1. Davao Light & Power vs.

CA 204 SCRA 343

FACTS: 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. No. 19513-
89).  The complaint contained an ex parte appplication 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."

Issue: 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.

Ruling: Yes. 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 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 dependent 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 thereof.
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 on the defendant.  During this
period, different acts may be done by the plaintiff or by the Court which are of
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 proper 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." [17] The phrase, "at the commencement of the action," obviously
refers to the date of the filing of the complaint -- which, as above pointed out, is the
date that marks "the commencement of the action;" [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 (counterclaim, 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 plaintiff'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." [
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. C.A., 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. -- Atany 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. -- Theofficer 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)
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 the defendant, as above indicated --
issuance of summons, order of attachment and writ of attachment (and/or appointment
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 it 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.  
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 plaintiffs attachment bond.

2. Dela Rosa vs. Carlos October 23, 2003

FACTS: This case stemmed from a complaint 4 for forcible entry filed by Jesus Dela
Rosa and Lucila Dela Rosa (Spouses Dela Rosa) against Santiago Carlos (Santiago)
and Teofila Pacheco (Teofila) with the Municipal Trial Court 5 of Paombong, Bulacan
(MTC).

In their complaint filed on 25 February 1998, the Spouses Dela Rosa alleged that they
are the owners of a house and lot (Property) with an area of 352 square meters located
at No. 25 San Roque, Paombong, Bulacan. The Spouses Dela Rosa claimed that
Leonardo Carlos (Leonardo) transferred to them the ownership of the Property under
the Absolute Deed of Sale (Deed of Sale) executed on 1 September 1966. The
Spouses Dela Rosa registered on 6 October 1966 the Deed of Sale under Act No. 3344
with the Register of Deeds of Bulacan. The Spouses Dela Rosa asserted that they
renovated the house, furnished and occupied the same from 1966 to the present. Since
the Spouses Dela Rosa work and their children study in Manila, they reside in the
Property only during weekends and holidays. However, they padlock the house on the
Property while they are away and instruct relatives who live nearby to watch over the
Property.

The Spouses Dela Rosa further asserted that they have been paying the taxes for the
land since 1966 to 1997, and for the house from 1966 to 1993. In addition, the Spouses
Dela Rosa had a perimeter fence built to separate the Property from the municipal road
and to protect it from trespassers.

The Spouses Dela Rosa also asserted that in October 1997, they discovered that,
through stealth and without their knowledge and consent, Santiago had built a house of
strong materials on a vacant lot of the Property. Santiago did not secure the necessary
building permit from the Municipal Engineers Office. Teofila had also been transferring
furniture to the house and sleeping there. On 20 November 1997, the Spouses Dela
Rosa, through their counsel, demanded that Santiago and Teofila demolish the house,
remove their furniture and vacate the premises within ten days from receipt of the letter.
However, Santiago and Teofila did not heed the Spouses Dela Rosas demand.
In their answer, Santiago and Teofila alleged that they are the surviving heirs of the
Spouses Leonardo and Benita Carlos (Spouses Carlos). As heirs of the Spouses
Carlos, they, along with Lucila Dela Rosa, are co-owners of the Property. They
contended that the Spouses Dela Rosa obtained the Deed of Sale through fraud and
undue influence and that their mother did not consent to the sale of the Property
which they claimed as conjugal. They maintained that the Spouses Dela Rosa were
never in possession of the Property because the latter only went there to visit their
parents, and not as owners. Insisting that they have been occupying the Property
since birth, Santiago claimed that he constructed the house on the Property in
the concept of a co-owner.

ISSUE: Was there a proper attachment?

HELD: YES. Section 10 of Rule 70 provides:

SEC. 10. Submission of affidavits and position papers. Within ten (10) days from receipt
of the order mentioned in the next preceding section, the parties shall submit the
affidavits of their witnesses and other evidence on the factual issues defined in the
order, together with their position papers setting forth the law and the facts relied upon
by them.

Section 10 should be read in relation to Section 14 of the same Rule, which states:

SEC. 14. Affidavits. The affidavits required to be submitted under this Rule shall state
only facts of direct personal knowledge of the affiants which are admissible in evidence,
and shall show their competence to testify to the matters stated therein.

xxx

The Spouses Dela Rosa jointly verified their position paper by stating that all the
allegations in the position paper are true and correct of their own personal knowledge.
[17 The verification itself is an affidavit.[18 Section 4 of Rule 7 states that a pleading is
verified by an affidavit. Thus, the verified position paper constitutes the affidavit of
witnesses required under Rule 70. Certainly, the Spouses Dela Rosa qualify as
witnesses to their own complaint. While there are no affidavits of other witnesses that
support the complaint, the Spouses Dela Rosa attached to their position paper
documentary evidence that bolster their claim of prior possession.

Santiago and Teofila never raised as an issue the alleged non-attachment to the
complaint of affidavits of witnesses, either in the MTC or in the RTC. In their petition for
review before the Court of Appeals, Santiago and Teofila did not also raise this issue.
The MTC and RTC apparently understood correctly that the verified complaint of the
Spouses Dela Rosa constitutes the affidavit of witnesses required under Rule 70. We
rule that the Court of Appeals erred in holding that the Spouses Dela Rosa failed to
attach to their complaint the affidavits required in Sections 10 and 14 of Rule 70.

In a forcible entry case, the principal issue for resolution is mere physical or material
possession (possession de facto) and not juridical possession (possession de jure) nor
ownership of the property involved. 19 In the present case, both parties claim prior
possession of the Property. The Spouses Dela Rosa claim that they have been in
possession of the Property since 1966 upon the execution of the deed of sale by
Leonardo in their favor. On the other hand, Santiago and Teofila claim that they have
been continuously occupying the Property since birth and the Spouses Dela Rosa were
never in possession of the Property.

While admitting that Santiago and Teofila used to reside in the Property since birth, the
Spouses Dela Rosa contend that Santiago and Teofila moved out when they married in
1961 and 1959, respectively. According to the Spouses Dela Rosa, Santiago and his
family live in Manila (at 3500-F Magsaysay Blvd., Sta. Mesa, Manila) 20 while Teofila
occupies the lot adjacent to the Property bearing, however, the same
address.21 Santiago and Teofila did not dispute these allegations by the Spouses Dela
Rosa.

On the other hand, Santiago and Teofila admit that the Spouses Dela Rosa visit the
Property. Visiting the Property on weekends and holidays is evidence of actual or
physical possession. Even if the Spouses Dela Rosa were already residing in Manila,
they could continue possessing the Property in Bulacan. The fact of their residence in
Manila, by itself, does not result in loss of possession of the Property in Bulacan. The
law does not require one in possession of a house to reside in the house to maintain his
possession.

Santiago and Teofila likewise do not deny that the Spouses Dela Rosa renovated the
house, furnished the same and constructed a perimeter fence around the Property.
Santiago and Teofila contend that these acts did not include the right to possess
physically the Property.24 These acts of dominion are clear indications that the Spouses
Dela Rosa were in possession of the Property. Santiago and Teofila failed to explain
convincingly how the Spouses Dela Rosa were able to renovate, furnish the house and
construct a perimeter fence around the Property without physically possessing the
Property. It is quite improbable to perform these acts without the Spouses Dela Rosa
physically possessing the Property.

Santiago and Teofila likewise challenged the validity of the sale between their father
Leonardo and the Spouses Dela Rosa. The sale transpired on 1 September 1966,
before Leonardos death. The Spouses Dela Rosa registered on 6 October 1966 the
Deed of Sale under Act No. 3344 with the Registry of Deeds of Paombong, Bulacan. If
Santiago and Teofila truly believed that the Deed of Sale is void, they should have filed
an action to annul the same, but they did not. Santiago and Teofila questioned the
validity of the Deed of Sale only when the Spouses Dela Rosa filed the forcible entry
case.
However, Santiago and Teofila cannot properly challenge the validity of the Deed of
Sale in the ejectment case because ejectment cases proceed independently of any
claim of ownership.25 Santiago and Teofila claim that the Deed of Sale was executed
without the consent of Benita, Leonardos spouse. They also claim that the Deed of Sale
was executed through fraud and undue influence. However, these issues cannot
properly be addressed in the present action. These issues can only be resolved in a
separate action specifically for the annulment of the Deed of Sale. Resolution of these
issues, in turn, will determine whether the surviving heirs of the Spouses Carlos are co-
owners of the Property who are likewise entitled to its possession. Co-ownership is only
a necessary consequence of the heirs successional rights to the Property, if any.

3. De Los Reyes vs. CFI of Batangas

FACTS: This is an original petition for the writ of certiorari filed in this court by Benito de
los Reyes and wife, for the purpose of quashing an order of the Court of First Instance
of Batangas granting an attachment of property belonging to the plaintiffs, in an action
instituted in the Court of First Instance of the Province of Batangas, wherein the
respondents Chua Pua Hermanos are plaintiffs and the petitioners defendants. The
cause has been here submitted upon the answer of the defendants.

ISSUE: whether in a proceeding to foreclose a mortgage upon land, the court

entertaining such proceeding can issue an attachment against other property of
the defendants than such as is included in the mortgage, upon a showing, by
affidavit, that the mortgage property is in sufficient to pay the mortgage debt and
that the defendants are attempting to alienate their unmortgaged property to
other persons with intent to defraud the plaintiff.

RULING: YES. The affidavit accompanying the application for attachment shows,
in conformity with the requirement of section 426 of the Code of Civil Procedure,
that the value of the mortgaged property is not sufficient to satisfy the debt. In
addition to this it is alleged in the affidavit that the defendants are attempting to dispose
of their other property, meaning property not mortgaged to the plaintiff, with intent to
defraud the plaintiff. This is in conformity with the requirement of subsection 5 of section
412 of the Code of Civil Procedure.

Under section 424 of the Code of Civil Procedure, an attachment may be obtained at or
after the commencement of the plaintiff's "action." The word "action," as used in this
provision, includes in our opinion a proceeding for the foreclose of a mortgage. This is
of course directed primarily to the property covered by the mortgage, but under section
260 of the Code of Civil Procedure, the mortgage creditor is entitled to judgment for any
excess remaining due upon the mortgage debt after the mortgaged property shall have
been sold; and this judgment for the balance due is entered upon motion in the
foreclosure proceeding itself. This fact, taken in connection with the statement of the
affidavit to the effect that the mortgaged property was insufficient in value to cover the
indebtedness due to the plaintiff, made a case where it was proper to grant an
attachment upon the facts stated.lawphi1>net

It results that the trial court did not act irregularly in excess of its jurisdiction, in granting
the attachment which is the subject of this petition.

4. Oñate vs. Abrogar February 23, 1995

FACTS: These are motions separately filed by petitioners, seeking reconsideration of

the decision of the Second Division holding that although the levy on attachment of
petitioner's properties had been made before the trial court acquired jurisdiction over
them, the subsequent service of summons on them cured the invalidity of the
attachment.
Petitioners maintain that, in accordance with prior decisions of this Court, the
attachment of their properties was void because the trial court had not at that time
acquired jurisdiction over them and that the subsequent service of summons on them
did not cure the invalidity of the levy. They further contend that the examination of the
books and ledgers of the Bank of the Philippine Islands (BPI), the Philippine National
Bank (PNB) and the Urban Bank was a "fishing expedition" which the trial court should
not have authorized because petitioner Emmanuel C. Oñate, whose accounts were
examined, was not a signatory to any of the documents evidencing the transaction
between Sun Life Assurance of Canada (Sun Life) and Brunner Development
Corporation (Brunner).cralaw

On the other hand private respondent Sun Life stresses the fact that trial court
eventually acquired jurisdiction over petitioners and contends
With respect to the second contention of petitioners, private respondent argues that the
examination of petitioner Oñate's bank account was justified because it was he who
signed checks transferring huge amounts from Brunner's account in the Urban Bank to
the PNB and the BPI.

I.

At the outset, it should be stated that the Court does not in the least doubt the validity of
the writ of attachment issued in these cases. The fact that a criminal complaint for
estafa which Sun Life had filed against petitioner Oñate and Noel L. Diño, president of
Brunner, was dismissed by the Office of the Provincial Prosecutor is immaterial to the
resolution of the motions for reconsideration. In the first place, the dismissal, although
later affirmed by the Department of Justice, is pending reconsideration. In the second
place, since the issue in the case below is precisely whether petitioners were guilty of
fraud in contracting their obligation, resolution of the question must await the trial of the
main case.
However, we find petitioner's contention respecting the validity of the attachment of their
properties to be well taken. We hold that the attachment of petitioner's properties prior
to the acquisition of jurisdiction by the respondent court is void and that the
subsequent service of summons on petitioners did not cure the invalidity of such
attachment. The records show that before the summons and the complaint were
served on petitioners Oñate and Econ Holdings Corporation (Econ) on January 9, 1992,
Deputy Sheriff Arturo C. Flores had already served on January 3, 1992 notices of
garnishment on the PNB Head Office 2 and on all its Metro Manila branches and on
A.B. Capital. 3 In addition he made other levies before the service of summons on
petitioners, to wit:nadchanroblesvirtualawlibrary

- On January 6, 1992, he served notices of garnishment on the Urban Bank Head Office
and all its Metro Manila branches, 4 and on the BPI. 5

- On the same day, he levied on attachment Oñate's condominium unit at the Amorsolo
Apartments Condominium Project, covered by Condominium Certificates of Title No. S-
1758. 6

- On January 7, 1992, he served notice of garnishment on the Union Bank of the

Philippines. 7

- On January 8, 1992, attached Oñate's lot, consisting of 1,256 square meters, at the
Ayala-Alabang Subdivision, Alabang, Muntinlupa, covered by TCT No. 112673. 8

First. The Deputy Sheriff claims that he had tried to serve the summons with a copy of
the complaint on petitioners on January 3, 1992 but that there was no one in the offices
of petitioners on whom he could make a service. This is denied by petitioners who claim
that their office was always open and that Adeliza M. Jaranilla, Econ's Chief Accountant
who eventually received summons on behalf of Oñate's and Econ, was present that
day. Whatever the truth is, the fact is that no other attempt was made by the sheriff
to serve the summons except on January 9, 1992, in the case of Oñate and Econ,
and on January 16, 1992, in the case of Diño. Meantime, he made several levies,
which indicates a predisposition to serve the writ of attachment in anticipation of
the eventual acquisition by the court of jurisdiction over petitioners.

ISSUE: WON the Enforcement was void.

RULING: YES.
It goes without saying that whatever be the acts done by the Court prior to the
acquisition of jurisdiction over the person of the defendant, as above indicated —
issuance of summons, order of attachment and writ of attachment (and/or appointment
of guardian ad litem, or grant of authority to the plaintiff to prosecute the suit as a
pauper litigant, or amendment of the complaint by the plaintiff as a matter of right
without leave of court — and however valid and proper they might otherwise be,
these do not and cannot bind and affect the defendant until and unless
jurisdiction over his person is eventually obtained by the court, 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 explicitly 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 explicitly directed by
Section 3, Rule 14 of the Rules of Court. 10

It is clear from the above excerpt, however, that while the petition for a writ of
preliminary attachment may be granted and the writ itself issued before the
defendant is summoned, the writ of attachment cannot be implemented until
jurisdiction over the person of the defendant is obtained. As this Court explained,
"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
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.

Private respondent argues that the case of Cuartero itself provides for an exception as
shown in the statement that "the court [in issuing the writ of preliminary attachment]
cannot bind and affect the defendant until jurisdiction is eventually obtained" and that
since petitioners were subsequently served with summons, no question can be raised
against the validity of the attachment of petitioner's properties before such service.
The statement in question has been taken out of context. The full statement
reads:nadchanroblesvirtualawlibrary

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 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. 13

Indeed, as this Court through its First Division has ruled on facts similar to those in
these cases, the attachment of properties before the service of summons on the
defendant is invalid, even though the court later acquires jurisdiction over the defendant.
14 At the very least, then, the writ of attachment must be served simultaneously
with the service of summons before the writ may be enforced. As the properties of
the petitioners were attached by the sheriff before he had served the summons on
them, the levies made must be considered void.

Third. Nor can the attachment of petitioner's properties before the service of summons
on them was made be justified on the ground that unless the writ was then enforced,
petitioners would be alerted and might dispose of their properties before summons
could be served on them.

The Rules of Court do not require that issuance of the writ be kept a secret until it
can be enforced. Otherwise in no case may the service of summons on the defendant
precede the levy on attachment. To the contrary, Rule 57, § 13 allows the defendant to
move to discharge the attachment even before any attachment is actually levied upon,
thus negating any inference that before its enforcement, the issuance of the writ must
be kept secret. Rule 57, § provides:nadchanroblesvirtualawlibrary

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 . . . . (Emphasis added).cralaw

At this Court pointed out in Davao Light and Power, 15 the lifting of an attachment "may
be resorted to even before any property has been levied on."

It is indeed true that proceedings for the issuance of a writ of attachment are
generally ex parte. In Mindanao Savings and Loans Ass'n v. Court of Appeals 16 it
was held that no hearing is required for the issuance of a writ of attachment
because this "would defeat the objective of the remedy [because] the time which
such hearing would take could be enough to enable the defendant to abscond or
dispose of his property before a writ of attachment issues." It is not, however,
notice to defendant that is sought to be avoided but the "time which such hearing would
take" because of the possibility that defendant may delay the hearing to be able to
dispose of his properties. On the contrary there may in fact be a need for a hearing
before the writ is issued as where the issue of fraudulent disposal of property is raised.
17 It is not true that there should be no hearing lest a defendant learns of the application
for attachment and he removes his properties before the writ can be enforced.

On the other hand, to authorize the attachment of property even before jurisdiction over
the person of the defendant is acquired through the service of summons or his voluntary
appearance could lead to abuse. It is entirely possible that the defendant may not know
of the filing of a case against him and consequently may not be able to take steps to
protect his interests.

Nor may sheriff's failure to abide by the law be excused on the pretext that after
all the court later acquired jurisdiction over petitioners. More important than the
need for insuring success in the enforcement of the writ is the need for affirming
a principle by insisting on that "most fundamental of all requisites — the
jurisdiction of the court issuing attachment over the person of the defendant." 18
It may be that the same result would follow from requiring that a new writ be
served all over again. The symbolic significance of such an act, however, is that it
would affirm our commitment to the rule of law.
5. Luzon Dev't Bank vs. Krishnan April 13, 2015

FACTS: Petitioners Luzon Development Bank, Tomas Clemente, and Oscar

Ramirez (hereafter petitioners) are the respondents in the complaint for
Collection of Sum of Money and Damages filed by respondent Erlinda Khrishnan
(hereafter respondent Erlinda) on February 7, 2001. Respondent Erlinda claimed
that she is a client of respondent bank wherein she maintained several accounts
including time deposits. On several occasions, when respondent Erlinda
presented her Time Deposits Certificates amounting to P28,597,472.70 for
payment because they have become due, petitioners refused to honor them
for the reason that they were fraudulent. Respondent Erlinda likewise
applied for a Preliminary Writ of Attachment which the RTC granted on
February 27, 2001.

By virtue of the writ, petitioner bank's accounts in BPI Family Bank, Calamba,
Laguna in the amount of P28,597,472.70 and its account amounting to
P49,000,000.00 in the Central Bank were garnished.

On March 9, 2001, petitioners filed an urgent ex-parte Motion to Recall Quash

and/or Lift Attachment or Garnishment (in excess of amounts in the writ).
Respondent Erlinda opposed the motion.

On August 15, 2001, petitioners filed an Omnibus Motion seeking the

substitution of their garnished account with government securities and the
immediate resolution of their motion to discharge attachment and setting
the motion for hearing, which respondent Erlinda opposed.

On May 22, 2002, the RTC resolved the pending incidents and required the
petitioners to justify their motion to discharge the attachment. During pre-
trial on May 23, 2002, respondents requested additional time to file a
supplemental motion to justify their earlier motions which was granted and gave
petitioners ten (10) days from receipt within which to comment or opposed (sic) it.

On September 8, 2003, the RTC issued an order lifting the attachment to

which respondent Erlinda filed a motion for reconsideration.

ISSUE: WON Petitioner had the option to deposit real property in lieu of
cash or counterbond.

RULING: No.
Section 2, Rule 57 of the Rules of Court explicitly states that "[a]n order of
attachment may be issued either ex parte or upon motion with notice and hearing
by the court in which the action is pending, or by the Court of Appeals or the
Supreme Court, and must require the sheriff of the court to attach so much of the
property in the Philippines of the party against whom it is issued, not exempt from
execution, as may be sufficient to satisfy the applicant's demand, unless such
party makes deposit or gives a bond as hereinafter provided in an amount
equal to that fixed in the order, which may be the amount sufficient to satisfy
the applicant's demand or the value of the property to be attached as stated by
the applicant, exclusive of costs."

Section 5 of the same Rule likewise states that "[t]he sheriff enforcing the writ
shall without delay and with all reasonable diligence attach, to await judgment
and execution in the action, only so much of the property in the Philippines of the
party against whom the writ is issued, not exempt from execution, as may be
sufficient to satisfy the applicant's demand, unless the former makes a deposit
with the court from which the writ is issued, or gives a counter-bond
executed to the applicant, in an amount equal to the bond fixed by the
court in the order of attachment or to the value of the property to be
attached, exclusive of costs."

From the foregoing, it is evidently clear that once the writ of attachment has
been issued, the only remedy of the petitioners in lifting the same is
through a cash deposit or the filing of the counter-bond. Thus, the Court
holds that petitioner's argument that it has the option to deposit real property
instead of depositing cash or filing a counter-bond to discharge the attachment or
stay the implementation thereof is unmeritorious.

In fact, in Security Pacific Assurance Corporation v. Tria-Infante,6 we held that

one of the ways to secure the discharge of an attachment is for the party whose
property has been attached or a person appearing on his behalf, to post a
counterbond or make the requisite cash deposit in an amount equal to that fixed
by the court in the order of attachment. 7

Apropos, the trial court aptly ruled that while it is true that the word deposit
cannot only be confined or construed to refer to cash, a broader interpretation
thereof is not justified in the present case for the reason that a party seeking a
stay of the attachment under Section 5 is required to make a deposit in an
amount equal to the bond fixed by the court in the order of attachment or to the
value of the property to be attached. The proximate relation of the word
"deposit" and "amount" is unmistakable in Section 5 of Rule 57. Plainly, in
construing said words, it can be safely concluded that Section 5 requires the
deposit of money as the word "amount" commonly refers to or is regularly
associated with a sum of money.

In Alcazar v. Arante,8 we held that in construing words and phrases used in a

statute, the general rule is that, in the absence of legislative intent to the
contrary, they should be given their plain, ordinary and common usage
meaning. The words should be read and considered in their natural, ordinary,
commonly-accepted and most obvious signification, according to good and
approved usage and without resorting to forced or subtle construction. Words are
presumed to have been employed by the lawmaker in their ordinary and common
use and acceptation.9 Thus, petitioners should not give a special or technical
interpretation to a word which is otherwise construed in its ordinary sense by the
law and broaden the signification of the term "deposit" to include that of real
properties.