RULE 57: PRELIMINARY ATTACHMENT

Prepared by: Atty. Edwin E, Torres (MSU 2019)

By its nature, preliminary attachment, under Rule 57 of the Rules of Court, "is an ancillary
remedy applied for not for its own sake but to enable the attaching party to realize upon relief
sought and expected to be granted in the main or principal action; it is a measure auxiliary or
incidental to the main action. As such, it is available during the pendency of the action which
may be resorted to by a litigant to preserve and protect certain rights and interests therein
pending rendition and for purposes of the ultimate effects, of a final judgment in the case. In
addition, attachment is also availed of in order to acquire jurisdiction over the action by actual
or constructive seizure of the property in those instances where personal or substituted service

Section 21 of the Ship Mortgage Decree establishes a maritime lien on vessels in favor of any
persons furnishing repairs, supplies, towage, use of dry dock or marine railway, or other
necessaries to any vessel, whether foreign or domestic, upon the order of the owners of such
vessels, or of persons authorized by the owners which may be enforced by suit in rem, and it
shall be necessary to allege or prove that credit was given to the vessel. A party who has a lien
in his or her favor has a remedy in law to hold the property liable for the payment of the
obligation. A lienholder has the remedy of filing an action in court for the enforcement of the lien.
In such action, a lienholder must establish that the obligation and the corresponding lien exist
before he or she can demand that the property subject to the lien be sold for the payment of the
obligation. An attachment proceeding is for the purpose of creating a lien on the property to
serve as security for the payment of the creditors' claim. Hence, where a lien already exists, as
in the case of a maritime lien, the same is already equivalent to an attachment. Where there is
a maritime lien in accordance with the Ship Mortgage Decree, the lien holder should only file a
proper action in court for its enforcement. The issuance of a writ of preliminary attachment on
the pretext that it is the only means to enforce a maritime lien is superfluous. The reason that
the Ship Mortgage Decree does not provide for a detailed procedure for the enforcement of a
maritime lien is because it is not necessary.1

Section 1. Grounds upon which attachment may issue. — 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:

1. Rule 57 in fact speaks of the grant of the remedy 'at the commencement of the action or
at any time thereafter.' The phrase, 'at the commencement of the action,' obviously refers to the
date of the filing of the complaint – which, as above pointed out, is the date that marks 'the
commencement of the action;' and the reference plainly is to a time before summons is served
on the defendant, or even before summons issues. What the rule is saying quite clearly is that
after an action is properly commenced – by the filing of the complaint and the payment of all
requisite docket and other fees – the plaintiff may apply for and obtain a writ of preliminary
attachment upon fulfillment of the pertinent requisites laid down by law, and that he may do so
at any time, either before or after service of summons on the defendant. And this indeed, has
been the immemorial practice sanctioned by the courts: for the plaintiff or other proper party to
incorporate the application for attachment in the complaint or other appropriate pleading
(counter-claim, cross-claim, third-party claim) and for the Trial Court to issue the writ ex-parte at
the commencement of the action if it finds the application otherwise sufficient in form and
substance."2

2. Writs of attachment may properly issue ex parte provided that the Court is satisfied that
the relevant requisites therefor have been fulfilled by the applicant, although it may, in its
discretion, require prior hearing on the application with notice to the defendant; but that levy on
property pursuant to the writ thus issued may not be validly effected unless preceded, or
contemporaneously accompanied, by service on the defendant of summons, a copy of the
complaint (and of the appointment of guardian ad litem, if any), the application for attachment (if

1
Tsuneishi Heavy Industries vs. MIS Maritime Corporation (G.R. No. 193572).
2
Master Tours and Travel Corporation vs. CA, et al. (G.R. No. 105409, 1 March 1993).
1
not incorporated in but submitted separately from the complaint), the order of attachment, and
the plaintiff's attachment bond.3

3. The grant of the provisional remedy of attachment practically involves three stages: first,
the court issues the order granting the application; second, the writ of attachment issues
pursuant to the order granting the writ; and third, the writ is implemented. For the initial two
stages, it is not necessary that jurisdiction over the person of the defendant should first be
obtained. However, once the implementation commences, it is required that the court must
have acquired jurisdiction over the defendant for without such jurisdiction, the court has no
power and authority to act in any manner against the defendant. Any order issuing from the
Court will not bind the defendant.4

(a) 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, quasi-
contract, delict or quasi-delict against a party who is about to depart from the
Philippines with intent to defraud his creditors;

(b) 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;

Plaintiff cannot merely cite Section 1(b) and (d), Rule 57, of the Revised Rules of Court, as
mere reproduction of the rules, without more, cannot serve as good ground for issuing a writ of
attachment. An order of attachment cannot be issued on a general averment, such as one
ceremoniously quoting from a pertinent rule.

(c) In an action to recover the possession of property unjustly or fraudulently

taken, detained or converted, when the property, or any part thereof, has been
concealed, removed, or disposed of to prevent its being found or taken by the
applicant or an authorized person;

(d) 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 is brought, or in the
performance thereof;

1. Mere failure to pay the boat storage fees does not necessarily amount to fraud, absent
any showing that such failure was due to insidious machinations and intent on his part to
defraud Watercraft of the amount due it. To constitute a ground for attachment in Section 1(d),
Rule 57 of the Rules of Court, it must be shown that the debtor in contracting the debt or
incurring the obligation intended to defraud the creditor. A debt is fraudulently contracted if at
the time of contracting it, the debtor has a preconceived plan or intention not to pay. "The fraud
must relate to the execution of the agreement and must have been the reason which induced
the other party into giving consent which he would not have otherwise given." Fraudulent intent
is not a physical entity, but a condition of the mind beyond the reach of the senses, usually kept
secret, very unlikely to be confessed, and therefore, can only be proved by unguarded
expressions, conduct and circumstances. Thus, the applicant for a writ of preliminary
attachment must sufficiently show the factual circumstances of the alleged fraud because
fraudulent intent cannot be inferred from the debtor's mere non-payment of the debt or failure to
comply with his obligation. The particulars of such circumstances necessarily include the time,
persons, places and specific acts of fraud committed. An affidavit which does not contain
concrete and specific grounds is inadequate to sustain the issuance of such writ. In fact, mere
general averments render the writ defective and the court that ordered its issuance acted with
grave abuse of discretion amounting to excess of jurisdiction.5

2. For a writ of preliminary attachment to issue under the above-quoted rule, the applicant
must sufficiently show the factual circumstances of the alleged fraud. It is settled that fraudulent
intent cannot be inferred from the debtor's mere non-payment of the debt or failure to comply

3
Davao Light & Power Co., Inc. vs. CA, et al. (G.R. No. 93262, 29 December 1991).
4
Cuartero vs. CA and Others (G.R. No. 102448, 5 August 1992).
5
Watercraft Venture Corporation vs. Wolfe (G.R. No. 181721, 9 September 2015).
2
with his obligation. While fraud cannot be presumed, it need not be proved by direct evidence
and can well be inferred from attendant circumstances. Fraud by its nature is not a thing
susceptible of ocular observation or readily demonstrable physically; it must of necessity be
proved in many cases by inferences from circumstances shown to have been involved in the
transaction in question.6

3. Previously, Section 1 (d), Rule 57 of the 1964 Rules of Court provided that a writ of
preliminary attachment may be issued "[i]n an action against a party who has been guilty of a
fraud in contracting the debt or incurring the obligation upon which the action is brought x x x."
Thus, the fraud that justified the issuance of a writ of preliminary attachment then was only fraud
committed in contracting an obligation (dolo casuante). When the 1997 Rules of Civil
Procedure was issued by the Court, Section l(d) of Rule 57 conspicuously included the phrase
"in the performance thereof." Hence, the fraud committed in the performance of the obligation
(dolo incidente) was included as a ground for the issuance of a writ of preliminary attachment.
The amendment was made to include within the scope of the grounds for issuance of a writ of
preliminary attachment those instances relating to fraud in the performance of the obligation.
Example: There in indication of fraud when the obligor did not meet the representatives of the
bank despite agreement to a specific date to discuss the former’s proposed repayment
scheme.7

4. To sustain an attachment on this ground, it must be shown that the debtor in contracting
the debt or incurring the obligation intended to defraud the creditor. The fraud must relate to the
execution of the agreement and must have been the reason which induced the other party into
giving consent which he would not have otherwise given. To constitute a ground for attachment
in Section 1 (d), Rule 57 of the Rules of Court, fraud should be committed upon contracting the
obligation sued upon. A debt is fraudulently contracted if at the time of contracting it the
debtor has a preconceived plan or intention not to pay, as it is in this case. Fraud is a state
of mind and need not be proved by direct evidence but may be inferred from the circumstances
attendant in each case.8

5. The affidavit, being the foundation of the writ, must contain such particulars as to how
the fraud imputed to respondent was committed for the court to decide whether or not to issue
the writ. Absent any statement of other factual circumstances to show that respondent, at the
time of contracting the obligation, had a preconceived plan or intention not to pay, or without any
showing of how respondent committed the alleged fraud, the general averment in the affidavit
that respondent is an officer and director of Wincorp who allegedly connived with the other
defendants to commit a fraud, is insufficient to support the issuance of a writ of preliminary
attachment. In the application for the writ under the said ground, compelling is the need to give
a hint about what constituted the fraud and how it was perpetrated because established is the
rule that fraud is never presumed. The mere fact that respondent is an officer and director of
the company does not necessarily give rise to the inference that he committed a fraud or that he
connived with the other defendants to commit a fraud. While under certain circumstances,
courts may treat a corporation as a mere aggroupment of persons, to whom liability will directly
attach, this is only done when the wrongdoing has been clearly and convincingly established.9

(e) 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

(f) 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. (1a)

Section 2. Issuance and contents of order. — 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 Court of Appeals or the Supreme Court, 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

6
Security Bank Corporation vs. Great Wall Commercial Press Company, Inc., et al (G.R. No. 219345, 30 January
2017).
7
Ibid.
8
Philippine Bank of Communications vs. CA and Another (G.R. No. 119723, 23 January 2001).
9
Wee vs. Tankiansee (G.R. No. 171124, 13 February 2008).
3
applicant's demand, unless such party makes deposit or gives a bond as hereinafter
provided in an amount equal to that fixed in the order, which may be the amount
sufficient to satisfy the applicant's 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. (2a)

Section 3. Affidavit and bond required. — 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 section 1 hereof, that there is no other sufficient security for the claim
sought to be enforced by the action, and that the amount due to the 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 required by the next succeeding section, must be duly filed with the court before
the order issues. (3a)

1. A writ of preliminary attachment is defined as a provisional remedy issued upon order of

the court where an action is pending to be levied upon the property or properties of the
defendant therein, the same to be held thereafter by the sheriff as security for the satisfaction of
whatever judgment that might be secured in the said action by the attaching creditor against the
defendant. However, it should be resorted to only when necessary and as a last remedy
because it exposes the debtor to humiliation and annoyance. It must be granted only on
concrete and specific grounds and not merely on general averments quoting the words of the
rules.12 Since attachment is harsh, extraordinary, and summary in nature, the rules on the
application of a writ of attachment must be strictly construed in favor of the defendant. the
court in which the action is pending. Such bond executed to the adverse party in the amount
fixed by the court is subject to the conditions that the applicant will pay: (1) all costs which may
be adjudged to the adverse party; and (2) all damages which such party may sustain by reason
of the attachment, if the court shall finally adjudge that the applicant was not entitled thereto. As
to the requisite affidavit of merit, Section 3, Rule 57of the Rules of Court states that an order of
attachment shall be granted only when it appears in the affidavit of the applicant, or of some
other person who personally knows the facts:

1. that a sufficient cause of action exists;

2. that the case is one of those mentioned in Section 117 hereof;

3. that there is no other sufficient security for the claim sought to be enforced by
the action; and

4. 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.10

2. The mere filing of an affidavit reciting the facts required by Section 3, Rule 57, however,
is not enough to compel the judge to grant the writ of preliminary attachment. Whether or not
the affidavit sufficiently established facts therein stated is a question to be determined by the
court in the exercise of its discretion. The sufficiency or insufficiency of an affidavit depends
upon the amount of credit given it by the judge, and its acceptance or rejection, upon his sound
discretion.11

3. No notice to the adverse party or hearing of the application is required. As a matter of

fact a hearing would defeat the purpose of this provisional remedy. The time which such a
hearing would take, could be enough to enable the defendant to abscond or dispose of his
property before a writ of attachment issues. Nevertheless, while no hearing is required by the
Rules of Court for the issuance of an attachment, a motion to quash the writ may not be granted

10
Ibid.
11
Ibid.
4
without "reasonable notice to the applicant" and only "after hearing" (Secs. 12 and 13, Rule 57,
Rules of Court).12

4. Under section 3, Rule 57 of the Rules of Court, the only requisites for the issuance of the
writ are the affidavit and bond of the applicant. No notice to the adverse party or hearing of the
application is required inasmuch as the time which the hearing will take could be enough to
enable the defendant to abscond or dispose of his property before a writ of attachment issues.
In such a case, a hearing would render nugatory the purpose of this provisional remedy. The
ruling remains good law.13

Section 4. Condition of applicant's bond. — The party applying for the order must
thereafter give a bond executed to the adverse party in the amount fixed by the court in
its order granting the issuance of the writ, conditioned that the latter will pay all the costs
which may be adjudged to the adverse party and all damages which he may sustain by
reason of the attachment, if the court shall finally adjudge that the applicant was not
entitled thereto. (4a)

Section 5. Manner of attaching property. — The sheriff enforcing the writ shall without
delay and with all reasonable diligence attach, to await judgment and execution in the
action, only so much of the property in the Philippines of the party against whom the writ
is issued, not exempt from execution, as may be sufficient to satisfy the applicant's
demand, unless the former makes a deposit with the court from which the writ is issued,
or gives a counter-bond executed to the applicant, in an amount equal to the bond fixed
by the court in the order of attachment or to the value of the property to be attached,
exclusive of costs. No levy on attachment pursuant to the writ issued under section 2
hereof shall be enforced unless it is preceded, or contemporaneously accompanied, by
service of summons, together with a copy of the complaint, the application for
attachment the applicant's 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 where
the summons could not be served personally or by substituted service despite diligent
efforts, or the defendant is a resident of the Philippines temporarily absent therefrom, or
the defendant is a non-resident of the Philippines, or the action is one in rem or quasi in
rem. (5a)

Section 6. Sheriff's return. — After enforcing the writ, the sheriff must likewise without
delay make a return thereon to the court from which the writ issued, with a full statement
of his proceedings under the writ and a complete inventory of the property attached,
together with any counter-bond given by the party against whom attachment is issued,
and serve copies thereof on the applicant. (6a)

Section 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

12
Mindanao Savings & Loan Association, Inc. vs. CA, et al. (G.R. No. 84481, 18 April 1989).
13
Cuartero vs. CA and Others (G.R. No. 102448, 5 August 1992).
5
 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. (7a)

Section 8. Effect of attachment of debts, credits and all other similar personal property.
— All persons having in their possession or under their control any credits or other
similar personal property belonging to the party against whom attachment is issued, or
owing any debts to him, at the time of service upon them of the copy of the writ of
attachment and notice as provided in the last preceding section, shall be liable to the
applicant for the amount of such credits, debts or other similar personal property, until
the attachment is discharged, or any judgment recovered by him is satisfied, unless such
property is delivered or transferred, or such debts are paid, to the clerk, sheriff, or other
proper officer of the court issuing the attachment. (8a)

Section 9. Effect of attachment of interests in property belonging to the estate of a

decedent. — The attachment of the interest of an heir, legatee, or devisee in the property
belonging to the estate of a decedent shall not impair the powers of the executor,
administrator, or other personal representative of the decedent over such property for
the purpose of administration. Such personal representative, however, shall report the
attachment to the court when any petition for distribution is filed, and in the order made
upon such petition, distribution may be awarded to such heir, legatee or devisee, but the
property attached shall be ordered delivered to the sheriff making the levy, subject to the
claim of such heir, legatee, or devisee, or any person claiming under him. (9a)

Section 10. Examination of party whose property is attached and persons indebted to
him or controlling his property; delivery of property to sheriff. — Any person owing debts
to the party whose property is attached or having in his possession or under his control
6
any credit or other personal property belonging to such party, may be required to attend
before the court in which the action is pending, or before a commissioner appointed by
the court, and be examined on oath respecting the same. The party whose property is
attached may also be required to attend for the purpose of giving information respecting
his property, and may be examined on oath. The court may, after such examination,
order personal property capable of manual delivery belonging to him, in the possession
of the person so required to attend before the court, to be delivered to the clerk of the
court or sheriff on such terms as may be just, having reference to any lien thereon or
claim against the same, to await the judgment in the action. (10a)

Section 11. When attached property may be sold after levy on attachment and before
entry of judgment. — Whenever it shall be made to appear to the court in which the
action is pending, upon hearing with notice to both parties, that the property attached is
perishable, or that the interests of all the parties to the action will be subserved by the
sale thereof, the court may order such property to be sold at public auction in such
manner as it may direct, and the proceeds of such sale to be deposited in court to abide
the judgment in the action. (11a)

Sale of attached property before final judgment is an equitable remedy provided for the
convenience of the parties and preservation of the property. The issue of whether the sale of
attached properties is for the convenience of the parties and that the interests of all the parties
will be subserved by the said sale is a question of fact. Said issue can only be resolved upon
examination of the evidence presented by both parties.14

Section 12. Discharge of attachment upon giving counter-bond. — After a writ of

attachment has been enforced, the party whose property has been attached, or the
person appearing on his behalf, may move for the discharge of the attachment wholly or
in part on the security given. The court shall, after due notice and hearing, order the
discharge of the attachment if the movant makes a cash deposit, or files a counter-bond
executed to the attaching party with the clerk of the court where the application is made,
in an amount equal to that fixed by the court in the order of attachment, exclusive of
costs. But if the attachment is sought to be discharged with respect to a particular
property, the counter-bond shall be equal to the value of that property as determined by
the court. In either case, the cash deposit or the counter-bond shall secure the payment
of any judgment that the attaching party may recover in the action. A notice of the
deposit shall forthwith be served on the attaching party. Upon the discharge of an
attachment in accordance with the provisions of this section, the property attached, or
the proceeds of any sale thereof, shall be delivered to the party making the deposit or
giving the counter-bond, or to the person appearing on his behalf, the deposit or
counter-bond aforesaid standing in place of the property so released. Should such
counter-bond for any reason be found to be or become insufficient, and the party
furnishing the same fail to file an additional counter-bond, the attaching party may apply
for a new order of attachment. (12a)

1. The release of the cash deposit to the attaching party is anathema to the basic tenets of
a preliminary attachment. The chief purpose of the remedy of attachment is to secure a
contingent lien on defendant’s property until plaintiff can, by appropriate proceedings, obtain a
judgment and have such property applied to its satisfaction, or to make some provision for
unsecured debts in cases where the means of satisfaction thereof are liable to be removed
beyond the jurisdiction, or improperly disposed of or concealed, or otherwise placed beyond the
reach of creditors.61 The garnished funds or attached properties could only be released to the
attaching party after a judgment in his favor is obtained. Under no circumstance, whatsoever,
can the garnished funds or attached properties, under the custody of the sheriff or the
clerk of court, be released to the attaching party before the promulgation of judgment.15

2. In this relation, while the provisions of Rule 57 are silent on the length of time within
which an attachment lien shall continue to subsist after the rendition of a final judgment,
jurisprudence dictates that the said lien continues until the debt is paid, or the sale is had under

14
China Banking Corporation vs. Asia construction and Development Corporation (G.R. No. 158271, 8 April 2008).
15
Excellent Quality Apparel, Inc. vs. Visayan Surety & Insurance Corporation and Another (G.R. No. 212025, 1 July
2015).
7
execution issued on the judgment or until the judgment is satisfied, or the attachment
discharged or vacated in the same manner provided by law.16

3. The amount of the counter-attachment bond is, under the terms of Section 12, is to be
measured against the value of the attached property, as determined by the judge to secure the
payment of any judgment that the attaching creditor may recover in the action. Albeit not
explicitly stated in the same section and without necessarily diminishing the sound discretion of
the issuing judge on matters of bond approval, there can be no serious objection, in turn, to the
proposition that the attached property - and logically the counter-bond necessary to discharge
the lien on such property - should as much as possible correspond in value to, or approximately
match the attaching creditor’s principal claim. Else, excessive attachment, which ought to be
avoided at all times, shall ensue. Hence, a counter-attachment bond in the amount of
P301,935.41 is excessive where the principal amount claimed by the attaching party is only
P185,685.00 and that he had posted a bond of only P80,000.00 for the issuance of the writ of
preliminary attachment. It is reasonable to lower the amount of the counter-attachment bond to
be posted to the sum of P185,685.00.17

4. If plaintiff’s principal claim against defendant immediately prior to the filing of the motion
to discharge attachment has effectively been pruned down to ₱12,600,000.00, the court should
allow a total discharge of the attachment on a counter-bond based on the reduced claim of
respondent. If a portion of the claim is already secured, there is no justifiable reason why such
portion should still be subject of counter-bond. It may be that a counter-bond is intended to
secure the payment of any judgment that the attaching party may recover in the main action.
Simple common sense, if not consideration of fair play, however, dictates that a part of a
possible judgment that has veritably been preemptively satisfied or secured need not be
covered by the counter-bond.18

5. Objections to the impropriety or irregularity of the writ of attachment "may no longer be

invoked once a counterbond is filed," when the ground for the issuance of the writ forms the
core of the complaint. After the defendant has obtained the discharge of the writ of attachment
by filing a counterbond under Section 12, Rule 57 of the Rules of Court, he may not file another
motion under Section 13, Rule 57 to quash the writ for impropriety or irregularity in issuing it.
The reason is simple. The writ had already been quashed by filing a counterbond, hence,
another motion to quash it would be pointless. Moreover, when the ground for the issuance of
the writ is also the core of the complaint, the question of whether the plaintiff was entitled to the
writ can only be determined after, not before, a full-blown trial on the merits of the case. The
merits of a main action are not triable in a motion to discharge an attachment, otherwise an
applicant for the dissolution could force a trial on the merits of the case on this motion.19

Section 13. Discharge of attachment on other grounds. — The party whose property has
been ordered attached may file a motion with the court in which his action is pending,
before or after levy or even after the release of the attached property, for an order to set
aside or discharge the attachment on the ground that the same was improperly or
irregularly issued or enforced, or that the bond is insufficient. If the attachment is
excessive, the discharge shall be limited to the excess. If the motion be made on
affidavits on the part of the movant but not otherwise, the attaching party may oppose
the motion by counter-affidavits or other evidence in addition to that on which the
attachment was made. After due notice and hearing, the court shall order the setting
aside or the corresponding discharge of the attachment if it appears that it was
improperly or irregularly issued or enforced, or that the bond is insufficient, or that the
attachment is excessive, and the defect is not cured forthwith. (13a)

When the preliminary attachment is issued upon a ground which is at the same time the
applicant's cause of action; e.g., "an action for money or property embezzled or 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," or "an action against a party

16
Lim Jr. vs. Spouses Lazaro (G.R. No. 185734, 3 July 2013).
17
Insular Savings Bank vs. CA, et al. (G.R. No. 123638, 15 June 2005).
18
Ibid.
19
Mindanao Savings & Loan Association, Inc. vs. CA, et al. (G.R. No. 84481, 18 April 1989).
8
who has been guilty of fraud in contracting the debt or incurring the obligation upon which the
action is brought," the defendant is not allowed to file a motion to dissolve the attachment under
Section 13 of Rule 57 by offering to show the falsity of the factual averments in the plaintiff's
application and affidavits on which the writ was based – and consequently that the writ based
thereon had been improperly or irregularly issued – the reason being that the hearing on such a
motion for dissolution of the writ would be tantamount to a trial of the merits of the action. In
other words, the merits of the action would be ventilated at a mere hearing of a motion, instead
of at the regular trial.20

2. The above rule is not applicable when the defendant filed a motion to dissolve the writ of
preliminary attachment without offering to show the falsity of the factual averments in plaintiff’s
application and affidavit on which the writ was based. Instead, he sought the discharge of the
writ on the ground that plaintiff failed to particularly allege any circumstance amounting to fraud.
No trial on the merits of the action at a mere hearing of such motion will be had since only the
sufficiency of the factual averments in the application and affidavit of merit will be examined in
order to find out whether or not defendant was guilty of fraud in contracting the debt or incurring
the obligation upon which the action is brought, or in the performance thereof.21

Section 14. Proceedings where property claimed by third person. — If the property
attached is claimed by any person other than the party against whom attachment had
been issued 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 such
affidavit upon the sheriff while the latter has possession of the attached property, and a
copy thereof upon the attaching party, the sheriff shall not be bound to keep the property
under attachment, unless the attaching party or his agent, on demand of the sheriff, shall
file a bond approved by the court to indemnify the third-party claimant in a sum not less
than the value of the property levied upon. In case of disagreement as to such value, the
same shall be decided by the court issuing the writ of attachment. 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 sheriff shall not be liable for damages for the taking or keeping of such property to
any such third-party claimant, if such bond shall be filed. Nothing herein contained shall
prevent such claimant or any third person from vindicating his claim to the property, or
prevent the attaching party from claiming damages against a third-party claimant who
filed a frivolous or plainly spurious claim, in the same or a separate action.

When the writ of attachment 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 is sued for damages as a result of the attachment, he shall be represented by the
Solicitor General, and if held liable therefor, the actual damages adjudged by the court
shall be paid by the National Treasurer out of the funds to be appropriated for the
purpose. (14a)

Section 15. Satisfaction of judgment out of property attached, return of sheriff. — If

judgment be recovered by the attaching party and execution issue thereon, the sheriff
may cause the judgment to be satisfied out of the property attached, if it be sufficient for
that purpose in the following manner:

(a) By paying to the judgment obligee the proceeds of all sales of perishable or
other property sold in pursuance of the order of the court, or so much as shall be
necessary to satisfy the judgment;

(b) If any balance remains due, by selling so much of the property, real or
personal, as may be necessary to satisfy the balance, if enough for that purpose
remain in the sheriff's hands, or in those the clerk of the court;

20
Watercraft Venture Corporation vs. Wolfe (G.R. No. 181721, 9 September 2015).
21
Ibid.
9
 (c) By collecting from all persons having in their possession credits belonging to
the judgment obligor, or owing debts to the latter at the time of the attachment of
such credits or debts, the amount of such credits and debts as determined by the
court in the action, and stated in the judgment, and paying the proceeds of such
collection over to the judgment obligee.

The sheriff shall forthwith make a return in writing to the court of his proceedings under
this section and furnish the parties with copies thereof. (15a)

1. Firstly, Section 15 sets the guidelines for the sheriff — not the court. It should be
pointed out that the outlined procedure is not mandatory. It provides that "the sheriff or other
proper officer may cause the judgment to be satisfied out of the property attached, if it be
sufficient for the purpose." The use of the word may clearly makes the procedure directory, in
which case the sheriff may disregard the properties attached and proceed against other
properties of the judgment debtor, if necessary.22

Section 16. Balance due collected upon an execution; excess delivered to judgment
obligor. — If after realizing upon all the property attached, including the proceeds of any
debts or credits collected, and applying the proceeds to the satisfaction of the judgment
less the expenses of proceedings upon the judgment any balance shall remain due, the
sheriff must proceed to collect such balance as upon ordinary execution. Whenever the
judgment shall have been paid, the sheriff, upon reasonable demand, must return to the
judgment obligor the attached property remaining in his hands, and any proceeds of the
sale of the property attached not applied to the judgment. (16a)

Section 17. Recovery upon the counter-bond. — When the judgment has become
executory, the surety or sureties on any counter-bond given pursuant to the provisions
of this Rule to secure the payment of the judgment shall become charged on such
counter-bond and bound to pay the judgment obligee upon demand the amount due
under the judgment, which amount may be recovered from such surety or sureties after
notice and summary hearing in the same action. (17a)

Section 18. Disposition of money deposited. — Where the party against whom
attachment had been issued has deposited money instead of giving counter-bond, it
shall be applied under the direction of the court to the satisfaction of any judgment
rendered in favor of the attaching party, and after satisfying the judgment the balance
shall be refunded to the depositor or his assignee. If the judgment is in favor of the party
against whom attachment was issued, the whole sum deposited must be refunded to him
or his assignee. (18a)

Section 19. Disposition of attached property where judgment is for party against whom
attachment was issued. — If judgment be rendered against the attaching party, all the
proceeds of sales and money collected or received by the sheriff, under the order of
attachment, and all property attached remaining in any such officer's hands, shall be
delivered to the party against whom attachment was issued, and the order of attachment
discharged. (19a)

Section 20. Claim for damages on account of improper, irregular or excessive

attachment. — An application for damages on account of improper, irregular or
excessive attachment must be filed before the trial or before appeal is perfected or
before the judgment becomes executory, with due notice to the attaching party and his
surety or sureties setting forth the facts showing his right to damages and the amount
thereof. Such damages may be awarded only after proper hearing and shall be included
in the judgment on the main case.

If the judgment of the appellate court be favorable to the party against whom the
attachment was issued he must claim damages sustained during the pendency of the
appeal by filing an application in the appellate court, with notice to the party in whose
favor the attachment was issued or his surety or sureties, before the judgment of the

22
Maceda Jr. and Maceda vs. Moreman BuildersCo., Inc. (G.R. No. 100239, 28 October 1991).
10
appellate court becomes executory. The appellate court may allow the application to be
heard and decided by the trial court.

Nothing herein contained shall prevent the party against whom the attachment was
issued from recovering in the same action the damages awarded to him from any
property of the attaching party not exempt from execution should the bond or deposit
given by the latter be insufficient or fail to fully satisfy the award. (20a)

1. In a catena of cases, the Court has cited the requisites under Section 20, Rule 57 in
order to claim damages against the bond, as follows:

1. The application for damages must be filed in the same case where the
bond was issued;

2. Such application for damages must be filed before the entry of judgment;
and

3. After hearing with notice to the surety.

The first and second requisites, as stated above, relate to the application for damages against
the bond. An application for damages must be filed in the same case where the bond was
issued, either (a) before the trial or (b) before the appeal is perfected or (c) before the judgment
becomes executory. The usual procedure is to file an application for damages with due notice
to the other party and his sureties. The other method would be to incorporate the application in
the answer with compulsory counterclaim.23

2. The purpose of requiring the application for damages to be filed in the same proceeding
is to avoid the multiplicity of suit and forum shopping. It is also required to file the application
against the bond before the finality of the decision to prevent the alteration of the immutable
judgment.24

3. The next requisite is notice. The attaching party and the surety must be given prior
notice and an opportunity to be heard with respect to the application for damages before the
finality of the judgment. Such damages may be awarded only after proper hearing and shall be
included in the judgment on the main case. The surety should be given an opportunity to be
heard as to the reality or reasonableness of the damages resulting from the wrongful issuance
of the writ. In the absence of due notice to the surety, therefore, no judgment for damages may
be entered and executed against it.25

23
Excellent Quality Apparel, Inc. vs. Visayan Surety & Insurance Corporation and Another (G.R. No. 212025, 1 July
2015).
24
Ibid.
25
Ibid.
11