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2012 Remedial Law Reviewer (Rule 39 To Provisional Remedies)

Posted on March 16, 2012. Filed under: Bar Review Materials, Remedial Law | Tags:
Remedial Law |
Execution, Satisfaction and Effect of Judgments (Rule 39)
When execution shall issue; Execution as a matter of right (Sec. 1)
Execution is a matter of right upon the expiration of the period to appeal and no
appeal was perfected from a judgment or order that disposes of the action or
proceeding (Sec. 1, Rule 39). Once a judgment becomes final and executory, the
prevailing party can have it executed as a matter of right, and the issuance of a writ
of execution becomes the ministerial duty of the court. Once a decision becomes
final and executory, it is the ministerial duty of the presiding judge to issue a writ of
execution except in certain cases, as when subsequent events would render
execution of judgment unjust (Mangahas vs. Paredes, GR 157866, Feb. 14, 2007).
The above principles have been consistently applied. Thus, in a subsequent ruling
the Court declared: Once a judgment becomes final, it is basic that the prevailing
party is entitled as a matter of right to a writ of execution the issuance of which is
the trial courts ministerial duty, compellable by mandamus (Greater Metropolitan
Manila Solid Waste Management Committee vs. Jancom Environmental Corp., GR
2163663, Jan. 30, 2006).
Judgments and orders become final and executor by operation of law and not by
judicial declaration. The trial court need not even pronounce the finality of the order
as the same becomes final by operation of law. Its finality becomes a fact when the
reglementary period for appeal lapses, and no appeal is perfected within such
period (Testate of Maria Manuel Vda. De Biascan, 374 SCRA 621; Vlason Enterprises
vs. CA, 310 SCRA 26).
Discretionary execution (Sec. 2)
The concept of discretionary execution constitutes an exception to the general rule
that a judgment cannot be executed before the lapse of the period for appeal or
during the pendency of an appeal. Under Sec. 1, Rule 39, execution shall issue only
as a matter of right upon a judgment or final order that finally disposes of the action
or proceeding upon the execution of the period to appeal therefrom if no appeal has
been duly perfected.
A discretionary execution is called discretionary precisely because it is not a
matter of right. The execution of a judgment under this concept is addressed to the
discretionary power of the court (Bangkok Bank Public Company Ltd. vs. Lee, GR
159806, Jan. 29, 2006). Unlike judgments that are final and executor, a judgment

subject to discretionary execution cannot be insisted upon but simply prayed and
hoped for because a discretionary execution is not a matter of right.
A discretionary execution like an execution pending appeal must be strictly
construed because it is an exception to the general rule. It is not meant to be
availed of routinely because it applies only in extraordinary circumstances. It should
be interpreted only insofar as the language thereof fairly warrants, and all doubts
should be resolved in favor of the general rule(Planters Products, Inc. vs. CA, GR
106052, Oct. 22, 1999). Where the execution is not in conformity with the rules, the
execution is null and void (Bangkok Bank vs. Lee, supra.).
Requisites for discretionary execution:
There must be a motion filed by the prevailing party with notice to the adverse
party;
There must be a hearing of the motion for discretionary execution;
There must be good reasons to justify the discretionary execution; and
The good reasons must be stated in a special order (Sec. 2, Rule 39).
How a judgment is executed (Sec. 4)
Judgments in actions for injunction, receivership, accounting and support, and such
other judgments as are now or may hereafter be declared to be immediately
executory, shall be enforceable after their rendition and shall not be stayed by an
appeal taken therefrom, unless otherwise ordered by the trial court. on appeal
therefrom, the appellate court in its discretion may make an order suspending,
modifying, restoring or granting the injunction, receivership, accounting, or award of
support. The stay of execution shall be upon such terms as to bond or otherwise as
may be considered proper for the security or protection of the rights of the adverse
party.
Judgments that may be altered or modified after becoming final and executory:
Facts and circumstances transpire which render its execution impossible or unjust;
Support;
Interlocutory judgment.
Execution by motion or by independent action (Sec. 6)

A final and executor judgment or order may be executed on motion within 5 years
from the date of its entry. After the lapse of such time, and before it is barred by the
statute of limitations, a judgment may be enforced by action. The revived judgment
may also be enforced by motion within 5 years from the date of its entry and
thereafter by action before it is barred by the statute of limitations.
Issuance and contents of a writ of execution (Sec. 8)
The writ of execution shall: (i) issue in the name of the Republic of the Philippines
from the court which granted the motion; (ii) state the name of the court, the case
number and title, the dispositive part of the subject judgment or order; and (iii)
require the sheriff or other proper officer to whom it is directed to enforce the writ
according to its term, in the manner hereinafter provided:
If the execution be against the property of the judgment obligor, to satisfy the
judgment, with interest, out of the real or personal property of such judgment
obligor;
If it be against real or personal property in the hands of personal representatives,
heirs, devisees, legatees, tenants, or trustees of the judgment obligor, to satisfy the
judgment, with interest, out of such property;
If it be for the sale of real or personal property, to sell such property, describing it,
and apply the proceeds in conformity with the judgment, the material parts of which
shall be recited in the writ of execution;
If it be for the delivery of the possession of real or personal property, to deliver the
possession of the same, describing it, to the party entitled thereto, and to satisfy
any costs, damages, rents, or profits covered by the judgment out of the personal
property of the person against whom it was rendered, and if sufficient personal
property cannot be found, then out of the real property; and
In all cases, the writ of execution shall specifically state the amount of the interest,
costs, damages, rents, or profits due as of the date of the issuance of the writ, aside
from the principal obligation under the judgment. For this purpose, the motion for
execution shall specify the amounts of the foregoing reliefs sought by the movants.
Execution of judgment for money (Sec. 9)
In executing a judgment for money, the sheriff shall follow the following steps:
Demand from the judgment obligor the immediate payment of the full amount
stated in the judgment including the lawful fees in cash, certified check payable to
the judgment oblige or any other form of payment acceptable to him (Sec. 9). In

emphasizing this rule, the SC held that in the execution of a money judgment, the
sheriff is required to first make a demand on the obligor for the immediate payment
of the full amount stated in the writ of execution (Sibulo vs. San Jose, 474 SCRA
464).
If the judgment obligor cannot pay all or part of the obligation in cash, certified
check or other mode of payment, the officer shall levy upon the properties of the
judgment obligor. The judgment obligor shall have the option to choose which
property or part thereof may be levied upon. If the judgment obligor does not
exercise the option, the officer shall first levy on the personal properties, if any, and
then on the real properties if the personal properties are insufficient to answer for
the personal judgment but the sheriff shall sell only so much of the property that is
sufficient to satisfy the judgment and lawful fees (Sec. 9[b]).
Execution of judgment for specific acts (Sec. 10)
If the judgment requires a person to perform a specific act, said act must be
performed but if the party fails to comply within the specified time, the court may
direct the act to be done by someone at the cost of the disobedient party and the
act when so done shall have the effect as if done by the party (Sec 10[a]). If the
judgment directs a conveyance of real or personal property, and said property is in
the Philippines, the court in lieu of directing the conveyance thereof, may by an
order divest the title of any party and vest it in others, which shall have the force
and effect of a conveyance executed in due form of law (Sec. 10[a], Rule 39).
Execution of special judgments (Sec. 11)
When a judgment requires the performance of any act other than those mentioned
in the two preceding sections, a certified copy of the judgment shall be attached to
the writ of execution and shall be served by the officer upon the party against
whom the same is rendered, or upon any other person required thereby, or by law,
to obey the same, and such party or person may be punished for contempt if he
disobeys such judgment.
Effect of levy on third persons (Sec. 12)
The levy on execution shall create a lien in favor of the judgment oblige over the
right, title and interest of the judgment obligor in such property at the time of the
levy, subject to liens and encumbrances then existing.
Properties exempt from execution (Sec. 13)
1. There are certain properties exempt from execution enumerated under Sec.
13, Rule 39:

2. The judgment obligors family home as provided by law, or the homestead in


which he resides, and the land necessarily used in connection therewith;
3. Ordinary tools and implements personally used by him in his trade,
employment, or livelihood;
4. Three horses, or three cows, or three carabaos, or other beasts of burden,
such as the judgment obligor may select necessarily used by him in his
ordinary occupation;
5. His necessary clothing and articles for ordinary personal use, excluding
jewelry;
6. Household furniture and utensils necessary for housekeeping, and used for
that purpose by the judgment obligor and his family, such as the judgment
obligor may select, of a value not exceeding 100,000 pesos.
7. Provisions for individual or family use sufficient for four months;
8. The professional libraries and equipment of judges, lawyers, physicians,
pharmacists, dentists, engineers, surveyors, clergymen, teachers, and other
professionals, not exceeding 300,000 pesos;
9. One fishing boat and accessories not exceeding the total value of 100,000
pesos owned by a fisherman and by the lawful use of which he earns his
livelihood;
10.So much of the salaries, wages, or earnings of the judgment obligor for his
personal services with 4 months preceding the levy as are necessary for the
support of his family;
11.Lettered gravestones;
12.Monies, benefits, privileges, or annuities accruing or in any manner growing
out of any life insurance;
13.The right to receive legal support, or money or property obtained as such
support, or any pension or gratuity from the government; and
14.Properties specially exempted by law (Sec. 13, Rule 39).
Proceedings where property is claimed by third persons (Sec. 16)

If the property levied on is claimed by any person other than the judgment obligor
or his agent, and such person makes an affidavit of his title thereto or right to the
possession thereof, stating the grounds of such right or title, and serves the same
upon the officer making the levy and a copy thereof upon the judgment obligee, the
officer shall not be bound to keep the property, unless such judgment obligee, on
demand of the officer, files a bond approved by the court to indemnify the thirdparty claimant in a sum not less than the value of the property levied on. In case of
disagreement as to such value, the same shall be determined by the court issuing
the writ of execution. 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.
The officer shall not be liable for damages for the taking or keeping of the property,
to any third-party claimant if such bond is filed. Nothing herein contained shall
prevent such claimant or any third person from vindicating his claim to the property
in a separate action, or prevent the judgment obligee from claiming damages in the
same or a separate action against a third-party claimant who filed a frivolous or
plainly spurious claim.
When the writ of execution is issued in favor of the Republic of the Philippines, or
any officer duly representing it, the filing of such bond shall not be required, and in
case the sheriff or levying officer is sued for damages as a result of the levy, he
shall be represented by the Solicitor General and if held liable therefor, the actual
damages adjudged by the court shall be paid by the National Treasurer out of such
funds as may be appropriated for the purpose.
Requisites for a claim by a third person:
The property is levied;
The claimant is a person other than the judgment obligor or his agent;
Makes an affidavit of his title thereto or right to the possession thereof stating the
grounds of such right or title; and
Serves the same upon the officer making the levy and the judgment obligee.
Examination of judgments obligor when judgment is unsatisfied (Sec. 36)
When the return of a writ of execution issued against property of a judgment
obligor, or any one of several obligors in the same judgment, shows that the
judgment remains unsatisfied, in whole or in part, the judgment obligee, at any time
after such return is made, shall be entitled to an order from the court which
rendered the said judgment, requiring such judgment obligor to appear and be
examined concerning his property and income before such court or before a
commissioner appointed by it, at a specified time and place; and proceedings may
thereupon be had for the application of the property and income of the judgment

obligor towards the satisfaction of the judgment. But no judgment obligor shall be
so required to appear before a court or commissioner outside the province or city in
which such obligor resides or is found.
Examination of obligor of judgment obligor (Sec. 37)
When the return of a writ of execution against the property of a judgment obligor
shows that the judgment remains unsatisfied, in whole or in part, and upon proof to
the satisfaction of the court which issued the writ, that person, corporation, or other
juridical entity has property of such judgment obligor or is indebted to him, the
court may, by an order, require such person, corporation, or other juridical entity, or
any officer or member thereof, to appear before the court or a commissioner
appointed by it, at a time and place within the province or city where such debtor
resides or is found, and be examined concerning the same. The service of the order
shall bind all credits due the judgment obligor and all money and property of the
judgment obligor in the possession or in control of such person, corporation, or
juridical entity from the time of service; and the court may also require notice of
such proceedings to be given to any party to the action in such manner as it may
deem proper.
Effect of judgment or final orders (Sec. 47)
In case of a judgment or final order against a specific thing, or in respect to the
probate of a will, or the administration of the estate of a deceased person, or in
respect to the personal, political, or legal condition or status of a particular person
or his relationship to another, the judgment or final order is conclusive upon the title
to the thing, the will or administration, or the condition, status or relationship of the
person; however, the probate of a will or granting of letters of administration shall
only be prima facie evidence of the truth of the testator or intestate;
In other cases, the judgment or final order is, with respect to the matter directly
adjudged or as to any other matter that could have been raised in relation thereto,
conclusive between the parties and their successors in interest by title subsequent
to the commencement of the action or special proceeding, litigating for the same
thing and under the same title and in the same capacity; and
In any other litigation between the same parties or their successors in interest, that
only is deemed to have been adjudged in a former judgment or final order which
appears upon its face to have been so adjudged, or which was actually and
necessarily included therein or necessary thereto.
Enforcement and effect of foreign judgments or final orders (Sec. 48)

In case of a judgment or final order upon a specific thing, the judgment or final
order is conclusive upon the title to the thing; and
In case of a judgment or final order against a person, the judgment or final order is
presumptive evidence of a right as between the parties and their successors in
interest by a subsequent title. In either case, the judgment or final order may be
repelled by evidence of a want of jurisdiction, want of notice to the party, collusion,
fraud, or clear mistake of law or fact.
Provisional Remedies (Rules 57-61)
Nature of provisional remedies
Provisional remedies are temporary, auxiliary, and ancillary remedies available to a
litigant for the protection and preservation of his rights while the main action is
pending. They are writs and processes which are not main actions and they
presuppose the existence of a principal action.
Provisional remedies are resorted to by litigants for any of the following reasons:
To preserve or protect their rights or interests while the main action is pending;
To secure the judgment;
To preserve the status quo; or
To preserve the subject matter of the action.
Provisional remedies specified under the rules are:
Preliminary attachment (Rule 57);
Preliminary injunction (Rule 58);
Receivership (Rule 59);
Replevin (Rule 60); and
Support pendent lite (Rule 61).
Jurisdiction over provisional remedies

The courts which grants or issues a provisional remedy is the court which has
jurisdiction over the main action. Even an inferior court may grant a provisional
remedy in an action pending with it and within its jurisdiction.
Preliminary Attachment (Rule 57)
Preliminary attachment is a provisional remedy issued upon order of the court
where an action is pending to be levied upon the property of the defendant so the
property may be held by the sheriff as security for the satisfaction of whatever
judgment may be rendered in the case(Davao Light and Power, Inc. vs. CA, 204
SCRA 343).
When availed of and is granted in an action purely in personam, it converts the
action to one that is quasi in rem. In an action in rem or quasi in rem, jurisdiction
over the res is sufficient. Jurisdiction over the person of the defendant is not
required (Villareal vs. CA, 295 SCRA 511).
Preliminary attachment is designed to:
Seize the property of the debtor before final judgment and put the same in custodial
egis even while the action is pending for the satisfaction of a later judgment (Insular
Bank of Asia and America vs. CA, 190 SCRA 629);
To enable the court to acquire jurisdiction over the res or the property subject of the
action in cases where service in person or any other service to acquire jurisdiction
over the defendant cannot be affected.
Preliminary attachment has three types:
Preliminary attachment one issued at the commencement of the action or at any
time before entry of judgment as security for the satisfaction of any judgment that
may be recovered. Here the court takes custody of the property of the party against
whom attachment is directed.
Garnishment plaintiff seeks to subject either the property of defendant in the
hands of a third person (garnishee) to his claim or the money which said third
person owes the defendant. Garnishment does not involve actual seizure of
property which remains in the hands of the garnishee. It simply impounds the
property in the garnishees possession and maintains thestatus quo until the main
action is finally decided. Garnishment proceedings are usually directed against
personal property, tangible or intangible and whether capable of manual delivery or
not.

Levy on execution writ issued by the court after judgment by which the property of
the judgment obligor is taken into custody of the court before the sale of the
property on execution for the satisfaction of a final judgment. It is the preliminary
step to the sale on execution of the property of the judgment debtor.
The grant of the remedy is addressed to the discretion of the court whether or not
the application shall be given full credit is discretionary upon the court. in
determining the propriety of the grant, the court also considers the principal case
upon which the provisional remedy depends.
Grounds for issuance of writ of attachment
At the commencement of the action or at any time before entry of judgment, a
plaintiff or any proper party may have the property of the adverse party attached as
security for the satisfaction of any judgment that may be recovered in the following
cases:
In an action for the recovery of a specified amount of money or damages, other
than moral and exemplary, on a cause of action arising from law, contract, quasicontract, delict or quasi-delict against a party who is about to depart from the
Philippines with intent to defraud his creditors;
In an action for money or property embezzled or 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 willful violation of duty;
In an action to recover the possession of property unjustly or fraudulently taken,
detained or converted, when the property, or any party thereof, has been
concealed, removed, or disposed of to prevent its being found or taken by the
applicant or an authorized person;
In an action against a party who has been guilty of a fraud in contracting the debt or
incurring the obligation upon which the action the action is brought, or in the
performance thereof;
In an action against a party who has removed or disposed of his property, or is
about to do so, with intent to defraud his creditors; or
In an action against a party who does not reside and is not found in the Philippines,
or on whom summons may be served by publication (Sec. 1).
Requisites

The issuance of an order/writ of execution requires the following:


The case must be any of those where preliminary attachment is proper;
The applicant must file a motion (ex parte or with notice and hearing);
The applicant must show by affidavit (under oath) that there is no sufficient security
for the claim sought to be enforced; that the amount claimed in the action is as
much as the sum of which the order is granted above all counterclaims; and
The applicant must post a bond executed to the adverse party. This is called an
attachment bond, which answers for all damages incurred by the party against
whom the attachment was issued and sustained by him by reason of the
attachment (Carlos vs. Sandoval, 471 SCRA 266).
Issuance and contents of order of attachment; affidavit and bond
An order of attachment may be issued either ex parte or upon motion with notice
and hearing by the court in which the action is pending, or by the CA or the SC, and
must require the sheriff of the court to attach so much of the property in the
Philippines of the party against whom it is issued, not exempt from execution, as
may be sufficient to satisfy the applicants demand, unless such party makes
deposit or gives a bond in an amount equal to that fixed in the order, which may be
the amount sufficient to satisfy the applicants demand or the value of the property
to be attached as stated by the applicant, exclusive of costs. Several writs may be
issued at the same time to the sheriffs of the courts of different judicial regions
(Sec. 2).
An order of attachment shall be granted only when it appears by the affidavit of the
applicant, or of some other person who personally knows the facts, that a sufficient
cause of action exists, that the case is one of those mentioned in Section1, that
there is no other sufficient security for the claim sought to be enforced by the
action, and that the amount due to the applicant, or the value of the property the
possession of which he is entitled to recover, is as much as the sum for which the
order is granted above all legal counterclaims. The affidavit, and the bond must be
filed with the court before the order issues (Sec. 3).
Rule on prior or contemporaneous service of summons
No levy on attachment pursuant to the writ of preliminary attachment shall be
enforced unless it is preceded, or contemporaneously accompanied, by the service
of summons, together with a copy of the complaint, the application for attachment,
the applicants affidavit and bond, and the order and writ of attachment, on the
defendant within the Philippines.

The requirement of prior or contemporaneous service of summons shall not apply in


the following instances:
Where the summons could not be served personally or by substituted service
despite diligent efforts;
The defendant is a resident of the Philippines who is temporarily out of the country;
The defendant is a non-resident; or
The action is one in rem or quasi in rem(Sec. 5).
Manner of attaching real and personal property; when property attached is claimed
by third
person
Sec. 7. Attachment of real and personal property; recording thereof. Real and
personal property shall be attached by the sheriff executing the writ in the following
manner:
(a) Real property, or growing crops thereon, or any interest therein, standing upon
the record of the registry of deeds of the province in the name of the party against
whom attachment is issued, or not appearing at all upon such records, or belonging
to the party against whom attachment is issued and held by any other person, or
standing on the records of the registry of deeds in the name of any other person, by
filing with the registry of deeds a copy of the order, together with a description of
the property attached, and a notice that it is attached, or that such real property
and any interest therein held by or standing in the name of such other person are
attached, and by leaving a copy of such order, description, and notice with the
occupant of the property, if any, or with such other person or his agent if found
within the province. Where the property has been brought under the operation of
either the Land Registration Act or the Property Registration Decree, the notice shall
contain a reference to the number of the certificate of title, the volume and page in
the registration book where the certificate is registered, and the registered owner or
owners thereof.
The registrar of deeds must index attachments filed under this section in the names
of the applicant, the adverse party, or the person by whom the property is held or in
whose name it stands in the records. If the attachment is not claimed on the entire
area of the land covered by the certificate of title, a description sufficiently accurate
for the identification of the land or interest to be affected shall be included in the
registration of such attachment;

(b) Personal property capable of manual delivery, by taking and safely keeping it in
his custody, after issuing the corresponding receipt therefor;
(c) Stocks or shares, or an interest in stocks or shares, of any corporation or
company, by leaving with the president or managing agent thereof, a copy of the
writ, and a notice stating that the stock or interest of the party against whom the
attachment is issued is attached in pursuance of such writ;
(d) Debts and credits, including bank deposits, financial interest, royalties,
commissions and other personal property 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 whom attachment is
issued, and the credits and other personal property in his possession, or under his
control, belonging to said party, are attached in pursuance of such writ;
(e) The interest of the party against whom attachment is issued in property
belonging to the estate of the decedent, whether as heir, legatee, or devisee, by
serving the executor or administrator or other personal representative of the
decedent with a copy of the writ and notice that said interest is attached. A copy of
said writ of attachment and of said notice shall also be filed in the office of the clerk
of the court in which said estate is being settled and served upon the heir, legatee
or devisee concerned.
If the property sought to be attached is in custodia legis, a copy of the writ of
attachment shall be filed with the proper court or quasi-judicial agency, and notice
of the attachment served upon the custodian of such property.
Certain remedies available to a third person not party to the action but whose
property is the subject of execution:
Terceria by making an affidavit of his title thereto or his right to possession
thereof, stating the grounds of such right or title. The affidavit must be served upon
the sheriff and the attaching party (Sec. 14). Upon service of the affidavit upon him,
the sheriff shall not be bound to keep the property under attachment except if the
attaching party files a bond approved by the court. the sheriff shall not be liable for
damages for the taking or keeping of the property, if such bond shall be filed.
Exclusion or release of property Upon application of the third person through a
motion to set aside the levy on attachment, the court shall order a summary
hearing for the purpose of determining whether the sheriff has acted rightly or
wrongly in the performance of his duties in the execution of the writ of attachment.
The court may order the sheriff to release the property from the erroneous levy and

to return the same to the third person. In resolving the application, the court cannot
pass upon the question of title to the property with any character of finality but only
insofar as may be necessary to decide if the sheriff has acted correctly or not(Ching
vs. CA, 423 SCRA 356).
Intervention this is possible because no judgment has yet been rendered and
under the rules, a motion for intervention may be filed any time before the rendition
of the judgment by the trial court (Sec. 2, Rule 19).
Accion Reivindicatoria The third party claimant is not precluded by Sec. 14, Rule
57 from vindicating his claim to the property in the same or in a separate action. He
may file a separate action to nullify the levy with damages resulting from the
unlawful levy and seizure. This action may be a totally distinct action from the
former case.
Discharge of attachment and the counter-bond
If the attachment has already been enforced, the party whose property has been
attached may file a motion to discharge the attachment. This motion shall be with
notice and hearing. After due notice and hearing, the court shall discharge the
attachment if the movants makes a cash deposit or files a counter-bond executed to
the attaching party with the clerk of court where the application is made in an
amount equal to that fixed by the court in the order of attachment, exclusive of
costs. Counter-bonds are replacements of the property formerly attached, and just
as the latter, may be levied upon after final judgment. Note that the mere posting of
counterbond does not automatically discharge the writ of attachment. It is only after
the hearing and after the judge has ordered the discharge of attachment that the
same is properly discharged (Sec. 12).
Attachment may likewise be discharged without the need for filing of a counterbond. This is possible when the party whose property has been attached files a
motion to set aside or discharge the attachment and during the hearing of the
motion, he proves that:
The attachment was improperly or irregularly issued or enforced; or
The bond of the attaching creditor is insufficient; or
The attachment is excessive and must be discharged as to the excess (Sec. 13); or
The property is exempt from execution, and as such is also exempt from preliminary
attachment(Sec. 2).