Civ Pro Case 2

5/1/2017 SUPREMECOURTREPORTSANNOTATEDVOLUME204
VOL. 204, NOVEMBER 29, 1991 343

Davao Light & Power Co., Inc. vs. Court of Appeals
*
G.R. No. 93262. November 29,1991.
DAVAO LIGHT 6, POWER CO., INC., petitioner, vs. THE

COURT OF APPEALS, QUEENSLAND HOTEL or
MOTEL or QUEENSLAND TOURIST INN, and
TEODORICO ADARNA, respondents.
Courts Jurisdiction, how acquired.It is incorrect to theorize

that after an action or proceeding has been commenced and
jurisdiction over the person of the plaintiff has been vested in the
court, but before acquisition of jurisdiction over the person of the
defendant (either by service of summons or his voluntary
submission to the courts authority), nothing can be validly done
by the plaintiff or the court. It is wrong to assume that the
validity of acts done during this period should be dependent on, or
held in suspension until, the actual obtention of jurisdiction over
the defendants person. The obtention by the court of jurisdiction
over the person of the defendant is one thing quite another is the
acquisition of jurisdiction over the person of the plaintiff or over
the subjectmatter or nature of the action, or the res or object
thereof. An action or proceeding is commenced by the filing of the
complaint or other initiatory pleading. By that act, the
jurisdiction of the court over the subject matter or nature of the
action or proceeding is invoked or called into activity and it is
thus that the court acquires jurisdiction over said subject matter
or nature of the action. And it is by that selfsame act of the
plaintiff (or petitioner) of filing the complaint (or other
appropriate pleading)by which he signifies his submission to
the courts power and authoritythat jurisdiction is acquired by
the court over his person. On the other hand, jurisdiction over the
person of the defendant is obtained, as above stated, by the
service of summons or other coercive process upon him or by his
voluntary submission to the authority of the court.
________________
* EN BANC.
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344
344 SUPREME COURT REPORTS ANNOTATED
Civil Procedure Preliminary attachment may be validly

applied for and granted before defendant is summoned or is heard
from.Rule 57 xxx 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 complaintwhich, as above pointed
out, is 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 feesthe plaintiff may apply for and obtain a
writ of preliminary attachment upon fulfillment of the pertinent
requisites laid down by law, and that he may do so at any time,
either before or after service of summons on the defendant. And
this indeed, has been the immemorial practice sanctioned by the
courts: for the plaintiff or other proper party to incorporate the
application for attachment in the complaint or other appropriate
pleading (counterclaim, crossclaim, thirdparty claim) and for the
Trial Court to issue the writ exparte at the commencement of the
action if it finds. the application otherwise sufficient in form and
substance.
Same Writs of attachment may properly issue ex parte.For

the guidance of all concerned, the Court reiterates and reaffirms
the proposition that writs of attachment may properly issue ex
parte provided that the Court is satisfied that the relevant
requisites therefor have been fulfilled by the applicant, although
it may, in its discretion, require prior hearing on the application
with notice to the defendant but that levy on property pursuant
to the writ thus issued may not be validly effected unless
preceded, or contemporaneously accompanied, by service on the
defendant of summons, a copy of the complaint (and of the
appointment of guardian ad litem, if any), the application for
attachment (if not incorporated in but submitted separately from
the complaint), the order of attachment, and the plaintiff s
attachment bond.
PETITION for review from the decision of the Court of

Appeals.
The facts are stated in the opinion of the Court.

Breva & Breva Law Offices for petitioner.
GocOng & Associates for private respondents.
NARVASA, J.:
Subject of the appellate proceedings at bar is the decision of
345
VOL. 204, NOVEMBER 29, 1991 345

the Court of Appeals in CAG.R. Sp. No. 1967 entitled

Queensland Hotel, Inc., etc. and Adarna v. Davao Light
1
&
Power Co., Inc.," promulgated on May 4,1990. That
decision nullified and set aside the writ of preliminary
attachment
2
issued by the Regional Trial Court of Davao
City in Civil Case No. 1951389 on application of the
plaintiff (Davao Light 6, Power Co.), before the service of
summons on the defendants (herein respondents
Queensland Co., Inc. and Adarna).
Following is the chronology of the undisputed material
facts culled from the Appellate Tribunals judgment of May
4,1990.
1. On May 2,1989 Davao Light 6, Power Co., Inc.

(hereafter, simply Davao Light) filed a verified
complaint for recovery of a sum of money and
damages against Queensland Hotel, etc. and
Teodorico Adarna (docketed as Civil Case No.
1951389). The complaint contained an ex parte
application for a writ of preliminary attachment.
2. On May 3, 1989 Judge Nartatez, to whose branch
the case was assigned by raffle, issued an Order
granting the ex parte application and fixing the
attachment bond at P4,600,513.37.
3. On May 11.1989 the attachment bond having been
submitted by Davao Light, the writ of attachment
issued.
4. On May 12,1989, the summons and a copy of the
complaint, as well as the writ of attachment and a
copy of the attachment bond, were served on
defendants Queensland and Adarna and pursuant
to the writ, the sheriff seized properties belonging
to the latter.
5. On September 6, 1989, defendants Queensland and

Adarna filed a motion to discharge the attachment
for lack of jurisdiction to issue the same because at
the time the order of attachment was promulgated
(May 3, 1989) and the attachment writ issued (May
11,1989), the Trial Court had not yet acquired
jurisdiction over the cause and over the persons of
the defendants.
6. On September 14,1989, Davao Light filed an
opposition to the motion to discharge attachment.
________________
1 Jorge S, Imperial, J., ponente Reynato J. Puno and Artemon Luna,

JJ., concurring.
2 Branch 8, presided over by Hon. Milagros C. Nartatez.
346

7. On September 19,1989, the Trial Court issued an

Order denying the motion to discharge.
This Order of September 19, 1989 was successfully

challenged by Queensland and Adarna in a special civil
action of certiorari instituted by them in the Court of
Appeals. The Order was, as aforestated, annulled b the
Court of Appeals in its Decision of May 4,1990. The Appell
te Courts decision closed with the following disposition:
x x the Orders dated May 3, 1989 granting the issuance of a writ

of preliminary attachment, dated September 19, 1989 denying the
motion to discharge attachment dated November 7, 1989 denying
petitioners motion for reconsideration as well as all other orders
emanating therefrom, specially the Writ of Attachment dated May
11, 1989 and Notice of Levy on Preliminary Attachment dated
May 11, 1989, are hereby declared null and void and the
attachment hereby ordered DISCHARGED."
The Appellate Tribunal declared that
x x x While it is true that a prayer for the issuance of a writ of

preliminary attachment may be included in the complaint, as is
usually done, it is likewise true that the Court does not acquire
jurisdiction over the person of the defendant until he is duly sum
moned or voluntarily appears, and adding the phrase that it be
issued ex parte does not confer said jurisdiction before actual

summons had been made, nor retroact jurisdiction upon summons
being made. x x.
3
It went on to say, citing Sievert v. Court of Appeals, that
in a proceedings in attachment, the critical time which
must be identified is x x when the trial court acquires
authority under law to act coercively against the defendant
or his property x x and that that critical time is the time
of the vesting of jurisdiction in the court over the person of
the defendant in the main case.
Reversal of this Decision of the Court of Appeals of May
4, 1990 is what Davao Light seeks in the present appellate
proceedings.
________________
3 G.R. No. 84034, Dec. 22,1988,168 SCRA 692 (1988).
347
VOL. 204, NOVEMBER 29, 1991 347

The question is whether or not a writ of preliminary

attachment may issue ex parte against a defendant before
acquisition of jurisdiction of the latters person by service of
summons or his voluntary submission to the Courts
authority.
The Court rules that the question must be answered in
the affirmative and that consequently, the petition for
review will have to be granted.
It is incorrect to theorize that after an action or
proceeding has been commenced and jurisdiction over the
person of the plaintiff has been vested in the court, but
before the acquisition of jurisdiction over the person of the
defendant (either by service of summons or his voluntary
submission to the courts authority), nothing can be validly
done by the plaintiff or the court. It is wrong to assume
that the validity of acts done during this period should be
dependent on, or held in suspension until, the actual
obtention of jurisdiction over the defendants person. The
obtention by the court of jurisdiction over the person of the
defendant is one thing quite another is the acquisition of
jurisdiction over the person of the plaintiff or over the
subjectmatter or nature of the action, or the res or object
thereof. An action or proceeding is commenced4 by the filing
of the complaint or other initiatory pleading. By that act,
the jurisdiction of the court over the subject matter or

nature of5
the action or proceeding is invoked or called into
activity and it is thus
________________
4 Sec. 6, Rule 2, Rules of Court.
N.B. The action is not deemed commenced, however, and will not be deemed to
interrupt the running of the period of prescription, unless and until the docket and
other court fees are , fully paid. SEE Manchester Development Corporation v.
Court of Appeals, 149 SCRA 562 (1987) Sun Insurance Office, Ltd., et al. v.
Asuncion, et al., G.R. No. 7993738, Feb. 13, 1989 Tacay v. Regional Trial Court
of Tagum, G.R. No. 8807577, Dec. 20, 1989 Ayala Corporation, et al. v. Madayag,
G.R. No. 88421, Jan. 30, 1990 Hodges v. Court of Appeals, G.R. No. 87617, April
6, 1990 SEE also Lacson v. Luis Reyes, etc., G.R. No. 86250, Feb. 26,1990
Sapugay v. Court of Appeals, G.R. No. 86791, March 21,1990,
5 Moran, Comments on the Rules, 1979 ed. Vol. 1, p. 54, citing Caluag
v. Pecson, 82 Phil. 8 Francisco, The Revised Rules of Court,
348

that the court acquires jurisdiction

6
over said subject matter
or nature of the action. And it is by that selfsame act of
the plaintiff (or petitioner) of filing the complaint (or other
appropriate pleading)by which he signifies his
submission to the courts power and authoritythat 7
jurisdiction is acquired by the court over his person. On
the other hand, jurisdiction over the person of the
defendant is obtained, as above stated, by the service of
summons or other coercive process upon him or 8
by his
voluntary submission to the authority of the court.
The events that follo or the filing of the complaint as a
matter of routine are well known. After the complaint is
filed, summons issues to the defendant, the summons is
then transmitted to the sheriff, and finally, service of the
summons is effected on the defendant in any of the ways
authorized by the Rules of Court. There is thus ordinarily
some appreciable interval of time between the day of the
filing of the complaint and the day of service of summons of
the defendant. During this period, different acts may be
done by the plaintiff or by the Court, which are of
unquestionable validity and propriety. Among these,9 for
example, are the appointment of a guardian ad litem, the
grant
________________
1973 ed., Vol. 1, p. 120 Feria, Civil Procedure, 1969 ed., pp. 1718.
6 Defined as the power to hear and determine cases of the general class
to which the proceedings in question belong * *, conferred by the sovereign
authority which organizes the court and defines its powers. Francisco, The
Revised Rules of Court, 1973 ed., Vol. I, p. 117, citing Reyes v. Diaz, 73
Phil. 484,486.
7 Feria, op cit., p. 19, citing Manila Railroad Co. v. AttorneyGeneral, 20
Phil 523, King Mau Wu v. Sycip, 94 Phil. 784, and 21 C.J.S., 122 Moran,
op cit., p. 55, citing M.R.R. Co. v. AttorneyGeneral, 20 Phil 523 (in turn
citing Ayers v. Watson, 113 U.S. 694), and Toledano v. Severino, 78 Phil.
783 Francisco, op cit., p. 125 citing, additionally, 21 C.J.S., 122.
8 Feria, op cit., p. 20, citing 21 C.J.S., 123 Pennoyer v. Neff, 95 U.S.
714, Banco EspaolFilipino v. Palanca, 37 Phil. 921, and Perkins v.
Dizon, 69 Phil. 186 Moran, op cit., citing Banco EspaolFilipino v.
Palanca, 37 Phil. 921, Infante v. Toledo, 44 Phil. 834, and Nilo v. Romero,
L15195, March 29, 1961 Francisco, op cit., p. 126 citing Sharruf v.
Bubla, et al., No. L17029, Sept. 30, 1964.
9 See. 5, Rule 3.
349
VOL. 204, NOVEMBER 29, 1991 349

Davao Light &Power Co., Inc. vs. Court of Appeals
of authority to 10the plaintiff to prosecute the suit as a

pauper litigant, the amendment of the complaint by the 11
plaintiff as a matter of right without leave of court,
authorization12
by the Court of service of summons by
publication, 13 the dismissal of the action by the plaintiff on
mere notice.
This, too, is true with regard to the provisional remedies
of preliminary attachment,14
preliminary injunction,
receivership or replevin. They may be validly and properly
applied for and granted even before the defendant is
summoned or is heard from.
A preliminary attachment may be defined, paraphrasing
the Rules of Court, as the provisional remedy in virtue of
which a plaintiff or other proper party may, at the
commencement of the action or at any time thereafter,
have the property of the adverse party taken into the
custody of the court as security for15
the satisfaction of any
judgment that may be recovered. It is a remedy which is
purely statutory in respect of which the law 16requires 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."17
The phrase, at the commencement of the action, obviously
refers to the date of the filing of the complaintwhich, as
above
________________
10 Sec. 22, Rule 3.

11 Sec. 2, Rule 10.
12 Sec. 16 or 17, Rule 14.
13 Sec. 1, Rule 17.
14 Rules 57, 58, 59 and 60, respectively SEE footnote 29, infra.
15 SEC. 1, Rule 57, Rules of Court. Another definition, given in 4 Words
and Phrases 727 (1940), citing cases, is that it is a provisional remedy,
auxiliary or incidental to the main action, whereby the debtors property
capable of being taken under levy and execution is placed under custody of
the law pending the determination of the cause, to secure the payment of
any judgment that may be recovered therein.
16 SEE Salas v. Adil, 90 SCRA 126, cited in Sievert v. CA., 168 SCRA
698.
17 Sec. 1.
350

pointed out,18 is 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 commencedby the filing of
the complaint and the payment of all requisite docket and
other feesthe plaintiff may apply for and obtain a writ of
preliminary attachment upon fulfillment of the pertinent
requisites laid down by law, and that he may do so at any
time, either before or after service of summons on the
defendant. And this indeed, has been the immemorial
practice sanctioned by the courts: for the plaintiff or other
proper party to incorporate the application for attachment
in the complaint or other appropriate pleading
(counterclaim, crossclaim, thirdparty claim) and for the
Trial Court to issue the writ exparte at the commencement
of the action if it finds the application otherwise sufficient
in form and substance.
19
In Toledo v. Burgos, this Court ruled that
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19
In Toledo v. Burgos, this Court ruled that a hearing on
a motion or application for preliminary attachment is not
generally necessary unless 20otherwise directed by the Trial
Court in its discretion.21
And in Filinvest Credit
Corporation v. Relova, the Court declared that "(n)othing
in the Rules of Court makes notice and hearing
indispensable and mandatory requisites for the issuance of
a writ of attachment. The only prerequisite is that the
Court be satisfied, upon consideration of the affidavit of
the applicant or of some other person who personally
knows the facts, that a sufficient cause of action exists, that
the case is one of those mentioned in Section 1 xx (Rule 57),
that there is no other sufficient security for the claim
sought to be enforced by the action, and that the amount
due to the applicant, or the
________________
18 SEE footnote 6, supra.

19 168 SCRA 513 (Dec. 19, 1988). In this case, this Court ultimately
ruled that the application for preliminary attachment ex parte should
have been denied because the fundamental requisites under Rule 57,
Section 1 did not exist, and not because ex parte applications are per se
illegal.
20 La Granja, Inc. v. Samson, 58 Phil. 378, 380.
21 117 SCRA 420, 428429, cited in Francisco, op cit., 1985 ed.,
Provisional Remedies, pp. 3132.
351
VOL. 204, NOVEMBER 29, 1991 351

value of the property the possession of which he is entitled

to recover, is as much as the sum for which the order22 (of
attachment) is granted above all legal counterclaims." If
the court23be so satisfied, the order of attachment shall be
granted," and the writ shall issue upon the applicants
posting of a bond executed to the adverse party in an
amount to be fixed by the judge, not exceeding the
plaintiffs claim, conditioned that the latter will pay all the
costs which may be adjudged to the adverse party and all
damages which he may sustain by reason of the
attachment, if the court shall finally
24
adjudge that the
applicant was not entitled thereto."
In Mindanao Savings & Loan Association, Inc. v. Court
of Appeals, decided on April 18, 1989, 25 this Court had
occasion to emphasize the postulate that no hearing is
required on an application for preliminary attachment,

with notice to the defendant, for the reason that this
would defeat the objective of the remedy xx (since the)
time which such a hearing would take, could be enough to
enable the defendant to abscond or dispose of his property
before a writ of attachment issues.
26
As observed by a
former member of this Court, such a procedure would
warn absconding debtorsdefendants of the commencement
of the suit against them and the probable seizure of their
properties, and thus give them the advantage of time to
hide their assets, leaving the creditorplaintiff holding the
proverbial empty bag it would place the creditorapplicant
in danger of losing any security for a favorable judgment
and thus give him only an illusory victory.
Withal, ample modes of recourse against a preliminary
attachment are secured by law to the defendant. The
relative ease with which a preliminary attachment may be
obtained is matched and paralleled by the relative facility
with which the
________________
22 SEC. 3, Rule 57.

23 Id., SEE Central Capiz v. Salas, 43 Phil. 930, 931.
24 SEC. 4, Rule 57.
25 172 SCRA 480, 484 (April 18,1989), per GrioAquino, J., citing
Belisle Investment & Finance Co., Inc. v. State Investment House, Inc.,
72927, June 30, 1987 Filinvest Credit Corp. v. Relova, 117 SCRA 420).
26 Hon. Abraham F. Sarmiento, who retired on October 9,1991.
352

attachment may legitimately be prevented or frustrated.

These modes of recourse against preliminary attachments
granted by Rule 57 were discussed at some length by the
separate opinion in Mindanao Savings & Loans Asso. Inc.
v. C.A., supra.
That separate opinion stressed that there are two (2)
ways of discharging an attachment: first, by the posting of
a counterbond and second, by a showing of its improper or
irregular issuance.
1.0. The submission of a counterbond is an efficacious
mode of lifting an attachment already enforced against
property, or even of preventing its enforcement altogether.
1.1. When property has already been seized under

attachment, the attachment may be discharged upon
counterbond in accordance with Section 12 of Rule 57.
SEC. 12. Discharge of attachment upon giving counterbond.At

any time after an order of attachment has been granted, the party
whose property has been attached or the person appearing in his
behalf, may, upon reasonable notice to the applicant, apply to the
judge who granted the order, or to the judge of the court in which
the action is pending, for an order discharging the attachment
wholly or in part on the security given x x in an amount equal to
the value of the property attached as determined by the judge to
secure the payment of any judgment that the attaching creditor
may recover in the action. x x.
1.2, But even before actual levy on property, seizure under

attachment may be prevented also upon counterbond. The
defendant need not wait until his property is seized before
seeking the discharge of the attachment by a counterbond.
This is made possible by Section 5 of Rule 57.
SEC. 5. Manner of attaching property.The officer executing the

order shall without delay attach, to await judgment and execution
in the action, all the properties of the party against whom the
order is issued in the province, not exempt from execution, or so
much thereof as may be sufficient to satisfy the applicants
demand, unless the former makes a deposit with the clerk or judge
of the court from which the order issued, or gives a counterbond
executed to the applicant, in an amount sufficient to satisfy such
demand besides costs, or in an amount equal to the value of the
property which is about to be attached,
353
VOL. 204, NOVEMBER 29, 1991 353

to secure payment to the applicant of any judgment which he may

recover in the action. x x. (Italics supplied)
2.0. Aside from the filing of a counterbond, a preliminary

attachment may also be lifted or discharged on the ground
that it has been irregularly or improperly issued, in
accordance with Section 13 of Rule 57. Like the first, this
second mode of lifting an attachment may be resorted to
even before any property has been levied on. Indeed, it may
be availed of after property has been released from a levy on
attachment, as is made clear by said Section 13, viz.:
SEC. 13. Discharge of attachment for improper or irregular

issuance.The party whose property has been attached may also,
at any time either BEFORE or AFTER the release of the attached
property, or before any attachment shall have been actually levied,
upon reasonable notice to the attaching creditor, apply to the
judge who granted the order, or to the judge of the court in which
the action is pending, for an order to discharge the attachment on
the ground that the same was improperly or irregularly issued. If
the motion be made on affidavits on the part of the party whose
property has been attached, but not otherwise, the attaching
creditor may oppose the same by counteraffidavits or other
evidence in addition to that on which the attachment was made. x
x. (Italics supplied)
This is so because "(a)s pointed out in Calderon v. I.A.C.,

155 SCRA 531 (1987), The attachment debtor cannot be
deemed to have waived any defect in the issuance of the
attachment writ by simply availing himself of one way of
discharging the attachment writ, instead of the other.
Moreover, the filing of a counterbond is a speedier way of
discharging the attachment writ maliciously sought out by
the attaching creditor instead of the other way, which, in
most instances x x would require presentation of evidence
in a fullblown trial on the merits, and 27cannot easily be
settled in a pending incident of the case.
It may not be amiss to here reiterate other related
principles dealt with28
in Mindanao Savings & Loans Asso.
Inc. v. C.A., supra., to wit:
________________
27 172 SCRA 480, 488.

28 At pp. 488489.
354

(a) When an attachment may not be dissolved by a showing

of its irregular or improper issuance:
x x (W)hen the preliminary attachment is issued upon a ground

which is at the same time the applicants cause of action e.g., an
action for money or property embezzled or fraudulently
misapplied or converted to his own use by a public officer, or an
officer of a corporation, or an attorney, factor, broker, agent, or
clerk, in the course of his employment as such, or by any other
person in a fiduciary capacity, or for a willful violation of duty.

(Sec. 1 [b], Rule 57), or an action against a party who has been
guilty of fraud in contracting the debt or incurring the obligation
upon which the action is brought (Sec. 1 [d], Rule 57), the
defendant is not allowed to file a motion to dissolve the
attachment under Section 13 of Rule 57 by offering to show the
falsity of the factual averments in the plaintiffs application and
affidavits on which the writ was basedand consequently that
the writ based thereon had been improperly or irregularly issued
(SEE Benitez v. I.A.C., 154 SCRA 41)the reason being that the
hearing on such a motion for dissolution of the writ would be
tantamount to a trial of the merits of the action. In other words,
the merits of the action would be ventilated at a mere hearing of a
motion, instead of at the regular trial. Therefore, when the writ of
attachment is of this nature, the only way it can be dissolved is by
a counterbond (G.B. Inc. v. Sanchez, 98 Phil, 886)."
(b) Effect of the dissolution of a preliminary attachment on

the plaintiffs attachment bond:
x x. The dissolution of the preliminary attachment upon security

given, or a showing of its irregular or improper issuance, does not
of course operate to discharge the sureties on plaintiffs own
attachment bond. The reason is simple. That bond is executed to
the adverse party, x x conditioned that the x x (applicant) will pay
all the costs which may be adjudged to the adverse party and all
damages which he may sustain by reason of the attachment, if the
court shall finally adjudge that the applicant was not entitled
thereto (SEC. 4, Rule 57). Hence, until that determination is
made, as to the applicants entitlement to the attachment, his
bond must stand and cannot be withdrawn.
With respect to the other provisional remedies, i.e.,

preliminary injunction (Rule 58), receivership (Rule 59),
replevin or delivery of personal property (Rule 60), the rule
is the same:
355
VOL. 204, NOVEMBER 29, 1991 355

29
they may also issue ex parte.
It goes without saying that whatever be the acts done by
the Court prior to the acquisition of jurisdiction over the
person of the defendant, as above indicatedissuance of
summons, order of attachment and writ of attachment
(and/or appointment of guardian ad litem, or grant of
authority to the plaintiff to prosecute the suit as a pauper
litigant, or amendment of the complaint by30 the plaintiff as

a matter of right without leave of court and however
valid and proper they might otherwise be, these do not and
cannot bind and affect the defendant until and unless
jurisdiction over his person is eventually obtained by the
court, either by service on him of summons or other
coercive process or his voluntary submission to the courts
authority. Hence, when the sheriff or other proper officer
com
________________
29 (1) Sec. 5, Rule 68 declares that while, generally ez No preliminary

injunction shall be granted without notice to the defendant, nevertheless,
If it shall appear from the facts shown by affidavits or by the verified
complaint that great or irreparable injury would result to the applicant
before the matter can be heard on notice, the judge to whom the
application for preliminary injunction was made, may issue a restraining
order to be effective only for a period of twenty days from date of its
issuance. x x.
(2) Sec. 3, Rule 69 provides that, If a receiver be appointed upon an ex
parte application, the court, before making the order, may require the
person applying for such appointment to file a bond executed to the party
against whom the application is presented in an amount to be fixed by the
court to the effect that the applicant will pay such party all damages he
may sustain by reason of the appointment of such receiver in case the
applicant shall have procured such appointment without sufficient cause x
x ."
(3) And Rule 60 provides that Whenever the complaint in an action
prays for the recovery of possession of personal property, the plaintiff
may, at the commencement of action or at any time before answer, apply for
an order for the delivery of such property to him x x (Sec. 1) and upon
compliance by the plaintiff with the prescribed requisites (affidavit and
bond [Sec. 21), the judge x x shall issue an order describing the property
alleged to be wrongfully detained, and requiring the sheriff or other
proper officer x x forthwith to take such property into his custody (Sec. 3).
30 SEE footnotes 9 to 13, supra.
356

mences implementation of the writ of attachment, it is

essential that he serve on the defendant not only a copy of
the applicants affidavit and attachment bond, and of the
order of attachment, as explicitly required by Section 5 of
Rule 57, but also the summons addressed to said defendant
as well as a copy of the complaint and order for

appointment of guardian ad litem, if any, as also explicitly
directed by Section 3, Rule 14 of the Rules of Court. Service
of all such documents is indispensable not only for the
acquisition of jurisdiction over the person of the defendant,
but also upon considerations of fairness, to apprise the
defendant of the complaint against him, of the issuance of a
writ of preliminary attachment and the grounds therefor
and thus accord him the opportunity to prevent attachment
of his property by the posting of a counterbond in an
amount equal to the plaintiffs claim in the complaint
pursuant to Section 5 (or Section 12), Rule 57, or dissolving
it by causing dismissal of the complaint itself on any of the
grounds set forth in Rule 16, or demonstrating the
insufficiency of the applicants affidavit or bond in
accordance with Section 13, Rule 57.
It was on account of the failure to comply with this
fundamental requirement of service of summons and the
other documents above indicated that writs of attachment
issued by the Trial Court ex parte were struck down by this
Courts Third Division
31
in two (2) cases, namely: Sievert v.
Court of Appeals, and BAC Manufacturing 32
and Sales
Corporation v. Court of Appeals, et al. In contrast to the
case at barwhere the summons and a copy of the
complaint, as well as the order and writ of attachment and
the attachment bond were served on the defendantin
Sievert, levy on attachment was attempted
notwithstanding that only the petition for issuance of the
writ of preliminary attachment was served on the
defendant, without any prior or accompanying summons
and copy of the complaint and in BAC Manufacturing and
Sales Corporation, neither the summons nor the order
granting the preliminary attachment or the writ of
attachment itself was served on the defendant before or at
the time the levy was made.
________________
31 168 SCRA 692 (1988).

32 G R. No. 96784, Aug. 2,1991.
357
VOL. 204, NOVEMBER 29, 1991 357

For the guidance of all concerned, the Court reiterates and

reaffirms the proposition that writs of attachment may
properly issue ex parte provided that the Court is satisfied

that the relevant requisites therefor have been fulfilled by
the applicant, although it may, in its discretion, require
prior hearing on the application with notice to the
defendant but that levy on property pursuant to the writ
thus issued may not be validly effected unless preceded, or
contemporaneously accompanied, by service on the
defendant of summons, a copy of the complaint (and of the
appointment of guardian ad litem, if any), the application
for attachment (if not incorporated in but submitted
separately from the complaint), the order of attachment,
and the plaintiffs attachment bond,
WHEREFORE, the petition is GRANTED the
challenged decision of the Court of Appeals is hereby
REVERSED, and the order and writ of attachment issued
by Hon. Milagros C. Nartatez, Presiding Judge of Branch 8,
Regional Trial Court of Davao City in Civil Case No.
1951389 against Queensland Hotel or Motel or
Queensland Tourist Inn and Teodorico Adarna are hereby
REINSTATED. Costs against private respondents.
SO ORDERED.
MelencioHerrera, Gutierrez, Jr., Cruz, Paras,

Feliciano, Padilla, Bidin, GrioAquino, Medialdea,
Regalado and Romero, JJ., concur.
Fernan (C.J.), On leave.
Davide, Jr., J., No part one of the parties was his
client before.
Petition granted decision reversed.
Note.No notice to the adverse party, or hearing on the

application is required before a writ of preliminary
attachment may issue, but a motion to quash a writ of
attachment may only be granted, after notice to the
applicant and after hearing. (Mindanao Savings and Loan
Association, Inc. vs. Court of Appeals, 172 SCRA 480.)
o0o
358
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5/1/2017 SUPREMECOURTREPORTSANNOTATEDVOLUME204

VOL. 204, NOVEMBER 29, 1991 343

DAVAO LIGHT 6, POWER CO., INC., petitioner, vs. THE

Courts Jurisdiction, how acquired.It is incorrect to theorize

344 SUPREME COURT REPORTS ANNOTATED

Davao Light & Power Co., Inc. vs. Court of Appeals

Civil Procedure Preliminary attachment may be validly

Same Writs of attachment may properly issue ex parte.For

PETITION for review from the decision of the Court of

The facts are stated in the opinion of the Court.

Subject of the appellate proceedings at bar is the decision of

VOL. 204, NOVEMBER 29, 1991 345

the Court of Appeals in CAG.R. Sp. No. 1967 entitled

1. On May 2,1989 Davao Light 6, Power Co., Inc.

5. On September 6, 1989, defendants Queensland and

1 Jorge S, Imperial, J., ponente Reynato J. Puno and Artemon Luna,

346 SUPREME COURT REPORTS ANNOTATED

7. On September 19,1989, the Trial Court issued an

This Order of September 19, 1989 was successfully

x x the Orders dated May 3, 1989 granting the issuance of a writ

The Appellate Tribunal declared that

x x x While it is true that a prayer for the issuance of a writ of

issued ex parte does not confer said jurisdiction before actual

3 G.R. No. 84034, Dec. 22,1988,168 SCRA 692 (1988).

VOL. 204, NOVEMBER 29, 1991 347

The question is whether or not a writ of preliminary

the jurisdiction of the court over the subject matter or

4 Sec. 6, Rule 2, Rules of Court.

348 SUPREME COURT REPORTS ANNOTATED

that the court acquires jurisdiction

VOL. 204, NOVEMBER 29, 1991 349

of authority to 10the plaintiff to prosecute the suit as a

issuance by any court before acquisition of jurisdiction over

10 Sec. 22, Rule 3.

350 SUPREME COURT REPORTS ANNOTATED

pointed out,18 is the date that marks the commencement of

18 SEE footnote 6, supra.

VOL. 204, NOVEMBER 29, 1991 351

value of the property the possession of which he is entitled

required on an application for preliminary attachment,

22 SEC. 3, Rule 57.

352 SUPREME COURT REPORTS ANNOTATED

attachment may legitimately be prevented or frustrated.

1.1. When property has already been seized under

SEC. 12. Discharge of attachment upon giving counterbond.At

1.2, But even before actual levy on property, seizure under

SEC. 5. Manner of attaching property.The officer executing the

VOL. 204, NOVEMBER 29, 1991 353

to secure payment to the applicant of any judgment which he may

2.0. Aside from the filing of a counterbond, a preliminary

SEC. 13. Discharge of attachment for improper or irregular

This is so because "(a)s pointed out in Calderon v. I.A.C.,

27 172 SCRA 480, 488.

354 SUPREME COURT REPORTS ANNOTATED

(a) When an attachment may not be dissolved by a showing

x x (W)hen the preliminary attachment is issued upon a ground

person in a fiduciary capacity, or for a willful violation of duty.

(b) Effect of the dissolution of a preliminary attachment on

x x. The dissolution of the preliminary attachment upon security