RULE 57 Preliminary merely on general averments quoting the words

of the rules. Since attachment is harsh,

Attachment extraordinary, and summary in nature the rules
Preliminary attachment on the application of a writ of attachment must
 is defined as the provisional remedy in virtue be strictly construed in favor of the defendant.
of which a plaintiff or other proper party may, at (Watercraft Venture)
the commencement of the action or at any time
thereafter, have the property of the adverse Purpose of Preliminary Attachment
party taken into the custody of the court as (1) to seize the property of the debtor in advance
security for the satisfaction of any judgment that of final judgment and to hold it for purposes of
may be recovered. It is a remedy which is purely satisfying said judgment, as in the grounds
statutory in respect of which the law requires a stated in paragraphs (a) to (e) of Section 1, Rule
strict construction of the provisions granting it. 57 of the Rules of Court; or
Withal no principle, statutory or jurisprudential, (2) to acquire jurisdiction over the action by
prohibits actual or constructive seizure of the property in
its issuance by any court before acquisition of those instances where personal or substituted
jurisdiction over the person of the defendant. service of summons on the defendant cannot be
 preliminary only when resorted to BEFORE effected, as in paragraph (f) of the same
the finality of the judgment TO SECURE the provision. (PCIB v. Alejandro)
property of the adverse party and to prevent its
dissipation. Once the judgment has become a
final one and is issued in order to satisfy the Section 1. When writ be applied / Grounds
judgment. I. When Writ may be availed of:
 cannot be the subject of a separate action (a) At the commencement of the action; or
independent of the principal action because the
attachment is only an incident of such action. If it is applied for at the commencement
(Northern Islands). of the action, the application may be
For instance: incorporated in a verified complaint
If a plaintiff files an action to collect a alleging all the grounds relied upon and
sum of money against a defendant who complying with all the requisites for the
is about to leave the country, with a grant of application.
clear intent to defraud his creditor, the
action for collection may be coupled The application is made even before the
with an application for the issuance of a summons is served on the defendant or
writ of preliminary attachment directed even before summons is issued by the
against the property of the defendant in court. An application at this stage will
order to prevent him from disposing of result in an ex parte issuance of the writ
his property during the pendency of the of preliminary attachment.
litigation. The application for the
issuance of a writ of preliminary (b) at any time before entry of judgment
attachment is merely ancillary to the
main action, which is, the action to the application may be made after the
collect sum of money. When the writ is service of summons upon the defendant
issued, the property of the adverse party and may even be made at any stage of
would be then put under custodia legis the proceedings, even after the
to be held by the court for the judgment, but before its entry. The stage
satisfaction of whatever award which before the entry of judgment is the last
may be obtained by the applicant. opportunity to avail of the remedy. Since
 Strict construction in favor of the defending at this stage, an application for the
party. issuance of an order of the attachment
Ratio: Preliminary attachment should be would entail notice to the defendant.
resorted to only when necessary and as a LAST
REMEDY because it exposes the debtor to II. Grounds upon which attachment may issue.
humiliation and annoyance. It must be granted —
only on concrete and specific ground and not
(a) Recovery of a specified amount of money or considered when the acts are
damages. performed.
“In an action for the recovery of a specified amount of  Fiduciary duty - founded in trust
money or damages, other than moral and exemplary, and confidence.
on a cause of action arising from law, contract, quasi-
contract, delict or quasi-delict against a party who is
(c) Recovery of property unjustly or
about to depart from the Philippines with intent to
defraud his creditors;” fraudulently taken
“In an action to recover the possession of
property unjustly or fraudulently taken,
 Amount is specified. detained or converted, when the property, or
o XPN: moral or any part thereof, has been concealed,
exemplary damages removed, or disposed of to prevent its being
alone, preliminary found or taken by the applicant or an
attachment will not lie authorized person;”
even if it is specified.
Preliminary attachment Main action: recovery of the possession of
cannot be issued for property
moral and exemplary  The act of taking is unjustly or
damages and other fraudulently
unliquidated and  There must be showing that the
contingent claims. defendant concealed, removed or
o Ratio: the amount of disposed of the property to prevent its
such damages is not for being found
a party to determine,  The ground doesn’t refer to a defendant
but left to the discretion acting in a fiduciary capacity. The
of the court. circumstances of the defendant do not
 Not sufficient to show that the matter.
party against whom the writ is
sought is about to depart from (d) Fraud in contracting or performing an
the Philippines. It must show obligation.
that such departure is “with “In an action against a party who has been
intent to defraud his creditors”. guilty of a fraud in contracting the debt or
incurring the obligation upon which the
action is brought, or in the performance
(b) Action for money or property
thereof;”
embezzled.
“In an action for money or property
embezzled or fraudulently misapplied or Basis: Fraudulent act of a party either -
converted to his own use by a public officer,  Contracting the debt or incurring the
or an officer of a corporation, or an attorney, obligation
factor, broker, agent, or clerk, in the course Ex: Mr. X induced his rich friend, Mr. Y,
of his employment as such, or by any other to grant him a loan using a spurious
person in a fiduciary capacity, or for a willful land title as security. Without the
violation of duty;” security, Mr. Y would not have extended
the loan to him. If Mr. Y later learns of
Main action: recovery of money or the fraud and files an action to recover
property. the amount loaned to Mr. X, Mr. Y may
 The money or property apply for a writ of preliminary
embezzled by the defendant or attachment. The fraud committed by Mr.
fraudulenty misapplied or X is a fraud in contracting the obligation
converted to his own use. or dolo causante.
 No need for a showing that the
defendant is concealing, (Watercraft)
removing or disposing of his
property. It is the character of  In the performance of his obligation
the office or the duty of the
defendant that is to be
2 Kinds of Fraud
 this Court. The order has become final.
(e) Removal or disposal of property with intent to
defraud. Later, respondent filed a claim for damages in
In an action against a party who has the amount of P25 Million on the attachment
removed or disposed of his property, or is bond on account of the wrongful garnishment of
about to do so, with intent to defraud his his deposits. He presented evidence showing
creditors; that his P150,000.00 RCBC check payable to
his counsel as attorney's fees, was dishonored
by reason of the garnishment of his deposits.
2 elements must concur:
 A party has removed or disposed of his
property, or is about to do so; ISSUE:
 The acts must be with intent to defraud whether petitioner bank is liable for damages for
the creditor the improper issuance of the writ of attachment
against respondent. – YES.
Note: mere showing that the debtor has
removed or disposed of his property is not RULING:
sufficient. There must be intent to defraud. There is no merit in petitioner's contention that
Fraud is not presumed, it must be proven. respondent can be considered a resident who is
temporarily out of the Philippines upon whom
(f) Action against non-residents or on whom service of summons may be effected by
summons may be served by publication. publication, and therefore qualifies as among
those against whom a writ of attachment may be
“In an action against a party who does not issued under Section 1, paragraph (f), Rule 57.
reside and is not found in the Philippines, or
on whom summons may be served by
publication.” The purposes of preliminary attachment are:
(1) to seize the property of the debtor in advance
of final judgment and to hold it for purposes of
satisfying said judgment, as in the grounds
stated in paragraphs (a) to (e) of Section 1, Rule
Philippine Commercial & Industrial 57 of the Rules of Court; or
Bank v. Court of Appeals, G.R. No. (2) to acquire jurisdiction over the action by
84526, 28 January 1991. actual or constructive seizure of the property in
DOCTRINE: those instances where personal or substituted
A writ of attachment may be issued under service of summons on the defendant cannot be
Section 1, paragraph (f), Rule 57 – if the effected, as in paragraph (f) of the same
defendant is a resident temporarily out of the provision.
Philippines, to acquire jurisdiction over the
action by actual or constructive seizure of the In actions in personam, such as the instant case
property. for collection of sum of money, summons must
be served by personal or substituted service,
FACTS: otherwise the court will not acquire jurisdiction
Petitioner PCIB filed a complaint with issuance over the defendant. In case the defendant does
of a writ of preliminary attachment against not reside and is not found in the Philippines
Respondent, when the latter failed to pay his (and hence personal and substituted service
obligation concerning the insufficiency of his cannot be effected) the remedy of the plaintiff in
deposits resulting from the fluctuations in the order for the court to acquire jurisdiction to try
foreign exchange rates. Respondent is a the case is to convert the action into a
resident of Hongkong. proceeding in rem or quasi in rem by attaching
the property of the defendant. Thus, in order to
Both RTC and CA ordered the quashing of the acquire jurisdiction in actions in personam where
writ. Petitioner is not entitled to a writ of defendant resides out of and is not found in the
attachment because respondent is a resident of Philippines, it becomes a matter of course for
the Philippines and that his act of withdrawing the court to convert the action into a proceeding
his deposits with petitioner was without intent to in rem or quasi in rem by attaching the
defraud, can no longer be passed upon by defendant's property. The service of summons in
this case (which may be by publication coupled It is clear from the foregoing that even on the
with the sending by registered mail of the copy allegation that respondent is a resident
of the summons and the court order to the last temporarily out of the Philippines, petitioner is
known address of the defendant), is no longer still not entitled to a writ of attachment because
for the purpose of acquiring jurisdiction but for the trial court could acquire jurisdiction over the
compliance with the requirements of due case by substituted service instead of attaching
process. the property of the defendant. The
misrepresentation of petitioner that respondent
However, where the defendant is a resident who does not reside in the Philippines and its
is temporarily out of the Philippines, attachment omission of his local addresses was thus a
of his/her property in an action in personam, is deliberate move to ensure that the application
not always necessary in order for the court to for the writ will be granted.
acquire jurisdiction to hear the case.

Thus, in actions in personam against residents *NOTE: Grant of preliminary attachment is

temporarily out of the Philippines, the court need discretionary. However, such discretion is not to
not always attach the defendant's property in be exercised whimsically or oppressively. In
order to have authority to try the case. Where determining the propriety of the grant, the court
the plaintiff seeks to attach the defendant's will have to consider the principal case upon
property and to resort to the concomitant service which the provisional remedy depends. In the
of summons by publication, the same must be next case, the judge whimsically issued the writ
with prior leave, precisely because, if the sole without the proper allegations in the application.
purpose of the attachment is for the court to
acquire jurisdiction, the latter must determine
whether from the allegations in the complaint, K.O. Glass Construction Co., Inc. v.
substituted service (to persons of suitable Valenzuela, G.R. No. L-48756, 22
discretion at the defendant's residence or to a September 1982.
competent person in charge of his office or DOCTRINE:
regular place of business) will suffice, or whether Failure to allege in the affidavit the requisites
there is a need to attach the property of the prescribed for issuance of the writ of preliminary
defendant and resort to service of summons by attachment is fatal.
publication in order for the court to acquire
jurisdiction over the case and to comply with the Here, Pinzon did not allege that the defendant
requirements of due process. Kenneth O. Glass "is a foreigner (who) may, at
any time, depart from the Philippines with intent
In the instant case, the writ was issued by the to defraud his creditors including the plaintiff."
trial court mainly on the representation of He merely stated that the defendant Kenneth O.
petitioner that respondent is not a resident of the Glass is a foreigner.
Philippines. Obviously, the trial court's issuance
of the writ was for the sole purpose of acquiring FACTS:
jurisdiction to hear and decide the case. Had the Pinzon filed an action to recover from K.O.
allegations in the complaint disclosed that Glass the sum of Php. 37,190.00 alleged to be
respondent has a residence in Quezon City and rentals of his truck. He asked for the attachment
an office in Makati City, the trial court, if only for against the property of K.O. Glass consisting of
the purpose of acquiring jurisdiction, could have collectibles and payables with the Philippine
served summons by substituted service on the Geothermal, Inc., on the grounds that the
said addresses, instead of attaching the property defendant is a foreigner; that he has sufficient
of the defendant. The rules on the application of cause of action against the said defendant; and
a writ of attachment must be strictly construed in that there is no sufficient security for his claim
favor of the defendant. For attachment is harsh, against the defendant in the event a judgment is
extraordinary, and summary in nature; it is a rendered in his favor.
rigorous remedy which exposes the debtor to
humiliation and annoyance. It should be resorted The writ was granted.
to only when necessary and as a last remedy.
The defendants opposed through motion to
discharge and or dissolve the writ of preliminary
attachment upon the ground that the affidavit possession of which he is entitled to
filed in support of the motion for preliminary recover, is as much as the sum for which the
attachment was not sufficient or wanting in law order is granted above all legal
for the reason that: counterclaims.
(1) the affidavit did not state that the amount of
plaintiff's claim as required by Sec. 3, Rule 57 of While Pinzon may have stated in his affidavit
the Revised Rules of Court; that a sufficient cause of action exists against
(2) the affidavit did not state that there is no the defendant Kenneth O. Glass, he did not
other sufficient security for the claim sought to state therein that "the case is one of those
be recovered by the action as also required by mentioned in Section 1 hereof; that there is no
said Sec. 3; and other sufficient security for the claim sought to
(3) the affidavit did not specify any of the be enforced by the action; and that the amount
grounds enumerated in Sec. 1 of Rule 57 due to the applicant is as much as the sum for
which the order granted above all legal
ISSUE: counterclaims." It has been held that the failure
Whether the issuance of writ by the Respondent to allege in the affidavit the requisites prescribed
Judge constitute grave abuse of his discretion. – for the issuance of a writ of preliminary
YES. attachment, renders the writ of preliminary
attachment issued against the property of the
RULING: defendant fatally defective, and the judge
The respondent Judge gravely abused his issuing it is deemed to have acted in excess of
discretion in issuing the writ of preliminary his jurisdiction.
attachment and in not ordering the release of the
money for the following reasons: (3) it appears that the petitioner has filed a
(1) there was no ground for the issuance of counter-bond in the amount of
the writ of preliminary attachment. P37,190.00 to answer for any judgment
Section 1, Rule 57 of the Revised Rules of that may be rendered against the
Court, which enumerates the grounds for the defendant.
issuance of a writ of preliminary attachment.
Upon receipt of the counter-bond the respondent
Pinzon did not allege that the defendant Judge should have discharged the attachment
Kenneth O. Glass "is a foreigner (who) may, at pursuant to Section 12, Rule 57.
any time, depart from the Philippines with intent The filing of the counter-bond will serve the
to defraud his creditors including the plaintiff." purpose of preserving the defendant's property
He merely stated that the defendant Kenneth O. and at the same time give the plaintiff security
Glass is a foreigner. for any judgment that may be obtained against
the defendant.
There being no showing, much less an
allegation, that the defendants are about to
depart from the Philippines with intent to defraud Section 2. Issuance and contents of order. —
their creditor, or that they are non-resident An order of attachment may be issued either ex
aliens, the attachment of their properties is not parte or upon motion with notice and hearing by
justified. the court in which the action is pending, or by
(2) the affidavit submitted by Pinzon does the Court of Appeals or the Supreme Court, and
not comply with the Rules. must require the sheriff of the court to attach so
much of the property in the Philippines of the
Under the Rules, an affidavit for attachment party against whom it is issued, not exempt from
must state that execution, as may be sufficient to satisfy the
(a) sufficient cause of action exists, applicant's demand, unless such party makes
(b) the case is one of those mentioned in deposit or gives a bond as hereinafter provided
Section 1 (a) of Rule 57; in an amount equal to that fixed in the order,
(c) there is no other sufficient security for which may be the amount sufficient to satisfy the
the claim sought to be enforced by the applicant's demand or the value of the property
action, and to be attached as stated by the applicant,
(d) the amount due to the applicant for exclusive of costs. Several writs may be issued
attachment or the value of the property the
at the same time to the sheriffs of the courts of
different judicial regions. (2a) Section 5 of the same Rule likewise states that
"[t]he sheriff enforcing the writ shall without
delay and with all reasonable diligence attach,
Luzon Development Bank v. Krishnan, xxx, only so much of the property in the
G.R. No. 203530, 13 April 2015. Philippines of the party against whom the writ is
DOCTRINE: issued, not exempt from execution, as may be
Section 5 requires the deposit of money as the sufficient to satisfy the applicant's demand,
word "amount" commonly refers to or is regularly unless the former makes a deposit with the court
associated with a sum of money. from which the writ is issued, or gives a counter-
bond executed to the applicant, in an
FACTS: amount equal to the bond fixed by the court in
Respondent Krishnan presented her Time the order of attachment or to the value of the
Deposit Certificates (more than 28M) to property to be attached, exclusive of costs."
Petitioner Bank as they have become due.
However, the Petitioner refused to honor them. From the foregoing, it is evidently clear that once
the writ of attachment has been issued, the only
Krishnan then applied for a Preliminary Writ of remedy of the petitioners in lifting the same is
Attachment. By virtue of the writ, petitioner through a cash deposit or the filing of the
bank's accounts in BPI in the amount of counter-bond. Thus, the Court holds that
P28,597,472.70 and its account amounting to petitioner's argument that it has the option to
P49,000,000.00 in the Central Bank were deposit real property instead of depositing cash
garnished. or filing a counter-bond to discharge the
attachment or stay the implementation thereof is
Petitioner bank filed a motion to admit bank unmeritorious
property in lieu of counterbond.
RTC: issued order (reinstating, because it was
earlier quashed) the Writ of Attachment for Section 3. Affidavit and bond required. — An
failure of petitioners to file the required order of attachment shall be granted only when
counterbond. it appears by the affidavit of the applicant, or of
CA: affirmed. some other person who personally knows the
facts, that a sufficient cause of action exists, that
petitioners contend that it has the option to the case is one of those mentioned in section 1
deposit real property, in lieu of cash or a hereof, that there is no other sufficient security
counter-bond, to secure any contingent lien on for the claim sought to be enforced by the
its property in the event respondent wins the action, and that the amount due to the applicant,
case. They argue that Section 2 of Rule 57 only or the value of the property the possession of
mentions the term "deposit," thus, it cannot only which he is entitled to recover, is as much as the
be confined or construed to refer to cash. sum for which the order is granted above all
legal counterclaims. The affidavit, and the bond
ISSUE: required by the next succeeding section, must
whether the CA erred in affirming the RTC's be duly filed with the court before the order
decision which denied petitioners' motion issues. (3a)
praying that bank property be deposited in lieu Section 4. Condition of applicant's bond. — The
of cash or a counter-bond. – NO. party applying for the order must thereafter give
a bond executed to the adverse party in the
RULING: amount fixed by the court in its order granting
Section 2, Rule 57 of the Rules of Court the issuance of the writ, conditioned that the
explicitly states that "[a]n order of attachment latter will pay all the costs which may be
may be issued either ex parte or upon motion adjudged to the adverse party and all damages
with notice and hearing by the court xxx, unless which he may sustain by reason of the
such party makes deposit or gives a bond as attachment, if the court shall finally adjudge that
hereinafter provided in an amount equal to that the applicant was not entitled thereto. (4a)
fixed in the order, which may be the amount
sufficient to satisfy the applicant's demand or the
value of the property xxx."
Republic v. Garcia, G.R. No. 167741, 12 the court finally rule that the applicant is not
entitled to the writ of attachment. Thus, it is a
July 2007. security for the payment of the costs and
DOCTRINE: damages to which the adverse party may be
State is exempt to pay attachment bond entitled in case there is a subsequent finding
because it is assumed to be always solvent. that the applicant is not entitled to the writ. The
Republic of the Philippines need not give this
FACTS: security as it is presumed to be always solvent
Republic filed a petition for forfeiture of and able to meet its obligations.
unlawfully acquired properties through a writ of
preliminary attachment against Maj. Gen. Carlos
Section 5. Manner of attaching property. — The
F. Garcia and his family with the
sheriff enforcing the writ shall without delay and
Sandiganbayan. The Republic maintained that,
with all reasonable diligence attach, to await
as a sovereign political entity, it was exempt
judgment and execution in the action, only so
from filing the required attachment bond.
much of the property in the Philippines of the
party against whom the writ is issued, not
The Sandiganbayan: ordered Republic of a P1
exempt from execution, as may be sufficient to
million attachment bond.
satisfy the applicant's demand, unless the
former makes a deposit with the court from
The Republic posted the required attachment
which the writ is issued, or gives a counter-bond
bond to avoid any delay in the issuance of the
executed to the applicant, in an amount equal to
writ as well as to promptly protect and secure its
the bond fixed by the court in the order of
claim. Later it filed for a motion for partial
attachment or to the value of the property to be
reconsideration to exempt from the attachment
attached, exclusive of costs. No levy on
bond.
attachment pursuant to the writ issued under
section 2 hereof shall be enforced unless it is
ISSUE:
preceded, or contemporaneously accompanied,
Did the Sandiganbayan commit grave abuse of
by service of summons, together with a copy of
discretion when it rejected the Republic's claim
the complaint, the application for attachment the
of exemption from the filing of an attachment
applicant's affidavit and bond, and the order and
bond? - YES
writ of attachment, on the defendant within the
Philippines.
RULING:
The requirement of prior or contemporaneous
GR: Under SEC. 3&4 of Rule 57, before a writ of
service of summons shall not apply where the
attachment may issue, a bond must first be filed
summons could not be served personally or by
to answer for all costs which may be adjudged to
substituted service despite diligent efforts, or the
the adverse party and for the damages he may
defendant is a resident of the Philippines
sustain by reason of the attachment.
temporarily absent therefrom, or the defendant
XPN: this rule does not cover the State.
is a non-resident of the Philippines, or the action
is one in rem or quasi in rem. (5a)
In Tolentino, this Court declared that the State
Section 6. Sheriff's return. — After enforcing the
as represented by the government is exempt
writ, the sheriff must likewise without delay make
from filing an attachment bond on the theory that
a return thereon to the court from which the writ
it is always solvent.
issued, with a full statement of his proceedings
under the writ and a complete inventory of the
The issuance of a writ of preliminary attachment
property attached, together with any counter-
is conditioned on the filing of a bond unless the
bond given by the party against whom
applicant is the State. Where the State is the
attachment is issued, and serve copies thereof
applicant, the filing of the attachment bond is
on the applicant. (6a)
excused.
Section 7. Attachment of real and personal
property; recording thereof. — Real and
personal property shall be attached by the
The attachment bond is contingent on and
sheriff executing the writ in the following
answerable for all costs which may be adjudged
manner:
to the adverse party and all damages which he
(a) Real property, or growing crops
may sustain by reason of the attachment should
thereon, or any interest therein, standing
 upon the record of the registry of deeds Francisco Ong, attachment debtor, complains
of the province in the name of the party against Arturo C. Flores, Deputy Sheriff for
against whom attachment is issued, or nonfeasance for failure to discharge his
not appearing at all upon such records, obligation. Flores attached two motor vehicles
or belonging to the party against whom and other personal properties of Francisco Ong.
attachment is issued and held by any The properties were stored at the courtyard.
other person, or standing on the records However, the properties would have to be
of the registry of deeds in the name of removed from the court premises to pave the
any other person, by filing with the way for the demolition of the building.
registry of deeds a copy of the order,
together with a description of the When the writ was dissolved, Flores attempted
property attached, and a notice that it is to return some of the seized properties to
attached, or that such real property and Cunanan, however he refused, stating that he
any interest therein held by or standing would only accept them if given to him ALL the
in the name of such other person are properties. Finally, the ALL the properties were
attached, and by leaving a copy of such turned over to Cunanan, he noticed extensive
order, description, and notice with the damage, and the substitution of a majority of the
occupant of the property, if any, or with pieces of equipment with inferior.
such other person or his agent if found
within the province. Where the property Thus, Cunanan filed an administrative case
has been brought under the operation of against Flores. The judge and OCA
either the Land Registration Act or the recommended his dismissal.
Property Registration Decree, the notice
shall contain a reference to the number ISSUE:
of the certificate of title, the volume and Whether Flores shall be dismissed from his
page in the registration book where the position.
certificate is registered, and the
registered owner or owners thereof. RULING:
The registrar of deeds must index Yes.
attachments filed under this section in Under the Rules of Court (now Rule 57, Sec. 7
the names of the applicant, the adverse [b]), personal property seized under a writ of
party, or the person by whom the attachment, capable of manual delivery, must be
property is held or in whose name it taken and safely kept by the Deputy Sheriff in
stands in the records. If the attachment his capacity, after issuing the corresponding
is not claimed on the entire area of the receipt therefor. Thus, the respondent's act of
land covered by the certificate of title, a leaving the seized articles in the possession and
description sufficiently accurate for the control of the plaintiff (the prevailing party in the
identification of the land or interest to be case below) did not comply with the Rules.
affected shall be included in the Neither did it comply with the plainly worded
registration of such attachment; Order of the Regional Trial Court. The condition
(b) Personal property capable of manual imposed on the plaintiff that he would produce
delivery, by taking and safely keeping it the same articles whenever required by the
in his custody, after issuing the court was no compliance either, because it did
corresponding receipt therefor. not show that subject property was in
respondent's presence and possession.
Respondent's performance fell short of his
bounden duty to take and safely keep the
Cunanan v. Flores, A.M. No. P-99-1351, attached property "in his capacity."
24 November 1999.
DOCTRINE: Respondent's stance that the Regional Trial
SHERIFF; HAS DUTY TO TAKE AND SAFELY Court of Makati City did not have any storage
KEEP ATTACHED PROPERTY IN HIS facility to house subject properties is no
CAPACITY. justification. As aptly ruled by the Investigating
Judge, the respondent could have sought prior
FACTS: authority from the trial court
which issued the writ.
 warehouse of Singson (plaintiff to the complaint
(c) Stocks or shares, or an interest in in the writ).
stocks or shares, of any corporation or
company, by leaving with the president In his Answer, respondent sheriff admitted that
or managing agent thereof, a copy of the attached properties were deposited in
the writ, and a notice stating that the complainant's warehouse but this was done in
stock or interest of the party against the exercise of his best judgment because it had
whom the attachment is issued is taken him the whole day to attach Sarmiento's
attached in pursuance of such writ; properties. He did not have time to look for a
(d) Debts and credits, including bank private bonded warehouse. Knowing that the
deposits, financial interest, royalties, court had no space to store the attached
commissions and other personal properties, he asked Sarmiento's daughter,
property not capable of manual delivery, Beverly, if he could deposit the seized properties
by leaving with the person owing such in the warehouse of Singson.
debts, or having in his possession or
under his control, such credits or other ISSUE:
personal property, or with his agent, a Whether the respondent ignored the mandatory
copy of the writ, and notice that the provision of Section 7, Rule 57 of the 1997 Rule
debts owing by him to the party against of Civil Procedure.
whom attachment is issued, and the
credits and other personal property in RULING:
his possession, or under his control, Yes.
belonging to said party, are attached in Clearly, the law commands the sheriff to take
pursuance of such writ; possession and control of the attached
(e) The interest of the party against properties. It does not give him any discretion on
whom attachment is issued in property whether to keep it in his custody or to surrender
belonging to the estate of the decedent, it to the creditors.
whether as heir, legatee, or devisee, by
serving the executor or administrator or The consent given by complainant's daughter is
other personal representative of the of no moment, because it did not establish that
decedent with a copy of the writ and the properties were in respondent sheriff's
notice that said interest is attached. A substantial presence and possession.
copy of said writ of attachment and of Respondent fell short of his obligation to take
said notice shall also be filed in the and safely keep the attached properties in his
office of the clerk of the court in which custody'.
said estate is being settled and served
upon the heir, legatee or devisee “We believe that . . . to constitute a valid levy of
concerned. an attachment, the officer levying it must take
If the property sought to be attached is actual possession of the property attached as far
in custodia legis, a copy of the writ of attachment as . . . practicable (under the circumstances). He
shall be filed with the proper court or quasi- must put himself in (a) position to, and must
judicial agency, and notice of the attachment assert and, in fact, enforce a dominion over the
served upon the custodian of such property. (7a) property adverse to and exclusive of the
attachment debtor, and such property must be in
his substantial presence and possession.”
Sarmiento v. Victoria, A.M. No. P-00- Indeed, respondent sheriff was remiss in his
1432, 19 October 2000. duties when he deposited the attached
DOCTRINE: properties in the warehouse of Singson, a party
in the civil case below.

FACTS:
Respondent sheriff Romulo C. Victoria is
charged with Grave Abuse of Authority and
Section 8. Effect of attachment of debts, credits
Gross Misconduct when Sarmiento's levied
and all other similar personal property. — All
personal properties were deposited to the
persons having in their possession or under their claim against the same, to await the judgment in
control any credits or other similar personal the action. (10a)
property belonging to the party against whom
attachment is issued, or owing any debts to him, Section 11. When attached property may be
at the time of service upon them of the copy of sold after levy on attachment and before entry of
the writ of attachment and notice as provided in judgment. — Whenever it shall be made to
the last preceding section, shall be liable to the appear to the court in which the action is
applicant for the amount of such credits, debts pending, upon hearing with notice to both
or other similar personal property, until the parties, that the property attached is perishable,
attachment is discharged, or any judgment or that the interests of all the parties to the
recovered by him is satisfied, unless such action will be subserved by the sale thereof, the
property is delivered or transferred, or such court may order such property to be sold at
debts are paid, to the clerk, sheriff, or other public auction in such manner as it may direct,
proper officer of the court issuing the and the proceeds of such sale to be deposited in
attachment. (8a) court to abide the judgment in the action. (11a)

Section 9. Effect of attachment of interests in

property belonging to the estate of a decedent. China Banking Corp. v. Asian
— The attachment of the interest of an heir, Construction, G.R. No. 158271, 8 April
legatee, or devisee in the property belonging to 2008.
the estate of a decedent shall not impair the DOCTRINE:
powers of the executor, administrator, or other
personal representative of the decedent over
such property for the purpose of administration. FACTS:
Such personal representative, however, shall China Bank granted ACDC a credit line
report the attachment to the court when any amounting to Php 90,000,000.00. However,
petition for distribution is filed, and in the order ACDC failed to comply with its obligations
made upon such petition, distribution may be resulting to China Bank to filing a complaint for
awarded to such heir, legatee or devisee, but recovery of sum of money and damages
the property attached shall be ordered delivered with preliminary attachment against ACDC.
to the sheriff making the levy, subject to the RTC granted the writ.
claim of such heir, legatee, or devisee, or any
person claiming under him. (9a) In the Sherrif's Report, the list included:
Section 10. Examination of party whose Vans, dump trucks, cement mixers, cargo
property is attached and persons indebted to trucks, utility vehicles, machinery, equipment
him or controlling his property; delivery of and office machines and fixtures.
property to sheriff. — Any person owing debts to
the party whose property is attached or having in Bank C now prays for the selling of the
his possession or under his control any credit or properties arguing that they are perishable items
other personal property belonging to such party, – that they might depreciate.
may be required to attend before the court in
which the action is pending, or before a ISSUE:
commissioner appointed by the court, and be Does the vehicles, office machines and fixtures
examined on oath respecting the same. The are "perishable property" under Section 11,
party whose property is attached may also be Rules 57 of the Rules of Court?
required to attend for the purpose of giving NO.
information respecting his property, and may be
examined on oath. The court may, after such RULING:
examination, order personal property capable of According to the CA, as affirmed by the SC,
manual delivery belonging to him, in the "selling the attached properties prior to
possession of the person so required to attend final judgment of the appealed case is
before the court, to be delivered to the clerk of premature and contrary to the intent and
the court or sheriff on such terms as may be purpose of preliminary attachment for the
just, having reference to any lien thereon or following reasons:
first,  the attached properties subject of the sought to be discharged with respect to a
motion are not perishable in nature; and  particular property, the counter-bond shall be
second, while the sale of the attached properties equal to the value of that property as determined
may serve the interest of China Bank, it will not by the court. In either case, the cash deposit or
be so for ACDC. The CA recognized China the counter-bond shall secure the payment of
Bank’s apprehension that by the time a final any judgment that the attaching party may
judgment is rendered, the attached properties recover in the action. A notice of the deposit
would be worthless.  shall forthwith be served on the attaching party.
Upon the discharge of an attachment in
The CA also acknowledged that since ACDC is accordance with the provisions of this section,
a corporation engaged in a construction the property attached, or the proceeds of any
business, the preservation of the properties is of sale thereof, shall be delivered to the party
paramount importance; and that in the event making the deposit or giving the counter-bond,
that the decision of the lower court is reversed or to the person appearing on his behalf, the
and a final judgment rendered in favor ACDC, deposit or counter-bond aforesaid standing in
great prejudice will result if the place of the property so released. Should such
attached properties were already sold. counter-bond for any reason be found to be or
become insufficient, and the party furnishing the
What is considered perishable? same fail to file an additional counter-bond, the
attaching party may apply for a new order of
In Mossler Acceptance Co. v. Denmar, the attachment. (12a)
Supreme Court of Louisiana held that while
there might be a depreciation in the value of a
car during storage, depending largely on Phil-Air Conditioning Center v. RCJ
existing economic conditions, there would be no Lines, G.R. No. 193821, 23 November
material deterioration of the car itself or any of 2015.
its appurtenances if the car was properly cared DOCTRINE:
for, and therefore it could not be said Sec. 4: the party applying for the order must . . .
that automobiles were of a perishable give a bond executed to the adverse party in the
nature within the intendment of the statute, amount fixed by the court in its order granting
which could only be invoked when the the issuance of the writ, conditioned that the
property attached and seized was of a latter will pay all the costs that may be adjudged
perishable nature.. to the adverse party and all damages that he
may sustain by reason of the attachment
In McCreery v. Berney National Bank, the
Supreme Court of Alabama stated that the term FACTS:
"perishable" property, xxx meant only such petitioner Phil-Air sold to respondent RCJ Lines
property as contained in itself the elements four Carrier Paris 240 air conditioning units for
of speedy decay, such as fruits, fish, buses (units). However, all the postdated checks
fresh meats, etc. issued by RCJ Lines were dishonored.

Section 12. Discharge of attachment upon Thus, Phil-Air filed the complaint for sum of
giving counter-bond. — After a writ of money with prayer for the issuance of a writ of
attachment has been enforced, the party whose preliminary attachment. From the amount Phil-
property has been attached, or the person air sought to recover, RCJ Lines claimed that it
appearing on his behalf, may move for the was also entitled to be reimbursed for costs and
discharge of the attachment wholly or in part on damages occasioned by the enforcement of the
the security given. The court shall, after due writ of attachment.
notice and hearing, order the discharge of the
attachment if the movant makes a cash deposit, ISSUE:
or files a counter-bond executed to the attaching Whether Phil-Air should reimburse RCJ Lines for
party with the clerk of the court where the the counter-bond premium and its alleged
application is made, in an amount equal to that unrealized profits – NO.
fixed by the court in the order of attachment,
exclusive of costs. But if the attachment is RULING:
Phil-Air is not directly liable for the counter-bond
premium and RCJ Lines' alleged The amount of the cash deposit or counter-bond
unrealized profits. must be equal to that fixed by the court in the
order of attachment, exclusive of costs. The
Granting that RCJ Lines suffered losses, the cash deposit or counter-bond shall secure the
judgment award should have been first executed payment of any judgment that the attaching
on the attachment bond. Only if the attachment party may recover in the action.
bond is insufficient to cover the judgment award
can Phil-Air be held liable. The filing of a counter-bond to discharge the
attachment applies when there has already been
A writ of preliminary attachment is a provisional a seizure of property by the sheriff and all that is
remedy issued by the court where an action is entailed is the presentation of a motion to the
pending to be levied upon the property or proper court, seeking approval of a cash or
properties of the defendant. The property is held surety bond in an amount equivalent to the value
by the sheriff as security for the satisfaction of of the property seized and the lifting of the
whatever judgment that might be secured by the attachment on the basis thereof. The counter-
attaching party against the defendant. bond stands in place of the property so
released.
The grant of the writ is conditioned not only on
the finding of the court that there exists a valid Sec 12 and Sec 13 discussed.
ground for its issuance. The Rules also require To be clear, the discharge of the attachment by
the applicant to post a bond. depositing cash or posting a counter-bond under
Section 4 of Rule 57 of the Rules of Civil Section 12 should not be confused with the
Procedure (Rules) provides that "the party discharge sanctioned under Section 13. Section
applying for the order must . . . give a bond 13 - discharge on the ground that the writ was
executed to the adverse party in the amount improperly or irregularly issued or enforced, or
fixed by the court in its order granting the that the attachment bond is insufficient, or that
issuance of the writ, conditioned that the latter the attachment is excessive. The discharge
will pay all the costs must be made only after hearing.
that may be adjudged to the adverse party and Section 12 - the discharge takes effect upon
all damages that he may sustain by reason of posting of a counter-bond or depositing cash,
the attachment, if the court shall finally adjudge and after hearing to determine the sufficiency of
that the applicant was not entitled thereto." the cash deposit or counter-bond.
The enforcement of the writ notwithstanding, the
party whose property is attached is afforded These differences notwithstanding, the
relief to have the attachment lifted. discharge of the preliminary attachment either
through Section 12 or Section 13 has no effect
There are various modes of discharging an on and does not discharge the attachment bond.
attachment under Rule 57, viz.: The dissolution of the preliminary attachment
(1) by depositing cash or posting a counter-bond does not result in the dissolution of the
under Section 12; attachment bond.
(2) by proving that the attachment bond was
improperly or irregularly issued or enforced, or In the present case, the RTC lifted the
that the bond is insufficient under Section 13; preliminary attachment after it heard RCJ Lines'
(3) by showing that the attachment is excessive urgent motion to discharge attachment and the
under Section 13; and latter posted a counter-bond. The RTC found
(4) by claiming that the property is exempt from that there was no fraud and Phil-Air had no
execution under Section 2. sufficient cause of action for the issuance of the
writ of the attachment. As a consequence, it
RCJ Lines availed of the first mode by posting a ordered Phil-Air to refund the premium payment
counter-bond. Under the first mode, the court for the counter-bond and the losses suffered by
will order the discharge of the attachment after RCJ Lines resulting from the enforcement of the
(1) the movant makes a cash deposit or posts a writ. The CA affirmed the RTC ruling in toto.
counter bond and
(2) the court hears the motion to discharge the
attachment with due notice to the adverse party.
Section 13. Discharge of attachment on other frivolous or plainly spurious claim, in the same or
grounds. — The party whose property has been a separate action.
ordered attached may file a motion with the When the writ of attachment is issued in favor of
court in which he action is pending, before or the Republic of the Philippines, or any officer
after levy or even after the release of the duly representing it, the filing of such bond shall
attached property, for an order to set aside or not be required, and in case the sheriff is sued
discharge the attachment on the ground that the for damages as a result of the attachment, he
same was improperly or irregularly issued or shall be represented by the Solicitor General,
enforced, or that the bond is insufficient. If the and if held liable therefor, the actual damages
attachment is excessive, the discharge shall be adjudged by the court shall be paid by the
limited to the excess. If the motion be made on National Treasurer out of the funds to be
affidavits on the part of the movant but not appropriated for the purpose. (14a)
otherwise, the attaching party may oppose the
motion by counter-affidavits or other evidence in
addition to that on which the attachment was
made. After due notice and hearing, the court Florido v. Shemberg Marketing
shall order the setting aside or the Corporation, G.R. No. 146400, 25
corresponding discharge of the attachment if it October 2005.
appears that it was improperly or irregularly DOCTRINE:
issued or enforced, or that the bond is
insufficient, or that the attachment is excessive,
and the defect is not cured forthwith. (13a) FACTS:
Respondent Shemberg Marketing Corporation
Section 14. Proceedings where property filed a complaint for collection of a sum of
claimed by third person. — If the property money with a plea for the issuance of a writ of
attached is claimed by any person other than the preliminary attachment against Solomon Nacua,
party against whom attachment had been issued Jr.
or his agent, and such person makes an affidavit
of his title thereto, or right to the possession The sheriff prepared a notice of levy on
thereof, stating the grounds of such right or title, attachment over five marine vessels owned by
and serves such affidavit upon the sheriff while Nacua. The sheriff served the summons to
the latter has possession of the attached Nacua’s attorney-in-fact, since Nacua was out of
property, and a copy thereof upon the attaching the country. The sheriff levied the vessels.
party, the sheriff shall not be bound to keep the
property under attachment, unless the attaching Petitioner Florido (brother of Nacua’s attorney-
party or his agent, on demand of the sheriff, in-fact) filed a "Third Party Claim", claiming that
shall file a bond approved by the court to Nacua was indebted to him and that, to secure
indemnify the third-party claimant in a sum not payment, Nacua had, through his attorney-in-
less than the value of the property levied upon. fact (petitioner's brother Florido Jr.), executed in
In case of disagreement as to such value, the petitioner's favor a contract of pledge over his
same shall be decided by the court issuing the vessels.
writ of attachment. No claim for damages for the
taking or keeping of the property may be ISSUE:
enforced against the bond unless the action whether the petitioner had the personality to
therefor is filed within one hundred twenty (120) challenge the attachment writ and bond. - NO
days from the date of the filing of the bond.
The sheriff shall not be liable for damages for RULING:
the taking or keeping of such property to any Section 14, Rule 57 of the 1997 Rules of Civil
such third-party claimant, if such bond shall be Procedure categorically provides specific
filed. Nothing herein contained shall prevent remedies to one claiming a right to property
such claimant or any third person from attached in a suit in which the claimant is not a
vindicating his claim to the property, or prevent party.
the attaching party from claiming damages
against a third-party claimant who filed a Here, instead of submitting an affidavit of his title
stating his right to the vessels, petitioner elected
to pursue his claim in the respondent's action
against Nacua. The veracity of his claim should RTC granted the attachment of Morning Star’s
therefore be threshed out there. properties.

Petitioner all but trivializes the fact that his The petitioners Yu filed their Motion for Leave to
motion and subsequent special civil action for Intervene, claiming that they have legal interest
certiorari were filed in disregard of the 1997 in the properties subject of the preliminary
Revised Rules of Civil Procedure. He attempts attachment. The petitioners Yu claimed that
to justify this with the conjectural and self- while the subject properties were registered in
serving statement that "the filing of an Affidavit the name of respondent Morning Star,
of Claim, or a separate action cannot promptly the latter is a mere nominal owner of the subject
relieve the petitioner of the harsh consequences properties since they were the real owners; and
of the unlawful levy on attachment. In actuality, that they had transferred the titles covering the
thus, no other plain, speedy and adequate subject properties to respondent Morning Star
remedy in the course of law available to only to facilitate the latter's loan with HDMF
petitioner other than the above-named special under the GLAD program.
action (sic )."
The case has become decided in favor of
The emergence of third-party claims to protest Miranda.
the attachment of property is hardly new.
Later, RTC denied the petitioners Yu's Motion
A stranger to an action where property in which for Leave to Intervene, stating that they are not
he claims to have a right is attached must resort the registered owners of the properties, and that
to the remedies available under the Rules of their rights may be protected in a separate
Court. The only exception to this rule is when proceeding.
the sheriff mistakenly levies on properties in
which the defendant has no interest. In such an ISSUE:
event, a summary hearing is held upon Whether the petitioners Yu may still be allowed
application to determine if he has taken hold of to intervene. - NO
property not belonging to the judgment debtor.
RULING:
In this case, however, Solomon Nacua, Jr.'s First, the main case has already attained its
ownership of the vessels attached was never finality. The case where the petitioners Yu seek
disputed. Petitioner must therefore follow the to
prescribed procedure for vindicating his claim on intervene in has already ceased.
the vessels rather than attempt to erroneously
short-circuit the rules. Second, Petitioners Yu are not indispensable
parties since the only involvement of the
petitioners Yu in the civil case is their claim over
the subject properties registered in the name of
respondent Morning Star, which were subjected
Yu v. Miranda, G.R. No. 225752, 27 to preliminary attachment to secure the
judgment debt. It is only incidental to the cause
March 2019. of action subject civil case, i.e. , recovery of sum
DOCTRINE: of money based on an obligation to pay. The
civil case is centered on the recovery of sum of
money pursued by respondent Miranda against
FACTS: respondents Morning Star, et. al on the basis of
David Miranda v. Miranda Morning Sta is an the latter's obligation to pay the former for the
action for Sum of Money with Prayer for supply and financing of the backfilling materials
Issuance of Preliminary attachment. provided by respondent Miranda for the
respondents' housing project. The petitioners Yu
David Miranda supplied and financed the have no participation whatsoever in the
backfilling of Morning Star for the latter’s transaction entered into by the respondents
housing project. However, Morning Star Morning Star, Timmy, and Lilibeth with
defaulted in its obligation to pay. respondent Miranda.
 the payment of all the PBMCI obligations owing
At most, the petitioners Yu may only be the ABC.
considered necessary parties, but who ought to
be joined as a party if complete relief is to be PBMCI defaulted in the payment of all its loans.
accorded as to those already parties, or for a
complete determination or settlement of the ABC filed a complaint for sum of money with
claim subject of the action. prayer for a writ of preliminary attachment
against the PBMCI. Alfredo Ching was
Under Rule 57, Section 14 of the Rules of Court, impleaded as co-defendants.
if the property attached is claimed by any third
person, and such person makes an affidavit of The properties of Alfredo Ching were levied.
his title thereto, or right to the possession
thereof, stating the grounds of such right or title, Encarnacion T. Ching, assisted by her husband
and serves such affidavit upon the sheriff while Alfredo Ching, filed a Motion to Set Aside the
the latter has possession of the attached levy on attachment. She alleged inter alia that
property, and a copy thereof upon the the 100,000 shares of stocks levied on by the
attaching party, the sheriff shall not be bound to sheriff were acquired by her and her husband
keep the property under attachment, unless the during their marriage out of conjugal funds
attaching party or his agent, on demand of the after the Citycorp Investment Philippines was
sheriff, shall file a bond approved by the court to established. Furthermore, the indebtedness
indemnify the third-party claimant in a sum not covered by the continuing
less than the value of the property levied upon. guaranty/comprehensive suretyship contract
executed by petitioner Alfredo Ching for the
Here, no such affidavit was filed by the account of PBMCI did not redound to the benefit
petitioners Yu. Moreover, jurisprudence has held of the conjugal partnership. She, likewise,
that a writ of preliminary attachment is only a alleged that being the wife of Alfredo Ching, she
provisional remedy issued upon order of the was a third-party claimant entitled to file a
court where an action is pending; it is an motion for the release of the properties. She
ancillary remedy. Attachment is only adjunct to attached
the main suit. Therefore, it can have no therewith a copy of her marriage contract with
independent existence apart from a suit on a Alfredo Ching.
claim of the plaintiff against the defendant. In
other words, an attachment or garnishment is ISSUE:
generally ancillary to, and dependent on, a whether the petitioner-wife has the right to file
principal proceeding, either at law or in equity, the motion to quash the levy on attachment on
which has for its purpose a determination of the the 100,000 shares of stocks in the Citycorp
justice of a creditor's demand. Any relief against Investment Philippines - Yes.
such attachment could be disposed of only in
that case.
RULING:
I n Ong v. Tating , the sheriff may attach only
those properties of the defendant against whom
a writ of attachment has been issued by the
Ching v. Court of Appeals, G.R. No. court.
124642, 23 February 2004. 1) When the sheriff erroneously levies on
DOCTRINE: attachment and seizes the property of a
Remedies of 3rd party – Terceria, Summary third person in which the said defendant
Hearing & nullify the levy. holds no right or interest, the superior
authority of the court which has
FACTS: authorized the execution may be
the (PBMCI) obtained a loan from the Allied invoked by the aggrieved third person in
Banking Corporation (ABC). By virtue of this the same case.
loan, The PBMCI, through its Executive Vice- 2) Upon application of the third person, the
President Alfredo Ching, executed a promissory court shall order a summary hearing for
note and a continuing guaranty binding the purpose of determining whether the
themselves to jointly and severally guarantee sheriff has acted rightly or wrongly in the
 performance of his duties in the (a) By paying to the judgment obligee
execution of the writ of attachment, the proceeds of all sales of perishable or
more specifically if he has indeed levied other property sold in pursuance of the
on attachment and taken hold of order of the court, or so much as shall
property not belonging to the plaintiff. If be necessary to satisfy the judgment;
so, the court may then order the sheriff (b) If any balance remains due, by
to release the property from the selling so much of the property, real or
erroneous levy and to return the same personal, as may be necessary to
to the third person. In resolving the satisfy the balance, if enough for that
motion of the third party, the court does purpose remain in the sheriff's hands, or
not and cannot pass upon the question in those the clerk of the court;
of the title to the property with any (c) By collecting from all persons having
character of finality. It can treat the in their possession credits belonging to
matter only insofar as may be necessary the judgment obligor, or owing debts to
to decide if the sheriff has acted the latter at the time of the attachment of
correctly or not. If the claimant's proof such credits or debts, the amount of
does not persuade the court of the such credits and debts as determined by
validity of the title, or right of possession the court in the action, and stated in the
thereto, the claim will be denied by the judgment, and paying the proceeds of
court. such collection over to the judgment
3) The aggrieved third party may also avail obligee.
himself of the remedy of "terceria" by The sheriff shall forthwith make a return in
executing an affidavit of his title or right writing to the court of his proceedings under this
of possession over the property levied section and furnish the parties with copies
on attachment and serving the same to thereof. (15a)
the office making the levy and the
adverse party.
4) Such party may also file an action to
nullify the levy with damages resulting
Booklight, Inc. v. Tiu, G.R. No. 213650,
from the unlawful levy and seizure, 17 June 2019.
which should be a totally separate and DOCTRINE:
distinct action from the former case.

The abovementioned remedies are cumulative FACTS:

and any one of them may be resorted to by one Rudy O. Tiu (respondent) filed a case for
third party claimant without availing of the other Collection of Sum of Money, Damages,
remedies. Attorney's Fees, Litigation Expenses and
Attachment against Booklight, Inc. (petitioner)
In this case, the petitioner-wife filed her motion for the unpaid rentals.
to set aside the levy on attachment of the
100,000 shares of stocks in the name of Respondent's application for the issuance of a
petitioner-husband claiming that the said shares writ of attachment was granted by the RTC.
of stocks were conjugal in nature; hence, not Thus, petitioner's personal properties in the
liable for the account of her husband under his bookstore were attached and its funds in Rizal
continuing guaranty and suretyship agreement Commercial Banking Corporation were
with the PBMCI. The petitioner-wife had the right garnished.
to file the motion for said relief.
RTC: rule in favor of the Respondent.
CA: affirmed with modification, deleting some
Section 15. Satisfaction of judgment out of particulars.
property attached,  return of sheriff. — If
judgment be recovered by the attaching party Petitioner avers that the CA neglected to rule on
and execution issue thereon, the sheriff may its claim for refund of the advanced rental and
cause the judgment to be satisfied out of the deposit it allegedly paid to respondent
property attached, if it be sufficient for that amounting to a total of One Hundred Nine
purpose in the following manner: Thousand Four Hundred Forty Pesos
(P109,440.00). 16 Petitioner also argues that the pursuant to the provisions of this Rule to secure
electric bills should likewise be deleted for the the payment of the judgment shall become
same reason used by the CA in ruling for the charged on such counter-bond and bound to pay
deletion of the unpaid the judgment obligee upon demand the amount
security fees. due under the judgment, which amount may be
recovered from such surety or sureties after
ISSUE: notice and summary hearing in the same action.
Whether the refund may be claimed by the (17a)
Petitioner. – NO.

RULING: Albay Electric Cooperative v. Security

the satisfaction of judgment Pacific, G.R. No. 174189, 5 October
out of property attached is not mandatory to 2007.
warrant this Court to DOCTRINE:
unconditionally order the satisfaction of the
judgment against petitioner out
of the attached properties. FACTS:
ALECO filed a complaint for a sum of money
Sec. 15, Rule 57 - the sheriff may cause the and breach of contract with prayer for a writ of
judgment to be satisfied out of the property preliminary attachment against Roberto D.
attached, if it be sufficient for that purpose. Tuazon and/or R.D. Tuazon Construction. The
contract Tuazon allegedly breached despite his
The use of the word may clearly makes the receipt of a cash advance payment related to
procedure directory, in which case, the sheriff the construction of a power station project.
may disregard the properties attached and
proceed against other properties of the judgment Tuazon sought the dissolution of the writ by filing
debtor, if necessary. a counter-bond to be issued by SPAC
(respondent.
The proper procedure, therefore, is for the
prevailing party, respondent in this case, to ALECO opposed the dissolution alleging that
move for the execution of the judgment upon SPAC is financially incapable to undertake the
finality before the RTC, wherein the proper counterbond.
satisfaction thereof should be addressed.
RTC: ruled in favor of Aleco. Tuazon is ordered
Section 16. Balance due collected upon an to pay ALECO the amount of P9,000,000.00, as
execution; excess delivered to judgment obligor. actual and compensatory damages.
— If after realizing upon all the property
attached, including the proceeds of any debts or ALECO managed to get P2,000,000.00 from
credits collected, and applying the proceeds to [SPAC's] funds with the PCIB, Quezon Ave.
the satisfaction of the judgment less the Branch and remittances due petitioners from
expenses of proceedings upon the judgment any Toyota Cubao, Inc., including that garnished
balance shall remain due, the sheriff must from the Bureau of Treasury.
proceed to collect such balance as upon
ordinary execution. Whenever the judgment ISSUE:
shall have been paid, the sheriff, upon Whether there is GADALEJ in executing the writ
reasonable demand, must return to the in favor of ALECO – yes.
judgment obligor the attached property
remaining in his hands, and any proceeds of the RULING:
sale of the property attached not applied to the a recovery against the surety's counter-bond
judgment. (16a) may be allowed present the element of finality of
the judgment, and provided that the statutory
requirements on demand, notice and hearing
Section 17. Recovery upon the counter-bond. are complied with as provided in Section 17,
— When the judgment has become executory, Rule 57.
the surety or sureties on any counter-bond given
As determined by the appellate court, however, rendered against the attaching party, all the
the trial court, in grave abuse of discretion, proceeds of sales and money collected or
proceeded to issue the desired order of received by the sheriff, under the order of
execution against the counter-bond — and then attachment, and all property attached remaining
effectively reiterated it — notwithstanding the in any such officer's hands, shall be delivered to
absence of demand and the corresponding the party against whom attachment was issued,
notice and hearing in Civil Case. and the order of attachment discharged. (19a)

respondent SPAC was not furnished with a copy Section 20. Claim for damages on account of
of ALECO's motion for reconsideration of the improper, irregular or excessive attachment. —
Orde. It was imperative that [SPAC] be furnished An application for damages on account of
with a copy of the aforesaid motion for improper, irregular or excessive attachment
reconsideration because in the event that must be filed before the trial or before appeal is
ALECO's motion for reconsideration is granted, perfected or before the judgment becomes
the subject counter-bond will eventually be the executory, with due notice to the attaching party
subject for execution for the satisfaction of the and his surety or sureties setting forth the facts
judgment. Consequently in view of the lack of showing his right to damages and the amount
notice, it was impossible for [SPAC] to know that thereof. Such damages may be awarded only
ALECO was instituting an action against the after proper hearing and shall be included in the
counter-bond to answer for TUAZON's liability judgment on the main case.
under the judgment. Thus, following the settled If the judgment of the appellate court be
rule, a writ of execution for recovery on the favorable to the party against whom the
counter-bond issued against the surety who was attachment was issued he must claim damages
not given notice and an opportunity to be heard sustained during the pendency of the appeal by
is invalid. filing an application in the appellate court, with
notice to the party in whose favor the attachment
Thus, the trial court in granting the writ and was issued or his surety or sureties, before the
supplemental writ of execution against judgment of the appellate court becomes
SPAC was issued in grave abuse of discretion executory. The appellate court may allow the
because the decision against Tuazon was not application to be heard and decided by the trial
yet final when that court granted the motion for court.
execution against the counter-bond. This Nothing herein contained shall prevent the party
disposition, it should be stressed, should be against whom the attachment was issued from
taken in the above light, and not as exempting recovering in the same action the damages
SPAC, as surety, or its counter-bond, from the awarded to him from any property of the
liability of the principal debtor. attaching party not exempt from execution
should the bond or deposit given by the latter be
insufficient or fail to fully satisfy the award.

Section 18. Disposition of money deposited. —

Where the party against whom attachment had Excellent Quality Apparel, Inc. v.
been issued has deposited money instead of Visayan Surety & Insurance
giving counter-bond, it shall be applied under the Corporation, G.R. No. 212025, 1 July
direction of the court to the satisfaction of any
judgment rendered in favor of the attaching 2015
party, and after satisfying the judgment the DOCTRINE:
balance shall be refunded to the depositor or his
assignee. If the judgment is in favor of the party
against whom attachment was issued, the whole FACTS:
sum deposited must be refunded to him or his Win Multi-Rich filed a complaint for sum of
assignee. (18a) money and damages against petitioner Excellent
Quality, arising from the failure to pay the
Section 19. Disposition of attached property construction of factory building. It also prayed
where judgment is for party against whom for the issuance of a writ of attachment.
attachment was issued. — If judgment be
Win Multi-Rich secured bond from two sureties:
First, from respondent Visayan Surety for the improper, irregular or excessive attachment shall
filing of the writ. RTC granted the writ. be governed by Section 20, Rule 57.
This was countered by the petitioner by issuing
Equitable PCI Bank Check - to prevent the Requisites under Section 20, Rule 57 are as
enforcement of the writ of preliminary follows:
attachment on its equipment and machinery, 1. The application for damages must be filed in
petitioner k. RTC denied the Petitioner’s Motion. the same case where the bond was issued;
Thus, the RTC issued another order directing 2. Such application for damages must be filed
the deposit of the garnished funds of petitioner before the entry of judgment; and
to the cashier of the Clerk of Court then to Win 3. After hearing with notice to the surety.
Multi-Rich.
The first and second requisites relate to the
Second, from Far Eastern Surety and Insurance application for damages against the bond. An
Co., Inc. (FESICO) for the amount of application for damages must be filed in the
P9,000,000.00, to secure the withdrawal of the same case where the bond was issued, either
cash deposited by petitioner. Thus, Win Multi- (a) before the trial or
Rich was able to receive the funds of petitioner (b) before the appeal is perfected or
even before the trial began. (c) before the judgment becomes executory.

The RTC’s orders were annulled by CA The usual procedure is to file an application for
however, the CA decision failed to state an order damages with due notice to the other party and
to return the garnished amount which was taken his sureties. The other method would be to
from its bank account and given to Win incorporate the application in the answer with
Multi-Rich. compulsory counterclaim. The purpose of
requiring the application for damages to be filed
Petitioner contends that Visayan Surety and in the same proceeding is to avoid the
FESICO could be held liable because the Court, multiplicity of suit and forum shopping. It is also
in G.R. No. 175048, ruled that it cannot allow required to file the application against the bond
Win Multi-Rich to retain the garnished amount before the finality of the decision to prevent the
turned over by the RTC. alteration of the immutable judgment.

Visayan Surety asserted in its Comment that no HERE, the petitioner sufficiently incorporated an
application for damages was filed before the application for damages against the wrongful
Court in G.R. No. 175048. attachment in its answer with compulsory
counterclaim filed before the RTC. Petitioner
FESICO asserted its Comment that petitioner alleged that the issuance of the improper writ of
failed to comply with Section 20, Rule 57 of the attachment caused it actual damages in the
Rules of Court because the hearing on the amount of at least P3,000,000.00. It added that
motion for execution was conducted after the the Equitable PCI Bank Check No. 160149 it
decision in G.R. No. 175048 had already issued to the RTC Clerk of Court, to lift the
become final and executory. It also stated that improper writ of attachment, should be returned
petitioner failed to implead the surety to it. Evidently, these allegations constitute
respondents as parties petitioner's application for damages arising from
the wrongful attachment, and the said
ISSUE: application was timely filed as it was filed before
Whether Visayan and FISECO are liable to Win the finality of judgment.
Multi-Rich for the return of the bond. – Only
FISECO shall be liable. The next requisite, however, was not satisfied by
the petition.
RULING: Section 20, Rule 57 specifically requires that the
I There was an application for damages; but application for damages against the wrongful
there was no notice given to Visayan Surety. attachment, whether filed before the trial court or
The attachment bond was issued by Visayan appellate court, must be with due notice to the
Surety in order for Win Multi-Rich to secure the attaching party and his surety or sureties. Such
issuance of the writ of attachment. Hence, any damages may be awarded only after proper
application for damages arising from the
hearing and shall be included in the judgment on improperly disposed of or concealed, or
the main case. Due notice to the adverse party otherwise placed beyond the reach of creditors.
and its surety setting forth the facts supporting The garnished funds or attached properties
the applicant's right to damages and the amount could only be released to the attaching party
thereof under the bond is indispensable. The after a judgment in his favor is obtained. Under
surety should be given an opportunity to be no circumstance, whatsoever, can the garnished
heard as to the reality or reasonableness of the funds or attached properties, under the custody
damages resulting from the wrongful issuance of of the sheriff or the clerk of court, be released to
the writ. In the absence of due notice to the the attaching party before the promulgation of
surety, therefore, no judgment for damages may judgment.
be entered and executed against it.
Cash deposits and counterbonds posted by the
HERE, petitioner's answer with compulsory defendant to lift the writ of attachment is a
counterclaim, which contained the application for security for the payment of any judgment that
damages, was not served on Visayan Surety. the attaching party may obtain; they are, thus,
Also, a perusal of the records revealed that mere replacements of the property previously
Visayan Surety was not furnished any copies of attached. Accordingly, the P8,634,448.20 cash
the pleadings, motions, processes, and deposit of petitioner, as replacement of the
judgments concerned with the application for properties to be attached, should never
damages against the surety bond. Visayan have been released to Win Multi-Rich.
Surety was only notified of the application when
the motion for execution was filed by petitioner Sec. 20 v. Sec 17
after the judgment in G.R. No. 175048 had The nature of the surety bond of FESICO is to
become final and executory. enable Win Multi-Rich to withdraw the cash
deposit and. Corollarily, the surety bond of
Clearly, petitioner failed to comply with the FESICO substituted the cash deposit of
requisites under Section 20, Rule 57 because petitioner as a security for the judgment. Thus,
Visayan Surety was not given due notice on the to claim damages from the surety bond of
application for damages before the finality of FESICO, Section 17, Rule 57, there must be:
judgment. The subsequent motion for execution, (1) demand made upon the surety; and
which sought to implicate Visayan Surety, (2) notice and summary hearing on the same
cannot alter the immutable judgment anymore. action.
SEC 20 SEC 17
requires notice and allows a party to
hearing before the claim damages on
finality of the the surety bond after
judgment in an the judgment has
II. FESICO's bond is not covered by Section application for become executory.
20, Rule 57. damages
The surety bond of FESICO is not covered by in relation to Section in relation to Section
any of the provisions in Rule 57 of the Rules of 4, the surety bond 12, the cash deposit
Court because, in the first place, Win Multi-Rich shall answer for all or the counter-bond
should not have filed its motion to release the the costs which may shall secure the
cash deposit of petitioner and the RTC should be adjudged to the payment of any
not have granted the same. The release of the adverse party and all judgment that the
cash deposit to the attaching party is anathema damages which he attaching party may
to the basic tenets of a preliminary attachment. may sustain by recover in the action.
reason of the Stated differently, the
The chief purpose of the remedy of attachment attachment. In other damages sought to
is to secure a contingent lien on defendant's words, the damages be charged against
property until plaintiff can, by appropriate sought to be enforced the surety bond are
proceedings, obtain a judgment and have such against the surety liquidated.
property applied to its satisfaction, or to make bond are
some provision for unsecured debts in cases unliquidated. The final judgment
where the means of satisfaction thereof are had already
liable to be removed beyond the jurisdiction, or
 Necessarily, a notice determined the has acquired jurisdiction over the surety, and the
and hearing before amount to be provisions of Sections 12 and 17 of Rule 57
the finality of awarded to the became operational. Thus, the Court holds that
judgment must be winning litigant on the FESICO is solidarily liable under its surety bond
undertaken to main action. Thus, with its principal Win Multi-Rich.
properly determine there is nothing left to
the amount of do but to execute the
damages that was judgment against the
suffered by the losing party, or in
defendant due to the case of insufficiency,
improper attachment.
These damages to be
against its sureties.
RULE 58 Preliminary Injunction
imposed against the Section 1. Preliminary injunction
attaching party and defined; classes. — A preliminary injunction
his sureties are is an order granted at any stage of an action
different from the
principal case, and or proceeding prior to the judgment or final
must be included in order, requiring a party or a court, agency
the judgment. or a person to refrain from a particular act
or acts. It may also require the performance
Here, a demand against FESICO had been of a particular act or acts, in which case it
made, and that it was given due notice and an shall be known as a preliminary mandatory
opportunity to be heard on its defense. injunction. (1a)
First , petitioner filed a motion for execution, a
copy of which was furnished to FESICO;
Section 2. Who may grant preliminary
second, petitioner filed a manifestation that injunction. — A preliminary injunction may
FESICO was duly served with the said motion be granted by the court where the action or
and notified of the hearing; proceeding is pending. If the action or
third , hearing on the motion for execution, the
counsels for petitioner, Win Multi-Rich and proceeding is pending in the Court of
FESICO were all present; Appeals or in the Supreme Court, it may be
fourth , in an Order FESICO was given fifteen issued by said court or any member thereof.
(15) days to submit its comment or opposition to (2a)
the motion for execution; 70 and
lastly, FESICO filed its comment on the motion. Section 3. Grounds for issuance of
preliminary injunction. — A preliminary
Based on the foregoing, the requirements under injunction may be granted when it is
Section 17, Rule 57 have been more than
satisfied.
established:
(a) That the applicant is entitled to the relief
Indeed, FESICO cannot escape liability on its demanded, and the whole or part of such
surety bond issued in favor of petitioner. The relief consists in restraining the commission
purpose of FESICO's bond was to secure the
withdrawal of the cash deposit and to answer or continuance of the act or acts
any damages that would be inflicted against complained of, or in requiring the
petitioner in the course of the proceedings. Also, performance of an act or acts either for a
the undertaking signed by FESICO stated that limited period or perpetually;
the duration of the effectivity of the bond shall be
from its approval by the court until the action is (b) That the commission, continuance or
fully decided, resolved or terminated. non-performance of the act or acts
FESICO cannot simply escape liability by complained of during the litigation would
invoking that it was not a party in G.R. No.
175048. From the moment that FESICO issued
probably work injustice to the applicant; or
Surety Bond No. 10198 to Win Multi-Rich and (c) That a party, court, agency or a person is
the same was posted before the RTC, the court doing, threatening, or is attempting to do,
or is procuring or suffering to be done some absent therefrom or is a nonresident
act or acts probably in violation of the rights thereof, the requirement of prior or
of the applicant respecting the subject of contemporaneous service of summons shall
the action or proceeding, and tending to not apply.
render the judgment ineffectual. (3a) (d) The application for a temporary
Section 4. Verified application and bond for restraining order shall thereafter be acted
preliminary injunction or temporary upon only after all parties are heard in a
restraining order. — A preliminary summary hearing which shall be conducted
injunction or temporary restraining order within twenty-four (24) hours after the
may be granted only when: sheriff's return of service and/or the
(a) The application in the action or records are received by the branch selected
proceeding is verified, and shows facts by raffle and to which the records shall be
entitling the applicant to the relief transmitted immediately.
demanded; and Section 5. Preliminary injunction not
(b) Unless exempted by the court the granted without notice; exception. — No
applicant files with the court where the preliminary injunction shall be granted
action or proceeding is pending, a bond without hearing and prior notice to the
executed to the party or person enjoined, in party or person sought to be enjoined. If it
an amount to be fixed by the court, to the shall appear from facts shown by affidavits
effect that the applicant will pay to such or by the verified application that great or
party or person all damages which he may irreparable injury would result to the
sustain by reason of the injunction or applicant before the matter can be heard
temporary restraining order if the court on notice, the court to which the
should finally decide that the applicant was application for preliminary injunction was
not entitled thereto. Upon approval of the made, may issue a temporary restraining
requisite bond, a writ of preliminary order to be effective only for a period of
injunction shall be issued. (4a) twenty (20) days from service on the party
(c) When an application for a writ of or person sought to be enjoined, except as
preliminary injunction or a temporary herein provided. Within the said twenty-day
restraining order is included in a complaint period, the court must order said party or
or any initiatory pleading, the case, if filed person to show cause, at a specified time
in a multiple-sala court, shall be raffled only and place, why the injunction should not be
after notice to and in the presence of the granted, determine within the same period
adverse party or the person to be enjoined. whether or not the preliminary injunction
In any event, such notice shall be preceded, shall be granted, and accordingly issue the
or contemporaneously accompanied, by corresponding order. (Bar Matter No. 803,
service of summons, together with a copy 17 February 1998)
of the complaint or initiatory pleading and However, and subject to the provisions of
the applicant's affidavit and bond, upon the the preceding sections, if the matter is of
adverse party in the Philippines. extreme urgency and the applicant will
However, where the summons could not be suffer grave injustice and irreparable injury,
served personally or by substituted service the executive judge of a multiple-sala court
despite diligent efforts, or the adverse party or the presiding judge of a single sala court
is a resident of the Philippines temporarily may issue ex parte a temporary restraining
order effective for only seventy-two (72) It may further be denied, or if granted, may
hours from issuance but he shall be dissolved, if it appears after hearing that
immediately comply with the provisions of although the applicant is entitled to the
the next preceding section as to service of injunction or restraining order, the issuance
summons and the documents to be served or continuance thereof, as the case may be,
therewith. Thereafter, within the aforesaid would cause irreparable damage to the
seventy-two (72) hours, the judge before party or person enjoined while the
whom the case is pending shall conduct a applicant can be fully compensated for such
summary hearing to determine whether the damages as he may suffer, and the former
temporary restraining order shall be files a bond in an amount fixed by the court
extended until the application for conditioned that he will pay all damages
preliminary injunction can be heard. In no which the applicant may suffer by the
case shall the total period of effectivity of denial or the dissolution of the injunction or
the temporary restraining order exceed restraining order. If it appears that the
twenty (20) days, including the original extent of the preliminary injunction or
seventy-two hours provided herein. restraining order granted is too great, it
In the event that the application for may be modified. (6a)
preliminary injunction is denied or not Section 7. Service of copies of bonds; effect
resolved within the said period, the of disapproval of same. — The party filing a
temporary restraining order is deemed, bond in accordance with the provisions of
automatically vacated. The effectivity of a this Rule shall forthwith serve a copy of
temporary restraining order is not such bond on the other party, who may
extendible without need of any judicial except to the sufficiency of the bond, or of
declaration to that effect and no court shall the surety or sureties thereon. If the
have authority to extend or renew the same applicant's bond is found to be insufficient
on the same ground for which it was issued. in amount, or if the surety or sureties
However, if issued by the Court of Appeals thereon fail to justify, and a bond sufficient
or a member thereof, the temporary in amount with sufficient sureties approved
restraining order shall be effective for sixty after justification is not filed forthwith the
(60) days from service on the party or injunction shall be dissolved. If the bond of
person sought to be enjoined. A restraining, the adverse party is found to be insufficient
order issued by the Supreme Court or a in amount, or the surety or sureties thereon
member thereof shall be effective until fail to justify a bond sufficient in amount
further orders. (5a) with sufficient sureties approved after
Section 6. Grounds for objection to, or for justification is not filed forthwith, the
motion of dissolution of, injunction or injunction shall be granted or restored, as
restraining order. — The application for the case may be. (8a)
injunction or restraining order may be Section 8. Judgment to include damages
denied, upon a showing of its insufficiency. against party and sureties. — At the trial,
The injunction or restraining order may also the amount of damages to be awarded to
be denied, or, if granted, may be dissolved, either party, upon the bond of the adverse
on other grounds upon affidavits of the party, shall be claimed, ascertained, and
party or person enjoined, which may be awarded under the same procedure
opposed by the applicant also by affidavits. prescribed in section 20 of Rule 57. (9a)
Section 9. When final injunction granted. —
If after the trial of the action it appears that
the applicant is entitled to have the act or
acts complained of permanently enjoined
the court shall grant a final injunction
perpetually restraining the party or person
enjoined from the commission or
continuance of the act or acts of confirming
the preliminary mandatory injunction.