This action might not be possible to undo. Are you sure you want to continue?
We are going to review the concept of Provisional Remedies from Rule 57 to Rule 61. First of all, the
word provisional is suggestive. It is something temporar. Provisional Remedies are remedies which are
temporar and is defined ! the "upreme #ourt as remedies which parties litigants ma resort for the
preservation of protection of their rights and interests and for no other purpose, during the pendenc of
the litigation. "o, $ust to preserve the rights while the case is pending.
Q: What are the known Provisional Remedies?
%& 'here are five (5).
*1+ Rule 57, Preliminar %ttachment-
*.+ Rule 5/, Preliminar In$unction-
*0+ Rule 51, Receivership-
*2+ Rule 63, Replevin- (used to !e 4nown as 5eliver of Personal Propert) and
*5+ Rule 61, "upport Pendente 6ite
BASIC PRINCIPLES ABOUT PROVISIONAL REMEDIES
FIRST: A provisional remedy is not a civil action.
It is $ust incidental or attached to an action. 'here is no such thing as an action for attachment. 7ou
cannot file a case for attachment. 7ou can file a case to collect a sum of mone coupled with a petition or
application for preliminar attachment. "o, it must !e attached. It is not a remed ! itself !ut a remed
attached to a main action.
'hat is wh the "upreme #ourt said in one case, "it is an ancillary remedy, it is nt s!"#t $r its
%n sa&e '!t rat#er t ena'le t#e t#er (arty t see& relie$ $rm t#e main actin)"
SECOND: If you ave a !ood cause of action" it does not follo# tat you can ave a !round
for a provisional remedy tat you can attac immediately.
For e8ample, I will sue a de!tor who has not paid me and I !elieve he has no defense. "o, I !elieve that m
chance of losing is 9ero. I am a sure winner, and even m lawer agrees that the other part has no
:& #an I attach his properties;
%& <o. In order to attach, let us sa preliminar attachment, let us find out whether we have the grounds.
If none, we will $ust file a case.
'hus, it does not follow that evertime ou file a case for collection, ou alwas file for attachment. %s a
matter of fact, under "ection .3, the plaintiff ma win the case !ut he is held lia!le for damages for
attaching without a ground, illegal attachment.
T$IRD: If te provisional remedy is !ranted" it does not mean tat you are already te
#inner. %ou still ave to #in te main case.
:& "o, what happens if it turns out that ou have no cause of action, the main action is dismissed;
%& 7ou are not $ust a loser, ou can also !e held lia!le for damages. For how in the world were ou a!le to
get the right to attach when ou have no cause of action in the first place; In other words, even if our
application for provisional remedies is granted, it is not a guarant that ou will win the case. 7ou still
have to prove the e8istence of a valid cause of action.
PROVISIONAL REMEDIES (Rule 57)
R U L E * +
Section ). *rounds upon #ic attacment may issue.+ At te commencement of te
action or at any time ,efore entry of -ud!ment" a plaintiff or any proper party may
ave te property of te adverse party attaced as security for te satisfaction of any
-ud!ment tat may ,e recovered in te follo#in! cases:
In an action for te recovery of a specified amount of money or dama!es" oter tan
moral and e.emplary" on a cause of action arisin! from la#" contract" /uasi+
contract" delict or /uasi+delict a!ainst a party #o is a,out to depart from te
&ilippines #it intent to defraud is creditors0
In an action for money or property em,e11led or fraudulently misapplied or converted
to is o#n use ,y a pu,lic officer" or an officer of a corporation" or an attorney"
factor" ,ro2er" a!ent" or cler2" in te course of is employment as suc" or ,y any
oter person in a fiduciary capacity" or for a #illful violation of duty0
In an action to recover possession of property un-ustly or fraudulently ta2en"
detained or converted" #en te property" or any part tereof" as ,een concealed"
removed" or disposed of to prevent its ,ein! found or ta2en ,y applicant or an
In an action a!ainst a party #o as ,een !uilty of a fraud in contractin! te de,t or
incurrin! te o,li!ation upon #ic te action is ,rou!t" or in te performance
In an action a!ainst a party #o as removed or disposed of is property" or is a,out to
do so" #it intent to defraud is creditors0 or
In an action a!ainst a party #o does not reside and is not found in te &ilippines" or
on #om summons may ,e served ,y pu,lication. 3)a4
PRELIMINAR, ATTAC-MENT = a remed ! which the propert of the defendant is ta4en into the
custod of law either at the commencement of action or at antime !efore the entr of $udgment as securit.
Q: What are the changes under the new rule?
%& 'he new rule states >%t the commencement of the action or at an time !efore entr of $udgment>. 'he
old rule?s language is >at an time during the progress of the same>.
@eaning, while the case is going on. %ctuall, this is the same, !ut now it is clearer, >!efore entr of
$udgment, a plaintiff or an proper part ma have the propert of the adverse part attached>.
>% plaintiff or an proper part.>
:& Who is this proper part;
%& 'he plaintiff, the defendant can attach in the counterclaim. 'he cross,claimant, 0rd,part defendant,
the are also plaintiffs within the meaning of the law.
T,PES O. ATTAC-MENT/
*1+ Preliminar %ttachment (under rule 57)-
*.+ Final %ttachmentA 6ev in B8ecution
Preliminar %ttachment contemplates Rule 57. 7ou attach the propert while the case is going on,
!efore $udgment, or at the commencement, as securit for the satisfaction of an $udgment that ou ma
Final attachment is an attachment issued to enforce a $udgment or to satisf a $udgment, which has !ecome
final and e8ecutor. @eaning, we will attach the propert of the defendant to !e sold at a pu!lic auction
for the purpose of satisfing a $udgment.'he other name for final attachment is lev on e8ecution
governed ! Rule 01.
Carnishment is actuall a variation of either attachment or e8ecution. It is a speciesAtpe of attachment or
PROVISIONAL REMEDIES (Rule 57)
e8ecution for reaching credits !elonging to a $udgment de!tor owing to him ! a third person, stranger to
the litigation. 'his is similar to seDuestration.
B8ample of garnishment& when ou garnish the !an4 account of a depositor. 7ou attach it. It is a credit
since the !an4 is a de!tor of the depositor.
'he concept of garnishment is e8plained clearl ! the "upreme #ourt in the case of Perla Cm(ana
de Se"!rs 0) Ramlete, 123 SCRA 45+. %ccording to the "#, "6arnis#ment #as 'een de$ined as
a s(ecies $ attac#ment $r reac#in" any (r(erty r credits (ertainin" r (aya'le t a 7!d"ment
de'tr) In le"al cntem(latin, it is a $rced n0atin 'y t#e s!'stit!tin $ creditrs8 t#e 7!d"ment
de'tr, %# is t#e ri"inal creditr $ t#e "arnis#ee is, t#r!"# t#e ser0ice $ t#e %rit $
"arnis#ment, s!'stit!ted 'y t#e 7!d"ment creditr %# t#ere'y 'ecmes t#e creditr $ t#e
"arnis#ee)" "o, I owe ou, ou owe him, so ! garnishment it is not with ou that I am inde!ted with, it
is with him alread. In effect, there is a change of creditor.
Carnishment has also !een descri!ed as a warning to a person having in his possession, propert or
credits of the $udgment de!tor, not to pa the mone or deliver the propert to the latter !ut rather to
appear and answer the plaintiff?s suits.
:& Eow does the court acDuire $urisdiction over the person of the garnishee; 5o ou have to serve him
%& 'he "# said (in the Perla #ompania case) <F. It is not necessar that summons !e served upon him.
'he Rules of #ourt themselves does not reDuire that the garnishee !e served with summons or impleaded
in the case to ma4e him lia!le. 'he trial court actuall acDuired $urisdiction over the garnishee when it
was served with the writ of garnishment, which is the eDuivalent of summons. 'he garnishee !ecomes a
Gvirtual partH to or a Gforced intervenorH in the case and the trial court there! acDuires $urisdiction to !ind
him to compliance with all orders and processes of the trial court with a view to the complete satisfaction of
the $udgment of the court. 'hat is the concept of garnishment.
:& Eow do ou distinguish a normal preliminar attachment from garnishment, although as I have said,
garnishment could also !e a variation of preliminar attachment or e8ecution ;
C%R<I"E@B<' PRB6I@I<%R7 %''%#E@B<'
<ormall directed to intangi!le properties
(e.g. credits, collecti!les, !an4 accounts).
Refers to tangi!les (e.g. a car or a house).
Involves three (0) parties, namel& the
creditor, de!tor and garnishee.
Involves onl two (.) parties, the creditor and the
In "arnis#ment 'y (reliminary attac#ment,
there is no actual sei9ure of propert !ut in
!arnisment ,y final attacment there is
alread a sei9ure. In other words, if I will
garnish our account in the !an4, the mone
would still !e there. <o!od can withdraw
from it. 'he sheriff cannot get the mone. It
is in the !an4.
In attachment, which is even preliminar, there is
sei9ure of propert and it will !e placed under
custodia legis. 'here is actual sei9ure.
:& What is the nature of attachment proceedings;
%& In rem or at least Duasi in rem.(#hing 6iu I #o. vs. @ercado, 67 Phil. 231). Bven if the action is in
personam, once there is an attachment, it is now converted into Duasi in rem !ecause a lien is acDuired
over a specific propert of the defendant.(Janco BspaKol vs. Palanca, 07 Phil. 1.1)
:& What is the duration of the attachment;
%& It is indefinite. It continues until the case is terminated, until the account is full paid (assuming
plaintiff wins), or until such time that the court will order it terminated or dissolved in accordance with
certain grounds under the law.(#hunaco vs. %lano, Lan. .0, 115.)
Q: What are the 6ROUNDS .OR ATTAC-MENT?
a4 In an actin $r t#e rec0ery $ a s(eci$ied am!nt $ mney r dama"es, t#er t#an mral and e9em(lary,
n a ca!se $ actin arisin" $rm la%, cntract, :!asi;cntract, delict r :!asi;delict a"ainst a (arty %# is
a'!t t de(art $rm t#e P#ili((ines %it# intent t de$ra!d #is creditrs)
PROVISIONAL REMEDIES (Rule 57)
"o, the defendant is a!out to run awa, with intent to defraud his creditors. <ow, what is the change;
'he old law sas >in an action for recover of mone>. <ow, >for a specified amount of mone or
damages>. 'his supports the ruling of the "upreme #ourt that for a ground for attachment to e8ist, the
damages must !e liDuidated. "o, if the damages are unliDuidated, there can !e no attachment.
'hat is wh the law is clearer now. In moral and e8emplar damages, there could !e no preliminar
attachment. 6iDuidated or actual, o4.
:& What is the reason wh in moral and e8emplar damages there could !e no attachment;
%& Jecause the amount canMt !e determined.
>Fn a cause of action arising from law, contract, Duasi,contract, delict or Duasi,delict against a part who is
a!out to depart from the Philippines with intent to defraud his creditors.> What is the old law; #ause
of action arising from contract Gonl as compared to the new law, which includes all the five sources of
o!ligation. 'hat is wh there is a need to compare this new rule with the old rule.
'< In an actin $r mney r (r(erty em'e==led r $ra!d!lently misa((lied r cn0erted t #is %n !se 'y a
(!'lic $$icer, r an $$icer $ a cr(ratin, r an attrney, $actr, 'r&er, a"ent, r cler&, in t#e c!rse $ #is
em(lyment as s!c#, r 'y any t#er (ersn in a $id!ciary ca(acity, r $r a %ill$!l 0ilatin $ d!ty8
'he main action here was !ased on the act of malversation or estafa.
:& "uppose ou file a criminal case !ut not a!le to reserve the civil action, can ou file a preliminar
%& 7B". Nnder Rule 1.7, "ection . = G%t the commencement of a criminal action 888 when the civil
action for the recover of civil lia!ilit arising from the offense charged is not e8pressl waived or the right
to institute such civil action separatel is not reserved, the offended part ma have the propert of the
accused attached as securit for the satisfaction of an $udgment that ma !e recovered from the accused
c< In an actin t rec0er (ssessin $ (r(erty !n7!stly r $ra!d!lently ta&en, detained r cn0erted, %#en
t#e (r(erty, r any (art t#ere$, #as 'een cncealed, rem0ed, r dis(sed $ t (re0ent its 'ein" $!nd r
ta&en 'y a((licant r an a!t#ri=ed (ersn8
'he prior law spea4s of personal propert. <ow, the word personal is removed. GPropertG (ma refer
to real or personal) un$ustl or fraudulentl ta4en 888 to prevent its !eing found or ta4en ! applicant or an
authori9ed person.> 'hat is inserted !ecause the authori9ed person ma !e the sheriff or an attorne,in,
d< In an actin a"ainst a (arty %# #as 'een "!ilty $ a $ra!d in cntractin" t#e de't r inc!rrin" t#e 'li"atin
!(n %#ic# t#e actin is 'r!"#t, r in t#e (er$rmance t#ere$8
'he old rule does not contain >in the performance thereof.> Jefore, it is >guilt of fraud in contracting the
de!t.> @eaning, the defendant e8ercised fraud from the ver start of the o!ligation, in contracting. "o, it is
fraud in contracting the de!t under the old rule. It is not fraud in the performance of an o!ligation.
<ow, it is the same. Whether it is fraud in contracting the de!t or in the performance of an o!ligation, !oth
are grounds for attachment. Whether itMs dolo causante or dolo incidente. 'he law is !roader.
:& What does Gin the performance thereofH mean;
%& @eaning, the person was in good faith when he !orrowed it !ut in the performance of the o!ligation, he
contracted fraud. %aw na nang mag!aadO
e< In an actin a"ainst a (arty %# #as rem0ed r dis(sed $ #is (r(erty, r is a'!t t d s, %it# intent t
de$ra!d #is creditrs8 r
B8ample& 7ou file a case against J. "i J, dahan,dahan, he sold his assets. In this case, ou can attach.
$< In an actin a"ainst a (arty %# des nt reside and is nt $!nd in t#e P#ili((ines, r n %#m s!mmns
may 'e ser0ed 'y (!'licatin.
'he part does not reside and is not found in the Philippines, or on whom summons ma !e served !
pu!lication. 7ou connect this with summons. 7ou cannot sue ! pu!lication when the action is in
personam. "o, ou need to convert our action to in rem or Duasi in rem.
:& Eow do ou convert an action in personam to action in rem or Duasi, in rem;
PROVISIONAL REMEDIES (Rule 57)
%& 7ou attach the propert. %fter attaching it, ou now appl service of summons ! pu!lication under
Rule 12. 'hat is e8actl the situation contemplated in the case of Magdalena Estate and all those modes of
summons ! pu!lication.
:& %re the grounds for attachment strictl construed;
%& 7es. 'he "# said the are. 'he grounds enumerated are e8clusive. In other words, what is
not enumerated is not included. "o, in case of dou!t, the dou!t is resolved in favor of the attached de!tor.
'o !orrow the language of the "upreme #ourt in the case of
SIEVERT 0s) COURT O. APPEALS
Decem'er 11, >?55
-ELD/ >the reDuirements of the rule in the issuance of preliminar attachment must !e strictl and
faithfull complied with in view of the nature of this provisional remed which e8poses the de!tor to
humiliation and annoance.>
ABOITI@ 0s) COTABATO BUS LINE CO)ACBLC<
B!ne >+, >?5>
.ACTS/ 5efendant #ota!ato Jus 6ine #ompan (#6J#) was on the verge of !an4ruptc. 'he creditor
%!oiti9 @ar4eting was afraid since #6J# has man de!ts. 'hus, the (%!oiti9) filed a case for
preliminar attachment. Cround& the defendant is alread in the verge of insolvenc. It was granted !
the lower court.
ISSUE/ WA< the attachment was valid.
-ELD/ It was not a ground for preliminar attachment. 7ou cannot find it in the Rules. "o, attachment
was illegal. Bven if he is on the verge of insolvenc !ut he is not running awa from his creditors, ou
cannot attach. 7ou cite another ground.
Section 5. Issuance and contents of order.+ An order of attacment may ,e issued
eiter e. parte or upon motion #it notice and earin! ,y te court in #ic te
action is pendin!" or ,y te Court of Appeals or te Supreme Court" and must
re/uire te seriff of te court to attac so muc of te property in te &ilippines of
te party a!ainst #om it is issued" not e.empt from e.ecution" as may ,e sufficient
to satisfy te applicant6s demand" unless suc party ma2es deposit or !ives a ,ond as
ereinafter provided in te amount e/ual to tat fi.ed in te order" #ic may ,e te
amount sufficient to satisfy te applicant6s demand or te value of te property to ,e
attaced as stated ,y te applicant" e.clusive of costs. Several #rits may ,e issued at
te same time to te seriffs of te court of different -udicial re!ions. 35a4
:& Eow is an order of attachment issued;
%& 1. e8 parte
.. upon motion with notice and hearing.
:& #an a writ of preliminar attachment !e issued e8 parte on the application of the plaintiff without the
defendant reDuired to !e heard; @eaning, upon the filing of the complaint, ou as4 for attachment. Is this
1.) %ccording to .ilin0est 0) Rel0a, >>+ SCRA 412, the "upreme #ourt said& G<othing in the Rules
ma4es notice and hearing indispensa!le and mandator reDuisites for the issuance of a writ of attachment.
% writ of attachment ma !e issued e8 parteH. 'here are onl two (.) reDuirements under the law, in
"ections . and 0. 'he %ffidavit and Jond. 'here is no third reDuirement of a hearing.
'he Rel0a Dctrine is now enshrined in section .. "o, it is now for the court to determine whether to
issue immediatel or not et. Jut it can issue e8 parte !ased on "ec. ..
..) %nother reason wh it is sometimes necessar to attach without an hearing is !ecause of the urgenc of
the situation speciall if our ground is that the defendant is departing from the countr, or he is disposing
of his assets. If a hearing will !e conducted, it will give the defendant more time to conceal or dispose of
%lso, in the case of
PROVISIONAL REMEDIES (Rule 57)
CUARTERO 0s) CA
1>1 SCRA 1C2
'he "# said& <o notice to the adverse part or hearing of the application for preliminar
attachment is reDuired in as much as the time that the hearing will ta4e, will !e enough to
ena!le the defendant to a!scond or dispose of his propert !efore a writ of attachment is
issued. In such a case, a hearing would render nugator the purpose of the provisional
:& Which court can issue an order of attachment;
%& 1. #ourt where the action is pending,
.. #ourt of %ppeals,
0. "upreme #ourt.
'he #% and the "# can issue the writ anwhere in the Philippines.
Section 7. Affidavit and ,ond re/uired.+ An order of attacment sall ,e !ranted only
#en it appears ,y te affidavit of te applicant" or some oter person #o personally
2no#s te facts" tat a sufficient cause of action e.ists" tat te case is one of tose
mentioned in section ) ereof" tat tere is no sufficient security for te claim sou!t
to ,e enforced ,y te action" and tat te amount due to te applicant" or te value of
te property te possession of #ic e is entitled to recover" is as muc as te sum
for #ic te order is !ranted a,ove all le!al counterclaims. Te affidavit" and te
,ond re/uired ,y te ne.t succeedin! section" must ,e duly filed #it te court ,efore
te order issues. 37a4
'here are 'WF RB:NIRB@B<'"& %FFI5%PI' Q JF<5.
'he affidavit reDuirement. 'here must !e a swornAverified application and there must !e an attachment
!ond to answer for the damages that the defendant ma suffer.
:& What are the allegations in the affidavit;
%& "ection 0.
1. 'hat a sufficient cause of action e8ists.
.. 'hat the case is one of those mentioned in "ection 1.
0. 'hat there is no other sufficient securit for the claim sought to !e enforced.
'his is an important allegation. 'herefore, if an account is secured ! a mortgage, ou cannot attach.
7ou alread have a securit.
BAR Q: What are the instances where the creditor, plainti, can still appl! or a writ o preliminar!
attachment despite the act that there is a mortgage to secure the de"t?
%& 'here are two (.) &
1) When the mortgage creditor a!andons the mortgage and !rings an ordinar action to collect the
principal loan or he simpl applies for collection of sum of mone. Ee is now an unsecured creditor
and there is a ground for attachment. 'he creditor can now appl for attachment and he is not limited
to attaching onl the mortgage propert, an propert. "o, that is all he has to do.
.) Bven if the creditor will not a!andon the mortgage, if he will foreclose the mortgage and in the action
for foreclosure, there is a showing that the possi!le proceeds of the mortgage propert are not
sufficient to pa the entire de!t and in the meantime the de!tor is also tring to dispose of his assets.
2. 'hat the amount due to the applicant, or the value of the propert is as much as the sum for which
the order is granted.
:& %re these grounds for attachment, the affidavit, a strict reDuirement ;
%& 7es, the "# said in the case of Bardine AManila< 0, CA, >+> SCRA C3?, that the authorit to issue an
attachment must !e strictl construed. Failure to allege in the affidavit the reDuisites reDuired in the
issuance of the writ of attachment renders the writ fatall defective.
'he affidavit is the foundation of the writ and if none !e filed, or if filed !ut fails to set out some facts
reDuired ! law to !e stated therein, there is no $urisdiction and the proceedings are null and void.
%nother illustration is in the case of
TIN6 0s) VILLARIN
A!"!st >+, >?5?
.ACTS/ 'here was a writ of attachment. 'he allegation of the plaintiff
PROVISIONAL REMEDIES (Rule 57)
sas, >defendants are guilt of fraud in contracting the o!ligation, more specificall
illustrated ! their violation if the 'rust Receipt %greement.>
-ELD/ 'here is no ground for attachment !ecause to sa that there is fraud is not
enough. 7ou must recite how the fraud as committed. It cannot !e issued on a general
averment such as one ceremoniousl Duoting a pertinent rule. 'he need for a recitation of
factual circumstances to support the application !ecomes more compelling considering
that the ground relied upon is fraud. Fraud cannot !e presumed. In civil procedure, fraud
must !e made with particularit.
Section 8. Condition of applicant6s ,ond.+ Te party applyin! for te order must
tereafter !ive a ,ond e.ecuted to te adverse party in te amount fi.ed ,y te court
in its order !rantin! te issuance of te #rit" conditioned tat te latter #ill pay all
te costs #ic may ,e ad-ud!ed to te adverse party and all dama!es #ic e may
sustain ,y reason of te attacment" if te court sall finally ad-ud!e tat te
applicant #as not entitled tereto. 38a4
6et us go to "ection 5. Eow to attach propert, the procedure.
Section 9. :anner of attacin! property.+ Te seriff enforcin! te #rit sall #itout
delay and #it all reasona,le dili!ence attac" to a#ait -ud!ment and e.ecution in
te action" only so muc of te property in te &ilippines of te party a!ainst #om
te #rit is issued" not e.empt from e.ecution" as may ,e sufficient to satisfy te
applicant6s demand" unless te former ma2es a deposit #it te court from #ic te
#rit is issued" or !ives a counter+,ond e.ecuted to te applicant" in an amount e/ual
to te ,ond fi.ed ,y te court in te order of attacment or to te value of te
property to ,e attaced" e.clusive of costs. No levy on attacment pursuant to te #rit
issued under section 5 ereof sall ,e enforced unless it is preceded" or
contemporaneously accompanied" ,y service of summons" to!eter #it a copy of te
complaint" te application for attacment" te applicant6s affidavit and ,ond" and te
order and #rit of attacment" on te defendant #itin te &ilippines.
Te re/uirement of prior or contemporaneous service of summons sall not apply
#ere te summons could not ,e served personally or ,y su,stituted service despite
dili!ent efforts" or te defendant is a resident of te &ilippines temporarily a,sent
terefrom" or te defendant is a non+resident of te &ilippines" or te action is one
in rem or /uasi in rem. 39a4
'a4e note of the last sentence of the first paragraph of "ection 5. >888 <o lev on attachment pursuant to
the writ issued under section . hereof shall !e enforced unless it is preceded, or contemporaneousl
accompanied, ! service of summons, together with a cop of the complaint, the application for
attachment, the applicant?s affidavit and !ond, and the order and writ of attachment on the defendant
within the Philippines.>
:& 5id ou notice that (underlined provisions);
%& 'hat is the 5avao 6ight 5octrine. DLPC 0) CA, 124 SCRA) 'he leading case on attachment. It is now
incorporated in the Rules of #ourt.
'he attachment can !e issued e8 parte without even acDuiring $urisdiction. 'he order of the writ of
attachment can !e issued even !efore the court has acDuired $urisdiction, '!t to enforce it (the writ),
summons must !e served ahead or simultaneousl. Ftherwise, the writ of attachment will not !e valid.
'hat is the ruling in "ievert and 56P#.
%s stated in the case of #uartero, t#e "r!nds $r attac#ment in0l0e 3 sta"es/
1. #he court issues order granting application$
%$ #he writ o attachment is issued pursuant to the order granting the writ$
&$ #he writ is implemented$
For the first two stages, it is not necessar that $urisdiction over the person of the defendant must !e
Eowever, once implementation commences (third stage), it is reDuired that the court must have acDuired
$urisdiction over the person of the defendant, for without such $urisdiction, the court has no power or
authorit to act in an manner against the defendant. 'he order issued ! the court will not !ind the
"o, there must !e a prior or contemporaneous service of summons, JN' as e8plained ! the "# in the 1112
PROVISIONAL REMEDIES (Rule 57)
@ac#ry Cm(any IntDl) 0) CA
131 SCRA 31?
'he writ of attachment even if contemporaneousl served to the defendant with
summons, does not !ind the latter if the service of summons is not valid.
-ELD& 'he validit then of the order granting the application for a writ of preliminar attachment on
.1 @arch 1113 and of the issuance of the writ of preliminar attachment on .6 @arch 1113 is !eond
dispute. Eowever, the enforcement of the preliminar attachment on .7 @arch 1113, although
simultaneous with the service of the summons and a cop of the complaint, did not !ind Rachr
!ecause the service of the summons was not validl made. When a foreign corporation has designated
a person to receive service of summons pursuant to the #orporation #ode, that designation is e8clusive
and service of summons on an other person is inefficacious. 'he valid service of summons and a
cop of the amended complaint was onl made upon it on .2 %pril 1113, and it was onl then that the
trial court acDuired $urisdiction over Rachr?s person. %ccordingl, the lev on attachment made ! the
sheriff on .7 %pril 1113 was invalid. Eowever, the writ of preliminar attachment ma !e validl
"o, it also reDuires that the service of summons !e valid.
<ow, let us go to the last paragraph of section 5, which is also new&
"T#e re:!irement $ (rir r cntem(rane!s ser0ice $ s!mmns s#all nt a((ly %#ere t#e s!mmns c!ld
nt 'e ser0ed (ersnally r 'y s!'stit!ted ser0ice des(ite dili"ent e$$rts, r t#e de$endant is a resident $
t#e P#ili((ines tem(rarily a'sent t#ere$rm, r t#e de$endant is a nn;resident $ t#e P#ili((ines, r t#e
actin is ne in rem r :!asi in rem)"
:& Which will come first, the attachment or service of summons;
%& Nnder the 5avao 6ight 5octrine, service of summons comes first. Jecause first of all, $urisdiction over
the person of defendant must !e acDuired !efore attachment. 7ou must !ind the person first.
'wo (.) ears ago (1116), when this provision in the new rule was not et in e8istence, one student who is
now a lawer, as4ed me how to reconcile this provision with provision on resident defendant on summons
! pu!lication !ecause according to the "#, if the action is in personam ou convert in first to in rem after
which ou proceed with summons ! pu!lication.
:& Eow do ou reconcile this, where in this section, summons must come first !efore pu!lication. In the
case of @agdalena Bstate, attachment first !efore summons ! pu!lication, which is confirmed ! section
1 *f+ of Rule 57, one of the grounds for attachment. I cannot serve summons ! pu!lication without
attaching first. 'hat is paragraph *f+ of section 1, which is the e8act opposite of the 5avao 6ight Ruling.
%& F!viousl, that is the e9ce(tin t t#e Da0a Li"#t Dctrine) 'hat e8ception is now provided under
"ection 5, last paragraph as read&
"T#e re:!irement $ (rir r cntem(rane!s ser0ice $ s!mmns s#all nt a((ly %#ere t#e s!mmns
c!ld nt 'e ser0ed (ersnally r 'y s!'stit!ted ser0ice des(ite dili"ent e$$rts," s, t#at is 'y (!'licatin
nly) "Or t#e de$endant is a resident $ t#e P#ili((ines tem(rarily a'sent t#ere$rm, r t#e de$endant is a
nn;resident $ t#e P#ili((ines, r t#e actin is ne in rem r :!asi in rem)"
In this provision, the purpose of summons ! pu!lication is not to acDuire $urisdiction over the person !ut
onl for the purpose of due process and that e8ception is now incorporated in the Rules. 'hat is not
covered ! the 56P# case.
'a4e <ote& 'he CB<BR%6 RN6B is "ervice of "ummons first !efore %ttachment (5avao 6ight case)
B8ception& "ection 5, last paragraph. 'here must first !e an attachment !efore service of summons.
Section ;. Seriff6s return.+ After enforcin! te #rit" te seriff must li2e#ise #itout
delay ma2e a return tereon to te court from #ic te #rit is sued" #it a full
statement of is proceedin!s under te #rit and a complete inventory of te property
attaced" to!eter #it any counter+,ond !iven ,y te party a!ainst #om attacment
is issued" and serve copies tereof on te applicant. 3;a4
"heriff ma4es a report after the implementation of the writ.
Section <. Attacment of real and personal property0 recordin! tereof.+ Real and
personal property sall ,e attaced ,y te seriff e.ecutin! te #rit in te follo#in!
PROVISIONAL REMEDIES (Rule 57)
3a4 Real property" or !ro#in! crops tereon" or any interest terein" standin! upon
te record of te re!istry of deeds of te province in te name of te party a!ainst
#om attacment is issued" or not appearin! at all upon suc records" or ,elon!in!
to te party a!ainst #om te attacment is issued and eld ,y any oter person" or
standin! in te records of te re!istry of deeds in te name of any oter person" ,y
filin! #it te re!istry of deeds a copy of te order" to!eter #it a description of te
property attaced" and a notice tat it is attaced" or tat suc real property and any
interest terein eld ,y or standin! in te name of suc oter person are attaced" and
,y leavin! a copy of suc order" description" and notice #it te occupant of te
property" if any" or #it suc oter person or is a!ent if found #itin te province.
=ere te property as ,een ,rou!t under te operation of eiter te 'and
Re!istration Act or te &roperty Re!istration Decree" te notice sall contain a
reference to te num,er of te certificate of title" te volume and pa!e in te
re!istration ,oo2 #ere te certificate is re!istered" and te re!istered o#ner or
Te re!istrar of deeds must inde. attacments filed under tis section in te names of
te applicant" te adverse party" or te person ,y #om te property is eld or in
#ose name it stands in te record. If te attacment is not claimed on te entire
area of te land covered ,y te certificate of title" a description sufficiently accurate
for te identification of te land or interest to ,e affected sall ,e included in te
re!istration of suc attacment0
3,4 &ersonal property capa,le of manual delivery" ,y ta2in! and safely 2eepin! it in is
custody" after issuin! te correspondin! receipt terefor0
3c4 Stoc2s or sares" or an interest in stoc2 or sares" of any corporation or company"
,y leavin! #it te president or mana!in! a!ent tereof" a copy of te #rit" and a
notice statin! tat te stoc2 or interest of te party a!ainst #om te attacment is
issued is attaced in pursuance of suc #rit0
3d4 De,ts and credits" includin! ,an2 deposits" financial interest" royalties"
commissions and oter personal property not capa,le of manual delivery" ,y leavin!
#it te person o#in! suc de,ts" or avin! in is possession or under is control"
suc credits or oter personal property" or #it is a!ent" a copy of te #rit" and
notice tat te de,ts o#in! ,y im to te party a!ainst #om attacment is issued"
and te credits and oter personal property in is possession" or under is control"
,elon!in! to said party" are attaced in pursuance of suc #rit0
3e4 Te interest of te party a!ainst #om attacment is issued in property
,elon!in! to te estate of te decedent" #eter as eir" le!atee" or devisee" ,y
servin! te e.ecutor or administrator or oter personal representative of te decedent
#it a copy of te #rit and notice tat said interest is attaced. A copy of said #rit
of attacment and of said notice sall also ,e filed in te office of te cler2 of te
court in #ic said estate is ,ein! settled and served upon te eir" le!atee or
If te property sou!t to ,e attaced is in custodia le!is" a copy of te #rit of
attacment sall ,e filed #it te proper court or /uasi+-udicial a!ency" and notice
of te attacment served upon te custodian of suc property. 3<a4
:& With respect to the manner of serving the writ of attachment, how do ou do it;
%& It depends on what ou are going to attach.
If it is real propert, i.e. parcel of land, refer to paragraph *a+.
If it is a refrigerator, capa!le of manual deliver, refer to paragraph *!+. 'his is also the manner of
e8ecution. Eow to lev on e8ecution has the same procedure.
If it is shares of stoc4s, refer to paragraph *c+.
'here is one recent case re"ardin" sectin +EcF) 'he 1115 case of P#il) E9(rt and Im(rt Cr() 0)
CA, 1*> SCRA 1*+, which is also related to #orporation #ode.
:& When ou attach shares of stoc4 under "ection 7, is it necessar to record or annotate it in the
corporation?s stoc4 and transfer !oo4; "uppose there is no annotation, is there a valid attachment;
%& 'he #ourt said& It is not necessar. Joth the Rules of #ourt and the #orporation #ode does not reDuire
annotation in the corporation?s stoc4 and transfer !oo4 for the attachment of shares of stoc4 to !e valid and
!inding on the corporation and third parties. %ttachment of shares of stoc4 is not included in the term
PROVISIONAL REMEDIES (Rule 57)
>transfer> as provided in "ection 60 of the #orporation #ode. 'here is no transfer. 7ou are $ust acDuiring
a lien. 'he de!tor is still the owner. 'here is no need for said annotation.
Fn Sectin +Ad<; 5e!ts and credits, including !an4 deposits, financial interest, roalties, commissions and
other personal propert not capa!le of manual deliver, ! leaving with the person owing such de!ts, or
having in his possession or under his control, such credits or other personal propert, or with his agent, a
cop of the writ, and notice that the de!ts owing ! him to the part against whom attachment is issued,
and the credits and other personal propert in his possession, or under his control, !elonging to said
part, are attached in pursuance of such writ.
'his is what we call C%R<I"E@B<'. 'he new rule includes !an4 deposits, financial interest, roalties,
commissions. In the case of
DE LA VICTORIA 0s) BUR6OS
14* SCRA 3+4 A>??*<
:& #an ou garnish the funds of the government;
%& <o, it is prohi!ited.
.ACTS& In this case, what was garnished was the salar chec4 of an assistant
prosecutor. @a!e he does not want to pa his de!t. "ince his salar is ta4en from the
5FL, the have chec4s which will !e given to the prosecutor to distri!ute. In this case,
the chec4 was in the hands of the #it Prosecutor. It was garnished. G5o not give it to
the assistant prosecutor !ecause he has a de!tH.
ISSUE/ Was there a valid attachment?
-ELD/ <o. In as much as the said chec4 was not et delivered to the paee
(prosecutor), it did not !elong to him and it still had the character of pu!lic funds. %nd as
a necessar conseDuence, the chec4 cannot !e garnished.
'he rationale !ehind this doctrine is the o!vious consideration of pu!lic polic.
Pu!lic funds cannot !e garnished. It is onl after the chec4 has !een given to the paee
that ou can garnish it.
:& #an I attach our share in the estate of the deceased although no specific propert et;
%& 7es. Nnder "ection 7(e).7ou $ust serve the e8ecutor or administrator a cop of the writ and notice .'he
same shall also !e filed in the office of the #ler4 of #ourt where the estate is !eing settled.
:& #an propert which is alread attached !e attached all over again;
%& 7es. 6ast paragraph of section 7. >If the propert sought to !e attached is in custodia legis, a cop of
the writ of attachment shall !e filed with the proper court or Duasi,$udicial agenc, and notice of the
attachment served upon the custodian of such propert.>
"o, a propert attached ma !e attached again !ut ou must inform the court which alread attached it.
:& What is the amendment under the new Rules;
%& "999 $iled %it# t#e (r(er c!rt r :!asi;7!dicial a"ency 999") 'hus, it ma !e attached not
onl ! the court !ut also ! <6R#, etc. 7ou can attach it !ut ou must inform them of the attachment of
the propert alread attached.
Section >. Effect of attacment of de,ts" credits and all oter similar personal
property.+ All persons avin! in teir possession or under teir control any credits or
oter similar personal property ,elon!in! to te party a!ainst #om attacment is
issued" or o#in! any de,ts to im" at te time of service upon tem of te copy of te
#rit of attacment and notice as provided in te last precedin! section" sall ,e
lia,le to te applicant for te amount of suc credits" de,ts or oter similar personal
property" until te attacment is discar!ed" or any -ud!ment recovered ,y im is
satisfied" unless suc personal property is delivered or transferred" or suc de,ts are
paid" to te cler2" seriff" or oter proper officer of te court issuin! te attacment.
Section ?. Effect of attacment of interest in property ,elon!in! to te estate of a
decedent.+ Te attacment of te interest of an eir" le!atee" or devisee in te
property ,elon!in! to te estate of a decedent sall not impair te po#ers of te
e.ecutor" administrator" or oter personal representative of te decedent over suc
property for te purpose of administration. Suc personal representative" o#ever"
sall report te attacment to te court #en any petition for distri,ution is filed"
PROVISIONAL REMEDIES (Rule 57)
and in te order made upon suc petition" distri,ution may ,e a#arded to suc eir"
le!atee" or devotee" ,ut te property attaced sall ,e ordered delivered to te
seriff ma2in! te levy" su,-ect to te claim of suc eir" le!atee" or devisee" or any
person claimin! under im.
Section )@. E.amination of party #ose property is attaced and persons inde,ted to
im or controllin! is property0 delivery of property to seriff.+ Any person o#in!
de,ts to te party #ose property is attaced or avin! in is possession or under
is control any credit or oter personal property ,elon!in! to suc party may ,e
re/uired to attend ,efore te court in #ic te action is pendin!" or ,efore a
commissioner appointed ,y te court" and ,e e.amined on oat respectin! te same.
Te party #ose property is attaced may also ,e re/uired to attend for te purpose of
!ivin! information respectin! is property" and may ,e e.amined on oat. Te court
may" after suc e.amination" order personal property capa,le of manual delivery
,elon!in! to im" in te possession of te person so re/uired to attend ,efore te court"
to te delivered to te cler2 of te court or seriff on suc terms as may ,e -ust"
avin! reference to any lien tereon or claim a!ainst te same" to a#ait te
-ud!ment in te action. 3)@a4
7ou can !e reDuired to appear !efore the court for further Duestioning. "o, the rules under Rule 01,
"ections 06 I 07 with respect to the e8amination of $udgment o!ligor is availa!le also in preliminar
Section )). =en attaced property may ,e sold after levy on attacment and
,efore entry of -ud!ment.+ =enever it sall ,e made to appear to te court in
#ic te action is pendin!" upon earin! #it notice to ,ot parties" tat te
property attaced is perisa,le" or tat te interests of all te parties to te action
#ill ,e su,served ,y te sale tereof" te court may order suc property to ,e sold at
pu,lic auction in suc manner as it may direct" and te proceeds of suc sale to ,e
deposited in court to a,ide te -ud!ment in te action. 3))a4
<ormall, in Preliminar %ttachment, propert is not sold. It is $ust a securit.
B8ception& "ection 11.
1. If it is perisha!le. B.g. rice
.. If the interest of the parties to the action will !e su!served ! the sale thereof.
B.g. % piece of land. "ome!od wants to !u it five times higher than the assessed value. @a4a4a!enefit
:& What are the remedies of a defendant whose propert has !een attached; Is there a wa of helping him;
%& 7es. 6oo4 at "ections 1. and 10.
Section )5. Discar!e of attacment upon !ivin! counter+,ond.+ After a #rit of
attacment as ,een enforced" te party #ose property a# ,een attaced" or te
person appearin! on is ,efalf" may move for te discar!e of te attacment #olly
or in part on te security !iven. Te court sall" after due notice and earin!" order
te discar!e of te attacment if te movant ma2es a cas deposit" or files a
counter+,ond e.ecuted tot e attacin! party #it te cler2 of te court #ere te
application is made" in an amount e/ual to tat fi.ed ,y te court in te order of
attacment" e.clusive of costs. Aut if te attacment is sou!t to ,e discar!ed #it
respect to a particular property" te counter+ ,ond sall ,e e/ual to te value of tat
property as determined ,y te court. In eiter case" te cas deposit or
te counter+ ,ond sall secure te payment of any -ud!ment tat te attacin! party
may recover in te action. A notice of te deposit sall fort#it ,e served on
te attacin! party. Bpon te discar!e of an attacment in accordance #it te
provisions of tis section" te property attaced" or te proceeds of any sale tereof"
sall ,e delivered to te party ma2in! te deposit or !ivin! te counter+,ond" or to te
person appearin! on is ,ealf" te deposit or counter+,ond aforesaid standin! in
place of te property so released. Sould suc counter+,ond for any reason ,e found
to ,e or ,ecome insufficient" and te party furnisin! te same fail to file an additional
counter+ ,ond" te attacin! party may apply for a ne# order of attacment.
Section )7. Discar!e of attacment on oter !rounds.+ Te party #ose property
as ,een ordered attaced may file a motion #it te court in #ic te action is
pendin!" ,efore or after levy or even after te release of te attaced property" for an
order to set aside or discar!e te attacment on te !round tat te same #as
PROVISIONAL REMEDIES (Rule 57)
improperly or irre!ularly issued or enforced" or tat te ,ond is insufficient. If te
attacment is e.cessive" te discar!e sall ,e limited to te e.cess. If te motion ,e
made on affidavits on te part of te movant ,ut not oter#ise" te attacin! party
may oppose te motion ,y counter+affidavits or oter evidence in addition to tat
on #ic te attacment #as made. After due notice and earin!" te court sall
order te settin! aside or te correspondin! discar!e of te attacment of it appears
tat it #as improperly or irre!ularly issued or enforced" or tat te ,ond is
insufficient" or tat te attacment is e.cessive" and te defect is not cured
'irst remed! is for the defendant to put up a counter,!ond to dissolve the attachment. "o, the counter!ond
will ta4e the place of the attached propert. Fr, a cash deposit eDual to the claim of the plaintiff.
(econd remed! is "ection 10. 'he defendant will file a motion to discharge the attachment.
1. that it was improperl or irregularl issued.
.. that it was improperl or irregularl enforced.
0. that the !ond of the plaintiff is insufficient.
:& What is the amendment;
%& 'he phrase, or enforced. Jefore, it was improperl! or irregularl! issued. <ow, it is with >or
enforced, or that the !ond is insufficient.> 'hat is another ground to move to discharge an attachment.
6et us go to "ection 1..
:& Is there such a thing as partial discharge ;
For e8ample, I will attach five (5) parcels of land. 'he defendant will sa, !ecause some!od wants to !u
one of them, >I am moving to discharge onl one of them and I will put up a counter!ond eDual to the
value of one onl.> In effect, he is as4ing for a partial discharge !ased on a partial counter!ond. Is this
%& 7es, it is now allowed in the new law, which is not found in the old law. 6oo4 at section 1., 0rd
sentence, starting with the word >!ut>& >Jut if the attachment is sought to !e discharged with respect to a
particular propert, the counter,!ond shall !e eDual to the value of that propert as determined ! the
"o, it is allowed. 6i4e an installment, partial discharge ! the partial counter,!ond. Jefore, it was all or
:& When a defendant puts up a counter,!ond under section 1., is the attachment earlier made
%& <o, according to the case of Belisle .inance 0s) State In0estment -!se, A>*> SCRA 3C2) it is
onl after hearing and the $udge has ordered the discharged of the attachment can it !e valid. 'here must
!e an order, mere filing would not suffice.
:& #an a person file a counter,!ond and at the same time move to discharge; @eaning, I will file a
counter,!ond to discharge under section1. and then I will move to discharge under section 10. #an ou do
that, avail of the two (.) sections;
%& Well, if ou will follow the ruling in the case of
CALDERON 0s) IAC
>** SCRA *3>
'he answer is 7B". 'he #ourt said& Well, the defendant would li4e to Duestion the
legalit of the attachment !ut he is in a hurr, !ecause there would !e a hearing, which
would dela him. "o, what should he do; Ee can file a counter,!ond without waiving
his right to hearing or he will file a counter,!ond with respect to onl one propert and
continue the hearing under "ection 10 with respect to the other propert. 7ou do not
waive "ection 10 !ecause ou applied "ection 1..
BUT there was this contrar ruling in the case of
MINDANAO SAVIN6S AND LOAN ASSOCIATION 0s) CA
>+1 SCRA 452
PROVISIONAL REMEDIES (Rule 57)
-ELD/ F!$ection to the impropriet or irregularit of writ of attachment ma no longer !e invo4ed once a
counter,!ond is filed. J filing a counter,!ond under "ection 1., he ma not file another motion under
"ection 10 to Duash the writ for impropriet or irregularit. Wh; 'he writ had alread !een Duashed !
filing a counter,!ond, hence, another motion to Duash would !e pointless. 'hat is also logical.
Jut it would seem that there is something wrong a!out the case especiall where there is onl a partial
counter,!ond under "ection 10.
6et us read the first sentence of Sectin >3) "T#e (arty %#se (r(erty #as 'een rdered attac#ed
may $ile a mtin %it# t#e c!rt in %#ic# t#e actin is (endin", 'e$re r a$ter le0y r e0en a$ter
t#e release $ t#e attac#ed (r(erty , $r an rder t set aside r disc#ar"e t#e attac#ment n t#e
"r!nd t#at t#e same %as im(r(erly r irre"!larly iss!ed r en$rced, r t#at t#e 'nd is
5id ou notice that phrase; (underlined one)
'hat is not present under the old law. 7ou can file a motion to the court to discharge attachment !efore or
after lev or even after the released the attached propert.
"o, wh will I file a motion to discharge it when it is alread released; F!viousl, it must have !een
released ! virtue of a counter,!ond. In other words, this amendment seems to support the CALDERON
DOCTRINE that ou can avail of the discharge under "ection 10 and have the propert discharged
without waiving our right to Duestion the validitAcorrectness of attachment. 'hese are the phrases found
in the new law not found in the old law.
:& Who has the !urden of proof; Is it the !urden of the defendant to prove that the attachment is improper
or irregular, or is it the !urden on the part of the plaintiff to show that the attachment is proper;
%& Jased on decided cases, it is the plaintiff who has the !urden to prove the regularit on the challenge
made ! the defendant. In the case of FI6I<PB"' where the attachment was on the ground of fraud ,
that the defendant committed fraud in contracting the o!ligation. It is not the dut of the defendant to prove
the lac4 of fraud. It should !e the plaintiff who will prove the regularit !ecause fraud is not presumed.
"ame message in the case of
BENITE@ VS) IAC
>*4 SCRA 41
-ELD& For the purpose of securing the attachment, the affidavit of the plaintiff is
sufficient, !ut for purposes of determining whether the allegations therein are true or not,
there must !e a hearing.
'he denial of the writ of preliminar attachment under "ection 10 without conducting a
hearing and reDuiring su!stantiation of the allegation of fraud and the allegation is
tantamount to grave a!use of discretion on the part of the $udge.
@eaning, affidavit supporting the application for issuance of preliminar attachment ma !e sufficient to
$ustif the issuance of the preliminar attachment writ. Jut it cannot !e considered as proof of the
"o, these are merel conclusions of law, not statement of facts.
A %rit $ attac#ment may 'e disc#ar"ed %it#!t $ilin" a cas# 'nd r c!nter;'nd (!rs!ant t
sectin >3) Eowever, there is also a limitatin which is laid down in the case of MINDANAO SAVIN6S
and also in the case of CUARTERO 0s) CA, and the situation is something li4e this&
"uppose, I am the defendant and I will move to discharge the attachment !ecause it was improperl issued.
Wh; Jecause the plaintiff has no cause of action against me. @eaning, if he has no cause of action, then
the case is dismissi!le. and if the case is dismissi!le, then there is no !asis for a writ of preliminar
:& (hould the court act on that kind o motion?
%& 'he "# said& 7ou cannotO Sasi, ung ground mo na > there is no cause of action> is now going to the
merits of the case if ou will reDuire the plaintiff to prove his cause of action. It is no longer a hearing on
a motion to discharge an attachment !ut is alread a trial on the main action.
'he "# said in MINDANAO SAVIN6S and in CUARTERO & G%n attachment ma not !e resolved !
showing of its irregular of improper issuance which is upon a ground which at the same time the adverse
cause of action in the main case. "ince an anomalous situation will arise when the issues in the main case
will !e ventilated and resolved in a mere hearing of a motion.H
PROVISIONAL REMEDIES (Rule 57)
OLIB VS) PASTORAL
>55 SCRA C?1
"uppose,the main action has alread !een decided ! the court and appealed to the #%.
'apos merong nang attachment. %t the same time, the defendant would li4e to discharge
the attachment either under "ections 10 or 1..
:& Where should the defendant file the motion to discharge the writ, R'# or #%;
"#& It is the #% and no longer the R'# where the main action is appealed. 'he
attachment which ma have !een issued as an incident of the action is also considered
appealed and so removed from the $urisdiction of the R'#.
In the case of&
C-EMICAL EGPORT AND IMPORT VS) IAC
.ACTS& Plaintiff filed a case against defendant. %nd the plaintiff secured a preliminar
attachment. "o the defendant?s propert is attached. "o, the case is pending while there
was an attachment. While the case is pending, the entered into compromise agreement
and therefore there was $udgment !ased on the compromise agreement.
ISSUE: )s the attachment lien over the propert! o the deendant dissolved or vacated
"ecause o the compromise agreement?
-ELD& It is not deemed vacated. %n attachment lien continues until the de!t is paid or
until $udgment is satisfied or the attachment is discharged or vacated in the same manner
provided ! law. 'he parties to the compromise agreement would not !e deprived of the
protection provided ! the attachment lien especiall in an instance where one remed is
!ases on the o!ligation of the contract or agreement.
If we were to rule otherwise, ou would in effect create a !ac4 door ! which de!tors can
easil escape its creditors. #onseDuentl, we would !e faced with an anomalous situation
where a de!tor in order to have time in order to dispose of his propert would enter into
a compromise agreement in which he has no intention of honoring in the first place ,,
the purpose of provisional remed or attachment would does !e lost. It would !ecome
! analog a toothless tiger.
"o, let us wait for the $udgment to !e satisfied until attachment is discharged.
:& Is there partial discharge of attachment, where I will move to discharge not the entire propert !ut onl a
%& 'hat is allowed under Sectin >3 which is not found under the Fld 6aw.
'his is found in the secnd sentence, > If the attachment is e8cessive, the discharge shall !e limited to the
B8ample, m o!ligation is one million and the attachment is 1.5 million. "o, I can as4 for partial discharge
of P533, 333. Jefore, under the Fld 6aw it is not allowed. Jut now, it is allowed.
Section )8. &roceedin!s #ere property claimed ,y tird person + If te property
attaced is claimed ,y any person oter tan te party a!ainst #om attacment ad
,een issued or is a!ent" and suc person ma2es an affidavit of is title tereto" or
ri!t to te possession tereof" statin! te !rounds of suc ri!t or title" and serves
suc affidavit upon te seriff #ile te latter as possession of te attaced
property" and a copy tereof upon te attacin! party" te seriff sall not ,e ,ound to
2eep te property under attacment" unless te attacin! party or is a!ent" on
demand of te seriff" sall file a ,ond approved ,y te court to indemnify te
tird+party claimant in a sum not less tan te value of te property levied upon. In
case of disa!reement as to suc value" te same sall ,e decided ,y te court issuin!
te #rit of attacment. No claim for dama!es for te ta2in! or 2eepin! of te property
may ,e enforced a!ainst te ,ond unless te action terefor is filed #itin )5@ days
from te date of filin! of te ,ond.
Te seriff sall not ,e lia,le for dama!es for te ta2in! or 2eepin! of suc property
to any suc tird+party claimant" if suc ,ond sall ,e filed. Notin! erein contained
sall prevent suc claimant or any tird person from vindicatin! is claim to te
property or prevent te attacin! party from claimin! dama!es a!ainst a tird+party
claimant #o filed a frivolous or plainly spurious claim" in te same or separate
PROVISIONAL REMEDIES (Rule 57)
=en te #rit of attacment is issued in favor of te Repu,lic of te &ilippines" or
any officer duly representin! it" te filin! of suc ,ond sall not ,e re/uired "and in
case te seriff is sued for dama!es as a result of te attacment" e sall ,e
represented ,y te Solicitor *eneral" and if eld lia,le terefor" te actual dama!e
ad-ud!ed ,y te court sall ,e paid ,y te National Treasurer out of te funds to ,e
appropriated for te purpose.
"ection 12 is almost a word for word reproduction of Rule 01, "ection 16 which is Terceria r t#ird
(arty claim. In Rule 01, the propert levied !elongs to a third person who is not the defendant of the case,
so the remed is 'BR#BRI%.
Ito naman ("ection 12), the propert attached ! wa of preliminar writ of attachment does not !elong to
the defendant. "o, ou can file a third,part claim.
:& #an the 0rd,part Duestion the attachment in the same case; #an he file his o!$ection, as4 for the
discharge of the attached propert in the same case where he is not a part ;
%& 7B", that is allowedO
'hat is a ground for intervention, remem!er;
:& What is the fourth ground for intervention;
%& 'hat the intervenor is so situated that he is adversel affected ! the propert in the custod of the court.
"o, it is a ground for intervention that the propert attached is not owned ! the defendant.
:& "uppose there is alread a writ of e8ecution under Rule 01,, there is alread a decision and writ of
e8ecution and our propert is erroneousl levied in the same situation, can ou Duestion the unlawful
lev under the same case;
%& %s a general rule, <FO Jecause there could !e no intervention,,,since there is alread a $udgment. 'he
remed is a separate action.
In the former e8ample, intervention is proper !ecause there is et no $udgment. Jut in the latter,,, there is
a $udgment alread. Sung meron nang $udgment, wala nang intervention.
REMEDIES O. T-IRD PERSONS/
1. File an independent action under "ection 12
.. File a 0rd,part claim.
0. File a motion for intervention.
Section )9.Satisfaction of -ud!ment out of property attaced0 return of te seriff. + If
-ud!ment ,e recovered ,y te attacin! party and e.ecution issue tereon" te seriff
may cause te -ud!ment to ,e satisfied out of te property attaced" if it ,e sufficient for
tat purpose in te follo#in! manner:
3a4 Ay payin! to te -ud!ment o,li!ee te proceeds of all sales of perisa,le or oter
property sold in pursuance of te order of te court" or so muc as sall ,e
necessary to -ud!ment0
3,4 If any ,alance remains due" ,y sellin! so muc of te property" real or personal"
as may ,e necessary to satisfy te ,alance" if enou! for tat purpose remain in
te seriff6s ands or in tose of te cler2 of te court0
3c4 ,y collection from all te persons avin! in teir possessions credits ,elon!in! to
te -ud!ment o,li!or" or o#in! de,ts to te latter at te time of te attacment of
suc credits de,ts" te amount of suc credits and de,ts as determined ,y te
court in te action stated in te -ud!ment" and payin! te proceeds of suc
collection over to te -ud!ment o,li!ee.
Te seriff sall fort#it ma2e a return in #ritin! to te court of is proceedin!
under tis section and furnis te parties #it copies tereof.
Well, there is no pro!lem if a propert is attached and when the defendant loses, wala ng
pro!lemang maghanap pa ng propert to lev !ecause under "ection 15, the $udgment can !e
satisfied out of the propert attached. "o, it is more of a securit.
Section );. Aalance due collected upon an e.ecution0 e.cess delivered to
-ud!ment o,li!or. + If after reali1in! upon all te property attaced" includin! te
proceeds of any de,ts or credits collected" and applyin! te proceeds to te
PROVISIONAL REMEDIES (Rule 57)
satisfaction of te -ud!ment" less te e.penses of proceedin! upon te -ud!ment" any
,alance sall remain due" te seriff must proceed to collect suc ,alance as upon
ordinary e.ecution. =enever te -ud!ment sall ave ,een paid" te seriff upon
reasona,le demand" must return to te -ud!ment o,li!or te attaced property
remainin! in is ands" and any proceeds of te sale of property attaced not applied
to te -ud!ment.
Section )<. Recovery upon te counter+,ond. + =en te -ud!ment as ,ecome
e.ecutory" te surety or sureties on any counter+,ond !iven pursuant to te
provisions of tis Rule to secure te payment of te -ud!ment sall ,ecome car!ed
counter+,ond and ,ound to pay te -ud!ment o,li!ee upon demand te amount due
under te -ud!ment" #ic amount may ,e recovered from suc surety or sureties
after notice and summary earin! in te same action.
<ow, suppose the propert is released from attachment !ecause of the counter !ond under section 17 the
plaintiff will have to enforce the $udgment against the sureties of the counter !ond. 5id ou notice that
under section 17, it starts with a phrase& > When the $udgment has !ecome e8ecutor, the suret or sureties
will !e held lia!le for the counter !ond.>
:& "uppose, the $udgment is not et final and e8ecutor and there is no e8ecution pending appeal under
Rule 01, "ection .. Is the suret of the counter,!ond lia!le for the $udgment in an e8ecution pending appeal
%& Nnder the present Rule, <F @FRBO It can !e applied to e8ecution pending appeal. 'his is the reversal
of the case P-ILIPPINE BRITIS- ASSURANCE CORPORATION 0s) IAC, >*O SCRA *32) In this
case, the "# said& % counter !ond can !e lia!le for an $udgment whether final or e8ecutor or e8ecution
pending appeal !ecause "ection 17 does not distinguish hat 4ind of $udgment.
Jut now, i!a na ang ruling,,,dahil ang wording ngaon >when the $udgment has !ecome e8ecutor>.
"o, the ruling in PEI6. JRI'I"E %""NR%<#B is deemed a!andoned.
Section )>. Disposition of money deposited. +=ere te party a!ainst #om
attacment ad ,een issued as deposited money instead of !ivin! counter+,ond" it
sall ,e applied under te direction of te court to te satisfaction of any -ud!ment
rendered in favor of te attacin! party" and after satisfyin! te -ud!ment " te
,alance sall ,e refunded to te depositor or is assi!nee. If te -ud!ment is in favor
of te party a!ainst #om attacment #as issued" te #ole sum deposited must ,e
refunded to im or is assi!nee.
Section )?. Disposition of attaced property #ere -ud!ment is for party a!ainst
#om attacment #as issued. + If -ud!ment ,e rendered a!ainst te attacin!
party" all te proceeds of sales and money collected or received ,y te seriff" under
te order of attacment" and all property attaced remainin! in any suc officer6s
ands" sall ,e delivered to te party a!ainst #om attacment #as issued" and te
order of attacment discar!ed.
Nnder this "ection (11), when the $udgment for the defendant,, so nanalo ang defendant, what happened to
the attached propert; Well, of course, it will !e ordered released.
:& Is the release automatic or must there !e an order of release ;
%& 'here must !e an order for the release. 'his was ta4en from the case of OLIB 0s) PASTORAL. 'he
order of attachment is not deemed dissolved upon the rendition of $udgment upon the defendant. 'he order
of attachment is deemed discharged when the $udgment !ecomes final and e8ecutor and which is not
deemed on appeal.
Section 5@. Claim for dama!es on account of improper" irre!ular or e.cessive
attacment. + An application for dama!es on account of improper" irre!ular or
e.cessive attacment must ,e filed ,efore te trial or ,efore appeal is perfected or
,efore te -ud!ment ,ecomes e.ecutory" to
te attacin! party and is surety or sureties" settin! fort te facts so#in! is ri!t
to dama!es and te amount tereof. Suc dama!es may ,e a#arded only after proper
earin! and sall ,e included in te -ud!ment on te same case.
If te -ud!ment of te appellate court ,e favora,le to te party a!ainst #om te
PROVISIONAL REMEDIES (Rule 57)
attacment #as issued" e must claim dama!es sustained durin! of te appeal ,y
filin! an application in te appellate court to te party in #ose favor te attacment
#as issued or is surety or sureties" ,efore te -ud!ment of te appellate court
,ecomes e.ecutory. Te appellate court may allo# te application to ,e eard and
decided ,y te trial court.
Notin! erein contained sall prevent te party a!ainst #om te attacment #as
issued from recoverin! in te same action te dama!es a#arded to im from any
property of te attacin! party not e.empt from e.ecution sould te ,ond or deposit
!iven ,y te latter ,e insufficient or fail to fully satisfy te a#ard.
:& Is it possi!le for the plaintiff to win the case and for the defendant to win the case for the counterclaim;
#an the plaintiff win the case !ut still lia!le for unlawful attachment; %& 7B"O With more reason if the
plaintiff lost the case for he will now answer for all the damages suffered ! the defendant while the
attachment was going on. 'hat is wh there could !e an application for improper, irregular or e8cessive
'a4e note that under the new case,,, the attachment was improper, irregular or e8cessive.
<ow, do not confuse "ection .3 with "ection 17. "ection 17 is recover upon the counter !ond,,,here the
defendant lost the case. In "ection .3, it is the claim for damages against the attachment !ut also claimed
! the defendant.
:& When are ou going to file our claim for damages;
%& Jefore the trial or !efore the appeal is perfected or !efore the $udgment !ecomes final and e8ecutor.
I!ig sa!ihin nian, ou must file our claim for damages in the same case. <otif the suret.
:& #an ou file another case for damages;
%& <F, it is prohi!ited. It must !e claimed and resolved in the same action.
:& Eow do ou file a claim for damages where the attachment was filed !efore trial;
%& "imple, ! wa of counterclaim ! the defendant in his answer.
:& Is the attachment !ond posted ! the suret lia!le when actuall according to the suret the plaintiff
stops paing his premium ears ago;
A: 7es, a !ond is not deemed e8tinguished ! reason alone of such non,pament. Ftherwise, the part can
diminish his lia!ilit ! simpl not paing the !ond.
CALDERON 0s) IAC
>** SCRA *3>
F%#'"& 'he defendant posted a counter,!ond and then later on the defendant is running against the
attachment !ond. I put a counter !ond !ut I?m still holding ou lia!le for the attachment !ond. "a!i ng
"uret #ompan, G<F @FRBO 'he attachment !ond was deemed automaticall dissolved when ou
posted our counter !ond,,,so walang attachment !ond,,, so ano pa ang lia!ilit namin;H
EB65& 7ou are wrong again. What is dissolved is the attachment and not the !ond. 'he !ond continues to
!e lia!le until the end of the case. What is dissolved or discharged is the writ of attachment not the
attachment !ond. It could !e used to !e held lia!le. 'he lia!ilit of the suret in proper or regular
attachment su!sists despite the counter !ond posted ! the defendant.
<ow, this last paragraph of "ection .3 is not found in the Fld 6aw,,,
:& If the attachment !ond is not enough,,,can ou hold the plaintiff lia!le for his personal propert;
%& 7es. 'hat is allowed and it is to !e recovered in the same action. 'here is no need of filing another case
against him. If the attachment !ond is not sufficient, ou can run against the propert of the attached
propert not e8empt from e8ecution and ou recover them in the same action.
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