RULE 57

PROVISIONAL REMEDIES

1. N a t u r e of P r o v i s i o n a l R e m e d i e s

Provisional remedies are:

a. Those to which parties litigant m a y resort for the preser-

vation or protection of their rights or interest, and for no other
purpose during the pendency of the action.

b. T h e y are applied to a pending litigation, for the purpose

of securing the judgment or preserving the status quo, and in some
cases after judgment, for the purpose of preserving or disposing of
1
the subject matter.

2. T h e P r o v i s i o n a l R e m e d i e s u n d e r the p r e s e n t R u l e s
are:

a) Attachment (Rule 57)

b) Preliminary Injunction (Rule 58)
c) Receivers (Rule 59)
d) Replevin or delivery of private property (Rule 60)
e) Alimony Pendente Lite (Rule 61)
3. Equity Jurisdiction to O r d e r Deposit D u r i n g
Pendency of Action
To prevent unjust enrichment and to ensure restitution in the
event of rescission the trial court in the exercise of its equity juris-
diction may validly order the deposit of the 10 million down-pay-
ment during the pendency of the action despite the fact that deposit
2
is not among the provisional remedies provided for in the Rules.

1
Calo v. Roldan, 76 Phil. 445.
2
Reye8 v. Lim, G.R. N o . 1324241, August 11, 2003.

I
 Sec. 1 REMEDIAL LAW Rule 57
V O L . III

The principle that no person may unjustly enrich himself at

the expense of another is embodied in Article 22 of the Civil Code.
This principle applies not only to substantive but also procedural
remedies. One condition for invoking this principle is that the ag-
grieved party has no other action based on contract, quasi-contract,
crime, quasi-delict or any other provision of law. T h e Court can
extend this condition to the hiatus in the Rules of Court where the
aggrieved party during the pendency of the case has no other re-
3
course based on the provisional remedies of the Rules of Court.

A court may not permit a seller to retain, pendente lite, money

paid by a buyer if the seller seeks himself the rescission of the sale
4
because he has subsequently sold the property to another buyer.

PRELIMINARY ATTACHMENT

S E C T I O N 1. Grounds upon which attachment may issue.

— At the c o m m e n c e m e n t of the action or at a n y time b e f o r e
entry o f j u d g m e n t , a plaintiff o r a n y p r o p e r p a r t y m a y h a v e
the p r o p e r t y o f the a d v e r s e p a r t y a t t a c h e d a s s e c u r i t y f o r
the satisfaction o f a n y j u d g m e n t that m a y b e r e c o v e r e d i n
the f o l l o w i n g cases:

( a ) I n a n action f o r the r e c o v e r y o f a specified a m o u n t

of money or damages, other than m o r a l a n d exemplary, on a
cause o f action a r i s i n g f r o m l a w , contract, q u a s i - c o n t r a c t ,
delict o r quasi-delict a g a i n s t a p a r t y w h o i s a b o u t t o d e p a r t
f r o m the P h i l i p p i n e s w i t h intent t o d e f r a u d his c r e d i t o r s ;

( b ) I n a n action f o r m o n e y o r p r o p e r t y e m b e z z l e d o r
f r a u d u l e n t l y m i s a p p l i e d o r c o n v e r t e d t o his o w n u s e b y a
p u b l i c officer, or an officer of a c o r p o r a t i o n , or an attorney,
factor, b r o k e r , agent, o r clerk, i n the c o u r s e o f his e m p l o y -
ment a s such, o r b y a n y o t h e r p e r s o n i n a f i d u c i a r y capacity,
or for a w i l l f u l v i o l a t i o n of duty;

( c ) I n a n action t o r e c o v e r the p o s s e s s i o n o f p r o p e r t y
unjustly o r f r a u d u l e n t l y t a k e n , d e t a i n e d o r c o n v e r t e d , w h e n
the property, o r a n y p a r t thereof, h a s b e e n c o n c e a l e d , r e -

3
Reyes v. Lim, G.R. N o . 1324241, supra.
4
Reyes v. Lim, supra.

2
Rule 57 PROVISIONAL REMEDIES Sec. 1

m o v e d , o r d i s p o s e d o f t o p r e v e n t its b e i n g f o u n d o r t a k e n b y
the a p p l i c a n t o r a n a u t h o r i z e d p e r s o n ;

( d ) I n a n action a g a i n s t a p a r t y w h o h a s b e e n guilty o f
a fraud in c o n t r a c t i n g the d e b t or i n c u r r i n g the obligation
u p o n w h i c h the action i s b r o u g h t , o r i n the p e r f o r m a n c e
thereof;

( e ) I n a n action a g a i n s t a p a r t y w h o h a s r e m o v e d o r
d i s p o s e d of his p r o p e r t y , or is a b o u t to do so, w i t h intent to
d e f r a u d his creditors; o r

(f) I n a n action a g a i n s t a p a r t y w h o does not r e s i d e

a n d i s not f o u n d i n the P h i l i p p i n e s , o r o n w h o m s u m m o n s
may b e served b y publication, ( l a )

COMMENT:

1. S o u r c e of R u l e

The present Rule on attachment was taken from Section 1 of the

former Rule.

2. T h e c h a n g e s consist i n

a. changing the time when the filing of an application for a

w r i t of preliminary attachment may be filed at the commencement
of the action or at any time "thereafter" to "or before entry of judg-
ment";
b. clarifying the ground in subsection ( a ) to an action for the
recovery of a "specified amount" of money or damages, "other than
moral or exemplary" and expanding the scope by not confining the
cause of action to those arising only from contract, express or im-
plied but also those arising from "law, contract, delict, or quasi-
delict." This rule confirms decisions of the Supreme Court that a
writ of preliminary attachment may not issue in an action for dam-
1
ages where the claims are unliquidated;
c. Clarifying and consolidating in subsection (c) the grounds
mentioned in former subsections (c) and the second ground in sub-

1
Salas v. Adil, 90 S C R A 121; Peregrino v. Panis, 133 S C R A 72; Mialhe v. de
Lenquesaing, 142 S C R A 694.

3
 Sec. 1 REMEDIALLAW Rule 57
V O L . III

sections (d) to "an action to recover the possession of property un-

justly or fraudulently taken, detained or converted, when the prop-
erty, or any part thereof, has been concealed, removed, or disposed of
to prevent its being found or taken by the applicant or an authorized
person"; and deleting the limitation "personal" thereby including
therein an action to recover "real" property.
d. l b fraud in contracting the debt or incurring the obliga-
tion, the present rule added fraud in the performance of the obliga-
tion.
e. Preliminary attachment may be granted against a de-
fendant who does not reside and is not found in the Philippines
under Sec. 15 of Rule 14. It may also be granted against a defendant
whose identity or whereabouts are unknown and cannot be ascer-
tained by diligent inquiry on w h o m summons m a y be served by
publication under Sec. 14, Rule 14. T h e attachment converts an
action in personam into an action quasi in rem and validates sum-
2
mons by publication.

M e r e non-residence is not enough, the rule added "and is not

found in the Philippines."

The rule does not include foreign corporations duly licensed to

3
do business in the Philippines but refers only to natural persons.

In other words a foreign corporation licitly doing business in

the Philippines which is a defendant in a civil suit, may not be
considered a non-resident within the scope of the legal provision
authorizing attachment against a defendant not residing in the Phil-
ippines. Otherwise stated, a preliminary attachment may not be
applied for and granted solely on the asserted fact that the defend-
ant is a foreign corporation authorized to do business in the Philip-
pines — and is consequently and necessarily a party who resides out
4
of the Philippines. Such corporations are thus considered as resid-
5
ing in the Country.

2
Citizens Surety and Ins. Co. v. Melencio-Herrera, 38 S C R A 369; Consolidated
Plywood Industries, Inc. v. Breve, 163 S C R A 589.
3
Claude Neon Lights v. Philippine Advertising Corp., 57 Phil. 607.
4
State Investment House, Inc. v. Citibank N . A . , 203 S C R A 9, cited in Northwest
Airlines v. Court of Appeals, 241 S C R A 192 (1995).
5
Vide Northwest Airlines v. Court of Appeals, supra.

4
Rule 57 PROVISIONAL REMEDIES Sec. 1

3. Notes and Cases

a. Definition

A w r i t of preliminary attachment is a provisional remedy is-

sued upon order of the court where an action is pending to be levied
upon the property or properties of the defendant therein, the same
to be held thereafter by the Sheriff as security for the satisfaction of
whatever judgment might be secured in said action by the attaching
6
creditor against the defendant.
7
In Davao Light and Power Co. v. Court of Appeals, Justice
Narvasa paraphrasing Section 1, Rule 57 of the Rules of Court de-
fined a preliminary attachment as the provisional remedy in virtue
of which a plaintiff or other proper party may, at the commencement
of the action or at any time thereafter, have the property of the
adverse party taken into the custody of the court as security for the
satisfaction of the judgment that m a y be recovered. It is a remedy
which is purely statutory in respect of which the law requires a
strict construction of the provisions granting it.

Another definition given in 4 Words and Phrases 727 (1940), is

that it is a provisional remedy, auxiliary or incidental to the main
action whereby the debtor's property capable of being taken under
levy and execution is placed under custody of the law pending deter-
mination of the cause to secure the payment of any judgment that
8
may be recovered therein.

b. Concept: P U R P O S E
"Attachment is a juridical institution which has for its purpose
to secure the outcome of the trial, that is, the satisfaction of the
pecuniary obligation really contracted by a person or believed to
have been contracted by him, either by virtue of a civil obligation
emanating from contract or from law, or by virtue of some crime or
misdemeanor that he might have committed, and the writ issued,
granted it, is executed by attaching and safely keeping all the mov-

6
Eleazar v. A d l a w a n v. Hon. Judge Valeriano P. Tomol, G.R. N o . 63225, April 3,
1990; Reiterate M. Cuartero v. Court of Appeals, 212 SCRA200 (1992), cited in Chemphil
C E I C v. C A , Dec. 12,1995, G.R. Nos. 112438-39.
7
204 S C R A 343(1991).
*Supra.

5
Sec. 1 REMEDIAL LAW Rule 57
V O L . III

able property of the defendant, or so much thereof as may be suffi-

9
cient to satisfy the plaintiff's demands x x x."
The chief purpose of the remedy of attachment is to secure a
contingent lien on defendant's property until plaintiff can, by appro-
priate proceedings, obtain a judgment and have such property ap-
plied to its satisfaction, or to make some provision for unsecured
debts in cases where the means of satisfaction thereof are liable to
be removed beyond the jurisdiction, or improperly disposed of or
10
concealed, or otherwise placed beyond the reach of creditors.

c. W h e r e Indebtedness A l r e a d y Secured
The grounds upon which attachment m a y issue are set forth in
Section 1, Rule 57 of the Rules of Court. But quite apart from the
grounds stated therein, it is further provided in Section 3 of Rule 57
that "an order of attachment shall be granted only when it is made
to appear by the affidavit of the applicant or some other person who
personally knows the facts, that x x x there is no other sufficient
security for the claim sought to be enforced by the action."

The reason for the rule prohibiting attachment where indebt-

edness was already secured is to prevent the secured creditors from
attaching additional property and thus tying up more of the debtor's
property than was necessary to secure the indebtedness. Thus, to
sustain an order of attachment, "it is incumbent, upon plaintiff to
establish either of these two facts, to wit: ( a ) that the obligation had
not been secured originally, or ( b ) that, if secured at its beginning,
11
the security later became valueless."

d. N a t u r e a n d Scope: A t t a c h m e n t P u r e l y S t a t u t o r y

Attachment is not a distinct proceeding in the nature of an

action in rem but is a proceeding to an action of law, designed to
secure the payment of any judgment the plaintiff m a y obtain.

Attachment as a provisional remedy is purely a statutory one.

It does not exist unless expressly granted by the statute. It is there-

G u z m a n v. Catolica, et al., Phil. 257; Gruenberg v. Court of Appeals, 138 S C R A

471, cited in C E I C v. C A , supra.
10
I d . , citing Salgado v. C A , 128 S C R A 395 (Italics ours); Chemphil Export &
Import Corp. v. C A , 251 S C R A 289.
u
S a l g a d o v. Court of Appeals, supra.

6
Rule 57 PROVISIONAL REMEDIES Sec. 1

fore not available except in those cases where the statute expressly
12
permits. For this purpose, the party seeking an attachment must
show that a sufficient cause of action exists and that the amount due
him is as much as the sum for which the order of attachment is
13
sought.

e. Strict C o m p l i a n c e w i t h R u l e

T h e rule on the issuance of a w r i t of attachment must be con-

strued strictly in favor of the defendant. If all the requisites for the
issuance of the w r i t are not present, the court which issues it acts in
14
excess of jurisdiction. It should be issued only on concrete and
15
specific grounds.

f. Writ m a y be Q u a s h e d on Certiorari If Not Based on

Statutory G r o u n d s

If a w r i t is issued for which there is no statutory authority, the

court is acting irregularly and in excess of jurisdiction, hence the
16
w r i t may be quashed by certiorari.

g. P a r t y Entitled to R e m e d y

1. Plaintiff or "any proper party" includes defendant in a

counterclaim.

2. Plaintiff cannot attach property claimed as his and in his

17
actual possession.
3. T h e w r i t m a y not issue in an action instituted by an
administratrix of an estate to protect her personal interest as credi-
18
tor of the estate.

h. G r o u n d s for Issuance
( a ) In an action f o r the r e c o v e r y of a specified a m o u n t
of m o n e y or d a m a g e s , o t h e r t h a n m o r a l a n d exemplary, on a

12
U . S . v. Namit, 38 Phil. 926.
"General v. De Venecia, 78 Phil. 780.
14
Gruenberg v. C A , supra.
16
D y v. Enage, 70 S C R A 96.
16
L e u n g v. O'Brien, 38 Phil. 182; Salas v. Adil, 90 S C R A 121; Jardine Manila
Finance, Inc. v. Court of Appeals, 171 S C R A 636.
17
Calo, et al. v. Roldan, et al., 76 Phil. 445.
18
Gruenberg v. C A , supra.

7
 Sec. 1 REMEDIAL LAW Rule 57
V O L . III

cause of action a r i s i n g from l a w , contract, quasi-contract,

delict or quasi-delict a g a i n s t a p a r t y w h o is a b o u t to d e p a r t
from the P h i l i p p i n e s w i t h intent to d e f r a u d his creditors;
1. It must be shown that the defendant is about to
depart from the Phils, with intent to defraud his creditor or
that he is a non-resident alien in order that attachment of his
19
property is justified.
2. Attachment may not issue if the allegation in the
20
affidavit is insufficient.
3. Attachment is not available where demand is not
21
due and payable.
4. Attachment may not issue for moral and exemplary
damages or for an unspecified amount of damages. (See Note 2
[b])
( b ) I n a n action f o r m o n e y o r p r o p e r t y e m b e z z l e d o r
f r a u d u l e n t l y m i s a p p l i e d o r c o n v e r t e d t o his o w n u s e b y a
p u b l i c officer, or an officer of a c o r p o r a t i o n , or an attorney,
factor, b r o k e r , agent, or clerk, in the c o u r s e of his employ-
ment as such, or by a n y o t h e r p e r s o n in a fiduciary capacity,
or f o r a w i l l f u l violation of duty;

If one of two persons who owned a sweepstakes ticket, that won

a prize appropriated the entire prize to himself, a w r i t of prelimi-
nary attachment is proper in an action against him to recover the
22
share of the co-owner.

The act of a corporate officer in taking money from the corpora-

tion in his capacity as President, Treasurer and General M a n a g e r
for personal use without being duly authorized constitutes an ir-
regularity that, while it does not amount to a criminal fraud, is
undoubtedly a fraud of a civil character — an abuse of confidence to
23
the damage of the corporation and its stockholders.

19
K . O . Glass Const. Co. v. Valenzuela, 116 S C R A 563.
20
Ibid.
21
General v. De Venecia, supra.
22
T a n v. Zandueta, 61 Phil. 526.
"Walter E. Olsen and Co. v. Olsen, 48 Phil. 238.

8
Rule 57 PROVISIONAL REMEDIES Sec. 1

( c ) I n a n action t o r e c o v e r the possession o f p r o p e r t y

unjustly o r f r a u d u l e n t l y t a k e n , d e t a i n e d o r converted, w h e n
the p r o p e r t y , o r a n y p a r t thereof, h a s b e e n concealed, re-
m o v e d , o r d i s p o s e d o f t o p r e v e n t its b e i n g f o u n d o r t a k e n b y
the a p p l i c a n t o r a n a u t h o r i z e d p e r s o n ;

As distinguished from replevin — the personal property in this

case belongs to the defendant and the plaintiff seeks to attach it to
secure the satisfaction of any judgment that he may recover from
24
the defendant.

In replevin, the property being recovered belongs to the plain-

tiff, or plaintiff is entitled thereto, by virtue of a chattel mortgage in
his favor.

In an action to recover possession of personal property a writ of

replevin m a y issue under Rule 60. If the property has been con-
cealed, removed or disposed of to prevent its being found, a writ of
preliminary attachment under the present Rule may be issued. A t -
tachment is issued as security for the satisfaction of a judgment
under Section 9, Rule 60, where the court is called upon to deter-
mine who has the right of possession to and the value of the property
and shall render judgment in the alternative for the delivery thereof
to the party entitled to the same, or for its value in case delivery
cannot be made, and also for such damages as either party may
prove, with costs.
Concealment — there should be a physical hiding or secreting
25
of property so that it cannot be seized to satisfy creditor's claims.
Removal is actual physical removal by the debtor.

( d ) I n a n action a g a i n s t a p a r t y w h o h a s b e e n guilty o f
a fraud in c o n t r a c t i n g the d e b t or i n c u r r i n g the obligation
u p o n w h i c h the action i s b r o u g h t , o r i n the p e r f o r m a n c e
thereof;
26
3. Insolvency is not a ground. Formerly neither is fraud in
27
the performance of an obligation. It is now a ground for the issu-
ance of the writ.

24
Santos v. Bernabe, 54 Phil. 19; Calo v. Roldan, supra.
25
3 MORAN, 1980 ed., p. 7.
26
Aboitiz v. Cotabato Bus Co., 105 S C R A 88.
27
State Investment House, Inc. v. Court of Appeals, 163 S C R A 799.

9
 Sec. 1 REMEDIAL LAW Rule 57
V O L . III

Failure to disclose non-delivery of vehicle to financing com-

28
pany who funded sale constitutes fraud.
(e) I n a n action a g a i n s t a p a r t y w h o h a s r e m o v e d o r
disposed of his property, or is a b o u t to do so, w i t h intent to
d e f r a u d his creditors; or

— Actual transfer is not necessary as mere design to dispose of

29
property and intent to carry it out is sufficient.

1. The acts of a bus company in having buses repaired and

substitution by the same number of buses does not constitute re-
30
moval.

2. Intent to defraud may be and usually is inferred from the

facts and circumstances of the case. It can rarely be proven by direct
evidence. It may be gleaned from the statements and conduct of the
debtor. The principle may be applied that every person is presumed
31
to intend the natural consequences of his act.

3. M e r e removal or disposal of property, by itself, is not a

ground for the issuance of attachment, notwithstanding the absence
of any security for the satisfaction of any judgment against defend-
ant.

4. It is the removal or disposal with intent to defraud de-

fendant's creditors that justifies the issuance of a w r i t of prelimi-
32
nary attachment.

Thus, to justify the issuance of a w r i t of preliminary attach-

ment based on removal, concealment and disposition of defendant's
property with intent to defraud his creditors, the factual basis on
defendant's intent to defraud must be clearly alleged in the affidavit
in support of the prayer for the w r i t of attachment if not so specifi-
33
cally alleged in the verified complaint.

^Filinvest v. Relova, 117 S C R A 420, 432.

29
3 MORAN, p. 9, 1963 Ed.
30
Aboitiz v. Cotabato Bus Co., supra.
31
People's Bank and Trust Company v. Syvel's Incorporated, 164 S C R A 247.
32
Carpio v. Macadaeg, 9 S C R A 552.
33
A d l a w a n v. Torres, 233 S C R A 645 (1994).

10
Rule 57 PROVISIONAL REMEDIES Sec. 1

A bare allegation that an encumbrance of a property is in fraud

of the creditor does not suffice. Factual bases for such conclusion
34
must be clearly a v e r r e d .

T h e execution of a mortgage in favor of another creditor is not

conceived by the Rules as one of the means of fraudulently disposing
of one's property. By mortgaging a piece of property, a debtor merely
35
subjects it to a lien but ownership thereto is not parted w i t h .

T h e inability to pay one's obligation is not synonymous with

36
fraudulent intent not to honor the obligations.

(f) I n a n action a g a i n s t a p a r t y w h o does not r e s i d e

a n d i s not f o u n d i n the P h i l i p p i n e s , o r o n w h o m s u m m o n s
may be served by publication, ( l a )

Non-resident defendant or on whom summons may be served by

publication — This is applicable only where plaintiff's claim is liqui-
37
dated but not to unliquidated damages.

T h e rule does not include foreign corporations duly licensed to

38
do business in the Philippines but refers only to natural persons.

In other words a foreign corporation licitly doing business in

the Philippines which is a defendant in a civil suit, may not be
considered a non-resident within the scope of the legal provision
authorizing attachment against a defendant not residing in the Phil-
ippines. Otherwise stated, a preliminary attachment may not be
applied for and granted solely on the asserted fact that the defend-
ant is a foreign corporation authorized to do business in the Philip-
pines — and is consequently and necessarily a party who resides out
39
of the Philippines. Such corporations are thus considered as resid-
40
ing in the Country.

^Supra.
36
Supra.
^Supra.
37
M i a l h e v. De Lencquesaing, 142 S C R A 694.
38
Claude Neon Lights v. Philippine Advertising Corp., 57 Phil. 607.
39
State Investment House, Inc. v. Citibank, N . A . , 203 S C R A 9, cited in North-
west Airlines v. Court of Appeals, Feb. 9, 1995, 241 S C R A 192.
"Northwest Airlines v. C A , 241 S C R A 192.

11
 Sec. 2 REMEDIAL LAW Rule 57
V O L . III

4. Attachment to A c q u i r e Jurisdiction O v e r the Res

Attachment is intended to confer jurisdiction by the court over
the res. When real property of a non-resident defendant located in
the Philippines is attached, to answer for the claim of plaintiff, the
Court acquires jurisdiction over the res and in that event, the juris-
41
diction over the person of said defendant is not essential.

S E C . 2. Issuance and contents of order. — An o r d e r of

attachment m a y be i s s u e d either ex parte or u p o n motion
w i t h notice a n d h e a r i n g b y the c o u r t i n w h i c h the action i s
pending, o r b y the C o u r t o f A p p e a l s o r the S u p r e m e C o u r t ,
a n d must r e q u i r e the sheriff of the c o u r t to attach so m u c h of
the p r o p e r t y i n the P h i l i p p i n e s o f the p a r t y a g a i n s t w h o m i t
is issued, not e x e m p t f r o m execution, as m a y be sufficient to
satisfy the applicant's d e m a n d , u n l e s s s u c h p a r t y m a k e s de-
posit o r gives a b o n d a s h e r e i n a f t e r p r o v i d e d i n a n a m o u n t
e q u a l t o that fixed i n the o r d e r , w h i c h m a y b e the a m o u n t
sufficient to satisfy the applicant's d e m a n d or the v a l u e of
the p r o p e r t y t o b e a t t a c h e d a s stated b y the a p p l i c a n t , exclu-
sive o f costs. S e v e r a l w r i t s m a y b e i s s u e d a t the s a m e time t o
the sheriffs of the courts of different j u d i c i a l r e g i o n s . ( 2 a )

COMMENT:

1. S o u r c e of R u l e

Taken from the former Section 2.

2. C h a n g e s in the R u l e

a. The Rule on P r i o r or Contemporaneous Jurisdic-

tion

The present Rule clarifies the conflicting opinions on whether

or not an order for the issuance of a w r i t of preliminary attachment
may be issued ex parte or only after hearing, by granting the court
discretion to issue the order either ex parte or upon motion with
notice and hearing.

The conflict came about when the Supreme Court held that the
writ may be issued only after the court has acquired jurisdiction

41
M a b a n a g v. Gallemore, 81 Phil. 254.

12
Rule 57 PROVISIONAL REMEDIES Sec. 2

over the subject matter or over the person of the defendant in the
1
principal action.

T h e Supreme Court, however, in Davao Light and Power Co.,

2
Inc. v. Court of Appeals, after reiterating and reaffirming the propo-
sition that writs of attachment m a y properly issue ex parte although
it may, in its discretion, require prior hearing on the application
w i t h notice to the defendant stressed that levy on property pursuant
to the w r i t thus issued m a y not be validly effected unless preceded,
or contemporaneously accompanied by service on the defendant of
summons, a copy of the complaint (and of the appointment of guard-
ian ad litem, if a n y ) , the application for attachment ( i f not incorpo-
rated in but submitted separately from the complaint), the order of
attachment bond, (at page 357)

T h e foregoing doctrine was reiterated in Cuartero v. Court of

3
Appeals, and again stressed that "It is clear from our pronounce-
ments that a w r i t of preliminary attachment may issue even before
summons is served upon the defendant. H o w e v e r the writ cannot
bind and affect the defendant until jurisdiction over his person is
eventually obtained. Therefore, it is required that when the proper
officer commences implementation of the writ of attachment, service
of the w r i t of attachment, service of the summons should be simulta-
neously made."

b. T h r e e Stages in Issuance of Writ

T h e Supreme Court emphasized that the grant of the provi-

sional remedy of attachment practically involves three stages: first,
the court issues the order granting the application; second, the writ
of attachment issues pursuant to the order granting the writ; and
third, the writ is implemented. For the initial two stages, it is not
necessary that jurisdiction over the person of the defendant should
first be obtained. However, once the implementation commences, it
is required that the court must have acquired jurisdiction over the
defendant for without such jurisdiction, the court has no power and
authority to act in any manner against the defendant. A n y order
issuing from the court will not bind the defendant, (p. 226)

^eivert v. C A , 168 S C R A 692 (1988).

2
204 S C R A 343 (1991).
3
212 S C R A 260(1992).

13
 Sec. 3 REMEDIAL LAW Rule 57
V O L . III

However, should the Court decide to hold a hearing with notice

to the adverse party, summons should first be served on the latter.
The sheriff is required to attach only so much of the property of
the party against whom the order is issued as may be sufficient to
satisfy the applicant's demand, the amount of which is stated in the
order, unless a deposit is made or a counter-bond is given equal to
said amount. However, if the value of the property to be attached is
less than the amount of the demand, the amount of the applicant's
bond may be equal to the value of said property, and the amount of
the adverse party's deposit or counter-bond may be equal to the
applicant's bond. The writ of preliminary attachment is issued upon
the approval of the requisite bond. (Feria)4

c. Thus, the settled rule is that attachment may be issued ex

parte* — Nothing in the Rules of Court make notice and hearing
indispensable and mandatory requisites for the issuance of a w r i t of
6
attachment.

3. When Hearing Necessary

Considering the gravity of the allegation that petitioners have

removed or disposed of their properties or about to do so with
intent to defraud their creditors, and further considering that the
affidavit in support of the preliminary attachment merely states
such ground in general terms without specific allegations of cir-
cumstances to show the reason w h y plaintiffs believe that defend-
ants are disposing of their properties in fraud of creditors, it was
incumbent upon respondent judge to g i v e notice to petitioners and
to allow them to present their position at a hearing when evidence
7
is to be received.

S E C 3. Affidavit and bond required. — An o r d e r of at-

tachment shall b e g r a n t e d o n l y w h e n i t a p p e a r s b y the affi-
davit o f the a p p l i c a n t , o r o f s o m e o t h e r p e r s o n w h o p e r s o n -

i n s u l a r Savings Bank v. Court of Appeals, G.R. N o . 123638, June 15, 2005.

5
Filinvest v. Relova, 117 S C R A 420 (1982).
6
See also Belisle Investment and Finance Co., Inc. v. State Investment House,
151 S C R A 630; Mindanao Savings and Loan Association v. Court of Appeals, 172 S C R A
480; Toledo v. Burgos, 168 S C R A 513.
7
Salas v. Adil, 90 S C R A 121; See also Ting v. Villarin, 176 S C R A 532.

14
Rule 57 PROVISIONAL REMEDIES Sec. 3

ally k n o w s the facts, that a sufficient c a u s e of action exists,

that the case is o n e of those m e n t i o n e d in Section 1 hereof,
that t h e r e is no o t h e r sufficient security f o r the claim sought
t o b e e n f o r c e d b y the action, a n d that the a m o u n t d u e t o the
applicant, or the v a l u e of the p r o p e r t y the possession of w h i c h
he is entitled to r e c o v e r , is as m u c h as the s u m f o r w h i c h the
o r d e r i s g r a n t e d a b o v e all l e g a l c o u n t e r c l a i m s . T h e affidavit,
a n d the b o n d r e q u i r e d b y the n e x t s u c c e e d i n g section, must
b e d u l y filed w i t h the c o u r t b e f o r e the o r d e r issues. (3a)

COMMENT:

1. S o u r c e of the R u l e

Taken from the former Section 3.

No change except style by deleting the words "the clerk or

judge or from the last sentence.

2. Notes a n d Cases

a. Requisites for Issuance of Writ M a y Be Issued Ex

Parte

T h e only requisites for the issuance of a w r i t of preliminary

attachment under Section 3, Rule 57 of the Rules of Court are the
affidavit and bond of the applicant.

A preliminary attachment however, is a rigorous remedy which

exposes the debtor to humiliation and annoyance, such that it should
not be abused to cause unnecessary prejudice. It is, therefore, the
duty of the court, before issuing the writ, to ensure that all the
requisites of the law have been complied with; otherwise, the judge
acts in excess of its jurisdiction and the writ so issued shall be null
1
and void.

The affidavit must establish that:

(a) a sufficient cause of action exists;
(b) the case is one of those mentioned in Sec. 1, Rule 57;

1
Salas v. Adil, 90 S C R A 121; Salgado v. Court of Appeals, 128 S C R A 396.

15
Sec. 3 REMEDIAL LAW Rule 57
V O L . III

(c) there is no sufficient security for the claim sought to be

enforced by the action;
(d) the amount due to the applicant is as much as the sum for
which the order is granted above all legal counter claims.
Failure of the affidavit to show that there is no other sufficient
security for the claim sought to be enforced by the action, that the
said amount due to the plaintiff above all legal set-offs or counter-
claim is as much as the sum for which the order is sought renders
2
that application fatally defective.
Whether or not the affidavit sufficiently established facts therein
stated is a question to be determined by the court in the exercise of
sound discretion. The mere filing of an affidavit reciting the facts
required by the above provision is not sufficient to compel the judge
to grant the writ. It all depends upon the amount of credit given it by
the judge who may accept or reject it in the exercise of his discre-
3
tion.

The stringent conditions for the issuance of the w r i t have been

echoed in all subsequent cases, even as late as K.O. Glass Construc-
tion Co., Inc. i). Valenzuela, wherein the w r i t of preliminary attach-
ment issued was annulled and set aside on the finding that while
the plaintiff "may have stated in his affidavit that a sufficient cause
of action exists against the defendant Kenneth O. Glass, he did not
state therein that the case is one of those mentioned in Section 1
hereof; that there is no other sufficient security for the claim sought
to be enforced by the action; and that the amount due to the appli-
cant is as much as the sum for which the order is granted above all
4
legal counterclaims."

More specifically, it has been held that the failure to allege in

the affidavit the requisites prescribed for the issuance of the w r i t of
preliminary attachment, renders the writ of preliminary attachment
issued against the property of the defendant fatally defective, and

2
Guzman v. Catolico, 65 Phil. 257; K.O. Glass Construction Co., Inc. v. Valenzuela,
116 S C R A 563; Jardine Manila Finance, Inc. v. Court of Appeals, G.R. N o . 55272, April
10,1989,171 S C R A 636.
3
L a Granja, Inc. v. Samson, 58 Phil. 378.
4
K . O . Glass Construction Co., Inc. v. Valenzuela, 116 S C R A 563.

16
Rule 57 PROVISIONAL REMEDIES Sec. 4

the judge issuing it is deemed to have acted in excess of his jurisdic-

5
tion. In fact, in such cases the defect cannot even be cured by amend-
6
ment.

Since the attachment is a harsh and rigorous remedy which

exposes the debtor to humiliation and annoyance, the rule authoriz-
ing its issuance must be strictly construed in favor of defendant. It is
the duty of the court before issuing the w r i t to ensure that all the
7
requisites of the l a w have been complied with. Otherwise, a judge
acquires no jurisdiction to issue the writ.

T h e general rule is that the affidavit is the foundation of the

writ, and it none be filed or one be filed which wholly fails to set out
some facts required by l a w to be stated therein, there is no jurisdic-
tion and the proceedings are null and void. Thus, while not unmindful
of the fact that the property seized under the writ and brought into
the court is w h a t the court finally exercises jurisdiction over, the
court cannot subscribe to the proposition that the steps pointed out
by statutes to obtain such w r i t are inconsequential, and in no sense
8
jurisdictional.

W h e r e petitioner's application for the subject writ of prelimi-

nary attachment did not fully comply with the requisites prescribed
by law, the w r i t w a s declared null and void and of no effect whatso-
9
ever.

S E C 4. Condition of applicants bond. — T h e p a r t y a p -

p l y i n g f o r the o r d e r m u s t t h e r e a f t e r g i v e a b o n d executed to
the a d v e r s e p a r t y i n the a m o u n t f i x e d b y the court i n its
o r d e r g r a n t i n g the i s s u a n c e of the w r i t , c o n d i t i o n e d that the
latter w i l l p a y all the costs w h i c h m a y b e a d j u d g e d t o the
a d v e r s e p a r t y a n d all d a m a g e s w h i c h h e m a y sustain b y rea-
son of the attachment, if the c o u r t shall finally a d j u d g e that
the a p p l i c a n t w a s not entitled thereto. (4a)

b
Ibid.; Guzman v. Catolico, 65 Phil. 261, 262.
6
C u Unjieng and Cu Unjieng v. Goddard, 58 Phil. 482.
7
Salgado v. C A , 128 S C R A 395, citing Giani v. Ramirez, 54 Pacific Reporter (2d
91-92).
8
Duxerry v. Dahle, 81 NW 198-199 (1899).
9 Jardine Manila Finance, Inc. v. Court of Appeals, 171 S C R A 636.

17
 REMEDIAL LAW Rule 57
Sec. 5
V O L . III

COMMENT:
1. Source of the R u l e
Taken from the former Section 4.
2. C h a n g e in the R u l e
The only change is instead of the amount of the bond to be fixed
by judge, not exceeding the applicant's claim, the present rule leaves
the amount to be fixed by the court in its order without any limita-
tion.
3. Defects a n d I r r e g u l a r i t i e s o f the B o n d m u s t b e
Promptly Raised
1
It is not waived by the filing of counterbond. Attachment is-
2
sued without bond is void.

S E C 5. Manner of attaching property. — T h e sheriff en-

forcing the w r i t shall w i t h o u t d e l a y a n d w i t h all r e a s o n a b l e
diligence attach, t o a w a i t j u d g m e n t a n d e x e c u t i o n i n the ac-
tion, only so m u c h of the p r o p e r t y in the P h i l i p p i n e s of the
p a r t y a g a i n s t w h o m the w r i t i s issued, not e x e m p t f r o m ex-
ecution, as m a y be sufficient to satisfy the applicant's de-
m a n d , unless the f o r m e r m a k e s a d e p o s i t w i t h the c o u r t f r o m
w h i c h the w r i t is issued, or g i v e s a c o u n t e r - b o n d e x e c u t e d to
the a p p l i c a n t , i n a n a m o u n t e q u a l t o the b o n d f i x e d b y the
court i n the o r d e r o f a t t a c h m e n t o r t o the v a l u e o f the p r o p -
erty t o b e attached, e x c l u s i v e o f costs. N o l e v y o n a t t a c h m e n t
p u r s u a n t t o the w r i t i s s u e d u n d e r Section 2 h e r e o f shall b e
enforced unless it is p r e c e d e d , or c o n t e m p o r a n e o u s l y accom-
p a n i e d , b y service o f s u m m o n s , t o g e t h e r w i t h copies o f the
complaint, the a p p l i c a t i o n f o r a t t a c h m e n t , the applicant's
affidavit a n d b o n d , a n d the o r d e r a n d w r i t o f attachment, o n
the d e f e n d a n t w i t h i n the P h i l i p p i n e s .

The requirement of p r i o r or contemporaneous service

o f s u m m o n s shall not a p p l y w h e r e the s u m m o n s c o u l d not b e

^ a l d e r o n v. I A C , 155 S C R A 531 (1987).

2
Arellano v. Floud, 238 S C R A 72 (1994).

18
Rule 57 PROVISIONAL REMEDIES Sec. 5

s e r v e d p e r s o n a l l y o r b y substituted service despite diligent

efforts, or the d e f e n d a n t is a r e s i d e n t of the P h i l i p p i n e s tem-
p o r a r i l y a b s e n t t h e r e f r o m , or the d e f e n d a n t is a non-resi-
d e n t of the P h i l i p p i n e s , or the action is o n e in rem or quasi
in rem. ( 5 a )

COMMENT:

1. S o u r c e of R u l e

Taken from Section 5 of the former Rule.

2. C h a n g e s in the R u l e

T h e changes are:

a. T h e p h r a s e in the f o r m e r R u l e "The officer executing

the order shall without delay" was replaced with "The sheriff en-
f o r c i n g the w r i t shall w i t h o u t d e l a y a n d w i t h all r e a s o n a b l e
diligence."

b. T h e statement in the f o r m e r R u l e "deposit with the

clerk or judge of the court from which the order issued, or gives a
counterbond executed to the applicant, in an amount sufficient to
satisfy such demand besides costs, or in an amount equal to the
value of the property which is about to be attached, to secure pay-
ment to the applicant of any judgment which he may recover in the
action" was reworded as follows: "deposit w i t h the court from
w h i c h the w r i t is issued, or gives a c o u n t e r - b o n d executed to
the a p p l i c a n t , i n a n a m o u n t e q u a l t o the b o n d fixed b y the
c o u r t in the o r d e r of attachment or to the v a l u e of the p r o p -
erty to be attached, exclusive of costs."
c. T h e principle of prior or contemporaneous service of sum-
mons were incorporated in this section as follows:

N o levy o n attachment p u r s u a n t t o the w r i t issued un-

d e r Section 2 h e r e o f shall be e n f o r c e d unless it is p r e c e d e d ,
o r c o n t e m p o r a n e o u s l y a c c o m p a n i e d , b y service o f summons,
together w i t h copies of the complaint, the application for
attachment, the applicant's affidavit a n d b o n d , a n d the or-
d e r a n d w r i t of attachment, on the defendant w i t h i n the Phil-
ippines.

19
 Sec. 5 REMEDIAL LAW Rule 57
V O L . III

3. Notes a n d C a s e s
a. Jurisdiction O v e r P e r s o n at T i m e of Implementa-
tion of W r i t
1
In Onate v. Abrogar, the Second Division of the Supreme Court
held that an exception to the established rule on the enforcement of
the writ of attachment can be made where a previous attempt to
serve the summons and the writ of attachment failed due to factors
beyond the control of either the plaintiff or the process server, provided
that such service is effected within a reasonable period thereafter,
(at page 189)
b. However, the First Division held that the subsequent ac-
quisition of jurisdiction over the person of a defendant does not
2
render valid the previous attachment of the property.

The Court en banc adopted the rule by the First Division in

3
H.B. & Zachary v. Court of Appeals, that the attachment of proper-
ties before the service of summons on the defendant is invalid even
though the court later acquires jurisdiction over the defendant. At
the very least, then the writ of attachment must be served simulta-
neously with the service of summons before the w r i t may be en-
forced. As the properties were attached by the sheriff before he had
served the summons on them, the levies must be considered void.
The Decision of February 21, 1994 was therefore reconsidered and
4
set aside.

c. T h e p r e s e n t R u l e , h o w e v e r , a d o p t e d the R u l e i n
Onate v. Abrogar, supra. W h e n it p r o v i d e d that —

"The requirement of prior or contemporaneous service of sum-

mons shall not apply where the summons could not be served per-
sonally or by substituted service despite diligent efforts, or the de-
fendant is a resident of the Philippines temporarily absent therefrom,
or the defendant is a non-resident of the Philippines, or the action is
one in rem or quasi in rem?

*230 S C R A 181(1994).
2
H . B . Zachary v. Court of Appeals, 232 S C R A 329 (1994).
3
Supra.
4
Onate v. Abrogar, 240 S C R A 659.

20
Rule 57 PROVISIONAL REMEDIES Sec. 5

Justice Feria expressed the v i e w that: T h e service of summons

after the enforcement of the levy on attachment does not cure the
irregularities that attended such enforcement. The writ of attach-
5
ment should be reserved after the services of the summons.

d. It is, however, only when summons could be served per-

sonally or by substituted service by diligent efforts, but which was
not done that the v i e w of Justice Feria applies, otherwise: "The
requirement of prior or contemporaneous service of summons shall
not apply where the summons could not be served personally or by
substituted service despite diligent efforts."

e. Principle Applies only to K n o w n Resident Defend-

ants

As pointed out in the footnote of Seivert "we are here address-

ing the situation of known defendants only. W h e r e the defendant is
a non-resident, attachment of property m a y be sought in order to
bring a res within the jurisdiction of the court, in substitution, as it
6
were of the body of the defendant. Jurisdiction over the res and the
person of the defendant is, in such case, acquired by service of sum-
7
mons by publication though that jurisdiction m a y be made effective
8
only in respect of the res attached."

f. M o r e o v e r , the R u l e d o e s not a p p l y to actions in rem

or quasi in rem, b u t o n l y to actions in personam.

g. A c o u n t e r b o n d e q u a l to the v a l u e of the p r o p e r t y is
sufficient to p r e v e n t the levy, it m u s t h o w e v e r be m a d e prior
9
to the return o t h e r w i s e the sheriff losses authority.

h. Properties w h i c h cannot be attached

10
1. Those statutorily exempt from attachment.
11
2. Title is not in the name of defendant (unless it is shown
that he has beneficial interest in property);

b
See Onate v. Abrogar, 241 S C R A 659. Feria.
6
Section 1(f), Rule 57, Revised Rule6 of Court.
Sections 16, 17 and 18, Rule 14 (id).
8
Seivert v. Court of Appeals, supra.
9
3 MORAN, p. 22,1980 Ed.
10
E.g., Article 153 of the Family Code exempts the family home from attach-
ment.
"Gotauco v. Registry of Deeds, 59 Phil. 756.

21
 Sees. 6-7 REMEDIAL LAW Rule 57
V O L . III

3. The laborer's wages shall not be subject to attachment

except for debts incurred for food, shelters, clothing and medical
12
attendance.

S E C . 6. Sheriffs return. — A f t e r e n f o r c i n g the w r i t , the

sheriff must l i k e w i s e w i t h o u t d e l a y m a k e a r e t u r n t h e r e o n
to the court f r o m w h i c h the w r i t issued, w i t h a full statement
of his p r o c e e d i n g s u n d e r the w r i t a n d a complete i n v e n t o r y
of the p r o p e r t y attached, together w i t h a n y c o u n t e r - b o n d
given b y the p a r t y a g a i n s t w h o m attachment i s issued, a n d
serve copies thereof on the a p p l i c a n t . (6a)

COMMENT:

1. S o u r c e of R u l e

Taken from Section 6 of the former Rule.

2. N o s u b s t a n t i a l c h a n g e s b u t mostly o f style

"Immediately after executing the order the officer must make a

return thereon to the clerk or judge of the court" in the former rule
was replaced with After enforcing the writ, the sheriff must likewise
without delay make a return thereon to the court.

The phrase "serve a copy of any such counterbond on the appli-

cant or his lawyer" was replaced with and serve copies thereof in-
cluding a complete inventory of the property attached on the appli-
cant.

3. Notes a n d Cases

A writ of attachment has no lifetime as distinguished from a

1
writ of execution. T h e new Rule fixes the lifetime of a w r i t of execu-
2
tion at five ( 5 ) years from the date of entry of judgment.

S E C . 7. Attachment of real and personal property; re-

cording thereof. — R e a l a n d p e r s o n a l p r o p e r t y shall be at-

12
Article 1208, N . C . C .

'Roque v. C A , 93 S C R A 540.
2
Section 6, Rule 39.

22
Rule 57 PROVISIONAL REMEDIES Sec. 7

t a c h e d b y the sheriff e x e c u t i n g the w r i t i n the f o l l o w i n g m a n -

ner:

( a ) R e a l p r o p e r t y , o r g r o w i n g c r o p s thereon, o r a n y
interest t h e r e i n , s t a n d i n g u p o n the r e c o r d of the r e g i s t r y of
d e e d s o f the p r o v i n c e i n the n a m e o f the p a r t y a g a i n s t w h o m
a t t a c h m e n t i s i s s u e d , o r n o t a p p e a r i n g a t all u p o n s u c h
r e c o r d s , o r b e l o n g i n g t o the p a r t y a g a i n s t w h o m attachment
i s i s s u e d a n d h e l d b y a n y o t h e r p e r s o n , o r s t a n d i n g o n the
r e c o r d s o f the r e g i s t r y o f d e e d s i n the n a m e o f a n y other
p e r s o n , by filing w i t h the r e g i s t r y of d e e d s a c o p y of the
o r d e r , t o g e t h e r w i t h a d e s c r i p t i o n of the p r o p e r t y a n d a no-
tice that i t i s a t t a c h e d , o r that s u c h r e a l p r o p e r t y a n d a n y
interest t h e r e i n h e l d b y o r s t a n d i n g i n the n a m e o f such
o t h e r p e r s o n a r e a t t a c h e d , a n d b y l e a v i n g a c o p y o f such
o r d e r , d e s c r i p t i o n , a n d notice w i t h the o c c u p a n t o f the p r o p -
erty, i f any, o r w i t h s u c h o t h e r p e r s o n o r his a g e n t i f f o u n d
w i t h i n the p r o v i n c e . W h e r e the p r o p e r t y h a s b e e n b r o u g h t
u n d e r the o p e r a t i o n o f e i t h e r the L a n d R e g i s t r a t i o n A c t o r
the P r o p e r t y R e g i s t r a t i o n D e c r e e , the notice shall contain a
r e f e r e n c e to the n u m b e r of the certificate of title, the v o l u m e
a n d p a g e i n the r e g i s t r a t i o n b o o k w h e r e the certificate i s
r e g i s t e r e d , a n d the r e g i s t e r e d o w n e r o r o w n e r s thereof.

T h e r e g i s t r a r o f d e e d s m u s t i n d e x attachments f i l e d un-
d e r this section in the n a m e s of the a p p l i c a n t , the a d v e r s e
party, o r the p e r s o n b y w h o m the p r o p e r t y i s h e l d o r i n w h o s e
n a m e it stands in the r e c o r d s . If the attachment is not claimed
o n the entire a r e a o f the l a n d c o v e r e d b y the certificate o f
title, a d e s c r i p t i o n sufficiently a c c u r a t e for the identifica-
tion o f the l a n d o r interest t o b e affected shall b e i n c l u d e d i n
the r e g i s t r a t i o n of s u c h attachment;

( b ) P e r s o n a l p r o p e r t y c a p a b l e o f m a n u a l delivery, b y
t a k i n g a n d safely k e e p i n g it in his custody, after issuing the
c o r r e s p o n d i n g r e c e i p t therefor;
(c) Stocks or s h a r e s , or an interest in stocks or shares,
o f a n y c o r p o r a t i o n o r company, b y l e a v i n g w i t h the presi-
dent or m a n a g i n g a g e n t thereof, a copy of the w r i t , a n d a
notice stating that the stock or interest of the p a r t y against
w h o m the attachment is issued is attached in p u r s u a n c e of
such w r i t ;

23
 Sec. 7 REMEDIAL LAW Rule 57
V O L . III

( d ) D e b t s a n d credits, i n c l u d i n g b a n k deposits, f i n a n -
cial interest, royalties, commissions a n d other p e r s o n a l p r o p -
erty not c a p a b l e of m a n u a l delivery* by l e a v i n g w i t h the per-
son o w i n g such debts, o r h a v i n g i n his possession o r u n d e r
his control, such credits or other p e r s o n a l property, or w i t h
his agent, a copy of the w r i t , a n d notice that the debts o w i n g
b y h i m t o the p a r t y a g a i n s t w h o m attachment i s issued, a n d
the credits a n d other p e r s o n a l p r o p e r t y i n his possession, o r
u n d e r his control, b e l o n g i n g t o s a i d party, a r e a t t a c h e d i n
p u r s u a n c e of such w r i t ;
( e ) T h e interest o f the p a r t y a g a i n s t w h o m a t t a c h m e n t
is issued in p r o p e r t y b e l o n g i n g to the estate of the decedent,
w h e t h e r a s heir, legatee, o r devisee, b y s e r v i n g the e x e c u t o r
o r a d m i n i s t r a t o r o r o t h e r p e r s o n a l r e p r e s e n t a t i v e o f the
decedent w i t h a c o p y of the w r i t a n d notice that s a i d interest
is attached. A c o p y of s a i d w r i t of a t t a c h m e n t a n d of s a i d
notice shall also be filed in the office of the c l e r k of the c o u r t
i n w h i c h s a i d estate i s b e i n g settled a n d s e r v e d u p o n the
heir, legatee o r d e v i s e e c o n c e r n e d .

If the p r o p e r t y s o u g h t to be a t t a c h e d is in custodia legis,

a copy o f the w r i t o f a t t a c h m e n t shall b e f i l e d w i t h the p r o p e r
c o u r t o r q u a s i - j u d i c i a l agency, a n d notice o f the a t t a c h m e n t
s e r v e d u p o n the c u s t o d i a n o f s u c h p r o p e r t y . ( 7 a )

COMMENT:

1. S o u r c e of R u l e

Taken from Section 7 of the former Rule.

2. The changes are:

a. T h e word "properties" in the first sentence of the former

Rule was replaced with "Real and personal property."

b. After the phrase in subpar. ( a ) not appearing at all upon

such records, the present Rule added or belonging to the party against
whom attachment is issued and held by any other person, to include
the situation in subsection ( b ) of the former Rule and deleted totally
the said subsection from the present Rule.

c. T h e last t w o sentences of subsection ( a ) the former Rule

which reads "Where the property has been brought under the opera-

24
Rule 57 PROVISIONAL REMEDIES Sec. 7

tion of the L a n d Registration A c t , the notice shall contain a refer-

ence to the number of the certificate of title and the volume and page
in the registration book where the certificate is registered. The reg-
istrar must index attachments filed under this paragraph in the
names both of the applicant and the adverse party" were reworded
as follows: W h e r e the property has been brought under the opera-
tion of either the L a n d Registration A c t or the Property Registration
Decree, the notice shall contain a reference to the number of the cer-
tificate of title, the volume and page in the registration book where
the certificate is registered, and the registered owner or owners
thereof.

d. Subsection ( d ) added "bank deposits, financial interest,

royalties, commissions" in the leviable properties.

e. Instead of a copy of the order to be furnished the repre-

sentative of the deceased as provided for in subsection (f) of the
former Rule, the present Rule in subsection (c) changed it to a copy
of the writ.

f. Similarly, the order of attachment was replaced with "a

copy of the writ of attachment" and included a "quasi-judicial agency"
among those to be furnished therewith where property in custodia
legis was attached.

g. Justice Feria points out that Paragraphs ( a ) and ( b ) of the

old rule regarding real property or growing crops thereon registered
in the name of the adverse party or in the name of any other persona
have been combined in a paragraph ( a ) of the new rule, with an
added provision on partial attachment of land or interest therein.

h. Bank deposits, financial interest, royalties and commis-

sions are added to debts and credits and other personal property not
capable of manual delivery. (Feria)

3. Notes a n d Cases
a. A t t a c h m e n t of R e a l P r o p e r t y
"Growing crops" — such crops as are still growing on the land
1
and which form part thereof.

1
Article 415(2), Civil Code.

25
Sec. 7 REMEDIAL LAW Rule 57
V O L . III

The requirement that the notice of levy should contain a refer-

ence to the number of the certificate of title and the volume and 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 properly
informed of the particular land or property that is under the custody
of the court. This can only be accompanied by making a reference to
the certificate of title covering the property. T h e situation differs if
the land is unregistered, in which case it is enough that the notice be
2
registered under A c t 3344.
A notice of levy as regards a registered land which contains no
reference to the number of its certificate of title and the volume and
page in the registry book where the title is registered is legally
ineffective and as such does not have the effect of binding the prop-
erty for purposes of execution. Consequently, a sale carried out by
3
virtue of said levy is invalid and of no legal effect.

A judgment debtor is entitled to notice of l e v y if he is the

occupant of the land. W h a t is required is that the judgment debtor
4
be notified of the auction sale before the actual date of the sale.

In the levy of real property, Section 7, Rule 57 of the Rules of

Court mandates that a notice of the l e v y must be made w i t h the
occupant of the property, if there be any; failure to do so, is fatal to
5
the levy. "It should be noted said the Supreme Court in Obaña v.
6
Court of Appeals, 'that Section 7 of Rule 57 requires that in attach-
ing real property a copy of the order, description, and notice must be
served on the occupant' x x x " (at page 824).

Preference of Preliminary Attachment to Lis Pendens

Preference is given to a duly-registered attachment over a sub-

sequent notice of lis pendens, even if the beneficiary of the notice
acquired the subject property before the registration of the attach-
ment. Under the torrens system, the auction sale of an attached
7
realty retroacts to the date the l e v y was registered.

2
Siari Valley Estates, Inc. v. Lucasan, et al., 109 Phil. 294.
3
Supra.
'Ravanera v. Imperial, 93 S C R A 589.
Philippine Surety and Insurance Co., Inc. v. Zabal, 21 S C R A 682 (1967).
6
172 S C R A 866 (1989).
D u v. Stronghold Insurance Co., Inc., 433 S C R A 43.

26
Rule 57 PROVISIONAL REMEDIES Sec. 7

b. H o w levy o n personal property m a d e

l b constitute a valid l e v y the officer must take actual posses-

sion and actual custody of the property attached as far as practica-
ble under the circumstances. Such property must be in his substan-
tial presence and possession — adverse to and exclusive of the at-
8
tachment debtor.

Thus, respondent's act of leaving the passenger j e e p in the

possession and control of the creditor did not satisfy the foregoing
requirements of the Rules; neither did it conform to the plainly
worded R T C order. T h e note in the receipt that imposed on Ignacio
the obligation to produce the same whenever required by the court
was no compliance either, because it did not establish that the prop-
erty w a s in respondent sheriff's substantial presence and posses-
sion. Respondent fell short of his obligation to take and safely keep
the attached property "in his capacity." He cannot feign ignorance of
this duty as he himself correctly cited an early decision of this Court
9
explaining a sheriff's duty in attachment, as follows:

"x x x A verbal declaration of seizure or service of a w r i t of

attachment is not sufficient. T h e r e must be an actual taking of
possession and placing of the attached property under the control of
10
the officer or someone representing h i m .

To constitute a v a l i d l e v y of an attachment, the officer levying

it must take actual possession of the property attached as far as x x
x practicable (under the circumstances). He must put himself in ( a )
position to, and must assert and, in fact, enforce a dominion over the
property adverse to and exclusive of the attachment debtor, and
11
such property must be in his substantial presence and possession.
Of course, this does not mean that the attaching officer may not,
under an arrangement satisfactory to himself put anyone in posses-
sion of the property for the purpose of guarding it, but he can not in
this w a y relieve himself from liability to the parties interested in
said attachment."

W a l k e r v. McMicking, 14 Phil. 668,673 (1909); See Villanueva-Fabella v. Judge

Ralphee, 419 S C R A 440 (2004).
W a l k e r v. McMicking, 14 Phil. 668, 673, December 23,1909, ibid.
10
Hollister v. Goodale, 8 Conn. 332, 21 A m . D e c , 674; Jones v. Howard, 99 Ga.,
451, 59 A m . St. Rep. 231.
"Corniff v. Cook, 95 Ga., 61, 51 A m . St. Rep. 55, 61.

27
 Sec. 7 REMEDIAL LAW Rule 57
V O L . III

Respondent Sheriff's claim that the regional trial court did not
have any storage facility to house said property is no justification.
12
He could have deposited it in a bonded warehouse.
Contrary to respondent sheriffs contention, compelling the at-
taching creditor to release the property in question was not in order,
because the proper remedy provided by the Rules of Court was for
the party whose property had been attached to apply for the dis-
13
charge of the attachment by filing a counterbond. T h e effect of this
remedy is the delivery of possession of the attached property to the
party giving the counterbond. T h e attaching creditor was not au-
thorized to have possession of the attached property, contrary to the
insistence of respondent sheriff.

L e a v i n g the attached property in the possession of the attach-

ing creditor makes a farce of the attachment. This is not compliance
with the issuing court's order. W h e n a w r i t 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 ex-
14
ecute it according to its mandate. He is supposed to execute the
15
order of the court strictly to the letter. If he fails to comply, he is
16
liable to the person in whose favor the process or w r i t runs.

c. M e r e g u a r d i n g o f the p e r s o n a l p r o p e r t y i s a l l o w e d
b u t the sheriff is l i a b l e f o r the loss of the p r o p e r t y

Constructive possession should be held sufficient where actual

possession is not feasible, particularly w h e n it w a s followed up by
the actual seizure of the property as soon as that could possibly be
17
effected.

d. In case of a vessel, l e v y is c o n s t r u c t i v e l y m a d e by
1 8
the registration o f the s a m e w i t h the P h i l i p p i n e C o a s t G u a r d

12
Sebastian v. Valino, 224 S C R A 256, 259, July 5, 1993.
13
Section 12, Rule 57 of the Rules of Court.
14
Villareal v. Rarama, 247 S C R A 493,501, August 23,1995; Balantes v. Ocampo
III, 242 S C R A 327, 331, March 14, 1995.
15
Eduarte v. Ramos, 238 S C R A 36, 40, November 9, 1994, and Wenceslao v.
Madrazo, supra, p. 704.
16
Elipe v. Fabre, 241 S C R A 249,253, February 13,1995; N B I v. Tuliao, A . M . N o .
P-96-1184, March 24,1997.
17
Roque v. Court of Appeals, 93 S C R A 540.
18
Roque v. Court of Appeals, supra.

28
Rule 57 PROVISIONAL REMEDIES Sec. 7

e. Attachment of debts and credits, including bank deposits,

financial interest, royalties, commissions and other personal prop-
erty not capable of manual delivery, by leaving with the person
owing such debts, or having in his possession or under his control,
such credits or other personal property, or with his agent, a copy of
the writ, and notice that the debts owing by him to the party against
w h o m attachment is issued, and the credits and other personal prop-
erty in his possession, or under his control, belonging to said party,
are attached in pursuance of such writ.

In a case, C E I C vigorously argues that the consortium's writ of

attachment over the disputed shares of Chemphil is null and void,
insisting as it does, that the notice of garnishment was not validly
served on the designated officers.

To support its contention, C E I C presented the sheriff's notice

of garnishment which showed on its face that said notice was re-
ceived by one T h e l l y Ruiz who w a s neither the president nor manag-
ing agent of Chemphil. It makes no difference, C E I C further avers,
that T h e l l y Ruiz was the secretary of the President of Chemphil, for
under the above-quoted provision she is not among the officers so
authorized or designated to be served with the notice of garnishment.

T h e Court refused to subscribe to such a narrow v i e w of the

rule on proper service of writs of attachment.

A secretary's major function is to assist his or her superior. H e /

she is in effect an extension of the latter. Obviously, as such, one of
her duties is to receive letters and notices for and in behalf of her
superior, as in the case at bench. T h e notice of garnishment was
addressed to and was actually received by Chemphil's president
through his secretary who formally received it for him. Thus, in one
19
case, we ruled that the secretary of the president may be consid-
ered an "agent" of the corporation and held that service of summons
on him is binding on the corporation.
Moreover, the service and receipt of the notice of garnishment
on 19 July 1985 was duly acknowledged and confirmed by the secre-
tary of Chemphil, Rolando N a v a r r o and his successor Avelino Cruz

19
Summit Trading & Dev. Corp. v. Avendano, 135 S C R A 397 (1985).

29
 Sec. 8 REMEDIAL LAW Rule 57
V O L . III

20
through their respective certifications dated 15 August 1989 and
21
21 August 1989.
The Court ruled that there was substantial compliance with
22
Sec. 7(d), Rule 57 of the Rules of Court.

S E C . 8. Effect of attachment of debts, credits and all other

similar personal property. — A l l p e r s o n s h a v i n g in their pos-
session o r u n d e r their control a n y credits o r o t h e r s i m i l a r
personal p r o p e r t y b e l o n g i n g t o the p a r t y a g a i n s t w h o m at-
tachment is issued, or o w i n g a n y debts to h i m , at the time of
service u p o n them o f the c o p y o f the w r i t o f attachment a n d
notice a s p r o v i d e d i n the last p r e c e d i n g section, shall b e
liable to the a p p l i c a n t for the a m o u n t of s u c h credits, d e b t s
or other similar p e r s o n a l p r o p e r t y , until the a t t a c h m e n t is
d i s c h a r g e d , o r a n y j u d g m e n t r e c o v e r e d b y h i m i s satisfied,
unless such p r o p e r t y is d e l i v e r e d or t r a n s f e r r e d , or such debts
a r e p a i d , to the clerk, sheriff, or o t h e r p r o p e r officer of the
court issuing the attachment. (8a)

COMMENT:
1. S o u r c e of R u l e

Taken from Section 8 of the former Rule.

2. N o c h a n g e except "copy o f the o r d e r o f attachment"

w a s c h a n g e d to "copy of the w r i t of attachment"
3. Notes a n d Cases

(a) Garnishment is a specie of attachment by means of which

plaintiff seeks to subject to his claim property of the defendant in
the hands of a stranger to the litigation or money owed by such
1
stranger to the defendant. Such stranger is called the garnishee.

Obligation of Garnishee — By means of the citation the stranger

becomes a forced intervenor required to pay his debt not to his

20
A n n e x 8, Rollo of G.R. Nos. 112438-39, pp. 447-449.
21
A n n e x 9, Id. at 450.
22
Chemphil Export and Import Corp. v. C A , 251 S C R A 286.

Engineering Construction v. N P C , 163 S C R A 9; Rizal Banking Corporation v.

Judge Castro, 168 S C R A 49 (1988).

30
Rule 57 PROVISIONAL REMEDIES Sec. 8

former creditor, but to the new creditor, who is creditor in the main
2 3
litigation. T h e garnishee has no choice but to obey the garnishment.

( b ) Concept — Garnishment is a case of involuntary novation

4
by the substitution of one creditor for another.

Garnishment as a remedy is intended to secure the payment of

a judgment when a well-founded belief exist that the erring party
will abscond or deliberately render the execution of the judgment
nugatory. T h e rule on attachment also apply to garnishment pro-
5
ceedings.

(c) Garnishee's liability for debts and credits

A garnishee after having been judicially compelled to pay the

amount of the judgment represented by funds in its possession be-
longing to the judgment debtor should be released from all responsi-
6
bilities over such amount after delivery thereof to the sheriff. The
1
property attached is brought in custodia legis.

( d ) W h e n a person has funds in his possession belonging to a

debtor, and said funds are attached by a creditor of the latter, said
person is relieved from all responsibility to said creditor if he is
8
judicially compelled to deliver said funds to the aforesaid debtor.

( e ) W h e r e attached properties belonging to the principal

debtor are taken out of the hands of a person by legal process after
he had been notified of the order of attachment, said person cannot
be made to answer for the properties in a proceeding to carry out
9
said attachment.
(f) The remedy of a judgment creditor against the garnishee
is to either enforce his claim in the same case or in a separate
10
action.

^ a y a b a s Land Co. v. Sharruf, 41 Phil. 382.

3
Rizal Commercial Banking Corporation v. Castro, supra.
'Tayabas L a n d Co. v. Sharruf, supra.
^ h e Manila Remnant Co. v. Court of Appeals, 231 S C R A 281, March 16,1994.
Engineering Construction Incorporated v. National Power Corporation, G.R.
N o . 34589, June 29,1988,163 S C R A 9.
7
Rizal Banking Corp. v. Judge de Castro, supra.
8
National Bank v. Olutanga, 54 Phil. 346.
Ibid.
10
Tec. Bi and Co. v. Chartered Bank of India, 41 Phil. 596.

31
 Sec. 8 REMEDIAL LAW Rule 57
V O L . III

( g ) The rule is well-settled that 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
11
nothing can destroy but its dissolution.
( h ) Property levied and attached pursuant to a writ of attach-
ment annotated in the books of the Register of Deeds is in custodia
legis. Consequently a writ of possession issued by another court in
favor of a third party, such as a purchaser in foreclosure under A c t
3135 is null and void because it interferes with the jurisdiction of a
12
coordinate and co-equal court.

( i ) An attaching creditor acquires by operation of law the

13
right of redemption of foreclosed properties.

( j ) Continuity of Attachment
1. An attachment lien continues until the debt is paid, or
sale is had under execution issued on the judgment or until judg-
ment is satisfied, or the attachment discharged or vacated in the
same manner provided by law.

It has been held that the appointment of a rehabilitation re-

ceiver who took control and custody of BF has not necessarily se-
cured the claims of Roa and Mendoza. In the event that the receiver-
ship is terminated with such claims not having been satisfied, the
creditors may also find themselves without security therefor in the
civil action because of the dissolution of the attachment. This should
not be permitted. H a v i n g previously obtained the issuance of the
writ in good faith, they should not be deprived of its protection if the
14
rehabilitation plan does not succeed and the civil action is resumed.

2. Attachment is in the nature of a proceeding in rem. It is

against the particular property. T h e attaching creditor thereby ac-
quires specific lien upon the attached property which ripens into a
judgment against the res when the order of sale is made. Such a

n
C h u a P u a Hermanos v. Register of Deeds of Batangas, 50 Phil. 670; Govern-
ment, et al. v. Mercado, 67 Phil. 409; Consolidated B a n k and Trust Corporation v.
Intermediate Appellate Court, 150 S C R A 591, 598 (1987); Chemphil C E I C v. C A , G.R.
Nos. 112438-39, 251 S C R A 286, December 12, 1995.
"Consolidated Bank and Trust Corp. v. I A C , supra.
"Ibid.
U
B F Homes, Inc. v. Court of Appeals, 190 S C R A 262 (1990).

32
Rule 57 PROVISIONAL REMEDIES Sec. 8

proceeding is in effect a finding that the property attached is an in-

debted thing and a virtual condemnation of it to pay the owner's
debt. T h e law does not provide the length of time an attachment lien
shall continue after the rendition of judgment, and it must therefore
necessarily continue until the debt is paid, or sale is had under ex-
ecution issued on the judgment or until judgment is satisfied, or the
15
attachment discharged or vacated in some manner provided by law.

3. The lien obtained by attachment stands upon as high eq-

uitable grounds as a mortgage lien

T h e lien or security obtained by an attachment even before

judgment, is a fixed and positive security, a specific lien, and, al-
though whether it w i l l ever be made available to the creditor de-
pends on contingencies, its existence is in no w a y contingent, condi-
tioned or inchoate. It is a vested interest, an actual and substantial
security, affording specific security for satisfaction of the debt put in
suit, which constitutes a cloud on the legal title, and is as specific as
if created by virtue of a voluntary act of the debtor and stands upon
16
as high equitable grounds as a m o r t g a g e .

4. Compromise Agreement Does Not Dissolve Writ of Prelimi-

nary Attachment

E v e n in cases where there is a compromise agreement, the rule

established in the aforequoted cases still applies, even more so since
the terms of the agreement have to be complied with in full by the
parties thereto. T h e parties to the compromise agreement should
not be deprived of the protection provided by an attachment lien
especially in an instance where one reneges on his obligations under
17
the agreement.
Moreover, wrote the court, a violation of the terms and condi-
tions of a compromise agreement entitles the aggrieved party to a

16
Government of the Philippine Islands v. Mercado, supra. See also Valdevieso
v. Damalerio, G.R. N o . 133303, February 17, 2005, 451 S C R A 664, 670, holding that
levy on attachment duly registered takes preference over a prior unregistered sale.
"CORPUS JURIS SECUNDUM, 433, and authorities therein cited. B F Homes, Inc. v.
C A , 190 S C R A 262 (1990).
17
Chemphil Import & Export Corporation v. Court of Appeals, 251 S C R A 257,
288, supra. See also Lavides v. Pre, G.R. N o . 127830, Oct. 21, 2001, citing Santos v.
Aquino, Jr., G.R. Nos. 86181-82, 205 S C R A 127, 133 (1992) holding then that levy on
attachment cannot be destroyed except the very dissolution of the attachment or levy
itself.

33
 Sec. 8 REMEDIAL LAW Rule 57
V O L . III

18
writ of execution. The non-fulfillment of the terms and conditions
of a compromise agreement approved by the Court justifies execu-
tion thereof and the issuance of the writ for said purpose is the
Court's ministerial duty enforceable by mandamus. In Abenojar &
19
Tana v. CA, et al. A judicial compromise may be enforced by a w r i t
of execution. If a party fails or refuses to abide by the compromise,
the other party may enforce the compromise or regard it as re-
20
scinded and insist upon his original demand.
The Court concluded if we were to rule otherwise, we would in
effect create a back door by which a debtor can easily escape his
creditors. Consequently, we would be faced w i t h an anomalous situ-
ation where a debtor, in order to buy time to dispose of his proper-
ties, would enter into a compromise agreement he has no intention
of honoring in the first place. T h e purpose of the provisional remedy
of attachment would thus be lost. It would become, in analogy, a
21
declared and toothless tiger.
Property under sequestration is under custodia legis and cannot
be attached.

22
Receivership a n d attachment defined.

Special adjective tools or devices w e r e provided by the Revolu-

a
tionary Government for the recovery of that ill-gotten wealth." These
took the form of provisional remedies akin to preliminary attach-
ment (Rule 57), w r i t of seizure of personality (Rule 60) and receiver-
ship (Rule 59). T h e y were: ( a ) sequestration and ( b ) freeze orders, as
regards "unearthed instance of 'ill-gotten wealth"'; and ( c ) provi-
sional takeover, as regards "business enterprises and properties taken
over by the government of the Marcos Administration or by entities
or persons close to former President Marcos."

Executive O r d e r s R e S e q u e s t r a t i o n , F r e e z i n g a n d T a k e o -
ver.

These special remedies w e r e prescribed and defined in Execu-

tive Orders Numbered 1 and 2, promulgated by President Corazon

18
Chemphil Export & Import Corporation v. Court of Appeals, supra.
19
G . R . N o . 104133,18 April 1995.
^Canonizado v. Benitez, 127 S C R A 610 (1984).
21
Chemphil Export & Import Corp. v. C A , supra.
^Republic of the Philippines v. Saludares, 327 S C R A 449, March 9, 2000.

34
Rule 57 PROVISIONAL REMEDIES Sec. 8

C. A q u i n o in March, 1986. T h e i r validity and propriety were sus-

tained by the Court on M a y 27,1987, against claims that they were
unconstitutional as being bills of attainder, or as violative of the
right against self-incrimination and the guaranty against unreason-
able searches and seizures. In the same case, the Court also set the
parameters for and restrictions on the proper exercise of the rem-
edies.
23
In BASECO v. PCGG, sequestration is defined as the process,
which m a y be employed as a conservatory w r i t whenever the right of
the property is involved, to preserve, pending litigation, specific prop-
erty subject to conflicting claims of ownership or hens and privi-
leges.

T h e Court also noted the relationship between attachment and

receivership, on one hand, and sequestration, freeze order and pro-
visional takeover on the other. T h e latter are ancillary remedies in
prosecuting the ill-gotten wealth of the previous Marcos regime. The
Court observed that sequestration, freezing and provisional takeo-
v e r are akin to the provisional remedy of preliminary attachment or
receivership.

By an order of attachment, a sheriff seizes property of a de-

fendant in a civil suit so that it m a y stand as security for the satis-
faction of any judgment that m a y be obtained, and not disposed of,
or dissipated, or lost intentionally, or otherwise, pending the action.
W h e n a w r i t of attachment has been levied on real property or any
interest therein belonging to the judgment debtor, the levy creates a
lien which nothing can destroy but its dissolution. This well-settled
rule is likewise applicable to a w r i t of sequestration.

W h e r e the disputed properties w e r e already under custodia

legis by virtue of a valid w r i t of sequestration issued by the P C G G
when respondent Judge issued the assailed writ of attachment in
favor of private respondent, said writ of the P C G G could not be
interfered with by the R T C because the P C G G is a coordinate and
co-equal body. T h e P C G G had acquired by operation of law the right
of redemption over the property until after the final determination
24
of the case or until its dissolution.

M
1 5 0 S C R A 181,182 (1987).
'"Republic of the Philippines v. Saludares, March 9, 2000, 327 S C R A 449.

35
 Sees. 9-10 REMEDIAL LAW Rule 57
V O L . III

S E C 9. Effect of attachment of interest in property be-

longing to the estate of a decedent. — T h e attachment of the
interest of an heir, legatee, or devisee in the p r o p e r t y belong-
ing to the estate of a decedent shall not i m p a i r the p o w e r s of
the executor, administrator, or other p e r s o n a l r e p r e s e n t a -
tive of the decedent o v e r such p r o p e r t y f o r the p u r p o s e of
administration. S u c h p e r s o n a l representative, h o w e v e r , shall
r e p o r t the attachment to the c o u r t w h e n a n y petition f o r
distribution i s f i l e d , a n d i n the o r d e r m a d e u p o n such peti-
tion, distribution m a y b e a w a r d e d t o such heir, legatee, o r
devisee, b u t the p r o p e r t y a t t a c h e d shall b e o r d e r e d deliv-
e r e d to the sheriff m a k i n g the levy, subject to the c l a i m of
such heir, legatee, o r devisee, o r a n y p e r s o n c l a i m i n g u n d e r
him. (9a)

COMMENT:
1. S o u r c e of R u l e
Taken from Section 9 of the former Rule.
2. N o c h a n g e except the w o r d "officer" w a s c h a n g e d
to "sheriff."

S E C . 10. Examination of party whose property is attached

and persons indebted to him or controlling his property; de-
livery of property to sheriff. — A n y p e r s o n o w i n g d e b t s to the
p a r t y w h o s e p r o p e r t y i s a t t a c h e d o r h a v i n g i n his possession
o r u n d e r his control a n y c r e d i t o r o t h e r p e r s o n a l p r o p e r t y
b e l o n g i n g t o such party, m a y b e r e q u i r e d t o a t t e n d b e f o r e
the court in w h i c h the action is p e n d i n g , or b e f o r e a commis-
sioner a p p o i n t e d b y the court, a n d b e e x a m i n e d o n o a t h r e -
specting the s a m e . T h e p a r t y w h o s e p r o p e r t y i s a t t a c h e d
m a y also b e r e q u i r e d t o a t t e n d f o r the p u r p o s e o f g i v i n g
information r e s p e c t i n g his p r o p e r t y , a n d m a y b e e x a m i n e d
o n oath. T h e c o u r t may, after s u c h e x a m i n a t i o n , o r d e r p e r -
sonal p r o p e r t y c a p a b l e o f m a n u a l d e l i v e r y b e l o n g i n g t o h i m ,
in the possession of the p e r s o n so r e q u i r e d to a t t e n d b e f o r e
the court, to be d e l i v e r e d to the c l e r k of the c o u r t or sheriff
o n such terms a s m a y b e j u s t , h a v i n g r e f e r e n c e t o a n y lien
thereon o r claim a g a i n s t the s a m e , t o a w a i t the j u d g m e n t i n
the action. (10a)

36
Rule 57 PROVISIONAL REMEDIES Sec. 11

COMMENT:

1. S o u r c e of R u l e

Taken from Section 10 of the former Rule.

T h e only change is to delete "other proper officer."

S E C . 11. When attached property may be sold after levy

on attachment and before entry of judgment. — W h e n e v e r it
shall b e m a d e t o a p p e a r t o the c o u r t i n w h i c h the action i s
p e n d i n g , u p o n h e a r i n g w i t h notice t o b o t h parties, that the
p r o p e r t y a t t a c h e d is p e r i s h a b l e , or that the interests of all
the p a r t i e s t o the action w i l l b e s u b s e r v e d b y the sale thereof,
the c o u r t m a y o r d e r s u c h p r o p e r t y t o b e s o l d a t p u b l i c auc-
tion i n s u c h m a n n e r a s h e m a y direct, a n d the p r o c e e d s o f
s u c h sale t o b e d e p o s i t e d i n c o u r t t o a b i d e the j u d g m e n t i n
the action. (11a)

COMMENT:

1. S o u r c e of R u l e

Taken from Section 11 of the former Rule.

2. C h a n g e i n the R u l e

T h e phrase "if practicable" was deleted and the word "judge"

was changed to "court."
T h e rule clarifies that perishable and other property which have
been attached may be ordered sold before entry of judgment and the
proceeds deposited. After entry of judgment, the proceeds shall be
1
paid to the judgment obligee or returned to the judgment obligor.

3. Notes and Cases

"Perishable" ordinarily means subject to a speedy and natural
decay (e.g., fruits, vegetables, dairy products, meat). But if the time
contemplated is necessarily long, the term may include material
2
depreciation in value.

^ecs. 15 and 16. Infra. Feria.

SLACK'S LAW DICTIONARY, 5th Ed., p. 1025.

37
 Sec. 12 REMEDIAL LAW Rule 57
V O L . III

S E C . 12. Discharge of attachment upon giving counter-

bond. — After a w r i t of attachment h a s b e e n enforced, the
party w h o s e p r o p e r t y has b e e n attached, o r the p e r s o n a p -
p e a r i n g on his behalf, m a y m o v e f o r the d i s c h a r g e of the
attachment w h o l l y o r i n p a r t o n the security given. T h e c o u r t
shall, after d u e notice a n d h e a r i n g , o r d e r the d i s c h a r g e of
the attachment if the m o v a n t m a k e s a cash deposit, or files a
counter-bond executed to the a t t a c h i n g p a r t y w i t h the clerk
of the court w h e r e the application is m a d e , in an a m o u n t e q u a l
to that fixed by the court in the o r d e r of attachment, exclusive
of costs. B u t if the attachment is s o u g h t to be d i s c h a r g e d w i t h
respect to a p a r t i c u l a r p r o p e r t y , the c o u n t e r - b o n d shall be
equal to the v a l u e of that p r o p e r t y as d e t e r m i n e d by the court.
I n either case, the c a s h d e p o s i t o r the c o u n t e r - b o n d shall
secure the p a y m e n t o f a n y j u d g m e n t that the a t t a c h i n g p a r t y
m a y r e c o v e r i n the a c t i o n . A n o t i c e o f t h e d e p o s i t s h a l l
forthwith be s e r v e d on the attaching party. U p o n the
discharge of an attachment in a c c o r d a n c e w i t h the p r o v i s i o n s
of this section, the p r o p e r t y a t t a c h e d , or the p r o c e e d s of a n y
sale thereof, shall be d e l i v e r e d to the p a r t y m a k i n g the deposit
o r g i v i n g the c o u n t e r - b o n d , o r t o the p e r s o n a p p e a r i n g o n his
behalf, the deposit or counter-bond a f o r e s a i d s t a n d i n g in place
of the p r o p e r t y so r e l e a s e d . S h o u l d s u c h c o u n t e r - b o n d f o r a n y
r e a s o n b e f o u n d t o b e , o r b e c o m e insufficient, a n d the p a r t y
f u r n i s h i n g the s a m e fail t o f i l e a n a d d i t i o n a l c o u n t e r - b o n d ,
the attaching p a r t y m a y a p p l y f o r a n e w o r d e r o f attachment.
(12a)

COMMENT:

1. S o u r c e of R u l e

Taken from Section 12 of the former Rule.

2. The changes are:

a. U n d e r the f o r m e r R u l e : At any time after an order of

attachment has been granted, the party whose property has been
attached, or the person appearing on his behalf, may, upon reason-
able notice to the applicant, apply to the judge who granted the
order, or to the judge of the court in which the action is pending, was
replaced with "After a w r i t of a t t a c h m e n t h a s b e e n e n f o r c e d ,

38
Rule 57 PROVISIONAL REMEDIES Sec. 12

the p a r t y w h o s e p r o p e r t y h a s b e e n a t t a c h e d , o r the p e r s o n
a p p e a r i n g o n his behalf, m a y m o v e f o r the d i s c h a r g e o f the
a t t a c h m e n t w h o l l y o r i n p a r t o n the security given."

b. T h e judge shall, after hearing, order the discharge of the

attachment if a cash deposit is made, or a counter-bond executed to
the attaching creditor is filed, on behalf of the adverse party, with
the clerk or judge of the court where the application is made, in an
amount equal to the value of the property attached as determined by
the judge, to secure the payment of any judgment that the attaching
creditor m a y recover in the action was replaced with T h e court
shall, after d u e notice a n d h e a r i n g , o r d e r the d i s c h a r g e o f
the a t t a c h m e n t if the m o v a n t m a k e s a c a s h deposit, or files a
c o u n t e r - b o n d e x e c u t e d t o the a t t a c h i n g p a r t y w i t h the clerk
o f the c o u r t w h e r e the a p p l i c a t i o n i s m a d e , i n a n a m o u n t
e q u a l t o that f i x e d b y the c o u r t i n the o r d e r o f attachment,
e x c l u s i v e of costs.

c. T h e R u l e on p a r t i a l d i s c h a r g e , under the original pro-

posal the amount of the counterbond should be equal to that fixed by
the court in the order of attachment, not to an amount equal to the
value of the property attached as provided for in the former rule.
T h e Committee recommended the removal of the proviso on the
counterbond equal to the value of the property attached on the ground
that where the value of the property is less than the amount of the
judgment sought to be recovered, it would be unfair to the attaching
creditor to discharge the attachment for a bond of lesser amount.
T h e Supreme Court, however restored the provision with the limita-
tion that, "if the attachment is sought to be d i s c h a r g e d w i t h re-
spect to a p a r t i c u l a r p r o p e r t y , the counterbond shall be equal to
the value of that property as determined by the court. In other
words, the discharge would not be of the writ in its entirety, but only
partially with respect to the particular property sought to be dis-
charged where the amount thereof would be less than the amount of
1
the judgment sought to be recovered in their action.

d. If a cash deposit is made, "A notice of the deposit shall

f o r t h w i t h b e s e r v e d o n the attaching party."

i n s u l a r Savings Bank v. Court of Appeals, G.R. N o . 123638, June 15, 2005,

holding that the counter bond should as much as possible correspond in value to or
approximately match the attaching creditor's principal claim (citing Asuncion v. Court
of Appeals, 166 S C R A 55 [1988]).

39
 Sec. 13 REMEDIAL LAW Rule 57
V O L . III

3. Notes a n d Cases
a. The deposit or counterbond stands in place of the prop-
erty so released regardless of how judgment was obtained, whether
on the merits or by compromise agreement.
b. There is a difference between the bond for issuance of
writ and bond for lifting of writs. The first is for damages by reason
of the issuance of the writ (Sec. 4) while the second is to secure the
payment of the judgment to be recovered (Sees. 5 and 12).
c. Only the defendant or the party whose property is at-
tached may move for its lifting. If the attachment is proper, the
2
discharge should be by counterbond under this section.
d. If a counterbond is f i l e d , the a t t a c h m e n t m u s t be
3
discharged. But a discharge is not automatic, there must be a hear-
4
ing and a court order.
e. A garnishment order m a y be lifted, if it is established:

( 1 ) that the party whose accounts has been garnished

has posted a counterbond or has made the requisite deposit;

( 2 ) the order was improperly or irregularly issued, as

there is no ground for garnishment or affidavit and or bond
5
filed therefor are defective or insufficient.

S E C . 13. Discharge of attachment on other grounds. —

The party whose property has been o r d e r e d attached m a y
file a motion w i t h the c o u r t in w h i c h the action is p e n d i n g
b e f o r e o r after l e v y o r e v e n after the r e l e a s e o f the a t t a c h e d
property, f o r a n o r d e r t o set a s i d e o r d i s c h a r g e the attach-
ment o n the g r o u n d that the s a m e w a s i m p r o p e r l y o r i r r e g u -
l a r l y issued o r e n f o r c e d , o r that the b o n d i s insufficient. I f
the attachment is excessive, the d i s c h a r g e shall be l i m i t e d to
the excess. I f the m o t i o n b e m a d e o n affidavits o n the p a r t o f
the m o v a n t b u t not o t h e r w i s e , the a t t a c h i n g p a r t y m a y o p -

2
Jopillo, Jr. v. Court of Appeals, G.R. N o . 76026, 167 S C R A 247, November 9,
1988.
3
K . O . Glass v. Valenzuela, 116 S C R A 563.
4
Belisle Investment and Finance Co., Inc. v. State Investment House, Inc., 151
S C R A 630.
^ h e Manila Remnant Co., Inc. v. Court of Appeals, March 16, 1994.

40
Rule 57 PROVISIONAL REMEDIES Sec. 13

p o s e the m o t i o n b y counter-affidavits o r o t h e r evidence i n

a d d i t i o n t o that o n w h i c h the a t t a c h m e n t w a s m a d e . A f t e r
d u e notice a n d h e a r i n g , the c o u r t shall o r d e r the setting
a s i d e or the c o r r e s p o n d i n g d i s c h a r g e of the attachment if it
a p p e a r s that i t w a s i m p r o p e r l y o r i r r e g u l a r l y i s s u e d o r en-
forced, or that the b o n d is insufficient, or that the attach-
m e n t is excessive, a n d the defect is not c u r e d f o r t h w i t h . (13a)

COMMENT:

1. S o u r c e of R u l e

Taken from Section 13 of the former Rule.

2. T h e changes are:

a. U n d e r the f o r m e r R u l e : "The party whose property has

been attached m a y also, at any time either before or after the re-
lease if the attached property, or before any attachment shall have
been actually levied, upon reasonable notice to the attaching credi-
tor, apply to the judge who granted the order, or to the judge of the
court in which the action is pending, for an order to discharge the
attachment on the ground that the same was improperly or irregu-
larly issued, under the present Rule: T h e p a r t y w h o s e p r o p e r t y
h a s b e e n o r d e r e d a t t a c h e d m a y f i l e a motion w i t h the court
i n w h i c h the action i s p e n d i n g b e f o r e o r after levy o r even
after the r e l e a s e of the a t t a c h e d p r o p e r t y . W h i l e the f o r m e r
R u l e says the application m a y be filed with the judge who granted
the order, or to the judge of the court in which the action is pending,
the present Rule limits the filing to the c o u r t in w h i c h the action
is p e n d i n g .

b. T h e former Rule by referring to "the party whose property

has been attached" would seem to connote that there must already
be an attachment before the application for discharge may be filed
although this is qualified by the following statement "before any
attachment shall have been actually levied, the present Rule clari-
fies this by referring to "The p a r t y w h o s e p r o p e r t y has b e e n
o r d e r e d attached m a y file a motion, etc."
c. T h e former Rule limits the ground of discharge to the
improper or irregular issuance of the writ. The present rule adds as
grounds therefor where the writ was improperly or irregularly en-

41
 Sec. 13 REMEDIAL LAW Role 57
V O L . III

forced, or that the bond is insufficient. If the attachment is exces-

sive, the discharge shall be limited to the excess.
d. The present Rule allows for the curing of the defects, and
directs the discharge if the defect is not cured forthwith.
e. It was held in Mindanao Savings Loan Asso., Inc. v. Court
1
of Appeals, 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 w r i t forms the core of
the complaint.
Thus, after the defendant has obtained the discharge of the
writ of attachment by filing a counterbond under Section 12, Rule 57
of the Rules of Court, he may not file another motion under Section
13, Rule 57 to quash the w r i t for impropriety or irregularity in
issuing it.

Justice Narvasa, however, pointed out in Davao Light and Power

2
Co. v. Court of Appeals, that the lifting of an attachment on the
ground that it has been irregularly or improperly issued m a y be
resorted B E F O R E o r A F T E R P R O P E R T Y H A S B E E N R E L E A S E D
F R O M A L E V Y on A T T A C H M E N T as is made clear by Section 13 of
the Rule.
3
This is so because as pointed out in Calderon v. LAC, "The
attachment debtor cannot be deemed to have w a i v e d any defect in
the issuance of the attachment w r i t by simply availing himself of
9
one w a y of discharging the attachment w r i t instead of the other. *

Davao L i g h t reiterated other related principles dealt w i t h in

4
Mindanao Savings and Loans Association, Inc. v. C A . , to wit:

(a) When an attachment may not be dissolved by a showing of

its irregular or improper issuance:
u
x x x ( W ) h e n the preliminary attachment is issued upon
a ground which is at the same time the applicant's cause of
action; e.g., 'an action for money or property embezzled or

'172 S C R A 480 (1989).

2
204 S C R A 343 (1991).
8
155 S C R A 531(1987).
4
Supra.

42
Role 57 PROVISIONAL REMEDIES Sec. 13

fraudulently misapplied or converted to his own use by a public

officer, or an officer of a corporation, or an attorney, factor,
broker, agent, or clerk, in the course of his employment as
such, or by any other person in a fiduciary capacity, or for a
5
willful violation of duty,' or 'an action against a party who has
been guilty of fraud in contracting the debt or incurring the
6
obligation upon which the action is brought,' the defendant is
not allowed to file a motion to dissolve the attachment under
Section 13 of Rule 57 by offering to show the falsity of the
factual averments in the plaintiffs application and affidavits
on which the w r i t was based — and consequently that the writ
7
based thereon had been improperly or irregularly issued —
the reason being that the hearing on such a motion for dissolu-
tion of the w r i t would be tantamount to a trial of the merits of
the action. In other words, the merits of the action would be
ventilated at a mere hearing of a motion, instead of at the
regular trial. Therefore, w h e n the w r i t of attachment is of this
8
nature, the only w a y it can be dissolved is by a counterbond."

(b) Effect of the dissolution of a preliminary attachment on

the plaintiffs attachment bond:

"x x x. T h e dissolution of the preliminary attachment upon

security given, or a showing of its irregular or improper issu-
ance, does not of course operate to discharge the sureties on
plaintiffs own attachment bond. T h e reason is simple. That
bond is 'executed to the adverse party, x x x conditioned that
the x x (applicant) w i l l pay all the costs which may be adjudged
to the adverse party and all damages which he may sustain by
reason of the attachment, if the court shall finally adjudge that
9
the applicant was not entitled thereto.' Hence, until that de-
termination is made, as to the applicant's entitlement to the
attachment, his bond must stand and cannot be withdrawn."

W h e n the ground for the issuance of the writ is also the core of
the complaint, the question of whether the plaintiff was entitled to

6
Sec. K b ) , Rule 57.
•Sec. 1(d), Rule 57.
"See Benitez v. I A C , 154 S C R A 41.
"G.B., Inc. v. Sanchez, 98 Phil. 886.
9
Sec. 4, Rule 57.

43
 Sec. 13 REMEDIAL LAW Rule 57
V O L . III

the writ can only be determined after, not before, a full blown trial
on the merits of the case. This accords with the ruling in G.B., Inc. v.
Sanchez, 98 Phil. 886 that: "The merits of a main action are not
triable in a motion to discharge an attachment, otherwise an appli-
cant for the dissolution could force a trial on the merits of the case on
10
this motion."
Citing Davao Light (Supra), the Supreme Court in Cuartero v.
11
Court of Appeals, held that an attachment may not be dissolved by
a showing of its irregular or improper issuance if it is upon a ground
which is at the same time the applicant's cause of action in the main
cause since an anomalous situation would result if the issues of the
cause would be ventilated and resolved in a mere hearing of the
motion.
12
Similarly, the Supreme Court in Onate v. Abrogar, held that
the alleged absence of fraud in contracting the obligation cannot be
considered a ground for lifting the w r i t since this delves into the
13
very complaint itself. Citing Cuartero v. Court of Appeals. W h e r e a
discharge on this ground was held to be a grave abuse of discretion
correctible by certiorari.

M a y the defendant, after procuring the dissolution of the at-

tachment by filing a counterbond, ask for the cancellation of the
counterbond on the ground that the order of attachment was im-
properly issued? T h a t question was answered in Uy Kimpang v.
14
Javier, that "the obligors in the bond are absolutely liable for the
amount of any judgment that the plaintiff m a y recover in the action
without reference to the question of whether the attachment was right-
fully or wrongly issued."

The liability of the surety on the counterbond subsists until the

Court shall have finally absolved the defendant from the plaintiff's
claims. Only then m a y the counterbond be released. T h e same rule
applies to the plaintiff's attachment bond. T h e liability of the surety
on the bond subsists because the final reckoning is when the Court

10
Mindanao Savings Loan Assn., Inc. v. C A , 172 S C R A 480.
n
2 1 2 S C R A 260 (1992).
12
230 S C R A 181 (1994).
l3
Supra. See also Liberty Insurance Corporation v. Court of Appeals, 222 S C R A
37(1993).
14
65 Phil. 170.

44
Rule 57 PROVISIONAL REMEDIES Sec. 13

shall finally adjudge that the attaching creditor was not entitled to
15
the issuance of the attachment writ."

Failure to state a cause of action is a ground to discharge but

not when the answer or motion merely traverses the allegations of
the complaint.

T h e foregoing provision grants an aggrieved party relief from

baseless and unjustifiable attachments procured, among others, upon
false allegations, without having to file any cash deposit or counter-
16
bond. W h e n the facts or some of them, stated in the plaintiff's
affidavit, are shown by the defendant to be untrue, the writ of at-
17
tachment m a y be considered as improperly or irregularly issued.

2. B u r d e n of P r o o f

W h e r e , however, a petition to dissolve is applied for, the attach-

ing creditor must prove that the attachment was not irregularly
18
issued. He should prove his allegation of fraud. There must be
19
notice of motion to lift.

3. N e c e s s i t y of H e a r i n g of M o t i o n to D i s c h a r g e

W h e n the attachment is challenged for having been illegally or

improperly issued, there must be a hearing with the burden of proof
to sustain the w r i t being on the attaching creditor. That hearing
embraces not only the right to present evidence but also a reason-
able opportunity to know the claims of the opposing parties and
meet them. T h e right to submit arguments implies that opportunity,
otherwise the right would be a barren one. It means a fair and open
hearing. A n d , as provided by the aforecited Section 13 of Rule 57,
the attaching creditor should be allowed to oppose the application
20
for the discharge of the attachment.
Thus, it is true that petitioner's motion to discharge was set for
hearing with notice to B P I but it is likewise true that counsel for the

16
Calderon v. LAC, 155 S C R A 531; Mindanao Savings and Loan Association, Inc.
v. Hon. Court of Appeals, 172 S C R A 480, April 18, 1989.
16
Filinvest Credit Corporation v. Relova, 117 S C R A 420; Miranda v. Court of
Appeals, G.R. N o . 80030, Oct. 29, 1989.
17
Salgado v. Court of Appeals, 128 S C R A 395.
18
Benitez v. I A C , Sept. 15, 1987, 154 S C R A 41.
19
Asuncion v. C A , 166 S C R A 55 (1988).
^Peroside Phils. Corp. v. C A , 199 S C R A 882 (1991).

45
 Sec. 13 REMEDIAL LAW Rule 57
V O L . III

latter asked for an opportunity to file a written opposition and for a

hearing to which he asked that petitioner Edmund O. Mapua be
subpoenaed. Said counsel was allowed to file a written opposition
which he 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
21
denied due process.
The order of Judge Acosta, suspending the writ of attachment
was in essence a lifting of said writ which order having likewise
been issued ex parte and without notice and hearing in disregard of
Section 13 of Rule 57, could not have resulted in the discharge of the
attachment. Said attachment continued unaffected by the so-called
order of suspension and could not have been deemed inefficacious
until and only by reason of its supposed restoration in the order of
December 16,1987 of Judge Gerona. Under the facts of this case, the
ex parte discharge or suspension of the attachment is a disservice to
the orderly administration of justice and nullifies the underlying
role and purpose of preliminary attachment in preserving the rights
22
of the parties pendente lite as an ancillary remedy.

It is grave abuse necessity of discretion to deny petitioner's

urgent motion to Discharge W r i t of Preliminary Attachment without
conducting a hearing and requiring the plaintiff to substantiate its
allegation of fraud. If wrongfully issued it should at once be cor-
rected (Supra). Illegality may be established by affidavits and op-
23
posed by counter-affidavits.

W h e n petitioners filed a Motion for Reconsideration of the or-

der directing the issuance of the w r i t of attachment, respondent
judge should have considered it as a motion for the discharge of the
attachment and should have conducted a hearing or required sub-
mission of counter-affidavits from the petitioners if only to gather
facts in support of the allegation of fraud. This is what Section 13 of
24
Rule 57 mandates.

This procedure should be followed because, as the Court has

time and again said, attachment is a harsh, extraordinary and sum-

21
Supra.
22
Supra.
23
Jopillo, Jr. v. Court of Appeals, 167 S C R A 247, 9 Nov. 1988.
24
A d l a w a n v. Torres, 233 S C R A 645 (1994).

46
Rule 57 PROVISIONAL REMEDIES Sec. 14

mary remedy and the rules governing its issuance must be con-
strued strictly against the applicant. Verily, a writ of attachment
can only be granted on concrete and specific grounds and not on
25
general averments quoting perfunctorily the words of the Rules.

S E C . 14. Proceedings where property claimed by third

person. — If the p r o p e r t y a t t a c h e d is c l a i m e d by a n y p e r s o n
o t h e r t h a n the p a r t y a g a i n s t w h o m attachment h a d b e e n
i s s u e d o r his a g e n t , a n d s u c h p e r s o n m a k e s a n affidavit o f
his title thereto, or r i g h t to the possession thereof, stating
the g r o u n d s o f s u c h r i g h t o r title, a n d serves s u c h affidavit
u p o n the sheriff w h i l e the latter h a s possession of the at-
t a c h e d p r o p e r t y , a n d a c o p y t h e r e o f u p o n the attaching party,
the sheriff s h a l l n o t b e b o u n d t o k e e p the p r o p e r t y u n d e r
attachment, u n l e s s the a t t a c h i n g p a r t y o r his agent, o n de-
m a n d of the sheriff, s h a l l file a b o n d a p p r o v e d by the c o u r t to
i n d e m n i f y the t h i r d - p a r t y c l a i m a n t in a s u m not less t h a n
the v a l u e o f the p r o p e r t y l e v i e d u p o n . I n case o f d i s a g r e e -
m e n t a s t o s u c h v a l u e , the s a m e shall b e d e c i d e d b y the court
i s s u i n g the w r i t o f a t t a c h m e n t . N o c l a i m f o r d a m a g e s f o r the
t a k i n g o r k e e p i n g o f the p r o p e r t y m a y b e e n f o r c e d a g a i n s t
the b o n d unless the action t h e r e f o r i s filed w i t h i n o n e h u n -
d r e d t w e n t y (120) d a y s f r o m the d a t e o f the f i l i n g o f the b o n d .

T h e sheriff shall not b e l i a b l e f o r d a m a g e s for the t a k i n g

o r k e e p i n g o f s u c h p r o p e r t y , t o a n y s u c h t h i r d - p a r t y claim-
ant, i f s u c h b o n d shall b e f i l e d . N o t h i n g h e r e i n contained
shall p r e v e n t s u c h c l a i m a n t o r a n y t h i r d p e r s o n f r o m vindi-
cating his c l a i m to the p r o p e r t y or p r e v e n t the attaching
p a r t y from c l a i m i n g d a m a g e s in the s a m e or a s e p a r a t e ac-
tion a g a i n s t a t h i r d - p a r t y c l a i m a n t w h o filed a frivolous or
p l a i n l y s p u r i o u s claim.
W h e n the w r i t of attachment is issued in f a v o r of the
R e p u b l i c o f the P h i l i p p i n e s , o r a n y officer d u l y r e p r e s e n t i n g
it, the filing of such b o n d shall not be r e q u i r e d , a n d in case
the sheriff is s u e d for d a m a g e s as a result of the attachment,
h e shall b e r e p r e s e n t e d b y the Solicitor G e n e r a l , a n d i f held
l i a b l e therefor, the actual d a m a g e s a d j u d g e d b y the court

^Supra, citing D.P. L u b . Oil Marketing Center, Inc. v. Nicolas, 191 S C R A 423.

47
 Sec. 14 REMEDIAL LAW Rule 57
V O L . III

shall be p a i d by the N a t i o n a l T r e a s u r e r out of the funds to be

a p p r o p r i a t e d for the p u r p o s e . (14a)

COMMENT:
1. S o u r c e of R u l e
Taken from Section 14 of the former Rule.

2. F o l l o w i n g a r e the c h a n g e s in the R u l e
a. The reference to property "taken" in the opening state-
ment of the former Rule have been changed to "attached";
b. The use of the term "officer" has been changed to "sheriff."

c. Under the former Rule the officer shall not be bound to

keep the property under the attachment, unless the attaching credi-
tor or his agent, on demand of said officer, secures him against such
claim by a bond in a sum not greater than the value of the property
attached." Under the present Rule: the sheriff shall not be bound to
keep the property under attachment, unless the attaching party or
his agent, on demand of the sheriff, shall file a bond approved by the
court to indemnify the t h i r d - p a r t y c l a i m a n t in a s u m not less
than the v a l u e o f the p r o p e r t y l e v i e d u p o n .

d. Under the former Rule the officer shall not be liable for
damages, for the taking or keeping of such property, to any such
third-party claimant, unless such a claim is so made and the action
upon the bond brought within one hundred and twenty (120) days
from the date of the filing of said bond.

Under the present Rule "No claim for damages for the taking
or keeping of the property may be enforced against the bond unless
the action therefor is filed within one hundred twenty (120) days
from the date of the filing of the bond."

And, even if such action is filed, "The sheriff shall not be liable
for damages for the taking or keeping of such property, to any such
third-party claimant, if such bond shall be filed."

e. Under the former Rule nothing herein contained shall

prevent such third person from vindicating his claim to the property
by proper action. The present R u l e is b r o a d e r in scope. N o t h i n g
h e r e i n c o n t a i n e d shall p r e v e n t s u c h c l a i m a n t o r a n y t h i r d
p e r s o n f r o m v i n d i c a t i n g his c l a i m t o the p r o p e r t y o r p r e v e n t

48
Rule 57 PROVISIONAL REMEDIES Sec. 14

the a t t a c h i n g p a r t y from c l a i m i n g d a m a g e s in the same or a

separate action against a third-party claimant who filed a frivolous
or plainly spurious claim. T h e rule includes the claimant or any
third person and the attaching party against a third party claimant
who filed a frivolous or plainly spurious claim in vindicating their
claims either in the same or a separate action.

3. Notes a n d Cases

a . A u t h o r i t y o f A n o t h e r C o u r t t o I s s u e W r i t o f Attach-
ment O v e r Property Attached
1
In Esteban Uy v. Court of Appeals, the main issue in this case
is whether or not properties levied and seized by virtue of a writ of
attachment and later by a w r i t of execution, were under custodia
legis and therefore not subject to the jurisdiction of another co-equal
court where a third-party claimant claimed ownership of the same
properties.

Speaking thru Justice Paras, the Court declared that: The is-
sue has long been laid to rest in the case of Manila Herald Publish-
2
ing Co., Inc. v. Ramos, where the Court ruled that while it is true
that property in custody of the l a w m a y not be interfered with,
without the permission of the proper court, this rule is confined to
cases where the property belongs to the defendant or one in which
the defendant has proprietary interests. But when the Sheriff, act-
ing beyond the bounds of his office seizes a stranger's property, the
rules do not apply and interference with his custody is not interfer-
ence with another court's order of attachment.

Under the circumstances, this Court categorically stated:

"It has been seen that a separate action by the third party who
claims to be the owner of the property attached is appropriate. If
this is so, it must be admitted that the judge trying such action may
render judgment ordering the sheriff or whoever has in possession
the attached property to deliver it to the plaintiff claimant or desist
from seizing it. It follows further that the court may make an inter-
locutory order, upon the filing of such bond as may be necessary, to
release the property pending final adjudication of the title. Jurisdic-

*191 S C R A 275 (1990).

2
88 Phil. 94 (1951).

49
 Sec. 15 REMEDIAL LAW Rule 57
V O L . III

tion over an action includes jurisdiction on interlocutory matter inci-

dental to the cause and deemed necessary to preserve the subject
3
matter of the suit or protect the parties' interest. This is self-evident.
The foregoing ruling was reiterated in the later case of Traders
4
Royal Bank v. I A C and even more recently in the case of Escovilla v.
5
C A , where the Court stressed:

"The power of the court in the execution of judgments

extends only over properties unquestionably belonging to the
judgment debtor. T h e l e v y by the sheriff of a property by virtue
of a writ of attachment maybe considered as made under the
authority of the court only when the property levied upon be-
longs to the defendant. If he attaches properties other than
those of the defendant, he acts beyond the limits of this author-
ity. T h e court issuing a writ of execution is supposed to enforce
its authority only over properties of the judgment debtor. Should
a third party appear to claim the property levied upon by the
sheriff, the procedure laid down by the Rules is that such claim
should be the subject of a separate and independent action."

b. Sale a n d Attachment of Properties of T h i r d P e r s o n

Null and Void

T h e sale of the disputed properties at the public auction, in

satisfaction of a judgment of a co-equal court does not render the
case moot and academic. T h e undeviating ruling in such cases is
that attachment and sale of properties belonging to a third person is
void because such properties cannot be attached and sold at public
6
auction judgment against the judgment debtor.
7
c. I n t e r v e n t i o n is also p e r m i s s i b l e .

S E C . 15. Satisfaction of judgment out of property at-

tached; return of sheriff. — If j u d g m e n t be r e c o v e r e d by t h e
attaching p a r t y a n d e x e c u t i o n issue t h e r e o n , the sheriff m a y

3
M a n i l a Herald Publishing Co., Inc. v. Ramos, supra.
4
133 S C R A 141 (1984).
5
179 S C R A 108, November 6,1989.
^ r o s c o v. Nepomuceno, 57 Phil. 1007 (1932-33); Uy, Jr. v. Court of Appeals, 191
S C R A 275 (1990).
7
Manila Herald Publishing v. Ramos, supra.

50
Rule 57 PROVISIONAL REMEDIES Sec. 15

c a u s e the j u d g m e n t t o b e satisfied out o f the p r o p e r t y at-

t a c h e d , if it be sufficient f o r that p u r p o s e in the f o l l o w i n g
manner:

( a ) B y p a y i n g t o the j u d g m e n t o b l i g e e the p r o c e e d s o f
all sales o f p e r i s h a b l e o r o t h e r p r o p e r t y sold i n p u r s u a n c e o f
the o r d e r o f the c o u r t , o r s o m u c h a s shall b e n e c e s s a r y t o
satisfy the j u d g m e n t ;

( b ) I f a n y b a l a n c e r e m a i n s d u e , b y selling s o m u c h o f
the p r o p e r t y , r e a l o r p e r s o n a l , a s m a y b e n e c e s s a r y t o satisfy
the b a l a n c e , i f e n o u g h f o r that p u r p o s e r e m a i n i n the sher-
iff's h a n d s , 6 r in those of the c l e r k of the court;

( c ) B y collecting f r o m a l l p e r s o n s h a v i n g i n their pos-

session credits b e l o n g i n g t o the j u d g m e n t obligor, o r o w i n g
d e b t s to the latter at the time of the attachment of such
credits o r d e b t s , the a m o u n t o f s u c h credits a n d debts a s
d e t e r m i n e d b y the c o u r t i n the action, a n d stated i n the j u d g -
m e n t , a n d p a y i n g the p r o c e e d s o f s u c h collection o v e r t o the
judgment obligee.

T h e sheriff s h a l l f o r t h w i t h m a k e a r e t u r n i n w r i t i n g t o
the c o u r t o f his p r o c e e d i n g s u n d e r this section a n d f u r n i s h
the p a r t i e s w i t h copies thereof. (15a)

COMMENT:

1. S o u r c e of R u l e

Taken from Section 15 of the former Rule.

2. T h e c h a n g e s a r e a s follows:
a. T h e terms "attaching creditor" have been changed to "at-
taching party" and the terms "judgment creditor" to "judgment obli-
gee", "officer" or "proper officer" to "sheriff."
b. T h e Sheriff is required to furnish the parties with copies
of his return of the proceedings under this section.

3. N o t e s a n d Cases:
a. H o w Judgment is satisfied. A Judgment is satisfied by:
(i) Payment of proceeds of sale of perishable property.

51
 Sec. 16 REMEDIAL LAW Rule 57
V O L . III

( i i ) Sale of property if there is a balance.

(iii) Collection of property of garnishee without need of
prior permission to file action, but may be enforced in same
1
action.
( i v ) Return must be made within ten (10) days from re-
2
ceipt of writ.
b. W h e r e Sheriff E m b e z z l e s P r o c e e d s
Personal property may have been levied upon under attach-
ment and left in the possession of the sheriff or other officer levying
the writ to secure the payment of such judgment as may be recov-
ered in the action. W h e r e execution issues, it is the duty of such
officer to apply towards its satisfaction the property so attached
which are left in his hands; but he may have embezzled or otherwise
misappropriated it, or allowed it to be lost by his negligence. In such
case, it must, as between the plaintiff and defendant, and persons
claiming under defendant, be treated as though it had been levied
upon under execution as well as under attachment, and therefore as
3
satisfying the judgment to the extent of its value.
4
c. See, however Philippine Airlines v. Court of Appeals,
where it was held that payment by check in the name of sheriff who
absconded did not operate as satisfaction of the judgment.

S E C . 16. Balance due collected upon an execution; excess

delivered to judgment obligor. — If after r e a l i z i n g u p o n all
the p r o p e r t y attached, i n c l u d i n g the p r o c e e d s o f a n y d e b t s
or credits collected, a n d a p p l y i n g the p r o c e e d s to the satis-
faction of the j u d g m e n t , less the e x p e n s e s of p r o c e e d i n g s
u p o n the j u d g m e n t , a n y b a l a n c e shall r e m a i n d u e , the sheriff
must p r o c e e d t o collect s u c h b a l a n c e a s u p o n o r d i n a r y ex-
ecution. W h e n e v e r the j u d g m e n t shall h a v e b e e n p a i d , the
sheriff, u p o n r e a s o n a b l e d e m a n d , m u s t r e t u r n t o the j u d g -
ment o b l i g o r the a t t a c h e d p r o p e r t y r e m a i n i n g i n his h a n d s ,

x
Tayabas Land Transportation Co. v. Sharruf, 41 Phil. 382.
2
Bilag-Rivera v. Lora, July 6, 1995.
3
P N B v. Esteban I. Vasquez, 71 Phil. 433.
4
181 S C R A 557, January 30, 1990.

52
Rule 57 PROVISIONAL REMEDIES Sec. 17

a n d a n y p r o c e e d s o f the sale o f the p r o p e r t y attached not

a p p l i e d to the j u d g m e n t . (16a)

COMMENT:

1. S o u r c e of R u l e

Taken from Section 16 of the former Rule.

2. C h a n g e s in R u l e
9 9
The term "officer ' was changed to "sheriff and "judgment debtor"
to "judgment obligor"

S E C . 17. Recovery upon the counter-bond. — W h e n the

j u d g m e n t h a s b e c o m e executory, the s u r e t y o r sureties o n
a n y c o u n t e r - b o n d g i v e n p u r s u a n t to the p r o v i s i o n s of this
R u l e t o s e c u r e the p a y m e n t o f the j u d g m e n t shall b e c o m e
c h a r g e d o n s u c h c o u n t e r - b o n d a n d b o u n d t o p a y the j u d g -
m e n t o b l i g e e u p o n d e m a n d the a m o u n t d u e u n d e r the j u d g -
ment, w h i c h a m o u n t m a y b e r e c o v e r e d f r o m such surety o r
sureties after notice a n d s u m m a r y h e a r i n g i n the s a m e ac-
tion. (17a)

COMMENT:

1. S o u r c e of R u l e

Taken from Section 17 of the former Rule.

2. C h a n g e s in R u l e

T h e present Rule no longer requires the return of the execution

unsatisfied to hold the surety or sureties on any counter-bond liable.
It is enough if the j u d g m e n t has become executory. T h e term
"judgment creditor" has been changed to "judgment obligee."

3. Notes a n d Cases
a. T h e counterbond contemplated in the rule is evidently an
ordinary guaranty where the sureties assume a subsidiary liability.
This is not the case where, the surety bound itself "jointly and sever-
ally" (in solidum) with the defendant; and it is prescribed in Article

53
Sec. 17 REMEDIAL LAW Rule 57
V O L . III

2059, paragraph 2, of the Civil Code of the Philippines that excussion

(previous exhaustion of the properties of the debtor) shall not take
place "if he (the guarantor) has bound himself solidarity with the
debtor." The rule cannot be construed as requiring that an execution
against the debtor be first unsatisfied even if the bond were a solidary
one; for a procedural rule may not amend the substantive law ex-
pressed in the Civil Code, and further would nullify the express
stipulation of the parties that the surety's obligation should be
1
solidary with that of the defendant.

b. The counterbond answers for any judgment and this in-

2
cludes judgment pending appeal.

c. Requisites for recovery upon counter-bond: To recover upon

counter-bond, the following requisites must be present:

1. T h e creditor demands upon the surety for satisfac-

tion of the judgment.

2. The surety be g i v e n notice and a summary hearing

in the same action as to his liability for judgment under the
3
counterbond.

a. T h e Bondsmen are not liable on the bond when

the obligation assumed is premised upon the issuance of a
writ of attachment by a court which was not actually
4
issued.

b. T h e motion by the surety to quash the w r i t of

5
execution is sufficient notice.

c. After demand, the amount m a y be recovered

from the surety in the same action. T h e r e is no need for a
6
separate action.

d. T h e rule of exclusion cannot be invoked by a

bondsman of a counterbond against an attachment w r i t

'Luzon Steel v. Sia, 28 S C R A 58.

2
Phil. British Assurance Co. v. I A C , 150 S C R A 520.
T h e Imperial Insurance v. de los Angeles, 111 S C R A 25.
4
Vadil v. de Venecia, 9 S C R A 374.
5
Dizon v. Valdez, 23 S C R A 200.
T h e Imperial Insurance, Inc. v. de los Angeles, 111 S C R A 25.

54
Rule 57 PROVISIONAL REMEDIES Sees. 18-19

where there is already a final and executory judgment

7
sentencing the bondsman as solidarity liable pro indiviso.

e. T h e bond answers for the judgment even if not

expressly stipulated. T h e law under which this bond is
8
issued shall be considered as part of the bond.

S E C . 18. Disposition of money deposited. — W h e r e the

p a r t y a g a i n s t w h o m a t t a c h m e n t h a d b e e n i s s u e d h a s depos-
ited m o n e y i n s t e a d o f g i v i n g c o u n t e r - b o n d , i t shall b e a p -
p l i e d u n d e r the d i r e c t i o n of the c o u r t to the satisfaction of
a n y j u d g m e n t r e n d e r e d i n f a v o r o f the a t t a c h i n g party, a n d
after satisfying the j u d g m e n t the b a l a n c e shall b e r e f u n d e d
to the d e p o s i t o r or his a s s i g n e e . If the j u d g m e n t is in f a v o r of
the p a r t y a g a i n s t w h o m a t t a c h m e n t w a s issued, the w h o l e
s u m d e p o s i t e d m u s t b e r e f u n d e d t o h i m o r his assignee. (18a)

COMMENT:

1. S o u r c e of R u l e

Taken from Section 18.

2. C h a n g e i n the R u l e

T h e term "attaching creditor" has been changed to "attaching

party."

S E C . 19. Disposition of attached property where judg-

ment is for party against whom attachment was issued. — If
j u d g m e n t b e r e n d e r e d a g a i n s t the attaching party, all the
p r o c e e d s o f sales a n d m o n e y collected o r r e c e i v e d b y the
sheriff, u n d e r the o r d e r of attachment, a n d all p r o p e r t y at-
t a c h e d r e m a i n i n g in a n y such officer's h a n d s , shall be deliv-
e r e d t o the p a r t y a g a i n s t w h o m attachment w a s issued, a n d
the o r d e r of attachment d i s c h a r g e d . (19a)

7
Pioneer Ins. v. Camilon, 116 S C R A 190; The Imperial Insurance v. de los Ange-
les, supra.
Ibid.

55
 Sec. 20 REMEDIAL LAW Rule 57
V O L . III

COMMENT
1. S o u r c e of R u l e
Taken from Section 19 of the former Rule.
2. C h a n g e in R u l e
The "clerk or other proper officer" was removed by the present
Rule.

S E C 20. Claim for damages on account of improper, ir-

regular or excessive attachment. — An a p p l i c a t i o n f o r d a m -
ages on account of i m p r o p e r , i r r e g u l a r or excessive attach-
ment must b e filed b e f o r e the trial o r b e f o r e a p p e a l i s p e r -
fected o r b e f o r e the j u d g m e n t b e c o m e s executory, w i t h d u e
notice to the attaching p a r t y a n d his s u r e t y or sureties, set-
ting forth the facts s h o w i n g his r i g h t t o d a m a g e s a n d the
a m o u n t thereof. S u c h d a m a g e s m a y b e a w a r d e d o n l y after
p r o p e r h e a r i n g a n d shall b e i n c l u d e d i n the j u d g m e n t o n the
m a i n case.

I f the j u d g m e n t o f the a p p e l l a t e c o u r t b e f a v o r a b l e t o
the p a r t y a g a i n s t w h o m the a t t a c h m e n t w a s issued, h e m u s t
claim d a m a g e s s u s t a i n e d d u r i n g the p e n d e n c y o f the a p p e a l
b y f i l i n g a n a p p l i c a t i o n i n the a p p e l l a t e c o u r t , w i t h notice t o
the p a r t y i n w h o s e f a v o r the a t t a c h m e n t w a s i s s u e d o r his
surety o r sureties, b e f o r e the j u d g m e n t o f the a p p e l l a t e c o u r t
becomes executory. T h e a p p e l l a t e c o u r t m a y a l l o w the a p p l i -
cation t o b e h e a r d a n d d e c i d e d b y the t r i a l c o u r t .

N o t h i n g h e r e i n contained shall p r e v e n t the p a r t y a g a i n s t

w h o m the attachment w a s issued f r o m r e c o v e r i n g i n the s a m e
action the d a m a g e s a w a r d e d t o h i m f r o m a n y p r o p e r t y o f the
attaching p a r t y not e x e m p t f r o m e x e c u t i o n s h o u l d the b o n d
o r deposit g i v e n b y the latter b e insufficient o r fail t o fully
satisfy the a w a r d . (20a)

COMMENT:

1. S o u r c e of R u l e

Taken from Section 20 of the former Rule.

56
Rule 57 PROVISIONAL REMEDIES Sec. 20

2. C h a n g e s in the R u l e

a. T h e epigraph was changed from, "Disposition of attached

property where judgment is for party against whom attachment was
issued." — to "Claim for damages on account of improper, irregular
or excessive attachment."

b. T h e first and third paragraphs incorporate decisions of

the Supreme Court which explained that it is not necessary for an
application for damages that the judgment be in favor of the party
against w h o m the attachment was issued, and broadens the scope of
damages from those resulting from the attachment, to include im-
proper, irregular or excessive attachment.

c. T h e last paragraph is new: "Nothing herein contained

shall prevent the party against whom the attachment was issued
from recovering in the same action the damages awarded to him
from any property of the attaching party not exempt from execution
should the bond or deposit given by the latter be insufficient or fail
to fully satisfy the award.
1
This modifies the doctrine in Pacis v. COMELEC, and subse-
quent pronouncements to the effect that recovery of damages is
2
limited to the amount of the bond. Under the present rule, the
party against whom the attachment was issued may recover in the
same action the damages awarded to him from any property of the
attaching party not exempt from execution should the bond or deposit
given by the latter be insufficient or fail to fully satisfy the awed.

3. Notes a n d Cases

a. R e m e d y is E x c l u s i v e
T h e foregoing remedy has been said to be exclusive such that
no claim for recovery of damages may be filed after the judgment
3
has become final and executory.

b. Requisites
To Claim for damages upon the bond, the following requisites
must be present:

*29 S C R A 24.
2
Aquino v. Socorro, 35 S C R A 373, 376.
^ a c i s v. Commission on Elections, 29 S C R A 24, 27.

57
Sec. 20 REMEDIAL LAW Rule 57
V O L . III

1. There must be an application before the trial court either

by motion or counterclaim with notice to surety who must be given
opportunity to present such defense as he may have with the princi-
pal and to cross-examine witnesses if he so desires.
2. A judgment for defendant is tantamount to a declaration
that plaintiff has no cause of action and, therefore not entitled to
attachment. The phrase "not entitled thereto" means no cause of
4
action, no fraud, or has other security.
3. Damages must be awarded before judgment becomes fi-
nal.
4. Claims for damages against the bond must be filed in the
5
same action which issued the writ of attachment. Otherwise, it is
6
barred.
c. E x c e p t i o n s to the r u l e that c l a i m m u s t be filed in
the s a m e case:
1. W h e r e the principal case was dismissed for lack of juris-
diction and no claim for damages could have been presented in the
7
said case.

2. A separate case for damages resulting from the attach-

8
ment may be consolidated if it is still pending. W h e r e the issuing
court rules that the questioned attachment was proper, res judicata
9
bars complaint. A separate action for damages based on malicious
prosecution may however be filed but this right depends upon the
10
law governing malicious prosecutions.

3. W h e r e a writ of attachment was declared illegal, the de-

fendant against whom it was issued m a y file his claim for damages
in the Court of Appeals before the latter decides the appeal on the

4
Calderon v. LAC, 155 S C R A 531 (1987).
6
Rejuso v. Estipona, 72 S C R A 509; Consolidated Bank and Trust Corp. v. I A C ,
153 S C R A 591; Pioneer Insurance and Surety Corp. v. Hontanosas, 78 S C R A 447,467.
6
Stronghold Insurance v. Court of Appeals, G . R . N o . 84979, Nov. 6,1989; Philip-
pine Charter Insurance Corp. v. Court of Appeals, G.R. N o . 88379, Nov. 15, 1989;
Maningo v. I A C , 183 S C R A 691, March 26, 1990.
7
Santos v. C A , 95 Phil. 360.
Consolidated Bank v. I A C , 150 S C R A 591.
9
Supra; See also The Consolidated Bank and Trust Corporation v. Capistrano,
Adm. Matter N o . R-66, March 18, 1988,159 S C R A 47.
10
Aquino v. Socorro, 35 S C R A 373.

58
Rule 57 PROVISIONAL REMEDIES Sec. 20

merits. T h e Court of Appeals must hear the motion and not dismiss
the appeal for not filing appellants' brief whose deferment was re-
11
quested.

4. F i l i n g of C o u n t e r b o n d D o e s not R e l i e v e L i a b i l i t y
T h e filing of a counterbond does not relieve applicant's attach-
ment bond's liability for damages. Liability attaches if the plaintiff
is not entitled to the attachment because the requirements entitling
him to the w r i t are wanting, or if the plaintiff has no right to the
attachment because the facts stated in his affidavit, or some of them
12
are untrue.

T h e final reckoning is when "the court shall finally adjudge

that the attachment creditor was not entitled to the issuance of the
13
attachment w r i t in the first place."

An attachment m a y be said to be wrongful when, for instance,

the plaintiff has no cause of action, or that there is not true ground
therefor, or that the plaintiff has a sufficient security other than the
property attached, which is tantamount to saying that the plaintiff
is not entitled to attachment because the requirements entitling
14
him to the w r i t are w a n t i n g . W h e r e plaintiff, in securing the writ of
attachment did not act w i t h bad faith or malice, he shall be liable
15
only for actual damages and not moral or exemplary damages.
16
In Malayan Insurance v. Salas — T h e Supreme Court laid
down the following requisites for application for damages:
a. That the defendant-claimant has secured a favorable judg-
ment in the main action — (plaintiff has no cause of action);
b. T h a t the application for damages showing claimant's right
thereto and the amount thereof, be filed in the same action before
trial or before appeal is perfected or before the judgment becomes
executory;
c. That due notice be given to the other party and his surety
or sureties, notice to the principal not being sufficient; and
n
H a n i l Development Co. v. I A C , 144 S C R A 557; See also concurring opinion of
Justice Antonio in Malayan Insurance v. Salas, 90 S C R A 252.
12
Calderon v. I A C , 155 S C R A 531, Nov. 11, 1987.
l
*Ibid.
1 4
B A Finance Corp. v. Court of Appeals, 161 S C R A 608 (1988).
l5
Ibid.
16
90 S C R A 252.

59
 Sec. 20 REMEDIAL LAW Rule 57
V O L . III

d. That there should be a proper hearing and the award for

damages should be included in the final judgment.

e. Exception
Where defendant seasonably files his application for damages
in the Court of Appeals it was not his fault that the damages claimed
by him against the surety, were not included in the judgment of the
Court of Appeals affirming the trial court's award of damages pay-
17
able by the principal in the replevin bond.

6. F a v o r a b l e J u d g m e n t a g a i n s t w h o m a t t a c h m e n t is-
sued Not R e q u i r e d
It was clarified by Justice, later Chief Justice N a r v a s a in
18
Zaragoza v. Fidelino, that a party against w h o m an attachment
was issued may apply for damages under the rule, it is not necessary
that the judgment is favorable to him. Although a party is adjudged
liable to another if it be established that the attachment issued at
the latter's instance was wrongful and the farmer had suffered in-
jury thereby, recovery for damages m a y be had by the party thus
prejudiced by the wrongful attachment, even if the judgment be
adverse to him.

To hold a surety on a counterbond liable what is entailed is:

(1) the filing of an application therefor w i t h the Court having

jurisdiction of the action; ( 2 ) the presentation thereof before the
judgment becomes executory (or before the trial or before appeal is
perfected); ( 3 ) the statement in said application of the facts showing
the applicant's right to damages and the amount thereof; ( 4 ) the
giving of due notice of the application to the attaching creditor and
his surety or sureties; and ( 5 ) the holding of a proper hearing at
which the attaching creditor and the sureties m a y be heard on the
application. These requisites apply not only in cases of seizure or
delivery under Rule 60, but also in cases of preliminary injunctions
under Rule 58, receiverships under Rule 59 and attachment under
19
Rule 57.

ll
Ibid.
18
163 S C R A 443 (1988).
19
Philippine Charter Insurance Corp. v. Court of Appeals, 179 S C R A 468, No-
vember 15,1989.

60
Rule 57 PROVISIONAL REMEDIES Sec. 20

It should be stressed, however, that enforcement of a surety's

liability on a counterbond given for the release of property seized
under a w r i t of preliminary attachment is governed, not by said
Section 20, but by another specifically and specially dealing with the
20
matter: Section 17 of Rule 57.

7. R i g h t of S u r e t y to D u e P r o c e s s

T h e filing of the attachment bond by a surety undoubtedly

connotes and operates as a voluntary submission by it to the Court's
jurisdiction, and of course binds it to faithfully comply with its spe-
cific obligations under its bond.

T h e surety does not, to be sure, become liable on its bond sim-

ply because judgment is subsequently rendered against the party
who obtained the preliminary attachment. T h e surety becomes li-
able only w h e n and if "the court shall finally adjudge that the appli-
cant was not entitled to the attachment." This is so regardless of the
nature and character of the judgment on the merits of the principal
claims, counterclaims or cross-claims, etc. asserted by the parties
against each other. Indeed, since an applicant's cause of action may
be entirely different from the ground relied upon by him for a pre-
liminary attachment, it m a y w e l l be that although the evidence
warrants judgment in favor of said applicant, the proofs may never-
theless also establish that said applicant's proffered ground for at-
tachment was inexistent or specious and hence, the writ should not
have issued at all; i.e., he was not entitled thereto in the first place.
In that event, the final verdict should logically award to the appli-
cant the relief sought in his basic pleading, but at the same time
sentence him — usually on the basis of a counterclaim — to pay
damages caused to his adversary by the wrongful attachment.

W h e n the final judgment declares that the party at whose in-

stance an attachment had issued was not entitled thereto, there is
no question about the eminent propriety of condemning that party to
the payment of all the damages that the wrongful attachment had
caused to the party whose property had been seized under the at-
21
tachment w r i t .

">Ibid.
^Philippine Charter Insurance v. C A , supra.

61
 Sec. 20 REMEDIAL LAW Rule 57
V O L . III

But what of the surety's liability? The surety on an attachment

bond, as already pointed out, assures that the applicant "will pay all
the costs which may be adjudged to the adverse party and all dam-
ages which he may sustain by reason of the attachment, if the court
shall finally adjudge that the applicant was not entitled thereto" In
other words the surety, by submitting its attachment bond, binds
itself solidarily to make the same payments which its principal —
the party at whose instance the attachment issues — may be con-
demned to make, to compensate for the damages resulting from the
wrongful attachment, although unlike its principal, its liability is
limited to the amount stated in its bond.

The final adjudication "that the applicant was not entitled" to

the attachment standing alone, does not suffice to make the surety
liable. It is necessary, in addition, that the surety be accorded due
process, i.e., that it be given an opportunity to be heard on the
question of its solidary liability for damages arising from wrongful
attachment. This, by established rule and practice, is accorded to
the surety at a summary hearing, scheduled after judgment on pres-
entation of an application to hold it answerable on its bond. E v i -
dently, such a summary hearing is not rendered unnecessary or
superfluous by the fact that the matter of damages was among the
issues tried during the hearings on the merits, unless of course, the
surety had previously been impleaded as a party, or otherwise ear-
lier notified and given opportunity to be present and ventilate its
side on the matter during the trial. T h e procedure for the rendition
of a binding directive on the surety upon its solidary liability for
damages for wrongful attachment is indicated in Section 20, Rule 57
of the Rules of Court.

Certain principles are derived from this provision of the Rules.

A party against whom a writ of preliminary attachment is issued
may impugn the writ by alleging and proving inter alia that the
applicant was not entitled thereto, i.e., that the asserted ground for
attachment was inexistent, or the amount for which the w r i t was
sought was excessive, etc., this, by appropriate motion. He may also
claim damages on account of the wrongful attachment through an
appropriate pleading, such as a counterclaim, or other form of appli-
cation. W h a t is important is that the "application must be filed
before the trial or before appeal is perfected or before the judgment
becomes executory, with due notice to the attaching creditor and his

62
Rule 57 PROVISIONAL REMEDIES Sec. 20

surety or sureties, setting forth the facts showing his right to dam-
22
ages and the amount thereof."

8 . A p p l i c a t i o n M a y b e M a d e i n the C o u r t o f A p p e a l s

W h e r e a w r i t of attachment was declared illegal, the defendant

against w h o m it was issued may file his claim for damages in the
Court of Appeals before the latter decides the appeal on the merits.
T h e Court of Appeals must hear the motion and not dismiss the
appeal for not filing appellants' brief whose deferment was re-
23
quested.

W h e r e the Trial Court's decision had gone against the defend-

ants, and no irregularity had been adjudged as regards the prelimi-
nary attachment, the latter obviously had no occasion to apply for
damages from wrongful attachment — although they could have so
applied therefor because, as already pointed out, it is entirely possi-
ble under the l a w that an applicant for preliminary attachment be
adjudged entitled to relief on his basic claim and at the same time
pronounced as not entitled to the attachment.

As things turned out, the Trial Court's judgment was reversed

by the Court of Appeals; the latter dismissed the complaint, declared
the plaintiff not entitled to the attachment and sentenced it to pay
to the defendants damages on account thereof. A n d it was only at
this time that the defendants could have presented and did actually
present their petition to enforce the surety's liability on its bond.
T h e petition was correctly referred by the Court of Appeals to the
Trial Court with instructions "to hear and decide x x x" pursuant to
Section 20, Rule 57 of the Rules of Court. Under the circumstances,
and in the light of the explicit provisions of said Section 20, Rule 57,
there can be no debate about the seasonableness of the defendants'
application for damages and the correctness of the referral by the
Court of Appeals of the application for damages to the Trial Court
24
for hearing and determination.

22
T h e Philippine Charter Insurance Corp. v. Court of Appeals, supra.
23
H a n i l Development Co. v. I A C , 144 S C R 557; See also concurring opinion of
Justice Antonio in Malayan Insurance v. Salas, 90 S C R A 252.
^The Philippine Charter Insurance Corp. v. Court of Appeals, supra.

63
 Sec. 20 REMEDIAL LAW Rule 57
V O L . III

9. All Damages during Trial a n d Pendency of A p p e a l

M a y be Recovered
Under the circumstances, too, there can be no gainsaying the
surety's full awareness of its undertakings under its bond: that, as
the law puts it: "the plaintiff will pay all costs which may be ad-
judged to the defendant(s), and all damages which may be sustained
by reason of the attachment, if the same shall finally be adjudged to
have been wrongful and without cause," and that those damages
plainly comprehended not only those sustained during the trial of
the action but also those during the pendency of the appeal. This is
the law, and this is how the surety's liability may be enforced whether
the application for damages for wrongful attachment be submitted
in the original proceedings before the Trial Court, or on appeal, so
long as the judgment has not become executory. T h e surety's liabil-
ity is not and cannot be limited to the damages caused by the im-
proper attachment only during the pendency of the appeal. T h a t
would be absurd. The plain and patent intendment of the l a w is that
the surety shall answer for all damages that the party m a y suffer as
a result of the illicit attachment, for all the time that the attachment
was in force; from levy to dissolution. T h e fact that the attachment
was initially (and erroneously) deemed correct by the Trial Court,
and it was only on appeal that it was pronounced improper, cannot
restrict recovery on the bond only to such damages as might have
been sustained during the appeal. T h e declaration by the appellate
court that the applicant for attachment "was not entitled thereto,"
signifies that the attachment should not have issued in the first place,
that somehow the Trial Court had been misled into issuing the w r i t
although no proper ground existed therefor. T h e logical and inevita-
ble conclusion is that the applicant for attachment and the surety on
the attachment bond are solidarity liable for all the damages suf-
fered by the party against whom the w r i t is enforced, except only
that the surety's liability is limited to the amount set forth in its
25
bond.

The fact that the second paragraph of the rule speaks only of
"damages sustained during the pendency of the appeal" is of no
moment; it obviously proceeds from the assumption in the first para-
graph that the award for the damages suffered during the pendency
of the case in the trial court was in fact "included in the final judg-

25
Supra.

64
merit" (or applied for therein before the appeal was perfected or the
judgment became executory); hence, it states that the damages ad-
ditionally suffered thereafter, i.e., during the pendency of the ap-
peal, should be claimed before the judgment of the appellate tribu-
nal becomes executory. It however bears repeating that where, the
judgment of the Trial Court has expressly or impliedly sustained the
attachment and thus has given rise to no occasion to speak of, much
less, file an application for damages for wrongful attachment, and it
is only in the decision of the Court of Appeals that the attachment is
declared wrongful and that the applicant "was not entitled thereto,"
the rule is, as it should be, that it is entirely proper at this time for
the application for damages for such wrongful attachment to be filed
— i.e., for all the damages sustained thereby, during all the time
that it was in force, not only during the pendency of the appeal. A n d
the application must be filed "with notice to the party in whose favor
the attachment was issued or his surety or sureties, before the judg-
ment of the appellate court may resolve the application itself or
26
allow it "to be heard and decided by the trial court."

10. M e a s u r e of D a m a g e s
a. It is not the value of property attached but the extent of
actual damages that is the measure of damages.
b. If the property levied upon remained in possession of de-
fendant, depreciation, deterioration or damage must be borne by
him and cannot be charged to the plaintiff.
d. Attorney's fees for service rendered in securing the re-
lease of the property cannot be allowed.
e. Surety is not answerable for all costs and damages ad-
judged against its principal in excess of that adjudged in the deci-
27
sion.
f. E v e n if in good faith liability for damages is there. If there
28
is bad faith moral damages may be awarded.
g. In order that moral damages may be recovered in connec-
tion with the writ of attachment under consideration, malice is an

^ h e Philippine Charter Insurance Corp. v. Court of Appeals, supra.

27
Zenith Insurance Corp. v. C A , 119 S C R A 485.
^Calderon v. I A C , 155 S C R A 531 (1987); BA Finance Corporation v. C A , G.R.
No. 61464, M a y 28, 1988,161 S C R A 608.

65
 Sec. 20 REMEDIAL LAW Rule 57
V O L . III

29
essential ingredient thereof. However, malice or lack of good faith
30
is not an element of recovery on the bond.
h. The damages — against the bond includes exemplary dam-
31
ages and attorney's fees.
Note, however that under the last paragraph of the Rule "Noth-
ing herein contained shall prevent the party against whom the at-
tachment was issued from recovering in the same action the dam-
ages awarded to him from any property of the attaching party not
exempt from execution should the bond or deposit given by the latter
be insufficient or fail to satisfy the award" which indicates that
damages larger than the amount of the bond may be awarded.

W h e n Damages m a y be granted for issuance of w r i t of

p r e l i m i n a r y attachment
Lazatin v. Twano and Castro, 112 Phil. 733 (1961), reiterated
32
in MC Engineering v. Court of Appeals, held that actual or compen-
satory damages may be recovered for wrongful, though not mali-
cious, attachment. Lazatin also held that attorney's fees m a y be
recovered under Article 2208 of the Civil Code. However, inasmuch
as a preliminary attachment is an available ancillary remedy under
the rules, a penalty cannot be meted out for the enforcement of a
right. Proof of bad faith or malice in obtaining a w r i t of attachment
need be proved only in the claim for damages on account of the
issuance of the writ.

Where the plaintiff is entitled to a w r i t of preliminary attach-

ment as a provisional remedy by which the property of the defend-
ant is taken into custody of the l a w as a security for the satisfaction
of any judgment which the plaintiff m a y recover. T h e latter w i l l pay
all the costs which may be adjudged to the adverse party and all
damages which he may sustain by reason of the attachment, but the
court did adjudge that the applicant was not entitled thereto the
33
adverse party must bear its own damages as a result thereof.

^Lazatin v. Twano, 2 S C R A 842.

30
Aquino v. Socorro, 35 S C R A 374.
31
Stronghold Insurance v. Court of Appeals, M a y 5, 1992, 208 S C R A 336.
32
380 S C R A 116 (2002).
^ D . M . Wenceslao and Associates v. Readycon Trading and Construction Corp.,
G.R. N o . 1541106, 433 S C R A 251, June 29, 2004.

66