1. PROVISIONAL REMEDIES
Prof: ATTY. GERALDINE QUIMOSING-TIU RIZADA, RESCI ANGELLI
Sharing is Good Karma 
Page 1
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PROVISIONAL REMEDIES
RULE 57
Jurisprudential Doctrines
SECTION 1
1. PCIB V. ALEJANDRO
 FACTS: Sum of money case filed by PCIB v.
Alejandro
 PCIB asked for issuance of WPA on the ground
that:
a. Alejandro is a resident of Hongkong (thus
falling under Section 1 (f) where he is a party
and is not found in the Philippines)
b. Alejandro fraudulently withdrew his
unassigned deposits which was supposedly to
be used as security for the loan granted by
PCIB
 RTC issued WPA
 Issue: was there a ground to issue WPA? NO.
 HELD: Alejandro is a resident of the Philippines.
PCIB misrepresented that Alejandro was residing
out of the Philippines and its omission of his local
address was a deliberate move to ensure that the
application for the writ will be granted.
Rationale:
1. PCIB personally transacted with Alejandro
through its Metro Manila residence,
Alejandro’s home address in QC or main
business address at the Romulo Mabanta
Buenaventura Sayoc and delos Angeles in
Makati. PCIB has personal and official
knowledge that Alejandro’s residence for
purposes of service of summons is in the
Philippines. Writ was issued by the RTC
mainly on the representation of PCIB that
Alejandro is not a resident of the Philippines.
RTC’s issuance was for the sole purpose of
acquiring jurisdiction to hear the case. If only
for that, RTC could have served summons by
substituted service on its residence in QC and
office in Makati City instead of attaching
Alejandro’s property.
2. There was no fraud in the withdrawal of
deposits because PCIB approved and allowed
the same.
 RULE: if defendant is a resident who is temporaily
out the Philippines, attachment of property in an
action in personam, is NOT always necessary in
order for the court to acquire jurisdiction over the
case.
SECTION 2—ISSUANCE AND CONTENTS OF ORDER OF
ATTACHMENT
 May be issued ex-parte OR upon motion with notice and
hearing
 Who:
1. By the court in which action is pending
2. By CA or
3. SC
 Order 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
 Property must one not exempt from execution
 Attachment must be as it is sufficient to satisfy the applicant’s
demand
Except: such party makes a deposit or gives a bond in:
1. an amount equal to that fixed in the order—sufficient to
satisfy the applicant’s demand OR
2. equal to the value of the property to be attached as
stated by the applicant exclusive of costs.
 Severalwrits may be issued at the same time, to the sheriffs of
the courts of different judicial regions.
CASES ON THE “ISSUANCE OF THE ORDER OF ATTACHMENT”
1. SIEVERT V. CA
 FACTS: RTC and CA both held that the defendant
may be bound by a writ of preliminary attachment
even before summons together with a copy of the
complaint in the main case has been validly served
upon him
 In this case, Sievert received by mail a Petition for
Issuance of PA; he has not received any summons
and complaint against him in the main civil case
 On the hearing for the petition, his counsel appeared
and objected to the jurisdiction of the court alleging
that since no summons had been served on main
case, no jurisdiction on person of defendant, no
jurisdiction over the case
 RTC and CA justified in this manner:
"Commencement of action. — Action is commenced
by filing of the complaint, even though summons is
not issued until a later date." Thus, a writ of
preliminary attachment may issue upon filing of the
complaint even before issuance of the summons.
 HELD: WPA NOT PROPERLY ISSUED. The
service of a petition for preliminary attachment
without the PRIOR or SIMULTANEOUS service of
summons and a copy of the complaint in main case
does NOT confer jurisdiction upon the issuing court
over the person of the defendant.
Rationale:
1. PRAYER FOR WPA embodied in the main
complaint as one of the forms of relief sought
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

2. PROVISIONAL REMEDIES
Prof: ATTY. GERALDINE QUIMOSING-TIU RIZADA, RESCI ANGELLI
Sharing is Good Karma 
Page 2
ancillary remedy of attachment. In such case,
notice of the main case is at the same time
notice of the auxiliary proceeding in
attachment.
2. 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. Put a
little differently, jurisdiction whether ratione
personae or ratione materiae in an attachment
proceeding is ancillary to jurisdiction ratione
personae or ratione materiae in the main action
against the defendant. If a court has no
jurisdiction over the subject matter or over the
person of the defendant in the principal action,
it simply has no jurisdiction to issue a writ of
preliminary attachment against the defendant
or his property.
2. DAVAO LIGHT V. CA
 ISSUE: at the time order of attachment was
promulgated and the WPA issued, RTC had no
jurisdiction over the person yet, no summons
served. However, summons and WPA was
simultaneously given VALID
 FACTS: Sum of money case filed by DLPC v.
Queensland Hotel and Teodeorico Adarna;
compalitn contained an ex-parte application for
WPA
 RTC: Granted WPA and fixed attachment bond
summons, copy of complaint, WPA, copy of
attachment bond SERVED SIMULTANEOUSLY to
Queensland sheriff seized properties
 MOTION TO DISCHARGE WPA Lack of
jurisdiction because at the time order of
attachment was promulgated and WPA issued,
RTC had no jurisdiction over the person of
defendant yet.
ORDER may 3, 1989
WPA issued May 11, 1989
Summons May 12, 1989
 HELD: WPA VALID
Rationale:
1. Before acquisition of jurisdiction over the
person of defendant, application for
provisional remedies can be done.
2. RULE: after action is properly commenced—
by filing of by the filing of the complaint and
the payment of all requisite docket and other
fees — the plaintiff may apply for and obtain
a writ of preliminary attachment upon
fulfillment of the pertinent requisites laid
down by law, and that he may do so at any
time, either before or after service of
summons on the defendant.
3. PRACTICE SANCTIONED BY COURTS
for the plaintiff or other proper party to
incorporate the application for attachment in
the complaint or other appropriate pleading
(counter-claim, cross-claim, third-party claim)
and for the Trial Court to issue the writ ex-
parte at the commencement of the action if it
finds the application otherwise sufficient in
form and substance.
4. GENERAL RULE: whatever be the acts done
by the Court prior to the acquisition of
jurisdiction over the person of defendant, as
above indicated — issuance of summons,
order of attachment and writ of attachment
(and/or appointments of guardian ad
litem, or grant of authority to the plaintiff to
prosecute the suit as a pauper litigant, or
amendment of the complaint by the plaintiff
as a matter of right without leave of
court 30 — and however valid and proper
they might otherwise be, these do not and
cannot bind and affect the defendant until
and unless jurisdiction over his person is
eventually obtained by the court, either by
service on him of summons or other coercive
process or his voluntary submission to the
court's authority.
3. CURATERO V. CA
 Sum of money case filed by Cuartero V. Spouses
Evangelista with prayer for WPA
 Ground for WPA: fraud in contracting the debt or
incurring the obligation upon which the action is
brought which comprises a ground for attachment.
Cuartero alleges that Spouses Evangelista induced
him to grant loan by issuing postdated checks to
cover the installment payments a separate sset of
postdated checks for payment of the stipulated
interest. (Evangelista countered that: fraud must
have already been intended at the inception of the
contract. According to them, there was no intent
to defraud the petitioner when the postdated
checks were issued inasmuch as the latter was
aware that the same were not yet funded and that
they were issued only for purposes of creating an
evidence to prove a pre-existing obligation)
Note: RTC denied motion to discharge writ on the
ground of irregular issuance because it is at the
same time applicant’s cause of action in the MAIN
case; this cannot be resolved on a mere motion.
Hearing on the matter must be had on the trial
court.
 ORDER issued August 20, 1990
 WPA issued September 19
 Summons + order + WPA September 20 at
Evangelista’s residence
 MOTION TO DISCHARGE WRIT want of
jurisdiction over the person of the Spouses
Evangelista
 HELD: WPA VALID; JURISDICTION OVER
PERSON OF THE DEFENDANT NOT
NECESSARY IN THE ISSUANCE OF THE WRIT
OF PRELIMINARY ATTACHMENT
Rationale:
1. The ONLY requisite for the ISSUANCE of the
writ is the AFFIDAVIT and BOND of the
applicant.
2. SC cited the case of DLPC v. CA
3. It is clear that WPA may issue even before
summons is served upon defendant although
the writ CANNOT BIND and affect him until
jurisdiction over his person is eventually
obtained. Therefore, when sheriff
commences implementation of the WPA,
service of summons should be simultaneously
made.
4. THREE STAGES:
a. Court issues the ORDER granting the
application
b. WPA issued pursuant to the order
granting the writ
c. Writ is Implemented.

3. PROVISIONAL REMEDIES
Prof: ATTY. GERALDINE QUIMOSING-TIU RIZADA, RESCI ANGELLI
Sharing is Good Karma 
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For the initial 2 stages, jurisdiction over
person of defendant NOT necessary but
once implementation commences, court
must have acquired jurisdiction over the
defendant because without such, court
has no power and authority to act in any
manner against defendant.
4. SALAS V. ADIL
 Civil case for annulment of deed of sale and
damages filed by Spouses YU v. spouses Salas
 Ground for WPA Spouses Salas have removed or
disposed of their properties or are about to do so
with intent to defraud their creditors especially the
Yu’s
 RTC: Issued WPA ex-parte against the properties
of Spouses salas upon filing of attachment bond of
P200K
 HELD; WPA NOT VALID. The affidavit in
support of the preliminary attachment was
stated in general terms without specific
allegations of instances to show the reason
by plaintiffs believe that defendants are
disposing of their properties in fraud of
creditors. It was incumbent upon Judge Adil
to give notice to SpousesSalas and to allow
them to present their position and allow
evidence to be received.
Rationale:
1. RULE: PA is a rigorous remedy which
exposes the debtor to humiliation and
annoyance, such it should not be abused as
to cause unnecessary prejudice.
2. DUTY OF THE COURT Ensure that all the
requisites of the law have been complied
with; otherwise judge acts in excess of his
jurisdiction and the WPA so issued shall be
null and void.
3. CLAIM FOR UNLIQUIDATED DAMAGES
Writ of attachment is not available in a suit
for damages where amount claimed is
contingent or unliquidated.
5. LA GRANJA V. SAMSON
 FACTS: Case of recovery of sum of money filed
by La Granja Inc v. Chua Bian, Chua Yu lee and
Chua Ki with prayer for issuance of wPA
 Ground for WPA: complaint was accompanied with
an AFFIDAVIT of the manager of La Granja Inc,
wherein it alleged that said defendants have
disposed or are disposing of their properties in
favor of Asiatic Petroleum Co., with intent to
defraud their creditors.
 RTC judge required La Granja to present
evidence to substantiate his allegation before
granting the petition BUT La Granja refused to
comply
 RTC dimissed petition for an order of
attachment
 La granja filed case for MANDAMUS to compel the
court to issue the WPA
 ISSUE: Will Mandamus lie? NO.
 HELD: mere filing of an affidavit executed in
due form is NOT SUFFICIETN to compel a
judge to issue an order of attachment. 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 is
discretionary on the part of the court.
Rationale:
1. Affidavit filed by la Granja must not have
satisfied Judge Samson in as much as he
desired to convince himself of the truth of
the facts alleged therein by requiring
evidence to substantiate them. The
sufficiency or insufficiency of an affidavit
depends upon the credit given to it by the
judge and its acceptance or rejection, upon
his sound discretion.
2. So when he required presentation of evdice,
he has done nothing more than an exercise
of sound discretion in determining the
sufficiency of the affidavit.
3. PETITION OF MANDAMUS IS DENIED.
SECTION 3—AFFIDAVIT AND BOND REQUIRED
ORDER OF ATTACHMENT granted only
1. When it appears by AFFIDAVIT of applicant OR some other
person who personally knows the facts that:
a. A sufficient cause of actions exists
b. The case is one of those mentioned in Section 1 hereof;
c. That there is no other sufficient security for the claim
sought to be enforced by the action AND
d. 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.
2. The AFFIDAVIT and BOND required by next preceding
section, must be duly filed with the court before the order
issues.
1. KO GLASS CO, INC. V. VALENZUELA
 FACTS: Antonio Pinzon filed a recovery of sum of
money case v. KO Glass.
 Ground for WPA:
1. Defendant is a foreginder
2. That he has sufficient cuase of action against
the said defendant
3. And that there is no sufficient security for his
claim against the defendant in the event a
judgment is rendered in his favor.
 KO GLASS MOTION TO QUASH THE WRIT:
1. Affidavit did nto state that the amount of
plaintiff’s claim was above all legal set offs or
counterclaims, as required by Section 3, rule
57;
2. Did not state that there is no other sufficient
security for the lcaim sought to be recovred
by the action;
3. Affidavit did not specify any of the grounds
enumerated in section 1.
 RTC issued still the WPA
 HELD: ISSUANCE OF WPA NOT VALID.
Affidavit of plaintiff failed to allege the requisites
prescribed for the issuance of a writ of preliminary
attachment, which 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.
Rationale:
1. Requirements for issuance of writ of
preliminary attachment:
Affidavit of the applicant, or some other
person who personally knows the facts,
showing that:

4. PROVISIONAL REMEDIES
Prof: ATTY. GERALDINE QUIMOSING-TIU RIZADA, RESCI ANGELLI
Sharing is Good Karma 
Page 4
a. sufficient cause of action exists
b. the case is one of those mentioned in
Section 1, Rule 57
c. there is no other sufficient security for
the claim sought to be enforced by the
action, and that
d. the amount due 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
garanted above all legal counterclaims.
While Pinzon 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." It has been 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.
2. GUZMANV. CATOLICO
 FACTS: Recovery of sum of money case filed by
Catolico v. Guzman as his fees for services
rendered as the lawyer of Guzman with prayer for
WPA
 Ground for WPA: "That the herein defendant is
trying to sell and dispose of the properties
adjudicated to him, with intention to defraud his
creditors, particularly the herein plaintiff, thereby
rendering illusory the judgment that may be
rendered against him, inasmuch as he has no
other properties outside the same to answer for
the fees the court may fix in favor of the plaintiff,
this case being one of those mentioned by the
Code of Civil Procedure warranting the issuance of
a writ of preliminary attachment”
 MOTION TO CANCEL WRIT: on the ground that it
had been improperly, irregularly and illegally
issued, there being no allegation, either in the
complaint or in the affidavit solemnizing it, that:
1. there is no other sufficient security for the claim
sought to be enforced by the action;
2. that the amount due to the plaintiff, above the
legal set-off and counterclaim, is as much as the
sum of which the preliminary attachment has been
granted, and
3. that the affidavit of the plaintiff is base in mere
information and belief.
 RTC still upheld the validity of the WPA
 HELD: WPA ISSUED IS NO VALID. 2
requisites were omitted in the affidavit.
there is no allegation, either in the
complaint or in affidavit solemnizing it, to
the effect that there is no other sufficient
security for the claim which the plaintiff
seeks to enforce by his action, and that the
amount due him from the defendant, above
all legal set-offs and counterclaims, is as
much as the sum for which the writ of
preliminary attachment has been granted.
Rationale:
1. 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.
2. 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 personalproperty,
or, if so secured, that the security has
become valueless.
3. failure to allege in a complaint or in the
affidavit solemnizing it, or in a separate one,
the requisites for the issuance of a writ of
preliminary attachment that there is no other
sufficient security for the claim sought to be
enforced by the action, and that the amount
due to the plaintiff above all legal set-offs or
counterclaims is as much as the sum for
which the order is sought, renders a writ of
preliminary attachments issued against the
property of a defendant fatally defective, and
the judge issuing it acts in excess of his
jurisdiction.
3. JARDINE MANILA FINANCE INC. V. CA
 FACTS: Sum of money case filed by Jardine v.
Impact
 ground for WPA: XXXXD. Defendant corporation,
Ricardo de Leon and Eduardo de Leon have no
visible other sufficient security for the claim
sought to be enforced by this action of
plaintiff other than their real and personal
properties which are located in Metro Manila and
in the province of Rizal, Province of Nueva Ecija or
elsewhere.
E. Plaintiffs action against defendant corporation is
based upon documents and therefrom a sufficient
cause of action exists.
 MOTION TO SET ASIDE WRIT: contending that:
1. the grounds alleged by the plaintiff in its
application for a writ of attachment are not
among the grounds specified under Section 1
of Rule 57;
2. that the defendants have other sufficient
security;
3. that there was no affidavit of merit to
support the application for attachment as
required by Section 3 of Rule 57 and that
4. the verification of the complaint was
defective as it did not state that the amount
due to the plaintiff above all legal set-ups or
counterclaims is as much as the sum for
which the order is sought.
 RTC issued WPA but CA annulled it; hence,
jardine’s recourse to the SC.
 HELD: WPA ISSUED IS INVALID due to the
absence of the ff. allegations: (1) that there is no
sufficient security for the claim sought to be
enroced by the action and (2) that the amount
due to the applicant or the value of the property
on the basis of which he is entitled to recover, is
as much as the sum for which the order is granted
above all legal counterclaims”
Rationale:
1. Jardine admits not having used the exact
words of the Rules in making the requisite

5. PROVISIONAL REMEDIES
Prof: ATTY. GERALDINE QUIMOSING-TIU RIZADA, RESCI ANGELLI
Sharing is Good Karma 
Page 5
allegations, but nonetheless it alleged that it
presented ultimate and specific facts, first-in
showing that there is indeed no other
sufficient security for the claim sought to be
enforced as shown in paragraph D of the
Complaint earlier quoted; and second-while
it did not specifically state that the sum due
is above all legal counterclaims, such
conclusion of fact is no longer necessary in
the face of actual proof in the answer which
did not carry any counterclaim. In fine,
petitioner stresses that mere forms must not
be given more weight than substance.
In the case at bar, where the records
undeniably reveal that:
(1) the complaint was filed on September 28, 1979;
(2) the writ of preliminary attachment was issued on
October 16, 1979;
(3) the motion to annul preliminary attachment dated
October 19, 1979 was filed on the same day;
(4) the answer of defendant IMPACT dated October
30, 1979 was received by the RTC Pasig only on
November 5, 1979, it is evident that the
questioned writ was issued ex parte; and at a time
when the Court a quo had yet no basis for
concluding that the amount due to petitioner is as
much as the sum for which the order is granted
above all legal counterclaims.
2. The authority to issue an attachment, like the
jurisdiction of the court over such
proceedings rests on express statutory
provisions and unless there is authority in the
statute, there is no power to issue the writ,
and such authority as the statute confers
must be strictly construed. In fact, "(E)ven
where liberal construction is the rule, the
statute or the right to attachment thereby
granted may not be extended by judicial
interpretation beyond the meaning conveyed
by the words of the statute." Petitioner's
application for a writ of preliminary
attachment must therefore be scrutinized and
assessed by the requisites and conditions
specifically prescribed by law for the issuance
of such writ.
Section 3, Rule 57 of the Revised Rules of Court governs the issuance
of a writ of attachment,
3. it has been held that the failure to allege in
the affidavit the requisites prescribed for the
issuance of the 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. In fact, in such cases,
the defect cannot even be cured by
amendment.
4. The general rule is that the affidavit is the
foundation of the writ, and if none be filed or
one be filed which wholly fails to set out
some facts required by law to be stated
therein, there is no jurisdiction and the
proceedings are null and void. 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.
4. TING V. VILLARIN
 Doctrine: an order of attachment cannot be issued
ona general averment, such as one ceremoniously
quoting from a pertinent rule.
 FACTS: Consolidated Bank and Trust Company filed a
complaint for a sum of money with prayer for a writ of
preliminary attachment against Perlon Textile Mills and
its directors.
 Consolidated Bank actually sued on two (2) causes of
action:
1. 1st
 Recovery on several promissory notes
allegedly obtained for the defendant corporation
by its duly authorized officers Lu Cheng Peng,
Teng See, and Roberto Ting who signed the
promissory notes in their personal and official
capacities thereby binding themselves jointly and
severally to Consolidated Bank for the payment of
the promissory notes.
2. 2nd
 dwells on several violations of trust receipt
agreements which Perlon Textile executed in favor
of Consolidated Bank.
 Ground for WPA: "fraud in contracting an
obligation" thus —
16. Defendants are guilty of fraud in contracting
their obligations more specifically illustrated by
their violation of the trust receipt agreement which
is a ground defined under Sec. 1, Rule 57 of the
Rules of Court for the issuance of a writ of
preliminary attachment.
 RTC: issued WPA
 HELD: The complaint did not provide for a
sufficient basis for the issuance of a writ of
preliminary attachment. It is not enough for the
complaint to ritualistic ally 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.6
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.
The respondent judge thus failed in this duty to ensure
that, before issuing the writ of preliminary attachment,
all the requisites of the law have been complied with.
He acted in excess of his jurisdiction and the writ he so
issued is thus null and void.
Spouses Ting privy only to the 1st
cause of action: What
is more, the respondent judge plainly ignored that the
application for preliminary attachment rests on "fraud
in contracting" the trust receipt agreements. The
complaint itself, save for the unwarranted sweeping
reference to "defendants," alleged that only
Consolidated Bank, as principals, and Liu Suy Lin
Angelo Leonar, and Lu Cheng Peng, as guarantors,
were privy to the trust receipt agreements under the
second cause of action. Petitioner Roberto Ting's
involvement is limited only to the promissory notes
under the first cause of action.
two (2) causes of action had been misproperly joined:
Here, the two causes of action arose from different
transactions. There was no "series of transactions" to
speak of. But above all, the complaint can conceivably
affect adversely petitioner Roberto Ting under the first

6. PROVISIONAL REMEDIES
Prof: ATTY. GERALDINE QUIMOSING-TIU RIZADA, RESCI ANGELLI
Sharing is Good Karma 
Page 6
cause of action only but not in the second cause of
action.
5. CU UNJIENG V. GODDARD
 Doctrine:a fatally defective writ of attachment is NOT
amendable
 FACTS: HSBC V. Cu unjieng: it alleged that Cu Unjieng
entered into a fraudulent conspiracy or combination
with one Fernandez, by which the conspirators would
hypothecate and pledge forged securities of various
kinds with the various banking institutions and other
commercial firms of the City of Manila, and pursuant to
said fraudulent conspiracy, secured credit with the
bank, and the plaintiff was defrauded by the
defendants and Fernandez in the sum of
P1,411,312.80. Simultaneously with the filing of the
complaint, plaintiffs asked for a writ of attachment,
which was granted.
 Ground for WPA: The affidavit filed at the time reads:
AFFIDAVIT
B.C.M. Johnston, of legalage and resident of the City of
Manila, being duly sworn, states:
That he is the Manager of the Hongkong and Shanghai
Banking Corporation, the plaintiff in the above-entitled
cause, and that he knows that there exists a cause of
action in favor of said plaintiff and against the
defendants, as appears in the complaint on file in this
case, reference to which is hereby made as an integral
part of this affidavit;
That the complaint is one for the recovery of money on
a cause of action arising from a fraud; and
That, as set out in the complaint, the defendants in
said cause have been guilty of fraud in contracting the
debt in incurring the obligation upon which this action
is brought.
(Sgd.) B.C.M. JOHNSTON
 MOTION TO DISCHARGE: on the ground that it had
been improperly and irregularly issued:
1. Affidavit fails to state that there is no other
sufficient security for the claim sought to be
enforced by the action and that
2. the amount due the plaintiff involves as much as
the sum for which the order of attachment was
granted,
 Shortly after the hearing to discharge the attachment
had begun, plaintiff asked leave to file an amended
affidavit in support of its petition for a writ of
attachment.
 RTC: After oral and written arguments, the respondent
judge entered an order admitting the amended affidavit
of attachment. RTC:upheld validity of the WPA
 HELD: AFFIDAVIT WAS FATALLY DEFECTIVE.
WRIT OF ATTACHMENT INVALID. It is defective
in (a) that there is no allegation, either in the
affidavit or the complaint, that there was no
other sufficient security for the claim sought to
be enforced by the action and (b) that the
amount due to the plaintiff above all legal set-
offs or counterclaims is as much as the sum for
which the order is granted.
Rationale:
1. In Winters vs. Pearson (72 Cal., 553), that court
used the following language: On a motion to
discharge a writ of attachment, on the ground that
it was improperly or irregularly issued, the affidavit
on which the writ was issued is not amendable. If
the writ was improperly or irregularly issued, it
must be discharged.
Reason: To allow the affidavit to be made good by
amendment, and upon such action refused to
discharge the writ, would, in our judgment, violate
the requirements of the section just above cited.
2. It therefore allows that 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.
“affidavit and bond must be duly filed with the court BEFORE
the order issues”
6. CARLOS V. SANDOVAL
 FACTS: carlos is the sole surviving compulsory
heir of his parents. His brother, Teofilo died
intestate and at the time of his death, he
cohabited with Felicidad Sandoval and had Teofilo
II as child. This marriage turned out to be false.
 Case arose because Carlos entered into
agreements regarding properties left by decedent
Teofilo and since he discovered that Teofilo and
Felicidad was never married he filed a complaint
for nullification of these agreements
 Ground for WPA: _________
 ORDER issued September 7, 1995
 WPA issued September 15, 1995 (ONLY AFTER
WPA was issued that Carlos filed a bond of 20M
with SIDDCOR as surety)
 CA dissolved writ: there was no sufficient cause of
action to warrant the WPA; Carlos only alleged
general averments in order to support his prayer
 SC affirmed. WRONGFUL ATTACHMENT
 HELD: Accordingly, they were entitled to damages
under Section 20, Rule 57 of the then Rules of
Civil Procedure, which governed claims for
damages on account of unlawful attachment.
“by the affidavit of the applicant or SOME OTHER PERSON
who personally knows the facts xxx there is no other
sufficient security for the claim sought to be enforced by the
action”
7. SALGADO V. CA
 Doctrine: affidavit was shown to be false.
WPA is invalid.
 FACTS: PCIB filed a case against Spouses Salgado
to recover on a promissory note of 1.5M with
prayer for preliminary attachment
 Ground for WPA:
1. Spouses salgado had fraudulently
misappropriated and/or converted to their
own personal use and benefit the sugar
proceeds given as security for the payment of
the indebtedness;
2. Salgado spouses are guilty of fraud in
contracting their obligation and
3. Have concealed, removed or disposed of the
properties mortgaged or assigned to plaintiff
or are concealing, removing or disposing or
about to do so, with intent to defraud
creditor;
4. That the obligation sought to be enforced is
genuine and therefore, a sufficient cause of
action exists and that

7. PROVISIONAL REMEDIES
Prof: ATTY. GERALDINE QUIMOSING-TIU RIZADA, RESCI ANGELLI
Sharing is Good Karma 
Page 7
5. There no sufficient security for the claim
sought to be enforced by the action.
ATTACHED to complaint was the AFFIDAVIT
of Mrs. Helen osias, senior branch credit
division manager of PCIB where she stated
that, “THERE IS NO SUFFICEN SECURITY
FOR THE CLAIM SOUGHT TO BE ENFROCED
BY THE ACTION”
 RTC issued WPA upon filing of the bond
 MOTION TO QUASH WRIT: on the ground that
respondent Bank made fraudulent
misrepresentation in securing the writ by deleting
the words “R E M” or “Real Estate Mortgage” from
the xerox copy of the promissory note attached to
the complaint, thereby “making it appear that the
note was unsecured when in truth and in fact it
was fully secured by a series of valid and existing
real estate mortgages duly registered and
annotated in the titles of the affected real
properties in favor of the plaintiff Bank.” In the
same motion, Spouses salgado stressed the lack
of factual basis of the Bank’s claim as to their
alleged fraudulent misappropriation or conversion
of the sugar proceeds given as security for their
obligation.
 HELD: the allegation in the affidavit of the
Bank’s Credit Division Manager, Mrs. Helen
Osias, to the effect that “there is no sufficient
security for the claim sought to be enforced by
this action” has been shown to be false. It is
undisputed that the note sued upon “is fully
secured by a series of valid and existing real
estate mortgages duly registered and annotated in
the titles of the affected real property in favor of
the plaintiff Bank.”
NOTE:
1. The CHIEF PURPOSE of the remedy of
attachment is:
a. to secure a contingent lien on
defendant’s property until plaintiff can,
by appropriate proceedings, obtain a
judgment and have such property
applied to its satisfaction, OR
b. to make some provision for unsecured
debts in cases where the means of
satisfaction thereof are liable to be
removed beyond the jurisdiction, or
improperly disposed of or concealed, or
otherwise placed beyond the reach of
creditors.
2. The grounds upon which attachment may
issue are set forth in Section 1, Rule 57 of
the Rules of Court. But quite apart from the
grounds stated therein, it is further provided
in Section 3 of Rule 57 that “an order of
attachment shall be granted only when it is
made to appear by the affidavit of the
applicant or some other person who
personally knows the facts, that x x x there is
no other sufficient security for the claim
sought to be enforced by the action.”
3. The REASON FOR THE RULE prohibiting
attachment where indebtedness was already
secured i 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.
4. Thus, to sustain an order of attachment, “it is
incumbent upon plaintiff to establish either of
these two facts, to wit: (a) that the obligation
had not been secured originally, or (b) that,
if secured at its beginning, the security later
became valueless.”
“affidavit must show that case is one of those mentioned
under section 1”
8. PCIB V. ALEJANDRO
 Check prior case and summary
 It isn’t among the cases in section 1 because there
was NO FRAUD in contracting the obligation nor
were defendants non-residents of the Philippines
SECTION 4—CONDITION OF APPLICANT’S BOND
Who: Party applying for the ORDER must thereafter:
1. Give a bond executed to the adverse party in the amount
fixed by the court in its order granting issuance of the writ,
2. BOND conditioned that:
a. the applicant will pay all the costs which may be
adjudged to the adverse party AND
b. all damages which he may sustain by reason of the
attachment
when: if the court shall finally adjudge that the applicant was not
entitled thereto.
1. ARELLANO V. FLOJO
 FACTS: Arellano filed an administrative case
against Judge flojo,et.al. for issuing a writ of
attachment despite the failure of the applicant
thereof to post the required bond of 100K as
required by section 4
 HELD: NO COMPLIANCE WITH SECTION 4.
JUDGE ISSUED THE WPA although plaintiffs have
not yet posted the required attachment bond.
What was filed was merely an UNDERTAKING. It
was only a promissory note in the form of an
affidavit executed by the bondsman victor, Andres
and Mariano, further denominated as an
attachment bond this is NOT the attachment
bond required by law.
Failure to give such bond is FATAL and
attachment issued on the truck of Arellano
without the necessary bond is INVALID.
2. CALDERON V. IAC
 DOCTRINE: The liability of the surety on the
bond subsists because the final reckoning is when the
Court shall finally adjudge that the attaching creditor
was not entitled to the issuance of the attachment
writ,"
 Nature of the case: LBC is filing a case for damages
against Calderon for malicious filing of a writ of
preliminary attachment. To guarantee that, LBC filed a
counterbond. Upon such filing, is the “attachment
bond” of Calderon automatically dismissed from
liability? On the ground that by filing a counterbond, it
had waived any defect in the issuance of the writ? NO.
attachment bond still liable.
FACTS:
 Calderon bought from Schulze the following: LBC and 5
affiliate companies. Now, Bureau of Customs suspended the
operations of LBC for failure to pay the amount of
P1,475,840.00 representing customs taxes and duties
incurred prior to the execution of the sale. In order to lift the
suspension Calderon paid the sum of P606,430.00 to the
Bureau of Customs.

8. PROVISIONAL REMEDIES
Prof: ATTY. GERALDINE QUIMOSING-TIU RIZADA, RESCI ANGELLI
Sharing is Good Karma 
Page 8
 GROUND FOR WPA: Calderon filed a complaint against
Schulze to recover said amount of P1,475,840.00, with
damages by reason of breach of warranty. In the same
complaint, the petitioner prayed for a preliminary
attachment, alleging: that private respondents had
deliberately and wilfully concealed from his knowledge such
staggering liability of the LBC for the purpose of misleading
him into buying the six aforesaid companies; and that
private respondent Schulze is about to depart from the
Philippines in order to defraud his creditors.
 ATTACHMENT BOND: To support the petition for preliminary
attachment, the petitioner posted a surety bond of
P1,475,840.00.
 RTC: issued a writ of preliminary attachment, whereupon
properties of the private respondents were attached and
their bank deposits were garnished.
 CALDERON: filed an amended complaint, alleging that while
the liabilities of LBC are reflected in its books, the aforesaid
amount was fraudulently withdrawn and misappropriated by
private respondent Schulze.
 SCHULZE:
1. the amount of P1,475,840.00 due to the Bureau of
Customs represents the duties and taxes payable out of
the advanced payments made by LBC's client,
Philippine Refining Company after Calderon himself had
taken control of the management of LBC;
2. That these deposit payments were properly recorded in
the books of the corporation and existing as part of the
corporate funds;
3. that Schulze fully disclose and explained to Calderon
that these customer's advanced deposit payments
(including those of the PRC) are to be paid to the
Bureau of Customs when their corresponding customs
taxes and duties become due;
4. that during this phase of the negotiation, Calderon and
his representatives inspected and studied the corporate
books and records at will and learned the daily
operations and management of LBC;
5. that the petitioner did not pay out of his own pocket
but out of the LBC funds the said amount of
P606,430,30 demanded by the Bureau of Customs, as
evidenced by a manager's check No. FEBTC 25092 and
another facility negotiated with the Insular Bank of Asia
and America; and
6. that private respondents are setting up a counterclaim
for actual, moral and exemplary damages as well as
attorney's fees, as a consequence of the filing of the
baseless suit and the wrongful and malicious
attachment of their properties
 COUNTERBOND OF SHULZE
 RTC: WPA discharged
 RTC: dismissed Calderon’s complaint and held him and his
surety liable to pay damages
 CA: affirmed RTC; amount of damages reduced
ISSUE: WON there was a ground for attachment. NONE
RATIONALE: Whether or not the amount of P1,475,840.00 was duly
disclosed as an outstanding liability of LBC or was misappropriated by
private respondent Schulze is purely a factualissue. That Calderon was
clearly in bad faith when he asked for the attachment is indicated by
the fact that he failed to appear in court to support his charge of
misappropriation by Schulze, and in effect, preventing his being cross-
examined, no document on the charges was presented by him.
SCHULZE: they took it upon themselves to prove that they did not
conceal or withhold form Calderon’s knowledge the deposits made by
PRC with LBC and they did nto withdrew and misappropriate the same:
1. Financial statement of LBC disclosed that liabilities of LBC as
4.5M under the heading “Customers Deposit” which includes
PRC’s 1.4M
2. All these financial statements were turned over, examined
by Calderon and his staffs
3. No proof of tampering
Attachment was maliciously sued out.
LIABLITY FOR DAMAGES: While as a general rule, the liability on the
attachment bond is limited to actual damages, moral and exemplary
damages may be recovered where the attachment was alleged to be
maliciously sued out and established to be so.
ISSUE: WON surety is liable for damages on its contracted suretyship
notwithstanding the dissolution of the writ of preliminary attachment,
as a consequence of the filing of the defendant's counter- bond,
whereby levied properties were ordered by the court returned to
private respondents and the notices of garnishment issued in
connection therewith ordered lifted. YES
CONTENTION OF SURETY: It contends that the dissolution of the
attachment extinguishes its obligation under the bond, for the basis of
its liability, which is wrongful attachment, no longer exists, the
attachment bond having been rendered void and ineffective, by virtue
of Section 12, Rule 57 of the Rules of Court
HELD: 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 is it provided that the attachment bond is rendered
void and ineffective upon the filing of counterbond.
The liability of the attachment bond is defined in Section 4, Rule 57 of
the Rules of Court, as follows:
Sec. 4. Condition of applicant's bond. The party
applying for the order must give a bond executed
to the adverse party in an amount to be fixed by
the judge, not exceeding the applicant's claim,
conditioned that the latter will pay all the costs
which may be adjudged to the adverse party and
all damages which he may sustain by reason of
the attachment, if the court shall finally adjudge
that the applicant was not entitled thereto.
It is clear from the above provision that the responsibility of
the surety arises "if the court shall finally adjudge that the
plaintiff was not entitled thereto."
In Rocco vs. Meads, 96 Phil. Reports 884, we held that 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.
ISSUE: WON the subsequent filing by private respondents of a
counter-bond to discharge the writ of preliminary attachment
constitute a waiver on any defect in the issuance of the attachment
writ. NO
HELD: Equally untenable is the Surety's contention that by filing a
counterbond, private respondents waived any defect or flaw in the
issuance of the attachment writ, for they could have sought, without
need of filing any counterbond, the discharge of the attachment if the
same was improperly or irregularly issued, as provided in Section 13,
Rule 57 of the Rules of Court.
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.

9. PROVISIONAL REMEDIES
Prof: ATTY. GERALDINE QUIMOSING-TIU RIZADA, RESCI ANGELLI
Sharing is Good Karma 
Page 9
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.
SECTION 5—MANNER OF ATTACHIGNPROPERTY
The sheriff enforcing the writ shall, without delay and with all
reasonable diligence:
1. 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
2. Attach Property NOT EXEMPT from execution
3. Attach only as may be sufficient to satisfy the applicant
demand, unless the former makes a deposit with the court
from which the writ was issued OR gives a counterbond
executed to the applicant
4. Attachment must be 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.
(principle of prior or contemporaneous service of summons)
NO LEVY ON ATTACHMENT pursuant to the writ issued under section 2
hereof shall be enforced, unless:
1. It is preceded OR contemporaneously accompanied by:
a. Service of summons
b. Copy of complaint
c. Application for attachment
d. Applicant’s affidavit and bond AND
e. The order and writ of attachment
Whom: on the defendant WITHIN the Philippines.
The requirement of prior or contemporaneous service of summons
shall NOT APPLY where:
1. Summons could not be served personally or by substituted
service despite diligent efforts OR
2. Defendant is a resident of the Philippines temporarily absent
there from OR
3. Defendant is a non-resident of the Philippines OR
4. Action is one in rem or quasi in rem.
Principle: Properties which cannot be attached are:
1. those statutorily exempt from attachment
2. title is not in the name of the defendant, unless it is
shown that he has beneficial interest in property.
G.R. No. L-39596 March 23, 1934
"CONSULTA" No. 1013 OF THE REGISTER OF DEEDS OF
TAYABAS. GOTAUCO & CO., applicant-appellant,
vs. THE REGISTER OF DEEDS OF TAYABAS, oppositor-appellee
Doctrine: Register of deeds denied to accept the property of a
judgment debtor, which is his share as heir in the decedent’s estate,
on the ground that the same land was not in the debtor’s name but
that of the decedent. Was this proper? NO. register should have
accepted and inscribed it upon levy on execution in order not to
deprive the judgment creditor fo the benefit of lawful execution.
FACTS:
 Exhibits A and B were presented to the register, by which a
levy of execution against the judgment debtor, Rafael Vilar
was made on fifteen contracts of land described in Exhibit B
and registered in the name of Florentino Vilar, the register
properly denied the inscription of said levy of execution
because the title to the lands was in the name of Florentino
Vilar and no evidence was submitted that Rafael Vilar had
any present or possible future interest in the land.
 Register of Deeds was then presented to a copy of a petition
filed in the Court of First Instance of the province, entitled,
"Intestado del Finado Florentino Vilar", from which he could
properly infer that Florentino Vilar was dead and that the
judgment debtor Rafael Vilar is one of the heirs of the
deceased Florentino Vilar.
 Although the value of the participation of Rafael Vilar in the
estate of Florentino Vilar was indeterminable before the final
liquidation of the estate, nevertheless, the right of
participation in the estate and the lands thereof may be
attached and sold. The real test: Does the judgment debtor
hold such a beneficial interest in the property that he can
sell or otherwise dispose of it for value?
HELD: Nothing appears in this record to indicate that Rafael Vilar
being sui juris could not dispose of his interest or share as heir in the
estate of Florentina Vilar. Having this right, he could by a conveyance
defeat pro tanto the provisions of section 450 of the Code of Civil
Procedure and thus deprive the judgment creditor of the benefit of a
lawful execution.
with the knowledge which he them had, the register should have
accepted and inscribed Exhibit A, B and D.
------o0o--------
Principle: Jurisdiction over Person at time of implementation
of the writ.
2nd
division of the SC held that an EXCEPTION to the established rule
on the enforcement fo the writ can be made where a previous
attempt to serve the summons and the Writ of attachment failed d/t
factors beyond the control of either plaintiff or the process server,
provided that such service is effected within a reasonable period
thereafter.
G.R. No. 107303 February 21, 1994
EMMANUEL C. OÑATE v. ABRUGAR
2ND
DIVISION OF SC DECISION
Nature of the case:Money in the banks were garnished even before
the WPA and summons were received by the defendant. Reason why
WPA was given effect: sheriff failed to give the summons to the
defendant because there was no person of sufficient age and
discretion there. Summons and WPA were given 6 days later but
before that, money had already been garnished. Proper? YES.
Although the levy on attachment of properties had been made before
the trial court acquired jurisdiction over them, the subsequent service
of summons on them cured the invalidity of the attachment.
FACTS:
 Sun Life filed a complaint for a sum of money with a prayer
for the immediate issuance of a writ of attachment against
Onate and Noel L. Diño
 RTC: issued WPA  GROUND: fraud in contracting their
obligations Onate and dino offered to sell to Sun Life
46.9M worth of treasury bills at the discounted price of
39.5M. Sun life paid the price by means of check but Onate
and Dino delivered instead a promissory note in which it was
made to appear that transaction was a money placement
instead of sale of treasury bills. Sun life alleged this 39.5M
was withdrawn from Urban Bank to BPI to the uunnamed
account in BPI and PNB.
 January 3: RTC amended WPA: upon Sun Life's ex-
parte motion, the trial court amended the writ of attachment
to reflect the alleged amount of the indebtedness. That
same day, Deputy Sheriff Arturo C. Flores, accompanied by a
representative of Sun Life, attempted to serve summons and
a copy of the amended writ of attachment upon petitioners

10. PROVISIONAL REMEDIES
Prof: ATTY. GERALDINE QUIMOSING-TIU RIZADA, RESCI ANGELLI
Sharing is Good Karma 
Page 10
at their known office address at 108 Aguirre St., Makati but
was not able to do so since there was no responsible officer
to receive the same. 1
 Nonetheless,Sheriff Flores proceeded, over a period
of several days,to serve notices of garnishment upon
several commercial banks and financial institutions,
and levied on attachment a condominium unit and a
real property belonging to petitioner Oñate.
 January 9: Summons was eventually served
 Onate and Dino: filed an "Urgent Motion to
Discharge/Dissolve Writ of Attachment."
 Sun Life: filed several motions to examine books of
accounts and ledgers of both defendants which were
granted by the RTC judge
 RTC: Judge issued an order (1) denying petitioners' and the
co-defendants' motion to discharge the amended writ of
attachment, (2) approving Sun Life's additional attachment,
(3) granting Sun Life's motion to examine the BPI account,
and (4) denying petitioners' motion to nullify the
proceedings of January 23, 1992.
 CONTENTION OF ONATE: Judge Abrogar had acted with
grave abuse of discretion amounting to lack or in excess of
jurisdiction in:
(1) issuing ex parte the original and amended writs of
preliminary attachment and the corresponding notices of
garnishment and levy on attachment since the trial court had
not yet acquired jurisdiction over them; and
(2) allowing the examination of the bank records though no
notice was given to them.
ISSUE: WON WPA and notices of garnishment and levy on attachment
be given effect even if court had not yet acquired jurisdiction over the
person of defendants? YES. (it is one of the exceptions; since it wasn’t
the sheriff’s fault why summons was not contemporaneously served
with the WPA)
HELD: We find both petitions unmeritorious.
Petitioners initially argue that respondent Judge erred in granting Sun
Life's prayer for a writ of preliminary attachment on the ground that
the trial court had not acquired jurisdiction over them. This argument
is clearly unavailing since it is well-settled that a writ of preliminary
attachment may be validly applied for and granted even before the
defendant is summoned or is heard from. 2
The rationale behind this
rule was stated by the Court in this wise:
A preliminary attachment may be defined,
paraphrasing the Rules of Court, as the provisional
remedy in virtue of which a plaintiff or other
proper party may, at the commencement of the
action or any time thereafter, have the propertyof
the adverse party taken into the custody of the
court as security for the satisfaction of any
judgment that may be recovered. It is a remedy
which is purely statutory in respect of which the
law requires a strict construction of the provisions
granting it. Withal no principle, statutory or
jurisprudential, prohibits its issuance by any court
before acquisition of jurisdiction over the person
of the defendant.
Rule 57 in fact speaks of the grant of the remedy
"at the commencement of the action or at any
time thereafter." The phrase "at the
commencement of the action," obviously refers to
the date of the filing of the complaint — which, as
above pointed out, its the date that marks "the
commencement of the action;" and the reference
plainly is to a time before summons is served on
the defendant or even before summons issues.
What the rule is saying quite clearly is that after
an action is properly
commenced — by the filing of the complaint and
the payment of all requisite docket and other fees
— the plaintiff may apply for and obtain a writ of
preliminary attachment upon fulfilment of the
pertinent requisites laid down by law, and that he
may do so at any time, either before or after
service of summons on the defendant. And this
indeed, has been the immemorial practice
sanctioned by the courts: for the plaintiff or other
proper party to incorporate the application for
attachment in the complaint or other appropriate
pleading (counterclaim, cross-claim, third-party
claim) and for the Trial Court to issue the writ ex-
parte at the commencement of the action if it
finds the application otherwise sufficient in form
and substance. 3
ISSUE: Petitioners then contended that the writ should have been
discharged since the ground on which it was issued — fraud in
contracting the obligation — was not present.
HELD: This cannot be considered a ground for lifting the writ since
this delves into the very complaint of the Sun Life. As this Court stated
in Cuatro v. Court of Appeals: 4
Moreover, an attachment may not be dissolved by
a showing of its irregular or improper issuance if it
is upon a ground which is at the same time the
applicant's cause of action in the main case since
an anomalous situation would result if the issues
of the main case would be ventilated and resolved
in a mere hearing of the motion
ISSUE: Finally, petitioners argue that the enforcement of the
writ was invalid since it undisputedly preceded the actual
service of summons by six days at most. Petitioners cite the
decisions in Sievert vs. Court of Appeals, et al. 6
and BAC
Manufacturing and Sales Corp. vs. Court of Appeals, et al., 7
wherein
this Court held that enforcement of the writ of attachment cannot bind
the defendant in view of the failure of the trial court to acquire
jurisdiction over the defendant through either summons or his
voluntary appearance.
HELD: We do not agree entirely with petitioners. True, this Court had
held in a recent decision that the enforcement of writ of attachment
may not validly be effected until and unless proceeded or
contemporaneously accompanied by service of summons. 8
But we must distinguish the case at bar from the Sievert and BAC
Manufacturing cases. In those two cases,summons was never served
upon the defendants. The plaintiffs therein did not even attempt to
cause service of summons upon the defendants, right up to the time
the cases went up to this Court.
This is not true in the case at bar. The records reveal that Sheriff
Flores and Sun Life did attempt a contemporaneous service of both
summons and the writ of attachment on January 3, 1992, but we
stymied by the absence of a responsible officer in petitioners' offices.
Note is taken of the fact that petitioners Oñate and Econ Holdings
admitted in their answer 9
that the offices of both Brunner
Development Corporation and Econ Holdings were located at the same
address and that petitioner Oñate is the President of Econ Holdings
while petitioner Diño is the President of Brunner Development
Corporation as well as a stockholder and director of Econ Holdings.
Thus,an exception to the establishedrule 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.
REASONS:
1. First, there is a possibility that a defendant, having been
alerted of plaintiffs action by the attempted service of

11. PROVISIONAL REMEDIES
Prof: ATTY. GERALDINE QUIMOSING-TIU RIZADA, RESCI ANGELLI
Sharing is Good Karma 
Page 11
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. Second, the court eventually acquired jurisdiction over the
petitioners six days later. To nullify the notices of
garnishment issued prior thereto would again open the
possibility that petitioners would transfer the garnished
monies while Sun Life applied for new notices of
garnishment.
3. Third, 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. 10
The petitioners herein tried to have the
writ of attachment discharged by posting a counter-bond,
the same was denied by respondent Judge on the ground
that the amount of the counter-bond was less than that of
Sun Life's bond.
ISSUE: Petitioners' second ground assail the acts of respondent Judge
in allowing the examination of Urban Banks' records and in ordering
that the examination of the bank records of BPI and PNB as invalid
since no notice of said examinations were ever given them. Sun Life
grounded its requests for the examination of the bank accounts on
Section 10, Rule 57 of the Rules of Court
HELD: It is clear from the foregoing provision that notice need only
be given to the garnishee, but the person who is holding property or
credits belonging to the defendant. The provision does not require that
notice be furnished the defendant himself, except when there is a
need to examine said defendant "for the purpose of giving information
respecting his property.
Furthermore, Section 10 Rule 57 is not incompatible with Republic Act
No. 1405, as amended, "An Act Prohibiting Disclosure or Inquiry Into,
Deposits With Any Banking Institution and Providing Penalty
Therefore," for Section 2 therefore provides an exception "in cases
where the money deposited or invested is the subject matter of the
litigation."
The examination of the bank records is not a fishing expedition, but
rather a method by which Sun Life could trace the proceeds of the
check it paid to petitioners.
Principle: Court en back ruled that the attachment of the property
before the service of summons on the defendant is INVALID even
though the court later acquires jurisdiction over the defendant. 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 were attached by the sherriff before he
had served summons on them, the levies must be considered VOID.
The decision of Feb. 21, 1994 was therefore reconsidered and set
aside.
Present rule:
1. requirement of prior or contemporaneous service of
summons shall Not apply:
a. where the summons could not be served personally or
by substituted service despite diligent efforts, or
b. the defendant is a resident of the Philippines
temporarily absent therefrom; or
c. the defendant is a non-resident of the Philippines or
d. the action is in rem or quasi in rem. (this rule only
applies to an action in personam)
Service of summons after the enforcement of the levy on
attachment does NOT cure the irregularities that attended
such enforcement. The writ of attachment should be
reserved after the service of summons.
G.R. No. 107303 February 23, 1995
EMMANUEL C. OÑATE and ECON HOLDINGS CORPORATION,
petitioners,
vs.HON. ZEUS C. ABROGAR,as Presiding Judge of Branch 150
of the Regional Trial Court of Makati, and SUNLIFE
ASSURANCE COMPANY OF CANADA, respondents.
BRUNNER DEVELOPMENT CORPORATION, petitioner,
vs.HON. ZEUS C. ABROGAR,as Presiding Judge of Branch 150
of the Regional Trial Court of Makati, and SUNLIFE
ASSURANCE COMPANY OF CANADA, respondents.
UPON RECONSIDERATION:
Why referred to en banc? in view of the fact that in another decision
rendered by the Third Division on the same question, it was held that
the subsequent acquisition of jurisdiction over the person of a
defendant does not render valid the previous attachment of his
property. 1
The Court en banc accepted the referral and now issues
this resolution.
HELD: We hold that the attachment of petitioners' properties prior to
the acquisition of jurisdiction by the respondent court is void and that
the subsequent service of summons on petitioners did not cure the
invalidity of such attachment.
1. No one in the offices to make a service? NOT
CORRECT.
This is denied by petitioners who claim that their office was
always open and that Adeliza M. Jaranilla, Econ's Chief
Accountant who eventually received summons on behalf of
Oñate and Econ, was present that day. Whatever the truth
is, the fact is that no other attempt was made by the sheriff
to serve the summons except on January 9, 1992, in the
case of Oñate and Econ, and on January 16, 1992, in the
case of Diño. Meantime, he made several levies, which
indicates a predisposition to serve the writ of attachment in
anticipation of the eventual acquisition by the court of
jurisdiction over petitioners.
2. Second. while the petition for a writ of preliminary
attachment may be granted and the writ itself issued before
the defendant is summoned, the writ of attachment cannot
be implemented until jurisdiction over the person of the
defendant is obtained. As this Court explained, "levy on
property pursuant to the writ thus issued may not be validly
effected unless preceded, or contemporaneously
accompanied, by service on the defendant of summons, a
copy of the complaint (and of the appointment of
guardian ad litem, if any), the application for attachment (if
not incorporated in but submitted separately from the
complaint), the order of attachment, and the plaintiff's
attachment bond."
3. Third. Nor can the attachment of petitioners' properties
before the service of summons on them was made be
justified on the ground that unless the writ was then
enforced, petitioners would be alerted and might dispose of
their properties before summons could be served on them.
The Rules of Court do not require that issuance of the writ
be kept a secret until it can be enforced. Otherwise in no
case may the service of summons on the defendant precede
the levy on attachment. To the contrary, Rule 57, § 13
allows the defendant to move to discharge the attachment
even before any attachment is actually levied upon, thus
negating any inference that before its enforcement, the
issuance of the writ must be kept secret.
Note:

12. PROVISIONAL REMEDIES
Prof: ATTY. GERALDINE QUIMOSING-TIU RIZADA, RESCI ANGELLI
Sharing is Good Karma 
Page 12
a. the lifting of an attachment "may be resorted to even
before any property has been levied on."
b. proceedings for the issuance of a writ of attachment
are generally ex parte.
c. no hearing is required for the issuance of a writ of
attachment because this "would defeat the objective of
the remedy [because] the time which such hearing
would take could be enough to enable the defendant to
abscond or dispose of his property before a writ of
attachment issues." It is not, however, notice to
defendant that is sought to be avoided but the "time
which such hearing would take" because of the
possibility that defendant may delay the hearing to be
able to dispose of his properties. On the contrary there
may in fact be a need for a hearing before the writ is
issued as where the issue of fraudulent disposal of
property is raised. 17
It is not true that there should be
no hearing lest a defendant learns of the application for
attachment and he remove's his properties before the
writ can be enforced.
d. On the other hand, to authorize the attachment of
property even before jurisdiction over the person of the
defendant is acquired through the service of summons
or his voluntary appearance could lead to abuse. It is
entirely possible that the defendant may not know of
the filing of a case against him and consequently may
not be able to take steps to protect his interests.
Nor may sheriff's failure to abide by the law be excused on the pretext
that after all the court later acquired jurisdiction over petitioners. More
important than the need for insuring success in the enforcement of the
writ is the need for affirming a principle by insisting on that "most
fundamental of all requisites — the jurisdiction of the court issuing
attachment over the person of the defendant." 18
It may be that the
same result would follow from requiring that a new writ be served all
over again. The symbolic significance of such an act, however, is that
it would affirm our commitment to the rule of law. 19
ISSUE: on the matter of examining the bank accounts; this concerns
the nature of the transaction between petitioner Brunner and Sun Life.
Money placement or sale of treasury bills? Is the money withdrawn
and transferred, makes it fall under “subject matter in litigation”? NO.
HELD:
1. The money is NOT in litigation. Petitioners do not deny
receipt of P39,526,500.82 fromSun Life. Hence, whether the
transaction is considered a sale or money placement does
not make the money the "subject matter of litigation" within
the meaning of § 2 of Republic Act No. 1405 which prohibits
the disclosure or inquiry into bank deposits except "in cases
where the money deposited or invested is the subject matter
of litigation." Nor will it matter whether the money was
"swindled" as Sun Life contends.
2. Second. The examination of bank books and records cannot
be justified under Rule 57, § 10. Since, as already stated,
the attachment of petitioners' properties was invalid, the
examination ordered in connection with such attachment
must likewise be considered invalid. Under Rule 57, § 10, as
quoted above, such examination is only proper where the
property of the person examined has been validly attached.
G.R. No. 106989 May 10, 1994
H.B. ZACHRY COMPANY INTERNATIONAL, petitioner,
vs. HON. COURT OF and VINNEL-BELVOIR
CORPORATION, respondents
G.R. No. 107124 May 10, 1994
VINNEL-BELVOIR CORPORATION, petitioner,
vs. THE COURT OF APPEALS and H.B. ZACHRY COMPANY
INTERNATIONAL, respondents
Doctrine: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 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 jurisdiction.”
FACTS:
 Ground for dissolution of the writ of preliminary
attachment: it was issued prior to the service of summons
and a copy of the complaint on petitioner.
 VBC entered into a written Subcontract Agreement 5
with
Zachry, a foreign corporation. The latter had been engaged
by the United States Navy to design and construct 264
Family Housing Units at the US Naval Base at Subic,
Zambales.
 VBC was to perform all the construction work on the
housing project.
 When VBC had almost completed the project, Zachry
complained of the quality of work, making it a reason for its
decision to take over the management of the project, which
paragraph c, Section 7 of the Subcontract Agreement
authorized.
 However, prior to such take-over, the parties executed on a
Supplemental Agreement, In accordance with the conditions
in the supplemental agreement, VBC submitted to Zachry
on a detailed computation of the cost to complete the
subcontract on the housing project. According to VBC's
computation, there remains a balance of $1,103,000.00 due
in its favor as of 18 January 1990. This amount includes the
sum of $200,000.00 allegedly withheld by Zachry and the
labor escalation adjustment granted earlier by the US Navy
in the amount of $282,000.00 due VBC.
 Zachry, however, not only refused to acknowledge the
indebtedness but continually failed to submit to VBC a
statement of accumulated costs, as a result of which VBC
was prevented fromchecking the accuracy of the said costs
 VBC wrote Zachry a letter demanding compliance with its
obligations. 9
Zachry still failed to do so. VBC made
representations to pursue its claim, including a formal claim
with the Officer-in-Charge of Construction, NAVFAC
Contracts, Southwest Pacific, 10
which also failed.
 Hence, on 20 March 1990, VBC filed a Complaint against
Zachry for the collection of the payments due it with a
prayer for a writ of preliminary attachment over Zachry's
bank account in Subic Base and over the remaining thirty-
one undelivered housing units which were to be turned over
to the US Navy by Zachry on 30 March 1990.
 FIRST COMPLAINT: Complaint alleges that defendant
Zachry "is a foreign corporation with address at 527
Longwood Street, San Antonio, Texas, U.S.A. and has some
of its officers working at U.S. Naval Base, Subic Bay,
Zambales where it may be served with summons."
 RTC: order to issue WPA made and attachment bond fixed
 March 26 WPA issued
 March 27 WPA served, together with the summons, a
copy of the complaint with annexes, the bond, and a copy
of the order of attachment,
 SHERIFF’S RETURN: upon defendant H.B. Zachry Company
(International) at its field office in U.S. Naval Base, Subic
Bay, Zambales thru Ruby Apostol who acknowledged
receipt thereof. Mr. James M. Cupit, defendant's authorized
officer was in their Manila office at the time of service.
 MARCH 27 VBC filed an Amended Complaint to implead
as additional defendants the US Navy Treasury Office-Subic
Naval Base and Captain A.L. Wynn, an officer of the US
Navy, against whom VBC prayed for a restraining order or
preliminary injunction to restrain the latter from preparing
the treasury warrant checks to be paid to Zachry and the
former from signing the said checks and to restrain both
from making any further payments to Zachry. It also
amended paragraph 2 on the status and circumstances of
Zachry as follows:

13. PROVISIONAL REMEDIES
Prof: ATTY. GERALDINE QUIMOSING-TIU RIZADA, RESCI ANGELLI
Sharing is Good Karma 
Page 13
Defendant, H.B. Zachry Co. (International) . . . is a
foreign corporation with address at 527 Longwood
Street, San Antonio, Texas, U.S.A. and may be
served with summons and all other legal processes
at the following addresses: a) H.B. Zachry
Company (International), U.S. Naval Base, Subic
Bay, Zambales; and b) H.B. Zachry Company
(International) c/o A.M. Oreta & Co., 5th Floor
Ermita Building, Arquiza corner Alhambra Streets,
Ermita, Manila, through its authorized officer
James C. Cupit.
 APRIL 6 Zachry filed a motion to dismiss the
complaint 17
on the ground of lack of jurisdiction over its
person because the summons was not validly served on it. It
alleges that it is a foreign corporation duly licensed by the
Securities and Exchange Commission to do business in the
Philippines18
and, pursuant to Section 128 of the Corporation
Code of the Philippines, had appointed Atty. Lucas
Nunag19
as its resident agent on whom any summons and
legal processes against it may be served. Atty. Nunag's
address is at the 10th Floor, Shell House, 156 Valero St.,
Makati, Metro Manila.
 APRIL 24 Summons and a copy of the Amended Complaint
were served on Zachry through Atty. Nunag as shown in the
sheriff's return dated 24 April 1990. 20
 ZACHARY: filed an Omnibus Motion to dissolve the writ of
attachment of 26 March 1990 "for having been issued
without jurisdiction, having been issued prior to the service
of summons."
 RTC: upheld validity of WPA
 CA: dissolved WPA; CA held that summons was served on
Zachry only on 24 April 1990; hence, applying Sievert vs.
Court of Appeals, 32
the trial court "had no authority yet to
act coercively against the defendant" when it issued the writ
of attachment on 21 March 1990
ISSUE: WHETHER THE ISSUANCE OF THE WRIT OF PRELIMINARY
ATTACHMENT PRIOR TO THE SERVICE OF THE SUMMONS AND A
COPY OF THE AMENDED COMPLAINT ON THE RESPONDENT IS VALID.
HELD: YES IT IS VALID.
CONTENTION OF VBC: As to the first issue, VBC takes refuge in the
ruling in Davao Light & Power Co. vs. Court of Appeals 38
and argues
that the issuance of the writ of attachment on 21 March 1990,
although before the service of the summons, was valid. Its issuance
and implementation are two different and separate things; the first is
not affected by any defect in the implementation which may be
corrected. Moreover, assuming arguendo that the initial service of
summons was defective, it was cured by the numerous pleadings
thereafter filed. Finally, whatever doubts existed on the effectiveness
of the implementation of the writ was erased by its re-service on the
resident agent of Zachry.
CONTENTION OF ZACHARY: Zachry, in its Comment, 39
contends that
pursuant to the Sievert and Davao Light rulings, the issuance of the
writ of attachment before the service of summons on Zachry's resident
agent was invalid and that the various pleadings filed by the parties
did not cure its invalidity.
SUPREME COURT: It was error for the Court of Appeals to declare,
on the ground of grave abuse of discretion, the nullity of the writ of
attachment issued by the trial court on 21 March 1990. In the first
place, the writ was in fact issued only on 26 March 1990 and served,
together with the summons, copy of the complaint, the Order of 21
March 1990, and the bond, on 27 March 1990 on Zachry at its field
office in Subic Bay, Zambales, through one Ruby Apostol. What the
Court of Appeals referred to as having been issued on 21 March 1990
is the order granting the application for the issuance of a writ of
preliminary attachment upon the posting of a bond of
P24,266,000.00. 41
In the second place, even granting arguendo that
the Court of Appeals had indeed in mind the 26 March 1990 writ of
attachment, its issuance, as well as the issuance of the 21 March 1990
Order, did not suffer from any procedural or jurisdictional defect; the
trial court could validly issue both.
However, the writ of attachment cannot be validly enforced through
the levy of Zachry's property before the court had acquired jurisdiction
over Zachry's person either through its voluntary appearance or the
valid service of summons upon it. 42
To put it in another way, a
distinction should be made between the issuanceand
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. This is the rule enunciated in Davao Light &
Power Co. vs. Court of
Appeals. In that case, this Court stated:XXXXXXXXXXXXXX
The validity then of the order granting the application for a writ of
preliminary attachment on 21 March 1990 and of the issuance of the
writ of preliminary attachment on 26 March 1990 is beyond dispute.
However, the enforcement of the preliminary attachment on 27 March
1990, although simultaneous with the service of the summons and a
copy of the complaint, did not bind Zachry because the service of the
summons was not validly made. When a foreign corporation has
designated a person to receive service of summons pursuant to the
Corporation Code, that designation is exclusive and service of
summons on any other person is inefficacious. 49
The valid service of
summons and a copy of the amended complaint was only made upon
it on 24 April 1990, and it was only then that the trial court acquired
jurisdiction over Zachary's person. Accordingly, the levy on attachment
made by the sheriff on 27 April 1990 was invalid. However, the writ of
preliminary attachment may be validly served anew.
SECTION 6—SHERIFF’S RETURN
After enforcing the writ, the sheriff must, likewise without delay:
1. Make a return thereon to the court from which the writ was
issued
2. Return must be with a full statement of his proceedings
under the writ
3. Return must contain a complete inventory of the property
attached, together with any counter bond given by the party
against whom attachment is issued
4. Serve copies thereof on the applicant.
Principle: a writ of attachment has no lifetime as distinguished from a
writ of execution.(roque case) The new Rule fixes the lifetime of a writ
of execution at 5 years from the date of entry of judgment (rule 39,
section 6)
ROQUE V. CA
93 scra 540
FACTS:
 Associated Banking Corporation instituted an action, against
Fil-Eastern Wood Industries, Inc., a domestic corporation,
for recovery of a sum of money.
 RTC: Upon ex-parte application by the Bank for a Writ of
Preliminary Attachment, respondent Judge, after the filing
and approval of the required bond of P220,000.00, issued,
on February 4, 1974, an Order of Attachment
commanding the Sheriff to attach the estate, real and
personal, of Fil-Eastern.
 LEVY MADE ON BARGE: On February 7, 1974, the Sheriff's
"Notice of Levy Pursuant to the Writ of Attachment" was
registered in the Office of the Commander of the First Coast
Guard, District of Manila, 2
pursuant to Sec. 805 of the Tariff
and Customs Code, as amended by Presidential Decree No.
34, requiring the registration of documents affecting titles of
vessels with that entity. The said notice read, "levy is hereby
made upon all the rights, titles, interest, shares and

14. PROVISIONAL REMEDIES
Prof: ATTY. GERALDINE QUIMOSING-TIU RIZADA, RESCI ANGELLI
Sharing is Good Karma 
Page 14
participation which the defendant Fil-Eastern Wood
Industries, Inc. has or might have over a sea vesselor barge
named Fil-Eastern V.
 It appears that prior to the issuance of said Writ of
Attachment, Fil-Eastern had delivered the barge to the
Cotabato Visayan Development Corporation sometime in
April, 1973, for repair. The job was completed in June 1973,
but Fil-Eastern failed to pay the cost of repairs of
P261,190.59.  Cotabato Visayan Development Corporation
proceeded for the sale of said barge Eligio Roque acquired
barge as highest bidder on April 24, 1974On the same
date, the Cotabato Visayan Development Corporation issued
an Affidavit of Release of mechanic's lien against Fil-Eastern.
 The Certificate of Sale was received in the office of the
Philippine Coast Guard on May 3, 1974. 5
It was not until
December 24, 1974, however, that Certificate of Ownership
No. 8647, a Certificate. of Philippine Register, a Certificate of
Change of Name of Vessel from Fil-Eastern V" to "Satellite I
I, " as well as a Coastwise License, were issued to Roque by
the Philippine Coast Guard. 6
These muniments of title were
issued only after counsel for Eligio Roque had assured the
Philippine Coast Guard, in a letter dated November 13, 1974,
that "without touching on the merit of the preference of our
client's claim in relation to the levy registered by other
claimants, such levy is not in any manner a legal obstacle to
the registration of the vessels in our client's name." 7
Acting
thereon, the Acting Commandant of the Philippine Coast
Guard in a letter dated November 23, 1974, authorized the
issuance of a new certificate of registration annotating
thereon any levy validly registered against said
vessel(s)." 8
However, neither the Certificate of Ownership
nor the Certificate of Philippine Register appended as
Annexes "C" and "D", respectively, to petitioners' Urgent
Manifestation and Motion filed before the lower Court 9
carry
that annotation.
 On August 29, 1974, the Bank filed a "Motion for the
Issuance of Another Writ of Attachment" stating that at the
time of the issuance of the Writ on February 4, 1974, the
barge in question could not be located within the jurisdiction
of the trial Court. having been anchored somewhere in the
Visayas, and that actual levy on the barge could not be
made as "the original Order of attachment is allegedly in the
possession of the Branch Deputy Sheriff appointed by the
Honorable Court, who has not reported to the office since
August 26, 1974, and, therefore, could not implement the
writ."
 On the same date, August 29, 1974, the trial Court (Judge
Rafael S. Sison, presiding) denied the issuance of another
Writ (apparently ' v because it was deemed unnecessary),
but instead ordered the Deputy Sheriff of Branch XXVIII to
coordinate with the City Sheriff of Manila in the
implementation of the Writ previously issued.
 On August 30, 1974, Deputy Sheriff Garvida actually
seized and levied upon the vessel.
 On October 7, 1974, respondent Bank and respondent Fil-
Eastern submitted a Compromise Agreement whereby Fil-
Eastern bound itself to pay to the Bank the principal amount
of P200,000.00, with 1417,9 interest, plus other amounts
stated therein. On October 9, 1974, respondent Judge
approved the Agreement and rendered judgment
accordingly.
 On November 6, 1974, the Bank moved for the issuance of a
Writ of Execution for failure of Fil-Eastern to make payments
within the period stipulated in the Compromise Agreement.
 Meanwhile, without prior authority from Deputy Sheriff
Garvida the barge in question was "spirited away"to Bacolod
City by a certain Captain Marcelino Agito, who claimed to
have been given the right to use the same by Fil-Eastern. 12
 On January 6, 1975, respondent Judge issued an Order
requiring Capt. Marcelino Agito, in coordination with Deputy
Sheriff Benjamin E. Garvida to bring back to Manila the
barge in question. 13
 On March 7, 1975, respondent Judge issued a Writ of
Execution and ordered the sale of the barge at public
auction, as follows:
ORDER
The Decision rendered by this Court under date of
October 9, 1974 having already become final and
executory, let a Writ of Execution be issued to be
enforced by Sheriff Adriel V. Garcia by conducting
an auction sale on the vessel placed under
attachment. The satisfaction of the judgment in
this case shall be given preference and the
payment of the third party claim of Alfredo H.
Maligaya for and in behalf of Leonardo M. Canoso
shall be satisfied from whatever remaining
proceeds of the auction sale on the aforedsaid
vessel, if there be any.
 ROQUE: refused to-surrender the barge on the ground I d
that Eligio Roque is now the new owner, having acquired the
same by purchase at public auction, and praying that
petitioners, and all persons claiming under them, be directed
to surrender the barge to the custody of the Court through
its duly authorized representative.
 RTC: Roque was cited in contempt; there was absence of
formal claim relative to the barge subject of the WPA
 On April 24, 1975, petitioners filed before the trial Court an
Urgent Manifestation and Motion seeking to set aside the
Order of April 14, 1975, claiming that Roque is now the new
owner of the barge having acquired the same at a public
auction sale arising from a mechanic's lien. The Motion was
denied by respondent Judge on the ground that the records
belied petitioners' claim that the auction sale occurred very
much ahead of the notice of levy.
 On July 16, 1975, respondent Deputy Sheriff Adriel V. Garcia
submitted a report informing the Court that the barge in
question had been turned over to him and was anchored
along Pasig River, under guard.
ISSUE: If the levy and/or attachment by the sheriff of the barge in
question are illegal, will herein petitioner be required to availof Section
14, Rule 57 and/or Section 17, Rule 39 of the Revised Rules of Court?
HELD: On July 19, 1976, we issued a Restraining Order enjoining
respondents from proceeding with the projected sale at public auction
of the barge, subject of this litigation. We also declared the case
submitted for decision. On January 18, 1977, the Bank filed a Motion
for Authority to Sell the barge under attachment. This was opposed,
however, by petitioners and we resolved to defer resolution until
decision on the merits is rendered.
MOTION FOR EARLY RESOLUTION: We take note of the BANK's
contention that ever since the Sheriff took custody of the vessel on
July 16, 1975, the same has been lying Idle, moored at the Muelle de
la Industrial, Pasig River, exposed to the elements, and has
deteriorated rapidly, hence the need for early resolution.
We agree with the findings of the Court of Appeals that petitioners
were not without any plain, speedy and adequate remedy in the
ordinary course of law. For one, upon the issuance of the Order, dated
August 29, 1974, commanding the implementation of the Writ of
Attachment, petitioners could have availed themselves of the remedy
provided for in Section 14, Rule 57 of the Rules of Court, which reads:
If the property taken be 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 officer while the latter has possession of the
property, and a copy thereof upon the attaching
creditor, the officer shall not be bound to keep the
property under attachment, unless the attaching
creditor or his agent, on demand of the said

15. PROVISIONAL REMEDIES
Prof: ATTY. GERALDINE QUIMOSING-TIU RIZADA, RESCI ANGELLI
Sharing is Good Karma 
Page 15
officer, secures him against such claim by a bond
in a sum not greater than the value of the
property attached. ...
For another, when respondent Sheriff seized the vessel in question to
be sold at public auction in accordance with the Order of execution of
March 7, 1975, petitioner could have availed of the remedy under
Section 17, Rule 39 of the Rules of Court which provides:
If the property levied on be claimed by any other
person than the Judgment debtor or his agent,
and such person make an affidavit of his title
thereto or right to the possession thereof, stating
the grounds of such right or title, and serve the
same upon the officer making the levy, and a copy
thereof upon the judgment creditor, the officer
shall not be bound to keep the property, unless
such judgment creditor or his agent, on demand
of the officer, indemnify the officer against such
claim by a bond in a sum not greater than the
value of the property levied on. ...
Petitioner Eligio Roque argues, however, that he could not avail of the
foregoing Rules inasmuch as the vessel was not in the actual custody
of the Sheriff nor of the Court, since the supposed levy by the Sheriff
on February 7, 1974 was a mere paper levy which, in legal
contemplation, is no levy at an. It is a fact that respondent Sheriff
could not effect seizure immediately, first, because the barge could
nowhere be found in this vicinity, and subsequently when found,
because petitioners would not deliver possession to the Sheriff. It was
not until the trial Court granted the Sheriff's Motion praying for an
Order directing petitioners or their agents to surrender the barge to
the custody of the Court, that the Sheriff was able to take physical
custody. As a general rule, however, a levy of an attachment upon
personalproperty may be either actual or constructive. 17
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.
ISSUE: Petitioners further argue that the levy was illegal because the
Writ was implemented more than sixty days after its issuance so that
they need not have complied with Section 14, Rule 57, supra.
HELD: The Rules do not provide any lifetime for a Writ of Attachment
unlike a Writ of Execution. But even granting that a Writ of Attachment
is valid for only sixty days, yet, since there was constructive levy within
that period the fact that actual seizure was effected only thereafter
cannot affect the validity of that levy.
On the matter of immediate implementation of the order of Execution:
Neither can it be said that respondent Judge committed grave abuse of
discretion in issuing the challenged Order of April 14, 1975, supra,
whereby it commanded the immediate implementation of the Order of
execution of March 7, 1975 and ordered petitioners to surrender
possession of the barge to the Sheriff under pain of contempt. A trial
Court is enjoined by law to bring about a prompt dispatch of the
controversy pending before it. As it was, it took the trial Court more
than a year to cause the enforcement of its Writs and processes.
Moreover, its Decision of October 9, 1974 had become final and
executory, and execution then became purely a ministerial phase of
adjudication. It had no jurisdiction to pass upon petitioners' claim of
ownership not only because trial in that, case had already been
terminated but also considering that petitioners were not parties in the
case below nor had they filed any third-party claim for the
enforcement of their rights.
Proper remedy of Roque: Verily, petitioners' remedy was to ventilate
their claims of ownership in a separate and independent reivindicatory
action, as even then suggested by the Court of Appeals. That was the
arena where the question of preferential rights, if any, impliedly raised
in the first assigned error, could have been fully threshed out.
...a third person claiming to be the owner of the
property attached or levied upon is required to file
a separate or independent action to determine
whether the property should answer for the claim
of the attaching or judgment creditor instead of
being allowed to raise that issue in the case where
the writ of attachment or execution was issued
In the interest of justice, petitioners can still file an independent civil
action to establish their ownership over the barge, if they have not yet
done so.
SECTION 7—ATTACHMENT OF REAL AD PERSONAL PROPERTY;
RECORDING THEREOF—real and personal property shall be
attached by the sheriff executing the writ in the following manner:
a. Real property OR growing crops thereon OR any interest
therein
- Standing upon the record of the registry of deeds of
the province in the name of the party against whom
attachment is issued OR
- Not appearing at all upon such records OR
- Belonging to the party against whom attachment is
issued and held by any other person OR
- Standing on the records of the ROD in the name of any
other person
HOW:
- By filing with the ROD:
1. A copy of the order
2. Description of the property attached AND
3. A notice that is attached
- Such real property and any interest therein held by or
standing in the name of such other person are attached
and by:
1. Leaving a copy of such order, description and
notice with the occupant of the property, if any
OR with such other person or his agent if found
within the province.
Where the property has been brought under the operation of either
the Land Registration Act or the Property Registration Decree, NOTICE
shall contain:
1. A reference to the number of the certificate of title;
2. The volume and page in the registration book where the
certificate is registered AND
3. The registered owners thereof.
Registrar of Deeds must index attachment filed under this section:
1. In the names of the applicant,
2. The adverse party OR
3. The person by whom the property is held OR
4. In whose name it stands in the records.
If the attachment is NOT claimed on the entire area of the land
covered by the certificate of title a description sufficiently accurate
for the identification of the land or interest to be affected shall be
included in the registration of such attachment.
Principle: 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 3rd
person may be properly
be informed of the particular land or property that is under the custody
of the this can only be accompanied 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.
A notice of levy as regards a registered land which contains no
reference to the number of its certificate of title and the volume and