DAVAO LIGHT AND POWER VS CA
embezzled or fraudulently misapplied or
 ample modes of recourse against a preliminary
attachment are secured by law to the defendant.
 The relative ease with which a preliminary
attachment may be obtained is matched and
paralleled by the relative facility with which the
attachment may legitimately be prevented or
frustrated.
 These modes of recourse against preliminary
attachments granted by Rule 57 were discussed at
some length by the separate opinion in Mindanao
Savings & Loans Asso. Inc. v. CA., supra.
 That separate opinion stressed that there are two
(2) ways of discharging an attachment:  first, by
the posting of a counterbond; and second, by a
showing of its improper or irregular issuance.
o 1.0. The submission of a counterbond is an
efficacious mode of lifting an attachment
already enforced against property, or even
of preventing its enforcement altogether.
o 1.1. When property has already been seized
under attachment, the attachment may be
discharged upon counterbond in accordance
with Section 12 of Rule 57.
o 1.2. But even before actual levy on property,
seizure under attachment may be prevented
also upon counterbond. The defendant need
not wait until his property is seized before
seeking the discharge of the attachment by a
counterbond. This is made possible by Section
5 of Rule 57.
o 2.0. Aside from the filing of a counterbond, a
preliminary attachment may also be lifted or
discharged on the ground that it has been
irregularly or improperly issued, in accordance
with Section 13 of Rule 57. Like the first, this
second mode of lifting an attachment may be
resorted to even before any property has
been levied on. Indeed, it may be availed
of after property has been released from a
levy on attachment,  as is made clear by said
Section 13
 This is so because "(a)s pointed out in Calderon
v. I.A.C, The attachment debtor cannot be deemed
to have waived any defect in the issuance of the
attachment writ by simply availing himself of one
way of discharging the attachment writ, instead of
the other.
 Moreover, the filing of a counterbond is a speedier
way of discharging the attachment writ maliciously
sought out by the attaching creditor instead of the
other way, which, in most instances would require
presentation of evidence in a fullblown trial on the
merits, and cannot easily be settled in a pending
incident of the case."  either by service on him of summons or other
 It may not be amiss here to reiterate other related
principles dealt with in Mindanao Savings & Loans
Asso. Inc. v.C.A, to wit:
(a) When an attachment may not be dissolved
by a showing of its irregular or improper
issuance:
 (W)hen 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
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." (Sec. 1
[b], Rule 57), or "an action against a party
who has been guilty of fraud m contracting
the debt or incurring the obligation upon
which the action is brought" (Sec. 1 [d],
Rule 57), the defendant is not allowed to
file a motion to dissolve the attachment
under Section 13 of 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
(SEE Benitez v. I.A.C., 154 SCRA 41) —
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.
Therefore, when the writ of attachment is
of this nature, the only way it can be
dissolved is by a counterbond
(b) Effect of the dissolution of a preliminary
attachment on the plaintiffs attachment bond:
 The dissolution of the preliminary attachment
upon security given, or a showing of its
irregular or improper issuance, does not of
course operate to discharge the sureties on
plaintiff's own attachment bond.
 The reason is simple. That bond is "executed
to the adverse party, conditioned that the
(applicant) 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"
(SEC. 4, Rule 57).
 Hence, until that determination is made, as to
the applicant's entitlement to the attachment,
his bond must stand and cannot be with-
drawn.
 It goes without saying that whatever be the acts
done by the Court prior to the acquisition of
jurisdiction over the person of defendant, as above
indicated — issuance of summons, order of
attachment and writ of attachment (and/or
appointments of guardian ad litem, or grant of
authority to the plaintiff to prosecute the suit as a
pauper litigant, or amendment of the complaint by
the plaintiff as a matter of right without leave of
court  — and however valid and proper they might
otherwise be, these do not and cannot bind and
affect the defendant until and unless jurisdiction
over his person is eventually obtained by the court,
coercive process or his voluntary submission to the
court's authority.
 Hence, when the sheriff or other proper officer
commences implementation of the writ of
attachment, it is essential that he serve on the
defendant not only a copy of the applicant's
affidavit and attachment bond, and of the order of
attachment, as explicity required by Section 5 of
Rule 57, but also the summons addressed to said
defendant as well as a copy of the complaint and
order for appointment of guardian ad litem, if any,
 as also explicity directed by Section 3, Rule 14 of
the Rules of Court.
 Service of all such documents is indispensable not
only for the acquisition of jurisdiction over the
person of the defendant, but also upon
considerations of fairness, to apprise the defendant
of the complaint against him, of the issuance of a
writ of preliminary attachment and the grounds
therefor and thus accord him the opportunity to
prevent attachment of his property by the posting
of a counterbond in an amount equal to the
plaintiff's claim in the complaint pursuant to
Section 5 (or Section 12), Rule 57, or dissolving it
by causing dismissal of the complaint itself on any
of the grounds set forth in Rule 16, or
demonstrating the insufficiency of the applicant's
affidavit or bond in accordance with Section 13,
Rule 57.
ADLAWAN VS TORRES
 petitioners alleged that respondent Judge gravely
abused his discretion in ordering the issuance of
the writs of preliminary attachment inasmuch as
the real estate mortgage executed by them in
favor of PCIB did not constitute fraudulent
removal, concealment or disposition of property.
 They argued that granting the mortgage
constituted removal or disposition of property, it
was not per se a ground for attachment lacking
proof of intent to defraud the creditors of the
defendant.
 Petitioners contended that in Civil Case No. 21761,
Branch 11 had ruled that the loan for which the
mortgage was executed was contracted in good
faith, as it was necessary for them to continue
their business operations even after respondent
Aboitiz had stopped giving them financial aid.
 The execution of a mortgage in favor of another
creditor is not conceived by the Rules as one of the
means of fraudulently disposing of one's property.
 By mortgaging a piece of property, a debtor
merely subjects it to a lien but ownership thereof
is not parted with.
 Furthermore, the inability to pay one's creditors is
not necessarily synonymous with fraudulent intent
not to honor an obligation
 Consequently, when petitioners filed a motion for
the reconsideration of the order directing the
issuance of the writ of attachment, respondent
Judge should have considered it as a motion for
the discharge of the attachment and should have
conducted a hearing or required submission of
counter-affidavits from the petitioners, if only to
gather facts in support of the allegation of fraud
(Jopillo, Jr. v. Court of Appeals. This is what
Section 13 of Rule 57 mandates.
 This procedure should be followed because, as the
Court has time and again said, attachment is a
harsh, extraordinary and summary remedy and the
rules governing its issuance must be construed
strictly against the applicant.
 Verily, a writ of attachment can only be granted on
concrete and specific grounds and not on general
averments quoting perfunctorily the words of the
Rules
 The judge before whom the application is made
exercises full discretion in considering the
supporting evidence proffered by the applicant.
 One overriding consideration is that a writ of
attachment is substantially a writ of execution
except that it emanates at the beginning, instead
of at the termination of the suit 

 Petitioners also contended that respondent Judge

exceeded his jurisdiction when he issued the Order
of December 12, 1983, without first hearing the
parties on the motion for attachment and the
motion to dissolve the attachment. ‘

 Moreover, they argued that respondent Judge

gravely abused his discretion in proceeding with
the case, notwithstanding that his attention had
been called with regard to the pendency of G.R.
No. 63225 in this Court

HELD
 It is evident from said affidavit that the prayer for
attachment rests on the mortgage by petitioners of
11 parcels of land in Cebu, which encumbrance
respondent Aboitiz considered as fraudulent
concealment of property to its prejudice.
 We find, however, that there is no factual
allegation which may constitute as a valid basis for
the contention that the mortgage was in fraud of
respondent Aboitiz.
 "[T]he general rule is that the affidavit is the
foundation of the writ, and if none be filed or one
be filed which wholly fails to set out some facts
required by law to be stated therein, there is no
jurisdiction and the proceedings are null and void."
 Bare allegation that an encumbrance of a property
is in fraud of the creditor does not suffice.
 Factual bases for such conclusion must be clearly
averred.