9/21/21, 6:25 PM SUPREME COURT REPORTS ANNOTATED VOLUME 230 9/21/21, 6:25 PM SUPREME COURT REPORTS ANNOTATED VOLUME

1/21, 6:25 PM SUPREME COURT REPORTS ANNOTATED VOLUME 230

Same; Same; An attachment may not be dissolved by a

showing of its irregular or improper issuance if it is upon a ground
which is at the same time the applicant’s cause of action in the
main case.—Petitioners then contend that the writ should have
been discharged since the

VOL. 230, FEBRUARY 21, 1994 181 ________________

Oñate vs. Abrogar
* SECOND DIVISION.
*
G.R. No. 107303. February 21, 1994.
182
EMMANUEL C. OÑATE and ECON HOLDINGS
CORPORATION, petitioners, vs. HON. ZEUS C.
ABROGAR, as Presiding Judge of Branch 150 of the
Regional Trial Court of Makati, and SUN LIFE 182 SUPREME COURT REPORTS ANNOTATED
ASSURANCE COMPANY OF CANADA, respondents.
Oñate vs. Abrogar
*
G.R. No. 107491. February 21, 1994.
ground on which it was issued—fraud in contracting the
BRUNNER DEVELOPMENT CORPORATION, petitioner, obligation—was not present. This cannot be considered a ground
vs. HON. ZEUS C. ABROGAR, as Presiding Judge of for lifting the writ since this delves into the very complaint of the
Branch 150 of the Regional Trial Court of Makati, and Sun Life. As this Court stated in Cuatro v. Court of Appeals:
SUN LIFE ASSURANCE COMPANY OF CANADA, “Moreover, an attachment may not be dissolved by a showing of
respondents. its irregular or improper issuance if it is upon a ground which is
at the same time the applicant’s cause of action in the main case
since an anomalous situation would result if the issues of the
Actions; Attachments; Jurisdiction; It is well-settled that a main case would be ventilated and resolved in a mere hearing of
writ of preliminary attachment may be validly applied for and the motion (Davao Light and Power Co., Inc. vs. Court of Appeals,
granted even before the defendant is summoned or is heard from. supra, The Consolidated Bank and Trust Corp. (Solidbank) vs.
—Petitioners initially argue that respondent Judge erred in Court of Appeals, 197 SCRA 663 [1991]).
granting Sun Life’s prayer for a writ of preliminary attachment
Same; Same; Writ of attachment may not validly be effected
on the ground that the trial court had not acquired jurisdiction
until and unless preceded or contemporaneously accompanied by
over them. This argument is clearly unavailing since it is well-
service of summons.—Finally, petitioners argue that the
settled that a writ of preliminary attachment may be validly
enforcement of the writ was invalid since it undisputedly
applied for and granted even before the defendant is summoned
preceded the actual service of summons by six days at most.
or is heard from. The rationale behind this rule was stated by the
Petitioners cite the decisions in Sievert vs. Court of Appeals, et al.
Court in this wise: “A preliminary attachment may be defined,
and BAC Manufacturing and Sales Corp. vs. Court of Appeals, et
paraphrasing the Rules of Court, as the provisional remedy in
al., wherein this Court held that enforcement of the writ of
virtue of which a plaintiff or other proper party may, at the
attachment can not bind the defendant in view of the failure of
commencement of the action or any time thereafter, have the
the trial court to acquire jurisdiction over the defendant through
property of the adverse party taken into the custody of the court
either summons or his voluntary appearance. We do not agree
as security for the satisfaction of any judgment that may be
entirely with petitioners. True, this Court had held in a recent
recovered. It is a remedy which is purely statutory in respect of
decision that the enforcement of writ of attachment may not
which the law requires a strict construction of the provisions
validly be effected until and unless proceeded or
granting it. Withal no principle, statutory or jurisprudential,
contemporaneously accompanied by service of summons.
prohibits its issuance by any court before acquisition of
jurisdiction over the person of the defendant. Same; Same; Same; Exception to rule of contemporaneous
service of summons and writ; Enforcement of the writ of
https://www.central.com.ph/sfsreader/session/0000017c07e809799ac9cbb4000d00d40059004a/t/?o=False 1/12 https://www.central.com.ph/sfsreader/session/0000017c07e809799ac9cbb4000d00d40059004a/t/?o=False 2/12
9/21/21, 6:25 PM SUPREME COURT REPORTS ANNOTATED VOLUME 230
attachment valid even if it preceded the actual service of summons
by six days 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.—But we must distinguish the
case at bar from the Sievert and BAC Manufacturing cases. In
those two cases, summons was never served upon the defendants.
The plaintiffs therein did not even attempt to cause service of
summons upon the defendants, right up to the time the cases
went up to this Court. This is not true in the case at bar. The
records reveal that Sheriff Flores and Sun Life did attempt a
contemporaneous service of both summons and the writ of
attachment on January 3, 1992, but were stymied by the absence
of a responsible officer in petitioners’ offices. Note is taken of the
fact that petitioners Oñate and Econ Holdings admitted in their
answer that the offices of both Brunner Development Corporation
and Econ Holdings were located at the same address, and that
petitioner Oñate is the President of Econ Holdings
VOL. 230, FEBRUARY 21, 1994
Oñate vs. Abrogar
while petitioner Diño is the President of Brunner Development
Corporation as well as a stockholder and director of Econ
Holdings. Thus, an exception to the 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.
Same; Same; Same; Same; Reason for the exception.—Several
reasons can be given for the exception. First, there is a possibility
that a defendant, having been alerted of plaintiff’s action by the
attempted service of summons and the writ of attachment, would
put his properties beyond the reach of the plaintiff while the
latter is trying to serve the summons and the writ anew. By the
time the plaintiff may have caused the service of summons and
the writ, there might not be any property of the defendant left to
attach. Second, the court eventually acquired jurisdiction over the
petitioners six days later. To nullify the notices of garnishment
issued prior thereto would again open the possibility that
petitioners would transfer the garnished monies while Sun Life
applied for new notices of garnishment. Third, the ease by which
a writ of attachment can be obtained is counter-balanced by the
ease by which the same can be discharged: the defendant can
https://www.central.com.ph/sfsreader/session/0000017c07e809799ac9cbb4000d00d40059004a/t/?o=False
9/21/21, 6:25 PM SUPREME COURT REPORTS ANNOTATED VOLUME 230
either make a cash deposit or post a counter-bond equivalent to
the value of the property attached. The petitioners herein tried to
have the writ of attachment discharged by posting a counter-
bond, the same was denied by respondent Judge on the ground
that the amount of the counterbond was less than that of Sun
Life’s bond.
Same; Same; In examinations conducted pursuant to Sec. 10,
Rule 57 of the Rules of Court, notice need only to be given to the
garnishee, except when there is need to examine the defendant.—
Petitioners’ second ground assail the acts of respondent Judge in
allowing the examination of Urban Bank’s records and in ordering
the examination of the bank records of BPI and PNB as invalid
since no notice of said examinations were ever given them. Sun
life grounded its requests for the examination of the bank
accounts on Section 10, Rule 57 of the Rules of Court. It is clear
from said provision that notice need only be given to the
garnishee, i.e., the person who is holding property or credits
belonging to the defendant. The provision does not require that
183
notice be furnished the defendant himself, except when there is
need to examine said defendant for the purpose of giving
information respecting his property.
183
184
184 SUPREME COURT REPORTS ANNOTATED
Oñate vs. Abrogar
Same; Same; Banks; Secrecy of bank deposits; Sec. 10. Rule 57
of the Rules of Court is not incompatible with R.A. 1405.—
Furthermore, Section 10, Rule 57 is not incompatible with
Republic Act No. 1405, as amended, “An Act Prohibiting
Disclosure or Inquiry Into, Deposits With Any Banking
Institution and Providing Penalty Therefore,” for Section 2
therefore provides an exception “in cases where the money
deposited or invested is the subject matter of the litigation.” The
examination of the bank records is not a fishing expedition, but
rather a method by which Sun Life could trace the proceeds of the
check it paid to petitioners.
PETITIONS for certiorari to set aside the orders of the
Regional Trial Court of Makati, Br. 150. Abrogar, J.
The facts are stated in the opinion of the Court.
Florante A. Bautista for petitioner in G.R. No.
107303.
Andin & Andin Law Offices for Brunner
Development Corporation.
3/12 https://www.central.com.ph/sfsreader/session/0000017c07e809799ac9cbb4000d00d40059004a/t/?o=False 4/12
9/21/21, 6:25 PM SUPREME COURT REPORTS ANNOTATED VOLUME 230
Quasha, Asperilla, Aricheta, Pena & Nolasco for Sun
Life Assurance Company of Canada.
NOCON, J.:
These are separate petitions for certiorari with a prayer for
temporary restraining order filed by Emmanuel C. Oñate
and Econ Holdings Corporation (in G.R. No. 107303), and
Brunner Development Corporation (in G.R. No. 107491),
both of which assail several orders issued by respondent
Judge Zeus C. Abrogar in Civil Case No. 91-3506.
The pertinent facts are as follows: On December 23,
1991, respondent Sun Life Assurance Company of Canada
(Sun Life, for brevity) filed a complaint for a sum of money
with a prayer for the immediate issuance of a writ of
attachment against petitioners, and Noel L. Diño, which
was docketed as Civil Case No. 91-3506 and raffled to
Branch 150 of the RTC Makati, presided over by
respondent Judge. The following day, December 24, 1991,
respondent Judge issued an order granting the issuance of
a writ of attachment, and the writ was actually issued on
December 27, 1991.
On January 3, 1992, upon Sun Life’s ex-parte motion,
the trial court amended the writ of attachment to reflect
the alleged
VOL. 230, FEBRUARY 21, 1994
Oñate vs. Abrogar
amount of the indebtedness. That same day, Deputy Sheriff
Arturo C. Flores, accompanied by a representative of Sun
Life, attempted to serve summons and a copy of the
amended writ of attachment upon petitioners at their
known office address at 108 Aguirre St., Makati, but was
not able to do so 1since there was no responsible officer to
receive the same. Nonetheless, Sheriff Flores proceeded,
over a period of several days, to serve notices of
garnishment upon several commercial banks and financial
institutions, and levied on attachment a condominium unit
and a real property belonging to petitioner Oñate.
Summons was eventually served upon petitioners on
January 9, 1992, while defendant Diño was served with
summons on January 16, 1992.
On January 21, 1992, petitioners filed an “Urgent
Motion to Discharge/Dissolve Writ of Attachment.” That
same day, Sun Life filed an ex-parte motion to examine the
https://www.central.com.ph/sfsreader/session/0000017c07e809799ac9cbb4000d00d40059004a/t/?o=False
9/21/21, 6:25 PM SUPREME COURT REPORTS ANNOTATED VOLUME 230
books of accounts and ledgers of petitioner Brunner
Development Corporation (Brunner, for brevity) at the
Urban Bank, Legaspi Village Branch, and to obtain copies
thereof, which motion was granted by respondent Judge.
The examination of said account took place on January 23,
1992. Petitioners filed a motion to nullify the proceedings
taken thereat since they were not present.
On January 30, 1992, petitioners and their co-
defendants filed a memorandum in support of the motion to
discharge attachment. Also On that same day, Sun Life
filed another motion for examination of bank accounts, this
time seeking the examination of Account No. 0041-0277-03
with the Bank of Philippine Islands (BPI)—which,
incidentally, petitioners claim not to be owned by them—
and the records of Philippine National Bank (PNB) with
regard to checks payable to Brunner. Sun Life asked the
court to order both banks to comply with the notice of
garnishment.
On February 6, 1992, respondent Judge issued an order
(1) denying petitioners’ and the co-defendants’ motion to
discharge the amended writ of attachment, (2) approving
Sun Life’s additional attachment bond, (3) granting Sun
Life’s motion to examine the BPI account, and (4) denying
petitioners’ motion to nullify the proceedings of January 23,
1992.
185
________________
185 1 Sheriff’s Return, Rollo in G.R. No. 107303, pp. 47-48.
186
186 SUPREME COURT REPORTS ANNOTATED
Oñate vs. Abrogar
On March 12, 1992, petitioners filed a motion for
reconsideration of the February, 1992 order. On September
6, 1992, respondent Judge denied the motion for
reconsideration.
Hence, the instant petitions. Petitioners’ basic argument
is that respondent Judge had acted with grave abuse of
discretion amounting to lack or in excess of jurisdiction in
(1) issuing ex parte the original and amended writs of
preliminary attachment and the corresponding notices of
garnishment and levy on attachment since the trial court
had not yet acquired jurisdiction over them; and (2)
allowing the examination of the bank records though no
notice was given to them.
5/12 https://www.central.com.ph/sfsreader/session/0000017c07e809799ac9cbb4000d00d40059004a/t/?o=False 6/12
9/21/21, 6:25 PM SUPREME COURT REPORTS ANNOTATED VOLUME 230 9/21/21, 6:25 PM SUPREME COURT REPORTS ANNOTATED VOLUME 230

We find both petitions unmeritorious. 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
I the immemorial practice sanctioned by the courts: for the plaintiff
or other proper party to incorporate the application for
Petitioners initially argue that respondent Judge erred in attachment in the complaint or other appropriate pleading
granting Sun Life’s prayer for a writ of preliminary (counterclaim, cross-claim, third-party claim) and for the Trial
attachment on the ground that the trial court had not Court to issue the writ ex-parte at the commencement of the
acquired jurisdiction over them. This argument is clearly action if it 3finds the application otherwise sufficient in form and
unavailing since it is wellsettled that a writ of preliminary substance.”
attachment may be validly applied for and granted 2 even
before the defendant is summoned or is heard from. The Petitioners then contend that the writ should have been
rationale behind this rule was stated by the Court in this discharged since the ground on which it was issued—fraud
wise: in contracting the obligation—was not present. This cannot
be considered a ground for lifting the writ since this delves
“A preliminary attachment may be defined, paraphrasing the
into the very complaint of Sun Life. As this Court stated in
Rules of Court, as the provisional remedy in virtue of which a 4
Cuatro v. Court of Appeals:
plaintiff or other proper party may, at the commencement of the
action or any time thereafter, have the property of the adverse “Moreover, an attachment may not be dissolved by a showing of
party taken into the custody of the court as security for the its irregular or improper issuance if it is upon a ground which is
satisfaction of any judgment that may be recovered. It is a remedy at the same time the applicant’s cause of action in the main case
which is purely statutory in respect of which the law requires a since an anomalous situation would result if the issues of the
strict construction of the provisions granting it. Withal no main case would be ventilated and resolved in a mere hearing of
principle, statutory or jurisprudential, prohibits its issuance by the motion (Davao light and Power Co., Inc. vs. Court of Appeals,
any court before acquisition of jurisdiction over the person of the supra, The Consolidated Bank and Trust Corp. (Solidbank) vs.
defendant. Court of Appeals, 197 SCRA 663 [1991]).
“Rule 57 in fact speaks of the grant of the remedy ‘at the “In the present case, one of the allegation in petitioner’s
commencement of the action or at any time thereafter.’ The complaint below is that the defendant spouses induced the
phrase, ‘at the commencement of the action,’ obviously refers to plaintiff to grant the loan by issuing postdated checks to cover the
the date of the installment payments and a separate set of postdated checks for
payment of the stipulated interest (Annex “B”). the issue of fraud,
_________________ then, is clearly
5
within the competence of the lower court in the
main action.”
2 Davao Light & Power Co., Inc. vs. Court of Appeals, et al., G.R. No. 93262, 204
SCRA 343 (1991); Cuartero vs. Court of Appeals, et al., G.R. No. 102448, 212 SCRA
260 (1992).
_________________

3 Davao Light & Power Co., Inc. vs. Court of Appeals, supra, 204 SCRA
187
343, 349-350. Citations omitted.
4 212 SCRA 260.
VOL. 230, FEBRUARY 21, 1994 187 5 Id., at 267.
Oñate vs. Abrogar
188

filing of the complaint—which, as abovepointed out, is the date

that marks the commencement of the action;’ and the reference 188 SUPREME COURT REPORTS ANNOTATED
plainly is to a time before summons is served on the defendant, or
Oñate vs. Abrogar
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 fact that a criminal complaint for estafa filed by Sun
—the plaintiff may apply for and obtain a writ of preliminary Life against the petitioners was dismissed by the Provincial
attachment upon fulfillment of the pertinent requisites laid down Prosecutor of Rizal for Makati on April 21, 1992 and was

https://www.central.com.ph/sfsreader/session/0000017c07e809799ac9cbb4000d00d40059004a/t/?o=False 7/12 https://www.central.com.ph/sfsreader/session/0000017c07e809799ac9cbb4000d00d40059004a/t/?o=False 8/12

9/21/21, 6:25 PM SUPREME COURT REPORTS ANNOTATED VOLUME 230 9/21/21, 6:25 PM SUPREME COURT REPORTS ANNOTATED VOLUME 230

upheld by the Provincial Prosecutor on July 13, 1992 is of President of Econ Holdings while petitioner Diño is the
no moment since the same can be indicative only of the President of Brunner Development Corporation as well as a
absence of criminal liability, but not of civil liability. stockholder and director of Econ Holdings.
Besides, Sun Life had elevated the case for review to the Thus, an exception to the established rule on the
Department of Justice, where the case is presently enforcement of the writ of attachment can be made where a
pending. previous attempt to serve the summons and the writ of
Finally, petitioners argue that the enforcement of the attachment failed due to factors beyond the control of
writ was invalid since it undisputedly preceded the actual either the plaintiff or the process server, provided that such
service of summons by six days at most. Petitioners 6
cite the service is effected within a reasonable period thereafter.
decisions in Sievert vs. Court of Appeals, et al. and BAC7 Several reasons can be given for the exception. First,
Manufacturing and Sales Corp. vs. Court of Appeals, et al., there is a possibility that a defendant, having been alerted
wherein this Court held that enforcement of the writ of of plaintiff’s action by the attempted service of summons
attachment can not bind the defendant in view of the and the writ of attachment, would put his properties
failure of the trial court to acquire jurisdiction over the beyond the reach of the plaintiff while the latter is trying to
defendant through either summons or his voluntary serve the summons and the writ anew. By the time the
appearance. plaintiff may have caused the service of summons and the
We do not agree entirely with petitioners. True, this writ, there might not be any property of the defendant left
Court had held in a recent decision that the enforcement of to attach.
writ of attachment may not validly be effected until and Second, the court eventually acquired jurisdiction over
unless proceeded or8 contemporaneously accompanied by the petitioners six days later. To nullify the notices of
service of summons. garnishment issued prior thereto would again open the
But we must distinguish the case at bar from the Sievert possibility that petitioners would transfer the garnished
and BAC Manufacturing cases. In those two cases, monies while Sun Life applied for new notices of
summons was never served upon the defendants. The garnishment.
plaintiffs therein did not even attempt to cause service of Third, the ease by which a writ of attachment can be
summons upon the defendants, right up to the time the obtained is counter-balanced by the ease by which the same
cases went up to this Court. This is not true in the case at can be discharged: the defendant can either make a cash
bar. The records reveal that Sheriff Flores and Sun Life did deposit or post a counter-bond
10
equivalent to the value of
attempt a contemporaneous service of both summons and the property attached. The petitioners herein tried to have
the writ of attachment on January 3, 1992, but were the writ of attachment discharged by posting a counter-
stymied by the absence of a responsible officer in bond, the same was denied by respondent Judge on the
petitioners’ offices. Note is taken of the fact that petitioners
9
ground that the amount of the counterbond was less than
Oñate and Econ Holdings admitted in their answer that that of Sun Life’s bond.
the offices of both Brunner Development Corporation and
Econ Holdings were located at the same address, and that II.
petitioner Oñate is the
Petitioners’ second ground assails the acts of respondent
Judge in allowing the examination of Urban Bank’s records
________________
and in ordering that the examination of the bank records of
6 G.R. No. L-84034, 168 SCRA 692 (1988). BPI and PNB as invalid since no notice of said
7 G.R. No. 96748, 200 SCRA 130 (1991). examinations were ever
8 Id., p. 357.
9 Rollo in G.R. No. 107303, p. 90. ________________

189 10 Rule 57, sec. 12, Rules of Court.

190
VOL. 230, FEBRUARY 21, 1994 189
Oñate vs. Abrogar 190 SUPREME COURT REPORTS ANNOTATED
https://www.central.com.ph/sfsreader/session/0000017c07e809799ac9cbb4000d00d40059004a/t/?o=False 9/12 https://www.central.com.ph/sfsreader/session/0000017c07e809799ac9cbb4000d00d40059004a/t/?o=False 10/12
9/21/21, 6:25 PM SUPREME COURT REPORTS ANNOTATED VOLUME 230 9/21/21, 6:25 PM SUPREME COURT REPORTS ANNOTATED VOLUME 230

Oñate vs. Abrogar VOL. 230, FEBRUARY 21, 1994 191

Hipolito vs. Court of Appeals
given them. Sun Life grounded its requests for the
examination of the bank accounts on Section 10, Rule 57 of Petitions dismissed.
the Rules of Court, which provided, to wit:
Notes.—Failure of the petitioner to prove the ground
“Sec. 10. Examination of party whose property is attached and
relied upon for issuance of the writ of attachment cannot be
persons indebted to him or controlling his property; delivery of
equated with bad faith or malicious intent (BA Finance
property to officer.—Any person owing debts to the party whose
Corporation vs. Court of Appeals, 161 SCRA 608 [1988]).
property is attached or having in his possession or under his
The exception to the rule against disclosure of bank
control any credit or other personal property belonging to such
deposits is in cases of unexplained wealth (Banco Filipino
party, may be required to attend before the court in which the
and Mortgage Bank vs. Purisima, 161 SCRA 576 [1988]).
action is pending, or before a commissioner appointed by the
court, and be examined on oath respecting the same. The party ——o0o——
whose property is attached may also be required to attend for the
purpose of giving information respecting his property, and may be
examined on oath. The court may, after such examination, order
personal property capable of manual delivery belonging to him, in
the possession of the person so required to attend before the court,
to be delivered to the clerk or court, sheriff, or other proper officer
on such terms as may be just, having reference to any lien thereon © Copyright 2021 Central Book Supply, Inc. All rights reserved.
or claim against the same, to await the judgment in the action.”

It is clear from the foregoing provision that notice need

only be given to the garnishee, i.e., the person who is
holding property or credits belonging to the defendant. The
provision does not require that notice be furnished the
defendant himself, except when there is a need to examine
said defendant “for the purpose of giving information
respecting his property.
Furthermore, Section 10, Rule 57 is not incompatible
with Republic Act No. 1405, as amended, “An Act
Prohibiting Disclosure or Inquiry Into, Deposits With Any
Banking Institution and Providing Penalty Therefore,” for
Section 2 therefore provides an exception “in cases where
the money deposited or invested is the subject matter of the
litigation.”
The examination of the bank records is not a fishing
expedition, but rather a method by which Sun Life could
trace the proceeds of the check it paid to petitioners.
WHEREFORE, the instant petitions are hereby
DISMISSED. The temporary restraining order issued on
June 28, 1993 is hereby lifted.
SO ORDERED.

Narvasa (C.J., Chairman), Padilla, Regalado and

Puno, JJ., concur.

191

https://www.central.com.ph/sfsreader/session/0000017c07e809799ac9cbb4000d00d40059004a/t/?o=False 11/12 https://www.central.com.ph/sfsreader/session/0000017c07e809799ac9cbb4000d00d40059004a/t/?o=False 12/12