PROVISIONAL REMEDIES AND SPECIAL CIVIL ACTIONS
jlb - midterms To be entitled to the injunctive writ, the petitioner must show that
I. PROVISIONAL REMEDIES
1. NATURE OF PROVISIONAL REMEDIES
GMA Network, Inc. v. National Telecommunications
Commission, G.R. No. 181789, [February 3, 2016], 780 PHIL
244-257
Provisional reliefs or remedies are writs and processes that
are available during the pendency of the action.
Facts:
 GMA Network filed a complaint before the NTC against
Skycable, Home Cable and PCC alleging prohibited
monopolies and combinations of trade in commercial mass
media for being violative of the Constitution.
 It alleged that Lopez Inc and ABS-CBN owns the majority of
stocks of Sky Vision.
 Sky Vision on the other hand, wholly owns Skycable; due to
series of transactions, it also acquired PCC; and by virtue of its
ongoing merger and consolidation with Unilink, it will have
interest with Home Cable.
 GMA prayed for the issuance of a cease-and-desist order from
continuing the merger and consolidation.
 NTC denied the motion for the issuance of the cease-and-
desist order and subsequently its motion for reconsideration,
thus it prompted GMA to file a petition for certiorari imputing
grave abuse of discretion.
 CA dismissed the petition for certiorari saying that it is the NTC
discretionary power to issue or not the cease-and-desist order.
CA however did not rule on the constitutionality saying that
NTC is the proper body presumed to have more understanding
on the broadcasting industry.
 On appeal to the SC, the petitioner argued that NTC should
have issued the cease-and-desist order to prevent the
implementation of the alleged consolidation.
Issue: WON the CA erred on denying the petitioner’s motion
for the issuance of the cease-and-desist order on the merger
and consolidation
Ruling: NO. Although the CA erred on the ground it used for
denying the motion where it states that its resolution would
resolve the main case without trial, it is nevertheless correct on
its denial based on the nature of the petitioner's motion as a
provisional remedy.
Section 3, Part VI of the NTC Rules of Procedure and
Practices grants the NTC the power to issue provisional
reliefs upon the filing of a complaint or at any subsequent
stage. For this reason, the NTC has the authority to determine
the propriety of the issuance of a cease-and-desist order, which
is a provisional relief.
Provisional reliefs or remedies are writs and processes that
are available during the pendency of the action. A litigant
may avail of provisional remedies to preserve and protect
certain rights and interests pending the issuance of the final
judgment in the case. These remedies are provisional
because they are temporary measures availed of during the
pendency of the action; they are ancillary because they are
mere incidents in and are dependent on the result of the main
action.
The distinguishing factor between the resolution of the
provisional remedy and the main case lies in the temporary
character of the ruling on the provisional relief, thus, the term
"provisional." The resolution of the provisional remedy,
however, should be confined to the necessary issues
attendant to its resolution without delving into the merits of
the main case.
Be that as it may, we cannot grant the petitioner's prayer asking
the Court to issue the cease-and-desist order. The petitioner
failed to comply with the requirements for its issuance.
(1) there exists a clear and unmistakable right to be
protected;
(2) this right is directly threatened by an act sought to be
enjoined;
(3) the invasion of the right is material and substantial; and
(4) there is an urgent and paramount necessity for the writ to
prevent serious and irreparable damage.
Here, the plaintiff failed to prove that it has a clear and
unmistakable right to be protected, as it failed to clearly establish
its right to be protected under Sec. 20(g) of the Public Service
Act.
Purpose of Provisional Remedies (Bar 1996)
(a) To preserve and protect their rights or interests while the
main action is pending
(b) To secure the judgement
(c) To preserve the status quo
(d) To preserve the subject matter of the action
2. WHAT ARE THE DIFFERENT PROVISIONAL REMEDIES
UNDER THE RULES OF COURT?
(a) Preliminary attachment (Rule 57)
(b) Preliminary injunction (Rule 58)
(c) Receivership (Rule 59)
(d) Replevin (Rule 60)
(e) Support pendente lite (Rule 61)
Calo v. Roldan, G.R. No. L-252, Mar 30, 1946, 76 PHIL 445-
456
The provisional remedies denominated attachment, preliminary
injunction, receivership, and delivery of personal property,
provided in Rules 59, 60, 61, and 62 of the Rules of Court,
respectively, are remedies to which parties litigant may resort
for the preservation or protection of their rights or interest,
and for no other purpose, during the pendency of the principal
action. If an action, by its nature, does not require such
protection or preservation, said remedies cannot be applied
for and granted.
Facts:
 Herein petitioners are plaintiffs of a forcible entry case wherein
the said case have filed for the issuance of the writ of
preliminary injunction. Defendants, however opposed
contending that the plaintiff have never been in possession of
the land.
 The motion was denied by then Judge Rilloraza saying that the
defendants were in actual possession of the land.
 A motion for reconsideration was raised but had not yet
decided by Judge Rilloraza, which was transferred, and herein
respondent Judge Roldan.
 Plaintiffs then filed an urgent petition ex-parte praying that their
motion for reconsideration ordering the denial of the
preliminary injunction be granted and for appointment of
receiver. To which Judge Roldan granted the latter prayer.
Issue: WON the respondent judge acted in excess of his
jurisdiction or with grave abuse of discretion in issuing the
order appointing a receiver
Ruling: YES. If an action, by its nature, does not require
such protection or preservation of a party’s rights or
interest, provisional remedies cannot be applied for and
granted.
Attachment
- Issued only in the case or actions specifically stated in section
1, Rule 59
- In order that the defendant may not dispose of his property
attached, and thus secure the satisfaction of any judgment that
may be recovered by plaintiff from defendant
- Thus, a property subject of litigation between the parties, or
claimed by plaintiff as his, cannot be attached upon motion of
the same plaintiff
Preliminary prohibitory injunction
- lies when the plaintiff's principal action is an ordinary action of
injunction, that is, when the relief demanded in the plaintiff's
complaint consists in restraining the commission or
continuance of the act complained of, either perpetually or for a
limited period, and the other conditions required by section 3 of
Rule 60 are present
- Purpose of this provisional remedy is to preserve the status
quo of the things subject of the action or the relation between
the parties, in order to protect the rights of the plaintiff
respecting the subject of the action during the pendency of the
suit. Because, otherwise or if no preliminary prohibition
injunction were issued, the defendant may, before final
judgment, do or continue the doing of the act which the plaintiff
asks the court to restrain, and thus make ineffectual the final
judgment rendered afterwards granting the relief sought by the
plaintiff. But, as this court has repeatedly held, a writ of
preliminary injunction should not be granted to take the
property out of the possession of one party to place it in
the hands of another whose title has not been clearly
established.
Here, the provisional remedy proper to plaintiffs' action of
injunction is a preliminary prohibitory injunction, if plaintiff's
theory, as set forth in the complaint, that he is the owner and in
actual possession of the premises is correct. But as the lower
court found at the hearing of the said petition for preliminary
injunction that the defendants were in possession of the
lands, the lower court acted in accordance with law in
denying the petition, although their motion for reconsideration,
which was still pending at the time the petition in the present
case was heard in this court, plaintiffs insist that they are in
actual possession of the lands and, therefore, of the fruits
thereof.
Receivership
- A receiver may be appointed to take charge of personal or real
property which is the subject of an ordinary civil action, when it
appears that the party applying for the appointment of a
receiver has an interest in the property or fund which is the
subject of the action or litigation, and that such property or
fund is in danger of being lost, removed or materially
injured unless a receiver is appointed to guard and
preserve it (section 1 [b], Rule 61); or when it appears that the
appointment of a receiver is the most convenient and
feasible means of preserving, administering or disposing
of the property in litigation (section 1 [e] of said Rule).
- The property or fund must, therefore be in litigation according
to the allegations of the complaint, and the object of appointing
a receiver is to secure and preserve the property or thing in
controversy pending the litigation. Of course, if it is not in
litigation and is in actual possession of the plaintiff, the
latter cannot apply for and obtain the appointment of a
receiver thereof, for there would be no reason for such
appointment.
Appointment of a receiver is not proper or does not lie in an
action of injunction such as the one filed by the plaintiff. The
litigation or issue raised by plaintiffs in their complaint is not the
ownership or possession of the lands and their fruits. It is
whether or not defendants intend or were intending to enter or
work or harvest whatever existing fruits could then be found in
the lands described in the complaint, alleged to be the exclusive
property and in the actual possession of the plaintiffs. It is a
matter not only of law but of plain common sense that a plaintiff
will not and legally cannot ask for the appointment or receiver of
property which he alleges to belong to him and to be actually in
his possession. For the owner and possessor of a property is
more interested than persons in preserving and administering it.
Delivery of Personal Property
- Delivery of personal property as a provisional remedy consists
in the delivery, by order of the court, of a personal property
by the defendant to the plaintiff, who shall give a bond to
assure the return thereof or the payment of damages to the
defendant in the plaintiff's action to recover possession of the
same property fails
- in order to protect the plaintiff's right of possession of said
property, or prevent the defendant from damaging, destroying
or disposing of the same during the pendency of the suit.
3. JURISDICTION OVER PROVISIONAL REMEDIES
- Court which grants or issues a provisional remedy is the court
which has jurisdiction over the main/principal action
- MTC may grant preliminary injunction in an action for forcible
entry or unlawful detainer (Sec. 15, Rule 70)
- GR: Applications must be filed with the court having jurisdiction
over the pending principal/main action. An inferior court may
grant a provisional remedy in an action pending with it.
- XPN: Provisional remedies in civil actions may be availed of
insofar as they are applicable.
4. OTHER PROVISIONAL REMEDIES UNDER VARIOUS
SUPREME COURT ISSUANCES AND SPECIAL LAWS
SUPREME COURT ISSUANCES
(1) Receivership, stay order and provisional relief for
recognition of
UNDER SPECIAL LAWS
(1) Freeze Order and Bank Inquiry Order
(2) Temporary Protection Order
II. PRELIMINARY ATTACHMENT (RULE 57)
a. GROUNDS FOR ISSUANCE OF WRIT OF ATTACHMENT
i.
FRAUD INCURRING THE OBLIGATION
1. Liberty Insurance Corp. v. Court of Appeals, G.R.
No. 104405, [May 13, 1993]
To constitute a ground for attachment in Section 1 (d), Rule 57 of
the Rules of Court, fraud should be committed upon
contracting the obligation sued upon.
Facts:
 Jose Imperial Organizations entered into an agreement with
Coca-Cola wherein the latter will sponsor the concert to be
organized by the former.
 Coca-Cola then required the Organization to put up a
performance bond to which the latter took from herein
petitioner Liberty Insurance. As a condition Liberty required the
Organization, Imperial, Arkin and Madlangbayan to execute an
indemnity agreement in its favor.
 The Organization failed to comply with its obligations with
Coca-Cola which resulted to payment of the performance bond
by Liberty to the latter.
 Petitioner herein demanded reimbursement based on the
indemnity agreement, but to no avail.
 Petitioner then filed a complaint for damages with application
for the issuance of a writ of preliminary attachment. RTC
allowed issuance of the writ.
 Motion for reconsideration was filed by Arkin contending that
there is no ground for the issuance of the preliminary
attachment since he is not guilty of fraud. At first, the said
motion was denied but was reversed by the CA Judge, herein
respondent.
 Respondent Judge stated that “to constitute a ground for
attachment, fraud should be committed prior to or
simultaneous with the birth of the obligation sued upon which is
upon the surety bond and not the fraud of Arkin in offering the
fake collaterals and the alleged removal or disposal of his
properties to avoid being attached.
 Aggrieved, the petitioner a special civil action for certiorari to
set aside the said decision.
Issue: Whether the writ of preliminary attachment in
question was properly or regularly issued
Ruling: YES. Rule 57, Sec. 1. Grounds upon which attachment
may issue. — (d) In an action against a party who has been
guilty of a fraud of contracting the debt or incurring the
obligation upon which the action is brought, or in concealing or
disposing of the property for the taking, detention or conversion
of which the action is brought;
To sustain an attachment on this ground, it must be shown that
the debtor in contracting the debt or incurring the obligation
intended to defraud the creditor. The fraud must relate to the
execution of the agreement and must have been the reason
which induced the other party into giving consent which he
would not have otherwise given.
To constitute a ground for attachment in Section 1 (d), Rule 57 of
the Rules of Court, fraud should be committed upon
contracting the obligation sued upon. A debt is fraudulently
contracted if at the time of contracting it the debtor has a
preconceived plan or intention not to pay, as it is in this case.
Fraud is a state of mind and need not be proved by direct
evidence but may be inferred from the circumstance’s attendant
in each case.
Here, it has been established that all the collaterals given by the
respondent Arkin as security for the bond were either fraudulent
or heavily encumbered. Additionally, it was proven that Arkin
started to dispose his properties upon the issuance of the surety
bond. It is therefore clear that fraud was present when private
respondent, among others, entered into an indemnity agreement
with petitioner.
2. Wee v. Tankiansee, G.R. No. 171124, [February
13, 2008], 568 PHIL 819-832
Fraudulent intent cannot be inferred from the debtor's mere non-
payment of the debt or failure to comply with his obligation.
Facts:
 Petitioner Alejandro Ng Wee made 210M worth of money
placements with Wincorp.
 Wincorp agreed to a scheme with Hotticks, when the latter
defaulted from the 1.5B. By virtue of such scheme and without
the petitioner’s knowledge, his money placements were loaned
to Power Merge, which freed Hotticks from liability.
 Petitioner alleged that through false misrepresentation of
Wincorp, he was enticed to roll over his placements to Power
Merge. When he found that Power Merge connived with
Wincorp’s officers without intention of paying his placements,
he filed a file a civil case for damages, wherein Respondent
Tankainsee, Vice-Chairman of Wincorp was impleaded.
 Trial Court ordered the issuance of writ of preliminary
attachment against the properties not exempt from execution
of all the defendant, wherein petitioner filed a 50M bond.
 Respondent moved for the discharge of the attachment raising
that the bond was insufficient.
 His co-defendants in the civil case followed but when it was
denied and was raised the via petition, he did not join. Such
petition was subsequently denied with finality.
 Respondent then filed another motion to discharge adding the
grounds that he could not have connived with the fraudulent
schemes since he was not present in the board meetings and
that he is a major stockholder in another company which was
also defrauded.
 When raised to the CA, the latter reversed the initial ruling
which resulted to the lifting of writ of preliminary attachment.
 Petitioner then filed an instant petition saying that the CA erred
in lifting the writ.
 Respondent countered saying that there aren’t enough basis to
prove that he actually connived. A writ of attachment can only
be granted on concrete and specific grounds and not on
general averments quoting perfunctorily the words of the
Rules. And that connivance could not be raised merely by
association but must be established as a fact.
Issue: Whether the CA erred in lifting the writ?
Ruling: NO. For a writ of attachment to issue under this rule, the
applicant must sufficiently show the factual circumstances of the
alleged fraud because fraudulent intent cannot be inferred from
the debtor's mere non-payment of the debt or failure to comply
with his obligation. The applicant must then be able to
demonstrate that the debtor has intended to defraud the creditor.
Here, the petitioner’s affidavit merely states that respondent is an
officer and director of Wincorp which connived with the other
defendants and no other factual averment details on how
respondent committed fraud in the transaction.
The affidavit, being the foundation of the writ, must contain
such particulars as to how the fraud imputed to respondent
was committed for the court to decide whether or not to
issue the writ. Absent any statement of other factual
circumstances to show that respondent, at the time of
contracting the obligation, had a preconceived plan or intention
not to pay, or without any showing of how respondent committed
the alleged fraud, the general averment in the affidavit that
respondent is an officer and director of Wincorp who allegedly
connived with the other defendants to commit a fraud, is
insufficient to support the issuance of a writ of preliminary
attachment.
In the application for the writ under the said ground, compelling is
the need to give a hint about what constituted the fraud and how
it was perpetrated because established is the rule that fraud is
never presumed. Verily, the mere fact that respondent is an
officer and director of the company does not necessarily give rise
to the inference that he committed a fraud or that he connived
with the other defendants to commit a fraud.
Let it be stressed that the provisional remedy of preliminary
attachment is harsh and rigorous for it exposes the debtor to
humiliation and annoyance. The rules governing its issuance
are, therefore, strictly construed against the applicant, such
that if the requisites for its grant are not shown to be all
present, the court shall refrain from issuing it, for, otherwise,
the court which issues it acts in excess of its jurisdiction.
Likewise, the writ should not be abused to cause unnecessary
prejudice. If it is wrongfully issued on the basis of false or
insufficient allegations, it should at once be corrected.
3. FCY Construction Group, Inc. v. Court of
Appeals, G.R. No. 123358, [February 1, 2000], 381
PHIL 282-290
Writ of attachment on the ground of fraud can only be
dissolved by a counterbond.
Facts:
 Private Respondent Ley Construction and petitioner FCY
Construction Group had a joint venture agreement wherein the
latter provided funds and construction materials.
 Private respondent filed a complaint for collection of sum of
money with application for preliminary attachment against the
petitioner and its president Francis Yu, to compel them to pay
its share on the project and alleged fraud in the obligation and
misapplication of money supposed to be paid to them to
support the preliminary attachment.
 The lower court issued the writ. Petitioners moved for lifting the
writ one of the grounds is that there was no fraud in incurring
the obligation. Such motion was denied.
 In the instant petition, petitioners then raised that the
preliminary attachment was irregularly issued since such fraud
arose during the performance of the obligation and not on the
inception of the obligation or contract.
Issue: Whether the preliminary attachment should be
dissolved on the ground that it is irregularly issued
Ruling: NO. Considering that the writ of preliminary attachment
has been issued on account of allegations of fraud in contracting
the obligation upon which the action is brought petitioners' efforts
to have the writ of preliminary attachment dissolved on the
ground that it was improperly or irregularly issued is in vain.
Jurisprudence provides that. . ., when the preliminary attachment
is issued upon a ground which is at the same time the applicant's
cause of action: e.g., . . . an action against a party who has been
guilty of fraud in contracting the debtor incurring the obligation
upon which the action is brought, 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 based and consequently that the writ based therein
had been improperly or irregularly issued — the reason being
that the hearing on such motion for dissolution of the writ
would be tantamount to a trial on the merits.
In other words, the merits of the action would be ventilated at a
mere hearing of a motion; instead of the regular trial. Therefore,
when the writ of attachment is of this nature, the only way it can
be dissolved is by a counterbond.
4. Metro, Inc. v. Lara's Gifts and Decors, Inc., G.R.
No. 171741, [November 27, 2009], 621 PHIL 162-
172
Facts:
 Petitioners and respondents, both engaged in the business of
handicrafts, agreed that the latter would endorse to the former
purchase orders received by respondents from their buyers in
the US in exchange of a 15% commission.
 Respondents then filed a complaint for sum of money with
prayer of issuance of writ of attachment against the petitioners.
They alleged that they were defrauded by the petitioners for an
amount of $521k. The trial court granted the writ.
 Petitioners filed a motion to discharge. One of the grounds
raised is that respondents failed to substantiate their
allegations of fraud with specific acts or deeds showing how
petitioners defrauded them. RTC granted the motion and lifted
the writ.
 Upon appeal on the CA, it ruled that the trial court gravely
erred in ordering the discharge of the writ without requiring the
petitioners to post a counter-bond.
Issue: Whether the writ of attachment issued by the trial
court was improperly issued such that it may be discharged
without the filing of a counter-bond.
Ruling: NO. Settled is the rule that "when the writ of
attachment is issued upon a ground which is at the same
time the applicant’s cause of action, the only other way the
writ can be lifted or dissolved is by a counter-bond".
Here, the writ was deemed properly issued upon showing that
petitioners undertook to sell exclusively and only through the
respondents for Target Stores Corporation, as provided in their
agreement, but petitioners transacted directly with respondents’
foreign buyer. It is sufficient allegation of fraud to support their
application for a writ of preliminary attachment.
5. Republic v. Estate of Lim, Sr., G.R. No. 164800,
[July 22, 2009], 611 PHIL 37-59
Facts:
 The Republic, represented by the Presidential Commission on
Good Government (PCGG), filed before the Sandiganbayan,
Complaint for reconveyance, reversion, accounting, restitution,
and damages against Alfonso Lim Sr., and Jr., acting by
themselves or in collusion with Ferdinand and Imelda Marcos
to unjustly enrich themselves at the expense of the Republic
and the Filipino people.
 When Lim Sr., died, his estate filed a motion to lift the
sequestration over certain properties. The Republic opposed
saying that the sequestered properties stand as security for the
satisfaction of any judgment the Republic may obtain against
the estate.
 The Sandiganbayan lifted the sequestration order.
 The Republic filed a Motion for the Issuance of a Writ of
Preliminary Attachment alleging fraud and undue advantage.
 The Sandiganbayan denied the motion stating that bare
allegations of fraud are not sufficient.
Issue: WON the Sandiganbayan acted with grave abuse of
discretion amounting to lack or excess of jurisdiction in not
considering that the evidence already on record support the
issuance of a writ or preliminary attachment.
Ruling: YES. Fraud may be defined as the voluntary execution
of a wrongful act, or a willful omission, knowing and intending the
effects which naturally and necessarily arise from such act or
omission.
Exhibit B presented as the main supporting evidence by the
Republic provides that the Lim Sr., though 7 corporations, owns
500k+ hectares of land, more than the 100k constitutional
limitation.
The wrongful act––the fraud perpetuated by Lim Sr. and/or his
corporations on the Republic––is written over or easily deducible
from the adverted Maceda decision and Exhibit "E." While fraud
cannot be presumed, it need not be proved by direct
evidence and it can well be inferred from attendant
circumstances.
Clearly, the Republic has complied with and satisfied the legal
obligation to show the specific acts constitutive of the alleged
fraud committed by respondents. The denial of the prayed writ,
thus, evidently constitutes grave abuse of discretion on the part
of Sandiganbayan. After all, "attachment is a mere provisional
remedy to ensure the safety and preservation of the thing
attached until the plaintiff can, by appropriate proceedings,
obtain a judgment and have such property applied to its
satisfaction."
Indeed, the properties of respondents sought to be subjected to
the ancillary writ of preliminary attachment are not only in danger
of being lost but should be placed under custodia legis to answer
for any liabilities that may be adjudged against them in the instant
case.
b. REQUISITES
(1) An affidavit executed by the applicant, or of some other
person who personally knows the facts.
Contents:
(a) A sufficient cause of action exists;
(b) The case must be any of those where preliminary
attachment is proper as stated in Sec. 1, Rule 57;
(c) There is no sufficient security for the claim sought
to be enforced;
(d) The amount due to the applicant, or the value of the
property the possession of which he is entitled to
recover, is as much as the sum for which the order
is granted above all legal counterclaims. (Sec. 3,
Rule 57)
(2) Attachment bond
a bond executed in favor of the adverse party in an
amount to be fixed by the judge, not exceeding the
plaintiff’s claim, conditioned that the latter will pay all the
costs which may be adjudged to the adverse party and
all damages which he may sustain by reason of the
attachment, if the court shall finally adjudge that the
applicant was not entitled thereto (Sec.. 4, Rule 57).
c. ISSUANCE AND CONTENTS OF ORDER OF
ATTACHMENT; AFFIDAVIT AND BOND
d. RULE ON PRIOR OR CONTEMPORANEOUS SERVICE
OF SUMMONS
e. MANNER OF ATTACHING REAL AND PERSONAL
PROPERTY; WHEN PROPERTY ATTACHED IS CLAIMED
BY THIRD PERSON
1. Rural Bank of Sta. Barbara [Pangasinan], Inc. v. The
Manila Mission of the Church of Jesus Christ of
Latter Day Saints, Inc., G.R. No. 130223, [August 19,
2009], 613 PHIL 40-55
Facts:
 Spouses Soliven sold a lot to the respondent on 1992 but TCT
was issued only on 1994.
 On 1993 petitioner filed a complaint for sum of money against
the spouses and prayed for issuance of writ of preliminary
 attachment. The subject property was attached, and the writ
was annotated in the TCT when it was still in the name of the
spouses.
 Thus, when the TCT of the spouses was cancelled, the
annotation was carried to the new TCT issued to the
respondent.
 Respondent served an affidavit seeking from the Sheriff the
release the property, but the latter advised them to file the
motion directly to the RTC.
 Thus, respondent filed with the RTC a motion to release the
property from attachment and the RTC granted. Motion for
reconsideration for the same was also denied.
 Petitioner then filed a Petition for Certiorari with the CA alleging
that the RTC committed grave abuse of discretion, amounting
to lack or excess of jurisdiction, in canceling the writ. Where
the CA dismissed the petition. Hence, this petition for review.
 Petitioner raises that they have a better right on the property
since respondent availed itself of the wrong remedy in filing
with the RTC for the release of the property.
Issue: Whether the RTC committed grave abuse of
discretion on ordering the discharge of the property for not
following the Rules.
Ruling: NO.
Petitioner raises the remedies of a third person claiming to be the
owner of an attached property are limited to the following:
(1) filing with the Sheriff a third-party claim, in the form of an
affidavit, per the first paragraph of Section 14;
(2) intervening in the main action, with prior leave of court,
per the second paragraph of Section 14, which allows a third
person to vindicate his/her claim to the attached property in the
"same x x x action"; and
(3) filing a separate and independent action, per the second
paragraph of Section 14, which allows a third person to vindicate
his/her claim to the attached property in a "separate action."
Here, the respondent tried to pursue the first remedy but
nevertheless followed the Sheriff’s advice to file a motion directly
with the RTC. To which the CA recognized when it allowed the
motion.
Respondent should not be faulted for merely heeding the
Sheriff’s advice. Apparently, the Sheriff, instead of acting upon
the third-party claim of respondent on his own, would rather have
some direction from the RTC. Indeed, the Sheriff is an officer of
the RTC and may be directed by the said court to allow the third-
party claim of respondent. Therefore, the filing of the Motion in
question can be deemed as a mere continuation of the third-party
claim of respondent, in the form of its Affidavit of Title and
Ownership, served upon the Sheriff, in accord with the first
paragraph of Section 14, Rule 57 of the Rules of Court.
Additionally, the said motion of the respondent can also be
deemed to be the second recourse of intervening in the main
action to allow a third person to vindicate his/her claim to the
attached property.
If the application of the Rules would tend to frustrate rather than
promote justice, it is always within the power of the Court to
suspend the rules, or except a particular case from its operation.
Hence, even if the Motion to Release Property from Attachment
does not strictly comply with Section 14, Rule 56 of the Rules of
Court, the RTC may still allow and act upon said Motion to render
substantive justice.
f. DISCHARGE OF ATTACHMENT AND THE COUNTER-
BOND
1. G.B., Inc. v. Sanchez, G.R. No. L-7717, [April 27,
1956], 98 PHIL 886-892
Facts:
 Petitioner GB Inc is a trustee of Juan Luna Subdivision, where
Allison Gibbs is the president and Manager. Respondent
Chuidian and Allison are partners in the law firm, which is the
counsel of Juan Luna Subdivision.
 Juan Luna Subdivision granted a loan to respondent Chuidian
and acknowledged the receipt for which he agreed to transfer
the land he bought from Florence.
 However, instead of transferring the property to Juan Luna
Subdivision, Chuidian sold the land to Hernandez to pay his
wife’s gambling debt. Gibbs and Chuidian ceased to be law
partners.
 Petitioner then filed a complaint to collect from Chuidian its
debt and asked for the issuance of writ of preliminary
attachment, which was granted by the court upon filing of the
bond.
 Chuidian filed a motion to discharge attachment claiming that it
was improperly issued, where the petitioner filed an opposition.
 Petitioner then filed an urgent motion to deny the motion to
discharge but it was denied and proceeded to hear the same.
 Motion to discharge was then granted.
 Petitioner filed a petition for certiorari with preliminary
injunction, to which the SC granted.
Issue: Whether the respondent judge acted with grave abuse
of discretion on granting the discharge of the attachment.
Ruling: YES. After showing of the Sheriff that the respondent
Chuidan’s financial instability was the cause of driving him to sell
the property and not with the intent to defraud the petitioner, what
the respondent judge at most could have done, was to discharge
the attachment in question upon the filing upon respondent
Chuidian of a counter bond in the sum of P57,000, under section
12 of Rule 59 of the Rules of Court.
This would have accomplished respondent Chuidian's purpose of
preserving his property and family name, at the same time giving
the petitioner security for any judgment that it may obtain against
him.
2. Insular Savings Bank v. Court of Appeals, G.R. No.
123638, [June 15, 2005], 499 PHIL 116-125
Facts:
 Respondent bank Far East Bank and Trust Company instituted
an Arbitration Case against petitioner bank Insular Savings
before the Philippine Clearing House Corporation.
 Dispute was from the unfunded checks worth 25.2M drawn
against the respondent bank and presented by petitioner, when
the Far East returned the checks before the reglementary
period, Insular Savings refused to refund the money.
 While the arbitration case was pending, Far East filed a civil
case with a prayer of issuance of writ of preliminary
attachment.
 RTC granted the writ of preliminary attachment on the amount
of 25.2M upon posting of 6M counterbond.
 The arbitration committee temporarily divided the amount to
the petitioner and respondent bank the amount while the
dispute was not yet resolved. Thus, the petitioner filed a motion
to discharge half of the amount but was denied.
 Such decision was appealed to the CA but was again denied,
hence this petition.
 Petitioner raises that the basis of the bond should only be the
respondent’s demand or claim amounting to 25.2M, and there
was a reduction by the arbitration committee, now only 12.6M.
 Respondent bank on the other hand raises that it should
include the 25.2M demand plus actual damages, legal interest,
exemplary damages and attorney’s fees which totals to 27.3M.
Issue: Whether or not the CA erred in not ruling that the trial
court committed grave abuse of discretion in denying
petitioner’s motion to discharge attachment by counter-
bond
Ruling: YES.
SEC. 12. Discharge of attachment upon giving counter-bond.
– At any time after an order of attachment has been granted, the
party whose property has been attached, . . . may upon
reasonable notice to the applicant, apply to the judge who
granted the order or to the judge of the court which the action is
pending, for an order discharging the attachment wholly or in part
on the security given. The judge shall, after hearing, order the
discharge of the attachment if a cash deposit is made, or a
counter-bond executed to the attaching creditor is filed, on
behalf of the adverse party, with the clerk or judge of the court
where the application is made 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 x . Should such counter-bond for
any reason be found to be, or become insufficient, and the party
furnishing the same fail to file an additional counter-bond, the
attaching party may apply for a new order of attachment."
Here, the records show that the principal claim of respondent, as
plaintiff a quo, is in the amount of 25.2M representing the three
(3) unfunded checks drawn against, and presented for clearing
to, respondent bank. Jurisprudence teaches that a writ of
attachment cannot be issued for moral and exemplary
damages, and other unliquidated or contingent claim.
Order of attachment was only based on 6M bond while the writ of
attachment was amounting to 25.2M. The division to half of the
disputed amount was agreed by both of the parties in the
arbitration committee, thus it effectively releases the petitioner of
the said amount. The SC finds no justifiable reason why such
portion would still be subjected of the counter-bond.
The trial court, therefore, committed grave abuse of discretion
when it denied petitioner’s motion to discharge attachment by
counter-bond in the amount of ₱12,600,000.00, an amount more
than double the attachment bond required of, and given by,
respondent.
g. SATISFACTION OF JUDGMENT OUT OF PROPERTY
ATTACHED
immemorial practice sanctioned by the courts: for the plaintiff or
other proper party to incorporate the application for attachment in
the complaint or other appropriate pleading (counterclaim, cross-
claim, third-party claim) and for the Trial Court to issue the writ
ex-parte at the commencement of the action if it finds the
application otherwise sufficient in form and substance.
Petitioners argue that the enforcement of the writ was invalid
since it undisputedly preceded the actual service of summons by
six days at most citing Sievert vs. Court of Appeals, et al. wherein
this Court held that enforcement of the writ of attachment cannot
bind the defendant in view of the failure of the trial court to
acquire jurisdiction over the defendant through either summons
or his voluntary appearance.
The difference of the case relied upon and the present case is
that in the former, summons was never served upon the
defendants.
The plaintiffs therein did not even attempt to cause service of
summons upon the defendants, right up to the time the cases
went up to this Court. This is not true in the case at bar. The
records reveal that Sheriff did attempt a contemporaneous
service of both summons and the writ of attachment but we
stymied by the absence of a responsible officer in petitioners'
offices.
Thus, an exception to the established rule on the enforcement of
the writ of attachment can be made where a previous attempt to
serve the summons and the writ of attachment failed due to
factors beyond the control of either the plaintiff or the process
server, provided that such service is effected within a reasonable
period thereafter.

Oñate vs. Abrogar, G.R. No. 107303 February 21, 1994

Facts:
 Sunlife filed a complaint for a sum of money with a prayer for
the immediate issuance of a writ of attachment against
petitioners which was granted by respondent Judge Abrogar.
 The writ was amended to reflect the alleged amount of
indebtedness, but when the Deputy tried to serve the amended
writ, he was not able to do so since there was no responsible
officer to receive the same. The Sheriff however continued to
serve notice of garnishment and levied the properties of the
petitioner.
 Petitioners then filed a motion to discharge/dissolve writ of
attachment. The Judge denied the motion.

Issue: WON respondent Judge had acted with grave abuse

of discretion amounting to lack or in excess of jurisdiction in
issuing ex parte the original and amended writs of
preliminary attachment and the corresponding notices of
garnishment and levy on attachment since the trial court had
not yet acquired jurisdiction over them

Ruling: NO. It is well-settled that a writ of preliminary attachment

may be validly applied for and granted even before the defendant
is summoned or is heard from.

Rule 57 in fact speaks of the grant of the remedy "at the

commencement of the action or at any time thereafter." The
phrase "at the commencement of the action," obviously
refers to the date of the filing of the complaint — which, as
abovepointed out, its the date that marks "the commencement of
the action;" and the reference plainly is to a time before
summons is served on the defendant or even before summons
issues.

What the rule is saying quite clearly is that after an action is

properly commenced — by the filing of the complaint and the
payment of all requisite docket and other fees — the plaintiff
may apply for and obtain a writ of preliminary attachment
upon 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