SECTION 13,RULE 57 IT BY THE PETITIONER DID NOT PRESENT ANY

JURISDICTIONAL ISSUE.

G.R. No. 76026 November 9, 1988

SECOND ERROR

PORFIRIO JOPILLO, JR., petitioner, 

vs. THE RESPONDENT COURT OF APPEALS
HON. COURT OF APPEALS, HON. BALTAZAR R. DIZON, ARSENIO C. COMMITTED AN ERROR OF LAW IN HOLDING
DE GUZMAN and RAYMOND LIM, respondents. (BY IMPLICATION) THAT RESPONDENT JUDGE
DID NOT COMMIT GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OF
Cruz Law Office for petitioner. JURISDICTION.

Eduardo L. Advincula for private respondent. THIRD ERROR

THE RESPONDENT COURT OF APPEALS

COMMITTED AN ERROR OF LAW FOR HAVING
ERRONEOUSLY APPLIED IN APPROPRIATE
GANCAYCO, J.:
AUTHORITIES AND JURISPRUDENCE IN
RESOLVING THE PETITION FOR CERTIORARI.
By this petition the Court is asked to resolve the question of whether or not a (Page 12, Rollo)
motion to discharge a writ of attachment should be granted upon presentation of
evidence by the party whose property has been attached to show that the
The petition is devoid of merit.
attachment is improper or irregular.

Petitioner argues that the respondent judge committed a grave abuse of discretion
On October 18, 1985, private respondent Raymond Lim filed a complaint for the
amounting to lack of jurisdiction when he refused to order the discharge of the Writ
collection of a sum of money in the amount of about P100,000.00 with a prayer for
of attachment. He also contends that having established by evidence that he had
preliminary attachment in the Regional Trial Court of Pasay City. It is alleged in
paid in full the obligation sued upon, the private respondent has no cause of action
the complaint that petitioner was, among others, guilty of fraud in contracting the
much less a ground to obtain a writ of attachment against him.
obligation in that from the very beginning he had no intention to pay the same and
that he is disposing of the scrap materials subject of their agreement to defraud
private respondent. Citing National Coconut Corporation vs. Pecson, 3 petitioner alleges that the
attachment may be considered as improperly or irregularly issued when the facts
alleged in the private respondent's affidavit have been shown to be untrue by
On October 21, 1985, the trial court granted ex-parte the prayer for a writ of
petitioner. He contends that it is incumbent upon private respondent to prove the
preliminary attachment having found sufficient cause therefor based on the verified
facts in issue either by affidavit or deposition or some form of evidence. 4
complaint and the affidavit of merit executed by private respondent. The court,
however, required the private respondent to file a bond in the amount of
P100,000.00. Pursuant to the said order respondent sheriff Arsenio de Guzman In denying due course to the petition, the appellate court made the following
attached a Chevrolet truck owned by petitioner. disqualification:

On October 25, 1985, petitioner filed an urgent motion to discharge the writ of The petition does not present any jurisdictional issue,
attachment in accordance with Section 13, Rule 57 of the Rules of Court alleging hence, the remedy of certiorari is unavailable. Generally,
therein that the issuance of the writ was irregular and improper. At the hearing of when a court has jurisdiction over the subject matter and
the motion, petitioner testified that their agreement was for simple loans which of the person, decisions upon all questions pertinent to
have been fully paid by way of off-set when he delivered scrap materials to private the cause are decisions within its jurisdiction and
respondent on various occasions. In support thereof, petitioner presented receipts however irregular or erroneous they may be, they cannot
purportedly signed by the secretary of private respondent accepting deliveries of be corrected by certiorari. (Napa vs. Weissenhagen, 29
the scrap materials. 1 Phil. 182; Gala vs. Cui and Rodriguez, 25 Phil. 522;
Matute v. Macadael and Medel, J-9325, May 30, 1956;
NAWASA v. Municipality of Libmauan, 20 SCRA 337).
The trial court denied petitioner's motion in an order dated November 6, 1985. The
And as the respondent court had jurisdiction to issue the
trial court held that the writ of attachment is within the context of the law and
writ of attachment its errors, if any, committed in the
instead required Petitioner to put up a counterbond in the amount equal to the value
appreciation of the probative value of the facts stated in
of the property attached to discharge the writ of attachment pursuant to Section 12
the petition for the writ and/ or in the motion to discharge
of Rule 57 of the Rules of Court. Petitioner filed a motion for reconsideration of
the attachment, does (sic) not affect its jurisdiction but
said order asking that the writ be discharged in accordance with Section 13 of Rule
merely the exercise of such jurisdiction. (Galang v.
57. It is alleged in the said motion that through his testimony and documentary
Endencia, 73 Phil. 399) In the instant case, respondent
evidence, he had established that the allegations in the affidavit of private
Judge having acted within the law, there can be no
respondent are not true and thus there is no cause of action to justify the issuance of
capricious and whimsical exercise of judgment
a writ of attachment. The lower court denied the motion in an order dated
equivalent to lack of jurisdiction.
November 26, 1985.

Furthermore, a perusal of the records shows that in order

Hence, the petitioner filed a petition for certiorari with prayer for the issuance of a
to resolve the issue as to whether petitioner's evidence
restraining order or the writ of preliminary injunction in the then Intermediate
proves the falsity of private respondent's allegations,
Appellate Court. On June 20, 1986, the appellate court denied due course to the
respondent Court would have to go into the merits of the
petition and vacated the restraining order it earlier issued with costs against
case aside from the evidence introduced in support of the
petitioner. 2
motion to discharge the attachment. More particularly,
the respondent Court would have to resolve whether the
Petitioner now comes to this Court by way of this petition for review assigning the alleged receipts of deliveries are really genuine, that two
following errors on the part of the respondent court: (2) truckloads of scrap materials worth P30,000.00 was
actually delivered and whether the amount of
P100,000.00 covered by the "Agreement" was a loan or
FIRST ERROR advance payment for scrap iron that petitioner promised
to deliver. The merits of the action in which a writ of
preliminary attachment has been issued are not triable on
THE RESPONDENT COURT OF APPEALS a motion for dissolution of the attachment, otherwise an
COMMITTED AN ERROR OF LAW IN RULING applicant for the dissolution could force a trial of the
THAT THE PETITION FOR certiorari FILED BEFORE
 merits of the case in motion (4 Am. Jur. Sec. 635,
934).<äre||anº•1àw> Accordingly, while it is competent
for the Court to decide whether the affidavits submitted
show the existence of a cause of action against the
defendant, this gives no general right to a trial on such
motion of the merits of such cause. (4 Am. Jur. 933, 934)
Moreover, in this instant petition, since petitioner
(defendant in the lower court) has not yet answered the
complaint and the principal action is not ready for trial,
respondent Court cannot resolve the issue on the merits
of the case. This, respondent Court: would have to do to
rule on the sufficiency of petitioners evidence or falsity
of the allegations contained in private respondent's
affidavit for attachment. Thus, it has been held:
...considering that the grounds
invoked by the petitioner for the
issuance of the writ of
attachment form the very basis
of the complaint .... a trial on
the merits after answer shall
have been filed by respondent,
was necessary. In We case the
hearing of the "Motion to
Discharge" was held before the
issues have been joined, and the
order of the, respondent Judge
discharging the attachment
would have the effect of or
prejudging the main action ...
(G.B. Inc. vs. Sanchez 98 Phil.
886)
We agree.
Section 13, Rule 57 of the Rules of Court provides:
SEC. 13. Discharge of a attachmnet for improper or
irregular issuance.—The party whose property has been
may also, at any tame either before or after the release of
the-attached property, or before any attachment shall
have been actually levied, upon reasonable notice to the
attaching creditor, apply to the judge who granted the
order, or to the judge of the court in which the action is
pending, for an order to discharge the attachment on the
ground that the same was improperly or irregularly
issued. If the motion be made on affidavits on the part of
the party whose property has been attached, but not
otherwise, the attaching creditor may oppose the same by
counter-affidavits or other evidence in addition to that on
which the attachment was made. After hearing, the judge
shall order the discharge of the attachment if it appears
that it was improperly or irregularly issued and the
defect is not cured forthwith. (Emphasis supplied.)
A motion to discharge a writ of attachment on the ground that the same was
improperly or irregularly issued may be established by the affidavits submitted by
the party whose property has been attached or such other evidence presented at the
hearing of the motion. The attaching creditor may oppose the same by counter-
affidavits or other evidence in addition to that with which the attachment was
made.
If the movant establishes that the facts stated in the plaintiffs affidavit or some of
them, are shown to be false or untrue, the writ of attachment may be considered as
improperly or irregularly issued. 5 The determination of the existence of said
grounds to discharge a writ of attachment rests in the sound discretion of the lower
court.
In the present case, although the evidence submitted by petitioner tended to show
payment of the obligation subject of the complaint, it appears that the genuineness
of the alleged receipt of the scrap materials which petitioner claims to have
delivered to private respondent to offset his obligation is in issue. Besides, the
nature of the agreement and the actual deliveries made of the scrap materials,
among others, are factual issues that must be resolved at the trial on the merits and
not at the hearing of the motion to discharge the writ of attachment. If the private
respondent did not present any counter-affidavit or evidence to counteract what has
been adduced by petitioner at the hearing of the motion, it must be because private
respondent believed that it was not necessary. As it is, the trial court was
apparently not persuaded by the evidence presented by petitioner so it ordered that
the writ of attachment be maintained and directed that if petitioner wants a
discharge of the writ, he must put up a bond in accordance with Section 12, Rule
57 of the Rules which provides—
SEC. 12. Discharge of attachment upon giving
counterbond.—At any time after an order of attachment
has been granted, the party whose property has been
attached, or the person appearing on his behalf, may,
upon reasonable notice to the applicant, apply to the
judge who granted the order, or to the judge of the court
in which the action is pending, for an order discharging
the attachment wholly or in part on the security given.
The judge shall, after hearing, order the, discharge of the
attachment if a cash deposit is made, or a counterbond
executed to the attaching creditor is filed, on behalf of the
adverse party, with the clerk or judge of the court where
the application is made, in an amount equal to the value
of the property attached as determined by the judge, to
secure the payment of any judgment that the attaching
creditor may recover in the action. Upon the filing of
such counter-bond, copy thereof shall forthwith be served
on the attaching creditor or his lawyer. 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
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 creditor may apply for a new order of
attachment.
However, petitioner insists that the attachment should, he discharged in accordance
with Section 13 of Rule 57 and refuses to put up a counterbond as suggested by the
court a quo.
As correctly ruled by the respondent appellate court, even assuming that the trial
court committed an error in denying the motion to discharge the writ of attachment
the error (if it is an error at all) is an error in judgment which cannot be corrected
through the extraordinary remedy of certiorari but by an ordinary appeal at the
proper time.
Finally, the findings of the trial court an to whether or not the writ of attachment
had been improperly or irregularly issued based on the evidence submitted at the
hearing may not be disturbed on appeal unless there is a showing that it committed
a grave abuse of discretion in its exercise. This petitioner failed to establish.
WHEREFORE, the petition is DISMISSED for lack of merit without
pronouncement as to costs.
SO ORDERED.
G.R. No. 84481 April 18, 1989
MINDANAO SAVINGS & LOAN ASSOCIATION, INC. (formerly Davao
Savings & Loan Association) & FRANCISCO VILLAMOR, petitioners,  The only requisites for the issuance of a writ of preliminary attachment under
vs.
HON. COURT OF APPEALS, POLY R. MERCADO, and JUAN P.
MERCADO, respondents.
Villarica, Tiongco & Caboverde Law Office for petitioners.
A B C Law Offices for private respondents.
GRIÑO-AQUINO, J.:
On September 10, 1986, private respondents filed in the Regional Trial Court of
Davao City, a complaint against defendants D.S. Homes, Inc., and its directors,
Laurentino G. Cuevas, Saturnino R. Petalcorin, Engr. Uldarico D. Dumdum,
Aurora P. De Leon, Ramon D. Basa, Francisco D. Villamor, Richard F.
Magallanes, Geronimo S. Palermo Felicisima V. Ramos and Eugenio M. De los
Santos (hereinafter referred to as D.S. Homes, et al.) for "Rescission of Contract
and Damages" with a prayer for the issuance of a writ of preliminary attachment,
docketed as Civil Case No. 18263.
On September 28, 1986, Judge Dinopol issued an order granting ex parte the
application for a writ of preliminary attachment.
On September 22, 1986, the private respondents amended their complaint and on
October 10, 1986, filed a second amended complaint impleading as additional
defendants herein petitioners Davao Savings & Loan Association, Inc. and its
president, Francisco Villamor, but dropping Eugenio M. De los Santos.
On November 5, 1986, Judge Dinopol issued ex parte an amended order of
attachment against all the defendants named in the second amended complaint,
including the petitioners but excluding Eugenio C. de los Santos.
D. S. Homes. Inc., et al. and the Davao Savings & Loan Association (later renamed
Mindanao Savings & Loan Association, Inc. or "MSLA") and Francisco Villamor
filed separate motions to quash the writ of attachment. When their motions were
denied by the Court, D.S. Homes, Inc., et al. offered a counterbond in the amount
of Pl,752,861.41 per certificate issued by the Land Bank of the Philippines, a
banking partner of petitioner MSLA The lower court accepted the Land Bank
Certificate of . Deposit for Pl,752,861.41 as counterbond and lifted the writ of
preliminary attachment on June 5, 1987 (Annex V)
On July 29, 1987, MSLA and Villamor filed in the Court of Appeals a petition
for certiorari (Annex A) to annul the order of attachment and the denial of their
motion to quash the same (CA-G.R. SP No. 12467). The petitioners alleged that the
trial court acted in excess of its jurisdiction in issuing the ex parte orders of
preliminary attachment and in denying their motion to quash the writ of
attachment, D.S. Homes, Inc., et al. did not join them.
On May 5, 1988, the Court of Appeals dismissed the petition for certiorari and
remanded the records of Civil Case No. 18263 to the Regional Trial Court of
Davao City, Branch 13, for expeditious proceedings. It held:
Objections against the writ may no longer be invoked
once a counterbond is filed for its lifting or dissolution.
The grounds invoked for the issuance of the writ form the
core of the complaint and it is right away obvious that a
trial on the merits was necessary. The merits of a main
action are not triable in a motion to discharge an
attachment otherwise an applicant for dissolution could
force a trial on the merits on his motion (4 Am. Jur., Sec.
635, 934, cited in G.G. Inc. vs. Sanchez, et al., 98 Phil.
886, 890, 891). (Annex B, p. 185, Rollo.)
Dissatisfied, the petitioners appealed to this Court.
A careful consideration of the petition for review fails to yield any novel legal
questions for this Court to resolve.
Section 3, Rule 57 of the Rules of Court are the affidavit and bond of the applicant.
SEC. 3. Affidavit and bond required .— An order of
attachment shall be granted only when it is made to
appear 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 clerk or judge of the
court before the order issues.
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 (Belisle Investment & Finance Co., Inc. vs. State Investment House,
Inc., 72927, June 30, 1987; Filinvest Credit Corp. vs. Relova, 11 7 SCRA 420), a
motion to quash the writ may not be granted without "reasonable notice to the
applicant" and only "after hearing" (Secs. 12 and 13, Rule 57, Rules of Court).
The Court of Appeals did not err in holding that objections to the impropriety or
irregularity of the writ of attachment "may no longer be invoked once a
counterbond is filed," when the ground for the issuance of the writ forms the core
of the complaint.
Indeed, 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, as the Court of
Appeals correctly observed, 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. This accords with our ruling G.B. Inc. vs. Sanchez, 98 Phil. 886 that: "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."
May the defendant, after procuring the dissolution of the attachment by filing a
counterbond, ask for the cancellation of the counterbond on the ground that the
order of attachment was improperly issued? That question was answered by this
Court when it ruled in Uy Kimpang vs. Javier, 65 Phil. 170, that "the obligors in
the bond are absolutely liable for the amount of any judgment that the plaintiff may
recover in the action without reference to the question of whether the attachment
was rightfully or wrongfully issued."
The liability of the surety on the counterbond subsists until the Court shall have
finally absolved the defendant from the plaintiff s claims. Only then may the
counterbond be released. The same rule applies to the plaintiffs attachment bond.
"The liability of the surety on the bond subsists because the final reckoning is when
the Court shall finally adjudge that the attaching creditor was not entitled to the
issuance of the attachment writ," (Calderon vs. Intermediate Appellate Court, 155
SCRA 531.)
WHEREFORE, finding no reversible error in the decision of the Court of Appeals
in CA-G.R. SP No. 12467, the petition for review is denied for lack of merit with
costs against the petitioners.
SO ORDERED.
G.R. No. 71535 September 15, 1987
HELENA Z. T. BENITEZ, petitioner-appellee,  purchased was furnished the office of Mr. Dragon on February 28, 1984; that
vs.
THE INTERMEDIATE APPELLATE COURT, ROSARIO R. VELOSO, in
her capacity as Judge of the Regional Trial Court, National Capital Judicial
Region, Branch 133, et al., respondents-appellants.
YAP, J.:
This is a petition for review on certiorari of the decision of respondent Intermediate
Appellate Court dated July 25, 1985, affirming the questioned orders of the
Regional Trial Court of Makati, to wit: (a) the order dated December 11, 1984,
granting the private respondents' petition for a writ of attachment ex-parte; (b) the
order dated January 31, 1985, denying petitioner's urgent motion to discharge
attachment; and (c) the order dated April 24, 1985, denying petitioner's motion for
reconsideration.
The records show that on December 6, 1984, private respondent Casa Filipina
Development Corporation (Casa Filipina for brevity) filed a complaint against
herein petitioner Helena T. Benitez for recission of contract, plus damages, with a
prayer for preliminary attachment. The complaint alleged that sometime on April
16, 1983, the plaintiff Casa Filipina, a real estate corporation, represented by
Renato P. Dragon, and defendant Benitez (the petitioner herein), entered into a
verbal contract whereby Benitez allegedly agreed to undertake to purchase/convey
land for Casa Filipina in the total value of One Million Pesos (P1,000,000.00)
within the period of four (4) months from receipt of the total amount. On the same
date, Casa Filipina tendered a check payment in the amount of Five Hundred
Thousand Pesos (P500,000.00) in the name of Benitez. On August 26, 1983, to
complete the amount of One Million Pesos as allegedly agreed upon, Casa Filipina
issued again another check in the amount of Five Hundred Thousand Pesos
(P500,000.00). Both checks were deposited and credited in petitioner's bank
account. The four-month period allegedly elapsed without Benitez having
purchased nor conveyed any real estate in the total value of One Million Pesos
(P1,000,000.00) in favor of Casa Filipina, but instead Benitez converted the
entrusted money for her own personal use in violation of her fiduciary relationship
with plaintiff and that despite repeated demands for the refund or return of the
aforementioned amount, Benitez chose to ignore the same. Praying for a writ of
preliminary attachment, Casa Filipina submitted with its complaint, the affidavit of
one Nestor P. Borromeo, the corporate secretary and acting treasurer of the
corporation.
The writ of attachment was granted by respondent court exparte in an order dated
December 11, 1985.
On December 27, 1984, the Clerk of Court issued a writ of preliminary attachment,
by virtue of which the respondent Sheriff served notices of garnishment to the
Philippine Women's University, Taft Avenue, Manila, the Unlad Development
Resources Corporation and Bank of the Philippine Islands, Unlad Condominium,
Taft Avenue, Manila, thereby garnishing the deposits, shares of stocks, salaries and
other personal property of the petitioner. Likewise on January 30, 1984, petitioner
was advised by the Acting Register of Deeds of Quezon City that a notice of levy
was filed with the Registrar's Office affecting two parcels of prime land at
Mariposa Street, with an aggregate area of 4,304 square meters which are owned
by and registered in the name of the petitioner.
Earlier on January 21, 1985, Benitez filed an answer with counterclaim and
opposition to the petition for issuance of a writ of preliminary attachment. On the
same date, Benitez also filed an Urgent Motion to Discharge Writ of Preliminary
Attachment under Section 13, Rule 57 of the Rules of Court, on the ground that the
same was improperly or irregularly issued. Benitez alleged that sometime in March
1983, Mr. Renato Dragon, acting for himself and Casa Filipina agreed to buy ten
(10) hectares of petitioner's land in Dasmarinas, Cavite, for a price of P15.00 per
square meter or for a total consideration of One Million Five Hundred Thousand
Pesos (P1,500,000.00); that it was agreed upon by the parties that it is only upon
full payment of the amount of P1,500,000.00 that delivery of the ten-hectare
property of the petitioner will be made; that Casa Filipina was not able to comply
with the obligation to pay the balance of P500,000.00 despite repeated demands
and instead filed the present action for recission.
In support of its urgent motion to discharge the writ of preliminary attachment,
petitioner attached thereto the affidavit of her technical assistant and attorney-in-
fact by the name of Virginia Real, who alleged. among other things, that she knows
for a fact that the transaction between Benitez and Dragon for Casa Filipina, was
one of purchase and sale; that a copy of TCT No. 9833 covering the land to be
petitioner is willing and able to execute a deed of absolute sale in favor of Casa
Filipina upon full payment of the balance of P500,000.00.
The said motion was set for hearing on January 25, 1985 but the private respondent
and its counsel failed to appear despite notice. Consequently, the motion was
deemed submitted for resolution.
On January 31, 1985, respondent Court denied petitioner's motion to discharge writ
of preliminary attachment. The said order reads:
Considering defendant's motion to quash and/or lift the writ of preliminary
attachment issued by this Court upon properties of defendant on the ground that the
same was predicated upon false and untrue allegations, the Court believes and so
rules that the issue cannot be determined without adducing evidence at the same
time going into the merits of the case which in the opinion of the Court could not
be done at this stage of the proceedings.
Considering that the writ of preliminary attachment was issued after having
satisfied the requirements of the rules, the same may not be lifted or discharged
without the defendant filing a counterbond.
WHEREFORE, the motion to lift and/or discharge the writ of preliminary
attachment is hereby denied.
SO ORDERED.
On February 5, 1985, despite the lower court's denial of petitioner's motion to
discharge preliminary attachment, the private respondent filed a belated opposition
to the said motion, to which the petitioner filed a reply a February 18, 1985.
On March 14, 1985, petitioner discovered that her motion to discharge preliminary
attachment was denied. Hence, on March 20, 1985, petitioner filed a motion for
reconsideration which was likewise denied by respondent judge on April 24, 1985,
Whereupon, a petition for certiorari, mandamus and prohibition was filed by the
petitioner before respondent Intermediate Appellate Court, which, as stated earlier,
was dismissed for I acknowledge of merit. Hence, this petition.
On January 8, 1986, the Court gave due course to the petition and required the
parties to submit their memoranda.
Petitioner poses the following questions for resolution, to wit:
1. Whether a counter-attachment bond is necessary and indispensable under the
circumstances before the subject writ of preliminary attachment may be recalled,
quashed and/or discharged?
2. Whether or not the issue on the propriety of the issuance of the subject writ may
be resolved without going into the merits of the principal action?
We find the petition meritorious.
The attachment was granted by the lower court ex-parte under Section 1 (b), Rule
57, Rules of Court, upon the allegation of respondent Casa Filipina, that petitioner
Helena Benitez, the defendant, had violated their alleged fiduciary relationship and
had unlawfully converted the amount of P1,000,000.00 for her own use. Petitioner
promptly filed an urgent motion to discharge writ of preliminary attachment for
improper or irregular issuance, supported by the affidavit of Virginia Real, who
alleged that there was no fiduciary relationship between the plaintiff and defendant
inasmuch as the transaction between them was one of sale of real property. Thus, in
effect, the petitioner claims that the private respondent's allegation of fraud was
false, that hence there was no ground for the attachment, and that consequently, the
attachment order was improperly or irregularly issued.
In Villongco, et al. vs. Hon. Panlilio, et al., 1 we held that the affidavit supporting
the petition for the issuance of the preliminary attachment may have been sufficient
to justify the issuance of the preliminary writ, but it cannot be considered as proof
of the allegations contained in the affidavit, which are mere conclusions of law, not
statement of facts. Petitioner in the instant case having squarely controverted the
private respondent's allegation of fraud, it was incumbent on the latter to prove its
allegation. The burden of proving that there indeed was fraud lies with the party
making such allegation. This finds support in Section 1, Rule 131 of the Rules of
Court which provides: "Each party must prove his own affirmation allegations. . . .
The burden of proof lies on the party who would be defeated if no evidence were
given on either side." In this jurisdiction, fraud is never presumed. 2

The petitioner's Urgent Motion to Discharge Writ of Preliminary Attachment was

filed under Section 13, Rule 57. The last sentence of said provision indicates that a
hearing must be conducted by the judge for the purpose of determining whether or
not there really was a defect in the issuance of the attachment.

It appears from the records that no hearing was conducted by the lower court.
Indeed, when the case was called for hearing, the plaintiff (private respondent
herein), failed to appear and the petitioner's motion was considered submitted for
resolution.

Private respondent has alleged in its memorandum that petitioner did not file an
affidavit in support of her Urgent Motion to Discharge Attachment, as required
under Section 13 of Rule 57, hence, it was not necessary or imperative that a
hearing be held. The Court finds private respondent's allegation to be irresponsible,
for attached to petitioner's motion was the supporting affidavit of Virginia L. Real,
the technical assistant of petitioner Benitez. In her affidavit, she stated that she had
personal knowledge of the transaction between respondent Casa Filipina and
petitioner Benitez; that Mr. Renato Dragon, for himself and/or Casa Filipina,
agreed to buy a portion consisting of 10 hectares of a parcel of land belonging to
Benitez in Dasmarinas, Cavite, for the total price of P1,500,000.00 of which
private respondent made a downpayment of P500,000.00 on April 16, 1983; and a
second payment of P500,000.00 on August 27, 1983; that private respondent
having failed to pay the balance of P500,000.00, the deed of sale could not be
executed in favor of private respondent. The record amply supports petitioner's
version, as against the private respondent's allegation that Benitez had acted as
agent in receiving the money and converted the same for her own use in violation
of the fiduciary relationship existing between her and private respondent. Private
respondent acknowledged the receipt of a xerox copy of TCT No. 9833 covering
petitioner's land in Dasmarinas, Cavite, 3 and the check voucher issued by private
respondent on April 16, 1983 showed that the check for P500,000.00 was for
"Payment for downpayment of lot to be purchased" 4 and the check voucher dated
August 27, 1983 for P500,000.00 was for "Second payment for lot to be
purchased."5

It was grave abuse of discretion on the part of respondent Judge Rosario Veloso to
deny petitioner's Urgent Motion to Discharge Writ of Preliminary Attachment,
without conducting a hearing and requiring the plaintiff to substantiate its
allegation of fraud. Neither can respondent Judge avoid deciding the issue raised in
petitioner's urgent motion by ruling that "the issue cannot be determined without
adducing evidence at the same time going into the merits of the case." Having
issued the writ of preliminary attachment ex parte, it was incumbent on the
respondent court, upon proper challenge of its order, to determine whether or not
the same was improvidently issued. A preliminary attachment is a rigorous remedy
which exposes the debtor to humiliation and annoyance, such that it should not be
abused to cause unnecessary prejudice and, if wrongfully issued on the basis of
false allegation, should at once be corrected.

We agree with petitioner that a writ of attachment may be discharged pursuant to

Section 13, Rule 57, without the necessity of filing a cash deposit or counterbond.
The provisions of the aforesaid section grants an aggrieved party relief from
baseless and unjustifiable attachments procured, among others, upon false
allegations, without having to file any cash deposit or counterbond.

WHEREFORE, in view of the foregoing, the appealed decision is hereby reversed

and the ex parte writ of preliminary attachment issued by the respondent Regional
Trial Court on December 11, 1984 is ANNULLED and SET ASIDE. Costs against
private respondent.

SO ORDERED.
G.R. No. 93262 December 29, 1991
DAVAO LIGHT & POWER CO., INC., petitioner,  . . . While it is true that a prayer for the issuance of a writ of
vs.
THE COURT OF APPEALS, QUEENSLAND HOTEL or MOTEL or
QUEENSLAND TOURIST INN, and TEODORICO ADARNA, respondents.
Breva & Breva Law Offices for petitioner.
Goc-Ong & Associates for private respondents.
NARVASA, J.:
Subject of the appellate proceedings at bar is the decision of the Court of Appeals
in CA-G.R. Sp. No. 1967 entitled "Queensland Hotel, Inc., etc. and Adarna v.
Davao Light & Power Co., Inc.," promulgated on May 4, 1990. 1 That decision
nullified and set aside the writ of preliminary attachment issued by the Regional
Trial Court of Davao City 2in Civil Case No. 19513-89 on application of the
plaintiff (Davao Light & Power Co.), before the service of summons on the
defendants (herein respondents Queensland Co., Inc. and Adarna).
Following is the chronology of the undisputed material facts culled from the
Appellate Tribunal's judgment of May 4, 1990.
1. On May 2, 1989 Davao Light & Power Co., Inc. (hereafter, simply Davao Light)
filed a verified complaint for recovery of a sum of money and damages against
Queensland Hotel, etc. and Teodorico Adarna (docketed as Civil Case No. 19513-
89). The complaint contained an ex parte application for a writ of preliminary
attachment.
2. On May 3, 1989 Judge Nartatez, to whose branch the case was assigned by
raffle, issued an Order granting the ex parte application and fixing the attachment
bond at P4,600,513.37.
3. On May 11, 1989 the attachment bond having been submitted by Davao Light,
the writ of attachment issued.
4. On May 12, 1989, the summons and a copy of the complaint, as well as the writ
of attachment and a copy of the attachment bond, were served on defendants
Queensland and Adarna; and pursuant to the writ, the sheriff seized properties
belonging to the latter.
5. On September 6, 1989, defendants Queensland and Adarna filed a motion to
discharge the attachment for lack of jurisdiction to issue the same because at the
time the order of attachment was promulgated (May 3, 1989) and the attachment
writ issued (May 11, 1989), the Trial Court had not yet acquired jurisdiction over
the cause and over the persons of the defendants.
6. On September 14, 1989, Davao Light filed an opposition to the motion to
discharge attachment.
7. On September 19, 1989, the Trial Court issued an Order denying the motion to
discharge.
This Order of September 19, 1989 was successfully challenged by Queensland and
Adarna in a special civil action of certiorari instituted by them in the Court of
Appeals. The Order was, as aforestated, annulled by the Court of Appeals in its
Decision of May 4, 1990. The Appellate Court's decision closed with the following
disposition:
. . . the Orders dated May 3, 1989 granting the issuance of a writ of
preliminary attachment, dated September 19, 1989 denying the motion
to discharge attachment; dated November 7, 1989 denying petitioner's
motion for reconsideration; as well as all other orders emanating
therefrom, specially the Writ of Attachment dated May 11, 1989 and
Notice of Levy on Preliminary Attachment dated May 11, 1989, are
hereby declared null and void and the attachment hereby ordered
DISCHARGED.
The Appellate Tribunal declared that —
preliminary attachment may be included m the complaint, as is usually
done, it is likewise true that the Court does not acquire jurisdiction
over the person of the defendant until he is duly summoned or
voluntarily appears, and adding the phrase that it be issued "ex parte"
does not confer said jurisdiction before actual summons had been
made, nor retroact jurisdiction upon summons being made. . . .
It went on to say, citing Sievert v. Court of Appeals, 3 that "in a proceedings in
attachment," the "critical time which must be identified is . . . when the trial court
acquires authority under law to act coercively against the defendant or his
property . . .;" and that "the critical time is the of the vesting of jurisdiction in the
court over the person of the defendant in the main case."
Reversal of this Decision of the Court of Appeals of May 4, 1990 is what Davao
Light seeks in the present appellate proceedings.
The question is whether or not a writ of preliminary attachment may issue ex
parte against a defendant before acquisition of jurisdiction of the latter's person by
service of summons or his voluntary submission to the Court's authority.
The Court rules that the question must be answered in the affirmative and that
consequently, the petition for review will have to be granted.
It is incorrect to theorize that after an action or proceeding has been commenced
and jurisdiction over the person of the plaintiff has been vested in the court, but
before the acquisition of jurisdiction over the person of the defendant (either by
service of summons or his voluntary submission to the court's authority),  nothing
can be validly done by the plaintiff or the court. It is wrong to assume that the
validity of acts done during this period should be defendant on, or held in
suspension until, the actual obtention of jurisdiction over the defendant's person.
The obtention by the court of jurisdiction over the person of the defendant is one
thing; quite another is the acquisition of jurisdiction over the person of the plaintiff
or over the subject-matter or nature of the action, or the res or object hereof.
An action or proceeding is commenced by the filing of the complaint or other
initiatory pleading. 4 By that act, the jurisdiction of the court over the subject
matter or nature of the action or proceeding is invoked or called into activity;  5 and
it is thus that the court acquires jurisdiction over said subject matter or nature of the
action. 6 And it is by that self-same act of the plaintiff (or petitioner) of filing the
complaint (or other appropriate pleading) — by which he signifies his submission
to the court's power and authority — that jurisdiction is acquired by the court over
his person. 7 On the other hand, jurisdiction over the person of the defendant is
obtained, as above stated, by the service of summons or other coercive process
upon him or by his voluntary submission to the authority of the court. 8
The events that follow the filing of the complaint as a matter of routine are well
known. After the complaint is filed, summons issues to the defendant, the
summons is then transmitted to the sheriff, and finally, service of the summons is
effected on the defendant in any of the ways authorized by the Rules of Court.
There is thus ordinarily some appreciable interval of time between the day of the
filing of the complaint and the day of service of summons of the defendant. During
this period, different acts may be done by the plaintiff or by the Court, which are
unquestionable validity and propriety. Among these, for example, are the
appointment of a guardian ad litem, 9 the grant of authority to the plaintiff to
prosecute the suit as a pauper litigant, 10 the amendment of the complaint by the
plaintiff as a matter of right without leave of court, 11 authorization by the Court of
service of summons by publication, 12 the dismissal of the action by the plaintiff
on mere notice. 13
This, too, is true with regard to the provisional remedies of preliminary attachment,
preliminary injunction, receivership or replevin.  14 They may be validly and
properly applied for and granted even before the defendant is summoned or is
heard from.
A preliminary attachment may be defined, paraphrasing the Rules of Court, as the
provisional remedy in virtue of which a plaintiff or other party may, at the
commencement of the action or at any time thereafter, have the property of the
adverse party taken into the custody of the court as security for the satisfaction of
any judgment that may be recovered. 15 It is a remedy which is purely statutory in
respect of which the law requires a strict construction of the provisions granting
it. 16 Withal no principle, statutory or jurisprudential, prohibits its issuance by any
court before acquisition of jurisdiction over the person of the defendant.
Rule 57 in fact speaks of the grant of the remedy "at the commencement of the
action or at any time thereafter." 17The phase, "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;" 18 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.
In Toledo v. Burgos, 19 this Court ruled that a hearing on a motion or application for
preliminary attachment is not generally necessary unless otherwise directed by the
Trial Court in its discretion. 20 And in Filinvest Credit Corporation v. Relova, 21 the
Court declared that "(n)othing in the Rules of Court makes notice and hearing
indispensable and mandatory requisites for the issuance of a writ of attachment."
The only pre-requisite is that the Court be satisfied, upon consideration of "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 . . . (Rule 57), 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 (of attachment) is granted above all legal
counterclaims." 22 If the court be so satisfied, the "order of attachment shall be
granted," 23 and the writ shall issue upon the applicant's posting of "a bond
executed to the adverse party in an amount to be fixed by the judge, not exceeding
the plaintiffs claim, 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." 24
In Mindanao Savings & Loan Association, Inc. v. Court of Appeals, decided on
April 18, 1989, 25 this Court had occasion to emphasize the postulate that no
hearing is required on an application for preliminary attachment, with notice to the
defendant, for the reason that this "would defeat the objective of the remedy . . .
(since 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."
As observed by a former member of this Court, 26 such a procedure would warn
absconding debtors-defendants of the commencement of the suit against them and
the probable seizure of their properties, and thus give them the advantage of time to
hide their assets, leaving the creditor-plaintiff holding the proverbial empty bag; it
would place the creditor-applicant in danger of losing any security for a favorable
judgment and thus give him only an illusory victory.
Withal, 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.
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.
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.
Sec. 12. Discharge of attachment upon giving counterbond. — At any
time after an order of attachment has been granted, the party whose
property has been attached or the person appearing in his behalf, may,
upon reasonable notice to the applicant, apply to the judge who
granted the order, or to the judge of the court in which the action is
pending, for an order discharging the attachment wholly or in part on
the security given . . . in an amount equal to the value of the property
attached as determined by the judge to secure the payment of any
judgment that the attaching creditor may recover in the action. . . .
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.
Sec. 5. Manner of attaching property. — The officer executing the
order shall without delay attach, to await judgment and execution in
the action, all the properties of the party against whom the order is
issued in the province, not exempt from execution, or so much thereof
as may be sufficient to satisfy the applicant's demand, unless the
former makes a deposit with the clerk or judge of the court from
which the order issued, or gives a counter-bond executed to the
applicant, in an amount sufficient to satisfy such demand besides
costs, or in an amount equal to the value of the property which is
about to be attached, to secure payment to the applicant of any
judgment which he may recover in the action. . . . (Emphasis supplied)
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, viz.:
Sec. 13. Discharge of attachment for improper or irregular issuance.
— The party whose property has been attached may also, at any time
either BEFORE or AFTER the release of the attached property, or
before any attachment shall have been actually levied, upon
reasonable notice to the attaching creditor, apply to the judge who
granted the order, or to the judge of the court in which the action is
pending, for an order to discharge the attachment on the ground that
the same was improperly or irregularly issued. If the motion be made
on affidavits on the part of the party whose property has been
attached, but not otherwise, the attaching creditor may oppose the
same by counter-affidavits or other evidence in addition to that on
which the attachment was made. . . . (Emphasis supplied)
This is so because "(a)s pointed out in Calderon v. I.A.C., 155 SCRA 531 (1987),
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." 27
It may not be amiss to here reiterate other related principles dealt with
in Mindanao Savings & Loans Asso. Inc. v. C.A., supra., 28 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 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." (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 (G.B. Inc. v. Sanchez, 98 Phil.
886).
WHEREFORE, the petition is GRANTED; the challenged decision of the Court of
Appeals is hereby REVERSED, and the order and writ of attachment issued by
Hon. Milagros C. Nartatez, Presiding Judge of Branch 8, Regional Trial Court of
Davao City in Civil Case No. 19513-89 against Queensland Hotel or Motel or
Queensland Tourist Inn and Teodorico Adarna are hereby REINSTATED. Costs
against private respondents.

(b) Effect of the dissolution of a preliminary attachment on the plaintiffs SO ORDERED.

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.

With respect to the other provisional remedies, i.e., preliminary injunction (Rule

58), receivership (Rule 59), replevin or delivery of personal property (Rule 60), the
rule is the same: they may also issue ex parte. 29

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 30 — 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, either by
service on him of summons or other 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.

It was on account of the failure to comply with this fundamental requirement of

service of summons and the other documents above indicated that writs of
attachment issued by the Trial Court ex parte were struck down by this Court's
Third Division in two (2) cases, namely: Sievert v. Court of Appeals, 31 and BAC
Manufacturing and Sales Corporation v. Court of Appeals, et al. 32 In contrast to
the case at bar — where the summons and a copy of the complaint, as well as the
order and writ of attachment and the attachment bond were served on the defendant
— in Sievert, levy on attachment was attempted notwithstanding that only the
petition for issuance of the writ of preliminary attachment was served on the
defendant, without any prior or accompanying summons and copy of the
complaint; and in BAC Manufacturing and Sales Corporation, neither the
summons nor the order granting the preliminary attachment or the writ of
attachment itself was served on the defendant "before or at the time the levy was
made."

For the guidance of all concerned, the Court reiterates and reaffirms the proposition
that 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 not
incorporated in but submitted separately from the complaint), the order of
attachment, and the plaintiff's attachment bond.
G.R. No. 102448 August 5, 1992
RICARDO CUARTERO, petitioner,  THE COURT OF APPEALS ERRED AND
vs.
COURT OF APPEALS, ROBERTO EVANGELISTA and FELICIA
EVANGELISTA, respondents.
Abesamis, Medialdea & Abesamis for petitioner.
Eufemio Law Offices for private respondent.
GUTIERREZ, JR., J.:
This is a petition for review on certiorari seeking to annul the decision of the Court
of Appeals promulgated on June 27, 1991 as well as the subsequent resolution
dated October 22, 1991 denying the motion for reconsideration in CA-G.R. SP No.
23199 entitled "Spouses Roberto and Felicia Evangelista v. Honorable Cezar C.
Peralejo, Presiding Judge Regional Trial Court of Quezon City, Branch 98, and
Ricardo Cuartero," which nullified the orders of the trial court dated August 24,
1990 and October 4, 1990 and cancelled the writ of preliminary attachment issued
on September 19, 1990.
Following are the series of events giving rise to the present controversy.
On August 20, 1990, petitioner Ricardo Cuartero filed a complaint before the
Regional Trial Court of Quezon City against the private respondents, Evangelista
spouses, for a sum of money plus damages with a prayer for the issuance of a writ
of preliminary attachment. The complaint was docketed as Civil Case No. Q-90-
6471.
On August 24, 1990, the lower court issued an order granting ex-parte the
petitioner's prayer for the issuance of a writ of preliminary attachment.
On September 19, 1990, the writ of preliminary attachment was issued pursuant to
the trial court's order dated August 24, 1990. On the same day, the summons for
the spouses Evangelista was likewise prepared.
The following day, that is, on September 20, 1990, a copy of the writ of
preliminary attachment, the order dated August 24, 1990, the summons and the
complaint were all simultaneously served upon the private respondents at their
residence. Immediately thereafter, Deputy Sheriff Ernesto L. Sula levied, attached
and pulled out the properties in compliance with the court's directive to attach all
the properties of private respondents not exempt from execution, or so much
thereof as may be sufficient to satisfy the petitioner's principal claim in the amount
of P2,171,794.91.
Subsequently, the spouses Evangelista filed motion to set aside the order dated
August 24, 1990 and discharge the writ of preliminary attachment for having been
irregularly and improperly issued. On October 4, 1990, the lower court denied the
motion for lack of merit.
Private respondents, then, filed a special civil action for certiorari with the Court
of Appeals questioning the orders of the lower court dated August 24, 1990 and
October 4, 1990 with a prayer for a restraining order or writ of preliminary
injunction to enjoin the judge from taking further proceedings below.
In a Resolution dated October 31, 1990, the Court of Appeals resolved not to grant
the prayer for restraining order or writ of preliminary injunction, there being no
clear showing that the spouses Evangelista were entitled thereto.
On June 27, 1991, the Court of Appeals granted the petition for certiorari and
rendered the questioned decision. The motion for reconsideration filed by herein
petitioner Cuartero was denied for lack of merit in a resolution dated October 22,
1991. Hence, the present recourse to this Court.
The petitioner raises the following assignment of errors:
I
COMMITTED A GRAVE ABUSE OF DISCRETION,
AMOUNTING TO LACK OF JURISDICTION WHEN
IT HELD THAT THE REGIONAL TRIAL COURT DID
NOT ACQUIRE JURISDICTION OVER
RESPONDENT SPOUSES.
II
THE COURT OF APPEALS ERRED AND ACTED
WITH GRAVE ABUSE OF DISCRETION WHEN IT
HELD THAT THE REGIONAL TRIAL COURT
COULD NOT VALIDLY ISSUE THE SUBJECT WRIT
OF PRELIMINARY ATTACHMENT WHICH IS AN
ANCILLARY REMEDY. (Rollo, p. 13)
The Court of Appeals' decision is grounded on its finding that the trial court did not
acquire any jurisdiction over the person of the defendants (private respondents
herein). It declared that:
. . . the want of jurisdiction of the trial court to proceed in
the main case as well as the ancillary remedy of
attachment is quite clear. It is not disputed that neither
service of summons with a copy of the complaint nor
voluntary appearance of petitioners was had in this case
before the trial court issued the assailed order dated
August 24, 1990, as well as the writ of preliminary
attachment dated September 19, 1990. This is reversible
error and must be corrected on certiorari. (Rollo, p. 24)
The appellate tribunal relied on the case of Sievert v. Court of Appeals, 168 SCRA
692 (1988) in arriving at the foregoing conclusion. It stated that:
Valid service of summons and a copy of the complaint
vest jurisdiction in the court over the defendant both for
the purpose of the main case and for purposes of the
ancillary remedy of attachment and a court which has not
acquired jurisdiction over the person of defendant, cannot
bind the defendant whether in the main case or in any
ancillary proceeding such as attachment proceedings
(Sievert v. Court of Appeals, 168 SCRA 692). (Rollo, p.
24)
The private respondents, in their comment, adopted and reiterated the
aforementioned ruling of the Court of Appeals. They added that aside from the
want of jurisdiction, no proper ground also existed for the issuance of the writ of
preliminary attachment. They stress that the fraud in contracting the debt or
incurring the obligation upon which the action is brought which comprises a
ground for attachment must have already been intended at the inception of the
contract. According to them, there was no intent to defraud the petitioner when the
postdated checks were issued inasmuch as the latter was aware that the same were
not yet funded and that they were issued only for purposes of creating an evidence
to prove a pre-existing obligation.
Another point which the private respondents raised in their comment is the alleged
violation of their constitutionally guaranteed right to due process when the writ was
issued without notice and hearing.
In the later case of Davao Light and Power Co., Inc. v. Court of Appeals, G.R. No.
93262, November 29, 1991, we had occasion to deal with certain misconceptions
which may have arisen from our Sievert ruling. The question which was resolved
in the Davao Light case is whether or not a writ of preliminary attachment may
issue ex-parte against a defendant before the court acquires jurisdiction over the
latter's person by service of summons or his voluntary submission to the court's
authority. The Court answered in the affirmative. This should have clarified the
matter but apparently another ruling is necessary.
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 might be secured in said action
by the attaching creditor against the defendant (Adlawan v. Tomol, 184 SCRA 31
[1990] citing Virata v. Aquino, 53 SCRA 30-31 [1973]).
In Sievert v. Court of Appeals, supra, cited by the Court of Appeals in its
questioned decision, the writ of attachment issued ex-parte was struck down
because when the writ of attachment was being implemented, no jurisdiction over
the person of the defendant had as yet been obtained. The court had failed to serve
the summons to the defendant.

The circumstances in Sievert are different from those in the case at bar. When the
Under section 3, Rule 57 of the Rules of Court, the only requisites for the issuance writ of attachment was served on the spouses Evangelista, the summons and copy
of the writ are the affidavit and bond of the applicant. As has been expressly ruled of the complaint were also simultaneously served.
in BF Homes, Inc. v. Court of Appeals, 190 SCRA 262 (1990), citing Mindanao
Savings and Loan Association, Inc. v. Court of Appeals, 172 SCRA 480 (1989), no
notice to the adverse party or hearing of the application is required inasmuch as the It is appropriate to reiterate this Court's exposition in the Davao Light and
time which the hearing will take could be enough to enable the defendant to Power case cited earlier, to wit:
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
. . . writs of attachment may properly issue ex-
ruling remains good law. There is, thus, no merit in the private respondents' claim
parte provided that the Court is satisfied that the relevant
of violation of their constitutionally guaranteed right to due process.
requisites therefore have been fulfilled by the applicant,
although it may, in its discretion, require prior hearing on
The writ of preliminary attachment can be applied for and granted at the the application with notice to the defendant, but that levy
commencement of the action or at any time thereafter (Section 1, Rule 57, Rules of on property pursuant to the writ thus issued may not be
Court). In Davao Light and Power, Co., Inc. v. Court of Appeals, supra, the phrase validly effected unless preceded, or contemporaneously
"at the commencement of the action" is interpreted as referring to the date of the accompanied by service on the defendant of summons, a
filing of the complaint which is a time before summons is served on the defendant copy of the complaint (and of the appointment of
or even before summons issues. The Court added that — guardian ad litem, if any), the application for attachment
(if not incorporated in but submitted separately from the
complaint), the order of attachment, and the plaintiff's
. . . after an action is properly commenced — by filing of attachment bond.
the complaint and the payment of all requisite docket and
other fees — the plaintiff may apply and obtain a writ of
preliminary attachment upon the fulfillment of the The question as to whether a proper ground existed for the issuance of the writ is a
pertinent requisites laid down by law, and that he may do question of fact the determination of which can only be had in appropriate
so at any time, either before or after service of summons proceedings conducted for the purpose (Peroxide Philippines Corporation V. Court
on the defendant. And this, indeed, has been the of Appeals, 199 SCRA 882 [1991]). It must be noted that the spouses Evangelista's
immemorial practice sanctioned by the courts: for the motion to discharge the writ of preliminary attachment was denied by the lower
plaintiff or other proper party to incorporate the court for lack of merit. There is no showing that there was an abuse of discretion
application for attachment in the complaint or other on the part of the lower court in denying the motion.
appropriate pleading (counter-claim, cross-claim, third-
party-claim) and for the Trial Court to issue the writ ex-
Moreover, an attachment may not be dissolved by a showing of its irregular or
parte at the commencement of the action if it finds the
improper issuance if it is upon a ground which is at the same time the applicant's
application otherwise sufficient in form and substance.
cause of action in the main case since an anomalous situation would result if the
issues of the main case would be ventilated and resolved in a mere hearing of a
The Court also pointed out that: motion (Davao Light and Power Co., Inc. v. Court of Appeals, supra, The
Consolidated Bank and Trust Corp. (Solidbank) v. Court of Appeals, 197 SCRA
663 [1991]).
. . . It is incorrect to theorize that after an action or
proceeding has been commenced and jurisdiction over
the person of the plaintiff has been vested in the In the present case, one of the allegations in petitioner's complaint below is that the
Court, but before acquisition of jurisdiction over the defendant spouses induced the plaintiff to grant the loan by issuing postdated
person of the defendant (either by service of summons or checks to cover the installment payments and a separate set of postdated cheeks for
his voluntary submission to the Court's authority), payment of the stipulated interest (Annex "B"). The issue of fraud, then, is clearly
nothing can be validly done by the plaintiff or the Court. within the competence of the lower court in the main action.
It is wrong to assume that the validity of acts done during
the period should be dependent on, or held in suspension
WHEREFORE, premises considered, the Court hereby GRANTS the petition. The
until, the actual obtention of jurisdiction over the
challenged decision of the Court of Appeals is REVERSED, and the order and writ
defendants person. The obtention by the court of
of attachment issued by Hon. Cezar C. Peralejo, Presiding Judge of Branch 98,
jurisdiction over the person of the defendant is one thing;
Regional Trial Court of Quezon City against spouses Evangelista are hereby
quite another is the acquisition of jurisdiction over the
REINSTATED. No pronouncement as to costs.
person of the plaintiff or over the subject matter or nature
of the action, or the res or object thereof.
SO ORDERED.
It is clear from our pronouncements that a writ of preliminary attachment may
issue even before summons is served upon the defendant. However, we have
likewise ruled that the writ cannot bind and affect the defendant. However, we
have likewise ruled that the writ cannot bind and affect the defendant until
jurisdiction over his person is eventually obtained. Therefore, it is required that
when the proper officer commences implementation of the writ of attachment,
service of summons should be simultaneously made.

It must be emphasized that 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.
G.R. No. L-43461 December 16, 1937
J. UY KIMPANG & CO., plaintiff-appellant, 
vs.
VICENTE JAVIER, ET AL., defendants;  was not approved by the court;
JUAN AUTAJAY and SEVERINO MAGBANUA, sureties-appellees.
Engracio Padilla and Manuel Laserna and Vickers, Ohnick, Opisso and Velilla for
appellant.
Tobias Fornier for appellee Autajay.
No appearance for the other appelle Magbanua.
DIAZ, J.:
By virtue of a writ of execution issued by the Court of First Instance of Antique on
August 8, 1933 to enforce the payment to the plaintiff of the sum of P6,678.84 plus
interest and costs, which the defendants Vicente Javier, Ramon Majandog, Zenon
Javier, Paz Javier with her husband Hugo Mabaquiao and Ramon Maza, in case G.
R. No. 36414 1 (civil case No. 1253 of the Court of First Instance of Antique),
were sentenced by this court to pay, the sheriff of the aforesaid province levied
upon the seven parcels of land belonging to the defendant Ramona Majandog and
enumerated in the return of said sheriff of September 9, 1933 for the purpose of
selling, as he in fact later sold, them at public auction to the highest bidder who
was found in the person of Uy Cay Ju, manager of the plaintiff entity, for the sum
of only P1,730. In view of the fact that this sum was not sufficient to cover the full
value of the judgment and that the defendants failed to deliver to the sheriff the
properties which were released from the attachment by the virtue of the obligation
which, on December 29, 1925 and the approval of the court, they executed jointly
with their sureties Severino Magbanua and Juan Autajay, the plaintiff in its motion
of January 23, 1934 moved the court to again order the execution of the aforesaid
judgement, but this time against the properties of two sureties. The surety Juan
Autajay objected to the plaintiff's motion on the grounds: (1) That the attachment
of the properties of the defendants was null and void because it does not appear
that they were served with a copy of the writ ordering the same; (2) that said
attachment was not inscribed in the registry of properties; (3) that he (Autajay) was
released from his obligation as surety because his undertaking had been cancelled
when the court, in its order of February 15, 1930, permitted him to withdraw
therefrom; (4)that the undertaking should in any event be enforced exclusively
against the other surety (Severino Magbanua) inasmuch as he did not withdraw
therefrom.
After passing upon the question raised by Juan Autajay, the lower court, in its order
of July 18, 1934, denied the plaintiff's motion for the following reasons:
(a) That in view of the amount in litigation (P9,352), the justice of the peace of the
capital of antique, even in the absence of the Judge of First Instance of said
province, had no power to issue the writ of attachment in question;
(b) That the issuance of the said writ by the clerk was illegal, because only the
justices and the judges of First Instance may issue such writs, and their power
cannot in any case be delegated to the clerk;
(c) That there was no valid attachment because, aside from the fact that the basic
writ was not signed by any judge, the obligation executed by the plaintiff was not
approved by the court; and
(d) that, in violation of the provisions of section 440 of Act No. 190, the discharge
of the attachment levied upon the properties of the defendants was not ordered.
The plaintiff duly appealed from the order denying his motion and now contends
that the lower court erred:lawphil.net
1. In holding that the justice of the peace of the capital of Antique could not issue
the writ of attachment because the amount sued for was in excess of that provided
by law in the cases in which justice of the peace of the provincial capitals may
order an attachment;
2. In holding that the writ of attachment was illegal because it was issued by the
clerk and not by the judge, and that the order authorizing the clerk to issue the
same was likewise illegal because it conferred powers which under the law could
not be delegated;
3. In holding that the properties of the defendants were not validly attached,
because the writ of attachment was not signed by the judge;
4. In holding that the obligation executed by the plaintiff was not valid, because it
5. In holding that the counterobligation executed by Juan Autajay and Severino
Magbanua is without any legal effect;
6. In holding that the plaintiff has no right to enforce the counterobligation signed
by Juan Autajay and Severino Magbanua, and in denying its motion for the
enforcement thereof; and
7. In not granting its motion for reconsideration and in denying its motion for new
trial.lawphil.net
The background necessary to a better grasp of the facts of the case may be briefly
stated as follows: On December 20, 1925 the plaintiff filed in the Court of First
Instance of Antique a verified complaint in which it alleged among other things
that the defendant were indebted to it in the sum of P9,352 plus interest from May,
1918, at the rate of 12 per cent per annum; that the defendants were disposing or
about to dispose of their properties with intent to defraud their creditors and the
plaintiff; that in order to secure plaintiff's rights, it was necessary to attach the
properties of said defendants, unless they were willing to execute an obligation as
guaranty for their solvency; and that to obtain such remedy, it was ready to execute
the requisite obligation. Four days later, or on December 24, 1925, the plaintiff
filed a motion in which, after reiterating the allegations of its complaint, it was
prayed that a writ of attachment be issued against the defendant. The justice of the
peace of the capital of Antique, acting in the place of the Judge of the Court of First
Instance of said province, ruled favorably on the plaintiff's motion and stated the
following in his order of December 24, 1925.
Wherefore the court, being of the opinion that the plaintiff entity is
entitled thereto, hereby orders the clerk of court to issue a writ of
attachment against the properties of the said defendants upon the
execution by the plaintiff of an obligation in the sum of P9,500 which
will respond for the damages recoverable by the defendants in case the
court decides this case in their favor.
So ordered.
San Jose, Antique, P.I., December 24, 1925.
(Sgd.) DELFIN HOFILEÑA
Justice of the Peace of the Capital
of San Jose, Antique, acting in the 
Seventeenth District.
After the plaintiff had executed the obligation in the sum of P9,500 as required in
this order, issued on December 29,1925 the writ of attachment in question,
notwithstanding the fact that the aforesaid obligation was not yet approved.
The provincial sheriff, upon receipt of the writ, attached the properties belonging to
defendants and enumerated in the sheriff's return, the assessed value of which was
noted at the bottom of said return. On the same day, December 29, 1925, the
defendants executed a counterobligation in the sum of P9,500 with a view to
dissolving the attachment levied upon their properties. Said counterbond, which
was approved on the same date by the justice of the peace who issued the order of
attachment, was signed by all the defendant and their sureties Juan Autajay and
Severino Magbanua who bound themselves jointly and severally thereunder.
On March 29, Juan Autajay prayed that he be permitted to withdraw from his
obligation as surety of the defendant. In view, however, of the opposition
registered by the plaintiff in which it was alleged that the purpose of Juan Autajay
was merely to evade the performance of an obligation voluntarily contracted and to
defeat the judgment which might be entered in plaintiff's favor, the trial court
denied the motion in its order of April 17, 1926 the dispositive part of which reads
as follows:
The court, after hearing the arguments of both parties, sustains the
demurrer, admits the amended complaint, and denies the motion of
Juan Autajay, unless the defendant Vicente Javier should execute a
new obligation within the period of thirty days.
Two other similar motions were filed by Autajay and by the surety Magbanua on
November 21 and December 17, 1927, but they were not acted upon by the court
for lack of prosecution. On January 31, 1930, Autajay filed another motion, the
plaintiff objected; but the trial court granted the same under the conditions
expressed in the order of February 15, 1930 to wit:
Considering the motion of the surety Juan Autajay and the statement
of the Attorney Hon. Segundo C. Moscoso in representation of the
defendants Vicente Javier and other the withdrawal of the movant
Juan Autajay is hereby granted and said defendants are given sixty
days within which to submit to the court for approval another
obligation in substitution for the one to be rendered ineffective by the
withdrawal of the surety Juan Autajay.
The fact, however, remains that the defendant did not execute the new obligation
required in the foregoing order.
I. The question raised under the first error alleged to have been resolve by this
court in an analogous case wherein it was held that the justice of the peace of the
capital acting "in the absence of the Justice of First Instance" has the power to issue
an order of attachment in spite of the fact that the amount litigated is in excess of
that fixed by law for his ordinary jurisdiction. (Wise & Co. vs. Larion, 45 Phil.,
314.)
Section 1, paragraph 4, of act No. 2131 which was in force on December 24, 1925,
the date of the attachment, provides that the justice of the peace in the capitals of
provinces organized under the Provincial Government Act, in the absence of the
judge of the province, may exercise within the province like interlocutory
jurisdiction as that of the said judge, including the appointment of receivers and the
issuance of all other orders which are final and do not involve, as the attachment
under consideration, a decision of the case on its merits.
The defendants failed to prove that the Judge of the Court of First Instance of
Antique was then holding sessions in said province; and, in the absence of proof to
the contrary, the legal presumption being that official duty has been regularly
performed (sec. 334, No. 14, Act No. 190), it much be held that said judge was
absence from his district on December 24, 1925. It must follow that the justice of
the peace of the capital acted in full conformity with the law in issuing the
aforesaid order.
II. There is no doubt that, under the provisions of sections 425, 426 and 427 of Act
No. 190, only the justice, judges of First Instance, and justices of the peace or
municipal judges may issue an order of attachment when prayed for, provided the
legal requisites are present. In the case at bar all the requirements of the law were
complied with. Inasmuch as the order of December 24, 1925 under which the
questioned writ of attachment was issued, was entered by a competent judge, it
cannot be alleged that said writ was a mere capricious act of the clerk. On the
contrary, it may and should be inferred that the writ was issue in strict compliance
with a perfectly valid order given to him. The law does not provide or state that the
writs of attachment must be issued by the very justice or judge who is to authorize
it; it simply determines the judicial authority who shall have the power to grant an
attachment. Even supposing that the writ in dispute is defective because it was not
signed by the judge who authorized its issuance, it is now too late to raise the
question after the same was accepted and believed to be valid not only by the
defendants but by their sureties. It is noteworthy that in their counterobligation they
made it understood that they were aware of the issuance of a writ of attachment
against the defendants; that the properties of the latter had been attached by the
sheriff; that all wanted or at least prayed that said attachment be discharged; and
that they offered to execute, as in fact they immediately did execute, the
counterobligation required. The general rule is that "irregularities and defects in
attachment or garnishment proceedings which render the attachment merely
voidable and not void, are deemed to be waived unless promptly taken advantage
of by appropriate mode of raising objection thereto." (4 Am. Jur., par., 616, p. 923.)
In case of Hammond vs. Starr (79 Cal., 556, 559; 21 Pac., 971), it was held that:
Irregularities in affidavit and undertaking or in proceedings to procure
attachment, if waived in attachment suit, cannot be taken advantage of
by sureties in collateral proceedings on undertaking given to secure
release of attachment.
In the case of Moffitt vs. Garrett, the supreme Court of Oklahoma (100 Pac. Rep.,
533), construing two legal provisions of said State, 4404 and 4376 (4851 and
4821), which are analogous to section 440 of Act No. 190, and adhering to the
decisions of the court of Iowa, New York, Illinois, Wisconsin, Michigan,
Minnesota, Texas, Washington, Rhode Island, California, Oregon, North Dakota
and South Dakota, held that:
The court in these states have held that the execution of a bond under
and in accordance with these statutes estops the defendant from
controverting the attachment, and renders the obligors in the bond
absolutely liable for the amount of any judgment the plaintiff recovers
in the action, without reference to the question whether the attachment
was rightfully or wrongfully sued out. And concluded that:
The obligors in the bond are precluded and estopped from traversing
the truth of the allegations of the affidavit, or setting up that the
defendant in attachment was not the owner of the property levied on.
What has been stated also disposes of the contention advanced by the sureties-
appellees to the effect that the defendants were not given a copy of the order of
attachment, which is an essential requisite prescribed by section 429 of Act No.
190. The Inference must be drawn that they were notified of said order; otherwise,
they would not have stated in their counterobligation that:
"The defendant having prayed for the discharge of the attachment levied upon his
properties in an action pending in the Court of First Instance of the Province of
Antique, Philippines Island, in which J. Uy Kimpang & Co. is plaintiff and Vicente
Javier and Others, defendant, . . . ." The other contention that the plaintiff's motion
praying for the issuance of a attachment was not sworn to as required by law, is
likewise disposed of. It was unnecessary that the same should be under oath
because it was merely a repetition or renewal of what was already prayed for in the
complaint which was verified. In order not to nullify the purposes of the law,
technicalities should be disregarded, especially when, as in the case under
advisement, there was substantial compliance therewith. On the other hand, the law
enjoins that the provisions of the Code of Civil Procedure shall be liberally
construed in order to promote its object and assist the parties in obtaining speedy
justice, bearing in mind, in construing and applying them, their spirit and purpose,
rather than their strict letter (sec. 2, Act No. 190, Garcia vs. Ambler and Sweeney,
4 Phil., 81).
The conditions of the counterobligation executed by the defendants and the
sureties-appellees are as follows:
Should the judgment be favorable to the plaintiff, the defendant, upon
being required, shall redeliver to the officer of the court the property
discharge from the attachment, in order that it may be applied to the
payment of the judgment, and in case of failure to do so , the
defendant and his sureties, when required, shall pay to the plaintiff the
full value of attached property. (Page 16, Bill of Exceptions.)
It must be remembered that the defendants and the sureties-appellees not only
failed to object to the procedure followed by the clerk but, as already stated,
executed the counterobligation required by law for discharge of the attachment
levied upon the properties of the defendant, and that Autajay and Magbanua were
the ones who signed the counterobligation as sureties and submitted the same to the
justice of the peace of the capital for approval. It must also be remembered that in
all the motions which they subsequently filed in these proceedings, the said sureties
confined themselves to the request that they be permitted to withdraw from their
obligation for the reason that it was against their interest to continue being sureties
of the defendants. Under these circumstances, we believe we should adhere to the
rule that:
All objections to the writ will be waived by moving to set aside the
attachment on other grounds and failing to make the objections before
bond for the release of the property. (6 C.J., par. 346, p. 190.)
because,
After issue made and trial begun upon the merits of a case, it is too
late for an objection of the petition or attachment for want of
verification. (Id.)
For the reasons given, we hold that the trial court committed the second error
assigned by the appellant.
III. The question whether or not there was valid attachment is impliedly resolved in
the discussion of the appellant's second assignment of error. The omission referred
to by the trial court could be supplied and was not in any wise capital, because, as
already said, the writ signed by the clerk was issued by him in compliance with the
order entered on December 24, 1925 by the justice of the peace of the capital who
was authorized by law (Act No. 2131) to do so in the absence of the Judge of First
Instance of the District.

IV Inasmuch as both the defendants and the sureties-appellees, by executing the

counterobligation required by law for the discharge of the attachment, had accepted
the obligation filed by the plaintiff with the justice of the peace of the capital for
the issuance of the writ of attachment against the defendants, it is now too late and
futile to allege that the said obligation is invalid for lack of approval by the judge.
They are estopped from doing so by their own acts, inasmuch as their failure to
question the said obligation at the proper time constitutes a waiver of their right.
One who has any objection to the sufficiency or validity of an obligation in
attachment proceedings, should record the same before executing the
counterobligation required for the discharge of the attachment; otherwise, it will be
understood that he does not question, or that he renounces his right to question, the
sufficiency or validity of the said obligation.

V. There is no importance in the fact that it does not appear in the record that the
court had dissolved, after the approval of the aforesaid counterobligation, the
attachment levied upon the properties of the defendants. It must be assumed that
the court discharged it by virtue of the said counterobligation; otherwise, the reason
for approving it cannot be explained, and said approval would have no finality.

In the case of Rosenthal (123 Cal., 240), where a similar question was involved, the
court said:

Where the goods were in fact released as a consequence of the bond

being given, and the undertaking for the released of the attached
property recited that it was given pursuant to an order of the court
requiring it to be given, and the officer accepted the bond and
surrendered the property, it must be presumed that an order
discharging the attachment was made . . . and that the officer regularly
performed his duty in releasing the goods.

VI and VII. Inasmuch as the trial court committed the preceding five errors, it must
follow that it also committed errors 6 and 7 which are a necessary consequence
thereof. The counterobligation executed by the sureties-appellees is enforceable
under the provisions of section 440 of Act No. 190 (Bautista vs. Joaquin, 46 Phil.,
885), because, when the defendants were required to deliver to the sheriff the
properties released from the attachment, they could not do so, as at least three of
said properties (Exhs. A, B and E of the opposition of the appellee Juan Autajay,
dated June 11, 1934) were sold after their release, and the appellees failed to
proved that the defendants had other properties susceptible of attachment and
execution.

It is superfluous to state that there is no basis for the contention of the appellee
Juan Autajay that he was released from his obligation as surety of the defendants,
because he was never so released in view of the failure of the defendants to execute
the new obligation required by the order of February 15, 1930 which has
hereinbefore been referred to.

Wherefore, the order of July 18, 1934 is set aside and the lower court is ordered to
issue another writ of execution against the properties of the sureties-appellees, to
the extent of the value of their obligation of December 29, 1925, with a view to
satisfying the unpaid portion of the judgment rendered in civil case No. 1253 of the
Court of First Instance of Antique, without prejudice to the right of the said sureties
to recover from the defendants the amount that may be paid by virtue of the
execution herein ordered. The costs will be assessed against the appellees. So
ordered.
G.R. No. L-50378 September 30, 1982
FILINVEST CREDIT CORPORATION, petitioner, 
vs.
THE HONORABLE JUDGE BENJAMIN RELOVA (In his capacity as
Presiding Judge of the Court of First Instance of Manila, Branch XI) and
ERNESTO SALAZAR, respondents.
Labaquis, Loyola & Angara Law Offices for petitioner.
Cecilio D. Ignacio for respondents.
GUERRERO, J.:
This is a special civil action for certiorari, with prayer for restraining order or
preliminary injunction, filed by petitioner Filinvest Credit Corporation seeking to
annul the Orders issued by respondent Judge dated February 2, 1979 and April 4,
1979 in Civil Case No. 109900.
As shown by the records, the antecedents of the instant Petition are as follows:
On August 2, 1977, Filinvest Credit Corporation (hereinafter referred to as
FILINVEST) filed a complaint in the lower court against defendants Rallye Motor
Co., Inc. (hereinafter referred to as RALLYE) and Emesto Salazar for the
collection of a sum of money with damages and preliminary writ of attachment.
From the allegations of the complaint, 1 it appears that in payment of a motor
vehicle described as: "One (1) Unit MAZDA DIESEL SCHOOL BUS, Model:
E4100, Serial No.: EXC43P-02356, Motor No.: Y-13676," Salazar executed a
promissory note dated May 5, 1977 in favor of RALLYE for the amount of
P99,828.00. To secure the note, Salazar also executed in favor of RALLYE a deed
of chattel mortgage over the above described motor vehicle. On May 7, 1977,
RALLYE, for valuable consideration, assigned all its rights, title and interest to the
aforementioned note and mortgage to FILINVEST. Thereafter, FILINVEST came
to know that RALLYE had not delivered the motor vehicle subject of the chattel
mortgage to Salazar, "as the said vehicle (had) been the subject of a sales
agreement between the codefendants." Salazar defaulted in complying with the
terms and conditions of the aforesaid promissory note and chattel mortgage.
RALLYE, as assignor who guaranteed the validity of the obligation, also failed and
refused to pay FILINVEST despite demand. According to FILINVEST, the
defendants intentionally, fraudulently and with malice concealed from it the fact
that there was no vehicle delivered under the documents negotiated and assigned to
it, otherwise, it would not have accepted the negotiation and assignment of the
rights and interest covered by the promissory note and chattel mortgage. Praying
for a writ of preliminary attachment, FILINVEST submitted with its complaint the
affidavit of one Gil Mananghaya, pertinent portions of which read thus:
That he is the Collection Manager, Automotive Division
of Filinvest Credit Corporation;
That in the performance of his duties, he came to know of
the account of Ernesto Salazar, which is covered by a
Promissory Note and secured by a Chattel Mortgage,
which documents together with all the rights and interest
thereto were assigned by Rallye Motor Co., Inc.;
That for failure to pay a stipulated installment, and the
fact that the principal debtor, Ernesto Salazar, and the
assignor, Rallye Motor Co., Inc. concealed the fact that
there was really no motor vehicle mortgaged under the
terms of the Promissory Note and the Chattel Mortgage,
the entire amount of the obligation stated in the
Promissory Note becomes due and demandable, which
Ernesto Salazar and Rallye Motor Co., Inc. failed and
refused to pay, so much so that a sufficient cause of
action really exists for Filinvest Credit Corporation to
institute the corresponding complaint against said person
and entity;
That the case is one of those mentioned in Section 1,
Rule 57 of his Rules of Court, particularly an action
against parties who have been guilty of a fraud in
contracting the debt or incurring the obligation upon
which the action is brought;
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 Filinvest Credit Corporation is as
much as the sum for which the order is granted above all
legal counterclaims;
That this affidavit is executed for the purpose of securing
a writ of attachment from the court. 2
The specific provision adverted to in the above Affidavit is Section 1(d) of Rule 57
which includes "an action against a party who has been guilty of fraud in
contracting the debt or incurring the obligation upon which the action is brought, or
in concealing or disposing of the property for the taking, detention or conversion of
which the action is brought" as one of the cases in which a "plaintiff or any proper
party may, at the commencement of the action or at any time thereafter, have the
property of the adverse party attached as security for the satisfaction of any
judgment that may be recovered."
Judge Jorge R. Coquia (now Justice of the Court of Appeals), then presiding Judge
of the lower court, granted the prayer for a writ of attachment in an Order dated
August 17, 1977 stating that:
Finding the complaint sufficient in form and substance,
and in view of the sworn statement of Gil Mananghaya,
Collection Manager of the plaintiff that defendants have
committed fraud in securing the obligation and are now
avoiding payment of the same, let a writ of attachment
issue upon the plaintiff's filing of a bond in the sum of
P97,000.00.
In the meantime, let summons issue on the defendants. 3
More than a year later, in an Urgent Motion dated December 11, 1978, 4 defendant
Salazar prayed that the writ of preliminary attachment issued ex parte and
implemented solely against his property be recalled and/or quashed. He argued that
when he signed the promissory note and chattel mortgage on May 5, 1977 in favor
of RALLYE, FILINVEST was hot vet his creditor or obligee, therefore, he could
not be said to have committed fraud when he contracted the obligation on May 5,
1977. Salazar added that as the motor vehicle which was the object of the chattel
mortgage and the consideration for the promissory note had admittedly not been
delivered to him by RALLYE, his repudiation of the loan and mortgage is more
justifiable.
FILINVEST filed an Opposition, but on February 2, 1979, the court a quo, this
time presided over by herein respondent Judge, ordered the dissolution and setting
aside of the writ of preliminary attachment issued on August 17, 1977 and the
return to defendant Salazar of all his properties attached by the Sheriff by virtue of
the said writ. In this Order, respondent Judge explained that:
When the incident was called for hearing, the Court
announced that, as a matter of procedure, when a motion
to quash a writ of preliminary attachment is filed, it is
incumbent upon the plaintiff to prove the truth of the
allegations which were the basis for the issuance of said
writ. In this hearing, counsel for the plaintiff manifested
that he was not going to present evidence in support of
the allegation of fraud. He maintained that it should be
the defendant who should prove the truth of his allegation
in the motion to dissolve the said writ. The Court
disagrees. 5
FILINVEST filed a Motion for Reconsideration of the above Order, and was
subsequently allowed to adduce evidence to prove that Salazar committed fraud as
alleged in the affidavit of Gil Mananghaya earlier quoted. This notwithstanding,
respondent Judge denied the Motion in an Order dated April 4, 1979 reasoning
thus:
The plaintiff's evidence show that the defendant Rallye
Motor assigned to the former defendant Salazar's
 promissory note and chattel mortgage by virtue of which
plaintiff discounted the note. Defendant Salazar refused
to pay the plaintiff for the reason that Rallye Motor has
not delivered to Salazar the motor vehicle which he
bought from Rallye. It is the position of plaintiff that
defendant Salazar was in conspiracy with Rallye Motor
in defrauding plaintiff.
Ernesto Salazar, on his part complained that he was
himself defrauded, because while he signed a promissory
note and chattel mortgage over the motor vehicle which
he bought from Rallye Motor, Rallye Motor did not
deliver to him the personal property he bought; that the
address and existence of Rallye Motor can no longer be
found.
While it is true that the plaintiff may have been defrauded
in this transaction, it having paid Rallye Motor the
amount of the promissory note, there is no evidence that
Ernesto Salazar had connived or in any way conspired
with Rallye Motor in the assignment of the promissory
note to the plaintiff, because of which the plaintiff paid
Rallye Motor the amount of the promissory note.
Defendant Ernesto Salazar was himself a victim of fraud.
Rallye Motor was the only party which committed it. 6
From the above order denying reconsideration and ordering the sheriff to return to
Salazar the personal property attached by virtue of the writ of preliminary
attachment issued on August 17, 1977, FILINVEST filed the instant Petition on
April 19, 1979. On July 16, 1979, petitioner FILINVEST also filed an Urgent
Petition for Restraining Order 7 alleging, among others, that pending this certiorari
proceeding in this court, private respondent Salazar filed a Motion for Contempt of
Court in the court below directed against FILINVEST and four other persons
allegedly for their failure to obey the Order of respondent Judge dated April 4,
1979, which Order is the subject of this Petition. On July 23, 1979, this Court
issued a temporary restraining order "enjoining respondent Judge or any person or
persons acting in his behalf from hearing private respondent's motion for contempt
in Civil Case No. 109900, entitled, 'Filinvest Credit Corporation, Plaintiff, versus
The Rallye Motor Co., Inc., et al., Defendants' of the Court of First Instance of
Manila, Branch XI. " 8
Petitioner FILINVEST in its MEMORANDUM contends that respondent Judge
erred:
(1) In dissolving the writ of preliminary attachment
already enforced by the Sheriff of Manila without
Salazar's posting a counter-replevin bond as required by
Rule 57, Section 12; and
(2) In finding that there was no fraud on the part of
Salazar, despite evidence in abundance to show the fraud
perpetrated by Salazar at the very inception of the
contract.
It is urged in petitioner's first assignment of error that the writ of preliminary
attachment having been validly and properly issued by the lower court on August
17, 1977, the same may only be dissolved, quashed or recalled by the posting of a
counter-replevin bond under Section 12, Rule 57 of the Revised Rules of Court
which provides that:
Section 12. Discharge of Attachment upon, gluing
counterbond.—At any time after an order of attachment
has been granted, the party whose property has been
attached, or the person appearing on his behalf, may,
upon reasonable notice to the applicant, apply to the
judge who granted the order, or to the judge of the court,
in which the action is pending, for an order discharging
the attachment wholly or in part on the security given.
The judge shall, after hearing, order the discharge of the
attachment if a cash deposit is made, or a counter-bond
executed to the attaching creditor is filed, on behalf of the
adverse party, with the clerk or judge of the court where
the application is made, in an amount equal to the value
of the property attached as determined by the judge, to
secure the payment of any judgment that the attaching
creditor may recover in the action. ...
Citing the above provision, petitioner contends that the court below should not
have issued the Orders dated February 2, 1979 and April 4, 1979 for failure of
private respondent Salazar to make a cash deposit or to file a counter-bond.
On the other hand, private respondent counters that the subject writ of preliminary
attachment was improperly or irregularly issued in the first place, in that it was
issued ex parte without notice to him and without hearing.
We do not agree with the contention of private respondent. Nothing in the Rules of
Court makes notice and hearing indispensable and mandatory requisites for the
issuance of a writ of attachment. The statement in the case of Blue Green Waters,
Inc. vs. Hon. Sundiam and Tan  9 cited by private respondent, to the effect that the
order of attachment issued without notice to therein petitioner Blue Green Waters,
Inc. and without giving it a chance to prove that it was not fraudulently disposing
of its properties is irregular, gives the wrong implication. As clarified in the
separate opinion of Mr. Justice Claudio Teehankee in the same cited case, 10 a writ
of attachment may be issued ex parte. Sections 3 and 4, Rule 57, merely require
that an applicant for an order of attachment file an affidavit and a bond:
the affidavit to be executed by the applicant himself or some other person who
personally knows the facts and to show that (1) there is a sufficient cause of action,
(2) the case is one of those mentioned in Section 1 of Rule 57, (3) there is no other
sufficient security for the claim sought to be enforced, and (4) the amount claimed
in the action is as much as the sum for which the order is granted above all legal
counterclaims; and the bond to be "executed to the adverse party in an amount
fixed by the judge, not exceeding the applicant's claim, 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."
We agree, however, with private respondents contention that a writ of attachment
may be discharged without the necessity of filing the cash deposit or counter-bond
required by Section 12, Rule 57, cited by petitioner. The following provision of the
same Rule allows it:
Sec. 13. Discharge of attachment for improper or
irregular issuance.—The party whose property has been
attached may also, at any time either before or after the
release of the attached property, or before any attachment
shall have been actually levied, upon reasonable notice to
the attaching creditor, apply to the judge who granted the
order, or to the judge of the court in which the action is
pending, for an order to discharge the attachment on the
ground that the same was improperly or irregularly
issued. If the motion be made on affidavits on the part of
the party whose property has been attached, but not
otherwise, the attaching creditor may oppose the same by
counter-affidavits or other evidence in addition to that on
which the attachment was made. After hearing, the judge
shall order the discharge of the attachment if it appears
that it was improperly or irregularly issued and the defect
is not cured forthwith."(Emphasis supplied)
The foregoing provision grants an aggrieved party relief from baseless and
unjustifiable attachments procured, among others, upon false allegations, without
having to file any cash deposit or counter-bond. In the instant case the order of
attachment was granted upon the allegation of petitioner, as plaintiff in the court
below, that private respondent RALLYE, the defendants, had committed "fraud in
contracting the debt or incurring the obligation upon which the action is brought,"
covered by Section i(d), Rule 57, earlier quoted. Subsequent to the issuance of the
attachment order on August 17, 1977, private respondent filed in the lower court an
"Urgent Motion for the Recall and Quashal of the Writ of Preliminary Attachment
on (his property)" dated December 11, 1978 11 precisely upon the assertion that
there was "absolutely no fraud on (his) part" in contracting the obligation sued
upon by petitioner. Private respondent was in effect claiming that petitioner's
allegation of fraud was false, that hence there was no ground for attachment, and
that therefore the attachment order was "improperly or irregularly issued." This
Court was held that "(i)f the grounds upon which the attachment was issued were
not true ..., the defendant has his remedy by immediately presenting a motion for
the dissolution of the same. 12 We find that private respondent's abovementioned
Urgent Motion was filed under option 13, Rule 57.
The last sentence of the said provision, however, indicates that a hearing must be
conducted by the judge for the purpose of determining whether or not there reality
was a defect in the issuance of the attachment. The question is: At this hearing, on
whom does the burden of proof lie? Under the circumstances of the present case,
We sustain the ruling of the court a quo in its questioned Order dated February 2,
1979 that it should be the plaintiff (attaching creditor), who should prove his
allegation of fraud. This pronouncement finds support in the first sentence of
Section 1, Rule 131, which states that: "Each party must prove his own affirmative enumerated above. He agreed and consented to the assignment by RALLYE of the
allegations." The last part of the same provision also provides that: "The burden of fictitious promissory note and the fraudulent chattel mortgage, affixing his
proof lies on the party who would be defeated if no evidence were given on either signature thereto, in favor of petitioner FILINVEST who, in the ordinary course of
side." It must be brne in mind that in this jurisdiction, fraud is never presumed. business, relied on the regularity and validity of the transaction. Respondent had
FRAUS EST IdIOS ET NON PRAESUMENDA. 13 Indeed, private transactions are previously applied for financing assistance from petitioner FILINVEST as shown
presumed to have been fair and regular. 14 Likewise, written contracts such as the in Exhibits "E " and "E-1 " and his application was approved, thus he negotiated
documents executed by the parties in the instant case, are presumed to have been for the acquisition of the motor vehicle in question from Rallye Motors. Since he
entered into for a sufficient consideration. 15 claimed that the motor vehicle was not delivered to him, then he was duty-bound to
reveal that to FILINVEST, it being material in inducing the latter to accept the
assignment of the promissory note and the chattel mortgage. More than that, good
In a similar case of Villongco, et al., vs. Hon. Panlilio, et al., 16 a writ of faith as well as commercial usages or customs require the disclosure of facts and
preliminary attachment was issued ex parte in a case for damages on the strength of circumstances which go into the very object and consideration of the contractual
the affidavit of therein petitioners to the effect that therein respondents had obligation. We rule that the failure of respondent Salazar to disclose the material
concealed, removed or disposed of their properties, credits or accounts collectible fact of non-delivery of the motor vehicle, there being a duty on his part to reveal
to defraud their creditors. Subsequently, the lower court dissolved the writ of them, constitutes fraud. (Article 1339, New Civil Code).
attachment. This was questioned in a certiorari proceeding wherein this Court held,
inter alia, that:
We hold that the court a quo committed grave abuse of discretion in dissolving and
setting aside the writ of preliminary attachment issued on August 17, 1977.
The affidavit supporting the petition for the issuance of
the preliminary attachment may have been sufficient to
justify the issuance of the preliminary writ, but it cannot WHEREFORE, IN VIEW OF THE FOREGOING, the appealed Orders of the
be considered as proof of the allegations contained in the lower court dated February 2, 1979 and April 4, 1979 are hereby REVERSED and
affidavit. The reason is obvious. The allegations are mere SET ASIDE. The temporary restraining order issued by Us on July 23, 1979 is
conclusions of law, not statement of facts. No acts of the hereby made permanent. No costs.
defendants are ever mentioned in the affidavit to show or
prove the supposed concealment to defraud creditors.
Said allegations are affirmative allegations, which Petition granted.
plaintiffs had the obligation to prove ... 17
SO ORDERED.
It appears from the records that both herein private parties did in fact adduce
evidence to support their respective claims. 18 Attached to the instant Petition as its
Annex "H" 19 is a Memorandum filed by herein petitioner FILINVEST in the court
below on March 20, 1979. After private respondent filed his Comment to the
Petition, 20 petitioner filed a Reply 21,attaching another copy of the aforesaid
Memorandum as Annex "A" 22 In this case on February 28, 1979 and March 1,
1979, the plaintiff (FILINVEST) presented in evidence documentary exhibits
"marked Exhibit A, A- I, B, B-1, B-2, B-3, B-4, C, C-1, D, E, F, G and G-1. The
Memorandum goes on to state that FILINVEST presented as its witness defendant
Salazar himself who testified that he signed Exhibits A, B, C, D, E and G; that he is
a holder of a master's degree in Business Administration and is himself a very
careful and prudent person; that he does not sign post-dated documents; that he
does not sign contracts which do not reflect the truth or which are irregular on their
face, that he intended to purchase a school bus from Rallye Motors Co., Inc. from
whom he had already acquired one unit; that he had been dealing with Abel
Sahagun, manager of RALLYE, whom he had known for a long time that he
intended to purchase the school bus on installment basis so he applied for financing
with the FILINVEST; that he knew his application was approved; that with his
experience as a business executive, he knew that under a financing arrangement,
upon approval of his application, when he signed Exhibits A, B, C, D, E and G, the
financing company (FILINVEST) would release the proceeds of the loan to
RALLYE and that he would be obligated to pay the installments to FILINVEST;
that he signed Exhibits A, B and C simultaneously; that it was his wife who was
always transacting business with RALLYE and Abel Sahagun. 23

Without disputing the above summary of evidence, private respondent Salazar

states in his Comment that "the same evidence proferred by (petitioner's) counsel
was adopted by (private respondent) Ernesto Salazar during the proceedings. 24

According to the court a quo in its assailed order of April 4, 1979, Emesto Salazar
"was himself defrauded because while he signed the promissory note and the
chattel mortgage over the vehicle which he bought from Rallye Motors, RALLYE
did not deliver to him the personal property he bought." And since no fraud was
committed by Salazar, the court accordingly ordered the sheriff to return to Salazar
the properties attached by virtue of the writ of preliminary attachment issued on
August 17, 1977.

We do not agree. Considering the claim of respondent Salazar that Rallye Motors
did not deliver the motor vehicle to him, it follows that the Invoice, Exhibit "C",
for the motor vehicle and the Receipt, Exhibit "G", for its delivery and both signed
by Salazar, Exhibits "C-1 " and "G-1", were fictitious. It also follows that the
Promissory Note, Exhibit "A", to pay the price of the undelivered vehicle was
without consideration and therefore fake; the Chattel Mortgage, Exhibit "B", over
the non-existent vehicle was likewise a fraud; the registration of the vehicle in the
name of Salazar was a falsity and the assignment of the promissory note by
RALLYE with the conforme of respondent Salazar in favor of petitioner over the
undelivered motor vehicle was fraudulent and a falsification.

Respondent Salazar, knowing that no motor vehicle was delivered to him by

RALLYE, executed and committed all the above acts as shown the exhibits
[G.R. No. 114243. February 23, 2000]
SPS. ISAGANI MIRANDA and MIGUELA JOGUILON, petitioners, vs.
COURT OF APPEALS, LUCILA L. VDA. DE JAVA (Deceased) Substituted
by the Heirs ESTELLA JAVA BACALLA, Assisted by her husband
APOLONIO BACALLA and JAIME JAVA, respondents.
DECISION
QUISUMBING, J.:
For review on certiorari is the decision[1] of the Court of Appeals dated February
28, 1994 in CA-G.R. CV No. 20546, which reversed and set aside the judgment of
the Regional Trial Court of Manila, Branch 4, in Civil Case No. 112765. The
decretal portion of the assailed decision reads:
"WHEREFORE, the appealed judgment is hereby
REVERSED and SET ASIDE. The judgment rendered in
Civil Case No. 63117 is hereby declared NULL and
VOID. The execution, sales and subsequent transfers of
the Thames jeep and Lot 8015 are ANNULLED.
Defendant-appellees Spouses Miranda are hereby ordered
to execute a Deed of Reconveyance over Lot 8015 in
favor of plaintiff-appellants.
"No pronouncement as to costs.
[2]
"SO ORDERED."
The facts as supported by the records are as follows:
On October 27, 1965, Luneta Motor Company (hereinafter LMC) filed suit against
the spouses Lucila and Pablo D. Java, et al., with the former Court of First Instance
(CFI) of Manila, which docketed the same as Civil Case No. 63117. LMC sought
to recover one "Thames" jeep and the sum of P9, 403.00, plus interest and
attorneys fees from defendants.
On March 11, 1966, LMC moved to declare the Java spouses in default for failure
to file their answer within the reglementary period, notwithstanding notice. The
trial court granted the motion.
On November 9, 1966, the CFI disposed of the case as follows:
"WHEREFORE, judgment is hereby rendered in favor of
plaintiff and against the defendant, ordering the latter to
pay plaintiff the amount of P8,354.00, the sum total of
the balances on the defendants promissory notes, plus
interest thereon at the rate of 12% per annum from April
7, 1966, until fully paid, plus the sum of P1,000.00 as and
for attorneys fees, and the costs of this action.
"The case against John Doe is hereby dismissed.
"SO ORDERED."[3]
Pursuant to the writ of execution, the City Sheriff of Cebu City sold the vehicle at
public auction to one Jose Angulo.[4] Also subsequently sold at public auction to
LMC, was a parcel of land described as Lot 8015 of the Cadastral Survey of Cebu,
and owned by the Javas.[5] LMC then sold Lot 8015 to petitioners.
On December 19, 1977, Lucila vda. de Java and her daughter Estela Java, filed
Civil Case No. 112765 to nullify the judgment in Civil Case No. 63117, as well as
the execution sales and subsequent transfers, with the then CFI of Manila. Among
those named as defendants were the petitioners herein; and the spouses Ernesto
Elizondo and Angeles Java Elizondo, the son-in-law and daughter of Lucila vda. de
Java.
On July 19, 1987, Lucila vda. de Java died and was substituted by her heirs.
On November 11, 1988, the trial court decided the case as follows:
"WHEREFORE, premises considered, let this case be, as
it is hereby dismissed without pronouncement as to costs
for lack of jurisdiction. The Writ of Preliminary
Injunction issued by this Court is ordered lifted. The
counterclaim of defendants Mirandas, being without
merit under the circumstance(s), is likewise ordered
dismissed.
"SO ORDERED."[6]
Private respondents appealed to the Court of Appeals, which, as earlier noted,
reversed the lower court.
Hence, the instant case relying on the following grounds:
I
THE COURT OF APPEALS ERRED IN RULING
THAT THE TRIAL COURT NEVER ACQUIRED
JURISDICTION OVER LUCILA L. JAVA AND HER
HUSBAND SINCE THERE WAS NO PROPER
SERVICE OF SUMMONS.
II
THE COURT OF APPEALS ERRED IN NOT RULING
THAT THE JUDGMENT IN CIVIL CASE NO. 63117
ENTITLED LUNETA MOTOR COMPANY V.
LUCILA JAVA, ET AL., HAD LONG BECOME FINAL
AND EXECUTORY
III
THE COURT OF APPEALS ERRED IN HOLDING AS
NULL AND VOID THE JUDGMENT RENDERED IN
CIVIL CASE NO. 63117 AND ORDERING
PETITIONERS TO EXECUTE A DEED OF
RECONVEYANCE OVER LOT NO. 8015 IN FAVOR
OF THE PLAINTIFFS.[7]
The pivotal issue in this case is whether or not the Court of Appeals committed
reversible error in annulling the judgment in Civil Case No. 63117 for want of
jurisdiction on the part of the trial court.
In declaring the judgment in Civil Case No. 63117 null and void, the appellate
court found from the Sheriffs Return of Service, [8] that summons was served on the
spouses Java by substituted service without effort at personal service. The court a
quo held that the said service was invalid and the lower court never acquired
jurisdiction over the persons of defendants (private respondents herein) in Civil
Case No. 63117, thus, the execution sale of the "Thames" vehicle, as well as the
sale of Lot 8015 to LMC, and the subsequent sale by the latter to petitioners were
null and void.
Petitioners contend that the decision of the Court of Appeals that service of
summons was invalid is contradicted by the trial court and is not supported by the
evidence. Besides, the judgment had already become final since there were no
grounds to annul it.
On the question of the validity of service of summons, pertinent is Rule 14 of the
Rules of Court, particularly Sections 7 and 8 which respectively provide:
Sec. 7. Personal service of summons. The summons shall
be served by handing a copy thereof to the defendant in
person, or if he refuses to receive it, by tendering it to
him.[9]
 Sec. 8. Substituted service: If the defendant cannot be
served within a reasonable time as provided in the
preceding section, service may be effected (a) by leaving
copies of the summons in the defendants dwelling house
or residence with some person of suitable age and
discretion then residing therein; or (b) by leaving the
copies at defendants office or regular place of business
with some competent person in charge thereof.[10]

Service of summons upon the defendant is essential for the court to acquire
jurisdiction over his person.[11] The modes of service should be strictly followed in
order that the court may acquire jurisdiction over the person. [12] Thus, it is only
when a defendant cannot be served personally "within a reasonable time" that
substituted service may be made.[13]

In the instant case, the Sheriffs Return of Service reads:

"Respectfully returned to the Clerk of Court, Court of

First Instance, Manila, the herein summons of the above-
entitled case, copy of which and a copy of the complaint
were served on December 9, 1965 at 11:00 oclock in the
morning by substituted service (stress supplied) through
Ernesto Elizondo, son-in-law of defendants Lucila Java
and Pablo Java and living together with them."[14]

Even the briefest perusal of the aforementioned Return clearly shows no reason
why personal service could not be made. Impossibility of prompt, personal service
should be shown by stating in the proof of service that efforts were made to find
the defendant personally and that said efforts failed, hence the resort to substituted
service.[15] Here, no such explanation was made. Failure to faithfully, strictly, and
fully comply with the requirements of substituted service renders said service
ineffective.[16]

Petitioners point to the deposition of Ernesto Elizondo to support their argument

that there was valid service of summons. [17] Ernesto Elizondo emphatically testified
under oath, however, that at the time he allegedly signed for the summons, he was
not living in the same house as his parents-in-law, "although I am living within the
compound of my father-in-law."[18] Rule 14, Section 8 of the Rules of Court
specifically provides that substituted service must be effected by "(a) leaving
copies of the summons at the defendants dwelling house or residence with some
person of suitable age and discretion then residing therein." Since Ernesto
Elizondo admitted that he was not living with the spouses Java, the requirement
that the summons be left with a person of suitable age residing in
the same dwelling house or residence as the defendant, for substituted service to be
valid, has not been complied with.

For want of proper service of summons upon defendants, the trial court in Civil
Case No. 63117 never acquired jurisdiction over the former and hence, could not
render valid judgment over their persons. Hence, the execution sales of the
"Thames" vehicle and Lot 8015, pursuant to said void judgment, are void ab
initio. A final judgment may be annulled upon either of two grounds: (1) extrinsic
fraud, and (2) lack of jurisdiction. [19] In the present case, the trial court did not have
jurisdiction. No reversible error was thus committed by the Court of Appeals in
annulling the judgment in Civil Case No. 63117 for absence of jurisdiction on the
part of the court which rendered the same.

IN VIEW OF THE FOREGOING, the instant petition is DENIED and the

assailed Decision of the Court of Appeals dated February 28, 1994 in CA-G.R. CV
No. 20546 is hereby AFFIRMED. Costs against petitioners.

SO ORDERED.
G.R. Nos. 65957-58 July 5, 1994
ELEAZAR V. ADLAWAN and ELENA S. ADLAWAN, petitioners, 
vs.
Hon. Judge RAMON AM. TORRES, as Presiding Judge of Branch 6,
Regional Trial Court Cebu City, ABOITIZ & COMPANY, INC. and THE
PROVINCIAL SHERIFFS OF CEBU, DAVAO, RIZAL and METRO
MANILA, Respectively, respondents.
Pablo P. Garcia for petitioners.
Isaias P. Dicdican and Sylva G. Aguirre-Paderanga for Aboitiz & Co., Inc.
QUIASON, J.:
This is a petitioner for certiorari and mandamus with preliminary injunction or
restraining order to nullify: (1) the Order dated September 14, 1983 of respondent
Judge Ramon Am. Torres of the Regional Trial Court, Branch 6, Cebu City, in
Civil Case No. CEB-1185 and the Order dated September 26, 1983 of Judge
Emilio A. Jacinto of Branch 23 of the same court in Civil Case No. CEB-1186,
which granted the motion for the issuance of writs of preliminary attachment for
the seizure of the property of petitioners by respondent Provincial Sheriffs; and (2)
the Order dated December 12, 1983 of respondent Judge Ramon Am. Torres in the
consolidated cases, Civil Case No. CEB-1185 and Civil Case No. CEB-1186.
I attachment was issued. It argued that the writ of replevin, therefore, remained in
In a complaint dated April 24, 1982 filed with the Court of First Instance of Cebu,
now Regional Trial Court, (Civil Case No. R-21761), respondent Aboitiz and
Company, Inc. (Aboitiz) sought to collect from petitioners a sum of money
representing payments for: (1) the unpaid amortizations of a loan; (2) technical and
managerial services rendered; and (3) the unpaid installments of the equipment
provided by respondent Aboitiz to petitioners (Rollo, p. 37).
Acting on the ex parte application for attachment, the Executive Judge of the Court
of First Instance of Cebu, issued on May 14, 1982, an order directing the issuance
of the writ of preliminary attachment against the property of petitioners upon the
filing by respondent Aboitiz of an attachment bond.
Subsequently, the case was raffled to Branch 11 of the Court of First Instance of
Cebu, which issued a writ of attachment addressed to the Provincial Sheriffs of
Cebu and the City Sheriff of Davao City. It was the Sheriff of Davao City who
enforced the writ of attachment, resulting in the seizure of heavy construction
equipment, motor vehicle spare parts, and other personal property with the
aggregate value of P15,000,000.00. The said court also granted the motion of
respondent Aboitiz to take possession and custody of the attached property of
petitioners and ordered the Provincial Sheriff of Davao to deliver the property to
respondent Aboitiz.
Petitioners moved for a bill of particulars and to set aside the ex parte writ of
attachment. Finding merit in the motion to set aside the writ, Branch 11 ordered on
July 6, 1982 the lifting of the writ and, consequently, the discharge of the property
levied upon.
Respondent Aboitiz filed an urgent ex parte motion, praying for the stay of the July
6, 1982 Order for a period of 15 days for it to be able to appeal the order. The
motion was favorably acted upon.
However, on July 13, 1982, respondent Aboitiz filed a notice of dismissal of its
complaint in accordance with Section 1, Rule 17 of the Revised Rules of Court.
Consequently, Branch 11 issued an order confirming the notice of dismissal,
emphasizing that all orders of the court issued prior to the filing of said notice of
dismissal had been rendered functus oficio, and considering all pending incidents
in the case as moot and academic.
Petitioner Eleazar Adlawan filed a motion praying that the July 6, 1982 Order be
implemented and enforced. On December 20, however, Branch 11 denied the
motion on account of the filing by respondent Aboitiz before Branch 16 of the
Court of First Instance of Cebu in Lapu-lapu City of an action for delivery of
personal property (Civil Case No. 619-L), and the filing by petitioner Eleazar
Adlawan before Branch 10 of the same court of an action for damages in
connection with the seizure of his property under the writ of attachment.
In the replevin suit, Branch 16 ordered the seizure and delivery of the property
described in the complaint. Said property were later delivered by the provincial
sheriff to respondent Aboitiz. Alleging that while his office was situated in Cebu
City, Adlawan was a resident of Minglanilla, and therefore, the Lapu-lapu City
court should not entertain the action for replevin. Petitioner Eleazar Adlawan filed
an omnibus motion praying for the reconsideration and dissolution of the writ of
seizure, the retrieval of the property seized, and the dismissal of the complaint. He
also averred that the property seized were in custodia legis by virtue of the writ of
attachment issued by Branch 11. His omnibus motion was denied. Subsequently, he
filed a motion for reconsideration which was not granted.
The denial of his omnibus motion led petitioner Eleazar Adlawan to file a petition
for certiorari and mandamus in the Supreme Court (G.R. No. 63225). The Third
Division of this Court ruled on April 3, 1990 that since attachment is an ancillary
remedy, the withdrawal of the complaint left it with no leg to stand on. Thus, the
Court disposed of the case as follows:
WHEREFORE, in view of the foregoing, this Court rules
that the attached properties left in the custody of private
respondent Aboitiz and Company, Inc. be returned to
petitioner Eleazar V. Adlawan without prejudice to the
outcome of the cases filed by both parties (Rollo, p. 324).
Respondent Aboitiz filed a motion for reconsideration of the decision, contending
that the replevin case was distinct and separate from the case where the writ of
force as the Third Division of the Supreme Court had not found it illegal. The
motion was, however, denied with finality in the Resolution of July 11, 1990.
Undaunted, respondent Aboitiz filed a second motion for reconsideration with a
prayer that the dispositive portion of the decision be clarified. It asserted that
because the writ of preliminary attachment was different from the writ of replevin,
we should rule that the property subject of the latter writ should remain in custodia
legis of the court issuing the said writ.
In the Resolution dated September 10, 1990, the Third Division stated that "the
properties to be returned to petitioner are only those held by private respondent
(Aboitiz) by virtue of the writ of attachment which has been declared non-
existent." Accordingly, the dispositive portion of the April 3, 1990 decision of the
Third Division of this Court was modified to read as follows:
WHEREFORE, in view of the foregoing, this Court rules
that the properties in the custody of the private
respondent Aboitiz & Company by virtue of the writ of
attachment issued in Civil Case No. R-21761 be returned
to the petitioner, but properties in the custody of the
private respondent by virtue of the writ of replevin issued
in Civil Case No. 619-L be continued in custodia legis of
said court pending litigation therein.
The Decision in G.R. No. 63225 having become final and executory, entry of
judgment was made on November 15, 1990. This should have terminated the
controversy between petitioners and respondent Aboitiz insofar as the Supreme
Court was concerned, but that was not to be. On September 9, 1983 respondent
Aboitiz filed against petitioners two complaints for collection of sums of money
with prayers for the issuance of writs of attachment in the Regional Trail Court,
Branch 23, Cebu City, docketed as Civil Cases Nos. CEB-1185 and CEB-1186.
The complaint in Civil Case No. CEB-1185 alleged that petitioner Eleazar
Adlawan (defendant therein) was awarded a contract for the construction of the
Tago Diversion Works for the Tago River Irrigation Project by the National
Irrigation Administration and that respondent Aboitiz (plaintiff therein) loaned him
money and equipment, which indebtedness as of June 30, 1983 totaled
P13,430,259.14. Paragraph 16 of the complaint states:
16. That, in view of the enormous liabilities which the
defendants have with the plaintiff, defendants executed a
real estate mortgage covering eleven (11) parcels of land
in favor of Philippine Commercial and Industrial Bank
(PCIB) to secure a P1,000,000.00 loan with said bank
and was able to remove, conceal and dispose of their
 properties, obviously to defraud the plaintiff, . . . (Rollo,
pp. 65-66).
The complaint in Civil Case No. CEB-1186 alleged that petitioner Eleazar
Adlawan (defendant therein) was awarded a contract for the construction of the
Lasang River Irrigation Project by the National Irrigation Administration and that
respondent Aboitiz (plaintiff therein) loaned him money and equipment, which
indebtedness as of June 30, 1983 totalled P5,370,672.08. Paragraph 15 of the
complaint is similarly worded as paragraph 16 of the complaint in Civil Case No.
CEB-1185.
Civil Case No. CEB-1185 was raffled to the Regional Trial Court, Branch 6,
presided by respondent Judge Ramon Am. Torres. On September 14, 1983,
respondent Judge ordered the issuance of a writ of attachment upon respondent
Aboitiz' filing of a bond of P5,000,000.00. Similarly, in Civil Case No. CEB-1186,
which was raffled to Branch 23, presiding Judge Emilio A. Jacinto ordered the
issuance of a writ of attachment upon the filing of a bond of P2,500,000.00.
Accordingly, in Civil Case No. CEB-1185, the Acting Provincial Sheriff of Cebu
issued separate writs dated September 26, 1983 addressed to the Sheriffs of Cebu,
Davao and Metro Manila. No writ of preliminary attachment was, however, issued
in Civil Case No. CEB-1186.
Petitioners then filed in Civil Cases Nos. CEB-1185 and CEB-1186 urgent motions
to hold in abeyance the enforcement of the writs of attachments. They alleged in
the main that since their property had been previously attached and said attachment
was being questioned before the Supreme Court in G.R. No. 63225, the filing of
the two cases, as well as the issuance of the writs of attachment, constituted undue
interference with the processes of this court in the then pending petition involving
the same property.
Upon motion of respondent Aboitiz, Branch 23 issued on October 13, 1983, an
order directing the transfer to Branch 6 of Civil Case No. CEB-1186 for
consolidation with Civil Case No. CEB-1185.
Meanwhile, in its comment on petitioners' motion to withhold the enforcement of
the writs of attachment, respondent Aboitiz alleged that the voluntary dismissal of
Civil Case No. R-21761 under Section 1, Rule 17 of the Revised Rules of Court
was without prejudice to the institution of another action based on the same subject
matter. It averred that the issuance of the writ of attachment was justified because
petitioners were intending to defraud respondent Aboitiz by mortgaging 11 parcels
of land to the Philippine Commercial and Industrial Bank (PCIB) in consideration
of the loan of P1,100,000.00, thereby making PCIB a preferred creditor to the
prejudice of respondent Aboitiz, which had an exposure amounting to
P13,430,259.14.
Petitioners then filed a rejoinder to said comment, contending that since the
property subject of the writ of attachment have earlier been attached or replevied,
the same property were under custodia legis and therefore could not be the subject
of other writs of attachment.
On December 12, 1983, respondent Judge issued an order finding no merit in
petitioners' motion for reconsideration and directing the sheriffs of Cebu, Davao
and Metro Manila "to proceed with the enforcement and implementation of the
writs of preliminary attachment." Respondent Judge ruled that the writs of
attachment were issued on the basis of the supporting affidavits alleging that
petitioner had removed or disposed of their property with intent to defraud
respondent Aboitiz (Rollo, pp. 109-113).
On December 15, petitioners filed an ex parte motion praying: (1) that the
December 12, 1983 Order be set for hearing; (2) that they be given 15 days within
which to either file a motion for reconsideration or elevate the matter to this Court
or the then Intermediate Appellate Court; and (3) that within the same 15-day
period the implementation or enforcement of the writs of attachment be held in
abeyance.
On the same day, respondent Judge issued an order holding in abeyance the
enforcement of the writs of preliminary attachment in order to afford petitioners an
opportunity to seek their other remedies (Rollo, p. 116).
On December 27, petitioners filed the instant petition for certiorari and mandamus.
They 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.
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.
As prayed for by petitioners, we issued a temporary restraining order on January 6,
1984 "enjoining the respondents from enforcing or implementing the writs of
preliminary attachment against the property of petitioners, all dated September 26,
1983 and issued in Civil Cases Nos. CEB 1185 and 1186" (Rollo, p. 118).
II
The resolution of this case centers on the issue of the legality of the writ of
attachment issued by respondent Judge in the consolidated cases for collection of
sums of money.
The affidavit submitted by respondent Aboitiz in support of its prayer for the writ
of attachment does not meet the requirements of Rule 57 of the Revised Rules of
Court regarding the allegations on impending fraudulent removal, concealment and
disposition of defendant's property. As held in Carpio v. Macadaeg, 9 SCRA 552
(1963), to justify a preliminary attachment, the removal or disposal must have been
made with intent to defraud defendant's creditors. Proof of fraud is mandated by
paragraphs (d) and (e) of Section 1, Rule 57 of the Revised Rules of Court on the
grounds upon which attachment may issue. Thus, the factual basis on defendant's
intent to defraud must be clearly alleged in the affidavit in support of the prayer for
the writ of attachment if not so specifically alleged in the verified complaint. The
affidavit submitted by respondent Aboitiz states:
REPUBLIC OF THE PHILIPPINES
CITY OF CEBU ...............) S.S.
I, ROMAN S. RONQUILLO, of legal age, married and a
resident of Cebu City, after being sworn in accordance
with law, hereby depose and say:
That I am the Vice-President of the plaintiff corporation
in the above-entitled case;
That a sufficient cause of action exists against the
defendants named therein because the said defendants are
indebted to the plaintiffs in the amount of P13,430,259.14
exclusive of interests thereon and damages claimed;
That the defendants have removed or disposed of their
properties with intent to defraud the plaintiff, their
creditor, because on May 27, 1982 they executed a real
estate mortgage in favor of Philippine Commercial and
Industrial Bank (PCIB) covering eleven (11) of their
fifteen (15) parcels of land in Cebu to secure a
P1,000,000.00 loan with the same bank;
That this action is one of those specifically mentioned in
Section 1, Rule 57 of the Rules of Court, whereby a writ
preliminary attachment may lawfully issue because the
action therein is one against parties who have removed or
disposed of their properties with intent to defraud their
creditor, plaintiff herein;
That there is no sufficient security for the claims sought
to be enforced by the present action;
 That the total amount due to the plaintiff in the above-
entitled case is P13,430,259.14, excluding interests and
claim for damages and is as much the sum for which an
order of attachment is herein sought to be granted; above
all legal counter-claims on the part of the defendants.
IN VIEW WHEREOF, I hereunto set my hand this 24th
day of August 1983 at Cebu City, Philippines
(Rollo, pp. 171-172)
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. As this
Court said in Jardine-Manila Finance, Inc. v. Court of Appeals, 171 SCRA 636
(1989), "[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.
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 (Insular Bank of Asia & America,
Inc. v. Court of Appeals, 190 SCRA 629 [1990]).
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, 167 SCRA 247 [1988]). 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 (D.P. Lub Oil
Marketing Center, Inc. v. Nicolas, 191 SCRA 423 [1990]).
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 (Santos v.
Aquino, Jr., 205 SCRA 127 [1992]; Tay Chun Suy v. Court of Appeals, 212 SCRA
713 [1992]).
We need not discuss the issue of whether or not Civil Cases Nos. CEB-1185 and
CEB-1186 constituted undue interference with the proceedings in G.R. No. 63225
in view of the entry of judgment in the latter case.
WHEREFORE, the petition is GRANTED and the Temporary Restraining Order
issued on January 6, 1984 is made PERMANENT. Respondent Judge or whoever
is the presiding judge of the Regional Trial Court, Branch 6, Cebu City, is
DIRECTED to PROCEED with the resolution of Civil Cases Nos. CEB-1185 and
CEB-1186 with deliberate dispatch.
SO ORDERED.
G.R. No. 92813             July 31, 1991
PEROXIDE PHILIPPINES CORPORATION, EASTMAN CHEMICAL
INDUSTRIES, INC., EDMUNDO O. MAPUA and ROSE U.
MAPUA, petitioners, 
vs.
HON. COURT OF APPEALS and BANK OF THE PHILIPPINE,
ISLANDS, respondents.
Antonio P. Barredo for petitioners.
Padilla Law Office for private respondent.
REGALADO, J.:
Assailed in this petition for review on certiorari are the decision1 of respondent
Court of Appeals, promulgated on September 4, 1989 in CA-G. R. SP No. 15672,
granting the petition for certiorari filed by private respondent, and its resolution2 of
March 29, 1990 denying petitioners' motion for reconsideration. On December 6,
1982, herein private respondent Bank of the Philippine Islands (BPI) sued herein
petitioners Peroxide Philippines Corporation (Peroxide), Eastman Chemical
Industries, Inc. (Eastman), and the spouses Edmund O. Mapua and Rose U. Mapua
(Mapuas) in Civil Case No. 48849 of the then Court of First Instance of Pasig,
Metro Manila for the collection of an indebtedness of Peroxide wherein Eastman
and the Mapuas bound themselves to be solidarily liable.
Upon the filing of said action, the trial court, then presided over by Judge Gregorio
G. Pineda, ordered the issuance of a writ of preliminary attachment which was
actually done on January 7, 1983 after BPI filed an attachment bond in the amount
of P32,700,000.00. Petitioners' properties were accordingly attached by the sheriff.
On January 11, 1983, Eastman and the Mapuas moved to lift the attachment, which
motion was set for hearing on January 14, 1983. On said date and on motion of
BPI, it was granted up to January 17, 1983 to file a written opposition to the motion
to lift the writ of attachment. BPI also filed a motion to set for hearing the said
motion to lift attachment and its opposition thereto.
However, on January 17, 1983, Judge Pineda issued two (2) orders, the first,
denying BPI's motion for a hearing, and, the second, lifting the writ of attachment
as prayed for by Eastman and the Mapuas. BPI filed a motion for reconsideration
but, consequent to the then judiciary reorganization, the case was re-raffled and
assigned to the sala of Judge Pastor Reyes.
On November 28, 1983, Judge Reyes issued an order with an explicit finding that
the attachment against the properties of Eastman and the Mapuas was proper on the
ground that they had disposed of their properties in fraud of BPI. It also directed
the sheriff to implement the writ of attachment upon the finality of said order.
After a motion for partial reconsideration by BPI and some exchanges between the
parties, on December 17, 1984 the trial court, this time with Judge Eficio B. Acosta
presiding, issued an order granting BPI's motion for partial reconsideration by
finding, inter alia, that "(c)onsidering the lapse of more than a year since the Order
of November 28, 1983 and the nature and purpose of attachment, the writ of
attachment revived in the Order of November 28, 1983 and hereby re-affirmed may
be executed and implemented immediately," and directing the sheriff to execute
said writ which "is hereby declared immediately executory."3
Contending that said order of December 17, 1984 was rendered with grave abuse of
discretion amounting to lack of jurisdiction, petitioners sought the annulment
thereof in a petition for certiorari and prohibition in AC-G.R. SP No. 05043 of the
Intermediate Appellate Court, wherein a temporary restraining order was issued.
This restraining order was lifted when said court rendered its decision in said case
on March 14, 19864 dismissing the petition and holding, among others, that:
We find nothing wrong with the attachment of the properties of
PEROXIDE. Even were We to assume that the original petition for
attachment was defective for failure to specify the particular
transactions involved in the alleged "alienation" of PEROXIDE's
properties, the fact is that the defect, if any, was cured by the other
pleadings (like the opposition or virtual amendment) filed by BANK
 With such amendment, the specific properties concerned were
distinctly enumerated.5
Petitioners then sought the review of said decision by this Court in G.R. No.
74558, but no temporary restraining order was granted therein. In the meantime, on
May 29, 1986, Judge Acosta issued an order6 suspending the writ of preliminary
attachment in the aforesaid Civil Case No. 48849 pursuant to an ex parte motion
filed by herein petitioners.
Thereafter, in its resolution dated October 27, 1986, this Court denied the aforesaid
petition for review on certiorari "considering that the writ of preliminary
attachment issued was in accordance with law and applicable
jurisprudence."7 Petitioners' motion for reconsideration was denied with finality in
our resolution of October 6, 1987.8
Dissatisfied, petitioners again filed an urgent motion for clarification submitting
that the Court failed to pass upon two issues, namely: (1) whether Eastman and the
Mapuas were sureties or mere guarantors of Peroxide, and (2) whether Rose U.
Mapua was bound by the "Continuing Guarantee" executed by her husband,
Edmund O. Mapua. Acting upon said motion, on November 10, 1987 the Court
resolved to deny the same for the reason, among others, that the clarification
sought regarding the propriety of the attachment of the properties of Eastman and
the Mapuas involves questions of fact.9
On July 30, 1987, BPI filed a motion to order Bataan Pulp and Paper Mills, Inc.
(Bataan), jointly and severally with petitioners, to deliver to the sheriff the cash
dividends declared on the garnished shares of stock of said petitioners with said
paper company, and to cite for contempt the officers of Bataan for releasing and/or
paying the dividends to petitioners in disregard of the notice of garnishment.
In an exhaustive order dated December 16, 1987,10 the trial court, now presided
over by Judge Fernando L. Gerona, Jr. and wherein Civil Case No. 48849 was then
pending, addressing all the issues raised by the parties, granted BPI's motion for
delivery of the dividends. Judge Gerona sustained the position of BPI that
dividends are but incidents or mere fruits of the shares of stock and as such the
attachment of the stock necessarily included the dividends declared thereon if they
were declared subsequent to the notice of garnishment.
He further held that the preliminary attachment, being a provisional remedy, must
necessarily become effective immediately upon the issuance thereof and must
continue to be effective even during the pendency of an appeal from a judgment of
the court which issued the said provisional remedy and will only cease to have
effect when the judgment is satisfied or the attachment is discharged or vacated in
some manner provided by law. The motion to cite the officers of Bataan was,
however, denied.
Petitioners moved for reconsideration but the same was denied for the reason that
the order of May 29, 1986 of Judge Acosta was based on an ex parte motion
without reasonable notice, hence a patent nullity for lack of due process.
Accordingly, the aforesaid order of December 16, 1987 held that the writ of
attachment continued to be effective.11
Petitioners thereafter filed a second motion for reconsideration which, however,
remained pending and unresolved when Judge Gerona inhibited himself from
further sitting in the case. Said case was then re-raffled to the sala of Judge Jainal
D. Rasul who required the parties to re-summarize their respective positions upon
the issue of the attachment.
Then, resolving the pending incidents before it, the court a quo issued the disputed
order of August 23, 1988, which states, inter alia that:
THIS Court thru Judge Gerona had arrived at the correct conclusion
that the contempt charge against the Officers of the Garnishee
Corporation cannot be sustained, for the reason that they relied on the
Order of the Court thru Judge Acosta under date of May 29, 1986
suspending the Writ of Attachment and since said order was not then
set aside, there was no order or writ violated by said officers. It
follows a fortiori that the release of the cash dividends was valid, legal
and not contemptuous. Consequently, there is no reason to justify or
deserve the return of cash dividends prayed for by the plaintiff.
Besides, the propriety of the attachment of the properties of the
defendant Eastman Chemical Industries, Inc., and defendant Mapua
Spouses should still be determined by this Court as a question of fact,
pursuant to the Supreme Court resolution dated November 23, 1987.
Meanwhile, it is only fair that the properties of the Eastman Chemical
Industries, Inc. and the defendants Mapua spouses should not, pending
such proper determination, be attached as to give life and meaning to
the Supreme Court resolution of November 23, 1987.
SO ORDERED.12
BPI moved for the reconsideration of said order. Thereafter, it learned that Bataan
had again declared a cash dividend on its shares payable on or before September
30, 1988. Furthermore, Bataan informed BPI that it would be releasing to Eastman
and Edmund O. Mapua the cash dividends on their shares on September 23, 1988
on the strength of the order of the trial court of August 23, 1988.
Consequently, BPI filed an urgent ex parte motion on September 19, 1988 for the
suspension of the effects of the trial court's order of August 23, 1988 in view of the
pending motion for reconsideration it had filed against said order. In an order
likewise dated September 19, 1988, the trial court denied BPI's motion for
suspension of the order of August 23, 1988.13
BPI then filed a petition for certiorari in respondent court, docketed therein as CA-
G.R. SP No. 15672, invoking the following grounds:
1. The trial court acted with grave abuse of discretion in denying BPI's
urgent ex parte motion to suspend the order of August 23, 1988;
2. The order of September 19, 1988 renders moot and academic BPI's
pending motion for reconsideration;
3. The lower court erroneously held that the writ of attachment
secured by BPI had ceased to be valid and effective or had been
suspended by virtue of its orders of January 17, 1983 and May 29,
1986;
4. The trial court committed grave abuse of discretion when it
nullified the writ of attachment as against Eastman and the Mapuas;
5. There is no inconsistency between the resolution of the Supreme
Court dated October 27, 1986 and its subsequent resolution of
November 10, 1987;
6. The attachment can validly issue against the conjugal properties of
the Mapuas; and
7. The trial court disregarded the clear and unequivocal records of the
case when it issued its order of August 23, 1988.14
Ruling on these issues, respondent Court of Appeals declared:
WHEREFORE, the petition for certiorari is hereby GRANTED.
Judgment is hereby rendered as follows:
(a) Declaring the writ of preliminary attachment against the
defendants Eastman Chemical Industries, Inc. and the spouses,
Edmund and Rose Mapua valid and enforceable from the beginning,
without prejudice to determining the solidary liability of said
defendants with defendant Peroxide Philippines Corporation;
(b) Setting aside the Order of August 23, 1988 insofar as it decreed
that the cash dividends declared or the garnished shares of stocks (sic)
of the defendants with Bataan Pulp and Paper Mills, Inc. are not
subject to attachment;
(c) Ordering the defendants and the Bataan Pulp and Paper Mills, Inc.,
jointly and severally, to deliver to the sheriff the cash dividends as
may hereafter be declared and paid on the garnished shares of stock;
(d) Setting aside the Order of September 19, 1988.
With costs against private respondents.
 SO ORDERED.15
Their motion for reconsideration having been denied, petitioners are once again
before us on this spin-off facet of the same case, contending that respondent court
has departed from the accepted and usual course of judicial proceedings.
1. As correctly formulated by respondent court, the threshold issue is the validity of
the attachment of the properties of Eastman and the Mapuas, from which arises the
correlative question of whether or not the disputed cash dividends on the garnished
shares of stock are likewise subject thereto. Necessarily involved is the matter of
the continuing validity of the writ or whether or not the same was validly lifted and
suspended by the lower court's orders dated January 17, 1983 and May 29, 1986,
respectively.
BPI asserts that the discharge is illegal and void because the order lifting the same
is violative of Section 13, Rule 57 of the Rules of Court which requires, among
others, a prior hearing before the judge may order the discharge of the attachment
upon proof adduced therein of the impropriety or irregularity in the issuance of the
writ and the defect is not cured forthwith. We may mention in this regard that if the
petition for the discharge of the writ violates the requirements of the law, the trial
judge does not acquire jurisdiction to act thereon.16
It is true that petitioner's motion to discharge was set for hearing with notice to BPI
but it is likewise true that counsel for the latter asked for an opportunity to file a
written opposition and for a hearing to which he asked that petitioner Edmund O.
Mapua be subpoenaed. Said counsel was allowed to file a written opposition which
he seasonably did, but Judge Pineda denied both the requested subpoena and
hearing and, instead, granted the discharge of the attachment. These are the bases
for BPI's complaint that it was denied due process.17
Now, it is undeniable that when the attachment is challenged for having been
illegally or improperly issued, there must be a hearing with the burden of proof to
sustain the writ being on the attaching creditor.18 That hearing embraces not only
the right to present evidence but also a reasonable opportunity to know the claims
of the opposing parties and meet them. The right to submit arguments implies that
opportunity, otherwise the right would be a barren one. It means a fair and open
hearing.19 And, as provided by the aforecited Section 13 of Rule 57, the attaching
creditor should be allowed to oppose the application for the discharge of the
attachment by counter-affidavit or other evidence, in addition to that on which the
attachment was made.
Respondent court was, therefore, correct in holding that, on the above-stated
premises, the attachment of the properties of Eastman and the Mapuas remained
valid from its issuance since the judgment had not been satisfied, nor has the writ
been validly discharged either by the filing of a counterbond or for improper or
irregular issuance.
We likewise affirm the findings and conclusion of respondent court that the order
of Judge Acosta, dated May 29, 1986, suspending the writ of attachment was in
essence a lifting of said writ which order, having likewise been issued ex parte and
without notice and hearing in disregard of Section 13 of Rule 57, could not have
resulted in the discharge of the attachment. Said attachment continued unaffected
by the so-called order or suspension and could not have been deemed inefficacious
until and only by reason of its supposed restoration in the order of December 16,
1987 of Judge Gerona. Under the facts of this case, the ex parte discharge or
suspension of the attachment is a disservice to the orderly administration of justice
and nullifies the underlying role and purpose of preliminary attachment in
preserving the rights of the parties pendente lite as an ancillary remedy.
We, therefore, sustain the position of BPI that the Court of Appeals, in its judgment
presently under challenge, did not err in upholding the continuing and
uninterrupted validity and enforceability of the writ of preliminary attachment
issued in Civil Case No. 48849 since the order of discharge and, later, the order of
suspension of the trial court were void and could not have created the operational
lacuna in its effectivity as claimed by petitioners. Further, the cancellation of the
annotations regarding the levy on attachment of petitioners' properties, procured by
the sheriff pursuant to the aforesaid invalid orders, is likewise a nullity and another
levy thereon is not required. We observe, however, that the records do not disclose
the lifting of the levy on the Bataan shares of Eastman and the Mapuas and on their
real properties in Caloocan City.
2. Petitioners next call attention to the fact that when the order of Judge Acosta of
December 17, 1984, which directed the immediate execution and implementation
of the writ of attachment, was brought on a petition for certiorari and prohibition
to the Intermediate Appellate Court in AC-G.R. SP No. 05043, said court issued a
temporary restraining order.
They allege that although the restraining order was lifted by said appellate court in
its decision in the case on March 14, 1986, the same was reinstated by the court
"until further orders" in its order of April 24, 1986 in connection with petitioners'
motion for reconsideration therein. On May 14, 1986, respondent court denied the
motion for reconsideration but, so petitioners insist, "without, however, stating that
it was lifting its restraining order." When the case went on review to this Court in
G.R. No. 74558, no mention was made regarding said restraining order. Hence,
petitioners assert, the said restraining order had not been lifted, in effect arguing
that the writ of attachment cannot be implemented as a consequence.
This misleading argument is confuted by the records in AC-G.R. SP No. 05043. In
its aforesaid resolution of April 24, 1986, the appellate court stated that "(a)s of this
date, April 23, 1986, the motion for reconsideration could not be considered in
view of the absence of the comment of the private respondents." Hence, the court
directed that "(i)n order to maintain the status quo of the parties, . . . the restraining
order issued by us on December 28, 1984 is hereby revived and made effective
until further orders."20
Thereafter, finding no merit in the motion for reconsideration, the court denied the
same, declaring that "(w)ith this resolution, we find no need in resolving the Urgent
Motion to Reconsider and set aside Resolution of April 24, 1985 (sic, 1986) filed
by the private respondent BPI and the other incidents still pending resolution."21
All incidents in AC-G.R. SP No. 05043 having been disposed of, it follows that the
temporary restraining order which had been expressly lifted in the decision therein,
and which was merely temporarily reinstated for purposes of the motion for
reconsideration that was ultimately denied, was also necessarily lifted.
Parenthetically, said temporary restraining order, not having been supplanted by a
writ of preliminary injunction, could not have had an effectivity of more than
twenty (20) days,22 and this limitation applies to temporary restraining orders
issued by the Court of Appeals.23
3. We reject petitioners' theory that the preliminary attachment is not applicable to
Eastman and the Mapuas. The writ was issued in Civil Case No. 48849 against the
properties of all the petitioners herein. Eastman and the Mapuas moved for the
discharge of the attachment on the ground that they were not disposing of their
properties in fraud of creditors, but they did not raise the issue of their liabilities as
being allegedly those of mere guarantors. They did so only when this Court
resolved on October 27, 1986 that the writ of preliminary attachment was issued in
accordance with law and applicable jurisprudence.24
Also, what was considered in AC-G.R. SP No. 05043 and thereafter in G.R. No.
74558 was the matter of the validity of the attachment against Eastman and the
Mapuas, considering that, even before the proceedings had reached the
Intermediate Appellate Court in AC-G.R. SP No. 05043, BPI no longer had any
attachment against Peroxide whose only remaining asset in Bulacan had been
levied upon and acquired by its other creditors when Judge Pineda lifted the
attachment obtained by BPI.
Petitioners seek to capitalize on a passage in the decision in AC-G.R. SP No.
05043, hereinbefore quoted, where the appellate court stated that "(w)e find
nothing wrong with the attachment of the properties of PEROXIDE," without
mentioning Eastman and the Mapuas. This was clearly in the nature of peccata
minuta, a plain case of harmless oversight, since the properties referred to in the
decision as having been alienated in fraud of BPI were properties of Eastman and
the Mapuas, not of Peroxide.
In fact, as pointed out by private respondent, petitioners' own motion for
reconsideration of March 24, 1986 filed in said case specifically adverted to that
prefatory statement as being equivocal, with the following observation: "Actually
no properties of Peroxide had been attached. What were attached were properties
of Eastman and Rose Mapua."25 Private respondent further invites attention to the
petition for certiorari in G.R. No. 74558, against the decision in AC-G.R. SP No.
05043, wherein, assailing the aforequoted statement therein, petitioners aver:
As can be seen the paragraph begins with the holding that there is
nothing wrong with the attachment of properties of Peroxide. This
holding on its face is limited only to the upholding of attachment
against the properties of petitioner Peroxide. And yet the alienations
mentioned in the subsequent sentences do not refer to dispositions of
properties of Peroxide and by Peroxide. A cursory glance of records
will show that they refer to dispositions alleged to have been
fraudulently made by Eastman Chemical Industries, Inc. and Edmund
Mapua. Relating this point to the dispositive portion which in effect
sustains the attachment issued by the trial court not only against
Peroxide, but also against Eastman and Mapua spouses.26
4. As earlier narrated, this Court denied the petition for review on certiorari in
G.R. No. 74558, and when petitioners persisted in seeking a clarification as to the
nature of the liability of Eastman and the Mapuas, the Court denied the same on the
ground that the clarification sought involves questions of fact. As observed by
respondent Court of Appeals, the aforesaid ruling was erroneously construed by the
lower court when it declared that the properties of Eastman and the Mapuas should
not, pending proper determination, be attached. In doing so, the court below
virtually lifted or discharged the attachment even before its propriety had been
determined.

We sustain respondent court's ratiocination in its decision under review that when
petitioners sought clarification from us regarding the propriety of the attachment on
the properties of Eastman and the Mapuas, and we said that this involves a question
of fact, what this means is that the court a quo should determine the propriety or
regularity thereof, and such determination can only be had in appropriate
proceedings conducted for that purpose. However, until such attachment has been
found to be improper and irregular, the attachment is valid and subsisting.

Thus, as correctly posited by BPI, before the determination of the liability of

Eastman and the Mapuas after trial on the merits, the writ of preliminary
attachment may properly issue. Even assuming that when Eastman and the Mapuas
asked for the lifting of the attachment they presented evidence that they were
guarantors and not sureties of Peroxide, the trial court could not have admitted such
evidence or ruled upon that issue since the same could be entertained only after a
full-blown trial and not before then.27 Otherwise, we would have the procedural
absurdity wherein the trial court would be forced to decide in advance and preempt
in an auxiliary proceeding an issue which can and should be determined only in a
trial on the merits.

The proceeding in the issuance of a writ of preliminary attachment, as a mere

provisional remedy, is ancillary to an action commenced at or before the time when
the attachment is sued out. Accordingly the attachment does not affect the decision
of the case on the merits, the right to recover judgment on the alleged indebtedness
and the right to attach the property of the debtor being entirely separate and
distinct. As a rule, the judgment in the main action neither changes the nature nor
determines the validity of the attachment. 28 At any rate, whether said petitioners are
guarantors or sureties, there exists a valid cause of action against them and their
properties were properly attached on the basis of that indubitable
circumstance.1âwphi1

5. Petitioners bewail the fact that respondent court allegedly handled

the certiorari case, CA-G.R. SP No. 15672 now on appeal before us, as if it were a
petition for review on certiorari by passing upon what they submit should be
considered as errors of judgment and not errors of jurisdiction. From the foregoing
disquisition, however, it is readily apparent that the petition in said case faults the
orders of the trial court as tainted with grave abuse of discretion equivalent to a
jurisdictional flaw. The errors assigned necessarily involved a discussion of
erroneous conclusions and/or lack of factual bases much beyond the pale of mere
errors of judgment or misperception of evidence, and dwelt on the improvident
issuance of orders clearly arbitrary and oppressive for being in defiance of the rules
and devoid of justifying factual moorings. We cannot, therefore, share the
sentiments and stance of petitioners on this score.

Neither do we subscribe to petitioners' charge that respondent court injudiciously

gave due course to the aforesaid petition for certiorari without requiring the prior
filing and resolution of a motion for the reconsideration of the questioned orders of
the trial court. There are, admittedly, settled exceptions to that requisite and which
obtain in the present case. A motion for reconsideration was correctly dispensed
with by respondent court since the questions raised in the certiorari proceeding
had been duly raised and passed upon by the lower court. 29 Also, under the
circumstances therein, a motion for reconsideration would serve no practical
purpose since the trial judge had already had the opportunity to consider and pass
upon the questions elevated on certiorari to respondent court.30

FOR ALL THE FOREGOING CONSIDERATIONS, the petition at bar is

DENIED and the judgment of respondent Court of Appeals is hereby AFFIRMED.

SO ORDERED.