting, or if the
plaintiff has no right to the attachment
because the facts stated in his affidavit, or
some of them, are untrue. It is, therefore,
evident that upon the dismissal of an
attachment wrongfully issued, the surety is
liable for damages as a direct result of said
attachment.
Whether the attachment was discharged by

either of the two (2) ways indicated in the
law, i.e., by filing a counterbond or by
showing that the order of attachment was
improperly or irregularly issued, the liability
Section 5. Manner of attaching property. — 2. Title is not in the name of defendant
The sheriff enforcing the writ shall without (unless it is shown that he has a
delay and with all reasonable diligence beneficial interest in the property.)
attach, to await judgment and execution in (Gotauco v. ROD)
the action, only so much of the property in
the Philippines of the party against whom 3. Those mentioned under Sec. 13,
the writ is issued, not exempt from Rule 39, as follows:
execution, as may be sufficient to satisfy the a. The judgment obligor’s family
applicant's demand, unless the former home as provided by law, or the
makes a deposit with the court from which homestead in which he resides,
the writ is issued, or gives a counter-bond and the land necessarily used in
executed to the applicant, in an amount connection therewith;
equal to the bond fixed by the court in the b. Ordinary tools and implements
order of attachment or to the value of the personally used by him in his
property to be attached, exclusive of costs. trade, employment, or livelihood;
No levy on attachment pursuant to the writ c. Three horses, or three cows, or
issued under section 2 hereof shall be three carabaos, or other beasts of
enforced unless it is preceded, or burden, such as the judgment
contemporaneously accompanied, by obligor may select necessarily
service of summons, together with a copy of used by him in his ordinary
the complaint, the application for attachment occupation;
the applicant's affidavit and bond, and the d. His necessary clothing and
order and writ of attachment, on the articles for ordinary personal use,
defendant within the Philippines. excluding jewelry;
e. Household furniture and utensils
The requirement of prior or necessary for housekeeping, and
contemporaneous service of summons shall used for that purpose by the
not apply where the summons could not be judgment obligor and his family,
served personally or by substituted service such as the judgment obligor may
despite diligent efforts, or the defendant is a select, of a value not exceeding
resident of the Philippines temporarily 100,000 pesos.
absent therefrom, or the defendant is a non- f. Provisions for individual or family
resident of the Philippines, or the action is use sufficient for four months;
one in rem or quasi in rem. (5a) g. The professional libraries and
equipment of judges, lawyers,
physicians, pharmacists, dentists,
Q: How much [many] properties should be
engineers, surveyors, clergymen,
attached?
teachers, and other professionals,
not exceeding 300,000 pesos;
A: The sheriff shall attach only so much of h. One fishing boat and accessories
the property in the Philippines of the party not exceeding the total value of
against whom the writ is issued, not exempt 100,000 pesos owned by a
from execution, as may be sufficient to fisherman and by the lawful use
satisfy the applicant's demand. of which he earns his livelihood;
i. So much of the salaries, wages,
or earnings of the judgment
obligor for his personal services
Q: What kind of properties should be with 4 months preceding the levy
attached? as are necessary for the support
of his family;
A: Real and personal property may be j. Lettered gravestones;
attached, as provided in Sec. 7 Rule 57. k. Monies, benefits, privileges, or
annuities accruing or in any
manner growing out of any life
insurance;
Q: What properties are exempt from
l. The right to receive legal support,
attachment?
or money or property obtained as
such support, or any pension or
A: The following are exempt from
gratuity from the government; and
attachment:
m. Properties specially exempted by
1. Public funds, as held in Professional law (Sec. 13, Rule 39).
Video vs TESDA;
Q: How can levy be prevented? GOTAUCO V. ROD
A: The defendant or adverse party may: The register of deeds in this case denied
the inscription of a levy of execution on the
1. Make a deposit with the court from title of the property as it was in the name of
which the writ is issued; Florentino Vilar and not in the name of the
2. Give a counter-bond executed to the Rafael Vilar, the judgment debtor and that
applicant, in an amount equal to the no evidence having been submitted that the
bond fixed by the court in the order Rafael Vilar had any interest in the property.
of attachment or to the value of the
property to be attached, exclusive of However, it was later on shown that the
costs; or Rafael Vilar was one of the heirs of the
3. File a motion to quash the writ. Florentino Vilar in whose name the property
appeared.
Q: What is the purpose of a counterbond?

ISSUE: W the inscription of the levy of
excution is proper. YES.
A: It is for the purpose of securing the
payment of any judgment in favour of the
attaching party
Rafael Vilar as one of the heirs, allthough
the value of his participation in the estate of
Florentino Vilar was indeterminable before
Q: What is required for a levy to be the final liquidation of the estate,
enforced, as a general rule? nevertheless, the right of participation in the
estate and the lands thereof may be
A: As a general rule, it must be preceded, attached and sold.
or contemporaneously accompanied, by
service of: The real test (Reyes v. Grey) is whether the
judgment debtor hold such a beneficial
1. Summons; interest in the property that he can sell or
2. A copy of the complaint; otherwise dispose of its for value.
3. The application for attachment,
applicant's affidavit and bond; and Nothing appears in this record to indicate
4. The order and writ of attachment. that Rafael Vilar being sui juris could not
dispose of his interest or share as heir in the
Except: estate of Florentino Vilar. Having this right,
he could by a conveyance defeat pro tanto
the provisions of section 450 of the Code of
1. Where summons could not
Civil Procedure, judgment in this consulta
be served personally or by
was reversed.
substituted service despite
diligent efforts;
2. When the defendant is a Q. Is a writ served 6 days earlier than the
resident of the Philippines service of summons be considered a valid
temporarily absent execution of the writ?
therefrom;
3. When the defendant is a A: NO. (Onate vs Abrogar En Banc)
non-resident of the
Philippines; or OÑATE V. ABROGAR (2 nd Division)
4. Where the action is one
in rem or quasi in rem. December 23, 1991, Sun-Life filed a
complaint for a sum of money with a prayer
for the issuance of WPA against Oñate,
Econ Holdings Corp., Brunner Dev’t Corp
and Noel L. Diño.
On December 24, 1991, Judge Abrogar

issued an order granting the issuance of a
WPA, and was actually issued on
December 27, 1991.
On January 3, 1992, the writ of attachment latter is trying to serve the summons and
was amended to reflect the alleged amount the writ anew. By the time the plaintiff may
of the indebtedness. That same day, Deputy have caused the service of summons and
Sheriff Arturo C. Flores, accompanied by a the writ, there might not be any property of
representative of Sun Life, attempted to the defendant left to attach.
serve summons and a copy of the amended
writ of attachment upon petitioners at their 2nd, the court eventually acquired jurisdiction
known office address at 108 Aguirre St., over the petitioners six days later. To nullify
Makati but was not able to do so since there the notices of garnishment issued prior
was no responsible officer to receive the thereto would again open the possibility that
same. petitioners would transfer the garnished
monies while Sun Life applied for new
Nonetheless, Sheriff Flores proceeded to notices of garnishment.
serve notices of garnishment upon several
commercial banks and financial institutions, 3rd, the ease by which a writ of attachment
and levied on attachment a condominium can be obtained is counter-balanced by the
unit and a real property belonging to ease by which the same can be discharged:
petitioner Oñate. the defendant can either make a cash
deposit or post a counter-bond equivalent to
Summons was eventually served upon the value of the property attached. The
petitioners on January 9, 1992, while petitioners herein tried to have the writ of
defendant Diño was served with summons attachment discharged by posting a
on January 16, 1992. counter-bond, the same was denied by
respondent Judge on the ground that the
Petitioners filed a Motion to amount of the counter-bond was less than
Discharge/Dissolve WPA on the ground that that of Sun Life's bond.
the enforcement of the writ is invalid since it
preceded the actual service of summons by
The Supreme Court sitting En Banc
six days.
overturned the decision of the 2nd Division
and ruled that prior or contemporaneous
ISSUE: W the enforcement of the writ was
service of summon is necessary for the levy
valid. YES
of the writ.
As a general rule, the enforcement of writ of
attachment may not validly be effected until OÑATE V. ABROGAR (En Banc)
and unless proceeded or
contemporaneously accompanied by Petitioners maintain that the attachment of
service of summons. (Davao Light vs CA) their properties was void because the TC
had not at that time acquired jurisdiction
An exception to the established rule on the over them and that the subsequent service
enforcement of the writ of attachment can of summons on them did not cure the
be made where a previous attempt to serve invalidity of the levy.
the summons and the writ of attachment
failed due to factors beyond the control of ISSUE: W the subsequent service of
either the plaintiff or the process server, summon (6 days after the levy of the WPA)
provided that such service is effected within cured the invalidity of such levy. NO
a reasonable period thereafter.
The attachment of petitioners' properties
Sheriff Flores and Sun Life did attempt a prior to the acquisition of jurisdiction by the
contemporaneous service of both summons respondent court is void and that the
and the writ of attachment on January 3, subsequent service of summons on
1992, but was made impossible by the petitioners did not cure the invalidity of such
absence of a responsible officer in attachment.
petitioners' offices.
Whatever be the acts done by the Court
prior to the acquisition of jurisdiction over
Reasons for the exception: the person of the defendant, as above
indicated — issuance of summons, order of
1st, there is a possibility that a defendant, attachment and writ of attachment — and
having been alerted of plaintiffs action by however valid and proper they might
the attempted service of summons and the otherwise be, these do not and cannot bind
writ of attachment, would put his properties and affect the defendant until and unless
beyond the reach of the plaintiff while the
jurisdiction over his person Q. What is the remedy so as to validly levy
is eventually obtained by the court, either by the properties of the defendant?
service on him of summons or other
coercive process or his voluntary A: More important than the need for
submission to the court's authority. (Davao insuring success in the enforcement of the
Light & Power, Co. vs CA) writ is the need for affirming a principle by
insisting on that "most fundamental of all
The grant of the provisional remedy of requisites — the jurisdiction of the court
attachment practically involves three stages; issuing attachment over the person of the
first, the court issues the order granting the defendant." It may be that the same result
application; second, the writ of attachment would follow from requiring that a new writ
issues pursuant to the order granting the be served all over again. The symbolic
writ; and third, the writ is implemented. For significance of such an act is that it would
the initial two stages, it is not necessary that affirm our commitment to the rule of
jurisdiction over the person of the defendant law. (Onate v. Abrogar, En Banc)
should first be obtained. However, once the
implementation commences, it is required The writ may be validly served anew. (HB
that the court must have acquired Zachry vs CA)
jurisdiction over the defendant for without
such jurisdiction, the court has no power
and authority to act in any manner against
the defendant. Any order issuing from the HB ZACHARY V. CA
Court will not bind the defendant. (Cuartero
vs CA) VBC (subcontractor) entered into a written
Subcontract Agreement with Zachry
At the very least, then, the writ of (contractor), a foreign corporation; for the
attachment must be design and construction of 264 Family
served simultaneously with the service of Housing Units at the US Naval Base at
summons before the writ may be enforced. Subic, Zambales.
As the properties of the petitioners were
attached by the sheriff before he had served When VBC had almost completed the
the summons on them, the levies made project, Zachry complained of the quality of
must be considered void. work, making it a reason for its decision to
take over the management of the project.
Nor can the attachment of petitioners'
properties before the service of summons Zachry failed to pay, despite repeated
on them was made be justified on the demands, the remaining balance of
ground that unless the writ was then $1,103,000.00 due in favor of VBC.
enforced, petitioners would be alerted and
might dispose of their properties before On 20 March 1990, VBC filed a Complaint
summons could be served on them. w/ RTC of Makati against Zachry for the
collection of the payments due it with a
The Rules of Court do not require that prayer for WPA.
issuance of the writ be kept a secret until it
can be enforced. Otherwise in no case may The complaint alleges that Zachry "is a
the service of summons on the defendant foreign corporation with address at 527
precede the levy on attachment. Longwood Street, San Antonio, Texas,
U.S.A. and has some of its officers working
Even if there was already substantial at U.S. Naval Base, Subic Bay, Zambales
compliance by reason that the sheriff was where it may be served with summons."
still able to serve the summons, although
belatedly, the Court refused to validate the On 21 March 1990, the TC issued an order
levy on such attachment for the reason that granting the application for the issuance of
it could lead to abuse. It is entirely possible the writ of preliminary attachment and fixing
that the defendant may not know of the filing the attachment bond at P24,.26M, which
of a case against him and consequently VBC complied.
may not be able to take steps to protect his
interests.
On 27 March 1990, the trial court issued the
WPA. It was served, together with the
summons, a copy of the complaint with
annexes, the bond, and a copy of the order
of attachment to Ruby Apostol (employee of Writs of attachment may properly issue ex
HB Zachry) who acknowledged receipt parte provided that the Court is satisfied that
thereof. the relevant requisites therefor have been
fulfilled by the applicant, although it may, in
On 6 April 1990, Zachry filed a motion to its discretion, require prior hearing on the
dismiss for lack of jurisdiction over its application with notice to the defendant; but
person because the summons was not that levy on property pursuant to the writ
validly served on it, alleging that it is a thus issued may not be validly effected
foreign corporation duly licensed SEC to do unless preceded, or contemporaneously
business in the Philippines, and had accompanied, by service on the defendant
appointed Atty. Lucas Nunag as its resident of summons, a copy of the complaint, the
agent on whom any summons and legal application for attachment, the order of
processes against it may be served. attachment, and the plaintiff's attachment
bond.
Summons and a copy of the Amended
Complaint were served on 24 April 1990 on The writ of attachment cannot be validly
Zachry through Atty. Nunag as shown in the enforced through the levy of Zachry's
sheriff's return dated 24 April 1990. property before the court had acquired
jurisdiction over Zachry's person either
On 24 May 1990, Zachry filed an Omnibus through its voluntary appearance or the
Motion (a) to dismiss the complaint for lack valid service of summons upon it.
of jurisdiction over its person since the
subsequent service of summons did not A distinction should be made between
cure the jurisdictional defect. the issuance and the enforcement of the
writ. The TC has unlimited power to issue
CA held that summons was served on the writ upon the commencement of the
Zachry only on 24 April 1990; hence, action even before it acquires jurisdiction
applying Sievert vs. Court of Appeals, the over the person of the defendant, but
TC "had no authority yet to act coercively enforcement thereof can only be validly
against the defendant" when it issued the done after it shall have acquired such
writ of attachment on 21 March 1990 (Date jurisdiction.
of issuance of WPA).
The issuance of the PA is VALID. However,
VBC’ Contention: pursuant to the ruling the enforcement of the preliminary
in Davao Light & Power Co. vs. Court of attachment on 27 March 1990, although
Appeals, that the issuance of the writ of simultaneous with the service of the
attachment on 21 March 1990, although summons and a copy of the complaint, did
before the service of the summons, was not bind Zachry because the service of the
valid. Its issuance and implementation are summons was not validly made. When a
two different and separate things; the first is foreign corporation has designated a person
not affected by any defect in the to receive service of summons pursuant to
implementation which may be corrected. the Corporation Code, that designation is
Moreover, assuming arguendo that the exclusive and service of summons on any
initial service of summons was defective, it other person is inefficacious.
was cured by the numerous pleadings
thereafter filed. Finally, whatever doubts The valid service of summons and a copy of
existed on the effectiveness of the the amended complaint was only made
implementation of the writ was erased by its upon it on 24 April 1990, and it was only
re-service on the resident agent of Zachry. then that the trial court acquired jurisdiction
over Zachry's person. Accordingly, the levy
Zachry’s Contention: pursuant to the Sievert on attachment made by the sheriff on 27
and Davao Light rulings, the issuance of the April 1990 was invalid.
writ of attachment before the service of
summons on Zachry's resident agent was REMEDY: However, the writ of preliminary
invalid and that the various pleadings filed attachment may be validly served anew.
by the parties did not cure its invalidity.
ISSUE: W the subsequent service of

summons cure the jurisdictional defect. NO
Section 6. Sheriff's return. — After ROQUE v. CA
enforcing the writ, the sheriff must likewise
without delay make a return thereon to the Associated Banking Corp. instituted an
court from which the writ issued, with a full action against Fil-Eastern Wood Industries,
statement of his proceedings under the writ Inc., a domestic corporation, for recovery of
and a complete inventory of the property a sum of money, and prayed for issuance of
attached, together with any counter-bond WPA.
given by the party against whom attachment
is issued, and serve copies thereof on the On February 4, 1974, TC issued an Order of
applicant. (6a) Attachment commanding the Sheriff to
attach the estate, real and personal, of Fil-
Eastern.
Q: What is the duty of the sheriff after the
enforcement (levy) of attachment? On February 7, 1974, the Sheriff's "Notice of
A: The sheriff must, without delay make a Levy Pursuant to the Writ of Attachment"
return thereon to the court from which the was registered in the Office of the
writ issued. Commander of the First Coast Guard,
District of Manila.
Q: What does the sheriff’s return contain?
A: It must contain the following: However, prior to the issuance of said WPA,
1. A full statement of his proceedings Fil-Eastern had delivered the barge to the
under the writ; Cotabato Visayan Development Corporation
for repair, which was completed in June
2. A complete inventory of the property
attached; and 1973, but Fil-Eastern failed to pay the cost
3. Any counter-bond given by the party of repair. So a public auction sale was
against whom attachment is issued conducted, at the instance of Cotabato
Visayan, and Roque acquired the barge.
On August 29, 1974, Bank filed a "Motion

Q: To whom is return submitted? for the Issuance of Another Writ of
A: The return must be submitted to the Attachment" stating that at the time of the
court which issued the writ, and the issuance of the Writ on February 4, 1974,
applicant must also be furnished with copies the barge in question could not be located
thereof. within the jurisdiction of the Court, having
been anchored somewhere in the Visayas,
and that actual levy on the barge could not
Q: How long should the sheriff make a be made as "the original Order of
return? attachment is allegedly in the possession of
A: The return must be made immediately the Branch Deputy Sheriff appointed by the
without delay. Honorable Court, who has not reported to
Sec. 7 does not provide for a the office since August 26, 1974, and,
specific period. therefore, could not implement the writ."
However, a return executed more
than two months after the enforcement of Court denied the issuance of another Writ
the WPA is not considered as to have been because it was deemed unnecessary, but
made immediately. It was more of an instead ordered the Deputy Sheriff
afterthought rather than the fulfilment of a coordinate with the City Sheriff of Manila in
positive duty. (Bilag-Rivera vs. Flora) the implementation of the Writ previously
issued.
Manual for Clerks of Court
On August 30, 1974, Deputy Sheriff Garvida
Chapter VIII (e) (4). All sheriffs and deputy actually seized the vessel.
sheriffs shall submit a report to the judge
concerned on the action taken on all writs Roque’s contention: The levy was illegal
and processes assigned to them within 10 because the Writ was implemented more
days from the receipt of such process or than 60 days after its issuance so that they
writ. Said report shall form part of the need not have complied with Section 14,
records. Rule 57.
ISSUE: WON the levy was illegal because

the writ was implemented more than 60
days after its issuance. NO
The Rules do not provide any lifetime for a

Writ of Attachment unlike a Writ of
Execution. But even granting that a Writ of
Attachment is valid for only sixty days, yet,
since there was constructive levy within that
period the fact that actual seizure was
effected only thereafter cannot affect the
validity of that levy.
Verily, petitioners' remedy was to ventilate

their claims of ownership in a separate and
independent reivindicatory action, as even
then suggested by the Court of Appeals.
That was the arena where the question of
preferential rights, if any, impliedly raised in
the first assigned error, could have been
fully threshed out.
In the interest of justice, petitioners can still

file an independent civil action to establish
their ownership over the barge.
Q: Is a paper levy allowed? YES
A: As a general rule, however, a levy of an

attachment upon personal property may be
either actual or constructive.
In this case, levy had been constructively

made by the registration of the same with
the Philippine Coast Guard on February 7,
1974. Constructive possession should be
held sufficient where actual possession is
not feasible, particularly when it was
followed up by the actual seizure of the
property as soon as that could possibly be
effected.
Note:
A writ of attachment has no lifetime as
distinguished from a writ of execution. 3 The
new rules fixes the lifetime of the writ of
execution at 5 years from the date of entry
of judgment.4
3
Roque v. CA
4
Sec. 6, Rule 39
Section 7. Attachment of real and personal Q: In attaching REAL properties, how is it
property; recording thereof. — Real and made?
personal property shall be attached by the
sheriff executing the writ in the following A: It is made by:
manner:
A. Filing with the registry of deeds the
(a) Real property, or growing crops thereon, following:
or any interest therein, standing upon the
record of the registry of deeds of the 1. A copy of the order;
province in the name of the party against 2. A description of the property
whom attachment is issued, or not attached; and
appearing at all upon such records, or 3. A notice* that it is attached, or
belonging to the party against whom that such real property and any
attachment is issued and held by any other interest therein held by or
person, or standing on the records of the standing in the name of such
registry of deeds in the name of any other other person are attached,
person, by filing with the registry of deeds a
copy of the order, together with a B. By leaving a copy of such order,
description of the property attached, and a description, and notice with the
notice that it is attached, or that such real occupant of the property, if any, or
property and any interest therein held by or with such other person or his agent if
standing in the name of such other person found within the province.
are attached, and by leaving a copy of such
order, description, and notice with the Additional requirement if the land is
occupant of the property, if any, or with such REGISTERED:
other person or his agent if found within the
province. Where the property has been Where the property has been
brought under the operation of either the brought under the operation of either
Land Registration Act or the Property the Land Registration Act or the
Registration Decree, the notice shall contain Property Registration Decree, the
a reference to the number of the certificate notice* shall contain a reference to
of title, the volume and page in the the number of the certificate of title,
registration book where the certificate is the volume and page in the
registered, and the registered owner or registration book where the
owners thereof. certificate is registered, and the
registered owner or owners thereof.
The registrar of deeds must index
attachments filed under this section in the
names of the applicant, the adverse party,
or the person by whom the property is held
In Siari Valley, the notice did not contain the
or in whose name it stands in the records. If
reference number, volume, and page
the attachment is not claimed on the entire
number in the registration book.
area of the land covered by the certificate of
title, a description sufficiently accurate for
the identification of the land or interest to be SIARI VALLEY vs LUCASAN
affected shall be included in the registration
of such attachment; CFI Zamboanga rendered decision ordering
Filemon Lucasan to deliver to the Siari
Valley Estates, Inc. the cattle inside the
former's pasture or pay its value. When the
same became final and executory, a writ of
execution was issued. In carrying out this
writ, the sheriff proceeded to levy on certain
parcels of lands belonging to defendant.
These lands were sold by the sheriff at
public auction to the corporation as the
highest bidder.
The levied property is a registered land with

OCT-2492, Patent No. 50967, duly
registered in the ROD of Zamboanga del
Norte in the name of Filemon Lucasan.
When this property was levied on execution In Ravanera v. Imperial, the levy is valid.
by the sheriff, the notice of levy merely
described the property as unregistered land Ravanera vs. Imperial (1979)
and that in the notice of sale the property
was merely described according to the Roman Catholic Archiboshop of Caceres
boundaries and area appearing in the tax filed an action for Rescission of Contract
declaration and not according to what and Recovery of Possession against Felipe
appears in the certificate of title. Imperial.
ISSUE: W the levy was valid. NO A writ of execution was issued.
The provision regarding attachment of real Sheriff issued a notice of Levy by which
property postulates that the attachment certain properties of Imperial were attached
shall be made "by filing with the register of or levied upon.
deeds a copy of the order, together with the
description of the property attached, and a On September 24, 1969, the sheriff issued
notice that it is attached, and by leaving a notice of levy on attachment.
copy of said order, description, and notice
with the occupant of the property, if any 25 Sep ’69: the alias writ of Execution was
there be," and that "Where the property has personally served by the Sheriff upon
been brought under the operation of the Imperial.
Land Registration Act, the notice shall
contain a reference to the number of the 29 Sep ’69: Notice of levy was registered
certificate of title and the volume and page with the ROD. There appears in the notice
in the registration book where the certificate of levy the following certification: “It is
is registered" (Section 7 [a], Rule 59). hereby certified that this instrument has
been duly registered proper memorandum
PURPOSE OF REFERENCE NUMBER: hereof made on transfer Certificate of Title
No. 257 & 258 and on its owner's duplicate
The requirement that the notice of levy Reg. Book No. 3; File No. 1-248.” There is a
should contain a reference to the number of reference number but the volume and page
the certificate of title and the volume and number were not indicated.
page in the registration book where the
certificate is registered is made in order that
the debtor as well as a third person may be 7 Oct ’69: Sheriff issued a Notice of Public
properly informed of the particular land or Auction sale of the properties levied upon
property that is under the custody of the which was published a weekly newspaper of
court. This can only be accomplished by general circulation.
making a reference to the certificate of title
covering the property. 15 Oct ’69: Notice of auction sale was
delivered to Imperial through registered
Defect in the notice: mail.
3 Nov ’69: Public auction sale was held and

Since the notice of levy made by the sheriff
Erlinda Ravanera was the highest bidder.
as regards parcel number 1 which is a
registered land contains no reference to the
CA ruled in favour of Imperial saying that:
number of its certificate of title and the
1. the occupants/possessors of the
volume and page in the registry book where
properties levied were not furnished with
the title is registered, it follows that said
notice of levy, and 2. The notice of levy did
notice is legally ineffective and as such did
not contain the volume and the page in the
not have the effect of binding the property
registry.
for purposes of execution. Consequently,
the sale carried out by virtue of said levy is
ISSUE: WON there was a valid levy upon
also invalid and of no legal effect.
the properties of Imperial
Q: What if it is an unregistered land? Yes. It appears in this case that the notice
of levy was registered with the ROD on Sep
A: As provided in Sec 7(a), except that it is 29, 1969. The notice of levy and the notice
enough that the notice be registered under of auction sale addressed to Imperial was
Act 3344. (Siari Valley v. Lucasan) delivered on Oct 15, 1969 to Pelaguia
Comba, member of the household of the
addressee. Imperial was, therefore, notified levied upon other than the owner, Imperial.
by registered mail of the levy and the It was incumbent on said Imperial to prove
auction sale long before Nov 3, 1969, the by evidence duly submitted to the Court a
date of the auction sale. fact that would tend to support his claim that
What is required is that the judgment debtor the levy is void or otherwise illegal. The levy
must be notified of the auction sale before being an official act of a government
the actual date of sale which was done in functionary its regularity is presumed.
the case at bar.
Note that in Ravanera v. Imperial, it involves
AS TO THE ISSUE OF REFERENCE Notice of levy on execution.
NUMBER, VOLUME, AND PAGE
NUMBER: Sec. 15, Par. 2, Rule 39 provides that real
Contention: CA erred in applying to one properties, stocks, shares, debts, credits
unregistered parcel of land and the one and other personal property, or any interest
unregistered residential house described in in either real or personal property, may be
the Notice of Levy the formal requirements levied on in like manner and with like
of the ROC which are applicable only to effect as under a writ of attachment…5
registered properties (Volume and Page). (Refer to Sec. 7 (a), Rule 57)
No merit. Section 7 (a) of Rule 57 is so
explicit that only as to property which has
been brought under the operation of the
Land Registration Act should the notice of OBANA v. CA
levy contain the volume and page in the
registration book where the certificate is Atty. Suntay, filed an action for a sum of
registered, impliedly, the requirement does money against Dizon, with prayer for
not apply to property not registered under attachment upon a certain parcel of land.
the said Act. It is enough that the notice of
levy upon unregistered land be registered December 1, 1972, by virtue of the WPA, a
under Act 3344, as was done in this case. levy was made on said property, which levy
was annotated at the back of TCT of the
From the records of the case, the notice of Register of Deeds of Quezon City
levy made by the sheriff as regards the
registered land contains reference to the The sheriff failed to serve the summonses
number of its certificate of title but not to the for the reason that Mrs. Dizon and her
volume and page in the registry book where wards no longer resided at the last known
the title is registered. address in QC, and that their present
Nevertheless from what was stated in the address cannot be ascertained.
case of Siari Valley Estate vs. Lucasan, it Accordingly, summonses were served upon
would seem that the purpose of the Mrs. Dizon and her wards through
requirement of Section 7(a), Rule 57 of the publication.
Revised Rules of Court is substantially
complied with. On May 16, 1973, Dizon, et al., and Obaña
Reference to the number of the certificate of entered into a sale covering the attached
title of every registered land in the notice of properties. The ROD issued a new title in
levy, together with the technical description favour of Obana, necessarily transferring in
thereof, would certainly suffice to inform the the process the encumbrance consisting of
debtor, as well as third persons what notice of levy in favor of Suntay.
particular land or property is brought to the
custody of the court, as is the purpose of The court awarded Suntay his claims for
the aforecited provision of the Rules of Attorney’s fees, and a writ of execution was
Court. issued, followed by a notice of levy on
execution dated August 7, 1974. Suntay
Imperial’s contention: Brands the levy as was the highest bidder during the public
irregular for failure of the occupants of the auction. Thereafter, Suntay sought to
attached or levied properties to be left with transfer the title in his name.
copy of the order, notice of levy and
description of the properties. Obana opposed claiming that the sheriff did
not comply with the manner of service of
The finding of facts of the CA which was notice under the new rules of court.
quoted in full above, fails to disclose the
existence of occupants of the properties 5
Applicable also in the case of Obana v. CA.
The Court ruled in favour of Obana saying Du. A new TCT was issued in favor of the
that no valid attachment and levy were Caliwag spouses.
made by the sheriff as no personal service
of the copy of the notice to the occupant of Stronghold filed an action against Spouses
the property was made. Caliwag for allegedly
defrauding Stronghold and misappropriating
ISSUE: W there was a valid notice of levy. the companys fund, with a prayer for WPA
NO duly annotated at the back of TCT
on August 7, 1990.
Section 7 of Rule 57 requires that in
attaching real property a copy of the order, Due filed an action for the annulment of sale
description, and notice must be served on between Aurora and Sps Caliwag, causing
the occupant, in this case the occupant at a Notice of Lis Pendens of the TCT
on January 3, 1991.
48 Damortiz Street, Damar Village, Quezon
City. The trial court in the annulment case
The action of Stronghold against Caliwag
ruled that the attachment was void from the
was favourably acted upon.
beginning. The action in personam which
required personal service was never
On March 12, 1991, a notice of levy on
converted into an action in rem where
execution was annotated on TCT and the
service by publication would have been
attached property was sold in a public
valid.
auction.
The Court of Appeals reversed the trial
court principally on the ground that Leonora
Obaña was neither a defendant nor a party- ISSUE: Whether a Notice of Levy on
in-interest in the collection case. It ignored Attachment on the property is a superior lien
the fact that property already sold to her over that of the unregistered right of a buyer
was attached and then bedded out to Atty. of a property in possession pursuant to a
Suntay without any notice to her. And Deed of Conditional Sale. YES
because the notice of lis pendens in the
collection case was secured ex-parte
without the defendant Dizon and petitioner
Obaña who were never brought to court, The preference given to a duly registered
having any inkling about it, the notice was levy on attachment or execution over a prior
not annotated on the owner's duplicate copy unregistered sale is well-settled in our
of Transfer Certificate of Title No. 173792. jurisdiction. As early as Gomez v. Levy
Hermanos, this Court has held that an
While the there was already an annotation attachment that is duly annotated on a
on TCT in the ROD, such was notice of levy certificate of title is superior to the right of a
on ATTACHMENT. The defect in Obana v. prior but unregistered buyer. In that case,
CA was the lack of notice of levy on the Court explained as follows:
EXECUTION.
In the registry, therefore, the attachment
appeared in the nature of a real lien when
Apolonia Gomez had her purchase
Preference is given to a duly registered recorded. The legal effect of the notation of
attachment over a subsequent notice of lis said lien was to subject and subordinate the
pendens, even if the beneficiary of the right of the purchaser, to the lien. She
notice acquired the subject property before acquired the ownership of the said parcels
the registration of the attachment. Under only from the date of the recording of her
the torrens system, the auction sale of an title in the register, and the right of
attached realty retroacts to the date the levy ownership which she inscribed was not an
was registered. absolute but a limited right, subject to a prior
registered lien, by virtue of which Levy
Hermanos, Inc. was entitled to the
Du v. Stronghold
execution of the judgment credit over the
lands in question, a right which is preferred
Aurora sold the property to Du under a and superior to that of the plaintiff.
Conditional Deed of Sale.
As the property in this case was
Aurora then sold the same property to covered by the torrens system, the
spouses Caliwag without prior notice to Luz
registration of Strongholds attachment was ISSUE: W a registered writ of attachment on
the operative act that gave validity to the the land is a superior lien over that of an
transfer and created a lien upon the land in earlier unregistered deed of sale. YES.
favor of respondent.
The preference created by the levy on

attachment is not diminished even by the The settled rule is that levy on attachment,
subsequent registration of the prior sale. duly registered, takes preference over a
The precedence should be given to a levy prior unregistered sale. This result is a
on attachment or execution, whose necessary consequence of the fact that the
registration was before that of the prior sale. property involved was duly covered by the
Torrens system which works under the
If either the third-party claim or the fundamental principle that registration is the
subsequent registration of the prior sale was operative act which gives validity to the
insufficient to defeat the previously transfer or creates a lien upon the land.
registered attachment lien, it follows that a
notice of lis pendens is likewise insufficient The preference created by the levy on
for the same purpose. Such notice does not attachment is not diminished even by the
establish a lien or an encumbrance on the subsequent registration of the prior sale.
property affected. As the name suggests, a This is so because an attachment is a
notice of lis pendens with respect to a proceeding in rem. It is against the
disputed property is intended merely to particular property, enforceable against the
inform third persons that any of their whole world. The attaching creditor acquires
transactions in connection therewith -- if a specific lien on the attached property
entered into subsequent to the notation -- which nothing can subsequently destroy
would be subject to the result of the suit. except the very dissolution of the
attachment or levy itself. Such a
proceeding, in effect, means that the
property attached is an indebted thing and a
virtual condemnation of it to pay the owners
debt. The lien continues until the debt is
Valdevieso v. Damalerio paid, or sale is had under execution issued
on the judgment, or until the judgment is
Valdevieso bought from spouses Uy a satisfied, or the attachment discharged or
parcel of land. vacated in some manner provided by law.
The deed of sale was not registered, nor Thus, in the registry, the attachment in favor
was the title of the land transferred to of respondents appeared in the nature of a
Valdevieso, but it was declared by real lien when petitioner had his purchase
Valdevieso for taxation purposes. recorded. The effect of the notation of said
lien was to subject and subordinate the right
Spouses Damalerio filed a complaint for a of petitioner, as purchaser, to the lien.
sum of money against spouses Uy, with Petitioner acquired ownership of the land
application for WPA. only from the date of the recording of his
title in the register, and the right of
On 23 April 1996, WPA was issued, then ownership which he inscribed was not
the property (land sold to Valdevieso) was absolute but a limited right, subject to a prior
levied. The levy was duly recorded in the registered lien of respondents, a right which
ROD and annotated on the TCT. is preferred and superior to that of
petitioner.
On 06 June 1996, a new TCT was issued in
the name of Valdevieso, which now carries
the attachment in favor of Damalerio.
Valdevieso moved to discharge or annul the

attachment levied on the property on the
ground that the said property belongs to him
and no longer to Uy.
Q: What is the exception to the rule that a EXCEPTION: But where a party has
registered writ of attachment on the land is knowledge of a prior existing interest which
a superior lien over that of an earlier is unregistered at that time he acquired a
unregistered deed of sale? right to the same land, his knowledge of
that prior unregistered interest has the
A: Knowledge of the attaching creditor of a effect of registration as to
prior existing interest of a third person. him. Knowledge of an unregistered sale is
equivalent to registration. (Ruiz v. CA)
Rural Bank of Sta. Barbara v. Manila
Mission However, Manila Mission presented no
evidence of the building of the chapel other
On May 18, 1992, Spouses Soliven sold the than its bare allegation thereof. More
subject property to Manila importantly, even assuming for the sake of
Mission. However, it was only on 28 April argument that the chapel was indeed being
1994 a new TCT was issued in the name of built at the time of the attachment of the
Manila Mission, carrying the annotation on property, we cannot simply apply Ruiz and
the WPA. conclude that this confirms knowledge of a
previous conveyance of the property at that
On 15 April 1993, Rural Bank filed an time. In Ruiz, the attaching party was the
action for sum of money with prayer for wife of the vendor of the subject property,
WPA against spouses Soliven. A WPA was whom she sued for support. It was thus very
subsequently issued. probable that she knew of the sale of the
property to the vendee therein, considering
On May 1993, Sheriff Reynaldo C. Daray that the vendee had already introduced
attached the subject property (TCT still improvements thereon. In the case at bar,
under the name of Soliven). The WPA was there is no special relationship between
annotated the TCT on 24 May 1993. petitioner Rural Bank and the spouses
Soliven sufficient to charge the former with
Manila Mission filed a Motion to Release an implied knowledge of the state of the
Property from Attachment contending that latters properties. Unlike in the sale of real
Rural Bank new about the prior sale and property, an attaching creditor is not
that the construction of a church edifice on expected to inspect the property being
the subject property was about to be attached, as it is the sheriff who does the
finished at the time the WPA was actual act of attaching the property.
implemented on 24 May 1993, and that the
construction of the church was actually Neither did respondent Manila Mission
completed by mid-1993. present any evidence of knowledge on the
part of petitioner Rural Bank of the prior
Rural Bank contends that a duly registered existing interest of the former at the time of
levy on attachment takes preference over a the attachment. Respondent Manila Mission
prior unregistered sale, and that Manila merely argues that there was a tacit
Mission failed to present evidence to prove recognition on the part of petitioner Rural
the fact that a church had already been Bank of the construction of the chapel when
constructed on the subject property by the the latter did not deny this allegation in its
time the said property was attached, thus, Opposition to the Motion to Discharge
constituting notice to Rural Bank of the Property from Attachment.
claim or right of Manila Mission to the same.
ISSUE: whether or not a registered writ of

attachment on the land is a superior lien
over that of an earlier unregistered deed of
sale. YES
GENERAL RULE: It is settled that a duly

registered levy on attachment takes
preference over a prior unregistered sale.
(b) Personal property capable of manual attachment debtor, and such property must
delivery, by taking and safely keeping it in be in substantial presence and possession.
his custody, after issuing the corresponding
receipt therefor. Of course, this does not mean that the
attaching officer may not, under an
Q: Can there be a levy on personal property arrangement satisfactory to himself, put
by mere verbal declarations? anyone in possession of the property for the
purpose of guarding it, but he can not in
A: A mere verbal declaration of seizure or this way relieve himself from liability to
service of writ is insufficient. There must be the parties interested in said attachment.
actual assumption of control. (Walker v.
McMicking) We are of the opinion, and so hold, that the
attachment was not properly made in
Q: Can the sheriff relieve himself from accordance with the provisions of the Code
responsibilities and liabilities with regard to of the Procedure in Civil Actions.
levied properties by executing an
undertaking relieving him from such
liabilities?
Q: What is the duty of the sheriff with regard
A: He can not in this way relieve himself to the levy on attachment?
from liability to the parties interested in said
attachment. A: He is to proceed with reasonable celerity
and promptness to execute it according to
Walker v. McMicking its mandate.
An action was filed against Arenas & Co., to Q: What is the extent of his liability should
recover possession of certain personal he fail to carry out his duty?
properties, with a prayer for attachment.
The WPA was issued on December 17, A: He can be held administratively liable,
1908. and he is also liable to the person in whose
favour the process or writ runs.
McMicking, acting as acting as sheriff of the
city of Manila, levied an attachment upon NBI v. Tuliao
the said factory and its contents, by virtue of
a judgment rendered against Arenas & Co. Salvador bought a passenger jeep from
It appears, however, by an indorsement Ignacio to be paid in monthly installments.
upon the WPA, or by a stipulation between For his alleged nonpayment of installments
the parties to the attachment, that the goods due, a collection suit was filed by Ignacio,
attached "shall remain in the possession of with prayer for WPA.
Arenas & Co., relieving the sheriff of all
responsibility as regards the care and Subsequently, an order was issued by the
custody thereof." RTC directing sheriff Tuliao to attach the
passenger jeep.
Rohde is the owner of the land where the
factory is located, and Walker is a creditor Salvador filed a motion to discharge
of Arenas & Co. Based on their claims, they attachment upon filing of a counterbond for
took possession of the factory & all its the release of the vehicle in his favor. The
equipment on January 1909. counterbond of was approved. Thus, the
Sheriff was ordered to release to Salvador
ISSUE: W the attachment was properly the attached vehicle.
made. NO
Sheriff Tuliao refused to comply with the
To constitute a valid levy of an attachment, said order. Instead, he released the
the officer levying it must take actual passenger jeep to Ignacio after the latter
possession of the property attached as far had executed a receipt together with an
as under the circumstances is practicable. undertaking that he would produce the jeep
He must put himself in position to, and must whenever required by the court.
assert and, in fact, enforce a dominion over
the property adverse to and exclusive of the The sheriff justified such release by saying
that the court had no storage building that
would protect the jeep from damage or loss. Q: Can the sheriff exercise his discretion in
He also imputes the fault to Ignacio for enforcing the writ?
violating his obligation to produce the jeep
whenever needed by the court. A: No. His duty is purely ministerial.
ISSUE: W the manner of attachment is Villanueva-Fabella v. Judge Ralph Lee

irregular. YES
Star Paper Corporation filed an action
Sheriff’s act of leaving the passenger jeep in against Society of St. Paul and Fr.
the possession and control of the creditor Leonardo Eleazar for Sum of Money with
did not satisfy the Rules. The note in the Prayer for Preliminary Attachment, for
receipt that imposed on Ignacio the allegedly contracting a debt in bad faith with
obligation to produce the same whenever no intention of paying it. On June 19, 2002,
required by the court was no compliance Society of St. Paul was served a copy of the
either, because it did not establish that the complaint and a Writ of Attachment by
property was in sheriff’s substantial Sheriff Dela Cruz.
presence and possession. The Sheriff fell
short of his obligation to take and safely On the same day, a printing machine was
keep the attached property in his capacity. levied and delivered to the plaintiffs
warehouse, although there was an offer by
That Ignacio was able to move the the defendants to pay right there and then,
passenger jeep to an unknown location is the amount fixed in the order of attachment,
further proof that respondent sheriff had not which was denied by Star Paper.
taken and safely kept it in his substantial
presence, possession and control. Society of St. Paul claimed that
Sheriff Dela Cruz violated Sec. 7(b), Rule
His claim that the RTC did not have any 57 because the machinery was brought to
storage facility to house said property is no the plaintiffs warehouse in San Francisco
justification. He could have deposited it in a del Monte, Quezon City.
bonded warehouse.
The sheriff claims that it was in his own
A court employee should keep in mind that belief and best judgment to temporarily
he is an integral part of that organ of the place the delicate printing machine in the
government that is involved in the sacred warehouse of the plaintiff for
task of administering justice. His conduct safekeeping. The machine was eventually
and behavior should perforce be returned to the defendants by virtue of the
circumscribed with the heavy burden of Order discharging the Writ. In fact, one of
responsibility and must at all times be the complainants personally acknowledged
characterized by propriety and decorum. receipt of the machine.
When a writ is placed in the hands of a ISSUE: W the attachment is properly

sheriff, it is his duty, in the absence of any enforced. NO
instructions to the contrary, to proceed with
reasonable celerity and promptness to The Sheriff blatantly violated Section 7(b) of
execute it according to its mandate. He is Rule 57 of the Rules of Court when he
supposed to execute the order of the court deposited the machine in the warehouse of
strictly to the letter. If he fails to comply, he the plaintiff.
is liable to the person in whose favor the
process or writ runs.
The levied property must be in the
substantial presence and possession of the
levying officer, who cannot act as special
deputy sheriff of any party litigant. The
officer may put someone in possession of
the property for the purpose of guarding it,
but the former cannot be relieved from
liability to the parties interested in said
attachment.
Sheriffs are officers of the court, and they

must discharge their duties with great care
and diligence. They have to perform
faithfully and accurately what is incumbent Sebastian v. Sheriff Valino
upon them and show at all times a high
degree of professionalism in the PDCP filed a replevin suit against
performance of their duties. Marblecraft, Inc. in order to foreclose the
chattels mortgaged by Marblecraft. On
The duty of sheriffs to execute a writ issued March 30, 1989, the RTC issued a writ of
by a court is purely ministerial, not seizure against Marblecraft covering the
discretionary. They exercise no discretion in chattels sought to be replevied.
this regard, for attachment is harsh,
extraordinary and summary in nature -- a On November 9, 1990, at around 10:37
rigorous remedy which exposes the debtor A.M., Sheriff Valino, accompanied by
to humiliation and annoyance. several policemen and PDCP employees,
went to the office of Marblecraft at Barrio
In implementing the Writ, respondent sheriff Santolan, Pasig, to implement the writ of
cannot afford to err without adversely seizure. They forcibly opened the lockers
affecting the proper dispensation of justice. and desk drawers of the employees of
complainant and took their personal
Sheriffs must always hold inviolate and belongings, as well as some office
invigorate the tenet that a public office is a equipment issued to them.
public trust. As court personnel, their
conduct must be beyond reproach and free Valino turned over the seized articles to the
from any suspicion that may taint the counsel of PDCP and allowed these items
judiciary. In view of their exalted position as to be stored in PDCP's warehouse.
keepers of public faith, court personnel are
indeed saddled with a heavy burden of PDCP posted a counterbond. The RTC
responsibility to the public. approved the bond and directed the
immediate return of the seized items.
Once again we emphasize that at the
grassroots of our judicial machinery, sheriffs However, the seized items were not
are indispensably in close contact with the returned because of the refusal of PDCP to
litigants, hence, their conduct should be release it.
geared towards maintaining the prestige
and integrity of the court, for the image of a An administrative complaint was filed
court of justice is necessarily mirrored in the against Sheriff Valino.
conduct, official or otherwise, of the men
and women who work thereat, from the
Sheriff Valino claims that the complaint is
judge to the least and lowest of its
pure harassment filed by Marblecraft after
personnel; hence, it becomes the imperative he had refused to defer the implementation
sacred duty of each and everyone in the
of the writ of seizure. He said that if he did
court to maintain its good name and
not implement the writ, he would have been
standing as a temple of justice.
accused by PDCP of non-performance of
his duties as a sheriff. He also contends that
the Office of the Regional Sheriff did not
have a place to store the seized items.
Q: What is the purpose why the property
attached must be in the possession of the Judge Villarama found respondent guilty of
sheriff? partiality when he immediately turned over
the seized items to PDCP.
A: The purpose of the levy is to put the
property in custodia legis, i.e. in the custody
ISSUE: W there was a proper enforcement
of the court. Sheriffs are officers of the
of the Writ of Seizure. NO
court, therefore possession of the sheriff is
possession of the court.
Under Rule 60 ROC, the property seized
under a writ of replevin is not to be delivered
immediately to the plaintiff. The sheriff must
retain it in his custody for five days and shall
return it to the defendant, If the latter, as in
the case, requires its return and files a
counterbond (Sec. 4, Rule 60, Revised
Rules of Court).
His claim that the office of the regional Q: Can a writ be enforced against the
sheriff did not have a place to store the property of a person who is not a judgment
seized items does not justify his violation of debtor?
the Rule, because the articles could have
been deposited in a bonded warehouse. A: No. If an execution against one man
would excuse the sheriff for taking the
The Sheriff must serve on Marblecraft not property of another, every citizen would be
only a copy of the order of seizure but also at his mercy and none could call his estate
a copy of the application, affidavit and bond his own. (Villareal v. Rarama)
(Sec. 4, Rule 60, Revised Rules of Court).
Respondent did not furnish defendant with a Villareal v. Rarama
copy of the application, affidavit and bond.
Rural Bank filed an action for collection of a
The more serious infraction of respondent is sum of money against Spouses Villareal,
his refusal to implement the order of the Lacorda and Cangrejo. Cangrejo was
RTC for him to return to complainant the eventually declared in default, hence a
articles seized. The only action taken by judgment was rendered against him.
respondent to implement the Order was to
write a letter addressed to the counsel of On March 29, 1994, an alias writ of
PDCP, requesting the turnover of seized execution was issued by the TC against
articles, which PDCP refused to comply. Cangrejo.
Instead of taking possession of the articles,
Sheriff Valino merely reported to the RTC On April 25, 1994, Sheriff Rarama, 3 other
that "it is now clear that the undersigned sheriffs, and an employee of the bank,
cannot implement the Court order by reason arrived at Sps. Villareal’s house, and
of the refusal of PDCP to accept or to honor informed her that they were going to attach
said Court order". her properties because she lost in a case.
She claims that the writ was not addressed
Respondent could have avoided getting into to her but to Cangrejo. The reply given her
his present predicament had he not turned was that she is the principal borrower and
over the possession of the seized goods the only one who is solvent.
prematurely to the PDCP.
Sheriff Rarama immediately proceeded to
Q: If the Office of the Regional Sheriff, or pull out from complainant's house some
RTC does not have a storage facility for the personal properties.
levied properties, what should the sheriff
do? ISSUE: W the Sheriff can implement a WPA
against a co-defendant in a collection case,
A: The articles can be deposited in a but not the judgment debtor. NO
bonded warehouse. The Court may direct
the attaching creditor to post the fee in While there is evidence to show that indeed
keeping the property in a bonded Villareal is the principal debtor while
warehouse. Cangrejo is merely a co-maker, the fact
remains that Cangrejo was the sole debtor
adjuged liable for the loan obtained from the
Rural Bank and the alias writ of execution
was directed only against him. Hence,
respondent Rarama had no authority to
implement the same against herein
complainant considering that, although she
was named as a defendant in the collection
case, there was no judgment against her as
of the date of the incident.
When a writ is placed in the hands of a

sheriff it is his duty, in the absence of any
instructions to the contrary, to proceed with
reasonable celerity and promptness to
execute it according to its mandate. He is to
execute the directives of the court therein
strictly in accordance with the letter thereof already been effected and the premises
and without any deviation therefrom. delivered to the plaintiff.
A sheriff has no authority to levy on ISSUE: W the Sheriff can be held

execution upon the property of any person administratively liable. NO
other than that of the judgment debtor. If he
does so, the writ of execution affords him no It appears from the certification she issued
justification, for such act is not in obedience that the Temporary Restraining Order
to the mandate of the writ. As long as the issued by the RTC, Branch 27, Naga City
sheriff confines his acts to the authority of was received by her on September 2, 1992
the process, he is not liable, but all of his at 2:15 p.m., after the demolition had been
acts which are not justified by the writ are completely effected and the premises
without authority of law. This is so because delivered to the plaintiff at 1:30 p.m. of
if an execution against one man would same date. It appears that respondent
excuse the sheriff for taking the property of Buena was not aware of the existing TRO
another, every citizen would be at his mercy which she received within the hour after the
and none could call his estate his own. demolition had taken place, thus rendering
said restraining order a fait accompli6. The
Considering the ministerial nature of his rule is that when a writ is placed in the
duty in enforcing writs of execution, it is hands of a sheriff, it is his duty, in the
incumbent upon him to ensure that only that absence of instructions, to proceed with
part of a decision ordained or decreed in the reasonable celerity and promptness to
dispositive portion should be the subject of execute it according to its mandate. He may
execution, no more and no less. That the not apply his discretion as to whether to
title of the case specifically names execute it or not.
complainant as one of the defendants is of
no moment as execution must conform to
that which is directed in the dispositive
portion and not what appears in the title of Q: What is the liability of the sheriff if he
the case. fails to execute the writ?
A: A sheriff, to whom a valid writ or process

Balantes v. Ocampo is delivered to be levied upon a property
within his jurisdiction, is liable to the person
Balantes is a defendant in an ejectment in whose favor the process or writ runs if he
case filed by Roco, which was decided fails to make a levy upon property owned by
against Balantes. A Writ of Execution and the judgment debtor within his jurisdiction
Demolition pending appeal was issued and by reason thereof the judgment creditor
ordering the removal of one-half (1/2) is injured.
portion of Balantes' residential house built
inside the titled property of Roco. Elipe v. Fabre
On August 19, 1992, a second writ of On June 19, 1992, MTCC issued a writ of
demolition was issued by the respondent execution for the enforcement of a barangay
Judge, followed by a third one dated agreement in Case for collection of unpaid
February 3, 1993. rentals and construction materials
amounting to P100,000.00.
The writ was implemented only on
September 2, 1992; that a motion for On June 25, 1992, at 9AM, Sheriff Fabre
reconsideration was filed by herein served the writ to judgment debtors Michael
complainant on August 29, 1992 to forestall dela Cerna and his wife but the Sheriff was
its implementation but the same was able to levy only upon a dilapidated vehicle
submitted for the court's consideration only and an old piano. At 10PM of the same day,
on September 3, 1992 and by that time the the judgment debtors surreptitiously
writ had already been implemented. removed several pieces of furniture from the
house which they rented. On these
The restraining order issued on September occasions, respondent did not make any
2, 1992, however it cannot be complied with effort to prevent the judgment debtors from
because by the time it was received by the
City Sheriff, the writ of demolition had 6
Making a situation that is irreversible and other
people have to live with. (Black’s Law Dictionary)
removing leviable properties to implement In the case at bar, it is not that respondent
the writ, despite the fact that he had been did not know what he should do, given the
told by Elipe of the judgment debtors' problem that he was confronted with. He
activities. tried to excuse himself from what was his
duty, claiming that he did not force his way
Sheriff Fabre claimed that he levied on into the second floor where the judgment
several personal properties of the judgment debtors resided because a special court
debtors, but unfortunately the bid price paid order was needed to enable him to do this.
for them at the public auction was only Knowing this to be the case, it was his duty
P27,007. The result is that the judgment to see to it that such an order was secured
debt of P100,000.00 was only partially from the court.
satisfied to such extent. Elipe was the
highest bidder.
Q: Is the rule that the sheriff must have
He justified his action in levying only on the actual possession of a personal property
personal properties which he found at the capable of manual delivery?
business establishment and in desisting A: No, especially where the property cannot
from enforcing the writ with respect to be actually seized, as in the case of a
properties on the second floor of the vessel.
residence of the judgment debtors on the ROQUE v. CA
grounds that the judgment debtors refused
to let him in and that he did not have any On February 7, 1974, the Sheriff's "Notice of
order from the MTCC to force open the door Levy Pursuant to the Writ of Attachment"
which had been locked. was registered in the Office of the
Commander of the First Coast Guard,
ISSUE: W the sheriff properly enforced the District of Manila. The sheriff was not able
writ. NO to seize the vessel, since it is in the Visayas
and was already sold at a public auction for
If indeed respondent Sheriff is dedicated in the payment of its repairs.
his work, respondent Sheriff could have
chosen to stop the carting away of the On August 30, 1974, Deputy Sheriff Garvida
valuable properties of judgment debtor for actually seized the vessel.
the very purpose of levying it and for the
purpose of complying with the Order. Meanwhile, without prior authority from
Deputy Sheriff Garvida the barge in
Furthermore, respondent Sheriff exhibited question was "spirited away" to Bacolod
an utter disregard of what is incumbent City by a certain Captain Marcelino Agito.
upon him when he failed to inform the
complainant that in order to levy properties Capt. Agito was ordered, in coordination
of the defendant on the second floor of the with Deputy Sheriff Garvida, to bring back to
establishment, a special order of the court is Manila the barge in question.
necessary to force or break-open the closed
door in accordance with Section 14, Rule 39 On March 7, 1975, Judge issued a Writ of
of the Rules of Court. The respondent Execution and ordered the sale of the barge
Sheriff's duty was apparent but he did not at public auction.
comply with it as he should have.
On April 14, 1975, the judge ordered that
Indeed, as clearly stated in the Manual for the vessel be surrendered to the Sheriff,
Clerks of Court, a sheriff, to whom a valid under pain of being cited in contempt of
writ or process is delivered to be levied Court.
upon a property within his jurisdiction, is
liable to the person in whose favor the CA ruled that Roque should have availed
process or writ runs if he fails to make a himself of the remedy provided in Section
levy upon property owned by the judgment 14, Rule 57 of the Rules of Court:
debtor within his jurisdiction and by reason
thereof the judgment creditor is injured. It is If the property taken be claimed by any
omission not dependent upon intentional person other than the party against whom
wrong or negligent omission to seize attachment had been issued or his agent,
property of judgment debtor. and such person makes an affidavit of his
title thereto or right to the possession
thereof, stating the grounds of such right or
title, and serves such affidavit upon the agent thereof, a copy of the writ, and a
officer while the latter has possession of notice stating that the stock or interest of the
the property, and a copy thereof upon the party against whom the attachment is
attaching creditor, the officer shall not be issued is attached in pursuance of such writ;
bound to keep the property under
attachment, unless the attaching creditor or Q: To whom should the copy of the writ or
his agent, on demand of the said officer, the notice of levy be left?
secures him against such claim by a bond in
a sum not greater than the value of the A: It must be left with the president or
property attached. ... managing agent, as provided in Sec. 7(c),
or the president’s secretary as provided in
ROQUE CONTENDS that he could not avail Summit Trading v. Avendano.
of the Rules inasmuch as the vessel was
not in the actual custody of the Sheriff nor of SUMMIT TRADING v. AVENDANO
the Court, since the supposed levy by the
Sheriff on February 7, 1974 was a mere Pilipinia filed a complaint against Ortega
paper levy which, in legal contemplation, is and Summit Trading for the redemption or
no levy at an. repurchase of the two lots.
ISSUE: WON the (paper) levy placed the
vessel in custodia legis. YES Ortega was duly summoned. He failed to
answer the complaint. He was declared in
default.
It is a fact that respondent Sheriff could not
effect seizure immediately, first, because
Summit Trading was duly summoned
the barge could nowhere be found in this
through Marina Saquilayan as secretary of
vicinity, and subsequently when found,
Balaguer, the president of Summit Trading.
because petitioners would not deliver
She received the summons on August 28,
possession to the Sheriff. It was not until the
1981. A copy of the judgment was also
trial Court granted the Sheriff's Motion
served on her on November 13, 1981.
praying for an Order directing petitioners or
Bonifacio Tiongson was the corporate
their agents to surrender the barge to the
secretary. Summit Trading was also
custody of the Court, that the Sheriff was
declared in default.
able to take physical custody.
Summit Trading filed MR alleging that the
As a general rule, however, a levy of an
attachment upon personal property may TC did not acquire jurisdiction over it
because summons was not served to the
be either actual or constructive. In this
president, manager, secretary, cashier,
case, levy had been constructively made by
agent, or any of its directors. (Sec. 13, R 14)
the registration of the same with the
Philippine Coast Guard on February 7,
1974. Constructive possession should be ISSUE: W the TC acquired jurisdiction over
held sufficient where actual possession is Summit Trading through the service of
not feasible, particularly when it was summons to Saquilayan. YES
followed up by the actual seizure of the
property as soon as that could possibly be It is true that Saquilayan is not among the
effected. persons mentioned in section 13. However,
she, being under the control of Summit
Note that constructive levy, such as Trading, has not explained what she has
registration of the notice of levy with the done with the summons and complaint. The
Coast Guard, must be followed by the logical assumption is that she delivered it to
actual seizure of the personal property. her boss, the president of Summit Trading.
She received a copy of the decision and
Summit Trading became aware of it.
In case of constructive levy, it must be
subsequently followed by actual seizure of
There was no strict compliance with section
the property.
13. However, under the facts of this case,
Saquilayan, being the secretary of the
president (whose contact with the outside
world is normally through his secretary),
(c) Stocks or shares, or an interest in stocks may be regarded as an "agent" within the
or shares, of any corporation or company, meaning of section 13. As the president’s
by leaving with the president or managing secretary, she could have easily notified the
president that an action was filed against not annotated in Chemphil's stock and
the corporation just as she had apprised transfer book.
him of the judgment in this case.
In the mean time, Garcia offered to pay
It is not to say that theservice on such a SBTC, which was refused by SBTC. Garcia
secretary is always proper. Generally, it is consigned the check with the RTC for
improper. The president himself must be payment of the judgment if favour of SBTC.
served personally with the summons if it is He then sold the shares to FCI, which in
desired to effect the service on that turn assigned it to CEIC. The shares were
particular officer. But, as already stated, registered in the corporate book of
under the facts of this case, the president's Chemphil under the name of CEIC.
secretary may be regarded as the "agent"
within the meaning of section 13 since Garcia entered into an agreement with the
service upon her of the judgment itself came consortium for the payment of his obligation,
to the notice of Summit Trading. but when he failed to make good his
obligation, the consortium filed a motion for
Hence summons was validly served upon execution, which was granted by the RTC.
Summit Trading. Its negligence in not Garcia’s properties, including the shares in
answering the complaint was inexcusable. CIP were levied. The Consortium acquired
the shares in the public auction.
Caveat: Service to the President’s
Secretary is GENERALLY NOT proper. The consortium filed a motion to order the
corporate secretary of Chemphil to enter in
its stock and transfer books the sheriff’s
certificate of sale and to issue new
CHEMPHIL Export & Import v. CA certificates of stock in the name of the
banks.
Dynetics, Inc. and Garcia filed a complaint
CEIC intervened alleging that it is the
for injunction against the PISO, BPI, LBP,
rightful owner of the shares.
PCIB and RCBC (consortium) to perpetually
enjoin the consortium from enforcing any
purported obligations which Dynetics and The consortium opposed alleging that their
Garcia might have undertaken in the surety attachment lien over the disputed shares of
agreement. stocks must prevail over the private sale in
favor of the CEIC considering that said
shares of stock were garnished in the
The consortium filed answers with
consortium's favor as early as 19 July 1985.
counterclaims alleging that the surety
agreement was valid and binding. It applied
for the issuance of a WPA against Dynetics The TC ruled in favour of CEIC: The matter
and Garcia. of non-recording of the Consortium's
attachment in Chemphil's stock and transfer
book on the shares of Antonio M. Garcia
On 23 April 1985, Dynetics, Garcia and
assumes significance considering CEIC's
MMTC filed a complaint for injunction
position that FCI and later CEIC acquired
against the Security Bank.
the CHEMPHIL shares of Antonio M. Garcia
without knowledge of the attachment of the
SBTC filed an answer with prayer for WPA.
CONSORTIUM. This is also important as
WPA in favour of SBTC was issued on 9
CEIC claims that it has been subrogated to
July 1985, a notice of garnishment covering
the rights of SBTC since CEIC's
Garcia's shares in CIP/Chemphil was
predecessor-in-interest, the FCI, had paid
served on Chemphil through its then
SBTC the amount of P35,462,869.12
President. The notice of garnishment was
pursuant to the Deed of Sale and Purchase
duly annotated in the stock and transfer
of Shares of Stock executed by Antonio M.
books of Chemphil on the same date.
Garcia on July 15, 1988. By reason of such
payment, sale with the knowledge and
On 12 July 1985, RTC granted the consent of Antonio M. Garcia, FCI and
consortium's prayer for a consolidated CEIC, as party-in-interest to FCI, are
WPA. Hence, on 19 July 1985, WPA was subrogated by operation of law to the rights
issued and various real and personal of SBTC. The Court is not unaware of the
properties of Dynetics and Garcia were citation in CEIC's reply that "as between two
garnished, including the shares garnished (2) attaching creditors, the one whose
by SBTC. This garnishment, however, was
claims was first registered on the books of order to have "force and effect as against
the corporation enjoy priority." third persons."
The Court holds that a levy on the shares of The word (transfer) is defined as (the act
corporate stock to be valid and binding on and effect of transferring); and the verb
third persons, the notice of attachment or transfer, (to assign or waive the right in, or
garnishment must be registered and absolute ownership of, a thing in favor of
annotated in the stock and transfer books of another, making him the owner thereof).
the corporation, more so when the shares of
the corporation are listed and traded in the "Transfer" means any act by which property
stock exchange, as in this case. of one person is vested in another, and
"transfer of shares", as used in Uniform
ISSUE: W the notice of levy must be Stock Transfer Act (Comp. St. Supp. 690),
registered with the books of the corporation. implies any means whereby one may be
NO divested of and another acquire ownership
of stock.
The attachment of shares of stock in a
corporation need not be recorded in the Attachment of the disputed shares of stock
corporation's stock and transfer book in as in the present controversy does not
order to bind third persons. mean “transfer” since an attachment does
not constitute an absolute conveyance of
Section 7(d), Rule 57 of the Rules of Court property but is primarily used as a means
was complied with by the consortium when "to seize the debtor's property in order to
the notice of garnishment over the Chemphil secure the debt or claim of the creditor in
shares of Garcia was served on the the event that a judgment is rendered."
president of Chemphil on July 19, 1985.
The Revised Rules of Court and the

Corporation Code do not require annotation (d) Debts and credits, including bank
in the corporation's stock and transfer books deposits, financial interest, royalties,
for the attachment of shares of stock to be commissions and other personal property
valid and binding on the corporation and not capable of manual delivery, by leaving
third party. with the person owing such debts, or having
in his possession or under his control, such
Section 74 of the Corporation Code which credits or other personal property, or with
enumerates the instances where his agent, a copy of the writ, and notice that
registration in the stock and transfer books the debts owing by him to the party against
of a corporation such as sale or transfer of whom attachment is issued, and the credits
stock made. and other personal property in his
possession, or under his control, belonging
Indeed, to bind third persons, no law to said party, are attached in pursuance of
requires that an attachment of shares of such writ;
stock be recorded in the stock and transfer
book of a corporation. This paragraph refers to intangible
properties not capable of manual delivery.
Therefore, the attachment made over the
Chemphil shares in the name of Garcia on Note that the debt must be due and
July 19, 1985 was made in accordance with demandable.
law and the lien created thereby remained
valid and subsisting at the time Garcia sold
Tayabas Land v. Sharruf
those shares to FCI (predecessor-in-interest
of appellee CEIC) in 1988.
Farre recovered a judgment against Sharruf
for the sum of P1,300, with legal interest
and costs. This judgment having remained
unsatisfied.
ISSUE: Are attachments of shares of stock
included in the term "transfer"? NO
Sharruf also recovered a judgment against
the Tayabas Land for the sum of P6,841.36,
Only absolute transfers of shares of stock with interest and costs.
are required to be recorded in the
corporation's stock and transfer book in
Sharruf have no visible property that may be statement to the court of the property of the
subject to seizure by the sheriff to satisfy judgment debtor in his hands and of the
the execution in favor of Farre, so Farre debts owing by the garnishee to such
subjected the judgment in favor of Sharruf debtor.
against the Tayabas Land to the payment of
his own claim. It is merely a case of involuntary novation
by the substitution of one creditor for
A notice of garnishment was issued at the another. Upon principle the remedy is a
instance of Farre in aid of his execution species of attachment or execution for
against the Sharrufs and was duly served reaching any property pertaining to a
upon the Tayabas Land Company. Tayabas judgment debtor which may be found owing
Land Company was informed that levy had to such debtor by a third person.
been made upon all the property of S. M.
Sharruf in the possession of said Tayabas The situation involved supposes the
Land and upon all debts owing to said existence of at least three persons, to wit, a
Sharruf, and upon all participation and judgment creditor, a judgment debtor, and
interest of S. M. Sharruf in the judgment the garnishee, or person cited, who in turn
rendered in his favor in the action is supposed to be indebted to the first
prosecuted by him against the Tayabas debtor (i.e., judgment debtor).
Land.
The payment of the money by the garnishee
The sheriff then proceeded to sell all right, to the judgment creditor or into court, brings
title, and interest of Sharruf in the judgment. the proceeding to a close, so far as the
Farre became the purchaser of the garnishee is concerned; but if the garnishee
judgment in question for the sum of P200. fails to answer, or does not admit the
Tayabas Land then purchased from Farre, indebtedness, he may be required to attend
paying P1,588.24, the full amount due. before the court in which the action is
pending to be examined on oath respecting
the same. Finally, if the liability of the
garnishee is made manifest, the officer of
ISSUE: W the public auction/sale of the the court may collect the money and pay it
judgment debt in favor of Sharruf to Farre is to the person entitled.
the proper action. NO
The action of the sheriff in exposing to
A judgment for a sum of money, that is, the public sale the judgment which had been
interest of the plaintiff in such a judgment, is procured by Sharruf in the action against
liable to execution. The interest of the the Tayabas Land Company, et al., was
creditor in such a judgment is clearly wholly unauthorized, and said sale must be
property, though not capable of manual considered void. The proper step would
delivery. All of these elements of value — have been for the court to require the
"debts." "credits," and "all other property not Tayabas Land Company, after the judgment
capable of manual delivery" are to be liable against it had become final, to pay into
to execution. court, in the cause wherein Salvador Farre
was plaintiff, a sufficient amount of money
However, debts, credits, and other property to satisfy Farre's claim against Sharruf; and
not capable of manual delivery are to be if the judgment against the Tayabas Land
attached by the citation of the debtor. Company had been permitted to go to the
stage of execution, the proceeds in the
hands of the sheriff would have been
The proper proceeding is known as the
process of garnishment. applied, under the direction of the court, to
the payment of Farre's claim before any part
would have been payable to Sharruf.
The process of garnishment consists of a
citation issued from the court having
jurisdiction of the principal litigations,
notifying the garnishee that the property and
credits of the judgment debtor have been
levied upon or attached in the hands of such
garnishee, and enjoining him not to deliver,
transfer, or otherwise dispose of any effects
or credits belonging to that person, and
requiring him furthermore to make a
(e) The interest of the party against whom Rafael Vilar as one of the heirs, allthough
attachment is issued in property belonging the value of his participation in the estate of
to the estate of the decedent, whether as Florentino Vilar was indeterminable before
heir, legatee, or devisee, by serving the the final liquidation of the estate,
executor or administrator or other personal nevertheless, the right of participation in the
representative of the decedent with a copy estate and the lands thereof may be
of the writ and notice that said interest is attached and sold.
attached. A copy of said writ of attachment
and of said notice shall also be filed in the The real test (Reyes v. Grey) is whether the
office of the clerk of the court in which said judgment debtor hold such a beneficial
estate is being settled and served upon the interest in the property that he can sell or
heir, legatee or devisee concerned. otherwise dispose of its for value.
If the property sought to be attached is Nothing appears in this record to indicate

in custodia legis, a copy of the writ of that Rafael Vilar being sui juris could not
attachment shall be filed with the proper dispose of his interest or share as heir in the
court or quasi-judicial agency, and notice of estate of Florentino Vilar. Having this right,
the attachment served upon the custodian he could by a conveyance defeat pro tanto
of such property. (7a) the provisions of section 450 of the Code of
Civil Procedure, judgment in this consulta
was reversed.
Q: To whom should the copies of the notice
be served?
Q: Why is it necessary to notify the clerk of
A: It is to be served to the executor or court?
administrator or other personal
representative of the decedent with a copy A: It is to inform that a lien is created by the
of the writ and notice that said interest is attachment.
attached. A copy of said writ of attachment
and of said notice shall also be filed in the In case of a settlement proceeding, the
office of the clerk of the court in which said estate under consideration is already in
estate is being settled and served upon the custodia legis. Hence in such case, when
heir, legatee or devisee concerned. the share of an heir, which is in the custody
of the court, is being attached, the mere
Q: What if there is no testate or intestate notification to the Clerk of Court will suffice.
proceeding, or settlement of estate
proceeding?
A: Par. (e) will not be applicable since it Q: What is the purpose of levy?
presupposes that there is a settlement case.
A: The purpose of levy is to put the property
In such case, Sec.7(a) will be applied. in custodia legis, so that the court may have
control over the properties and subject them
GOTAUCO V. ROD to the outcome of the main case. It is not for
the purpose of transferring ownership, nor
The register of deeds in this case denied to transfer control thereof to the attaching
the inscription of a levy of execution on the creditor.
title of the property as it was in the name of
Florentino Vilar and not in the name of the
Rafael Vilar, the judgment debtor and that
no evidence having been submitted that the Q: What is the effect of noncompliance with
Rafael Vilar had any interest in the property. Sec. 7?
However, it was later on shown that the A: Noncompliance thereof means that the
Rafael Vilar was one of the heirs of the court did not validly acquire the custody of
Florentino Vilar in whose name the property the properties, and will render the levy void.
appeared.
ISSUE: W the inscription of the levy of

excution is proper. YES.
Section 8. Effect of attachment of Engineering Construction v. NPC
debts, credits and all other similar personal
property. — All persons having in their ECI filed a complaint for damages against
possession or under their control any credits the NPC. The TC ruled in favour of ECI, and
or other similar personal property belonging ECI moved for and was granted execution
to the party against whom attachment is pending appeal.
issued, or owing any debts to him, at the
time of service upon them of the copy of the Subsequently, Deputy Sheriff Quemada
writ of attachment and notice as provided in garnished in favor of ECI all amounts due
the last preceding section, shall be liable to and payable to NPC which were in
the applicant for the amount of such credits, possession of MERALCO.
debts or other similar personal property,
until the attachment is discharged, or any On appeal, the execution pending appeal
judgment recovered by him is satisfied, was declared null and void.
unless such property is delivered or
transferred, or such debts are paid, to the MERALCO sought clarification of the
clerk, sheriff, or other proper officer of the decision on the ground that NPC is
court issuing the attachment. (8a) compelling MERALCO to return the amount
of P1,114,545.23 (inclusive of sheriff's fees)
Q: What kind of personal properties are in two checks which it had already entrusted
involve in Sec. 8? to the deputy sheriff on February 23, 1971,
who then indorsed and delivered the same
A: This involves personal properties which to ECI.
are not capable of manual delivery.
The CA then held the
sheriff, MERALCO and ECI liable to restore
to NPC the amount due
Q: What kind of attachment is contemplated to NPC which MERALCO had earlier turned
in Sec. 8? over to the sheriff for payment to ECI.
A: Sec. 8 speaks of garnishment. ISSUE: W Meralco is bound to restore

to NPC the judgment amount which has
been delivered to ECI in compliance with
the writ of garnishment. NO
Q: What is garnishment?
MERALCO, the garnishee, is absolved from
A: Garnishment is considered as a specie its obligations to NPC with respect to the
of attachment for reaching credits belonging payment to ECI of P1,114,543.23.
to the judgment debtor and owing to him MERALCO should not be faulted for its
from a stranger to the litigation. prompt obedience to a writ of garnishment.
(Engineering Construction v. NPC)
Unless there are compelling reasons such
as: a defect on the face of the writ or actual
knowledge on the part of the garnishee of
Q: When will the liability on the garnishment lack of entitlement on the part of the
terminate? garnisher, it is not incumbent upon the
garnishee to inquire or to judge for itself
A: It will be terminated when the attachment whether or not the order for the advance
is discharged, or when the judgment is execution of a judgment is valid.
satisfied.
Under Sec. 8, the garnishee [the third
person] is obliged to deliver the credits, etc.
to the proper officer issuing the writ and "the
Q: Can the garnishee be held liable if it law exempts from liability the person having
delivers to the sheriff the amount in his possession or under his control any
garnished? credits or other personal property be,
longing to the defendant, ..., if such property
A: No, a garnishee, who is compelled by the be delivered or transferred, ..., to the clerk,
court to deliver the amount garnished is sheriff, or other officer of the court in which
exempted from liability. the action is pending."
MERALCO, as garnishee, after having ISSUE: W RCBC can be held solidarily
been judicially compelled to pay the amount liable with the judgment creditor to PVTA for
of the judgment represented by funds in its reimbursement of the garnished funds. NO
possession belonging to the judgment
debtor or NPC, should be released from RCBC merely obeyed a mandatory directive
all responsibilities over such amount from the Court ordering RCBC "to deliver in
after delivery thereof to the sheriff. The check the amount garnished to Sheriff
reason for the rule is self-evident. To Faustino Rigor and Sheriff Rigor is in turn
expose garnishees to risks for obeying court ordered to cash the check and deliver the
orders and processes would only undermine amount to the plaintiffs representative
the administration of justice. and/or counsel on record."
RCBC did not deliver the amount on the

strength solely of a Notice of Garnishment;
RCBC vs. Judge Castro rather, the release of the funds was made in
compliance with the court order. While the
Notice of Garnishment contained no
Badoc Planters filed an action for recovery
demand of payment as it was a mere
of unpaid tobacco deliveries against
request for petitioner to withhold any funds
Philippine Virginia Tobacco. Philippine
of the PVTA then in its possession, the
Viginia was ordered to pay Badoc Planters
Order of the Court categorically required the
the amount of P206,916.76.
delivery in check of the amount garnished to
the special sheriff, Faustino Rigor.
Badoc filed a Motion for a Writ of Execution,
which was granted. Accordingly, the Clerk
RCBC also duly informed PVTA regarding
of Court issued a Writ of Execution
the notice of garnishment to enable the
addressed to Special Sheriff Rigor, who
latter to take the necessary steps for the
then issued a Notice of Garnishment
protection of its own interest.
addressed to the General Manager and/or
Cashier of RCBC as to any property which
the PVTA might have in the possession or There was nothing irregular in the delivery
control of RCBC or of any debts owing by of the funds of PVTA by check to the sheriff,
the RCBC to PVTA. whose custody is equivalent to the custody
of the court, he being a court officer.
RCBC notified PVTA to enable the PVTA to
take the necessary steps for the protection The order of the court was composed of two
of its own interest. parts, requiring: 1) RCBC to deliver
in check the amount garnished to the
designated sheriff and 2) the sheriff in turn
Upon motion of Badoc, the court issued an
to cash the check and deliver the amount to
order to RCBC "to deliver in check the
the plaintiffs representative and/or counsel
amount garnished to Sheriff Rigor and
on record.
Sheriff Rigor in turn is ordered to cash the
check and deliver the amount to the
plaintiff's representative and/or counsel on It must be noted that in delivering the
record." garnished amount in check to the sheriff,
the RCBC did not thereby make any
payment, for the law mandates that delivery
RCBC delivered to Sheriff Rigor a certified
of a check does not produce the effect of
check in the sum of P 206,916.76.
payment until it has been cashed.
On appeal, the court ordered that RCBC
By virtue of the order of garnishment, the
and Badoc reimburse PVTA.
same was placed in custodia legis and
therefore, from that time on, RCBC was
PVTA claims that the manner in which
holding the funds subject to the orders of
RCBC complied with the Notice of the court a quo. That the sheriff, upon
Garnishment indicated breach of trust and delivery of the check to him by RCBC
dereliction of duty as custodian of encashed it and turned over the proceeds
government funds, and that the delivery of
thereof to the plaintiff was no longer the
the garnished amount by RCBC to the concern of RCBC as the responsibility over
special sheriff even in the absence of a the garnished funds passed to the court.
demand to deliver is premature. As such, Thus, no breach of trust or dereliction of
RCBC can be held liable with Badoc for the
duty can be attributed to RCBC in delivering
wrongful release of the money.
its depositor's funds pursuant to a court MRCI alleged that it cannot convey the land
order which was merely in the exercise of its to Ventanilla as it was already sold to
power of control over such funds. Marquez. Nevertheless, MRCI offered to
reimburse the amount paid by the
RCBC cannot therefore be compelled to respondents.
make restitution solidarily with BADOC.
BADOC alone was responsible for the Ventanillas accepted the amount of
issuance of the Writ of Execution and Order P210,000.00 as damages but opposed the
of Payment and so, the plaintiff alone reimbursement offered by MRCI in lieu of
should bear the consequences of a the execution of the absolute deed of sale.
subsequent annulment of such court orders;
hence, only the plaintiff can be ordered to MRCI contends that it has already partially
restore the account of the PVTA. complied with the judgment and that it has
always expressed its willingness to
Q: Why is the garnishee released from reimburse the amount paid by the
liability upon the delivery of the check to the respondents, hence there is no need for a
Sheriff? garnishment order.
A: The garnishee is no longer liable for the ISSUE: W the garnishment order may be
reason that the check was already placed in lifted on the ground that the judgment has
custodia legis when such was delivered to been partially complied with. NO
the sheriff. Upon the delivery of the check,
the responsibility is passed on to the sheriff A garnishment order shall be lifted if it
who has control and custody over the established that:
property.
(a) the party whose accounts have been
Note that the reckoning point is the time of garnished has posted a counterbond or has
delivery of the check, and not its made the requisite cash deposit;
encashment.
(b) the order was improperly or irregularly
issued as where there is no ground for
garnishment or the affidavit and/or bond
Q: Is partial execution of a judgment a filed therefor are defective or insufficient;
ground to discharge garnishee from liability?
(c) the property attached is exempt from
A: No. Section 8 provides that the liability execution, hence exempt from preliminary
continues until the attachment is attachment; or
discharged, or judgment is satisfied. Partial
execution does not fully satisfy the (d) the judgment is rendered against the
judgment. attaching or garnishing creditor.
The Manila Remnant Co v. CA Partial execution of the judgment is not

included in the above enumeration of the
Ventanilla filed an action for specific legal grounds for the discharge of a
performance, annulment of deeds, and garnishment order. Neither does the
damages against Manila Remnant Co., Inc., petitioner's willingness to reimburse render
A.U. Valencia and Co., Inc., and Carlos the garnishment order unnecessary.
Crisostomo, for the subsequent sale of lots
to Crisostomo, which has been previously
sold to Ventanilla.
The TC ruled in favour of Ventanilla and

ordered the MRCI to execute an absolute
deed of sale in favor of the Ventanillas, and
to pay damages amounting to P210,000.00.
Ventanilla moved for the execution of the

judgment, a writ was issued, and served
upon MRCI.
Chemphil Export and Import vs CA was approved by the TC. It provides that
failure to pay 3 instalments will entitle
Garcia entered into an agreement with the Ramiro to a writ of execution.
consortium for the payment of his obligation,
but when he failed to make good his Thereafter, Ramiro filed a motion for
obligation, the consortium filed a motion for execution on the ground that Abinujar failed
execution, which was granted by the RTC. to pay the first three instalments stipulated
Garcia’s properties, including the shares in in the compromise agreement.
CIP were levied. The Consortium acquired
the shares in the public auction. ISSUE: What is the effect of the non-
fulfilment of the compromise agreement.
CEIC argues that a writ of attachment is a
mere auxiliary remedy which, upon the A compromise agreement is a contract
dismissal of the case, dies a natural death. between the parties, which if not contrary to
Thus, when the consortium entered into a law, morals or public policy, is valid and
compromise agreement, which resulted in enforceable between them. There are two
the termination of their case, the disputed kinds of compromise agreements, the
shares were released from garnishment. judicial, which puts an end to a pending
litigation, and the extrajudicial, which is to
ISSUE: W the garnishment is discharged avoid a litigation
when the parties entered into a compromise
agreement, which was left unfulfilled. NO The non-fulfillment of the terms and
conditions of a compromise agreement
A writ of attachment is not extinguished by approved by the court justifies execution
the execution of a compromise agreement thereof and the issuance of the writ for said
among the parties. To subscribe to CEIC’s purpose is the court's ministerial duty
contentions would be to totally disregard the enforceable by mandamus.
concept and purpose of a preliminary
attachment. In the compromise agreement, petitioners
obligated themselves to pay private
An attachment lien continues until the debt respondents the amount of P50,000.00 on
is paid, or sale is had under execution January 31, 1990, P10,000.00 on February
issued on the judgment or until judgment is 28, 1990, and P10,000.00 on March 31,
satisfied, or the attachment discharged or 1990.
vacated in the same manner provided by
law. Clearly, there was a breach, for it was only
on August 17, 1990 that petitioners
The case at bench admits of a peculiar attempted to pay by means of nine
character in the sense that it involves a postdated checks the amounts agreed
compromise agreement. Nonetheless, the upon.
rule established in the aforequoted cases
still applies, even more so since the terms
The order of garnishment or a writ of
of the agreement have to be complied with
attachment is not discharged by mere
in full by the parties thereto. The parties to
execution of a compromise agreement by
the compromise agreement should not be
the parties. The purpose of
deprived of the protection provided by an
attachment/garnishment is to secure the
attachment lien especially in an instance
satisfaction of a judgment, be it based on a
where one reneges on his obligations under
compromise. In such case, the violation of
the agreement, as in the case at bench,
the terms of the compromise gives the party
where Antonio Garcia failed to hold up his
the right to move for execution.
own end of the deal, so to speak.
As a general rule, the execution of a
compromise agreement does not discharge
or dissolve a writ of attachment, even
Abinujar vs. CA though it may result in the termination of the
main case.
Ramiro filed a complaint for ejectment
against Abinujar. However, when the judgment on the
compromise issued by the court states that
Subsequenty, Ramiro and Abinujar the writ of attachment is discharged, the writ
executed a compromise agreement, which is dissolved.
PNB vs. Olutanga Rubber Company The general rule is that, where attached
properties belonging to the principal debtor
PNB is as an ordinary creditor in the are taken out of the hands of a person by
involuntary insolvency of the Olutanga legal process, after he had been notified of
Lumber Company. A Writ of attachment was the order of attachment, said person cannot
issued in his favour, against Olutanga. be made to answer for the properties in a
proceeding to carry out said attachment.
BPI filed an action against Olutanga Lumber
Company. The Court ordered that BPI In the present case, the fact that the funds
should pay Olutanga. Writ of execution was attached in the possession of the BPI,
issued, which was complied with by the belonging to the Olutanga Lumber
sheriff of Zamboanga by presenting it to the Company, had been deposited with the
manager of the branch of the BPI sheriff of Manila by order of said officer,
Zamboanga, but without levying execution does not change the juridical situation of
on any property of BPI. The sheriff also sent said funds as attached in the possession of
a telegram to BPI Central Office of its the BPI, and, BPI, having been judicially
obligation to pay Olutanga, otherwise, levy compelled to pay the amount of the
will be made in Zamboanga Office. judgment represented by said funds to the
Olutanga Lumber Company, after having
Before receiving the telegram, BPI Central employed all the legal means to avoid it, is
Office was notified by the sheriff of Manila released from all responsibility to PNB in
that all the credits and debts contracted by it whose favor the writ of attachment was
with the Olutanga Lumber Company were issued.
levied upon in the name of the PNB by
virtue of a writ of attachment. When a person has funds in his possession
belonging to a debtor, and said funds are
BPI-CO delivered the amount attached to attached by a creditor of the latter, said
the sheriff of Manila, pursuant to the letter person is relieved from all responsibility to
sent by the sheriff requiring BPI to deliver said creditor if he is judicially compelled to
the attached amount to him. deliver said funds to the aforesaid debtor.
After the delivery to the sheriff of Manila, The sheriff of Manila is ordered to return to
BPI notified the sheriff of Zamboanga that BPI the amount deposited by virtue of the
the amount of the judgment in favor of the writ of attachment.
Olutanga Lumber Company against BPI had
been delivered to the sheriff of Manila, and Nota Bene: To discharge a garnishee from
that any question on that subject should be liability under the WPA, he must have been
taken up with him. judicially compelled to pay. A voluntary
tender of the amount, without any legal
The sheriff of Manila sent a telegram to the compulsion is not sufficient to discharge
sheriff of Zamboanga, telling him that the liability, and that he has every reason to
amount of the judgment against BPI and in object to the validity of the payment. The
favor of Olutanga Lumber Company had reckoning point is whether there is legal
been attached by virtue of two writs of compulsion employed, absence thereof, the
attachment issued by the PNB against the garnishee is not discharged from liability.
Olutanga Lumber Company, and that such
had been deposited with him by BPI.
The sheriff of Zamboanga still attempted to

collect from the branch of BPI Zamboanga
the amount of the judgment in favor of the Q: What is the difference between a
Olutanga Lumber Company, threatening to garnishment or writ of attachment and a writ
levy, and in fact did levy, an attachment of execution?
against said branch.
A: Garnishment has been defined as a
ISSUE: W BPI Zamboanga’s properties can specie of attachment for reaching credits
still be levied despite the delivery of BPI belonging to the judgment debtor and owing
Central Office of the amount garnished by to him from a stranger to the litigation. A writ
Sheriff of Manila. NO of attachment is substantially a writ of
execution except that it emanates at the
beginning, instead of at the termination, of a
suit. It places the attached properties in Q: Does the garnishee need to be
custodia legis, obtaining pendente lite a lien impleaded in the case?
until the judgment of the proper tribunal on
the plaintiff’s claim is established, when the A: No. In order that the trial court may
lien becomes effective as of the date of the validly acquire jurisdiction to bind the person
levy. of the garnishee, it is not necessary that
summons be served upon him. The
garnishee need not be impleaded as a party
to the case. All that is necessary for the trial
Q: What does Garnishment imply? court lawfully to bind the person of the
garnishee or any person who has in his
A: It implies that there is a third person possession credits belonging to the
(garnishee) who will be liable to the judgment debtor is service upon him of the
judgment creditor for the judgment rendered writ of garnishment.
against the judgment debtor.
The Rules of Court themselves do
In legal contemplation, it is a forced not require that the garnishee be served
novation by the substitution of creditors: the with summons or impleaded in the case in
judgment debtor, who is the original creditor order to make him liable. (Perla Compania
of the garnishee is, through service of the de Seguros vs. Ramolete)
writ of garnishment, substituted by the
judgment creditor who thereby becomes Perla Compania de Seguros vs.
creditor of the garnishee. Garnishment has Ramolete
also been described as a warning to a
person having in his possession property or The widow of Palmes filed a
credits of the judgment debtor, not to pay complaint against Enriquez claiming actual,
the money or deliver the property to the moral, nominal and exemplary damages as
latter, but rather to appear and answer the a result of the vehicular accident.
plaintiff's suit. (Perla Compania de Seguros
vs. Ramolete) The court ordered Enriquez to pay Palmes.
The judgment became final and executory
The stranger becomes a forced and a writ of execution was issued, which
intervenor; and the court, having acquired was returned unsatisfied.
jurisdiction over him by means of the
citation, requires him to pay his debt, not to Enriquez declared that the PUJ involved in
his former creditor, but to the new creditor, the accident was covered by a third-party
who is creditor in the main litigation. liability insurance policy issued by Perla.
(Tayabas Land vs. Sharruf)
Palmes filed a motion for garnishment
against the insurance policy issued by Perla
in favor of the judgment debtor. The Judge
Q: Is a garnishee part of the case? issued an Order directing the Sheriff to
garnish the third-party liability insurance
A: He is considered as a “forced policy.
intervenor.”
Perla moved for quashal of the writ of
Through service of the writ of garnishment, alleging that the writ was void
garnishment, the garnishee becomes a on the ground that it was not a party to the
"virtual party" to, or a "forced intervenor" in, case and that jurisdiction over its person
the case and the trial court thereby acquires had never been acquired by the trial court
jurisdiction to bind him to compliance with by service of summons or by any process.
all orders and processes of the trial court
with a view to the complete satisfaction of ISSUE: W the garnishee Perla is bound by
the judgment of the court. (Perla Compania the Garnishment Order considering that
de Seguros vs. Ramolete) Perla was not impleaded in the case against
Enriquez. YES
Through service of the writ of garnishment,

the garnishee becomes a "virtual party" to,
or a "forced intervenor" in, the case and the
trial court thereby acquires jurisdiction to
bind him to compliance with all orders and The sheriff attempted to execute the
processes of the trial court with a view to judgment, however this did not materialize
the complete satisfaction of the judgment of since the Bank has already sold the bales f
the court. tobacco.
In RCBC v. De Castro, the Court stressed Tec Bi instituted an action against the Bank,
that the asset or credit garnished is garnishee.
thereupon subjected to a specific lien:
The garnishee contends that Tec Bi should
The garnishment of property to satisfy a writ not have been permitted to maintain an
of execution operates as an attachment and original and independent action against the
fastens upon the property a lien by which garnishee, and such action may be
the property is brought under the jurisdiction disposed of very summarily, citing Roberts
of the court issuing the writ. It is brought & Co. v. Landecker (9 Cal., 262), and Carter
into custodia legis, under the sole control of v. Los Angeles National Bank (116 Cal.,
such court. 370-1).
In the present case, there can be no doubt, ISSUE: W the judgment creditor can
therefore, that the trial court actually institute a separate action against the
acquired jurisdiction over petitioner Perla garnishee. YES
when it was served with the writ of
garnishment of the third-party liability The plaintiff may or may not, at his election,
insurance policy it had issued in favor of require the garnishee to appear and answer
judgment debtor Enriquez. Perla cannot on oath, and his liability will not be affected
successfully evade liability thereon by such by the failure of the plaintiff to take such a
a contention. step. (Roberts & Co. v. Landecker (9 Cal.,
262))
A plaintiff who has sued out an attachment

Q: What is the remedy of the attaching and given the necessary notice to a
creditor if the garnishee, after having served garnishee that the property in his hands is
with notice of garnishment, fraudulently attached, and subsequently the garnishee
disposes the garnished property, resulting fraudulently disposes of the property, has a
to non-satisfaction of the judgment? right to waive his lien on the property, and
bring suit for the value of the property,
A: A plaintiff who has sued out an against the garnishee. (Roberts & Co. v.
attachment and given the necessary notice Landecker (9 Cal., 262))
to a garnishee that the property in his hands
is attached, and subsequently the garnishee After execution unsatisfied against the
fraudulently disposes of the property, has a judgment in debtor, the judgment creditor
right to waive his lien on the property, and may bring an action at law against a
bring suit for the value of the property, garnishee upon whom notice was served
against the garnishee. under an attachment issued in the action
before judgment; and it is necessary before
Tec Bi and Co vs. Chartered Bank of bringing such action that the garnishee
India should be required to appear and answer,
or that an order should be obtained
authorizing the action against the garnishee;
Tec Bi filed an action against La Urania.
and no equitable circumstance need be
The Court ruled in favour of Tec be, and
shown to justify the suit, which is upon
issued a WPA against the bales of Tobacco
direct liability of the garnishee to the plaintiff
owned by La Urania. The said bales were in
in that suit provided for in section 544 of the
the possession of the bank, inasmuch as it
Code of Civil Procedure. (Carter v. Los
was under a contract of Pledge.
Angeles National Bank (116 Cal., 370-1))
The Sheriff notified the bank that the bales
of tobacco were attached. However, the
bank claimed that such was a security for a
loan and that the bank intends to sell the
same.
Q: Can a mortgaged property be attached? The foregoing conclusion has two
necessary consequences:
A: Yes.
1. The writ of possession issued in favor of
Golden Star is null and void ab
initio because it interfered with the
Q: What is the remedy of the attaching jurisdiction of a co-ordinate and co-equal
creditor if the mortgaged property has been court While property or money is in custodia
extrajudicially foreclosed by the mortgagee? legis, the officer holding it is the mere hand
of the court, his possession is the
A: The attaching creditor is subrogated to possession of the court, and to interfere with
the rights of the attachment debtor. The it is to invade the jurisdiction of the court
attaching creditor acquires the debtor’s right itself.
of redemption. As such, he may redeem the
property from the purchaser. 2. Solidbank acquired by operation of law
the right of redemption over the foreclosed
properties pursuant to Sec. 6 of Act No.
3135, to wit:
Consolidated Bank vs. IAC
In all such cases in which an extrajudicial
sale is made ... any person having a lien on
NICOS mortgaged real properties to UCPB.
the property subsequent to the mortgage ...
may redeem the same at any time within the
NICOS also entered into contract of loan term of one year from and after the date of
with Solid Bank, which were not paid. sale.
Solid Bank instituted a collection case It has been held that "an attaching creditor
against NICOS, and was able to secure an may succeed to the incidental rights to
attachment over the real properties of that which the debtor was entitled by reason of
were subject of a mortgage. his ownership of the property, as for
example, a right to redeem from a prior
Pursuant to the writ, the sheriff levied the mortgage" (Lyon v. Stanford, 5 Conn. 541, 7
properties and such notice of levy was SJS 505).
annotated in the title with the ROD.
The fact that NICOS executed a waiver of
The attached properties were then right of redemption in favor of Golden Star is
extrajudicially foreclosed by UCPB, and was of no moment as by that time it had no more
acquired by UCPB as highest bidder. right which it may waive in favor of another.
Thereafter, UCPB sold the properties to Go,

who in turn sold it to Goldenstar. NICOS
executed a “Waiver of Right of Redemption”
in favour of Golden Star.
ISSUE: W an attaching creditor acquires the

right of redemption of a debtor over the
attached properties which are subsequently
extrajudicially foreclosed by third parties.
YES
The subject properties were under custodia

legis by virtue of the prior annotation of a
writ of attachment in petitioner's favor at the
time the properties were extrajudicially
foreclosed.
When a writ of attachment has been levied

on real property or any interest therein
belonging to the judgment debtor, the levy
thus effected creates a lien which nothing
can destroy but its dissolution
Q: Can the appointment of a rehabilitation of institution of management committee
receiver defeat the writ of attachment made under the rehabilitation plan. YES
on the properties?
The WPA must stand despite the
A: No. This is for the reason that in the suspension of the proceedings. The writ
event that the receivership is terminated was issued prior to the creation of the
with such claims not having been satisfied, management committee and so should not
the creditors may also find themselves be regarded as an undue advantage of
without security therefor in the civil action Mendoza and Roa over the other creditors
because of the dissolution of the of BF.
attachment. (BF Homes v. CA)
The appointment of a rehabilitation receiver
BF HOMES vs. CA who took control and custody of BF has not
necessarily secured the claims of Roa and
BF contracted a loan from Roa and Mendoza. In the event that the receivership
Mendoza. The obligation was embodied in a is terminated with such claims not having
promissory note and secured by PDC been satisfied, the creditors may also find
issued by BF in favor of the ROA & themselves without security therefor in the
Mendoza. civil action because of the dissolution of the
attachment. This should not be permitted.
Subsequently, BF filed a Petition for Having previously obtained the issuance of
Rehabilitation and Suspension of Payments the writ in good faith, they should not be
with the SEC. deprived of its protection if the rehabilitation
plan does not succeed and the civil action is
resumed.
Roa and Mendoza file an action for the
recovery of the loan with a prayer for WPA
against the properties of BF. It is settled that: If there is an attachment or
sequestration of the goods or estate of the
The TC issued the WPA against properties defendant in an action which is removed to
a bankruptcy court, such an attachment or
of BF sufficient to satisfy the principal claim.
sequestration will continue in existence and
hold the goods or estate to answer the final
BF moved for the dismissal of the case and
judgment or decree in the same manner as
lifiting of WPA in view of the pendency of
they would have been held to answer the
Petition for Rehabilitation.
final judgment or decree rendered by the
Court from which the action was removed,
The SEC issued an order creating a unless the attachment or sequestration is
management committee and suspending all invalidated under applicable law.
actions for claims against BF pending
before any court, tribunal or board.
Under the Rules of Court, a writ of
attachment may be dissolved only upon the
The CA, on appeal, suspended the filing of a counter-bond or upon proof of its
collection case until the management improper or irregular issuance. Neither
committee is impleaded as party defendant, ground has been established in the case at
and declared the WPA null and void. bar to warrant the discharge of the writ. No
counter-bond has been given. As for the
According to the CA, the purpose of the contention that the writ was improperly
suspension was to enable the management issued for lack of notice to BF on the
committee to substitute BF as party application for the writ, the only requisites
defendant and prosecute the defense to for the issuance of a writ of preliminary
conclusion. attachment under Section 3, Rule 57 of the
Rules of Court are the affidavit and bond of
As to the dissolution of the WPA, the CA the applicant.
said that Roa and Mendoza were secured in
the satisfaction of any judgment they might No notice to the adverse party or hearing of
obtain against BF since all the properties of the application is required.
the latter were already in the custody of the
management committee. The CA did not
rule on the validity of the WPA.
ISSUE: W the WPA should stand despite

the suspension of the proceeding by reason
Q: What is sequestration? Lianga. The PCGG was not impleaded by
Hung Ming Kuk as party-defendant nor was
A: Sequestration is the process, which may the sequestration case referred to the
be employed as a conservatory writ RTC's proceedings.
whenever the right of the property is
involved, to preserve, pending litigation, The TC granted the WPA in favor of Hung
specific property subject to conflicting Ming Kuk.
claims of ownership or liens and privileges.
(BASECO vs. PCGG) For failure to file responsive pleadings by
LBLC, the RTC rendered judgment by
default in favour of Hung Ming Kuk.
Q: What is the nature of sequestration? In another case, the SC en banc confirmed

the validity of the writ of Sequestration.
A: Sequestration is akin to the provisional
remedy of preliminary attachment, or Republic contends that the RTC of Lianga
receivership. has no jurisdiction over the subject matter of
the case inasmuch as the same are under
By attachment, a sheriff seizes property of a sequestration by the PCGG, and that the
defendant in a civil suit so that it may stand sequestered assets have been placed
as security for the satisfaction of any under custodia legis of the PCGG pending
judgment that may be obtained, and not the final determination by the
disposed of, or dissipated, or lost Sandiganbayan that said assets are in fact
intentionally or otherwise, pending the ill-gotten.
action. (Rule 57, Rules of Court)
Hung Ming Kuk claims that the attachment
By receivership, property, real or personal, order was issued after the Sandiganbayan
which is subject of litigation, is placed in the had lifted the writ of sequestration against
possession and control of a receiver LBLC.
appointed by the Court, who shall conserve
it pending final determination of the title or ISSUE: W the WPA was validly issued. NO
right of possession over it. (Rule 59, Rules
of Court) The disputed properties of LBLC were
already under custodia legis by virtue of a
All these remedies--sequestration, freezing, valid writ of sequestration issued by the
provisional, takeover, attachment and PCGG on April 2, 1986, when Judge
receivership--are provisional, temporary, Saludares issued the WPA in favor of Hung
designed for particular exigencies, attended Ming Kuk. At that time the writ of
by no character of permanency or finality, sequestration issued by PCGG against
and always subject to the control of the LBLC was subsisting. Said writ of the
issuing court or agency. (Republic vs. PCGG could not be interfered with by the
Sandiganbayan) RTC of Lianga, because the PCGG is a
coordinate and co-equal body. The PCGG
Republic vs. Saludares had acquired by operation of law the right of
redemption over the property until after the
On April 2, 1986, the PCGG issued a writ of final determination of the case or until its
sequestration against LBLC on the ground dissolution.
that the shares of stocks in LBLC owned by
Sabido formed part of "illegally acquired
wealth." The Republic filed before the
Sandiganbayan a complaint for
reconveyance, reversion, accounting,
restitution and damages against, among
others, Sabido.
Upon motion by Sabido, the Writ of

Sequestration was lifted.
Hung Ming Kuk filed a complaint for sum of

money against LBLC, with a prayer for a
writ of preliminary attachment, with RTC
Section 9. Effect of attachment of interests Q: What is the duty of the Executor,
in property belonging to the estate of a Administrator or Personal Representative
decedent. — The attachment of the interest when an order is made upon such petition?
of an heir, legatee, or devisee in the
property belonging to the estate of a A: The distribution may be awarded to such
decedent shall not impair the powers of the heir, legatee or devisee, but the property
executor, administrator, or other personal attached shall be ordered delivered to the
representative of the decedent over such sheriff making the levy, subject to the claim
property for the purpose of administration. of such heir, legatee, or devisee, or any
Such personal representative, however, person claiming under him.
shall report the attachment to the court
when any petition for distribution is filed,
and in the order made upon such petition,
distribution may be awarded to such heir, NOTA BENE: After the estate has been
legatee or devisee, but the property settled and distributed, it is the time where
attached shall be ordered delivered to the the sheriff can actually levy the specific
sheriff making the levy, subject to the claim share in the estate that pertains to the
of such heir, legatee, or devisee, or any defendant. Instead of the defendant
person claiming under him. (9a) receiving his share, it will be delivered to the
sheriff.
Q: What is the effect of an attachment of the
interest in the property belonging to the
estate of the decedent?
Section 10. Examination of party whose
A: The attachment shall not impair the property is attached and persons indebted
powers of the executor, administrator, or to him or controlling his property; delivery of
other personal representative of the property to sheriff. — Any person owing
decedent over such property for the debts to the party whose property is
purpose of administration. attached or having in his possession or
under his control any credit or other
personal property belonging to such party,
may be required to attend before the court
Q: Why does Sec. 9 refer to the interest in in which the action is pending, or before a
the estate? commissioner appointed by the court, and
be examined on oath respecting the same.
A: Pending distribution or settlement of the The party whose property is attached may
estate, the parties to the attachment cannot also be required to attend for the purpose of
yet exactly state or know the exact giving information respecting his property,
properties with the judgment debtor may and may be examined on oath. The court
receive. Hence, only the interest can be may, after such examination, order personal
attached. property capable of manual delivery
belonging to him, in the possession of the
person so required to attend before the
court, to be delivered to the clerk of the
Q: How do you attach the interest? court or sheriff on such terms as may be
just, having reference to any lien thereon or
A: It is done by serving a copy of the claim against the same, to await the
judgment in the action. (10a)
attachment to the executor, administrator, or
personal representative of the estate, and
serving a copy thereof to the Clerk of Court Q: What is the procedure if the garnishee
where the settlement is pending. denies indebtedness?
A: If the garnishee denies indebtedness, he

may be required to attend before the court
Q: What is the duty of the executor, in which the action is pending to be
administrator or personal representative in examined on oath respecting the same 7.
case of petition for distribution? (Tayabas Land vs. Sharuff)
A: He shall report the attachment to the

court. 7
Provisional Remedies and Special Civil Actions
Reviewer-Primer by Feria
Q: What is the purpose of examination investigation, the judge may issue a warrant
under Sec. 10? of arrest if he finds after an examination in
writing and under oath of the complainant
A: It depends upon who is to be examined. and his witnesses in the form of searching
question and answers, that a probable
If the third party is to be examined, it is for cause exists and that there is a necessity of
the purpose of eliciting information placing the respondent under immediate
regarding the properties or debt owing to custody in order not to frustrate the ends of
the defendant, which are in the possession justice
of the third party.
The examination under Sec. 10 is a mode of
If the defendant is to be examined, it is for discovery applied in cases wherein no
the purpose of eliciting information property of the debtor is found. The
regarding his properties. examination is resorted to identify other
possible properties of the defendant which
may have been concealed by him, or is in
the possession of other person.
Q: Who may be examined?
A: The following persons may be examined:
1. Defendant himself;
2. Creditor of the defendant; Q: What is the consequence is the third
3. Debtor of the defendant; or person or the defendant gives false
4. Any person who has under his testimony?
control other personal properties
belonging to the defendant. A: They can be held criminally liable for the
false testimony since the examination
mentioned in Sec. 10 is under oath.
Q: Who may examine?
A: It is the Court in which the action is Q: If the garnishee denies the debt or
pending, or a commissioner appointed by claims the property, may the court compel
the court. him to pay or deliver the property?
A: No. If the garnishee does not admit

indebtedness or makes a legal or equitable
Q: After the examination, what order may claim to the property or amount in his
be issued by the Court? hands, the controversy must be determined
by a separate action as provided in Sec. 43,
Rule 39.
A: The court may order personal property
capable of manual delivery belonging to
him, in the possession of the person so Sec. 10, Rule 57 is applicable only in cases
required to attend before the court, to be where the indebtedness is admitted by the
delivered to the clerk of the court or sheriff garnishee, or a personal property capable of
on such terms as may be just, having manual delivery belonging to the defendant
reference to any lien thereon or claim is in the possession of the person required
against the same, to await the judgment in to attend before the court.
the action.
Q: Is the examination in Sec. 10, similar to

the examination in criminal procedure for
the issuance of a warrant of arrest for
determination of probable cause?
A: No. Sec. 6 Rule 112 provides that

without waiting for the conclusion of the
Is notice to defendant regarding Section 11. When attached property may
examination of bank records necessary? be sold after levy on attachment and before
entry of judgment. — Whenever it shall be
OÑATE V. ABROGAR (2 nd Division) made to appear to the court in which the
action is pending, upon hearing with notice
Sun Life filed motion for examination of to both parties, that the property attached is
bank accounts with BPI — which, perishable, or that the interests of all the
incidentally, Onate claim not to be owned by parties to the action will be subserved by
them — and the records of PNB with regard the sale thereof, the court may order such
to checks payable to Brunner. property to be sold at public auction in such
manner as it may direct, and the proceeds
The Judge issued an order granting Sun of such sale to be deposited in court to
Life's motion to examine the BPI account. abide the judgment in the action. (11a)
Onate’s basic argument is that the Judge Q: Can the sheriff dispose of the property
had acted with grave abuse of discretion subject of the attachment during the
amounting to lack or in excess of jurisdiction pendency of the litigation?
in allowing the examination of the bank
records though no notice was given to them. A: As a general rule, the sheriff can only
dispose of the property when the main case
ISSUE: W the defendant has to be notified has been terminated.
of the examination of the bank records. NO
However, Section 11 provides for two
Under Sec. 10, notice need only be given to instances where the sheriff can sell the
the garnishee, or the person who is holding attached property pending litigation, as an
property or credits belonging to the exception.
defendant. The provision does not require
that notice be furnished the defendant 1. When the property attached is
himself, except when there is a need to perishable; or
examine said defendant "for the purpose of 2. When the interests of all the
giving information respecting his property. parties to the action will be
subserved by the sale thereof.
The examination of the bank records is not
a fishing expedition, but rather a method by Q: What are the procedures to be followed
which Sun Life could trace the proceeds of under Sec. 11?
the check it paid to petitioners.
A: The requirements are as follows:
1. That there must be a hearing

with notice to both parties; and
2. That the attaching creditor must
be able to prove to the Court
where the action is pending that
the property attached is
perishable in nature and that the
parties agreed to sell the
attached property for the
protection of their own interest.
Q: How should the sale be made, and what

happens to the proceeds thereof?
A: It must be sold at a public auction in such

a manner as the court may direct, and the
proceeds of such sale to be deposited in
court to abide the judgment in the action.
Section 12. Discharge of attachment upon making the deposit or giving the
giving counter-bond. — After a writ of counter-bond.
attachment has been enforced, the party
whose property has been attached, or the
person appearing on his behalf, may move
for the discharge of the attachment wholly Q: When do you file a counter-bond?
or in part on the security given. The court
shall, after due notice and hearing, order the A: In Sec. 12, the counter-bond is filed after
discharge of the attachment if the movant the levy of the attached property. The
makes a cash deposit, or files a counter- purpose is to have the attached property
bond executed to the attaching party with released.
the clerk of the court where the application
is made, in an amount equal to that fixed by In Sec. 5, the counter-bond is filed before
the court in the order of attachment, the levy of the property to be attached. It is
exclusive of costs. But if the attachment is for the purpose of avoiding levy on property.
sought to be discharged with respect to a
particular property, the counter-bond shall In Sec. 2, the counter-bond can be filed
be equal to the value of that property as upon the issuance of the writ of attachment.
determined by the court. In either case, the The purpose is to prevent the levy on
cash deposit or the counter-bond shall property.
secure the payment of any judgment that
the attaching party may recover in the
action. A notice of the deposit shall forthwith
be served on the attaching party. Upon the
discharge of an attachment in accordance Q: What is the purpose of hearing?
with the provisions of this section, the
property attached, or the proceeds of any A: To determine whether the action is
sale thereof, shall be delivered to the party proper, or the party is entitled to the motion
making the deposit or giving the counter- to discharge attachment.
bond, or to the person appearing on his
behalf, the deposit or counter-bond
aforesaid standing in place of the property
so released. Should such counter-bond for Q: What is the purpose of the cash deposit
any reason be found to be or become or counter-bond?
insufficient, and the party furnishing the
same fail to file an additional counter-bond, A: It is to secure the payment of any
the attaching party may apply for a new judgment that the attaching party may
order of attachment. (12a) recover in the action standing in place of the
property released. The counter-bond takes
Q: What is the procedure to discharge an the place of the attached property.
attachment by counter-bond?
A: The procedure is as follows:

Q: What is the effect of the discharge on the
1. File a motion for discharge of property attached?
attachment by counter-bond
wholly or in part of the security A: The property is released from liability. It
given; is free and no longer liable to the results in
2. Make a cash deposit, or file a the proceeding in which it was attached.
counter-bond executed to the (Mercantile Co. vs. Flores)
attaching party with the clerk of
the court where the application is
made;
3. The court will conduct a hearing Q: What is the effect of discharge on the
with due notice to all the parties; attachment bond?
4. The court will order the
discharge; and A: The liability on the attachment bond
5. The property attached, or the subsists and continues to be in force
proceeds of any sale thereof, despite the discharge of the attachment by
shall be delivered to the party counter-bond.
Q: What happens if the counter-bond is ISSUE: W the garnishment may be ordered
found to be or becomes insufficient? lifted without the posting of the counter
bond. NO
A: The party who filed the same shall be
required to furnish an additional counter- The Court issued the garnishment order for
bond, and if he fails, the attaching party may the purpose of ensuring their compliance
apply for a new order of attachment. with the judgment pertaining to the
execution of the absolute deed of sale in
favour of Ventanilla, which by its term could
be lifted only upon the filling of a cash bond
Q: What is the amount of counter-bond? of P500,000.00.
A: It is the amount equal to that fixed by the A garnishment order shall be lifted if it
court in the order of attachment, exclusive established that the party whose accounts
of costs. But if the attachment is sought to have been garnished has posted a
be discharged with respect to a particular counterbond or has made the requisite cash
property, the counter-bond shall be equal to deposit, among others.
the value of that property as determined by
the court. As for the counterbond, the RTC did not err
when it fixed the same at P500,000.00. As
correctly pointed out by the CA, that amount
corresponds to the current fair market value
Q: May the court order that the amount of of the property in litigation and was a
the counter-bond be more than that of the reasonable basis for determining the
amount of the obligation? amount of the counterbond.
A: Yes. In Manila Remnant vs CA, the

imposition of the court of a P500,000
counter-bond despite the fact that the In Insular Savings Bank vs. Ca, the
obligation was only P66,571 (selling price of determining point is the liability of the party,
the land) is valid, for the reason that the or the principal claim.
amount corresponds to the current fair
market value of the property in litigation. Insular Savings Bank vs. CA (1991)
The determining point is the value of the FEBTC instituted an arbitration case against
property. ISB for a total of P25.2M. During the
pendency of the arbitration proceeding,
The Manila Remnant Co v. CA (1978) FEBTC filed a collection case with the RTC,
and prayed for WPA. RTC granted and
MRCI filed a motion prying for the lifting of issued the WPA.
the garnishment order.
Subsequently, FEBTC and ISB entered into
The RTC ruled that “to ensure that there is an agreement where FEBTC was now in the
enough amount to cover the lots involved if possession of P12.6M representing half of
the transfer thereof to the plaintiff may no the disputed amount.
longer be effected, the garnishment may be
ordered lifted only upon the deposit to the ISB filed for a motion to discharge
Court the amount of P500,000 in cash. attachment by counterbond in the amount of
P12.6M.
On appeal, the CA ruled that the cash bond
fixed by the RTC for the lifting of the The Court denied the motion stating that the
garnishment order was fair and reasonable amount of counterbond should be the
because the value of the lot in question had unsecured portion of the claim amounting to
increased considerably. P12.6M, actual damages of P7.8275M,
legal interest of P3.8052M, exemplary
MRCI contends that there is no need for the damages of P2M, and attorney’s fee and
garnishment order because it is willing to litigation cost of P1M (total of P27.2377M).
reimburse Ventanillas the amount it paid for
the lot (P66,571) in lieu of the execution of ISB contends that the starting point in
absolute deed of sale. computing the amount of counter-bond is
the amount of the respondent’s demand or FEBTC did not pray for attachment on its
claim only, that is P25.2M, excluding other claims, contingent and unliquidated as
contingent expense and unliquidated they were. Then, too, the attaching writ
amount of damages. Considering their rightly excluded such claims. Be that as it
agreement, the amount of P12.6M should may, it was simply unjust for the trial court
be the basis for computing the amount of to base the amount of the counter-bond on
counter-bond. a figure beyond the P25,200,000.00
threshold, as later reduced
ISSUE: W the denial of the motion to to P12,600,200.00.
discharge by counter-bond is proper. NO
NOTA BENE: Unlike the former Section 12
Under Sec. 12, the party whose property of Rule 57 of the Rules of Court where the
has been attached … may apply to the value of the property attached shall be the
judge who granted the order … for an order defining measure in the computation of the
discharging the attachment wholly or in part discharging counter-attachment bond, the
on the security given. The judge shall … present less stringent Section 12 of Rule 57
order the discharge of the attachment if a provides that the court shall order the
cash deposit is made, or a counter-bond discharge of attachment if the
executed to the attaching creditor is filed … movant makes a cash deposit, or files a
in an amount equal to the value of the counter-bond . . . in an amount equal to that
property attached as determined by the fixed by the court in the order of attachment,
judge, to secure the payment of any exclusive of costs. Not being in the nature of
judgment that the attaching creditor may a penal statute, the Rules of Court cannot
recover in the action. be given retroactive effect. (Insular Savings
Bank vs. CA)
The amount of the counter-attachment bond
is to be measured against the value of the
attached property, as determined by the
judge to secure the payment of any Before the amendment to the Rules of Court
judgment that the attaching creditor may (1997), the rule is that if the attachment is
recover in the action. Albeit not explicitly with respect to a specific property, the court
stated in the same section and without can fix the counter-bond based on the value
necessarily diminishing the sound discretion of the properties attached. If it is not with
of the issuing judge on matters of bond respect to a specific property, it will be
approval, the counter-bond should as much based on the claim of the attaching creditor.
as possible correspond in value to, or
approximately match the attaching creditors PREVAILING RULE: As a general rule, it
principal claim. Else, excessive attachment, should be equal to the amount of the
which ought to be avoided at all times, shall attachment bond as stated in the
ensue. attachment order. As an exception, the
court may, in its discretion, decide that the
FEBTC’s principal claim against ISB counter-bond be based on the value of the
immediately prior to the filing of the motion property.
to discharge attachment has effectively
been pruned down to P12,600,000.00.
Accordingly, RTC should have allowed a
total discharge of the attachment on a
counter-bond based on the reduced claim of
respondent. If a portion of the claim is
already secured, we see no justifiable
reason why such portion should still be
subject of counter-bond. It may be that a
counter-bond is intended to secure the
payment of any judgment that the attaching
party may recover in the main action.
Simple common sense, if not consideration
of fair play, however, dictates that a part of
a possible judgment that has veritably been
preemptively satisfied or secured need not
be covered by the counter-bond.
Q: What is the purpose of counter-bond? Q: Is the writ automatically discharged upon
the filing of the counter-bond?
A: The filing of the counter-bond will serve
the purpose of preserving the defendant's A: Generally, the mere posting of a
property and at the same time give the counterbond does not automatically
plaintiff security for any judgment that may discharge the writ of attachment. It is only
be obtained against the defendant. after hearing and after the judge has
ordered the discharge of the attachment if a
KO Glass vs. Valenzuela cash deposit is made or a counterbond is
executed to the attaching creditor is filed,
Glass moved to quash the WPA upon the that the writ of attachment is properly
ground that the affidavit filed was not discharged under Section 12, Rule 57 of the
sufficient. KO Glass filed a bond in the Rules of Court.
amount of P37,190.00 and asked the court
for the release of the same amount
deposited with the Clerk of Court, but, the
respondent Judge did not order the release Q: What is the nature of the liability of the
of the money deposited. surety in Security Pacific vs. Infante?
ISSUE: W the denial of the discharge of A: The liability is joint and several, as stated
WPA by counter-bond is proper. NO in the counter-bond itself. A surety is
considered in law as being the same party
There being no showing, much less an as the debtor in relation to whatever is
allegation that the defendants are about to adjudged against him.
depart from the Philippines with intent to
defraud their creditor, or that they are non- Security Pacific Assurance vs Infante
resident aliens, and for the reason that the
affidavit of Pinzon did not comply with Sec. Anzures filed a criminal complaint against
3, the attachment of their properties is not Villaluz, with prayer for WPA.
justified.
The Court issued WPA after the posting of
Since KO Glass has filed a counterbond in the attachment bond. The sheriff attached
the amount of P37,190.00 to answer for any certain properties of Villaluz, which were
judgment that may be rendered against the duly annotated on the corresponding
defendant. Upon receipt of the counter-bond certificates of title.
the respondent Judge should have
discharged the attachment pursuant to Villaluz was acquitted of the crime charged,
Section 12. but was held civilly liable.
The filing of the counter-bond will serve the Villaluz interposed an appeal with the CA
purpose of preserving the defendant's regarding her liabilities, but was denied. She
property and at the same time give the elevated the same to the SC, and during its
plaintiff security for any judgment that may pendency, Villaluz posted a counter-bond in
be obtained against the defendant. the amount of P2,500,000.00 issued by
Security Pacific Assurance Corporation.
Villaluz then filed a Motion to Discharge
Attachment.
The SC affirmed the ruling of the CA as to

her civil liabilities.
A writ of execution was issued and the

Sheriff sent a Notice of Garnishment upon
Security Pacific by virtue of the counter-
bond posted by Villaluz with said insurance
corporation in the amount of P2,500,000.00.
Security Insurance refused to assume its
obligation on the counter-bond it posted for
the discharge of the attachment made by
Villaluz.
Security Insurance contends that the WPA liable when the law clearly does not require
against the real properties of Villaluz was such requisites to be fulfilled.”
not discharged, as such, its liability did not
accrue. The alleged failure of the SC to
approve the counter-bond and to cause the
discharge of the attachment against Villaluz
prevented the happening of a condition
upon which the counter-bonds issuance Q: Do the posting of the counter-bond to
was premised, such that petitioner should discharge an attachment constitutes a
not be held liable thereon. waiver to any defect in the Writ of
Attachment?
ISSUE: W the attachment was ipso facto
discharged by the mere act of posting the A: No. The attachment debtor cannot be
counter-bond. NO deemed to have waived any defect in the
issuance of the attachment writ by simply
We are not unmindful of our ruling in the availing himself of one way of discharging
case of Belisle Investment and Finance Co., the attachment writ, instead of the other.
Inc. v. State Investment House, Inc., where Moreover, the filing of a counterbond is a
we held “that the mere posting of a speedier way of discharging the attachment
counterbond does not automatically writ maliciously sought out by the attaching
discharge the writ of attachment. It is only creditor instead of the other way, which, in
after hearing and after the judge has most instances like in the present case,
ordered the discharge of the attachment if a would require presentation of evidence in a
cash deposit is made or a counterbond is full-blown trial on the merits and cannot
executed to the attaching creditor is filed, easily be settled in a pending incident of the
that the writ of attachment is properly case.
discharged under Section 12, Rule 57 of the
Rules of Court.” Calderon vs. IAC
However, considering our decision in G.R.
Schulze filed a counterbond, so the TC
No. 106214 it shows that this Court has issued an order directing the sheriff to return
virtually discharged the attachment after all
all real and personal properties already
the parties therein have been heard on the
levied upon and to lift the notices of
matter.
garnishment issued in connection with the
said attachment.
Further, the court held that “The filing of the
counter-attachment bond by Villaluz has
After trial, the complaint against Schulze
discharged the attachment on the properties
was dismissed, holding Calderon and his
and made the corporation liable on the
surety First integrated Bonding and
counter-attachment bond. This can be Insurance Co., Inc., jointly and severally
gleaned from the DEFENDANTS BOND
liable to pay the damages prayed for by
FOR THE DISSOLUTION OF
Schulze.
ATTACHMENT, which states that Security
Pacific Assurance Corporation, as surety, in
First Integrated contends that the
consideration of the dissolution of the said
dissolution of the attachment extinguishes
attachment jointly and severally, binds
its obligation under the bond, for the basis
itself with Villaluz for any judgment that may
of its liability, which is wrongful attachment,
be recovered by Anzures against Villaluz.
no longer exists, the attachment bond
having been rendered void and ineffective,
The contract of surety is only between
by virtue of Section 12, Rule 57 of the Rules
Villaluz and the corporation. The corporation
of Court.
cannot escape liability by stating that a court
approval is needed before it can be made
First Integrated also contends that by filing a
liable. This defense can only be availed by
counterbond, Schulze waived any defect or
corporation against Villaluz but not against
flaw in the issuance of the attachment writ,
third persons who are not parties to the
for they could have sought, without need of
contract of surety. The petitioners hold
filing any counterbond, the discharge of the
themselves out as jointly and severally
attachment if the same was improperly or
liable without any conditions in the counter-
irregularly issued, as provided in Section 13,
attachment bond. The corporation cannot
Rule 57 of the Rules of Court.
impose requisites before it can be made
ISSUE: W the filing of a counter-bond to Metro, Inc. vs. Lara’s Gifts and Décor
discharge the writ of attachment constitute a
waiver on any defect in the issuance of the Metro filed a motion to discharge the writ of
WPA. NO attachment on the following ground that
Lara’s Gift failed to substantiate their
While Section 12, Rule 57 of the Rules of allegations of fraud with specific acts or
Court provides that upon the filing of a deeds showing how Metro Inc defrauded
counterbond, the attachment is discharged them, among others.
or dissolved, nowhere is it provided that the
attachment bond is rendered void and The TC lifted the writ of attachment ruling
ineffective upon the filing of counterbond. that the issuance of a WPA is not justified.
Thus, the responsibility of the surety arises Lara’s Gifts contends that the discharge of
"if the court shall finally adjudge that the the WPA without requiring Metro to post a
plaintiff was not entitled thereto." counter-bond is invalid.
Whether the attachment was discharged by On appeal, the CA ruled that the discharge
either of the two (2) ways indicated in the of WPA without requiring petitioners to post
law, i.e., by filing a counterbond or by a counter-bond is erroneous.
showing that the order of attachment was
improperly or irregularly issued, the liability METRO CONTENDS that the WPA was
of the surety on the attachment bond improperly issued because amended
subsists because the final reckoning is complaint failed to allege specific acts or
when "the Court shall finally adjudge that circumstances constitutive of fraud. As
the attaching creditor was not entitled" to such, it may be discharged without the
the issuance of the attachment writ in the necessity of filing a counter-bond.
first place.
LARA’S GIFTS CONTENDS that Metro Inc.
The attachment debtor cannot be deemed cannot avail of Section 13, Rule 57 of the
to have waived any defect in the issuance of Rules of Court to have the attachment set
the attachment writ by simply availing aside because the ground for the issuance
himself of one way of discharging the of the writ of attachment is also the basis of
attachment writ, instead of the other. respondents amended complaint.
Moreover, the filing of a counterbond is a
speedier way of discharging the attachment ISSUE: W the WPA was improperly issued
writ maliciously sought out by the attaching such that it may be discharged without the
creditor instead of the other way, which, in filing of a counter-bond. NO
most instances like in the present case,
would require presentation of evidence in a The WPA was properly issued. The only
full-blown trial on the merits and cannot way it can be dissolved is by filing a
easily be settled in a pending incident of the counter-bond in accordance with Section
case. 12, Rule 57 of the Rules of Court.
The rule is when the WPA is issued upon a

ground which is at the same time the
applicant’s cause of action, the only other
way the writ can be lifted or dissolved is by
a counter-bond. It is clear that in Lara’s
amended complaint of fraud is not only
alleged as a ground for the issuance of the
WPA, but it is also the core of Lara’s
complaint.
Section 13. Discharge of attachment on 2. If the motion be made on affidavits
other grounds. — The party whose property on the part of the movant but not
has been ordered attached may file a otherwise, the attaching party may
motion with the court in which he action is oppose the motion by counter-
pending, before or after levy or even after affidavits or other evidence in
the release of the attached property, for an addition to that on which the
order to set aside or discharge the attachment was made; and
attachment on the ground that the same 3. After due notice and hearing, the
was improperly or irregularly issued or court shall order the setting aside or
enforced, or that the bond is insufficient. If the corresponding discharge of the
the attachment is excessive, the discharge attachment
shall be limited to the excess. If the motion
be made on affidavits on the part of the
movant but not otherwise, the attaching
party may oppose the motion by counter- Q: What are the instances when the WPA is
affidavits or other evidence in addition to said to be improperly of irregularly issued?
that on which the attachment was made.
After due notice and hearing, the court shall A: WPA is improperly or irregularly issued
order the setting aside or the corresponding when:
discharge of the attachment if it appears
that it was improperly or irregularly issued or 1. The complaint states no cause of
enforced, or that the bond is insufficient, or action (Orbeta vs. Sotto);
that the attachment is excessive, and the 2. The allegations in the complaint are
defect is not cured forthwith. (13a) deceptively framed (Chuidian vs.
Sandiganbayan);
Q: What are the grounds to discharge 3. The plaintiff’s affidavit and bond are
WPA? not in accordance with Sec. 3 and
Sec. 4;
A: The grounds for the discharge of WPA 4. The allegations in the affidavit are
are: false (Jopillo Jr vs. CA).
1. Improper or irregular issuance of

the order of attachment;
2. Improper or irregular
enforcement of the WPA;
3. Insufficiency of the bond; or
4. Excessive attachment, but the
discharge is limited to the
excess.
Q: When may the motion to lift based on

these grounds be filed?
A: It can be filed (a.) before the levy, (b.)

after levy, or (c.) even after the property has
been released from levy.
Q: How to avail of Sec. 13?
A: The party whose property has been

ordered attached may:
1. File a motion with the court in which

he action is pending for an order to
set aside or discharge the
attachment;
Q: How do you establish illegality of Lim's allegations, Court would have to go
issuance of WPA? into the merits of the case aside from the
evidence introduced in support of the
A: A motion to discharge a writ of motion to discharge the attachment.
attachment on the ground that the same
was improperly or irregularly issued may be While the Court is competent whether the
established by the affidavits submitted by affidavits submitted show the existence of a
the party whose property has been attached cause of action against the Jopillo Jr, this
or such other evidence presented at the gives no general right to a trial on such
hearing of the motion. The attaching creditor motion of the merits of such cause.
may oppose the same by counter-affidavits
or other evidence in addition to that with Moreover, in this instant petition, since
which the attachment was made. Jopillo Jr. has not yet answered the
complaint and the principal action is not
If the movant establishes that the facts ready for trial, Court cannot resolve the
stated in the plaintiffs affidavit or some of issue on the merits of the case.
them, are shown to be false or untrue, the
writ of attachment may be considered as In the complaint, it appears that the
improperly or irregularly issued. The genuineness of the alleged receipt of the
determination of the existence of said scrap materials which Jopillo claims to have
grounds to discharge a writ of attachment delivered to Lim to offset his obligation is in
rests in the sound discretion of the lower issue. Besides, the nature of the agreement
court. (Jopillo Jr. vs. CA) and the actual deliveries made of the scrap
materials, among others, are factual issues
Jopillo Jr. vs CA that must be resolved at the trial on the
merits and not at the hearing of the motion
Lim filed a complaint for the collection of a to discharge the writ of attachment. If Lim
sum of money against Jopillo, Jr., with a did not present any counter-affidavit or
prayer for WPA, on the ground that Jopillo is evidence to counteract what has been
guilty of fraud in contracting the obligation adduced by Jopillo at the hearing of the
with no intent to pay the same and that he is motion, it must be because Lim believed
disposing of the scrap materials subject of that it was not necessary.
their agreement to defraud Lim.
WPA was granted ex-parte and was issued

upon filing of bond by Lim. Sheriff attached
a Chevrolet truck owned by Jopillo.
Jopillo moved to quash the WPA claiming

that its issuance was irregular and improper
as the allegations of Lim are false. At the
hearing of the motion, he testified that their
agreement is a simple loan and that it was
already fully paid by way of off-set when he
delivered scrap materials to Lim on various
occasions. To support the claim, he
presented receipts purportedly signed by
the secretary of private respondent
accepting deliveries of the scrap materials.
However, the TC denied motion, but further

ruled that the WPA may be lifted if he puts
up a counterbond (Section 12 of Rule 57 of
the Rules of Court).
ISSUE: W the WPA may be lifted pursuant

Sec. 13 upon presentation of evidence
disclaiming fraud. NO
In order to resolve the issue as to whether

petitioner's evidence proves the falsity of
Q: Do the posting of the counter-bond to a counterbond under Section 12, Rule 57 of
discharge an attachment constitutes a the Rules of Court, he may not file another
waiver to any defect in the Writ of motion under Section 13, Rule 57 to quash
Attachment? the writ for impropriety or irregularity in
issuing it.
A: No. The attachment debtor cannot be
deemed to have waived any defect in the The reason is simple. The writ had already
issuance of the attachment writ by simply been quashed by filing a counterbond,
availing himself of one way of discharging hence, another motion to quash it would be
the attachment writ, instead of the other. pointless. Moreover, when the ground for
Moreover, the filing of a counter-bond is a the issuance of the writ is also the core of
speedier way of discharging the attachment the complaint, the question of whether the
writ maliciously sought out by the attaching plaintiff was entitled to the writ can only be
creditor instead of the other way, which, in determined after, not before, a full-blown
most instances like in the present case, trial on the merits of the case. This accords
would require presentation of evidence in a with our ruling G.B. Inc. vs. Sanchez, 98
full-blown trial on the merits and cannot Phil. 886 that: "The merits of a main action
easily be settled in a pending incident of the are not triable in a motion to discharge an
case. (Calderon vs IAC) attachment, otherwise an applicant for the
dissolution could force a trial on the merits
MINDANAO SAVINGS & LOAN of the case on this motion."
ASSOCIATION, INC. & VILLAMOR vs. CA
& MERCADO NB: Reconciliation of the cases of Calderon
vs IAC and Mindanao Savings vs. CA:
Mercado filed a complaint against MSLA
(Formerly DSLA), and its directors for When the defendant posts a counter-bond
"Rescission of Contract and Damages" with to release the property attached, he can no
a prayer for WPA. longer move to discharge the same under
Sec. 13 for the purpose of releasing the
TC granted ex parte the application for, and same property because the purpose of the
issued a WPA. discharge has already been achieved. The
remedies under Sec. 12 and Sec. 13 cannot
MSAL and Villamor filed separate motions be availed of at the same time especially
to quash WPA, but the same were denied when the purpose of the remedy has
by TC. Hence they offered a counter-bond, already been achieved.
which was accepted by the court and lifted
the WPA. However, if there are defects in the
issuance of the WPA which constitutes a
MSLA and Villamor filed in the CA a petition ground for the discharge under Sec. 13,
for certiorari to annul the order of these defects are not deemed waived by the
attachment and the denial of their motion to filing of counter-bond. As such, the defect
quash the same. may be used as a ground to claim for
damages against the attachment bond
The CA dismissed their petition and ruled posted by the plaintiff.
that the objections against the writ may no
longer be invoked once a counterbond is
filed for its lifting or dissolution.
ISSUE: W MSLA can still file a motion to

discharge the attachment based on Sec. 13
after they have filed a counter-bond. NO
The Court of Appeals did not err in holding

that objections to the impropriety or
irregularity of the writ of attachment "may no
longer be invoked once a counterbond is
filed," when the ground for the issuance of
the writ forms the core of the complaint.
After the defendant has obtained the

discharge of the writ of attachment by filing
Q: When is the ground for the issuance of This mode of dissolution presents no
WPA the same as the cause of action in the apparent difficulty. It applies when there has
main case? already been a seizure of property by the
sheriff. All that is entailed is the presentation
A: The preliminary attachment is issued of a motion to the proper court, seeking
upon a ground which is at the same time the approval of a cash or surety bond in an
applicant's cause of action in the following amount equivalent to the value of the
instances: property seized and the lifting of the
attachment on the basis thereof. The
1. Sec. 1(b) - An action for money or counter-bond stands, according to the cited
property embezzled or fraudulently section, "in place of the property so
misapplied or converted to his own released."
use by a public officer, or an officer
of a corporation, or an attorney, 1.1. But a party need not wait until his
factor, broker, agent, or clerk, in the property has been seized before seeking its
course of his employment as such, dissolution upon security. In fact he may
or by any other person in a fiduciary prevent the seizure of his property under
capacity, or for a willful violation of attachment by giving security in an amount
duty; or sufficient to satisfy the claims against him.
2. Sec. 1(d) - An action against a party The relevant provision of the Rule is Section
who has been guilty of fraud in 5.
contracting the debt or incurring the
obligation upon which the action is 2.0. The second way of lifting a preliminary
brought. attachment is by proving its irregular or
improper issuance, under Section 13 of
Separate Opinions Rule 57. Like the first, this second mode
may be availed of even before any property
NARVASA, J.: Concurring And has been actually attached. It may even be
Dissenting Opinion resorted to after the property has already
been released from the levy on
attachment, as the pertinent provision
I agree that the decision of the Court of
Appeals subject of the appeal in this case makes clear.
should be affirmed. I write this separate
opinion simply to stress certain principles As pointed out in Calderon v. IAC, "The
relative to the discharge of preliminary attachment debtor cannot be deemed to
attachments so that our own decision or that have waived any defect in the issuance of
thereby affirmed be not applied to juridical the attachment writ by simply availing
situations beyond their intendment, which himself of one way of discharging the
may well result from the statement attachment writ, instead of the other.
that "after the defendant has obtained the Moreover, the filing of a counter-bond is a
discharge of the writ of attachment by filing speedier way of discharging the attachment
a counter-bond under Section 12, Rule 57 writ maliciously sought out by the attaching
of the Rules of Court, he may not file creditor instead of the other way, which, in
another motion under Section 13, Rule 57 to most instances would require presentation
quash the writ for impropriety or irregularity of evidence in a full-blown trial on the merits
in issuing it." and cannot easily be settled in a pending
incident of the case."
Rule 57 specifies in clear terms the modes
by which a preliminary attachment may be 3.0. However, when the preliminary
discharged at the instance of the party attachment is issued upon a ground which
against whom it has been issued. The first is at the same time the applicant's cause of
is by the submission of a 1. counter-bond or action; e.g., Sec. 1(b)"an action for money
security. The second is by a 2. or property embezzled or fraudulently
demonstration of the attachment's improper misapplied or converted to his own use by a
or irregular issuance. public officer, or an officer of a corporation,
or an attorney, factor, broker, agent, or
clerk, in the course of his employment as
1.0. The discharge of an attachment on
security given is governed by Section 12 of such, or by any other person in a fiduciary
capacity, or for a willful violation of duty," or
the Rule.
Sec. 1(d)"an action against a party who has
been guilty of fraud in contracting the debt
or incurring the obligation upon which the purchase land for Casa Filipina for
action is brought,” the defendant is not P1,000,000.00. Casa was able to make
allowed to file a motion to dissolve the payments in favour of Benitez but she was
attachment under Section 13 of Rule 57 by not able to purchase nor convey any real
offering to show the falsity of the factual estate in favor of Casa Filipina, and that
averments in the plaintiffs application and despite repeated demands for the refund or
affidavits on which the writ was based the return of the money, Benitez chose to
reason being that the hearing on such a ignore the same
motion for dissolution of the writ would be
tantamount to a trial of the merits of the WPA was granted and was subsequently
action. In other words, the merits of the issued. Sheriff served notices of
action would be ventilated at a mere hearing garnishment to PWU and several banks
of a motion, instead of at the regular trial. garnishing the deposits, shares of stocks,
Therefore, when the writ of attachment is of salaries and other personal property of
this nature, the only way it can be dissolved Benitez.
is by a counter-bond.
Benitez filed a Motion to Discharge WPA
4.0. The dissolution of the preliminary under Section 13 on the ground that on the
attachment upon security given, or a ground that the same was predicated upon
showing of its irregular or improper false and untrue allegations, alleging that
issuance, does not of course operate to Casa Filipina agreed to buy 10 has. of
discharge the sureties on plaintiffs own Benitez' land for a total consideration of
attachment bond. The reason is simple. P1,500,000.00; that it is only upon full
That bond is 'executed to the adverse party, payment that delivery of land will be made;
conditioned that the (applicant) will pay all that Casa Filipina was not able to comply
the costs which may be adjudged to the with the obligation despite repeated
adverse party and all damages which he demands and instead filed for rescission.
may sustain by reason of the attachment, if
the court shall finally adjudge that the To support motion for discharge, she
applicant was not entitled thereto." Hence, attached the affidavit of her technical
until that determination is made, as to the assistant, who alleged that the transaction is
applicant's entitlement to the attachment, purchase and sale and that Benitez is
his bond must stand and cannot be willing and able to execute a deed of
withdrawn. absolute sale in favor of Casa Filipina upon
full payment of the balance of P500,000.00.
Motion was set for hearing on January 25,

Q: If the defendant files a motion to 1985 but the Casa Filipina and its counsel
discharge WPA under Sec. 13, what should failed to appear despite notice.
the court do? Consequently, the motion was deemed
submitted for resolution.
A: The court must conduct a hearing
requiring the plaintiff to substantiate his TC denied motion to discharge WPA ruling
allegation of fraud to justify the issuance of that the issue cannot be determined without
the WPA. The reason is that the person who adducing evidence at the same time going
alleges fraud has the burden of proving the into the merits of the case which could not
same. The court cannot dispense with the be done at this stage of the proceedings,
hearing requirement, even if the plaintiff fails and that the same may not be lifted or
to appear on the date set for the hearing. discharged without the defendant filing a
counter-bond.
Benitez vs. IAC
ISSUE: W denial of the Motion to discharge
Casa Filipina filed a complaint against WPA without a hearing is proper. NO
Benitez for rescission of contract, with a
prayer for WPA on the ground that Benitez Benitez’ Motion to Discharge WPA was filed
converted the entrusted money for her own under Section 13,. The last sentence of said
personal use in violation of her fiduciary provision indicates that a hearing must be
relationship with Casa Filipina. It was conducted by the judge for the purpose of
alleged that Casa Filipina and Benitez determining whether or not there really was
entered into a verbal contract whereby a defect in the issuance of the attachment.
Benitez allegedly agreed to undertake to
No hearing was conducted by the court. Davao Light vs CA
Indeed, when the case was called for
hearing, Casa Filipina failed to appear and Davao Light filed a complaint for recovery of
the Benitez’ motion was considered money & damages against Queensland.
submitted for resolution. The complaint contained an ex-parte
application for PA.
It was grave abuse of discretion on the part
of Judge Veloso to deny Motion to On May 3, 1989 Judge Nartatez issued an
Discharge WPA, without conducting a Order granting the ex parte application and
hearing and requiring the plaintiff to fixing the attachment bond.
substantiate its allegation of fraud.
On May 11, 1989 the attachment bond
ISSUE: Does the rule that "the issue cannot having been submitted by Davao Light, the
be determined without adducing evidence at writ of attachment issued.
the same time going into the merits of the
case" not applicable? NO On May 12, 1989, the summons and a copy
of the complaint, as well as the WPA and a
Having issued the WPA ex parte, it was copy of the attachment bond, were served
incumbent on the TC, upon proper on Queensland and Adarna; and pursuant
challenge of its order, to determine whether to the writ, the sheriff seized properties
the same was improvidently issued. A belonging to them.
preliminary attachment is a rigorous remedy
which exposes the debtor to humiliation and Queensland and Adarna filed a motion to
annoyance, such that it should not be discharge the attachment for lack of
abused to cause unnecessary prejudice jurisdiction to issue the same because at
and, if wrongfully issued on the basis of the time the order of attachment was
false allegation, should at once be promulgated (May 3, 1989) and the
corrected. attachment writ issued (May 11, 1989), the
Trial Court had not yet acquired jurisdiction
WPA may be discharged pursuant to Sec. over the cause and over the persons of the
13, without the necessity of filing a cash defendants.
deposit or counter-bond. Sec. 13 grants an
aggrieved party relief from baseless and Davao Light filed an opposition to the
unjustifiable attachments procured, among motion to discharge attachment.
others, upon false allegations, without
having to file any cash deposit or TC denied the motion to discharge.
counterbond.
On appeal, the CA discharged the PA.
ISSUE: W the PA should be discharged. NO
(A.) When an attachment may not be

Q: May the merits of the main action be dissolved by a showing of its irregular or
tried in a motion to discharge attachment? improper issuance:
A: No. When the preliminary attachment is . . . (W)hen the preliminary attachment is

issued upon a ground which is at the same issued upon a ground which is at the same
time the applicant's cause of action; e.g., time the applicant's cause of action; e.g.,
Sec. 1(b) or Sec. 1(d), Rule 57, the "an action for money or property embezzled
defendant is not allowed to file a motion to or fraudulently misapplied or converted to
dissolve the attachment under Section 13 of his own use by a public officer, or an officer
Rule 57 by offering to show the falsity of the of a corporation, or an attorney, factor,
factual averments in the plaintiffs application broker, agent, or clerk, in the course of his
and affidavits on which the writ was based employment as such, or by any other
the reason being that the hearing on such a person in a fiduciary capacity, or for a willful
motion for dissolution of the writ would be violation of duty." (Sec. 1 [b], Rule 57), or
tantamount to a trial of the merits of the "an action against a party who has been
action. In other words, the merits of the guilty of fraud m contracting the debt or
action would be ventilated at a mere hearing incurring the obligation upon which the
of a motion, instead of at the regular trial. action is brought" (Sec. 1 [d], Rule 57), the
defendant is not allowed to file a motion to
dissolve the attachment under Section 13 of Cuartero vs CA
Rule 57 by offering to show the falsity of the
factual averments in the plaintiff's Cuartero filed a complaint against
application and affidavits on which the writ Evangelista for sum of money with
was based — and consequently that the writ damages, with a prayer for issuance of PA.
based thereon had been improperly or
irregularly issued— the reason being that On Aug. 24, 1990, the Court issued an
the hearing on such a motion for dissolution order granting ex-parte the issuance of the
of the writ would be tantamount to a trial of PA.
the merits of the action. In other words, the
merits of the action would be ventilated at a Sept 19, 1990, the WPA was issued.
mere hearing of a motion, instead of at the
regular trial. Therefore, when the writ of On Sept. 20, 1990, the writ was
attachment is of this nature, the only way it implemented and the copy of WPA,
can be dissolved is by a counterbond. summons and complaint were
simultaneously served on Evangelista.
(B.) Effect of the dissolution of a preliminary
attachment on the plaintiffs attachment Sps Evangelista filed motion to discharge
bond: WPA for having been irregularly and
improperly issued, but the TC denied the
The dissolution of the preliminary motion for lack of merit.
attachment upon security given, or a
showing of its irregular or improper Sps Evangelista filed a special civil action
issuance, does not of course operate to for certiorari with CA questioning the orders
discharge the sureties on plaintiff's own of TC.
attachment bond. The reason is simple.
That bond is "executed to the adverse party, CA granted the petition for certiorari. The
conditioned that the (applicant) will pay all decision is grounded on its finding that the
the costs which may be adjudged to the TC did not acquire any jurisdiction over the
adverse party and all damages which he person of the defendants.
may sustain by reason of the attachment, if
the court shall finally adjudge that the Sps Evangelista further claims that no
applicant was not entitled thereto" (SEC. 4, proper ground also existed for the issuance
Rule 57). Hence, until that determination is of the writ of preliminary attachment. They
made, as to the applicant's entitlement to stress that the fraud in contracting the debt
the attachment, his bond must stand and or incurring the obligation upon which the
cannot be withdrawn. action is brought which comprises a ground
for attachment must have already been
It goes without saying that whatever be the intended at the inception of the contract.
acts done by the Court prior to the According to them, there was no intent to
acquisition of jurisdiction over the person of defraud the petitioner when the postdated
defendant, and however valid and proper checks were issued inasmuch as the latter
they might otherwise be, these do not and was aware that the same were not yet
cannot bind and affect the defendant until funded and that they were issued only for
and unless jurisdiction over his person is purposes of creating an evidence to prove a
eventually obtained by the court. pre-existing obligation.
However in the case at bar, the summons ISSUE: W the ground for the discharge of
and a copy of the complaint, as well as the the WPA claimed by Sps. Evangelista may
order and writ of attachment and the be heard in the motion to discharge. NO
attachment bond were served on the
defendant contemporaneously with the levy. The question as to whether a proper ground
Hence it is valid. The WPA is reinstated. existed for the issuance of the writ is a
question of fact the determination of which
can only be had in appropriate proceedings
conducted for the purpose (Peroxide
Philippines Corporation V. Court of
Appeals). It must be noted that the spouses
Evangelista's motion to discharge the writ of
preliminary attachment was denied by the
lower court for lack of merit. There is no
showing that there was an abuse of P9,500 with a view to dissolving the
discretion on the part of the lower court in attachment levied upon their properties.
denying the motion. Said counter-bond, which was approved on
the same date by the justice of the peace
An attachment may not be dissolved by a who issued the order of attachment, was
showing of its irregular or improper issuance signed by all the defendants and their
if it is upon a ground which is at the same sureties Autajay and Magbanua who bound
time the applicant's cause of action in the themselves jointly and severally.
main case since an anomalous situation
would result if the issues of the main case Autajay prayed that he be permitted to
would be ventilated and resolved in a mere withdraw from his obligation as surety of the
hearing of a motion (Davao Light and Power defendants, and eventually, this was
Co., Inc. v. Court of Appeals,) granted by the TC subject to the condition
that the defendants must submit to the court
In the present case, one of the allegations in for approval another obligation (bond) in
petitioner's complaint is that the defendant substitution for the one to be rendered
spouses induced the plaintiff to grant the ineffective by the withdrawal of the surety
loan by issuing postdated checks to cover Autajay.
the installment payments and a separate set
of postdated cheeks for payment of the However, the defendants did not execute
stipulated interest. The issue of fraud, then, the new obligation required.
is clearly within the competence of the lower
court in the main action. It was later established that the Court
issued a judgment in favour of Uy Kimpang
and the judgment was partially executed. Uy
Kimpang & Co moved again for the
The defect that the bond filed by the execution of the judgment, but this time
attaching creditor was not approved, can no against the properties of the two sureties,
longer be raised by the defendant or the which was denied.
sureties on appeal based on the doctrine of
estoppel. Any objection to the bond or
irregularity of the issuance of the WPA must
be alleged in the proper time allowed by ISSUE: W justice of the peace of the capital
law, otherwise lack of objection shall be of Antique could issue the writ of attachment
considered as a waiver. even if the amount sued for was in excess
Uy Kimpang vs. Javier of that provided by law in the cases in which
justice of the peace of the provincial capitals
Uy Kimpang filed a collection suit with may order an attachment. YES
prayer for WPA on the ground that the
defendants were disposing or about to The justice of the peace of the capital acting
dispose of their properties with intent to "in the absence of the Judge of First
defraud their creditors and the plaintiff. Instance" has the power to issue an order of
attachment in spite of the fact that the
The justice of the peace of the capital of amount litigated is in excess of that fixed by
Antique, acting in the place of the Judge of law for his ordinary jurisdiction. (Wise & Co.
the CFI of Antique, ruled favourably on Uy v. Larion, 45 Phil., 314.)
Kimpang’s motion and ordered the clerk of
court to issue WPA against the properties of Failure of defendants to prove that CFI
defendants upon the execution by the judge was having a session buttress the
plaintiff of a bond in the sum of P9,500. presumption that he is absent on that day.
After the plaintiff had executed the bond, the

clerk issued WPA in question, ISSUE: W the WPA was illegal because it
notwithstanding the fact that the bond was was issued by the clerk and not by the
not yet approved. judge, and that the order authorizing the
clerk to issue the same was likewise illegal
The sheriff attached the properties because it conferred powers which under
belonging to the defendants. the law could not be delegated. NO
On the same day of the levy, the defendants Only the justices, judges of First Instance,
executed a counter-bond in the sum of and justices of the peace or municipal
judges may issue an order of attachment defendant from controverting the
when prayed for, provided the legal attachment, and renders the obligors in the
requisites are present. bond absolutely liable for the amount of any
judgment the plaintiff recovers in the action,
In the case at bar all the requirements of the without reference to the question whether
law were complied with. Inasmuch as the the attachment was rightfully or wrongfully
order for which WPA was issued, was sued out."
entered by a competent judge, it cannot be
alleged that said writ was a mere capricious The obligors in the bond are precluded and
act of the clerk. estopped from traversing the truth of the
allegations of the affidavit, or setting up that
The writ was issued in strict compliance with the defendant in the attachment was not the
a perfectly valid order given to him. The law owner of the property levied on.
does not provide or state that the writs of
attachment must be issued by the very It must be remembered that the defendants
justice or judge who is to authorize it; it and the sureties- appellees not only failed to
simply determines the judicial authority who object to the procedure followed by the clerk
shall have the power to grant an but executed the counter-bond required by
attachment. law for the discharge of the attachment, and
that Autajay and Magbanua were the ones
who signed the counter-bond as sureties
and submitted the same to the justice of the
ISSUE: W the properties of the defendants peace for approval. It must also be
were validly attached, even if WPA was not remembered that in all the motions which
signed by the judge. YES they subsequently filed in these
proceedings, the said sureties confined
Even supposing that the writ in dispute is themselves to the request that they be
defective because it was not signed by the permitted to withdraw from their obligation
judge who authorized its issuance, it is now for the reason that it was against their
too late to raise the question after the same interest to continue being sureties of the
was accepted and believed to be valid not defendants.
only by the defendants but by their sureties.
It is noteworthy that in their counter-bond The rule is that “all objections to the writ will
they made it understood that they were be waived by moving to set aside the
aware of the issuance of a WPA against the attachment on other grounds and failing to
defendants; that the properties of the latter make the objections before giving bond for
had been attached by the sheriff; that all the release of the property” because "after
wanted or at least prayed that said issue made and trial begun upon the merits
attachment be discharged; and that they of a case, it is too late for an objection to the
offered to execute, as in fact they petition or attachment for want of
immediately did execute, the counter-bond verification."
required.
The general rule is that "irregularities and ISSUE: W the attachment was proper even
defects in attachment or garnishment if the attachment bond was not approved by
proceedings which render the attachment the court. YES
merely voidable and not void, are deemed
to be waived unless promptly taken The omission referred to by the trial court
advantage of by appropriate mode of raising could be supplied and was not in any wise
objection thereto." capital, because the writ signed by the clerk
was issued by him in compliance with the
In the case of Hammond v. Starr, it was order entered on December 24, 1925 by the
held that "irregularities in affidavit and justice of the peace of the capital who was
undertaking or in proceedings to procure authorized by law to do so in the absence of
attachment, if waived in attachment suit, the Judge of First Instance of the District.
cannot be taken advantage of by sureties in
collateral proceedings on undertaking given The defendants and the sureties, by
to secure release of attachment." executing the counter-bond, had accepted
the obligation filed by the plaintiff for the
The execution of a bond under and in issuance of the WPA. It is now too late and
accordance with these statutes estops the futile to allege that the said obligation is
invalid for lack of approval by the judge. Filinvest Credit Corp vs. Relova
They are estopped from doing so by their
own acts, inasmuch as their failure to Filinvest filed an action for collection of sum
question the said bond at the proper time of money against Rallye and Salazar, and
constitutes a waiver of their right. One who prayed for issuance of WPA on the ground
has any objection to the sufficiency or stated in Sec 1(d). Salazar executed a
validity of a bond in attachment Promissory Note and a deed of Chattel
proceedings, should record the same before Mortgage over a motor vehicle in favour of
executing the counter-bond required for the Rallye. Rallye assigned all its rights, title
discharge of the attachment; otherwise, it and interest in the note and mortgage to
will be understood that he does not Filinvest.
question, or that he renounces his right to
question, the sufficiency or validity of the Filinvest claims that the defendants
said bond. intentionally, fraudulently and with malice
concealed from it the fact that there was no
ISSUE: W the fact that it does not appear vehicle delivered under the documents
on court records that the properties were negotiated and assigned to it, otherwise, it
released after filing the counter-bond would not have accepted the negotiation
excuse the sureties from complying with the and assignment of the rights and interest
obligation. NO covered by the promissory note and chattel
mortgage.
It must be assumed that the court
discharged it by virtue of the said counter- TC granted & issued WPA. More than a
bond; otherwise, the reason for approving it year later, Salazar moved to quash the
cannot be explained, and said approval WPA.
would have no finality.
Filinvest filed an Opposition but in the
Where the goods were in fact released as a hearing, counsel for the plaintiff manifested
consequence of the bond being given, and that he was not going to present evidence in
the undertaking for the release of the support of the allegation of fraud. He
attached property recited that it was given maintained that it should be the defendant
pursuant to an order of the court requiring it who should prove the truth of his allegation
to be given, and the officer accepted the in the motion to dissolve the said writ.
bond and surrendered the property, it must
be presumed that an order discharging the TC discharged the WPA ruling that when
attachment was made . . . and that the the incident was called for hearing, the
officer regularly performed his duty in Court announced that, as a matter of
releasing the goods. (Rosenthal vs. Perkins) procedure, when a motion to quash a writ of
preliminary attachment is filed, it is
incumbent upon the plaintiff to prove the
ISSUE: W Uy Kimpang has the right to truth of the allegations which were the basis
enforce the counter-bond. YES for the issuance of said writ.
The sureties are not released from the Filinvest filed a Motion for Reconsideration
obligation inasmuch as when the and was subsequently allowed to adduce
defendants were required to deliver to the evidence to prove that Salazar committed
sheriff the properties released from the fraud. Both parties presented evidence.
attachment, they could not do so, as at least However, the TC still discharged the WPA
three of said properties were sold after their ruling that there is no evidence that Salazar
release, and the appellees failed to prove connived with Rally-e to defraud Filinvest.
that the defendants had other properties
susceptible of attachment and execution. ISSUE: At this hearing, on whom does the
burden of proof lie?
ISSUE: W Aujutay is released from his Section 13 grants an aggrieved party relief
obligation in the counter-bond by virtue of from baseless and unjustifiable attachments
his withdrawal. NO procured upon false allegations, without
having to file any cash deposit or counter-
He was never so released in view of the bond.
failure of the defendants to execute the new
obligation required by the order.
In the instant case the order of attachment note by RALLYE with the conforme of
was granted upon the allegation of respondent Salazar in favor of petitioner
petitioner that the defendants had over the undelivered motor vehicle was
committed "fraud in contracting the debt or fraudulent and a falsification.
incurring the obligation upon which the
action is brought," (Section 1(d)) We rule that the failure of respondent
Salazar to disclose the material fact of non-
The last sentence of the said provision, delivery of the motor vehicle, there being a
however, indicates that a hearing must be duty on his part to reveal them, constitutes
conducted by the judge for the purpose of fraud.
determining whether or not there reality was
a defect in the issuance of the attachment.
Under the circumstances of the present

case, it should be the plaintiff (attaching
creditor), who should prove his allegation of Miranda vs. CA and Rayos
fraud. This pronouncement finds support in
the first sentence of Section 1, Rule 131,
Miranda filed a complaint for damages with
which states that: "Each party must prove
WPA. Miranda alleged that Rayos sold to
his own affirmative allegations." The last
him a parcel of land under a deed of sale
part of the same provision also provides
with assumption of mortgage. Miranda
that: "The burden of proof lies on the party
initially paid Rayos Php150,000 and
who would be defeated if no evidence were
subsequently paid the mortgagee bank.
given on either side." It must be borne in
However, the last instalment was refused by
mind that in this jurisdiction, fraud is never
the bank informing him that Rayos already
presumed. Indeed, private transactions are made the final payment and title was
presumed to have been fair and regular.
already delivered to him. On the basis of
Likewise, written contracts such as the
these allegations, TC issued the WPA.
documents executed by the parties in the
instant case, are presumed to have been
Rayos then filed a motion to discharge the
entered into for a sufficient consideration.
attachment, claiming there was no proof
that he had committed fraud in contracting
The affidavit supporting the petition for the
the debt or incurring the obligation on which
issuance of the preliminary attachment may
the complaint was based.
have been sufficient to justify the issuance
of the preliminary writ, but it cannot be
The writ was later discharged on the finding
considered as proof of the allegations
that Rayos could not be faulted with fraud.
contained in the affidavit. The reason is
obvious. The allegations are mere
conclusions of law, not statement of facts. It turns out that the Assumption of Mortgage
No acts of the defendants are ever was to be approved by the bank and that
mentioned in the affidavit to show or prove the bank did not approve of such. Such fact
the supposed concealment to defraud was conveyed to Miranda by Rayos and
creditors. Said allegations are affirmative such was also stated in the documents
allegations, which plaintiffs had the signed by Miranda.
obligation to prove. (Villongco, et al., vs.
Hon. Panlilio, et al.) ISSUE: W the discharge is proper. YES
ISSUE: W the attachment was properly If at all — and on this we do not rule
discharged. NO categorically as the matter is yet to be
litigated in the court a quo — the fraud
Since it was claimed that Rally-e did not might have been committed by
deliver the motor vehicle, it follows that the Rayos after the conclusion of the contract.
delivery receipt signed by Salazar were However, such fraud is not covered by the
fictitious. It also follows that PN for the aforesaid rule, let alone the fact that it has
undelivered vehicle was without yet to be established.
consideration and therefore fake; the
Chattel Mortgage over the non-existent Rayos cannot be said to have deluded
vehicle was likewise a fraud; the registration Miranda into entering into the contract by
of the vehicle in the name of Salazar was a taking advantage of his position as a lawyer
falsity and the assignment of the promissory
and withholding necessary information from Adlawan filed an omnibus motion for the
Miranda. reconsideration and dissolution of the writ of
seizure, the retrieval of the property seized,
The evidence shows that he was in fact and the dismissal of the complaint. He also
informed of the need for the approval of the averred that the property seized were
assumption of mortgage and actually sought in custodia legis by virtue of the writ of
to secure such approval although attachment issued by Branch 11. His omnibus
unsuccessfully. This shows that no fraud motion was denied. Subsequently, he filed a
was imposed on him by Rayos when they motion for reconsideration which was not
granted.
entered into the Deed of Sale with
Assumption of Mortgage, which also means
ISSUE: W defendant can file a motion for
that there was really no ground for the
reconsideration to discharge WPA. YES
issuance of the writ of attachment.
When petitioners filed a motion for the
As the writ of attachment was improperly
reconsideration of the order directing the
granted, it was only fitting that it be
issuance of the writ of attachment,
discharged by the trial court in rectification
respondent Judge should have considered it
of its initial error. Hence, there was no need
as a motion for the discharge of the
at all for the private respondent to post a
attachment and should have conducted a
counterbond. Finally, we also agree with the
hearing or required submission of counter-
respondent court that the order lifting the
affidavits from the petitioners, if only to
attachment being merely interlocutory, it
gather facts in support of the allegation of
should not have been questioned on
fraud (Jopillo, Jr. v. Court of Appeals, 167
certiorari. This extraordinary remedy is
SCRA 247 [1988]). This is what Section 13
available only when there is a clear showing
of Rule 57 mandates.
of a grave abuse of discretion amounting to
lack of jurisdiction, and there is no such
showing here. This procedure should be followed because,
as the Court has time and again said,
attachment is a harsh, extraordinary and
summary remedy and the rules governing
its issuance must be construed strictly
When petitioners filed a motion for the against the applicant. Verily, a writ of
reconsideration of the order directing the attachment can only be granted on concrete
issuance of the writ of attachment, and specific grounds and not on general
respondent Judge should have considered it averments quoting perfunctorily the words
as a motion for the discharge of the of the Rules (D.P. Lub Oil Marketing Center,
attachment Inc. v. Nicolas, 191 SCRA 423 [1990]).
ADLAWAN VS TORRES The judge before whom the application is

made exercises full discretion in considering
Aboitiz filed a collection suit and a petition the supporting evidence proffered by the
for PA on the ground of fraud, i.e, the applicant. One overriding consideration is
mortgage executed in favour of PCIB. PA that a writ of attachment is substantially a
was issued. writ of execution except that it emanates at
the beginning, instead of at the termination
Petitioners moved for a bill of particulars 8 and of the suit.
to set aside the ex parte writ of attachment.
Finding merit in the motion to set aside the
writ, Branch 11 ordered on July 6, 1982 the
lifting of the writ and, consequently, the
discharge of the property levied upon.
8
Sec. 1, Rule 12 - Before responding to a pleading, a party
may move for a definite statement or for a bill of
particulars of any matter which is not averted with
sufficient definiteness or particularity to enable him
properly to prepare his responsive pleading.
Bill of particulars is a more specific allegation which

should specify the alleged defects of the
complaint and the details desired to allow the accused to
prepare for his defense.
Peroxide Philippines Corporation vs CA hearing. And, as provided by the aforecited
Section 13 of Rule 57, the attaching creditor
BPI sued Peroxide, et. al. for the collection should be allowed to oppose the application
of an indebtedness of Peroxide wherein for the discharge of the attachment by
Eastman and the Mapuas bound counter-affidavit or other evidence, in
themselves to be solidarily liable. addition to that on which the attachment
was made.
The TC issued WPA upon filing of
attachment bond, and the sheriff Respondent court was, therefore, correct in
accordingly attached the petitioners’ holding that, on the above-stated premises,
properties. the attachment of the properties of Eastman
and the Mapuas remained valid from its
Eastman and the Mapuas moved to lift the issuance since the judgment had not been
attachment, which motion was set for satisfied, nor has the writ been validly
hearing. BPI opposed and asked for a discharged either by the filing of a counter-
hearing. bond or for improper or irregular issuance.
However, motion for a hearing of BPI was We likewise affirm the findings and
denied, and lifted the WPA as prayed for by conclusion of respondent court that the
Eastman and the Mapuas. BPI filed a order of Judge Acosta, dated May 29, 1986,
motion for reconsideration. suspending the writ of attachment was in
essence a lifting of said writ which order,
having likewise been issued ex parte and
BPI asserts that the discharge is illegal and
void because the order lifting the same is without notice and hearing in disregard of
Section 13 of Rule 57, could not have
violative of Section 13, Rule 57 of the Rules
resulted in the discharge of the attachment.
of Court which requires, among others, a
Said attachment continued unaffected by
prior hearing before the judge may order the
discharge of the attachment upon proof the so-called order or suspension and could
not have been deemed inefficacious until
adduced therein of the impropriety or
and only by reason of its supposed
irregularity in the issuance of the writ and
restoration in the order of December 16,
the defect is not cured forthwith.
1987 of Judge Gerona. Under the facts of
this case, the ex parte discharge or
ISSUE: What is the nature of the hearing
suspension of the attachment is a disservice
required in Sec. 13?
to the orderly administration of justice and
nullifies the underlying role and purpose of
It is true that petitioner's motion to discharge preliminary attachment in preserving the
was set for hearing with notice to BPI but it rights of the parties pendente lite as an
is likewise true that counsel for the latter ancillary remedy.
asked for an opportunity to file a written
opposition and for a hearing to which he
We may mention in this regard that if the
asked that petitioner Edmund O. Mapua be
petition for the discharge of the writ violates
subpoenaed. Said counsel was allowed to
the requirements of the law, the trial judge
file a written opposition which he
does not acquire jurisdiction to act thereon.
seasonably did, but Judge Pineda denied
both the requested subpoena and hearing
and, instead, granted the discharge of the
attachment. These are the bases for BPI's
complaint that it was denied due process.
Now, it is undeniable that when the

attachment is challenged for having been
illegally or improperly issued, there must be
a hearing with the burden of proof to sustain
the writ being on the attaching creditor. That
hearing embraces not only the right to
present evidence but also a reasonable
opportunity to know the claims of the
opposing parties and meet them. The right
to submit arguments implies that
opportunity, otherwise the right would be a
barren one. It means a fair and open
Section 14. Proceedings where property 3. Serve such affidavit upon the sheriff
claimed by third person. — If the property while the latter has possession of
attached is claimed by any person other the attached property; and
than the party against whom attachment 4. Serve a copy thereof upon the
had been issued or his agent, and such attaching party.
person makes an affidavit of his title thereto,
or right to the possession thereof, stating This remedy must be availed of while the
the grounds of such right or title, and serves sheriff has possession of the attached
such affidavit upon the sheriff while the properties.
latter has possession of the attached
property, and a copy thereof upon the Generally, when a 3rd party claims the
attaching party, the sheriff shall not be ownership of property attached, and the 3 rd
bound to keep the property under person has complied with the process, the
attachment, unless the attaching party or his sheriff is not bound to keep the property
agent, on demand of the sheriff, shall file a under attachment. However, he may
bond approved by the court to indemnify the demand that the attaching creditor must
third-party claimant in a sum not less than make a bond, which will be used to
the value of the property levied upon. In indemnify the third party claimant, and the
case of disagreement as to such value, the sheriff will have a reason not to release the
same shall be decided by the court issuing properties subject of the attachment.
the writ of attachment. No claim for
damages for the taking or keeping of the TERCERIA has to be filed within one
property may be enforced against the bond hundred twenty (120) days from the date of
unless the action therefor is filed within one the filing of the bond, otherwise the action is
hundred twenty (120) days from the date of barred. However, the third party claimant
the filing of the bond. may still file a separate action for damages.
The sheriff shall not be liable for damages The purpose of the bond is to indemnify the
for the taking or keeping of such property to third-party claimant in a sum not less than
any such third-party claimant, if such bond the value of the property levied upon, or
shall be filed. Nothing herein contained shall value decided by the court, in case of
prevent such claimant or any third person disagreement.
from vindicating his claim to the property, or
prevent the attaching party from claiming When the bond has been filed, the sheriff
damages against a third-party claimant who will not release the property, and the sheriff
filed a frivolous or plainly spurious claim, in cannot be held liable for damages for the
the same or a separate action. keeping of the property.
When the writ of attachment is issued in If the claim of the third party turns out to be
favor of the Republic of the Philippines, or frivolous, the attaching creditor may
any officer duly representing it, the filing of vindicate his claim by filing an action for
such bond shall not be required, and in case damages against the third party, in the
the sheriff is sued for damages as a result same action or in a separate action.
of the attachment, he shall be represented
by the Solicitor General, and if held liable
therefor, the actual damages adjudged by
the court shall be paid by the National
Treasurer out of the funds to be UY vs. CA
appropriated for the purpose. (14a)
Uy, Jr. filed a complaint against Sy Yuk Tat
for sum of money, damages, with
This is also known as Terceria.
preliminary attachment, which was granted
and issued.
The process by which the third person
should follow is:
Upon levy, the sheriff seized several
personal properties.
1. Make an affidavit of his title thereto,
or right to the possession thereof;
However, a third party claim was filed by
2. Stating the grounds of such right or
Ting and Yu Hon asserting ownership over
title,
the properties attached
The third party claimants filed a motion to Intervention vs Separate Action
dissolve WPA alleging among others, that
being the absolute owners of the personal MANILA HERALD PUBLISHING vs.
properties listed in their third party claim RAMOS
which were illegally seized from them they
were willing to file a counterbond for the Quirino filed a libel suit against editor,
return managing editor and reporter of the Daily
Record, with prayer for WPA. WPA was
RTC ruled in favor of Uy. issued and and the Sheriff levied printing
equipment found in the premises of the
Meanwhile, third party claimants filed a Daily Record.
complaint for Damages with application
WPA against Uy and Sheriff Cabang Manila Herald Publishing Co. Inc. and
alleging that they are the owners of the Printers, Inc., filed with the sheriff separate
personal properties attached and seized by third-party claims, alleging that they were
Cabang. The court issued a Status Quo the owners of the property attached. The
order. sheriff required of Quirino a counter bound
3rd to meet the claims of the 3rd parties.
ISSUE: W properties levied and seized by
virtue of WPA and later by a writ of Unsuccessful in their attempt to quash the
execution, were under custodia legis and attachment, the 3rd party claimants
therefore not subject to the jurisdiction of commenced a joint suit against the sheriff,
another co-equal court where a third party Quirino and Alto Surety to enjoin the
claimant claimed ownership of the same defendants from proceeding with the
properties. attachment and damages. This suit was
docketed as civil case No. 12263.
While it is true that property in custody of
the law may not be interfered with, without TC declared that the suit, in case No.
the permission of the proper court, this rule 12263, was "unnecessary, superfluous and
is confined to cases where the property illegal" and so dismissed the same. He held
belongs to the defendant or one in which that what 3rd party claimants should do was
the defendant has proprietary interests. But intervene in the libel suit.
when the Sheriff, acting beyond the bounds
of his office seizes a stranger's property, the ISSUE: Should the Manila Herald
rule does not apply and interference with his Publishing Co., Inc., and Printers, Inc.,
custody is not interference with another come as intervenors into the case for libel
court's order of attachment. instead of bringing an independent action?
The power of the court in the execution of What is "proper action"? It is "an ordinary
judgments extends only over properties suit in court of justice, by which one party
unquestionably belonging to the judgment prosecutes another for the enforcement or
debtor. The levy by the sheriff of a property protection of a right, or the prevention or
by virtue of a writ of attachment may be redress of a wrong," while "Commencement
considered as made under the authority of of Action," says that "civil action may be
the court only when the property levied commenced by filing a complaint with the
upon belongs to the defendant. If he court."
attaches properties other than those of the
defendant, he acts beyond the limits of this "Action" has acquired a well-define,
authority. The court issuing a writ of technical meaning, and it is in this restricted
execution is supposed to enforce its sense that the word "action" is used in the
authority only over properties of the above rule. In employing the word
judgment debtor. Should a third party "commencement" the rule clearly indicates
appear to claim the property levied upon by an action which originates an entire
the sheriff, the procedure laid down by the proceeding and puts in motion the
Rules is that such claim should be the instruments of the court calling for
subject of a separate and independent summons, answer, etc, and not any
action. intermediary step taken in the course of the
proceeding whether by the parties
themselves or by a stranger. It would be
strange indeed if the framers of the Rules of
Court or the Legislature should have
employed the term "proper action" instead The action for terceria and a separate action
of "intervention" or equivalent expression if are cumulative remedies which may be
the intention had been just that. It was all availed of by the third party claimant.
the easier, simpler and the more natural to
say intervention if that had been the TRADERS ROYAL vs. IAC
purpose, since the asserted right of the
third-party claimant necessarily grows out of Traders Royal Bank instituted a suit against
the pending suit, the suit in which the order the Remco.
of attachment was issued.
Remco’s properties were attached. A third
The most liberal view that can be taken in party claim was filed with the Sheriff by La
favor of the respondents' position is that Tondeña, Inc. claiming ownership over said
intervention as a means of protecting the attached property.
third-party claimants' right is not exclusive
but cumulative and suppletory to the right to
La Tondeña, Inc. filed a complaint-in-
bring a new, independent suit. It is
intervention claiming that it is the owner of
significant that there are courts which go so
the properties attached.
far as to take the view that even where the
statute expressly grants the right of
RTC denied La Tondeña's motion to
intervention is such cases as this, the
intervene.
statute does not extend to owners of
property attached, for, under this view, "it is
considered that the ownership is not one of La Tondeña Inc. instituted an action
the essential questions to be determined in claiming ownership over the properties
the litigation between plaintiff and attached with prayer for WP Injunction.
defendant;" that "whether the property
belongs to defendant or claimant, if RTC declared La Tondeña Inc. to be the
determined, is considered as shedding no owner of the disputed alcohol, and granting
light upon the question in controversy, the latter's application for injunctive relief.
namely, that defendant is indebted to
plaintiff." ISSUE: W the filing of a separate action is
precluded for the reason that the 3rd party
already availed of the motion for terceria.
NO
ON MULTIPLICITY OF SUITS
Sec. 14 explicitly sets forth the remedy that
There can also be no multiplicity of suits may be availed of by a person who claims
when the parties in the suit where the to be the owner of property levied upon by
attachment was levied are different from the attachment, viz: to lodge a third- party claim
parties in the new action, and so are the with the sheriff, and if the attaching creditor
issues in the two cases entirely different. In posts an indemnity bond in favor of the
the circumstances, separate action might, sheriff, to file a separate and independent
indeed, be the more convenient of the two action to vindicate his claim. And this
competing modes of redress, in that precisely was the remedy resorted to by
intervention is more likely to inject confusion private respondent La Tondeña when it filed
into the issues between the parties in the the vindicatory action before the Bulacan
case for debt or damages with which the Court.
third-party claimant has nothing to do and
thereby retard instead of facilitate the Generally, the rule that no court has the
prompt dispatch of the controversy which is power to interfere by injunction with the
underlying objective of the rules of pleading judgments or decrees of a concurrent or
and practice. That is why intervention is coordinate jurisdiction having equal power
subject to the court's discretion. to grant the injunctive relief sought by
injunction, is applied in cases where no
third-party claimant is involved, in order to
prevent one court from nullifying the
judgment or process of another court of the
same rank or category, a power which
devolves upon the proper appellate court
. 2The purpose of the rule is to avoid conflict
of power between different courts of
coordinate jurisdiction and to bring about a
harmonious and smooth functioning of their the execution may be invoked by the
proceedings. aggrieved third person in the same case.
Upon application of the third person, the
Further, intervention as a means of court shall order a summary hearing for the
protecting the third-party claimant's right in purpose of determining whether the sheriff
an attachment proceeding is not exclusive has acted rightly or wrongly in the
but cumulative and suppletory to the right to performance of his duties in the execution of
bring an independent suit. The denial or the writ of attachment, more specifically if
dismissal of a third-party claim to property he has indeed levied on attachment and
levied upon cannot operate to bar a taken hold of property not belonging to the
subsequent independent action by the plaintiff. If so, the court may then order the
claimant to establish his right to the property sheriff to release the property from the
even if he failed to appeal from the order erroneous levy and to return the same to
denying his original third-party claim. the third person.
In resolving the motion of the third party, the

court does not and cannot pass upon the
The petitioner-wife had the right to file the question of the title to the property with any
said motion, although she was not a party in character of finality. It can treat the matter
Civil Case. only insofar as may be necessary to decide
if the sheriff has acted correctly or not. If the
CHING vs CA claimant’s proof does not persuade the
court of the validity of the title, or right of
possession thereto, the claim will be denied
Ching, assisted by her husband Alfredo,
by the court.
filed a Motion to Set Aside the levy on
attachment. She alleged that the 100,000
shares of stocks levied on by the sheriff The aggrieved third party may also avail
were acquired by her and her husband himself of the remedy of "terceria" by
during their marriage out of conjugal funds executing an affidavit of his title or right of
after the Citycorp Investment Philippines possession over the property levied on
was established in 1974. Furthermore, the attachment and serving the same to the
indebtedness covered by the continuing office making the levy and the adverse
guaranty/comprehensive suretyship contract party.
executed by petitioner Alfredo Ching for the
account of PBMCI did not redound to the Such party may also file an action to nullify
benefit of the conjugal partnership. She, the levy with damages resulting from the
likewise, alleged that being the wife of unlawful levy and seizure, which should be
Alfredo Ching, she was a third-party a totally separate and distinct action from
claimant entitled to file a motion for the the former case.
release of the properties. She attached
therewith a copy of her marriage contract The above-mentioned remedies are
with Alfredo Ching. cumulative and any one of them may be
resorted to by one third-party claimant
TC lifted the WPA on the shares of stocks without availing of the other remedies.
and ordering the sheriff to return the said
stocks to the petitioners. In this case, the petitioner-wife filed her
motion to set aside the levy on attachment
ISSUE: W the petitioner-wife has the right to of the 100,000 shares of stocks in the name
file the motion to quash the levy on of petitioner-husband claiming that the said
attachment on the 100,000 shares of stocks shares of stocks were conjugal in nature;
in the Citycorp Investment Philippines. YES hence, not liable for the account of her
husband under his continuing guaranty and
The petitioner-wife had the right to file the suretyship agreement with the PBMCI. The
said motion, although she was not a party in petitioner-wife had the right to file the
Civil Case No. 142729. motion for said relief.
When the sheriff erroneously levies on

attachment and seizes the property of a
third person in which the said defendant
holds no right or interest, the superior
authority of the court which has authorized
RURAL BANK OF STA. BARBARA vs. deemed as a mere continuation of the third-
MANILA MISSION party claim of respondent, in the form of its
Affidavit of Title and Ownership, served
RBSB contends that the Motion to Release upon the Sheriff, in accord with the first
Property from Attachment filed by paragraph of Section 14, Rule 57 of the
respondent before the RTC, in Civil Case Rules of Court.
No. D-10583, is not the proper remedy
under Section 14, Rule 57 of the Rules of Alternatively, we may also consider the
Court. Petitioner argues that the remedy of Motion to Release Property from
a third person claiming to be the owner of Attachment, filed by respondent before the
an attached property are limited to the RTC, as a Motion for Intervention in Civil
following: Case No. D-10583, pursuant to the second
paragraph of Section 14, Rule 56, in relation
(1) filing with the Sheriff a third-party claim, to Rule 19 of the Rules of
in the form of an affidavit, per the first Court. Respondent, to vindicate its claim to
paragraph of Section 14; the subject property, may intervene in the
same case, i.e., Civil Case No. D-10583,
(2) intervening in the main action, with prior instituted by petitioner against the spouses
leave of court, per the second paragraph of Soliven, in which the said property was
Section 14, which allows a third person to attached. Respondent has the personality to
vindicate his/her claim to the attached intervene, as it is so situated as to be
property in the same x x x action; and adversely affected by a distribution or other
disposition of property in the custody of the
court or of an officer thereof. The RTC, in
(3) filing a separate and independent
acting upon and granting the Motion to
action, per the second paragraph of Section
Release Property from Attachment in its
14, which allows a third person to vindicate
his/her claim to the attached property in Order dated 9 October 1995, is deemed to
have allowed respondent to intervene in
a separate action.
Civil Case No. D-10583.
Manila Mission contends that it tried to
pursue the first remedy, i.e., filing a third- Moreover, it may do petitioner well to
party claim with the Sheriff. Respondent did remember that rules of procedure are
merely tools designed to facilitate the
file an Affidavit of Title and Ownership with
attainment of justice. They were conceived
the Sheriff, but said officer advised
and promulgated to effectively aid the court
respondent to file a motion directly with the
RTC in the main case. Respondent heeded in the dispensation of justice. Courts are not
slaves to or robots of technical rules, shorn
the Sheriffs advice by filing with the RTC a
of judicial discretion. In rendering justice,
Motion to Release Property from
courts have always been, as they ought to
Attachment. The Court of Appeals
recognized and allowed said Motion, be, conscientiously guided by the norm that
on the balance, technicalities take a
construing the same as an invocation by
backseat to substantive rights, and not the
respondent of the power of control and
other way around.
supervision of the RTC over its officers,
which includes the Sheriff.
Thus, if the application of the Rules would
ISSUE: W the action is proper. YES tend to frustrate rather than promote justice,
it is always within the power of the Court to
suspend the rules, or except a particular
The filing by respondent of the Motion to
case from its operation. Hence, even if the
Release Property from Attachment was
Motion to Release Property from
made on the advice of the Sheriff upon
Attachment does not strictly comply with
whom respondent served its Affidavit of Title
Section 14, Rule 56 of the Rules of Court,
and Ownership. Respondent should not be
the RTC may still allow and act upon said
faulted for merely heeding the Sheriffs
Motion to render substantive justice.
advice. Apparently, the Sheriff, instead of
acting upon the third-party claim of
respondent on his own, would rather have
some direction from the RTC. Indeed, the
Sheriff is an officer of the RTC and may be
directed by the said court to allow the third-
party claim of respondent. Therefore, the
filing of the Motion in question can be
Section 15. Satisfaction of judgment out of assigned to them within (10) days from
property attached, return of sheriff. — If receipt of said process or writ. Said report
judgment be recovered by the attaching shall form part of the records.
party and execution issue thereon, the
sheriff may cause the judgment to be Respondent could not evade the positive
satisfied out of the property attached, if it be duty of serving the attaching creditor’s
sufficient for that purpose in the following affidavit, bond, and the order of attachment
manner: on complainant’s representative (Camiwet)
by now alleging that it was the fault of
(a) By paying to the judgment obligee the complainant and her representative in
proceeds of all sales of perishable or other refusing to sign the receipt that he allegedly
property sold in pursuance of the order of issued.
the court, or so much as shall be necessary
to satisfy the judgment; The records of the investigation reveal
otherwise—that complainant could not have
(b) If any balance remains due, by selling so signed the acknowledgment receipt
much of the property, real or personal, as because she was not present when the
may be necessary to satisfy the balance, if vehicle was attached.
enough for that purpose remain in the
sheriff's hands, or in those the clerk of the Thus, the return he executed more than two
court; (2) months after the enforcement of the
alias writ was more of an afterthought rather
(c) By collecting from all persons having in than the fulfillment of a positive duty,
their possession credits belonging to the because by then he had been ordered by
judgment obligor, or owing debts to the the clerk of court to explain his proceedings
latter at the time of the attachment of such under the alias writ of attachment.
credits or debts, the amount of such credits
and debts as determined by the court in the
action, and stated in the judgment, and
paying the proceeds of such collection over Tayabas Land v. Sharruf
to the judgment obligee.
ISSUE: W the public auction/sale of the
The sheriff shall forthwith make a return in judgment debt in favor of Sharruf to Farre is
writing to the court of his proceedings under the proper action. NO
this section and furnish the parties with
copies thereof. (15a) The proper proceeding is known as the
process of garnishment.
A judgment is satisfied by:
The process of garnishment consists of a
1. Payment of the proceeds of sale citation issued from the court having
of perishable items; jurisdiction of the principal litigations,
2. Sale of properties, if there is a notifying the garnishee that the property and
balance; credits of the judgment debtor have been
3. Collection of property from levied upon or attached in the hands of such
garnishee; and garnishee, and enjoining him not to deliver,
4. Sheriff’s return. transfer, or otherwise dispose of any effects
or credits belonging to that person, and
requiring him furthermore to make a
statement to the court of the property of the
Sheriff’s return must be filed within 10 days judgment debtor in his hands and of the
from receipt of the writ or order. debts owing by the garnishee to such
debtor.
BILAG-RIVERA vs. FLORA
It is merely a case of involuntary novation
Chapter VIII(e)(4) of the Manual for Clerks by the substitution of one creditor for
of Court similarly states that: another. Upon principle the remedy is a
species of attachment or execution for
All sheriffs and deputy sheriffs shall submit reaching any property pertaining to a
a report to the judge concerned on the judgment debtor which may be found owing
action taken on all writs and processes to such debtor by a third person.
The situation involved supposes the Provincial Sheriff has been making
existence of at least three persons, to wit, a withdrawals until it was closed.
judgment creditor, a judgment debtor, and
the garnishee, or person cited, who in turn ISSUE: W the defendant may be held liable
is supposed to be indebted to the first as to the misappropriated amount of the
debtor (i.e., judgment debtor). sheriff. NO
The payment of the money by the garnishee "Personal property may have been levied
to the judgment creditor or into court, brings upon under attachment and left in the
the proceeding to a close, so far as the possession of the sheriff or other officer
garnishee is concerned; but if the garnishee levying the writ to secure the payment of
fails to answer, or does not admit the such judgment as may be recovered in the
indebtedness, he may be required to attend action. Where execution issues, it is the
before the court in which the action is duty of such officer to apply towards its
pending to be examined on oath respecting satisf action the property so attached and
the same. Finally, if the liability of the left in his hands; but he may have
garnishee is made manifest, the officer of embezzled or otherwise misappropriated it,
the court may collect the money and pay it or allowed it to be lost by his negligence.
to the person entitled. When such is the case, we think the better
opinion is, that it must, as between the
The action of the sheriff in exposing to plaintiff and defendant, and persons
public sale the judgment which had been claiming under defendant, be treated as
procured by Sharruf in the action against though it had been levied upon under
the Tayabas Land Company, et al., was execution as well as under attachment, and
wholly unauthorized, and said sale must be therefore as satisfying the judgment to the
considered void. The proper step would extent of its value."
have been for the court to require the
Tayabas Land Company, after the judgment It should be observed that affirmative acts of
against it had become final, to pay into the plaintiff Bank have resulted in the
court, in the cause wherein Salvador Farre attachment and subsequent sale of the
was plaintiff, a sufficient amount of money property of the defendant. It seems fair that
to satisfy Farre's claim against Sharruf; and plaintiff having put defendant's property into
if the judgment against the Tayabas Land the hands of the sheriff, the loss should fall
Company had been permitted to go to the on him and not on defendant. When a
stage of execution, the proceeds in the sheriff takes property or goods in execution
hands of the sheriff would have been or by attachment, he becomes the bailee for
applied, under the direction of the court, to the benefit of all parties interested, and
the payment of Farre's claim before any part certainly for the party who set him in motion.
would have been payable to Sharruf. After obtaining the judgment, plaintiff at
once was entitled to have the proceeds of
the sale applied to the satisfaction of his
judgment and it was the duty of the sheriff to
In cases where the property has been pay the proceeds over. The money
attached, but the amount was collected or paid the sheriff on the sale of
misappropriated by the sheriff, and there the goods or property may be regarded just
has been a final judgment, can the like money in the hands of a sheriff
judgment debtor be made to pay again? collected on execution. If the sheriff collects
money from a judgment debtor, and then
In PNB vs Vasquez, SC ruled that the fails to pay it over, the debtor cannot be
compelled to pay it again.
debtor can no longer be held liable.
However, in PAL vs CA, the SC ruled that
the debtor is still liable based on its facts.
PNB vs VASQUEZ (1941)
PNB prayed for and obtained an order of

PA, by virtue of which 500 piculs of sugar
belonging to Vazquez was levied upon by
the sheriff and sold at public auction, the
proceeds amounting to P5,250.13 was
deposited with the PNB. However, the
Payment must be in legal tender, unless at bar, to the sheriff should be valid
payment through checks were expressly payment to extinguish the judgment debt.
agreed.
There are circumstances in this case,
PAL vs CA (1990) however, which compel a different
conclusion.
PAL filed an urgent motion to quash the
alias writ of execution stating that no return The payment made by the petitioner to the
of the writ had as yet been made by the absconding sheriff was not in cash or legal
sheriff and that the judgment debt had tender but in checks. The checks were not
already been fully satisfied by PAL as payable to Amelia Tan or Able Printing
evidenced by the cash vouchers signed and Press but to the absconding sheriff.
receipted by the server of the writ of
execution, Sheriff Reyes. Consequently, unless authorized to do so
by law or by consent of the obligee a public
Respondent del Rosario served a notice of officer has no authority to accept anything
garnishment on the depository bank of PAL, other than money in payment of an
FEBTC, through its manager and garnished obligation under a judgment being
PAL's deposit in the said bank in the total executed. Strictly speaking, the acceptance
amount of P64,408.00 as of May 16, 1978. by the sheriff of the petitioner's checks, in
the case at bar, does not, per se, operate as
ISSUE: W PAL can still be held liable a discharge of the judgment debt.
despite garnishment. YES
Since a negotiable instrument is only a
The need for such a return as a condition substitute for money and not money, the
precedent for the issuance of an alias writ delivery of such an instrument does not, by
was justifiably dispensed with by the court itself, operate as payment.
below and its action in this regard meets
with our concurrence. A contrary view will
produce an abhorent situation whereby the
mischief of an erring officer of the court Section 16. Balance due collected upon an
could be utilized to impede indefinitely the execution; excess delivered to judgment
undisputed and awarded rights which a obligor. — If after realizing upon all the
prevailing party rightfully deserves to obtain property attached, including the proceeds of
and with dispatch. The final judgment in this any debts or credits collected, and applying
case should not indeed be permitted to the proceeds to the satisfaction of the
become illusory or incapable of execution judgment less the expenses of proceedings
for an indefinite and over extended period, upon the judgment any balance shall remain
as had already transpired. due, the sheriff must proceed to collect such
balance as upon ordinary execution.
Under the peculiar circumstances of this Whenever the judgment shall have been
case, the payment to the absconding sheriff paid, the sheriff, upon reasonable demand,
by check in his name did not operate as a must return to the judgment obligor the
satisfaction of the judgment debt. attached property remaining in his hands,
and any proceeds of the sale of the property
In general, a payment, in order to be attached not applied to the judgment. (16a)
effective to discharge an obligation, must be
made to the proper person. Article 1240 of If the attached and garnished properties are
the Civil Code provides that “payment shall insufficient, the sheriff must proceed to
be made to the person in whose favor the collect such balance as upon ordinary
obligation has been constituted, or his execution.
successor in interest, or any
person authorized to receive it.” If the attached and garnished properties are
more than the judgment to be satisfied, the
The theory is where payment is made to a sheriff, upon reasonable demand, must
person authorized and recognized by the return to the judgment obligor the attached
creditor, the payment to such a person so or garnished properties and the excess of
authorized is deemed payment to the the proceeds of the public sale remaining in
creditor. Under ordinary circumstances, his hands.
payment by the judgment debtor in the case
Section 17. Recovery upon the counter- of Counter-Bond was already a demand
bond. — When the judgment has become upon Acropolis, as surety, for the payment
executory, the surety or sureties on any of the amount due, pursuant to the terms of
counter-bond given pursuant to the the bond.
provisions of this Rule to secure the
payment of the judgment shall become
charged on such counter-bond and bound
to pay the judgment obligee upon demand When is there compliance with the notice
the amount due under the judgment, which and hearing requirement?
amount may be recovered from such surety
or sureties after notice and summary The Imperial Insurance, Inc. vs. De los
hearing in the same action. (17a) Angeles
To recover upon the counter-bond, the Prior to the filing of the ex parte motion for a
following requisites must be present: writ of execution, the respondents filed a
motion for recovery on the surety bonds
1. The creditor demands upon the surety for where the petitioner was duly notified and
satisfaction of the judgment the said motion was heard. Moreover, the
petitioner filed a motion for reconsideration
2. The surety be given notice and a of the order rendering judgment against the
summary hearing in the same action as to petitioner on its counterbonds.
his liability for judgment under the counter-
bond. The respondent judge set the hearing of the
ex parte motion for writ of execution
together with the motion for reconsideration
of the order dated November 10, 1966 on
How is demand made? December 17, 1966 at 8:30 o’clock in the
morning. The petitioner received the notice
UPPC vs Acropolis Central Guaranty of the said hearing on December 9, 1966 as
Corp. evidenced by Registry Return Receipt No.
40122.
UPPC argues that it complied with the
requirement of demanding payment from On January 9, 1967, the respondent Judge
Acropolis by notifying it, in writing and by issued an order denying the motion for
personal service, of the hearing held on reconsideration dated November 23, 1966
UPPC’s Motion to Order Respondent-Surety for lack of merit. In an order dated January
to Pay the Bond. Moreover, it points out that 19, 1967, the motion for writ of execution
the terms of the counter-attachment bond was granted by the respondent judge.
are clear in that Acropolis, as surety, shall
jointly and solidarily bind itself with Unibox The surety on the counterbond filed to lift
and Ortega to secure the payment of any the writ of attachment was duly notified of
judgment that UPPC may recover in the the hearing of the motion for execution
action. against the counterbond.
ISSUE: W there was a demand. YES
Under Sec. 17, a surety on a counter-bond Luzon Steel vs. Sia

given to secure the payment of a judgment
becomes liable for the payment of the Defendant having failed to comply with the
amount due upon: (1) demand made upon compromise, the plaintiff moved for and
the surety; and (2) notice and summary obtained a writ of execution against
hearing on the same action. After a careful defendant and the joint and several
scrutiny of the records of the case, the counterbond.
Court is of the view that UPPC indeed
complied with these twin requirements. The surety, however, moved to quash the
writ of execution against it, averring that it
This Court has consistently held that the was not a party to the compromise, and that
filing of a complaint constitutes a judicial the writ was issued without giving the surety
demand. Accordingly, the filing by UPPC of notice and hearing.
the Motion to Order Surety to Pay Amount
ISSUE: W the notice requirement was In fact, respondent Judge could have even
complied with. YES issued a writ of execution against petitioner
on its bond immediately after its failure to
It is true that under Section 17 recovery satisfy the judgment against the defendant
from the surety or sureties should be "after upon demand, since liability on the bond
notice and summary hearing in the same automatically attaches after the writ of
action". But this requirement has been execution against the defendant was
substantially complied with from the time the returned unsatisfied as held in the case
surety was allowed to move for the quashal of Tijan vs. Sibonghanoy, CA-G.R. No.
of the writ of execution and for the 23669-R, December 11, 1927.
cancellation of their obligation.
The surety can even be made liable based

A separate action against the surety on the on a mere amendment of the decision,
counter-bond is not necessary. without having to file a separate action.
The Imperial Insurance vs. de los Zaragoza vs. Fidelino

Angeles (1982)
Zaragoza moved for the amendment of the
To recover against the petitioner surety on decision so as to include the surety, Mabini
its counter-bonds it is not necessary to file a Insurance & Fidelity Co., Inc., as a party
separate action. Recovery and execution solidarily liable with the defendant for the
payment of the sums awarded in the
may be had in the same case, as
judgment. Despite having been duly furnished
sanctioned by Sec. 17, Rule 57, of the
with copies of the motion and the notice of
Revised Rules of Court. hearing, neither Fidelino nor the surety
company filed any opposition to the motion,
The counter-bonds merely stand in place of nor did either of them appear at the hearing
the properties so released. They are mere thereof. The Trial Court deemed the motion
replacements of the properties formerly meritorious and granted it.
attached, and just as the latter may be
levied upon after final judgment in the case ISSUE: W the sureties of the counter-bond be
in order to realize the amount adjudged so made liable under an amended decision. YES
is the liability of the counter sureties
ascertainable after the judgment has The appellant surety's liability attached upon
become final. the promulgation of the verdict against
Fidelino. All that was necessary to enforce the
The judgment having been rendered against judgment against it was, an application
the defendant, Felicisimo V. Reyes, the therefor with the Court, with due notice to the
counter-bonds given by him and the surety, surety, and a proper hearing, i.e., that it be
The Imperial Insurance, Inc., under Sec. 12, formally notified that it was in truth being
Rule 57 are made liable after execution was made responsible for its co-principal's
returned unsatisfied. Under the said rule, a adjudicated prestation (in this case, the
demand shall be made upon the surety to payment of the balance of the purchase price
pay the plaintiff the amount due on the of the automobile which could no longer be
judgment, and if no payment is so made, found and therefore could not be ordered
returned), and an opportunity, at a hearing
the amount may be recovered from such
called for the purpose, to show to the Court
surety after notice and hearing in the same
why it should not be adjudged so responsible.
action. A separate action against the A separate action was not necessary; it was in
sureties is not necessary. fact proscribed. And again, the record shows
substantial compliance with these basic
All the requisites under Sec. 17, Rule 57, requirements, obviously imposed in deference
being present in this case, namely: (1) the to due process.
writ of execution must be returned
unsatisfied, in whole or in part; (2) the Appellant surety undoubtedly received copy of
plaintiff must demand the amount due under Zaragoza's Motion to Amend Decision. That
the judgment from the surety or sureties, motion made clear its purpose—that the
and (3) notice and hearing of such demand decision "be amended, or an appropriate
although in a summary manner, complied order be issued, to include (the surety) as a
with, the liability of the petitioner party jointly and severally liable with the
automatically attaches. defendant to the extent of the sums awarded
in the decision to be paid to plaintiff'-as well as with the defendant for the satisfaction of the
the basis thereof-the counter-bond filed by it judgment in this case. Therefore the surety
by the explicit terms of which it bound itself cannot argue that it cannot be made liable
"jointly and severally (with the defendant) .. for for the judgment because of lack of
the payment of such sum to him (plaintiff) as jurisdiction of the court.
may be recovered against the defendant and
the cost of the action." The motion contained,
at the foot thereof, a "notice that on Saturday,
March 23, 1968, at 8:30 a.m., or as soon
thereafter as the matter may be heard, the .. Is there a need for prior exhaustion of the
(plaintiffs counsel would) submit the foregoing judgment debtor’s properties before the
motion for the consideration of the Court." And surety can be made liable?
likewise indubitable is the fact that, as the
Court a quo has observed, "neither .. As a general rule, the rule of excussion or
Fidelinos counsel nor the surety company filed prior exhaustion of properties of the
any opposition to said motion, nor did they judgment debtor applies, since the nature of
appear in the hearing of the motion on March the liability of a surety is similar to that in
23, 1968 .. (for which reason) the motion was ordinary guaranty.
deemed submitted for resolution." The
surety's omission to appear at the hearing Exceptions:
despite notice of course constituted a waiver
of the right to be heard on the matter.
1. There has been a final and executor
judgment ordering the judgment
The surety's theory that never having been
debtor and surety liable; and
served with summons, it never came under
the Lower Court's jurisdiction, is untenable.
2. The surety binds himself solidarily
The terms of the counter-bond voluntarily filed liable.
by it in defendant's behalf leave no doubt of its
assent to be bound by the Court's adjudgment PIONEER INSURANCE AND SURETY VS
of the defendant's liability, i.e., its acceptance CAMILON
of the Court's jurisdiction. For in that
counterbond, it implicitly prayed for affirmative The rule of excussion claimed by petitioner
relief; the release of the seized car, in under Section 17 of Rule 17, which
consideration of which it explicitly bound itself petitioner invokes considering it was only
solidarily with said defendant to answer for the the bondsman to secure the lifting of the writ
delivery of the car subject of the action "if of preliminary attachment, is not applicable
such delivery is adjudged," i.e., commanded in the instant case where there is already a
by the Court's judgment, or "for the payment
final and executory judgment sentencing the
of such sum as may be recovered against the
bondsman as joint and solidarily liable, the
defendant and the costs of the action," the
reference to a possible future judgment
Court resolved to DISMISS the petition,
against the defendant, and necessarily without prejudice to petitioner recovering
against itself, being certain and unmistakable. from its co-judgment debtor whatever it has
The filing of that bond was clearly an act of to pay under the writ of execution herein
voluntary submission to the Court's authority, questioned.
which is one of the modes for the acquisition
of jurisdiction over a party.
LUZON STEEL vs SIA (1969)
Does the surety become a party to the Caveat: This was decided under the old Rules of
case? Court
YES. The surety of the counterbond Luzon Steel Corporation sued Metal
becomes automatically a party to the case Manufacturing of the Philippines and Jose
by accepting or by filing a counterbond and O. Sia, the former's manager, for breach of
agreed to be made liable to the judgment in contract and damages. It obtained a WPA of
exchange for the release of the attached the properties of the defendants, but the
property, the surety has in effect submitted attachment was lifted upon a P25,000.00
to the jurisdiction of the court and that counter-bond executed by Sia, as principal,
surety has become a party to the case. and the Times Surety, as solidary
Although not specifically mentioned as a guarantor.
defendant but he becomes solidarily liable
Defendant having failed to comply, plaintiff Corporation upon the posting of a
moved for and obtained a writ of execution supersedeas bond. The latter in turn posted
against defendant and the joint and several a counter-bond in the sum of P1,400, 000
counterbond. thru Philippine British Assurance Co., Inc.,
so the attached properties were released.
Surety contends that the execution issued
against it was invalid because the writ The attaching creditor succeeded in
issued against its principal, Jose O. Sia, et obtaining a motion for execution pending
al., defendants below, had not been appeal. The RTC ordered the issuance of
returned unsatisfied. the corresponding writ of execution on the
counter-bond to lift attachment filed by
ISSUE: W the writ of execution could be petitioner.
issued against the surety without previous
exhaustion of the debtor's properties. YES ISSUE: W an order of execution pending
appeal of a judgment maybe enforced on
The surety's contention is untenable. The the said counter-bond. YES
counter-bond contemplated in the rule is
evidently an ordinary guaranty where the Under Sections 5 and 12, Rule 57 it is
sureties assume a subsidiary liability. This is provided that the counter-bond is intended
not the case here, because the surety in the to secure the payment of "any
present case bound itself "jointly and judgment" that the attaching creditor may
severally" (in solidum) with the defendant; recover in the action. Under Section 17 of
and it is prescribed in Article 2059, same rule it provides that when "the
paragraph 2, of the Civil Code of the execution be returned unsatisfied in whole
Philippines that excusion (previous or in part" it is only then that "payment of
exhaustion of the property of the debtor) the judgment shall become charged on such
shall not take place "if he (the guarantor) counter-bond."
has bound himself solidarily with the
debtor". The OLD RULE cannot be It is also stipulated that the counter-bond is
construed as requiring that an execution to be "applied for the payment of the
against the debtor be first returned judgment." Neither the rules nor the
unsatisfied even if the bond were a solidary provisions of the counter-bond limited its
one; for a procedural rule may not amend application to a final and executory
the substantive law expressed in the Civil judgment. Indeed, it is specified that it
Code, and further would nullify the express applies to the payment of any judgment that
stipulation of the parties that the surety's maybe recovered by plaintiff. Thus, the only
obligation should be solidary with that of the logical conclusion is that an execution of
defendant. any judgment including one pending appeal
if returned unsatisfied maybe charged
A second reason against the stand of the against such a counterbond.
surety and of the court below is that even if
the surety's undertaking were not solidary
with that of the principal debtor, still he may
not demand exhaustion of the property of The bondsmen are not liable on the bond
the latter, unless he can point out sufficient when the obligation assumed is premised
leviable property of the debtor within upon the issuance of a writ of attachment by
Philippine territory. the court which was not actually issued.
Vadil vs. De Venecia
Can the counter-bond be used to secure a Surety contends that they are not liable to
payment of a judgment pending appeal? the plaintiff in the trial court because their
undertaking under the bond was to pay "all
Phil. British Assurance Co vs. IAC (1987) the costs which may be awarded to the
defendant” rather than to pay the judgment
Sycwin Coating & Wires, Inc. filed a that plaintiff might recover.
complaint for collection of a sum of money
against Varian Industrial Corporation. This is a case where, instead of a bond
During the pendency of the suit, private conditioned the payment to the plaintiff of
respondent succeeded in attaching some of any judgment which may recover in an
the properties of Varian Industrial action, as the trial court directed, the bond
filed provides that the sureties will pay “all Plaintiff filed a motion to "Claim for
the costs which may be awarded to Damages" on the ground that the
the defendant, and all damages that dissolution "put out of the reach the
the defendant may suffer by reason the properties and assets which may be held to
WPA should it be finally a judged that the answer for the adjudged claim" and that "it
same was done without legitimate cause,” suffered and will suffer damages. “
thus raising doubt as to whether the
petitioners, as sureties, understood the The surety opposed contending that the
import of the order of the court. surety on any counter-bond shall only
become charged and bound to pay plaintiff
ISSUE: W the surety of the counterbond upon demand, the amount due under the
can be held liable to the judgment in favour judgment, and that such amount may be
of the plaintiff. NO recovered from the surety after notice and
summary hearing in the same action — only
We are inclined to resolve the doubt in favor if execution be returned unsatisfied in whole
of petitioners. Assuming an obligation or in part.
without any thought of material gain, except
in some instances, all presumptions are ISSUE: W the surety can be held liable for
indulged in their favor. The rationale of this the damages suffered by the discharge of
doctrine is reasonable; an accommodation the writ. NO
surety acts without motive of pecuniary gain
and, hence, should be protected against By the terms of the counter-bond
unjust pecuniary impoverishment by itself liability thereunder attaches only "in
imposing on the principal duties akin to case the plaintiff recovers judgment in the
those of a fiduciary. This cannot be said of action."
compensated corporate surety which is a
business association organized for the Since at the time the claim for damages was
purpose of assuming classified risks in large registered, the case was still pending
numbers, for profit and on an impersonal appeal, it is quite obvious that the motion for
basis, through the medium of standardized the claim for damages was premature. And
written contractual forms drawn by its own the lower court thus correctly ruled out
representatives with the primary aim of plaintiff's motion. For, Section 17
protecting its own interests.” contemplates of proceedings on execution
after judgment. And, it is only thereafter that
We hold therefore that petitioners are not liability upon the surety's bond may be
liable to Pablo Española Estate, Inc. on their determined. The key term in Section 17 is
bond. the phrase "[i]f the execution be returned
unsatisfied in whole or in part." Until such
proceeding shall have taken place and
unless unsatisfied liability under the
Can the counter-bond be made liable for judgment still exists, no action upon the
damages suffered by reason of the counter-bond may be taken against the
discharge or lifting of the writ? surety.
Dizon vs Valdez We do not follow plaintiff when he says that

what controls here is Section 20 of Rule 57
(then Rule 59). By its very terms, this
Judgment was rendered directing
obviously refers to the recovery of damages
defendants Valleson, Inc. and Valdes "to
by a party against whom attachment was
pay jointly and severally to the plaintiff.
issued. This is a remedy available to the
Valleson, Inc. filed its notice of appeal.
defendants here, not the plaintiff.
Plaintiff petitioned for and TC directed the
It is therefore not to be doubted that, upon
issuance of WPA against the properties of
the applicable rules, the counter-bond does
Valdes and Valleson, Inc.. The Sheriff
not answer for damages on account of the
garnished and attached properties of the
lifting of the attachment, but for the payment
defendant.
of the amount due under the judgment that
may be recovered by an attaching creditor.
The judgment debtors moved to dissolve
the WPA on counterbond subscribed by the
Capital Insurance & Surety Co., Inc., hence
the writ was dissolved.
Section 18. Disposition of money ISSUE: W the properties attached must be
deposited. — Where the party against returned despite the fact that judgment is
whom attachment had been issued has not yet final and executor. YES
deposited money instead of giving counter-
bond, it shall be applied under the direction As to Sheriff Villars failure to effect the
of the court to the satisfaction of any immediate release of the attached
judgment rendered in favor of the attaching properties despite the RTCs order of
party, and after satisfying the judgment the release, the Court finds the explanation of
balance shall be refunded to the depositor the respondent sheriff acceptable enough
or his assignee. If the judgment is in favor of as not to earn a sanction from the Court.
the party against whom attachment was
issued, the whole sum deposited must be By law, sheriffs are obligated to maintain
refunded to him or his assignee. (18a) possession of the seized properties absent
any instruction to the contrary. In this case,
the writ of preliminary attachment
authorizing the trial court to legally hold the
Section 19. Disposition of attached property attached items was set aside by the RTC
where judgment is for party against whom Order stating that Sheriff Villar to
attachment was issued. — If judgment be immediately release the seized items to
rendered against the attaching party, all the Spouses Tiu.
proceeds of sales and money collected or
received by the sheriff, under the order of The instruction of the trial court was clear
attachment, and all property attached and simple. Sheriff Villar was to return the
remaining in any such officer's hands, shall seized properties to Spouses Tiu. He should
be delivered to the party against whom have followed the courts order immediately.
attachment was issued, and the order of He had no discretion to wait for the finality
attachment discharged. (19a) of the courts order of dismissal before
discharging the order of attachment.
Nevertheless, Sheriff Villar showed no
If the judgment is in favour of the defendant,
deliberate defiance of, or disobedience to,
whose properties were attached, all that has
the courts order of release. Records show
been attached, garnished, and the proceeds
that he took the proper step under the
of the sold attached properties, must be
circumstances. He filed with the trial court
returned by the sheriff to the defendant
his Sheriffs Report with Urgent Prayer for
immediately.
the Issuance of a Clarificatory Order. The
Court perceives nothing amiss in consulting
the judge before taking action on a matter of
which he is not an expert.
Tiu vs Villar
RTC ordered the release of the attached

properties in favor of Spouses Tiu: “The writ
of preliminary attachment dated March 8,
2010 previously issued by this Court is set
aside, and everything seized thereby be
immediately returned by the sheriff
responsible to the defendants.”
The RTC in a subsequent order reiterated

its previous order to return the attached
items to Spouses Tiu: “Sheriff Virgilio Villar
is directed to immediately return to
defendants the seized items.”
Sheriff Villar submitted his Sheriffs Report

with Urgent Prayer for Issuance of
Clarificatory Order. He wanted to be
clarified on whether or not he should wait for
the trial courts order to attain finality before
returning the attached personal properties.
Section 20. Claim for damages on account Spouses Yu vs. Ngo Yet Te
of improper, irregular or excessive
attachment. — An application for damages To merit an award of actual damages
on account of improper, irregular or arising from a wrongful attachment, the
excessive attachment must be filed before attachment defendant must prove, with the
the trial or before appeal is perfected or best evidence obtainable, the fact of loss or
before the judgment becomes executory, injury suffered and the amount thereof. In
with due notice to the attaching party and particular, if the claim for actual damages
his surety or sureties setting forth the facts covers unrealized profits, the amount of
showing his right to damages and the unrealized profits must be established and
amount thereof. Such damages may be supported by independent evidence of the
awarded only after proper hearing and shall mean income of the business undertaking
be included in the judgment on the main interrupted by the illegal seizure.
case.
Requisites in order to recover damages
If the judgment of the appellate court be on bond:
favorable to the party against whom the
attachment was issued he must claim Malayan Insurance v. Salas
damages sustained during the pendency of
the appeal by filing an application in the
Under Section 20, in order to recover
appellate court, with notice to the party in
damages on a replevin bond or on a bond
whose favor the attachment was issued or
for preliminary attachment, injunction or
his surety or sureties, before the judgment
receivership, it is necessary:
of the appellate court becomes executory.
The appellate court may allow the
(1) that the defendant-claimant has secured
application to be heard and decided by the
a favorable judgment in the main action,
trial court.
meaning that the plaintiff has no cause of
action and was not, therefore, entitled to the
Nothing herein contained shall prevent the
provisional remedy of relieving;
party against whom the attachment was
issued from recovering in the same action
(2) that the application for damages,
the damages awarded to him from any
showing claimant’s right thereto and the
property of the attaching party not exempt
amount thereof, be filed in the same action
from execution should the bond or deposit
before trial or before appeal is perfected or
given by the latter be insufficient or fail to
before the judgment becomes executory;
fully satisfy the award. (20a)
(3) that due notice be given to the other
party and his surety or sureties, notice to
the principal not being sufficient and
The bond referred to in Sec. 20 is that filed by
the applicant or attaching party, under Secs. 3
& 4, to be paid to the defendant for any (4) that their should be a proper hearing and
damages he may have suffered by reason of the award for damages should be included
the improper, excessive or irregular in the final judgment
attachment.
Q: May a defendant recover damages
resulting from illegal attachment even if the
BA FINANCE CORP. vs. CA (1988) judgment is against him? YES
An attachment may be said to be wrongful Zaragoza v. Fidelino (July 14, 1988)

when, for instance, the plaintiff has no
cause of action, or that there is no true Although a party be adjudged liable to
ground therefore, or that the plaintiff has a another, if it be established that the
sufficient security other than the property attachment issued at the latter's instance
attached, which is tantamout to saying that was wrongful and the former had suffered
the plaintiff is not entitled to attachment injury thereby, recovery for damages may
because the requirements of entitling him to be had by the party thus prejudiced by the
the writ are wanting. wrongful attachment, even if the judgment
be adverse to him. For it is entirely possible
for a plaintiff to have a meritorious cause of
action against a defendant but have no
proper ground for a preliminary attachment. HEARING
In such a case, if the plaintiff nevertheless
applies for and somehow succeeds in Q: May damages be recovered ex-parte?
obtaining an attachment, but is
subsequently declared by final judgment as A: No. The rule provides that such damages
not entitled thereto, and the defendant may be awarded only after a proper
shows that he has suffered damages by hearing. It cannot be issued or granted ex-
reason of the attachment, there can be no parte.
gainsaying that indemnification is justly due
the latter. Stronghold v. CA (1989)
When to file or apply for damages? The hearing will be summary and will be
limited to such new defenses, not previously
1. Before trial, as a matter of right. In set up by the principal, as the surety may
such case, it may be properly set up allege and offer to prove. The oral proof of
by way of counterclaim in the damages already adduced by the claimant
answer, or in a supplemental answer may be reproduced without the necessity of
if the attachment was made and retaking the testimony, but the surety should
damages were suffered after the be given an opportunity to cross-examine
filing of the original answer; the witness or witnesses if he so desires.
2. After trial, in the discretion of the
court:
a. Before appeal is Carlos v. Sandoval

perfected; or
b. Before judgment Petitioners assert that there was no proper
becomes executory. hearing on the application for damages and
that the Court of Appeals had wrongfully
3. During the pendency of the appeal, if acted on the application in that it resolved it
the judgment of the appellate court prior to the rendition of the main judgment.
is favourable to the adverse party.
ISSUE: W a full blown hearing in open court
is compulsory under Sec. 20.
Hanil Development Co. v. IAC (1986)
NO. To impose this as a mandatory
As may be gathered from Section 20 of
requirement would ultimately prove too
Rule 57, the application for damages
onerous to our judicial system. Perhaps
against the surely must be filed (with notice
such a demand would be less burdensome
to the surety) in the court of the First
on the regional trial courts, which, as a
Instance before the trial or before appeal is
matter of routine, receive testimonial or
perfected or before the judgment becomes
documentary evidence offered de novo, and
executory. If an appeal is taken, the
to formulate conclusions on the admissibility
application must be filed in the appellate
and credibility of the same.
court but always before the judgment of the
court becomes executory so that the award
may be included in its judgment. However, a different situation applies if it is
the Court of Appeals or the Supreme Court
before which the application for damages is
Note that under the second paragraph of
filed. Both these courts, which are
Section 20, Rule 57 of the present Rules of
capacitated to receive and act on such
Court, the damages suffered during the
actions, are generally not triers of facts, and
pendency of an appeal in a case where the
do not, in the course of daily routine,
writs of attachment, injunction and replevin
conduct hearings. It is partly for such reason
or an order or receivership were issued
that Section 20, Rule 57 authorizes these
should be claimed in the appellate court.
appellate courts to refer the application for
damages to the trial court for hearing and
decision. The trial courts are functionally
attuned to ascertain and evaluate at the first
instance the necessary factual premises
that would establish the right to damages.
Still, reference of the application for
damages to the trial court is discretionary on
the part of the appellate courts. The latter,
despite their traditional appellate jurisdiction In the case at bar, the trial court did not
and review function, are still empowered make any express ruling that the writ of
under Section 20 to rule on the application attachment was maliciously sued out by the
for damages, notwithstanding the factual plaintiff or any finding of facts or
dimension such question presents. circumstances from which it may be
necessarily inferred that the attachment was
To impose as mandatory on the Court of thus obtained. Attachment defendant is not
Appeals or the Supreme Court to hear the entitled to moral damages, unless it is
application for damages through full-blown alleged and established that the writ was
hearings in open court is supremely unwise maliciously sued out.
and beyond the demands of Section 20,
Rule 57. The effect would be unduly In order that moral damages may be
disruptive on the daily workflow of appellate recovered in connection with the writ of
courts such as the Court of Appeals and the attachment under consideration, malice is
Supreme Court, which rarely conduct open an essential ingredient thereof.
court hearings. Neither could the Court see
what is so markedly special about an SPOUSES GREGORIO and JOSEFA YU
application for damages, fact-oriented as it vs. NGO YET TE (2007)
may be, that would require it to be heard by
the appellate courts in open court when no To merit an award thereof, it must be shown
such mandatory rule applies to other judicial that the wrongful attachment was obtained
matters for resolution that are also factual in by the attachment plaintiff with malice or
nature. bad faith, such as by appending a false
affidavit to his application.
If open court hearings are ever resorted to
by appellate courts, such result from the
exercise of discretion rather than by
imposition by statute or procedural rule.
Indeed, there is no existing statute, SAME ACTION
procedural rule, or jurisprudential fiat that
makes it mandatory on the Court of Appeals GENERAL RULE: The claim for damages
or the Supreme Court to conduct an open- must be made in the same action, otherwise
court hearing on any matter for resolution. it is barred.
There is nothing demonstrably urgent with Stronghold v. CA (1989)
an application for damages under Section
20, Rule 57 that would necessitate this To avoid multiplicity of suits, all incidents
Court to adopt an unprecedented rule arising from the same controversy must be
mandating itself or the Court of Appeals to settled in the same court having jurisdiction
conduct full-blown open court hearings on a of the main action. Thus, the application for
particular type of action. damages must be filed in the court which
took cognizance of the case, with due notice
to the other parties.
EXTENT OF DAMAGES The trial court did not lose its jurdisdiction
over the case because the application for
Calderon v. IAC (1987) judgment on the bond in this case, as well
as the motion for immediate execution was
General Rule: the liability on the attachment filed before the appeal was perfected
bond is limited to actual damages. hence, the award for damages was proper.
Exception: Moral and exemplary damages The fact that one of the parties had filed a
may be recovered where the attachment notice of appeal does not perfect such
was alleged to be maliciously sued out and appeal. An appeal is perfected upon the
established to be so. lapse of the last day for all parties to appeal.
It should also be noted that the filing of the

LAZATIN vs. TWAÑO (1961)
application for judgment on the bond by
private respondent Orosa was in the nature
Only actual or compensatory damages are
of a motion for reconsideration under
recoverable for wrongful but not malicious
Section l(c), Rule 37 of the Rules of Court,
attachment.
which consequently had the effect of of suits. We have earlier ruled that "the
interrupting the period to appeal. This being explicit provision of Section 20 of Rule 57,
so, the order holding in abeyance plaintiff 's Revised Rules of Court that the judgment
notice of appeal was not even necessary against the surety should be included in the
and was an apparent superfluity. final judgment is to avoid additional
proceedings.
Pioneer Insurance vs. Hontanosas (1977)
The claim for damages against a bond in an

alleged wrongful attachment can only be
prosecuted in the same court where the EXCEPTION:
bond was filed and the attachment issued. 1. The principal action is dismissed for
lack of jurisdiction over the subject
Rodriguez sought that judgment be matter and the court is prevented
rendered against the surety for such amount from rendering any judgment therein
of damages as may be proved or which could include the claim for
established by him, and was granted by the damages (Santos v. CA); and
court the opportunity to prove damages 2. The defendant’s claim for damages
against the bond of the surety company. He exceeds the jurisdiction of the
even cited the very provision of the Revised municipal court where the main
Rules of Court, Rule 57, Sec. 20 to justify action is pending, in which case,
his application, and the cases supporting his such claim must be made in a
application, for otherwise his claim will separate action.
forever be barred. In effect, at this point in
time, defendant Rodriguez waived the lack Santos v. CA (1954)
of jurisdiction on his person, be seeking an
affirmative relief from the court, which he Apart from the circumstance that the PRCI
cannot now complain before this Court. has never claimed that the writ of
attachment was wrongfully issued in Civil
We agree with the petitioners that the Court Case No. 241, it appears that the latter case
of Appeals erred in not dismissing the was dismissed for lack of jurisdiction, and
complaint with respect to the petitioner no claim for damages could therefore
Pioneer Insurance & Surety Corp., over properly have been presented in said case,
which respondent-appellee Judge had not because the CFI of Cotabato, thus lacking
acquired jurisdiction pursuant to Sec. 20, jurisdiction, was in fact prevented from
Rule 57 of the Revised Rules of the Court. rendering any final judgment therein which
could include such damages.
Santos vs. CA (1954)
If the judgment of the appellate court be
The procedure for recovery of damages on favorable to the party against whom the
account of the issuance of a writ of attachment was issued, he must claim
attachment, injunction, receivership, and damages sustained during the pendency of
replevin proceedings, as interpreted in the the appeal by filing an application in the
cases adverted to, requires that the claim appellate court, with notice to the party in
for damages should be presented in the whose favor the attachment was issued or
same action which gave rise to the special his surety or sureties, before the judgment
proceeding in order that it may be included of the appellate court becomes executory.
in the final judgment of the case, and it
cannot be the subject of a separate action. This is a case where the attaching party lost
The philosophy of the ruling seems to be in the trial court but the appellate court
that the court that had acted on the special decided in his favour. In that case, he may
proceeding which occasioned the damages claim damages in the appellate court. He
has the exclusive jurisdiction to assess should also notify the sureties of the
them because of its control of the case. This adverse party.
ruling is sound and tends to avoid
multiplicity of action.
Hanil vs. IAC (1986)
The application for judgment against the

bond seasonably filed by the petitioner in
the appellate court would avoid multiplicity
Q: What if the attached property is one not to be extended by implication, and it
insufficient to answer for the damages? will not be inferred that he agreed to do
more than that which is fairly expressed in
A: He may execute other properties of the the bond
adverse party not exempt from execution.
Q: Is the liability of a party obtaining

attachment limited to the bond? No. General Rule: Surety’s liability shall be
included in the executory judgment.
A: The posting of a bond to secure
attachment (or injunction, receivership, or Exception: Where CA failed to include in its
replevin) does not operate to relieve the judgment the award for damages or when
party obtaining the same from any and all
CA refers it to trial court.
responsibility for the damages the writ may
have caused. It merely gives additional
protection to the party against whom the writ Malayan Insurance v. Salas
is directed. It gives the latter a right of
recourse either against the applicant or the We hold that the trial court has jurisdiction
surety. (Paramount Insurance Corporation to pass upon Fernando's application for the
v. CA (1999)) recovery of damages on the surety's
In fact, the party against whom the replevin bond. The reason is that Fernando
writ was issued may recover in the same seasonably filed his application for damages
action the damages awarded to him from in the Court of Appeals. It was not his fault
any property of the attaching party not that the damages claimed by him against
exempt from execution should the bond or the surety were not included in the judgment
deposit given by the latter be insufficient or of the Court of Appeals affirming the trial
fail to fully satisfy the award. court's award of damages to Fernando
However, the liability of the surety is limited payable by the principal in the replevin
to the bond. bond. The peculiar factual situation of this
case makes it an exception to the settled
Zenith Insurance Corporation v. CA rule that the surety's liability for damages
(1982) should be included in the final judgment to
prevent duplicity of suits or proceedings.
The phrase "all damages" refers to those
resulting from the undertaking itself. It does The application for damages against the
not mean that the surety is answerable for surety must be filed (with notice to the
all costs and damages that may be surety) in the Court of First Instance before
adjudged against its principal over the the trial or before appeal is perfected or
above what is adjudged against it in the before the judgment becomes executory. If
dispositive portion of the Decision, as it an appeal is taken, the application must be
would be unreasonable to expand debtor." filed in the appellate court but always before
the judgment of that court becomes
When a surety executes a bond, it does not executory so that the award may be
guarantee that the plaintiff's cause of action included in its judgment. But it is not always
is meritorious, and that it will be responsible mandatory that the appellate court should
for all the costs that may be adjudicated include in its judgment the award of
against its principal in case the action fails. damages against the surety. Thus, it was
The extent of a surety's liability is held that where the application for damages
determined only by the clause of the against the surety is seasonably made in
contract of suretyship. It cannot be the appellate court, "the latter must either
extended by implication, beyond the terms proceed to hear and decide the application
of the contract. or refer "it" to the trial court and allow it to
hear and decide the same"
Liability on the bond is contractual in nature,
and is ordinarily restricted to the obligation
expressly assumed therein. Liability on an
attachment bond is created by, and rests
on, its stipulations. The obligor has a right to
stand on the very terms of his contract, and
his liability will not be extended beyond the
fair import of the words used; his liability is
To hold a surety on a counter-bond liable, (2) That if the surety is given such due
what is entailed is: notice, he is bound by the judgment that
may be entered against the principal, and
1. the filing of an application therefor writ of execution may issue against said
with the Court having jurisdiction of Surety to enforce the obligation of the bond;
the action; and
2. the presentation thereof before the
judgment becomes executory (or (3) That if, as in this case, no notice is given
before the trial or before appeal is to the surety of the application for damages,
perfected); the judgment that may be entered against
3. the statement in said application of the principal cannot be executed against the
the facts showing the applicant's surety without giving the latter an
right to damages and the amount opportunity to be heard as to the reality or
thereof, reasonableness of the alleged damages. In
4. the giving of due notice of the such case, upon application of the
application to the attaching creditor prevailing party, the court must order the
and his surety or sureties; and surety to show cause why the bond should
5. the holding of a proper hearing at not respond for the judgment for damages.
which the attaching creditor and the If the surety should contest the reality or
sureties may be heard on the reasonableness of the damages claimed by
application. the prevailing party, the court must set the
application and answer for hearing. The
Hanil v. IAC (1986) hearing will be summary and will be limited
to such new defense, not previously set up
Is it always necessary that the appellate by the principal, as the surety may allege
court should include in its judgment the and offer to prove. The oral proof of
award of damages against the surety? damages already adduced by tie claimant
may be reproduced without the necessity of
retaking the testimony, but the surety should
Held: No. If an appeal is taken, the
be given an opportunity to cross-examine
application must be filed in the appellate
court but always before the judgment of that the witness or witnesses it so desires.
court becomes executory so that the award
may be included in its judgment.
But it is not always mandatory that the

appellate court should include in its
judgment the award of damages against the Q: Should the surety be notified of the
surety. Thus, it was held that where the application for damages?
application for damages against the surety
is seasonably made in the appellate court, A: YES. Under Sec. 20 of Rule 57
'the latter must either proceed to hear and (applicable to Rules 58-60), if no application
decide the application or refer 'it' to the trial is made before the entry of the judgment,
court and allow it to hear and decide the the surety of the bond is relieved from
same' liability therefor. (Malayan Insurance v.
Salas)
Visayan Surety & Insurance Corp. v.

Pascual (1950)
What are the principles with regard to the In the present case the defendant Victoria
procedure in the claim for damages against Pascual filed her application for damages
the surety? for the wrongful seizure of the truck, in the
same action, before the trial; and such
(1) That damages resulting from preliminary damages were included in the judgment.
attachment, preliminary injunction, the However, the surety was not notified of said
appointment of a receiver, or the seizure of application for damages.
personal property, the payment of which is
secured by judicial bond, must be claimed The surety contends that the respondent
and ascertained in the same action with due judge exceeded his jurisdiction and abused
notice to the surety; his discretion in issuing a writ of execution
against the surety, it appearing that the
latter had not been notified of defendant's
application for damages, as provided in
section 20 of Rule 59.
ISSUE: What is the effect of the omission of

such notice?
In the present case the application for

damages was made before the trial and
damages were included in the judgment.
The rule does not say that the failure to give
to the surety due notice of the application
for damages would release the surety from
the obligation of the bond. But the surety
cannot be deprived of his right to the notice
and of his right to be heard if he so desires.
Consequently, no judgment for damages
may be entered and executed against the
surety without giving the latter an
opportunity to be heard as to the reality or
reasonableness of the alleged damages.
Otherwise, fraud or collusion may be
perpetrated against the surety.
In the present case, although the plaintiff Yu

Sip filed an answer to defendant's
application for damages and prayed that it
be dismissed, he did not appear during the
trial and as a result the proofs adduced by
the defendant as to the amount of the
alleged damages remained uncontradicted.
Had the herein surety been duly notified of
said, application for damages, it could have
appeared and contested defendant's claim
as excessive. The damages awarded
against the plaintiff for his retention of the
truck in question from January 6, 1947, to
November 20, 1948, aggregate more than
P20,500. That seems exorbitant,
considering that the truck itself was valued
at only P2,300.

Rule 57 Preliminary Attachment

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Rule 57 Preliminary Attachment

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Provisional Remedies | Rule 57 Yza

Provisional Remedies interest damages of whatever kind,

The court where the main action is pending.

Preliminary Attachment Section 1. Grounds upon which attachment

Purpose of Preliminary Attachment Attachment; In pleading for attachment

William filed a complaint against Elaine, for

Santos vs Bernabe Sec. 1 Par (c.) speaks about

Wee filed an action for recovery of his AS TO FRAUD IN THE PERFORMANCE

The dwindling of respondent’s bank account

The attachment sought on the ground of The execution of a mortgage in favor of

In any case, intent to defraud may be and

Section 16. Residents temporarily out of May a foreign corporation be considered a

A proceeding in rem is one brought against In order to acquire jurisdiction in actions in

Substituted service of summons is the

Nature of the action

Nature of the action

Nature of the action

possession of a property was taken

Fraud in contracting a debt, or

removal to defraud creditors

PROFESSIONAL VIDEO vs TESDA

Provi and TESDA entered into a contract

Provi filed for a complaint for sum of money

ground of embezzlement by public officials

TESDA contends that the public funds

claimed immunity from suit, being a

ISSUE: W public funds can be subject to

TESDA being a government instrumentality

Even assuming that TESDA entered into a

proprietary contract with PROVI and thereby

garnishment or attachment. TESDA funds,

Q: When may Writs of attachment issue ex Q: How do you defeat a Writ?

Q: Who issues the writ? Levy of attachment is the service

1. Sheriff of the Court; Levy on property pursuant to the writ

No principle, statutory or jurisprudential,

As has been expressly ruled in BF Homes, Salas vs Adil

La Granja filed a complaint against Chua for

The judge, wishing to ascertain or convince

La Granja refused to comply with the court's

The Judge dismissed said petition for an

ISSUE: W the mere filing of an affidavit in

Although the law requires nothing more than

The sufficiency or insufficiency of an

Hence, the respondent judge, in requiring

Q: What are the requisites for an

Guzman contends that the PA was

The TC granted and issued the PA.

When the facts or some of them, stated in

PCIB filed an action against Salgado to

Q: What the effect of the insufficiency of the

In other words, the issuance of a writ of

NOMINAL damages may be awarded to a Calderon vs IAC

Schulze filed a counterbond, so the TC

ISSUE: W the Surety is liable for damages

While Section 12, Rule 57 provides that

The liability of the attachment bond is

It is clear that the responsibility of the surety

Whether the attachment was discharged by

Q: What is the purpose of a counterbond?

On December 24, 1991, Judge Abrogar

ISSUE: W the subsequent service of

On August 29, 1974, Bank filed a "Motion

ISSUE: WON the levy was illegal because

The Rules do not provide any lifetime for a

Verily, petitioners' remedy was to ventilate

In the interest of justice, petitioners can still

Q: Is a paper levy allowed? YES