Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 93262 December 29, 1991

DAVAO LIGHT & POWER CO., INC., petitioner,

vs.
THE COURT OF APPEALS, QUEENSLAND HOTEL or MOTEL or QUEENSLAND TOURIST INN,
and TEODORICO ADARNA, respondents.

Breva & Breva Law Offices for petitioner.

Goc-Ong & Associates for private respondents.

NARVASA, J.:

Subject of the appellate proceedings at bar is the decision of the Court of Appeals in CA-G.R. Sp.
No. 1967 entitled "Queensland Hotel, Inc., etc. and Adarna v. Davao Light & Power Co., Inc.,"
promulgated on May 4, 1990.   That decision nullified and set aside the writ of preliminary
1

attachment issued by the Regional Trial Court of Davao City   in Civil Case No. 19513-89 on
2

application of the plaintiff (Davao Light & 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 Tribunal's
judgment of May 4, 1990.

1. On May 2, 1989 Davao Light & Power Co., Inc. (hereafter, simply Davao Light) filed a verified
complaint for recovery of a sum of money and damages against Queensland Hotel, etc. and
Teodorico Adarna (docketed as Civil Case No. 19513-89). 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.

7. On September 19, 1989, the Trial Court issued an Order denying the motion to discharge.

This Order of September 19, 1989 was successfully challenged by Queensland and Adarna in a
special civil action of certiorari instituted by them in the Court of Appeals. The Order was, as
aforestated, annulled by the Court of Appeals in its Decision of May 4, 1990. The Appellate Court's
decision closed with the following disposition:

. . . the Orders dated May 3, 1989 granting the issuance of a writ of preliminary attachment,
dated September 19, 1989 denying the motion to discharge attachment; dated November 7,
1989 denying petitioner's motion for reconsideration; as well as all other orders emanating
therefrom, specially the Writ of Attachment dated May 11, 1989 and Notice of Levy on
Preliminary Attachment dated May 11, 1989, are hereby declared null and void and the
attachment hereby ordered DISCHARGED.

The Appellate Tribunal declared that —

. . . While it is true that a prayer for the issuance of a writ of preliminary attachment may be
included m 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 summoned 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. . . .

It went on to say, citing Sievert v. Court of Appeals,   that "in a proceedings in attachment," the
3

"critical time which must be identified is . . . when the trial court acquires authority under law to act
coercively against the defendant or his property . . .;" and that "the critical time is the 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.

The question is whether or not a writ of preliminary attachment may issue ex parte against a
defendant before acquisition of jurisdiction of the latter's person by service of summons or his
voluntary submission to the Court's authority.

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
court's authority), nothing can be validly done by the plaintiff or the court. It is wrong to assume that
the validity of acts done during this period should be defendant on, or held in suspension until, the
actual obtention of jurisdiction over the defendant's person. The obtention by the court of jurisdiction
over the person of the defendant is one thing; quite another is the acquisition of jurisdiction over the
person of the plaintiff or over the subject-matter or nature of the action, or the res or object hereof.

An action or proceeding is commenced by the filing of the complaint or other initiatory pleading.  4 By that act,

 and it is thus that the court acquires jurisdiction over

the jurisdiction of the court over the subject matter or nature of the action or proceeding is invoked or called into activity; 5

said subject matter or nature of the action.   And it is by that self-same act of the plaintiff (or 6

petitioner) of filing the complaint (or other appropriate pleading) — by which he signifies his
submission to the court's power and authority — that jurisdiction is acquired by the court over his
person.   On the other hand, jurisdiction over the person of the defendant is obtained, as above
7

stated, by the service of summons or other coercive process upon him or by his voluntary
submission to the authority of the court.  8

The events that follow the filing of the complaint as a matter of routine are well known. After the complaint is filed, summons issues to the defendant, the summons is then transmitted to the sheriff, and finally, service of the summons is effected on the defendant
in any of the ways authorized by the Rules of Court. There is thus ordinarily some appreciable interval of time between the day of the filing of the complaint and the day of service of summons of the defendant. During this period, different acts may be done by the

 the grant of authority to the plaintiff to

plaintiff or by the Court, which are unquestionable validity and propriety. Among these, for example, are the appointment of a guardian ad litem, 9

prosecute the suit as a pauper litigant,   the amendment of the complaint by the plaintiff as a matter 10

of right without leave of court,   authorization by the Court of service of summons by

11

publication,   the dismissal of the action by the plaintiff on mere notice. 

12 13

 They may be validly and properly applied for and

This, too, is true with regard to the provisional remedies of preliminary attachment, preliminary injunction, receivership or replevin. 14

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 party may, at the commencement of the action or at any
time thereafter, have the property of the adverse party taken into the custody of the court as security
for the satisfaction of any judgment that may be recovered.   It is a remedy which is purely statutory 15

in respect of which the law requires a strict construction of the provisions granting it.   Withal no 16

principle, statutory or jurisprudential, prohibits its issuance by any court before acquisition of
jurisdiction over the person of the defendant.

Rule 57 in fact speaks of the grant of the remedy "at the commencement of the action or at any time
thereafter."   The phase, "at the commencement of the action," obviously refers to the date of the
17

filing of the complaint — which, 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
18

even before summons issues. What the rule is saying quite clearly is that after an action is properly
commenced — by the filing of the complaint and the payment of all requisite docket and other fees
— the plaintiff may apply for and obtain a writ of preliminary attachment upon fulfillment of the
pertinent requisites laid down by law, and that he may do so at any time, either before or after
service of summons on the defendant. And this indeed, has been the immemorial practice
sanctioned by the courts: for the plaintiff or other proper party to incorporate the application for
attachment in the complaint or other appropriate pleading (counter-claim, cross-claim, third-party
claim) and for the Trial Court to issue the writ ex-parte at the commencement of the action if it finds
the application otherwise sufficient in form and substance.

In Toledo v. Burgos,   this Court ruled that a hearing on a motion or application for preliminary
19

attachment is not generally necessary unless otherwise directed by the Trial Court in its
discretion.   And in Filinvest Credit Corporation v. Relova,   the Court declared that "(n)othing in the
20 21

Rules of Court makes notice and hearing indispensable and mandatory requisites for the issuance of
a writ of attachment." The only pre-requisite is that the Court be satisfied, upon consideration of "the
affidavit of the applicant or of some other person who personally knows the facts, that a sufficient
cause of action exists, that the case is one of those mentioned in Section 1 . . . (Rule 57), that there
is no other sufficient security for the claim sought to be enforced by the action, and that the amount
due to the applicant, or the value of the property the possession of which he is entitled to recover, is
as much as the sum for which the order (of attachment) is granted above all legal counterclaims."   If 22

the court be so satisfied, the "order of attachment shall be granted,"   and the writ shall issue upon
23

the applicant's 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 adjudge that the applicant was not entitled thereto."  24

 this Court had occasion to emphasize the postulate that no

In Mindanao Savings & Loan Association, Inc. v. Court of Appeals, decided on April 18, 1989, 25

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 . . . (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." As observed by a former member of this Court,   such a procedure would 26

warn absconding debtors-defendants 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 creditor-plaintiff holding the proverbial empty bag; it would place the creditor-applicant 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 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.
CA., 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 . . . in an amount equal to
the value of the property attached as determined by the judge to secure the payment of any
judgment that the attaching creditor may recover in the action. . . .

1.2. But even before actual levy on property, seizure under attachment may be prevented also upon
counterbond. The defendant need not wait until his property is seized before seeking the discharge
of the attachment by a counterbond. This is made possible by Section 5 of Rule 57.

Sec. 5. Manner of attaching property. — 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 applicant's demand, unless the former makes a deposit with
the clerk or judge of the court from which the order issued, or gives a counter-bond executed
to the applicant, in an amount sufficient to satisfy such demand besides costs, or in an
 amount equal to the value of the property which is about to be attached, to secure payment
to the applicant of any judgment which he may recover in the action. . . . (Emphasis supplied)

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 counter-affidavits or other evidence in addition to
that on which the attachment was made. . . . (Emphasis 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 . . . would require
presentation of evidence in a fullblown trial on the merits, and cannot easily be settled in a pending
incident of the case."  27

 to wit:
It may not be amiss to here reiterate other related principles dealt with in Mindanao Savings & Loans Asso. Inc. v. C.A., supra., 28

(a) When an attachment may not be dissolved by a showing of its irregular or improper

issuance:

. . . (W)hen the preliminary attachment is issued upon a ground which is at the same time the
applicant's 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 m 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 plaintiff's application and affidavits on which
the writ was based — and 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:

. . . 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
 plaintiff's own attachment bond. The reason is simple. That bond is "executed to the adverse
party, . . . conditioned that the . . . (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 applicant's entitlement to the attachment,
his bond must stand and cannot be with-drawn.

With respect to the other provisional remedies, i.e., preliminary injunction (Rule 58), receivership
(Rule 59), replevin or delivery of personal property (Rule 60), the rule is the same: they may also
issue ex parte.  29

It goes without saying that whatever be the acts done by the Court prior to the acquisition of jurisdiction over the person of defendant, as above indicated — issuance of summons, order of attachment and writ of attachment (and/or appointments of guardian  ad

 — and however valid and proper

litem, or grant of authority to the plaintiff to prosecute the suit as a pauper litigant, or amendment of the complaint by the plaintiff as a matter of right without leave of court 30

they might otherwise be, these do not and cannot bind and affect the defendant until and unless
jurisdiction over his person is eventually obtained by the court, either by service on him of summons
or other coercive process or his voluntary submission to the court's authority. Hence, when the
sheriff or other proper officer commences implementation of the writ of attachment, it is essential that
he serve on the defendant not only a copy of the applicant's affidavit and attachment bond, and of
the order of attachment, as explicity 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 explicity 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 plaintiff's 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 applicant's 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 Court's Third Division in two (2) cases, namely: Sievert v. Court of
Appeals,   and BAC Manufacturing and Sales Corporation v. Court of Appeals, et al.   In contrast to
31 32

the case at bar — where 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 defendant — in 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."

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.

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. 19513-89 against
Queensland Hotel or Motel or Queensland Tourist Inn and Teodorico Adarna are hereby
REINSTATED. Costs against private respondents.

SO ORDERED.

Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Bidin, Griño-Aquino, Medialdea,
Regalado and Romero, JJ., concur.
Fernan, C.J., is on leave.

Davide, Jr., J., took no part.