PROVISIONAL REMEDIES

and
SPECIAL CIVIL ACTIONS
Atty. Carell Ryza E. Nartatez
PROVISIONAL REMEDIES
(RULE 57-61)
Provisional
Adjective

Ad interim, impermanent, short-term, temporary

Nature of provisional remedies
- temporary, auxiliary, and ancillary remedies available to a litigant
while the main action is pending or until a final disposition of the
matter in litigation

- Not causes of action - without a principal action, provisional remedies

would find no legal application; they are merely adjuncts to a main
suit
Purpose of provisional remedies (Bar 1996)

Provisional remedies are resorted to by litigants for any or a

combination of the following reasons:

1. To preserve or protect their rights or interests while the main action

is pending;
2. To secure the judgment;
3. To preserve the status quo; or
4. To preserve the subject matter of the action
Basic Principles about Provisional Remedies

1. It is not a civil action.

2. If you have a good cause of action, it does not follow that
you can have a ground for a provisional remedy that you
can attach immediately.
3. If the provisional remedy is granted, it does not mean that
you are already the winner. You still have to win the main
case.
What are the different types of provisional
remedies in the Rules of Court?

• Preliminary Attachment (Rule 57)

• Preliminary Injunction (Rule 58)
• Receivership (Rule 59)
• Replevin or delivery of private property (Rule 60)
• Support Pendente Lite (Rule 61)
Example scenarios:

1. A owes B a substantial amount of money and the obligation

is now due. B demands payment and sues A when he failed to
pay. Before the suit is filed, B obtained evidence that A had
been selling his property with the intent to defraud him.
2. A, the mortgagee filed an action to foreclose a real estate
mortgage against the B, the mortgagor. The building subject of
the mortgage is rapidly depreciating in value because of the
B’s gross neglect. A feared that by the time the judgment
turns out to be favorable to the mortgagee, the value of the
property would be insufficient to discharge B’s debt.
3. A enters the land of B by stealth or strategy with intent to
acquire permanent possession of the same. B files an action to
recover physical possession of the land against A. A resists to
vacate the land and interposes a prior right of possession,
which antedates B’s rights.
4. A, an illegitimate minor child who is living with his sick,
jobless and poor mother, filed a case for support against his
natural father. Does A have to wait for the final adjudication of
his entitlement to support, before he can receive assistance
from his natural father?
5. A, borrowed the car from B, with a promise to return the
car after three days. A, however, failed to fulfill his promise,
and alleged that the car has been pledged to him by B. B, then
filed an action to recover possession of the car. If the car is
used by B for his delivery business, and wanted to be in the
possession of the car pending in the meantime, does he have
to wait for the main case to be resolved?
Are provisional remedies available in criminal
cases?
 RULE 127
Provisional Remedies in Criminal Cases

Section 1. Availability of provisional remedies. — The provisional remedies in civil actions, insofar as
they are applicable, may be availed of in connection with the civil action deemed instituted with the
criminal action. (1a)

Section 2. Attachment. — When the civil action is properly instituted in the criminal action as
provided in Rule 111, the offended party may have the property of the accused attached as security
for the satisfaction of any judgment that may be recovered from the accused in the following cases:

(a) When the accused is about to abscond from the Philippines;

(b) When the criminal action is based on a claim for money or property embezzled or fraudulently
misapplied or converted to the use of the accused who is a public officer, officer of a corporation,
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;
(c) When the accused has concealed, removed, or disposed of his property, or is about to do so; an
(d) When the accused resides outside the Philippines. (2a)
Are the provisional remedies in the Rules of Court
exclusive?

REYES VS LIM, G.R. NO. 1324241, 11 August 2003

Held: The instant case, the Supreme Court held that if
this was a case where there is hiatus in the law and in
the Rules of Court. If this case was left alone, the hiatus
will result in unjust enrichment to Reyes at the expense
of Lim. Here the court exercised equity jurisdiction. The
purpose of the exercise of equity jurisdiction in this
case is to prevent unjust enrichment and to ensure
restitution so that substantial justice may be attained in
cases where the prescribed or customary forms of
ordinary law are inadequate.
The Supreme Court also state that rescission is possible only
when the person demanding rescission can return whatever
he may be obliged to restore. A court of equity will not rescind
a contract unless there is restitution, that is, the parties are
restored to the status quo ante.
In this case, it was just, equitable and proper for the trial court
to order the deposit of the P10 million down payment. The
decision of the Court of Appeals was affirmed
Jurisdiction over Provisional Remedies

- The court which grants or issues a provisional remedy is the court

which has jurisdiction over the main action.
PRELIMINARY ATTACHMENT
Rule 57 (PRELIMINARY ATTACHMENT)

DAVAO LIGHT AND POWER INC., VS COURT OF APPEALS

G.R. No. 93262 December 29, 1991

1. What is a preliminary attachment?

2. When does a writ of preliminary attachment may be applied for?
What is PRELIMINARY ATTACHMENT? (Section 1)
- plaintiff or other party may, at the commencement of the action or at
any time BEFORE THE ENTRY OF JUDGMENT,
- 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
Purpose:
1. To secure the outcome of the trial – the satisfaction of
the pecuniary obligation
• By attaching and safely keeping all the movable property of the defendant, or
so much better thereof as may be sufficient to satisfy the plaintiff’s demands

2. To secure a contingent lien on defendant’s property until

plaintiff can, by appropriate proceedings, obtain a
judgment and have such property applied to its satisfaction
(a) In an action for the recovery of a specified amount of money or damages, other than
moral and exemplary, on a cause of action arising from law, contract, quasi-contract, delict
or quasi-delict against a party who is about to depart from the Philippines which intent to
defraud his creditors;
(b) In an action for money or property embezzled or fraudulently misapplied or converted
to his own use by a public officer, or an officer of a corporation, or an attorney, factor,
broker agent, or clerk, in the course of his employment as such, or by other person in a
fiduciary capacity, or for a willful violation of duty;
(c) In an action to recover the possession of property unjustly or fraudulently taken,
detained or converted, when the property, or any part thereof, has been concealed,
removed, or disposed of to prevent its being found or taken by the applicant or an
authorized person;
(d) In an action against a party who has been guilty of a fraud in contracting the debt or
incurring the obligation upon which the action is brought, or in the performance thereof;
(e) In an action against a party who has removed or disposed of his property, or is about to
do so, with intent to defraud his creditors; or
(f) In an action against a party who does not reside and is not found in the Philippines, or
on whom summons may be served by publication.
(a) In an action for the recovery of a specified amount of money or damages, other than moral and
exemplary, on a cause of action arising from law, contract, quasi-contract, delict or quasi-delict against
a party who is about to depart from the Philippines which intent to defraud his creditors;

BAR 2011 QUESTION

Arthur, a resident foreigner sold his car to Bren. After being paid but before
delivering the car, Arthur replaced its original sound system with an inferior
one. Bren discovered the change, rejected the car, and demanded the return
of his money. Arthur did not comply. Meantime, his company reassigned
Arthur to Singapore. Bren filed a civil action against Arthur for contractual
fraud and damages. Upon his application, the court issued a writ of
preliminary attachment on the grounds that (a) Arthur is a foreigner; (b) he
departed from the Philippines; and (c) he was guilty of fraud in contracting
with Bren. Is the writ of preliminary attachment proper?
1. K.O. GLASS CONSTRUCTION CO., INC. VS VALENZUELA

2. PCIB VS ALEJANDRO

3. INSULAR SAVINGS BANK VS COURT OF APPEALS

4. GENERAL VS DE VENECIA
K.O. GLASS CONST. CO. vs. VALENZUELA, 116 SCRA 563 - mere
allegation that the defendant is a foreigner is insufficient.
There being no showing that the defendants are about to
depart from the Philippines with intent to defraud their
creditor, or that they are non-resident aliens, the attachment
of their properties is not justified.
GENERAL vs. DE VENECIA, 78 Phil. 780 - On the question of validity of
the attachment, "the GENERAL RULE is that, unless the statute
expressly so provides, the remedy by attachment is not available in
respect to a demand which is not due and payable, and if an
attachment is issued upon such a demand without statutory authority
it is void."
It must be observed that under our rules governing the matter the
person seeking a preliminary attachment must show that "a sufficient
cause of action exists" and that the amount due him is as much as the
sum for which the order of attachment is granted" (sec. 3, Rule 59).
Inasmuch as the commitment of Luis F. General has not as yet become
demandable, there existed no cause of action against him, and the
complaint should have been dismissed and the attachment lifted.
INSULAR SAVINGS BANK vs. CA, 460 SCRA 122

– writ of preliminary attachment cannot be issued for

moral and exemplary and other unliquidated or
contingent claims.
PCIB vs. ALEJANDRO G.R. No. 175587 September
21, 2007
• Executive Vice President REVILLA, personally transacted with defendant
mainly through defendant’s permanent residence in METRO-MANILA,
either in defendant’s home address in Quezon City or his main business
address at the ROMULO MABANTA BUENAVENTURA SAYOC & DELOS
ANGELES in MAKATI and while at times follow ups were made through
defendant’s temporary home and business addresses in Hongkong. It is
therefore clear that plaintiff could not deny their personal and official
knowledge that defendant’s permanent and official residence for purposes
of service of summons is in the Philippines.

• It is obvious that plaintiff already knew from the beginning the deficiency
of its second ground for attachment [i.e.,] disposing properties with intent
to defraud his creditors, and therefore plaintiff had to resort to this
misrepresentation that defendant was residing out of the Philippines and
suppressed the fact that defendant’s permanent residence is in METRO
MANILA where he could be served with summons.
Held: The purposes of preliminary attachment are:
(1) to seize the property of the debtor in advance of final judgment and
to hold it for purposes of satisfying said judgment, as in the grounds
stated in paragraphs (a) to (e) of Section 1, Rule 57 of the Rules of
Court; or
(2) to acquire jurisdiction over the action by actual or constructive
seizure of the property in those instances where personal or
substituted service of summons on the defendant cannot be effected,
as in paragraph (f) of the same provision.
Things to remember:
• Defendant should be about to depart the Philippines, AND
with intent to defraud his creditor
• A mere allegation that the defendant is a foreigner is not sufficient
• The allegation in the affidavit should be sufficient.
• Demand should already be due and payable
• May not be issued for moral and exemplary damages or for
an unspecified amount of damages – the amount should be
specified
(b) In an action for money or property embezzled or fraudulently misapplied or
converted to his own use by a public officer, or an officer of a corporation, or an
attorney, factor, broker agent, or clerk, in the course of his employment as such, or by
other person in a fiduciary capacity, or for a willful violation of duty;

What must be shown under this ground?

- Allegations of fraud, embezzlement and misappropriation should be

substantiated and be based on concrete and specific grounds.

- Where the grounds for attachment are couched in general terms, the
adverse party should be given an opportunity to ventilate their side in a
hearing.
1. TAN VS ZANDUETA

2. OLSEN & CO. VS OLSEN

• TAN vs. ZANDUETA G.R. No. L-43721 June 15, 1935
Facts: Two persons owned a sweepstakes ticket that won a prize.
However, the other one appropriated the entire prize to himself.

Issue: May a writ of preliminary attachment be issued on such

situation?

Held: Yes. One-half thereof did not belong to him to said respondent.
He was merely a depository or agent of the latter as to said half, and
that the petitioner acted in the manner stated notwithstanding the fact
that he was required to turn over to the respondent the part of the
prize won corresponding to the latter.
• OLSEN & CO. vs. OLSEN G.R. No. L-23237 November 14, 1925
WON a writ may issue against a president, treasurer and general manager
who without authorization takes money from the corporation?

Held: Yes. Having, as he had, absolute and almost exclusive control over the
function of the corporation and its funds by virtue of his triple capacity as
president, treasurer and general manager, the defendant-appellant should
have been more scrupulous in the application of the funds of said
corporation to his own use. As a trustee of said corporation, it was his duty
to see by all legal means possible that the interests of the stockholders were
protected, and should not abuse the extraordinary opportunity which his
triple position offered him to dispose of the funds of the corporation.
Ordinary delicacy required that in the disposition of the funds of the
corporation for his personal use, he should be very careful, so as to do it in
such a way as would be compatible with the interest of the stockholders and
his fiduciary character.
Things to remember:
1. The act was done in the course of his employment or by one who
has willfully violated his duty.
• For the writ to be issued, there is no need for a showing that the
defendant is concealing, removing or disposing of his property.
• Under this provision, it is the character of the office or the duty of the
defendant that is to be considered when the acts, giving rose to the
cause of the action, are performed.

2. The writ may also be issued against a corporate officer who, with
abuse of confidence, appropriates corporate funds for his personal use.
(c) In an action to recover the possession of property unjustly or fraudulently taken,
detained or converted, when the property, or any part thereof, has been concealed,
removed, or disposed of to prevent its being found or taken by the applicant or an
authorized person;

• the personal property in this case belongs to the defendant

and the plaintiff seeks to attach it to secure the satisfaction
of any judgment that he may recover from the defendant
• recovery of property that is unjustly or fraudulently taken
As distinguished from Replevin (Rule 60)

Replevin
- may be a principal action or a provisional remedy
- Its ultimate goal is to recover personal property capable of manual
delivery wrongfully detained by a person
Replevin vs Preliminary Attachment
REPLEVIN
Replevin is to recover personal property capable of
manual delivery from the adverse party.
Personal property belongs to the plaintiff
Can be availed of only when the defendant is in actual
or constructive possession of the personal property
Extends only to personal property capable of manual
delivery
May be availed of without showing that the property
is being concealed or disposed of to the prejudice of
the applicant
PRELIMINARY ATTACHMENT
Preliminary attachment’s purpose is not to actually
recover ay property but simply to place the property
under the custody of the court to secure the
satisfaction of the judgment.
Property does not belong to the plaintiff, but to the
defendant.
Can be availed of even the property is in the custody
of third person.
Extends to all kinds of property
The applicant, in certain cases, needs to show the
property is being removed, concealed, or disposed of
SANTOS VS BERNABE (54 PHIL. 19)
– as distinguished from replevin – the personal
property in this case belongs to the defendant and the
plaintiff seeks to attach it to secure the satisfaction of
any judgment that he may recover from the defendant.
Facts:

Bernabe owns a warehouse. In his warehouse, Santos deposited 778

cavans and 38 kilos of palay and Tiongson deposited 1,026 cavans and
9 kilos of palay. Tiongson filed a case against Bernabe to recover from
him his palay, and asked for a writ of attachment. Now, 924 cavans
were seized. Comes now is Santos who claims that he must be allowed
to intervene in the attachment. Santos is saying now that Tiongson
cannot claim the 924 cavans because in asking so, Tiongson is in effect
saying that the cavans of rice belong to Bernabe and not to him.
(d) In an action against a party who has been guilty of a fraud in
contracting the debt or incurring the obligation upon which the action is
brought, or in the performance thereof;

1. The basis of the application for a writ of preliminary attachment

under this provision is the fraudulent act of a party in either a)
contracting the debt or incurring the obligation; b) in the
performance of his obligation.

2. Improper grounds: 1. Insolvency 2. Mortgaging subject property

STATE INVESTMENT HOUSE VS CA (G.R. NO. 82446; JULY 29, 1988)

Issue: WON the impairment of the collaterals is sufficient for the

issuance of a writ: [1] shares of stock pledged as security and their
subsequent decline in value [2] parcels of land mortgaged to creditor
who were worth less their supposed value [3] bounced postdated
checks.
[1] With respect to the shares of stock which the respondents pledged
as additional security for the loan, the decline in their value did not
mean that the private respondents entered into the loan transaction in
bad faith or with fraudulent intent. For the private respondents could
not have foreseen how the stocks would fare in the market. And if the
petitioner thought they were worthless at the time, it should have
rejected them as collateral.

[2] With respect to the two parcels of land which were mortgaged to
the petitioner, the latter should also have declined to accept them as
collateral if it believed they were worth less than their supposed value.
[3] With respect to the two postdated checks which bounced, the Court
of Appeals observed that since they were "sold" to the petitioner after
the loan had been granted to private respondents, their issuance did
not fraudulently induce the petitioner to grant the loan applied for.
They were "mere evidence of the private respondents" standing loan
obligation to the petitioner" or "mere collaterals for the loan granted
by the petitioner to the private respondents"
ABOITIZ vs. COTABATO BUS COMPANY G.R. No. L-35990 June 17, 1981

Is insolvency a ground for the issuance of the writ?

Held: No. The dwindling of respondent's bank account despite its daily
income of from P10,000.00 to P14,000.00 is easily explained by its
having to meet heavy operating expenses, which include salaries and
wages of employees and workers. If, indeed the income of the company
were sufficiently profitable, it should not allow its buses to fall into
disuse by lack of repairs. It should also maintain a good credit standing
with its suppliers of equipment, and other needs of the company to
keep its business a going concern. Petitioner is only one of the
suppliers.
The several buses attached are nearly junks. However, upon
permission by the sheriff, five of them were repaired, but they
were substituted with five buses which were also in the same
condition as the five repaired ones before the repair. This
cannot be the removal intended as ground for the issuance of
a writ of attachment under section 1 (e), Rule 57, of the Rules
of Court. The repair of the five buses was evidently motivated
by a desire to serve the interest of the riding public, clearly
not to defraud its creditors, as there is no showing that they
were not put on the run after their repairs, as was the obvious
purpose of their substitution to be placed in running
condition.
(e) In an action against a party who has removed or disposed of
his property, or is about to do so, with intent to defraud his
creditors;
1. What must be shown under this ground?
Actual transfer is not necessary as a mere design to dispose
property and intent to carry it out is sufficient. The removal or
disposal of property must have been made with intent to
defraud the creditors to justify preliminary attachment. Mere
removal is not enough.
2. 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. A bare allegation does not suffice.
1. PEOPLE’S BANK AND TRUST COMPANY VS SYVEL
(G.R. NO. L-29280; AUGUST 11, 1988)

2. ADLAWAN VS TORRES (G.R. NO. 65957-58; JULY 5, 1994)

PEOPLE’S BANK and TRUST COMPANY vs.
SYVEL G.R. No. L-29280 August 11, 1988

How do you prove intent to defraud?

• Held: Intent to defraud may be and usually is inferred from the facts
and circumstances of the case; it can rarely be proved by direct
evidence. It may be gleaned also from the statements and conduct of
the debtor, and in this connection, the principle may be applied that
every person is presumed to intend the natural consequences of his
acts.
• The act of debtor in taking his stock of goods from the rear of his
store at night, is sufficient to support an attachment upon the ground
of the fraudulent concealment of property for the purpose of
delaying and defrauding creditors. The court is impressed "that not
only has the plaintiff acted in perfect good faith but also on facts
sufficient in themselves to convince an ordinary man that the
defendants were obviously trying to spirit away a portion of the
stocks of Syvel's Incorporated in order to render ineffectual at least
partially any judgment that may be rendered in favor of the plaintiff.
ADLAWAN vs. TORRES G.R. Nos. 65957-58 July 5,
1994
WON the execution of mortgage of the debtor in favour of another
person constitutes fraud sufficient for the issuance of a writ?

Held: No. 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.
Things to remember:
1. HEARING IS NECESSARY

- Where the question of fraudulent disposal is put in

issue, the parties must be given the opportunity to
prove their respective claims or, at the very least,
the defendant should be given the chance to show
that he has not been disposing of his property in
fraud of creditors.
(f) In an action against a party who does not reside and is not
found in the Philippines, or on whom summons may be served
by publication

Defendants covered under this section:

1. Non-resident defendants who are not found in the
Philippines, or on whom summons may be served by
publication
2. Resident defendants whose identity or whereabouts are
unknown and cannot be ascertained by diligent inquiry.
3. Resident defendants who are temporarily out of the
Philippines
4. This rule does not include foreign corporations duly
licensed to do business in the Philippines

5. Attachment is intended to confer jurisdiction by the

court over the res. When real property of a non-
resident defendant located in the Philippines is
attached to answer for the claim of plaintiff, the Court
acquires jurisdiction over the res and in that event, the
jurisdiction over the person of the said defendant is not
essential.
1. MIALHE VS DE LENCQUESANG 142 SCRA 694, 20 JULY 1948, G.R.
NO. L-825

2. CLAUDE NEO LIGHTS VS PHILIPPINE ADVERTISING, CORP., 57 PHIL

607, G.R. NO. L-37682, 26 NOVEMBER 1932

3. STATE INVESTMENT HOUSE, INC. VS CITIBANK, N.A 203 SCRA 9,

G.R. NOS. 79926-27, 17 OCTOBER 1991

4. PCIB VS ALEJANDRO G.R. NO. 1755587, 21 SEPTEMBER 2007

• MIAILHE vs. DE LENCQUESAING, 142 SCRA 694 – Non-resident defendant or
on whom summons may be served by publication – This is applicable only
where the plaintiff’s claim is liquidated but not to unliquidated damages.

• CLAUDE NEON LIGHTS vs. PHILIPPINE ADVERTISING CORP., 57 Phil 607 –

The rule does not include foreign corporations duly licensed to do business
in the Philippines but refers only to natural persons.

• STATE INVESTMENT HOUSE, INC. vs. CITIBANK, N.A., 203 SCRA 9 - a foreign
corporation licitly doing business in the Philippines, which is a defendant in
a civil suit, may not be considered a non-resident within the scope of the
legal provision authorizing attachment against a defendant not residing in
the Philippine Islands;" in other words, a preliminary attachment may not
be applied for and granted solely on the asserted fact that the defendant is
a foreign corporation authorized to do business in the Philippines — and is
consequently and necessarily, "a party who resides out of the Philippines."
• NORTHWEST AIRLINE vs. CA, 241 SCRA 192 –

Jurisprudence so holds that the foreign or domestic character of a

corporation is to be determined by the place of its origin, where its
charter was granted and not by the location of its charter was granted
and not by the location of its business activities. A corporation is a
"resident" and an inhabitant of the state in which it is incorporated and
no other.
• Defendant-appellee is a Philippine Corporation duly organized under
the Philippine laws. Clearly, its residence is the Philippines, the place
of its incorporation, and not Japan. While defendant-appellee
maintains branches in Japan, this will not make it a resident of Japan.
A corporation does not become a resident of another by engaging in
business there even though licensed by that state and in terms given
all the rights and privileges of a domestic corporation.

• On this premise, defendant-appellee is a non-resident corporation. As

such, court processes must be served upon it at a place within the
state in which the action is brought and not elsewhere
PCIB vs. ALEJANDRO, September 21, 2007 – In actions in
personam against residents temporarily out of the Philippines, the
court need not always attach the defendant’s property in order to
have authority to try the case. Where the plaintiff seeks to attach the
defendant’s property and to resort to the concomitant service of
summons by publication, the same must be with prior leave, precisely
because, if the sole purpose of the attachment is for the court to
acquire jurisdiction, the latter must determine whether from the
allegations in the complaint, substituted service (to persons of suitable
discretion at the defendant’s residence or to a competent person in
charge of his office or regular place of business) will suffice, or whether
there is a need to attach the property of the defendant and resort to
service of summons by publication in order for the court to acquire
jurisdiction over the case and to comply with the requirements of due
process.
Section 2. Issuance and contents of order. – An order of attachment
may be issued either ex parte or upon motion with notice and hearing
by the court in which the action is pending, or by the Court of Appeals
or the Supreme Court, and must require the sheriff of the court to
attach so much of the property in the Philippines of the party against
whom it is issued, not exempt from execution, as may be sufficient to
satisfy the applicant's demand, unless such party makes deposit or
gives a bond as hereinafter provided in an amount equal to that fixed
in the order, which may be the amount sufficient to satisfy the
applicant's demand or the value of the property to be attached as
stated by the applicant, exclusive of costs. Several writs may be
issued at the same time to the sheriffs of the courts of different
judicial regions.
Sec. 3. Affidavit and bond required. An order of attachment shall
be granted only when it appears by the affidavit of the applicant,
or of some other person who personally knows the facts, that a
sufficient cause of action exists, that the case is one of those
mentioned in section 1 hereof, that there is no other sufficient
security for the claim sought to be enforced by the action, and
that the amount due to the applicant, or the value of the
property the possession of which he is entitled to recover, is as
much as the sum for which the order is granted above all legal
counterclaims. The affidavit, and the bond required by the next
succeeding section, must be duly filed with the court before the
order issues.
“The allegation in the affidavit should be sufficient”

The affidavit must establish that:

• A sufficient cause of action exists;
• The case is one of those mentioned in Section 1, Rule 57;
• There is no sufficient security for the claim sought to be enforced by
the action;
• The amount due to the applicant is as much as the sum for which the
order is granted above all legal counter claims.
Requisites for the issuance of an order preliminary
attachment:
• An order of attachment shall be granted only upon the filing of the
requisite affidavit and bond. These must be duly filed with the court
before the order of attachment is issued.
• The required affidavit need not be executed by the applicant. It may
be executed by some other person who personally knows the facts.
contain.
• Aside from the affidavit executed, the party applying for an order of
preliminary attachment must post a bond in the amount fixed by the
court and executed to the adverse party. This is called an attachment
bond.
• How may the order be issued? 1. Ex parte 2. Upon
motion with notice and hearing

• Which court has jurisdiction to issue the order of

attachment? 1. Municipal courts where the action is
pending 2. RTC where the action is pending 3. CA 4. SC
Contents of the affidavit:
• The affidavit shall contain the following:
• That a sufficient cause of action exists;
• That the case is one of those mentioned in Section 1 of
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 is granted
above all legal counterclaims.
Note:

The Court held that the failure to allege in the affidavit

the requisites prescribed for the issuance of a writ of
preliminary attachment renders the writ of preliminary
attachment issued against the property of the
defendant fatally defective, and the judge issuing it is
deemed to have acted in excess of his jurisdiction.
Three stages of issuance of a writ:

1. the court issues the order granting the application;

2. the writ of attachment issues pursuant to the order
granting the writ;
3. the writ is implemented.
SIEVERT vs. CA G.R. No. 84034 December 22, 1988

May the judge issue a writ of preliminary attachment against defendant

before summons is served?

No. There is no question that a writ of preliminary attachment may be

applied for a plaintiff "at the commencement of the action or at any time
thereafter" in the cases enumerated in Section 1 of Rule 57 of the Revised
Rules of Court. The critical time which must be identified is, rather, when the
trial court acquires authority under law to act coercively against the
defendant or his property in a proceeding in attachment. We believe and so
hold that critical time is the time of the vesting of jurisdiction in the court
over the person of the defendant in the main case.
• Valid service of summons and a copy of the complaint will in such
case vest jurisdiction in the court over the defendant both for
purposes of the main case and for purposes of the ancillary remedy of
attachment. In such case, notice of the main case is at the same time
notice of the auxiliary proceeding in attachment.

• Where, however, the petition for a writ of preliminary attachment is

embodied in a discrete pleading, such petition must be served either
simultaneously with service of summons and a copy of the main
complaint, or after jurisdiction over the defendant has already been
acquired by such service of summons. Notice of the separate
attachment petition is not notice of the main action.
 DAVAO LIGHT vs. CA
G.R. No. 93262 December 29, 1991
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.
Service of all such documents is indispensable for:
1. the acquisition of jurisdiction over the person of the
defendant
2. to apprise the defendant of the ff: a. the complaint against
him; b. the issuance of a writ of preliminary attachment; c.
the grounds therefor;
3. to accord defendant the opportunity to prevent
attachment of his property a. by the posting of a
counterbond in an amount equal to the plaintiff's claim in
the complaint b. dissolving it by causing dismissal of the
complaint itself on any of the grounds set forth in Rule 16
c. demonstrating the insufficiency of the applicant's
affidavit or bond in accordance with Section 13.
 Principle of prior or contemporaneous
jurisdiction
Enforcement of writ of preliminary attachment must be
preceded by or simultaneously accompanied by service of
summons, copy of complaint, application and affidavits for the
attachment and the bond upon the adverse party; BUT the
requirement of prior or contemporaneous service of
summons shall not apply where the summons could not be
served despite diligent efforts, or the defendant is a resident
of the Philippines temporarily absent therefrom, or the
defendant is a non-resident of the Philippines or the action
is in rem or quasi in rem.
Note: A writ of attachment has no lifetime as
distinguished from a writ of execution (Roque vs.
CA, 93 SCRA 540). The new Rules fixes the lifetime
of a writ of execution at five (5) years from the
date of entry of judgment (Section 6, Rule 39).
 Preliminary Attachment Final Attachment
(Rule 57) (Rule 39)

It is an auxiliary remedy to give security for a judgment It is a means for the execution of a final judgment.
still to be rendered.

There is no sale because a decision has not yet been It should always be accompanied by a sale at public
rendered. auction.

Resorted to at the commencement of the action or at Available after the judgment in the main action had
any time before entry of judgment, for the temporary become executory, and for the satisfaction of said
seizure of property of the adverse party. judgment.

The proceeds of the sale are in custodial legis. The proceeds of the sale are turned over to the attaching
creditor.
Sec. 4. Condition of applicant's bond. The party
applying for the order must thereafter give a bond
executed to the adverse party in the amount fixed by
the court in its order granting the issuance of the writ,
conditioned that the latter will pay all the costs which
may be adjudged to the adverse party and all
damages which he may sustain by reason of the
attachment, if the court shall finally adjudged that the
applicant was not entitled there to.
• LA GRANJA VS SAMSON G.R. NO. 40054, SEPTEMBER 14, 1933

• KO GLASS VS VALENZUELA G.R. NO. L-48756, SEPTEMBER 11, 1982

• JARDINE MANILA VS CA G.R. NO. 55272, APRIL 10, 1989

• TING VS VILLARIN G.R. NO. L-61754, AUGUST 17, 1989

• CARLOS VS SANDOVAL G.R. NO. 135830, SEPTEMBER 30, 2005

• LA GRANJA vs. SAMSON G.R. No. 40054 September 14, 1933

Is the mere filing of an affidavit executed in due form sufficient to

compel a judge to issue an order of attachment?

Held: No. The mere filing of an affidavit executed in due form is not
sufficient to compel a judge to issue an order of attachment, but it is
necessary that by such affidavit it be made to appear to the court that
there exists sufficient cause for the issuance thereof, the determination
of such sufficiency being discretionary on the part of the court.
• KO GLASS vs. VALENZUELA G.R. No. L-48756 September 11, 1982
While Pinzon (applicant) may have stated in his affidavit that a
sufficient cause of action exists against the defendant Kenneth O. Glass,
he did not state therein 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 is as much as the sum for which the order granted above all
legal counter-claims."
Effects of failure to allege in the affidavit the requisites prescribed for
the issuance of a writ of preliminary attachment: 1. renders the writ of
preliminary attachment issued against the property of the defendant
fatally defective, 2. the judge issuing it is deemed to have acted in
excess of his jurisdiction.
• GUZMAN vs. CATOLICO G.R. No. L-45720 December 29, 1937
An affidavit is fatally defective where it fails to comply, at least substantially,
with a statutory requirement that is shall state that the indebtedness for
which the action is brought has not been secured by any mortgage or lien
upon real or personal property, or any pledge of personal property, or, if so
secured, that the security has become valueless.
Where the statutes requires the affidavit to show that defendant is indebted
to plaintiff in an amount specified, or that the latter is entitled to recover
such an amount, over and above all legal payments, set-offs, or
counterclaims, compliance with this requirement is essential to confer
jurisdiction to issue the writ.
The law authorizing the issuance of a writ of preliminary attachment should,
therefore, be construed strictly in favor of the defendant. The judge should
require that all the requisites prescribed by law be complied with, without
which a judge acquires no jurisdiction to issue the writ. If he does so in spite
of noncompliance with said requisites, he acts in excess of his jurisdiction
and with the writ so issued by him will be null and void.
• JARDINE MANILA vs. CA G.R. No. 55272 April 10, 1989
The failure to allege in the affidavit the requisites prescribed for the
issuance of the writ of preliminary attachment cannot even be cured by
amendment.
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. Thus, while not unmindful of the fact that the property seized
under the writ and brought into court is what the court finally exercises
jurisdiction over, the court cannot subscribe to the proposition that the
steps pointed out by statutes to obtain such writ are inconsequential,
and in no sense jurisdictional.
• CU UNJIENG vs. GODDARD G.R. No. 38284 September 17, 1933
Where the affidavit for attachment is fatally defective, the attachment must
be held to have been improperly or irregularly issued and must be
discharged, and such fatal defect cannot be cured by amendment. The writ
of attachment in this case should therefore have been discharged.

• TING vs. VILLARIN G.R. No. L-61754 August 17, 1989

It is not enough for the complaint to ritualistically cite, as here, that the
defendants are "guilty of fraud in contracting an obligation." An order of
attachment cannot be issued on a general averment, such as one
ceremoniously quoting from a pertinent rule. The need for a recitation of
factual circumstances that support the application becomes more compelling
here considering that the ground relied upon is "fraud in contracting an
obligation." The complaint utterly failed to even give a hint about what
constituted the fraud and how it was perpetrated. Fraud cannot be
presumed.
• CARLOS vs. SANDOVAL G.R. No. 135830 September 30, 2005
There was no sufficient cause of action to warrant the preliminary attachment,
since applicant had merely alleged general averments in order to support his
prayer.

• SALGADO vs. CA GR No. L-55381 March 26, 1984

Can a creditor still opt to avail of preliminary attachment where the debt is
already secured by a mortgage?

Held: No more. The reason for the rule prohibiting attachment where indebtedness
was already secured is to prevent the secured creditors from attaching additional
property and thus tying up more of the debtor’s property than was necessary to
secure the indebtedness.
Thus, to sustain an order of attachment, it is incumbent upon the plaintiff to
establish either of these two facts: 1. that the obligation had not been secured
originally 2. that if secured at its beginning, the security later became valueless.
Sec. 5. Manner of attaching property. The sheriff enforcing the writ shall
without delay and with all reasonable diligence attach, to await judgment
and execution in the action, only so much of the property in the Philippines
of the party against whom the writ is issued, not exempt from execution,
as may be sufficient to satisfy the applicant's demand, unless the former
makes a deposit with the court from which the writ is issued, or gives a
counterbond executed to the applicant, in an amount equal to the bond
fixed by the court in the order of attachment or to the value of the
property to be attached, exclusive of costs. No levy on attachment
pursuant to the writ issued under section 2 hereof shall be enforced unless
it is preceded, or contemporaneously accompanied, by service of
summons, together with a copy of the complaint, the application for
attachment, the applicant's affidavit and bond, and the order and writ of
attachment, on the defendant within the Philippines.
The requirement of prior or contemporaneous service of summons shall
not apply where the summons could not be served personally or by
substituted service despite diligent efforts, or the defendant is a resident of
the Philippines temporarily absent therefrom, or the defendant is a non-
resident of the Philippines, or the action is one in rem or quasi in rem.
Note: Levy shall not be made unless preceded or contemporaneously
accompanied by: (SCABO)
• Service of summons;
• A Copy of the complaint;
• Application for attachment;
• Affidavit and Bond of the application; and
• Order and writ of attachment.

BUT prior or contemporaneous service of summons shall NOT APPLY when:

• Summons could not be served personally or by substituted service;
• Defendant is a resident of the Philippines temporarily absent therefrom;
• Defendant is a non-resident; and
• The action is one in rem or quasi rem.
1. OÑATE vs. ABROGAR (En Banc), 240 SCRA 659

2. OÑATE vs. ABROGAR (2nd Div), 230 SCRA 181

3. HB ZACHRY vs. CA G.R. No. 106989 May 10, 1994

• ONATE vs. ABROGAR G.R. No. 107303 February 21,
1994
An exception to the established rule on the enforcement
of the writ of attachment can be made where a
previous attempt to serve the summons and the writ of
attachment failed due to factors beyond the control of
either the plaintiff or the process server, provided that
such service is effected within a reasonable period
thereafter.
• OÑATE vs. ABROGAR (En Banc), 240 SCRA 659

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.

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.
Reasons can be given for the exception:

1. There is a possibility that a defendant, having been alerted of

plaintiffs action by the attempted service of summons and the writ
of attachment, would put his properties beyond the reach of the
plaintiff while the latter is trying to serve the summons and the writ
anew. By the time the plaintiff may have caused the service of
summons and the writ, there might not be any property of the
defendant left to attach.

2. The court eventually acquired jurisdiction over the petitioners six

days later.
3. The ease by which a writ of attachment can be obtained is counter-
balanced by the ease by which the same can be discharged: the
defendant can either make a cash deposit or post a counter-bond
equivalent to the value of the property attached.
• HB ZACHRY vs. COURT OF APPEALS, 232 SCRA 329

A distinction should be made between the issuance and

the enforcement of the writ. The trial court has unlimited power to
issue the writ upon the commencement of the action even before it
acquires jurisdiction over the person of the defendant, but
enforcement thereof can only be validly done after it shall have
acquired such jurisdiction.
Things to remember:
PRIOR OR CONTEMPORANEOUS SERVICE
• General Rule: No levy on attachment pursuant to the writ issued under
section 2 hereof shall be enforced unless it is preceded, or
contemporaneously accompanied, by service of summons, together with a
copy of the complaint, the application for attachment, the applicant's
affidavit and bond, and the order and writ of attachment, on the defendant
within the Philippines.

• Exceptions: The requirement of prior or contemporaneous service of

summons shall not apply 1. where the summons could not be served
personally or by substituted service despite diligent efforts; 2. the
defendant is a resident of the Philippines temporarily absent therefrom, 3.
the defendant is a non-resident of the Philippines, 4. the action is one in
rem or quasi in rem. 5. where a previous attempt to serve the summons
and the writ of attachment failed due to factors beyond the control of
either the plaintiff or the process server
Section 6. Sheriff's return. – After enforcing the
writ, the sheriff must likewise without delay
make a return thereon to the court from which
the writ issued, with a full statement of his
proceedings under the writ and a complete
inventory of the property attached, together
with any counter-bond given by the party
against whom attachment is issued, and serve
copies thereof on the applicant.
Duties of the Sheriff (Sections 2 and 6):
1. The sheriff is required to proceed with the reasonable diligence unless the
party against whom the writ is directed makes a deposit with the court from
which the writ is issued, or gives a counterbond.
2. The sheriff enforcing the writ is required to attach the property subject of said
writ to await the judgment in the cause and its execution. He cannot attach
every property of the adverse party only so much of the property located in the
Philippines as may be sufficient to satisfy the applicant’s demand and no more.
This rule is obviously intended to prevent excessive attachment and abuse in
the enforcement of the writ.
3. The sheriff is also precluded from attaching any property exempt from
execution such as those enumerated in Section 13, Rule 39 of the Rules of
Court.
4. After enforcing the writ, the sheriff must, likewise without delay make a return
to the court which issued the writ, with a full statement of his proceedings
under the writ and a complete inventory of the property attached, together
with any counterbond given by the party against whom attachment is issued,
and serve copes thereof on the applicant.
Section 7. Attachment of real and personal property; recording
thereof.

What may be the subject of attachment:

• Real property or any interest therein;
• Personal property capable of manual delivery;
• Stocks or shares or interest therein;
• Debts and credits, including bank deposits, financial interest,
royalties, commissions and other personal property not capable of
manual delivery; or
• Interest of the party against whom attachment is issued in property
belonging to the estate of the decedent, whether as heir, legatee, or
devisee.
* Par. (3) and (4) refer to garnishment. By such notice of garnishment, the court acquires
jurisdiction over the garnishee and the latter becomes a forced intervenor in the case.

Debt means some definite amount of money, ascertained or capable of being ascertained,
which may be paid over to the sheriff or to the court, while credits and personal property
are something belonging to the defendant, but in possession and under the control of the
garnishee.

Property legally attached is property in custodial egis and cannot be interfered with
without the permission of the proper court, but this is confined to cases where the
property belongs to the defendant or one in which the defendant has proprietary interest.

Principle of Seniority of Liens

• Where the property attached by the judgment creditor had previously been mortgaged,
the judgment creditor’s lien is inferior to that of the mortgagee which must first be
satisfied in the event of foreclosure. In reality, what was attached by the judgment
creditor was merely the judgment debtor’s right or equity of redemption (Top Rate
International Services, Inc. vs. IAC, G.R. No. 67496, July 7, 1986).
ATTACHMENT OF REAL PROPERTIES

1. SIARI VALLEY vs. LUCASAN G.R. No. L-13281 August 31, 1960

2. RAVANERA vs. IMPERIAL G.R. No. L-34657 October 23, 1979

3. DU vs. STRONGHOLD G.R. No. 156580.June 14, 2004

4. VALDEVIESO vs. DAMALERIO G.R. No. 133303. February 17, 2005

SIARI VALLEY ESTATES vs. LUCASAN, 109 PHIL. 294

The requirement that the notice of levy should contain a reference to the number
of the certificate of title and the volume and page in the registration book where
the certificate is registered is made in order that the debtor as well as a third
person may be properly informed of the particular land or property that is under
the custody of the court. This can only be accomplished by making a reference to
the certificate of title covering the property. The situation differs if the land is
unregistered in which case it is enough that the notice be registered under Act
3344.

Since the notice of levy made by the sheriff as regards parcel number 1 which is a
registered land contains no reference to the number of its certificate of title and
the volume and page in the registry book where the title is registered, it follows
that said notice is legally ineffective and as such did not have the effect of binding
the property for purposes of execution. Consequently, the sale carried out by virtue
of said levy is also invalid and of no legal effect.
• An attachment levied on real estate not duly recorded in the
registry of property is not an encumbrance on the attached
property, nor can such attachment, unrecorded in the
registry, serve as a ground for decreeing the annulment of
the sale of the property, at the request of another creditor.
• RAVANERA vs. IMPERIAL G.R. No. L-34657 October 23, 1979

Where no notice of the levy was given to the occupant of the land,
there was, therefore, no valid levy on the land, and its registration in
the registry of deeds and annotation in the title were invalid and
ineffective. The fact that the person in whose name the land was
registered was duly notified of the attachment does not cure the
defect, because personal service of the copy of the writ, description of
the property and notice to the owner, who is not the occupant, does
not constitute compliance with the statute.
The evident purpose of the law in imposing these requirements is to
make the levy public and notorious, to prevent liens from attaching
secretly and by surreptitious entries and endorsements, and to enable
the affected party to inquire into the date and circumstances
surrounding the creation of the encumbrance, as well as to give him
ample opportunity to file timely claims to the property levied upon.

Note: A judgment debtor is entitled to notice of levy if he is the

occupant of the land. What is required is that the judgment debtor
must be notified of the auction sale before the actual date of sale.
• OBANA vs. CA G.R. No. 78635 April 27, 1989
Section 7 of Rule 57 requires that in attaching real property a copy of
the order, description, and notice must be served on the occupant, in
this case the occupant at 48 Damortiz Street, Damar Village, Quezon
City. The trial court in the annulment case ruled that the attachment
was void from the beginning. The action in personam which required
personal service was never converted into an action in rem where
service by publication would have been valid.
In an action strictly in personam personal service of summons within
the forum is essential to the acquisition of jurisdiction over the
person of the defendant who does not voluntarily submit himself to
the authority of the court. In other words, summons by publication
cannot — consistently with the due process clause in the Bill of Rights
— confer upon the court jurisdiction over said defendants.

The propriety of service of summons by publication is not dependent

upon the technical characterization of the action as one in rem or
quasi in rem but upon compliance with the requirements for the
situations found in Sections 16, 17, and 18 of Rule 14 of the Rules of
Court. We declared the service of summons by publication as "legally
and constitutionally vitiated." In the present case, however, the action
was one in personam. The service was equally void and of no effect.
• DU vs. STRONGHOLD G.R. No. 156580.June 14, 2004
Which is given more preference -- a duly registered attachment or a
subsequent notice of lis pendens?
Held: The duly registered attachment. The preference given to a duly
registered levy on attachment or execution over a prior unregistered
sale is well-settled in our jurisdiction. An attachment that is duly
annotated on a certificate of title is superior to the right of a prior but
unregistered buyer.
The subsequent sale of the property to the attaching creditor must, of
necessity, retroact to the date of the levy. Otherwise, the preference
created by the levy would be meaningless and illusory.
The doctrine is well-settled that a levy on execution duly registered
takes preference over a prior unregistered sale; and that even if the
prior sale is subsequently registered before the sale in execution but
after the levy was duly made, the validity of the execution sale should
be maintained, because it retroacts to the date of the levy; otherwise,
the preference created by the levy would be meaningless and illusory.

The act of registration shall be the operative act to convey or affect the
land insofar as third persons are concerned, and in all cases under this
Decree, the registration shall be made in the office of the Register of
Deeds for the province or the city where the land lies
VALDEVIESO vs. DAMALERIO G.R. No. 133303. February 17, 2005
• The preference created by the levy on attachment is not diminished
even by the subsequent registration of a sale. This is so because an
attachment is a proceeding in rem. It is against the particular
property, enforceable against the whole world. The attaching creditor
acquires a specific lien on the attached property which nothing can
subsequently destroy except the very dissolution of the attachment
or levy itself. Such a proceeding, in effect, means that the property
attached is an indebted thing and a virtual condemnation of it to pay
the owner's debt. The lien continues until the debt is paid, or sale is
had under execution issued on the judgment, or until the judgment is
satisfied, or the attachment discharged or vacated in some manner
provided by law.
ATTACHMENT OF PERSONAL PROPERTIES
• (b) Personal property capable of manual delivery, by taking and
safely keeping it in his custody, after issuing the corresponding
receipt therefor;

* If the property to be attached is personal property capable of manual

delivery, the sheriff shall take the property and safely keep it in his
custody. He shall issue the corresponding receipt for the property
taken.
1. WALKER vs. McMICKING G.R. No. L-5534 December 23, 1909

2. NBI vs. TULIAO A.M. No. P-96-1184. March 24, 1997

3. VILLANUEVA-FABELLA vs. LEE A.M. No. MTJ-04-1518. January 15, 2004

4. VILLAREAL vs. RARAMA A.M. No. P-94-1108 August 23, 1995

5. BALANTES VS OCAMPO A.M. No. MTJ-93-853 March 14, 1995

6. ELIPE VS FABRE A.M. No. P-94-1068 February 13, 1995

7. ROQUE vs. CA G.R. No. L-42594 October 18, 1979

• WALKER vs. McMICKING G.R. No. L-5534 December 23, 1909

To constitute a valid levy of an attachment, the officer levying it must

take actual possession of the property attached as far as under the
circumstances is practicable. He must put himself in position to, and
must assert and, in fact, enforce a dominion over the property adverse
to and exclusive of the attachment debtor, and such property must be
in substantial presence and possession. Of course, this does not mean
that the attaching officer may not, under an arrangement satisfactory
to himself, put anyone in possession of the property for the purpose of
guarding it, but he can not in this way relieve himself from liability to
the parties interested in said attachment.
• NBI vs. TULIAO A.M. No. P-96-1184. March 24, 1997

Leaving the attached property in the possession of the attaching

creditor makes a farce of the attachment. This is not compliance with
the issuing courts order. When a writ is placed in the hands of a sheriff,
it is his duty, in the absence of any instructions to the contrary, to
proceed with reasonable celerity and promptness to execute it
according to its mandate. He is supposed to execute the order of the
court strictly to the letter. If he fails to comply, he is liable to the person
in whose favor the process or writ runs.
By acceding to the request of Ignacio, respondent sheriff actually
extended an undue favor which prejudiced the complainant as well as
the orderly administration of justice. He exceeded his powers which
were limited to the faithful execution of the courts orders and service
of its processes. His prerogatives did not give him any discretion to
determine who among the parties was entitled to possession of the
attached property.
• VILLANUEVA-FABELLA vs. LEE A.M. No. MTJ-04-1518. January 15, 2004
In enforcing a writ of attachment, a sheriff who takes personal property
capable of manual delivery shall safely keep it in custody after issuing the
corresponding receipt therefor.
The levied property must be in the “substantial presence and possession” of
the levying officer, who “cannot act as special deputy sheriff of any party
litigant.” The officer may put someone “in possession of the property for the
purpose of guarding it,” but the former cannot be “relieve[d] x x x from
liability to the parties interested in said attachment.”
The duty of sheriffs to execute a writ issued by a court is purely ministerial,
not discretionary. Clearly, they must keep the levied property safely in their
custody, not in that of any of the parties. They exercise no discretion in this
regard, for attachment is harsh, extraordinary and summary in nature -- a
“rigorous remedy which exposes the debtor to humiliation and annoyance.”
• SEBASTIAN vs. VALINO A.M. No. P-91-549 July 5, 1993

Under the Revised Rules of Court, the property seized under a writ of
replevin is not to be delivered immediately to the plaintiff. The sheriff
must retain it in his custody for five days and shall return it to the
defendant, If the latter, as in the case, requires its return and files a
counterbond (Sec. 4, Rule 60, Revised Rules of Court). In violation of
said Rule, respondent immediately turned over the seized articles to
PDCP. His claim that the Office of the Regional Sheriff did not have a
place to store the seized items, cannot justify his violation of the Rule.
As aptly noted by the Investigating Judge, the articles could have been
deposited in a bonded warehouse.
• VILLAREAL vs. RARAMA A.M. No. P-94-1108 August 23, 1995
The sheriff, as an officer of the court upon whom the execution of a final
judgment depends, must necessarily be circumspect and proper in his
behavior. Execution is the fruit and end of the suit and is the life of the law.
Thus, when a writ is placed in the hands of a sheriff it is his duty, in the
absence of any instructions to the contrary, to proceed with reasonable
celerity and promptness to execute it according to its mandate. He is to
execute the directives of the court therein strictly in accordance with the
letter thereof and without any deviation therefrom.

Hence, a sheriff has no authority to levy on execution upon the property of

any person other than that of the judgment debtor. If he does so, the writ of
execution affords him no justification, for such act is not in obedience to the
mandate of the writ. As long as the sheriff confines his acts to the authority
of the process, he is not liable, but all of his acts which are not justified by
the writ are without authority of law. This is so because if an execution
against one man would excuse the sheriff for taking the property of another,
every citizen would be at his mercy and none could call his estate his own.
• BALANTES vs. OCAMPO
A.M. No. MTJ-93-853 March 14, 1995

The rule is that when a writ is placed in the hands of a sheriff, it is his
duty, in the absence of instructions, to proceed with reasonable
celerity and promptness to execute it according to its mandate. He
may not apply his discretion as to whether to execute it or not.
• ELIPE vs. FABRE A.M. No. P-94-1068 February 13, 1995

A sheriff, to whom a valid writ or process is delivered to be levied upon

a property within his jurisdiction, is liable to the person in whose favor
the process or writ runs if he fails to make a levy upon property owned
by the judgment debtor within his jurisdiction and by reason thereof
the judgment creditor is injured. It is omission not dependent upon
intentional wrong or negligent omission to seize property of judgment
debtor.

The fact is that he has shown himself to be less than energetic and
zealous in the performance of his duty. His lackadaisical attitude
betrays his inefficiency and incompetence which in accordance with
sec. 46(b)(8) of the Civil Service Law is a ground for disciplinary action.
• ROQUE vs. CA G.R. No. L-42594 October 18, 1979

As a general rule, however, a levy of an attachment upon personal

property may be either actual or constructive. In this case, levy had
been constructively made by the registration of the same with the
Philippine Coast Guard on February 7, 1974. Constructive possession
should be held sufficient where actual possession is not feasible, 18
particularly when it was followed up by the actual seizure of the
property as soon as that could possibly be effected.
(c) Stocks or shares, or an interest in stocks or shares, of any corporation
or company, by leaving with the president or managing agent thereof, a
copy of the writ, and a notice stating that the stock or interest of the
party against whom the attachment is issued is attached in pursuance of
such writ;

The situs of the shares of stock for purposes of attachment is in the jurisdiction
where the corporation is created, whether the certificates evidencing the
ownership of those shares are within or without the jurisdiction.
• Stocks or shares, or an interest in stocks or shares, of any corporation or company
shall be attached by leaving with the president or managing agent therof the
following:
a. Copy of the writ; and
b. Notice stating that the stock or interest of the party against whom the
attachment is issued is attached in pursuance of such writ.
1. SUMMIT TRADING vs. AVENDANO G.R. No. L-60038 March 18,
1985

2. CHEMPHIL vs. CA G.R. No. Nos. 112438-39 December 12, 1995

SUMMIT TRADING vs. AVENDANO G.R. No. L-60038 March 18, 1985

May the copy of the writ be served on the secretary of the president
of the corporation?

Held: Yes. Saquilayan, being the secretary of the president (whose

contact with the outside world is normally through his secretary), may
be regarded as an "agent". The logical assumption is that she delivered
it to her boss, the president of Summit Trading. As already stated, she
received a copy of the decision and Summit Trading became aware of
it.
• CHEMPHIL vs. CA G.R. No. Nos. 112438-39 December 12, 1995

On the validity of service of writ to secretary

A secretary's major function is to assist his or her superior. He/she is in
effect an extension of the latter. Obviously, as such, one of her duties is
to receive letters and notices for and in behalf of her superior, as in the
case at bench. The notice of garnishment was addressed to and was
actually received by Chemphil's president through his secretary who
formally received it for him. Thus, in one case, we ruled that the
secretary of the president may be considered an "agent" of the
corporation and held that service of summons on him is binding on the
corporation.
On the absence of annotation in the corporation’s stock and transfer
books for the attachment of shares of stock, both the Revised Rules of
Court and the Corporation Code do not require annotation in the
corporation's stock and transfer books for the attachment of shares of
stock to be valid and binding on the corporation and third party.

Shares of stock being personal property, may be the subject matter of

pledge and chattel mortgage. Such collateral transfers are however not
covered by the registration requirement of Section 63, since our
Supreme Court has held that such provision applies only to absolute
transfers thus, the registration in the corporate books of pledges and
chattel mortgages of shares cannot have any legal effect.
(d) Attachment of bank deposits and similar
property not capable of manual delivery
(garnishment)
Garnishment is a specie of attachment or execution for reaching any
property pertaining to a judgment debtor which may be found owing to
such debtor by a third person. By this means such debtor stranger
becomes a forced intervenor; and the court, having acquired
jurisdiction over his person by means of the citation, requires him to
pay his debt, not to his former creditor, but to the new creditor, who is
creditor in the main litigation. It is merely a case of involuntary
novation by the substitution of one creditor for another.
1. In attaching debts and credits, including bank deposits, financial
interest, royalties, commissions and other personal property not
capable of manual delivery, the sheriff shall leave with the person
owing such debts, or having in his possession or under his control, such
credits or other personal property, or with his agent, the following:
a. Copy of the writ; and
b. Notice that the debts owing by him to the party against whom
attachment is issued, and the credits and other personal property in
his possession, or under his control, belonging to said party, are
attached in pursuance of such writ.
2. The above shall be left with the person owing such debts or having in
his possession or under his control, such credits or other personal
property, or with his agent.
Do you need to notify the judgment debtor in
garnishment proceedings?

A: Yes. In attaching the debts or credits in favor of the judgment debtor,

not only the latter's debtor, or whoever holds the credit, is to be
notified, but also the judgment debtor himself in order that the sale of
his rights to said debt or credit may be valid.
May the heir’s share in the estate of the deceased
be attached?
GOTAUCO vs. REGISTRY OF DEEDS G.R. No. L-39596 March 23, 1934

(e) The interest of the party whom attachment is issued in property belonging to
the estate of the decedent, whether as heir, legatee, or devisee, by serving the
executor or administrator or other personal representative of the decedent with a
copy of the writ and notice that said interest is attached. A copy of said writ of
attachment and of said notice shall also be filed in the office of the clerk of the
court in which said estate is being settled and served upon the heir, legatee or
devisee concerned. If the property sought to be attached is in custodia legis, a copy
of the writ of attachment shall be filed with the proper court or quasijudicial
agency, and notice of the attachment served upon the custodian of such property.
Sec. 8. Effect of attachment of debts, credits
and all other similar personal property.

Section 8 of Rule 57 establishes the rule that the person having

possession or control of the debts, credits, and similar personal
property belonging to the person against whom the attachment is
issued shall be liable to the applicant is satisfied. This liability or
responsibility shall cease if the property subject of the writ is delivered
or transferred, or the debts or credits are paid to the clerk, sheriff or
other proper officer of the court issuing the attachment.
Nature of proceeding

The garnishment of property to satisfy a writ of

execution operates as an attachment and fastens upon
the property a lien by which the property is brought
under the jurisdiction of the court issuing the writ. It is
brought into custodia legis, under the sole control of
such court.

PNB vs. OLATUNGA G.R. No. L-30982 January 31, 1930

• The general rule is that, where attached properties belonging
to the principal debtor are taken out of the hands of a
person by legal process, after he had been notified of the
order of attachment, said person cannot be made to answer
for the properties in a proceeding to carry out said
attachment.
• When a person has funds in his possession belonging to a
debtor, and said funds are attached by a creditor of the
latter, said person is relieved from all responsibility to said
creditor if he is judicially compelled to deliver said funds to
the aforesaid debtor.
ENGINEERING vs. NPC
G.R. No. L-34589 June 29, 1988
• MERALCO should not have been faulted for its prompt obedience to a
writ of garnishment. Unless there are compelling reasons such as: a
defect on the face of the writ or actual knowledge on the part of the
garnishee of lack of entitlement on the part of the garnisher, it is not
incumbent upon the garnishee to inquire or to judge for itself
whether or not the order for the advance execution of a judgment is
valid.
• MERALCO, as garnishee, after having been judicially compelled to pay
the amount of the judgment represented by funds in its possession
belonging to the judgment debtor or NPC, should be released from all
responsibilities over such amount after delivery thereof to the sheriff.
The reason for the rule is self-evident. To expose garnishees to risks
for obeying court orders and processes would only undermine the
administration of justice.
RCBC vs. CASTRO G.R. No. L-34548 November 29, 1988

ABINUJAR vs. CA G.R. No. 104133 April 18, 1995

BF HOMES vs. CA G.R. No. 76879 October 3, 1990

REPUBLIC vs. SALUDARES G.R. No. 111174. March 9, 2000

• ABINUJAR vs. CA G.R. No. 104133 April 18, 1995

A compromise has upon the parties the effect and authority of res
judicata; but there shall be no execution except in compliance with a
judicial compromise.

The non-fulfillment of the terms and conditions of a compromise

agreement approved by the court justifies execution thereof and the
issuance of the writ for said purpose is the court's ministerial duty
enforceable by mandamus.
• RCBC vs. CASTRO G.R. No. L-34548 November 29, 1988

By virtue of the order of garnishment, the same was placed in custodia

legis and therefore, from that time on, RCBC was holding the funds
subject to the orders of the court a quo. That the sheriff, upon delivery
of the check to him by RCBC encashed it and turned over the proceeds
thereof to the plaintiff was no longer the concern of RCBC as the
responsibility over the garnished funds passed to the court. Thus, no
breach of trust or dereliction of duty can be attributed to RCBC in
delivering its depositor's funds pursuant to a court order which was
merely in the exercise of its power of control over such funds.
• BF HOMES, INC. vs. COURT OF APPEALS, 190 SCRA 262 – It has been held
that the lien obtained by attachment stands upon as high equitable
grounds as a mortgage lien:

• "The lien or security obtained by an attachment even before judgment, is a

fixed and positive security, a specific lien, and, although whether it will ever
be made available to the creditor depends on contingencies, its existence is
in no way contingent, conditioned or inchoate. It is a vested interest, an
actual and substantial security, affording specific security for satisfaction of
the debt put in suit, which constitutes a cloud on the legal title, and is as
specific as if created by virtue of a voluntary act of the debtor and stands
upon as high equitable grounds as a mortgage."

• An attachment lien continues until the debt is paid, or sale is had under
execution issued on the judgment or until judgment is satisfied, or the
attachment discharged or vacated in the same manner provided by law.
• REPUBLIC OF THE PHILIPPINES vs. SALUDARES, 327 SCRA 449

Special adjective tools or devices were provided by the Revolutionary

Government for the recovery of that "ill-gotten wealth." These took the
form of provisional remedies akin to preliminary attachment (Rule 57),
writ of seizure of personalty (Rule 60) and receivership (Rule 59). They
were (a) sequestration and (b) freeze orders, as regards "unearthed
instance of 'ill-gotten wealth'; and (c) provisional takeover, as regards
'business enterprises and properties taken over by the government of
the Marcos Administration or by entities or persons close to former
President Marcos."
• By an order of attachment, a sheriff seizes property of a defendant in a civil
suit so that it may stand as security for the satisfaction of any judgment
that may be obtained, and not disposed of, or dissipated, or lost
intentionally, or otherwise, pending the action. When a writ of attachment
has been levied on real property or any interest therein belonging to the
judgment debtor, the levy creates a lien which nothing can destroy but its
dissolution. This well-settled rule is likewise applicable to a writ of
sequestration.

• Where the disputed properties were already under custodia legis by virtue
of a valid writ of sequestration issued by the PCGG when respondent Judge
Saludares issued the assailed writ of attachment in favor of private
respondent Hung Ming Kuk, said writ of the PCGG could not be interfered
with by the RTC because the PCGG is a coordinate and co-equal body. The
PCGG had acquired by operation of law the right of redemption over the
property until after the final determination of the case or until its
dissolution.
Sec. 9. Effect of attachment of interest in property belonging to
the estate of a decedent. The attachment of the interest of an
heir, legatee, or devisee in the property belonging to the estate
of a decedent shall not impair the power of the executor,
administrator, or other personal representative of the decedent
over such property for the purpose of administration. Such
personal representative, however, shall report the attachment to
the court when any petition for distribution is filed, and in the
order made upon such petition, distribution may be awarded to
such heir, legatee, or devisee, but the property attached shall be
ordered delivered to the sheriff making the levy, subject to the
claim of such heir, legatee, or devisee, or any person claiming
under him.
1. A person may have an interest in the estate of a deceased as an heir,
legatee or devisee. This interest may be attached.

In attaching the interest of the party, against whom attachment

is issued, in property belonging to the estate of the decedent, the
sheriff will serve the executor, administrator or other personal
representative of the decedent the following:
a. Copy of the writ; and
b. Notice that the said interest is attached.

2. A copy of said writ of attachment and notice shall also be filed in the
office of the clerk of court in which said estate is being settled. The
same shall likewise be served upon the heir, legatee or devisee
concerned.
Section 10. Examination of party whose property is attached and persons
indebted to him or controlling his property; delivery of property to sheriff. –
Any person owing debts to the party whose property is attached or having
in his possession or under his control any credit or other personal property
belonging to such party, may be required to attend before the court in
which the action is pending, or before a commissioner appointed by the
court, and be examine on oath respecting the same. The party whose
property is attached may also be required to attend for the purpose of
giving information respecting his property, and may be examined on oath.
The court may, after such examination, order personal property capable of
manual delivery belonging to him, in the possession of the person so
required to attend before the court, to be delivered to the clerk of the
court or sheriff on such terms as may be just, having reference to any lien
thereon or claim against the same, to await the judgment in the action.
Things to remember:
• Section 10 is applicable only in cases where the
indebtedness is admitted by the garnishee, or a personal
property capable of manual delivery belonging to the
defendant is in the possession of the person so required to
attend before the court.
• If the garnishee does not admit the indebtedness, he may be
required to attend before the court in which the action is
pending to be examined on oath respecting the same.
• If he denies the debt or makes a legal or equitable claim to
the property or amount in his hands, the controversy must
be determined by a separate action.
Sec. 11. When attached property may be sold after
levy on attachment and before entry of judgment.
Whenever it shall be made to appear to the court in
which the action is pending, upon hearing with notice
to both parties, that the party attached is perishable,
or that the interests of all the parties to the action will
be will be subserved by the sale thereof, the court
may order such property to be sold at public auction
in such manner as it may direct, and the proceeds of
such sale to be deposited in court to abide the
judgment in the action.
General Rule
Only after entry of judgment may the attached
properties be sold to answer for the judgment in
favor of attaching creditor.
Exception:

Perishable properties may be sold before entry of

judgment and the proceeds deposited. After
entry of judgment, the proceeds may be paid to
the attaching creditor or the defendant if either
shall win.
Section 12. Discharge of attachment upon giving counterbond. – After a writ of
attachment has been enforced, the party whose property has been attached, or the
person appearing on his behalf, may move for the discharge of the attachment wholly or
in part on the security given. The court shall, after due notice and hearing, order the
discharge of the attachment if the movant makes a cash deposit, or files a counter-bond
executed to the attaching party with the clerk of the court where the application is
made, in an amount equal to that fixed by the court in the order of attachment, exclusive
of costs. But if the attachment is sought to be discharged with respect to a particular
property, the counter-bond shall be equal to the value of that property as determined by
the court. In either case, the cash deposit or the counter-bond shall secure the payment
of any judgment that the attaching party may recover in the action. A notice of the
deposit shall forth with be served on the attaching party. Upon the discharge of an
attachment in accordance with the provisions of this section, the property attached, or
the proceeds of any sale thereof, shall be delivered to the party making the deposit or
giving the counter-bond, or to the person appearing on his behalf, the deposit or
counter-bond aforesaid standing in place of the property so released. Should such
counter-bond for any reason to be found to be or become insufficient, and the party
furnishing the same fail to file an additional counter-bond, the attaching party may apply
for a new order of attachment.
2 ways of discharging an attachment:
1. By filing a motion to discharge the attachment and making a
deposit or counter-bond.
- by the posting of a counterbond (Section 12)
2. By filing a motion to set aside or discharge the attachment on
other grounds without need for filing a counter-bond
- by a showing of its improper or irregular issuance (Section 13)

Note: *Filing a counterbond is the most expeditious way of

discharging an attachment.
MANILA REMNANT vs. CA G.R. No. 107282 March 16, 1994

INSULAR SAVINGS vs. CA G.R. NO. 123638

SECURITY PACIFIC vs. INFANTE G.R. No. 144740 August 31, 2005

CALDERON vs. IAC G.R. No. 74696 November 11, 1987

• THE MANILA REMNANT CO. vs. CA, 231 SCRA 281
A garnishment order shall be lifted if it is established that:
1. The party whose accounts have been garnished has posted a
counterbond or has made the requisite cash deposit (Section 12);
2. The order was improperly or irregularly issued (Section 13) as
where there is no ground for garnishment (Section 1) or the
affidavit and/or bond filed therefor are defective or insufficient
(Section 3);
3. The property attached is exempt from execution, hence exempt
from preliminary attachment (Section 2 and 5); or
4. The judgment is rendered against the attaching or garnishing
creditor (Section 19).
• Is partial execution a ground to discharge the attachment on the
property?

Held: No. Partial execution of the judgment is not included in the above
enumeration of the legal grounds for the discharge of a garnishment
order. Neither does the petitioner's willingness to reimburse render the
garnishment order unnecessary.
• INSULAR SAVINGS vs. CA G.R. NO. 123638

The sheriff is required to attach only so much of the property of the

party against whom the order is issued as may be sufficient to satisfy
the applicant's demand, the amount of which is stated in the order,
unless a deposit is made or a counter-bond is given equal to said
amount. However, if the value of the property to be attached is less
than the amount of the demand, the amount of the applicant's bond
may be equal to the value of said property, and the amount of the
adverse party's deposit or counter-bond may be equal to the
applicant's bond. The writ of preliminary attachment is issued upon
approval of the requisite bond.
• SECURITY PACIFIC vs. INFANTE G.R. No. 144740 August 31, 2005

The mere posting of a counterbond does not automatically discharge

the writ of attachment. It is only after hearing and after the judge has
ordered the discharge of the attachment if a cash deposit is made or a
counterbond is executed to the attaching creditor is filed, that the writ
of attachment is properly discharged under Section 12, Rule 57 of the
Rules of Court.
• CALDERON vs. IAC, 155 SCRA 531
While Section 12, Rule 57 of the Rules of Court provides that upon the
filing of a counterbond, the attachment is discharged or dissolved,
nowhere it is provided that the attachment bond is rendered void and
ineffective upon the filing of counterbond.
The responsibility of the surety arises “if the court shall finally adjudge
that the plaintiff was not entitled thereto.” The liability attaches if the
plaintiff is not entitled to the attachment because the requirements
entitling him to the writ are wanting, or if the plaintiff has no right to
the attachment because the facts stated in his affidavit, or some of
them, are untrue. It is, therefore, evident that upon the dismissal of an
attachment wrongfully issued, the surety is liable for damages as a
direct result of said attachment.
Whether the attachment was discharged by either of the two (2) ways
indicated in the law, i.e., by filing a counterbond or by showing that the
order of attachment was improperly or irregularly issued, the liability of
the surety on the attachment 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 in the first place.

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 like in the present
case, would require presentation of evidence in a full-blown trial on the
merits and cannot easily be settled in a pending incident of the case.
RULE ON PARTIAL DISCHARGE
General Rule: After a writ of attachment has been
enforced, the party whose property has been attached, or
the person appearing on his behalf, may move for the
discharge of the attachment wholly or in part on the
security given.

Exception: But if the attachment is sought to be discharged

with respect to a particular property, the counter-bond
shall be equal to the value of that property as determined
by the court.
Dual purpose of counterbond

1. preserving the defendant's property; and,

2. at the same time give the plaintiff security for
any judgment that may be obtained against the
defendant.
Effect of the discharge of the attachment
Upon the discharge of an attachment, the
property attached or the proceeds of any sale
thereof, shall be delivered to the party making the
deposit or giving the counter-bond, or to the
person appearing on his behalf. The deposit or
counterbond shall stand in the place of the
property attached.
Now let us say the attachment has been discharged
through the filing of the counterbond, what
happens to the applicant’s bond filed under Section
5?

It will not affect the applicant’s bond. Still, the liability of the
attachment bond subsists and continues despite the discharge
of the attachment by the filing of the counterbond. The final
reckoning is when the Court shall finally adjudge that the
attaching creditor was not entitled to the issuance of the
attachment writ in the first place.
What happens if the counterbond is found to
be insufficient?

The party who filed the counterbond shall be

required to furnish an additional
counterbond, and if he fails, the attaching
party may apply for a new order of
attachment.
Sec. 13. Discharge of attachment on other grounds. The party whose
property has been ordered attached may file a motion with the court
in which the action is pending, before or after levy or even after the
release of the attached property, for an order to set aside or
discharged the attachment on the ground that the same was
improperly or irregularly issued or enforced, or that the bond is
insufficient. If the attachment is excessive, the discharge shall be
limited to the excess. If the motion be made on affidavits on the part
of the movant but not otherwise, the attaching party may oppose the
motion by counter-affidavits or other evidence in addition to that on
which the attachment was made. After due notice and hearing, the
court shall order the setting aside or the corresponding discharge of
the attachment if it appears that it was improperly or irregularly
issued or enforced, or that the bond is insufficient, or that the
attachment is excessive, and the defect is not cured forthwith.
Grounds for discharge of Preliminary Attachment:
[CI-JEE]
1. Debtor has posted a Counterbond or has made the requisite cash
deposit (Sec. 12);
2. Attachment was improperty or Irregularly issued (Sec. 13) as where
there is no ground for attachment, or affidavit and/or bond filed
therefore are defective or insufficient (Sec. 3);
3. Judgment is rendered against the attaching creditor (Sec. 19);
4. Attachment is Excessive, but the discharge shall be limited to the
excess (Sec. 13); and
5. Property attached is Exempt from execution.
When is the time when the motion to lift
attachment must be filed?
1. before levy
2. after levy
3. even after the release of the attached
property through cash deposit or
counterbond under Section 12.
Sec. 14. Proceedings where property claimed by third person. If the
property attached is claimed by any person other than the party
against whom attachment had been issued or his agent, and such
person makes an affidavit of his title thereto, or right to the
possession thereof, stating the grounds of such right or title, and
serves such affidavit upon the sheriff while the latter has possession
of the attached party, and a copy thereof upon the attaching party,
the sheriff shall not be bound to keep the property under attachment,
unless the attaching party or his agent, on demand of the sheriff, shall
file a bond approved by the court to indemnify the third-party
claimant in a sum not less than the value of the property levied upon.
In case of disagreement as to such value, the same shall be decided
by the court issuing the writ of attachment. No claim for damages for
the taking or keeping of the property may be enforced against the
bond unless the action therefor is filed within one hundred twenty
(120) days from the date of the filing of the bond.
The sheriff shall not be liable for damages for the taking or keeping of
such property, to any such third-party claimant, if such bond shall be
filed. Nothing herein contained such prevent such claimant or any
third person from vindicating his claim to the property, or prevent the
attaching party from claiming damages against a thirdparty claimant
who filed a frivolous or plainly spurious claim, in the same or a
separate action.
When the writ of attachment is issued in favor of the Republic of the
Philippines, or any officer duly representing it, the filing of such bond
shall not be required, and in case the sheriff is sued for damages as a
result of the attachment, he shall be represented by the Solicitor
General, and if held liable therefor, the actual damages adjudged by
the court shall be paid by the National Treasurer out of the funds to
be appropriated for the purpose.
How may the third party-claimant vindicate his
claim or recover damages?

1. Terceria
2. Separate civil action
3. Motion for intervention
4. Motion to discharge attachment
Procedure where third person claims property attached:
1. He makes an affidavit of his title thereto, or right to the possession
thereof.
2. In the affidavit, he states the grounds of such right or title
3. He serves such affidavit upon the sheriff while the latter has
possession of the attached party
4. He serves a copy thereof upon the attaching party
5. He may file a bond approved by the court to indemnify the third-
party claimant in a sum not less than the value of the property
levied upon. In this case, the sheriff shall not be bound to keep the
property under attachment
6. In case of disagreement as to such value, the same shall be decided
by the court issuing the writ of attachment.
When shall terceria be filed?
1. No claim for damages for the taking or keeping of
the property may be enforced against the bond
unless the action therefor is filed within one
hundred twenty (120) days from the date of the
filing of the bond; and,
2. It should be filed while the sheriff has possession of
the attached property.
 TERCERIA

The purpose of the rule is to avoid conflict of

power between different courts of coordinate
jurisdiction and to bring about a harmonious
and smooth functioning of their proceedings
GENERAL RULE:

No court has the power to interfere by injunction with the

judgments or decrees of a concurrent or coordinate
jurisdiction having equal power to grant the injunctive relief
sought by injunction, is applied in cases where no third-party
claimant is involved, in order to prevent one court from
nullifying the judgment or process of another court of the
same rank or category, a power which devolves upon the
proper appellate court .
EXCEPTION:
The power of the court in the execution of judgments extends only
over properties unquestionably belonging to the judgment debtor.
The levy by the sheriff of a property by virtue of a writ of
attachment may be considered as made under the authority of the
court only when the property levied upon belongs to the
defendant. If he attaches properties other than those of the
defendant, he acts beyond the limits of this authority. The court
issuing a writ of execution is supposed to enforce its authority only
over properties of the judgment debtor. Should a third party
appear to claim the property levied upon by the sheriff, the
procedure laid down by the Rules is that such claim should be the
subject of a separate and independent action
Remedy of a third person, not a party to the action
whose property is attached:

1.

He may avail of the remedy called terceria by making the

affidavit of his title thereto or his right to the possession
thereof, stating the grounds of such right or title. The affidavit
must be served upon the sheriff while has possession of the
attached property, and the attaching party.
Upon service of the affidavit upon him, the sheriff
shall not be bound to keep the property under
attachment unless the attaching party files a bond
approved by the court. The sheriff shall not be
liable for damages for the taking or keeping of the
property, is such bond shall be filed.
Things to remember (first remedy)
The bond in Section 14 of Rule 57 is different from the bond in
Section 3 of the same rule. Under Section 14 of Rule 57, the
purpose of the bond is to indemnify the sheriff against any
claim by the intervenor to the property seized or for damages
arising from such seizure, which the sheriff was making and
for which the sheriff was directly responsible to the third
party. Section 3 of Rule 57, on the other hand, refers to the
attachment bond to assure the return of defendant’s personal
property or the payment of damages to the defendant if the
plaintiff’s action to recover possession of the same property
fails.
2.

The third-party claimant may also invoke the

court’s authority in the same case and move for a
summary hearing on his claim.
Upon application of the third person through a
motion to set aside the levy on attachment, the
court shall order a summary hearing for the
purpose of determining whether the sheriff has
acted rightly or wrongly in the performance of his
duties in the execution of the writ of attachment.
Things to remember:
The court may order the sheriff to release the same to
the third person.

In resolving the application, the court cannot pass upon

the question of title to the property with any character
if the finality but only insofar as may be necessary to
decide if the sheriff has acted correctly or not.
3.

The third party may file a motion for leave of court to

intervene.

Provided, no judgment has yet been rendered in the

action. Under the rules, a motion for intervention may
be filed anytime before the rendition of judgment by
the trial court.
It would not be procedurally possible for a third
party claimant to intervene during the execution
stage of the judgment under Rule 39 because, by
then, a judgment has already been rendered.
Intervention is permitted only before the
rendition of judgment by the trial court.
4.

The third-party claimant is not precluded by Section 14

of Rule 57 from vindicating his claim to the property in
the same or separate action. Thus, he may file a
separate action to nullify the levy with damages
resulting from the unlawful levy and seizure. This
action may be totally distinct action from the former
case.
VIP:

The remedies of a third-party claimant are

cumulative and anyone of them may be
resorted to without availing of the other
remedies.
Sec. 15. Satisfaction of judgment out of property attached; return of sheriff. If
judgment be recovered by the attaching party and execution issue thereon, the
sheriff may cause the judgment to be satisfied out of the property attached, if it
be sufficient for that purpose in the following manner:
(a) By paying to the judgment obligee the proceeds of all sales of perishable or
other property sold in pursuance of the order of the court, or so much as shall be
necessary to satisfy the judgment;
(b) If any balance remains due, by selling so much of the property, real or
personal, as may be necessary to satisfy the balance, if enough for that purpose
remain in the sheriff's hands, or in those of the clerk of the court;

(c) By collecting from all persons having in their possession credits belonging to
the judgment obligor, or owing debts to the latter at the time of the attachment
of such credits or debts, the amount of such credits and debts as determine by
the court in the action, and stated in the judgment, and paying the proceeds of
such collection over to the judgment obligee.

The sheriff shall forthwith make a return in writing to the court of his proceedings
under this section and furnish the parties with copies thereof.
How judgment is satisfied?

• Payment of proceeds of sale of perishable property;

• Sale of property if there is a balance;
• Collection of property of garnishee without need of
prior permission to file action, but may be enforced in
same action (Tayabas Land vs. Sharruf, 41 Phil. 382);
• Return must be made within 10 days from receipt of
writ (Bilag-Rivera vs. Lora, July 6, 1995).
Sec. 16. Balance due collected upon an execution; excess
delivered to judgment obligor. After realizing upon all the
property attached, including the proceed of any debts or
credits collected, and applying the proceeds to the
satisfaction of the judgment, less the expenses of
proceedings upon the judgment, any balance shall remain
due, the sheriff must proceed to collect such balance as upon
ordinary execution. Whenever the judgment shall have been
paid, the sheriff, upon reasonable demand, must return to
the judgment obligor the attached property remaining in his
hands, and any proceeds of the sale of the property attached
not applied to the judgment.
Section 17. Recovery upon the counter-bond. – When
the judgment has become executory, the surety or
sureties on any counter-bond given pursuant to the
provisions of this Rule to secure the payment of the
judgment shall become charged on such counter-bond
and bound to pay the judgment obligee upon demand
the amount due under the judgment, which amount
may be recovered from such surety or sureties after
notice and summary hearing in the same action.
Scenarios contemplated under Sec. 16
• If the attached property, including the debts or credits collected, are
not sufficient, the sheriff must proceed to collect such balance as
upon ordinary execution.

• If the attached property is more than sufficient to satisfy the

judgment, upon reasonable demand, sheriff must return to the
judgment obligor the attached property remaining in his hands.
Requisites for recovery upon counterbond:
1. The creditor demands upon the surety for satisfaction of the
judgment;
2. The surety be given notice and a summary hearing in the same
action as to his liability for judgment under the counterbond (Imperial
Assurance vs. de los Angeles, 111 SCRA 25);
2.a. The bondsmen are not liable on the bond when the
obligation assumed is premised upon the issuance of a writ of
attachment by a court which was not actually issued (Vadil vs. de
Venecia, 9 SCRA 374).
2.b. The motion by the surety to quash the writ of execution is
sufficient notice (Dizon vs. Valdez 23 SCRA 200).
 2.c. After demand, the amount may be recovered from the
surety in the same action. There is no need for a separate action.
2.d. The rule of exclusion cannot be invoked by a bondsman of a
counterbond against an attachment writ where there is already a final
and executory judgment sentencing the bondsman as solidarily liable
pro indiviso (Pioneer Insurance vs. Camilon, 116 SCRA 190).
2.e. The bond answers for the judgment even if not expressly
stipulated. The law under which this bond is issued shall be considered
as part of the bond.
Things to remember:
1. Where the writ of execution is returned unsatisfied, the
liability of the counter-bond automatically attaches without
the need for the plaintiff to file a supplemental pleading to
claim payment from the surety (Vanguard Assurance Corp. vs.
CA, G.R. No. L-25291, May 27, 1975)

2. The counterbond answers for any judgment and this

includes judgment pending appeal (Phil. British Assurance vs.
IAC, 150 SCRA 520).
Section 19. Disposition of attached property where judgment is for party
against whom attachment was issued. – If judgment be rendered against
the attaching party, all the proceeds of sales and money collected or
received by the sheriff, under the order of attachment, and all property
attached remaining in any such officer's hands, shall be delivered to the
party against whom attachment was issued, and the order of attachment
discharged.

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

excessive attachment. – An application for damages on account of
improper, irregular or excessive attachment must be filed before the trial
or before the trial or before appeal is perfected or before the judgment
becomes executory, with due notice to the attaching party and his surety
or sureties, setting forth the facts showing his right to damages and the
amount thereof. Such damages may be awarded only after proper hearing
and shall be included in the judgment on the main case.
Things to remember:
If the judgment be rendered against the attaching party
all proceeds of sales and money collected or received
by the sheriff, under the order of attachment, and all
property attached remaining in any such sheriff’s
hands, shall be delivered to the party against whom
attachment was issued, and the order of attachment
discharged.
Sec. 20. Claim for damages on account of improper, irregular
or excessive attachment. An application for damages on
account of improper, irregular or excessive attachment must
be filed before the trial or before the trial or before appeal is
perfected or before the judgment becomes executory, with
due notice to the attaching party and his surety or sureties,
setting forth the facts showing his right to damages and the
amount thereof. Such damages may be awarded only after
proper hearing and shall be included in the judgment on the
main case.
Note:
Procedure for claiming damages outlined in Sec. 20 is EXCLUSIVE.
Hence, such claims for damages cannot be the subject of an
independent action.

Exception:
• Where the principal case was dismissed for lack of jurisdiction by the
trial court without giving an opportunity to the party whose property
was attached to apply for and prove his claim; and
• Where the damages by reason of the attachment was sustained by a
third person who was not a party to the action wherein such writ was
issued.
Any award of damages for the wrongful issuance of a
provisional remedy should be recovered in the SAME
CASE. The recovery of damages cannot be had in a
separate action
When must application for damages be filed?
Before the trial or before appeal is perfected, or before the
judgment becomes executory.

It shall be awarded after hearing and included in the

judgment.

If the judgment of the appellate court be favorable to the

party against whom the attachment was issued, he must claim
damages during the pendency of the appeal.
Requisites to claim for damages upon the bond:
1. There must be an application before the trial court either by motion or
counterclaim with notice to surety who must be given opportunity to
present such defenses as he may have with the principal and to cross-
examine witnesses if he so desires.
2. A judgment for defendant is tantamount to a declaration that plaintiff
has no cause of action and, therefore not entitled to attachment. The
phrase “not entitled thereto” means no cause of action, no fraud, or has
other security (Calderon vs. IAC, 155 SCRA 531).
3. Damages must be awarded before judgment becomes final.
4. Claims for damages against the bond must be filed in the same action
which issued the writ of attachment (Pioneer Insurance vs. Hontanosas,
78 SCRA 447). Otherwise it is barred (Stronghold Insurance vs. CA, Nov. 6
1989).
Exceptions to the rule that claim must be filed in the
same case:
1. Where the principal case was dismissed for lack of jurisdiction and no
claim for damages could have been presented in the said case (Santos vs.
CA, 95 Phil. 360);
2. A separate case for damages resulting from the attachment may be
consolidated if it is still pending. Where the issuing court rules that the
questioned attachment was proper, res judicata bars complaint. A
separate action for damages based on malicious prosecution may
however be filed but this right depends upon the law governing
malicious prosecutions (Aquino vs. Socorro, 35 SCRA 373).
3. Where a writ of attachment was declared illegal, the defendant against
whom it was issued may file his claim for damages in the Court of
Appeals before the latter decides the appeal on the merits. The CA must
hear the motion and not dismiss the appeal for not filing appellant’s brief
whose deferment was requested (Hanil Development Co. vs IAC, 144
SCRA 557).
Watercraft Venture vs Alfred Wolfe
09 September 2015; GR No. 181721
A writ of preliminary attachment is defined as a provisional remedy issued
upon order of the court where an action is pending to be levied upon the
property or properties of the defendant therein, the same to be held
thereafter by the sheriff as security for the satisfaction of whatever
judgment that might be secured in the said action by the attaching creditor
against the defendant. However, it should be resorted to only when
necessary and as a last remedy because it exposes the debtor to humiliation
and annoyance. It must be granted only on concrete and specific grounds
and not merely on general averments quoting the words of the rules. Since
attachment is harsh, extraordinary, and summary in nature, the rules on the
application of a writ of attachment must be strictly construed in favor of the
defendant
For the issuance of an ex-parte issuance of the preliminary attachment to be
valid, an affidavit of merit and an applicant's bond must be filed with the
court in which the action is pending.

In this case, Watercraft's Affidavit of Preliminary Attachment does not

contain specific allegations of other factual circumstances to show that
Wolfe, at the time of contracting the obligation, had a preconceived plan or
intention not to pay. Neither can it be inferred from such affidavit the
particulars of why he was guilty of fraud in the performance of such
obligation. To be specific, Watercraft's following allegation is unsupported by
any particular averment of circumstances that will show why or how such
inference or conclusion was arrived at, to wit: "16. For failing to pay for the
use [of] facilities and services - in the form of boat storage facilities - duly
enjoyed by him and for failing and refusing to fulfill his promise to pay for the
said boat storage fees, the Defendant is clearly guilty of fraud x x x."31 It is
not an allegation of essential facts constituting Watercraft's causes of action,
but a mere conclusion of law.
Furthermore, the other ground upon which the writ of preliminary
attachment was issued by the RTC is not at the same time the
applicant's cause of action. Assuming arguendo that the RTC was
correct in issuing such writ on the ground that Watercraft's complaint
involves an action for the recovery of a specified amount of money or
damages against a party, like Wolfe, who is about to depart from the
Philippines with intent to defraud his creditors, the Court stresses that
the circumstances cited in support thereof are merely allegations in
support of its application for such writ. Such circumstances, however,
are neither the core of Watercraft's complaint for collection of sum of
money and damages, nor one of its three (3) causes of action therein
All told, the CA correctly ruled that Watercraft failed to meet one of the
requisites for the issuance of a writ of preliminary attachment, i.e., that
the case is one of those mentioned in Section 1 of Rule 57, and that the
RTC gravely abused its discretion in improvidently issuing such writ.
Watercraft failed to particularly state in its affidavit of merit the
circumstances constituting intent to defraud creditors on the part of
Wolfe in contracting or in the performance of his purported obligation
to pay boat storage fees, as well as to establish that he is a flight risk.
Indeed, if all the requisites for granting such writ are not present, then
the court which issues it acts in excess of its jurisdiction.
SECURITY BANK VS GREAT WALL
30 January 2017; GR No. 219345
Fraud in the performance of the obligation must be considered.
Whether or not the court of appeals erred in nullifying the Writ of
Preliminary Attachment issued by the Regional Trial Court.

Held:

• Yes, the CA erred in nullifying the Writ of Preliminary Attachment issued by

the Regional Trial Court.

• Under section 1 (d), Rule 57 of the Rules of Court, Preliminary Attachment

section 1. Grounds upon which attachment may issue.- At the
commencement of the action or at any time before entry of judgment, a
plaintiff or any proper party may have the property of the adverse party
attached as security for the satisfaction of any judgment that may be
recovered in the following cases: (d) In an action against a party who has
been guilty of a fraud in contracting the debt or incurring the obligation
upon which the action is brought, or the performance thereof.
• Accordingly, the alleged fraud committed by respondents in the performance of their
obligation should have been considered by the CA. Security Bank detailed in its complaint
that respondents, knowing fully well that they were in default, submitted a Repayment
Proposal.[31] Then, they requested for a meeting with the bank to discuss their proposal.
For unknown reasons, they did not meet the representatives of the Security Bank.

• Respondents even attached to its Motion to Lift Writ of Preliminary Attachment Ad

Cautelam[32] the correspondence they had with Security Bank, which revealed that they
did not meet the representatives of the latter despite providing a specific date to discuss
the proposed repayment scheme. Respondents merely offered lame excuses to justify
their absence in the arranged meeting and, ultimately, they failed to clarify the non-
compliance with their commitments. Such acts bared that respondents were not sincere
in paying their obligation despite their maturity, substantiating the allegations of fraud in
the performance thereof.

• These circumstances of the fraud committed by respondents in the performance of their

obligation undoubtedly support the issuance of a writ of preliminary attachment in favor
of Security Bank.
Excellent Quality Apparel vs Visayan Surety
01 July 2015; GR NO. 212025