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Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. 93262 December 29, 1991
DAVAO LIGHT PO!ER CO., INC., petitioner,
vs.
THE COURT O" APPEALS, #UEENSLAND HOTEL or MOTEL or #UEENSLAND TOURIST INN, $%&
TEODORICO ADARNA, respondents.
Breva & Breva Law Ofices for petitioner.
Goc-Ong & Associates for private respondents.

NARVASA, J.:p
Subject of the appellate proceedings at bar is the decision of the Court of Appeals in CA!.R. Sp. No. "#$%
entitled &Queensland Hotel, Inc., etc. and Adarna v. avao Lig!t & "ower #o., Inc.,& pro'ulgated on Ma( ), "##*.
1 +hat decision nulli,ed and set aside the -rit of preli'inar( attach'ent issued b( the Regional +rial Court of
.avao Cit( 2 in Civil Case No. "#/"01# on application of the plainti2 3.avao 4ight 5 Po-er Co.6, before the
service of su''ons on the defendants 3herein respondents 7ueensland Co., 8nc. and Adarna6.
9ollo-ing is the chronolog( of the undisputed 'aterial facts culled fro' the Appellate +ribunal:s judg'ent of Ma(
), "##*.
". ;n Ma( <, "#1# .avao 4ight 5 Po-er Co., 8nc. 3hereafter, si'pl( .avao 4ight6 ,led a veri,ed co'plaint for
recover( of a su' of 'one( and da'ages against 7ueensland =otel, etc. and +eodorico Adarna 3doc>eted as Civil
Case No. "#/"01#6. +he co'plaint contained an e$ parte application for a -rit of preli'inar( attach'ent.
<. ;n Ma( 0, "#1# ?udge Nartate@, to -hose branch the case -as assigned b( raAe, issued an ;rder granting the
e$ parte application and ,Bing the attach'ent bond at P),$**,/"0.0%.
0. ;n Ma( "", "#1# the attach'ent bond having been sub'itted b( .avao 4ight, the -rit of attach'ent issued.
). ;n Ma( "<, "#1#, the su''ons and a cop( of the co'plaint, as -ell as the -rit of attach'ent and a cop( of the
attach'ent bond, -ere served on defendants 7ueensland and AdarnaC and pursuant to the -rit, the sheri2 sei@ed
properties belonging to the latter.
/. ;n Septe'ber $, "#1#, defendants 7ueensland and Adarna ,led a 'otion to discharge the attach'ent for lac>
of jurisdiction to issue the sa'e because at the ti'e the order of attach'ent -as pro'ulgated 3Ma( 0, "#1#6 and
the attach'ent -rit issued 3Ma( "", "#1#6, the +rial Court had not (et acDuired jurisdiction over the cause and
over the persons of the defendants.
$. ;n Septe'ber "), "#1#, .avao 4ight ,led an opposition to the 'otion to discharge attach'ent.
%. ;n Septe'ber "#, "#1#, the +rial Court issued an ;rder den(ing the 'otion to discharge.
+his ;rder of Septe'ber "#, "#1# -as successfull( challenged b( 7ueensland and Adarna in a special civil action
of certiorari instituted b( the' in the Court of Appeals. +he ;rder -as, as aforestated, annulled b( the Court of
Appeals in its .ecision of Ma( ), "##*. +he Appellate Court:s decision closed -ith the follo-ing dispositionE
. . . the ;rders dated Ma( 0, "#1# granting the issuance of a -rit of preli'inar(
attach'ent, dated Septe'ber "#, "#1# den(ing the 'otion to discharge attach'entC
dated Nove'ber %, "#1# den(ing petitioner:s 'otion for reconsiderationC as -ell as all
other orders e'anating therefro', speciall( the Frit of Attach'ent dated Ma( "", "#1#
and Notice of 4ev( on Preli'inar( Attach'ent dated Ma( "", "#1#, are hereb( declared
null and void and the attach'ent hereb( ordered .8SC=AR!E..
+he Appellate +ribunal declared that G
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. . . Fhile it is true that a pra(er for the issuance of a -rit of preli'inar( attach'ent 'a(
be included ' the co'plaint, as is usuall( done, it is li>e-ise true that the Court does not
acDuire jurisdiction over the person of the defendant until he is dul( su''oned or
voluntaril( appears, and adding the phrase that it be issued &e$ parte& does not confer
said jurisdiction before actual su''ons had been 'ade, nor retroact jurisdiction upon
su''ons being 'ade. . . .
8t -ent on to sa(, citing %ievert v. #ourt of Appeals, 3 that &in a proceedings in attach'ent,& the
&critical ti'e -hich 'ust be identi,ed is . . . -hen the trial court acDuires authorit( under la- to
act coercivel( against the defendant or his propert( . . .C& and that &the critical ti'e is the of the
vesting of jurisdiction in the court over the person of the defendant in the 'ain case.&
Reversal of this .ecision of the Court of Appeals of Ma( ), "##* is -hat .avao 4ight see>s in the present
appellate proceedings.
+he Duestion is -hether or not a -rit of preli'inar( attach'ent 'a( issue e$ parte against a defendant before
acDuisition of jurisdiction of the latter:s person b( service of su''ons or his voluntar( sub'ission to the Court:s
authorit(.
+he Court rules that the Duestion 'ust be ans-ered in the a2ir'ative and that conseDuentl(, the petition for
revie- -ill have to be granted.
8t is incorrect to theori@e that after an action or proceeding has been co''enced and jurisdiction over the person
of the plainti2 has been vested in the court, &ut &efore t!e ac'uisition of (urisdiction over t!e person of t!e
defendant )eit!er &* service of su++ons or !is voluntar* su&+ission to t!e court,s aut!orit*-, nothing can be
validl( done b( the plainti2 or the court. 8t is -rong to assu'e that the validit( 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. +he obtention b( the court of jurisdiction over the person of the defendant is one thingC Duite another is
the acDuisition of jurisdiction over the person of the plainti2 or over the subject'atter or nature of the action, or
the res or object hereof.
An action or proceeding is co''enced b( the ,ling of the co'plaint or other initiator( pleading. ' B( that act,
the jurisdiction of the court over the subject 'atter or nature of the action or proceeding is invo>ed or called into
activit(C ( and it is thus that the court acDuires jurisdiction over said subject 'atter or nature of the action. 6 And
it is b( that selfsa'e act of the plainti2 3or petitioner6 of ,ling the co'plaint 3or other appropriate pleading6 G
b( -hich he signi,es his sub'ission to the court:s po-er and authorit( G that jurisdiction is acDuired b( the
court over his person. ) ;n the other hand, jurisdiction over the person of the defendant is obtained, as above
stated, b( the service of su''ons or other coercive process upon hi' or b( his voluntar( sub'ission to the
authorit( of the court. *
+he events that follo- the ,ling of the co'plaint as a 'atter of routine are -ell >no-n. After the co'plaint is
,led, su''ons issues to the defendant, the su''ons is then trans'itted to the sheri2, and ,nall(, service of the
su''ons is e2ected on the defendant in an( of the -a(s authori@ed b( the Rules of Court. +here is thus
ordinaril( so'e appreciable interval of ti'e bet-een the da( of the ,ling of the co'plaint and the da( of service
of su''ons of the defendant. .uring this period, di2erent acts 'a( be done b( the plainti2 or b( the Court,
-hich are unDuestionable validit( and propriet(. A'ong these, for eBa'ple, are the appoint'ent of a guardian ad
lite+, 9 the grant of authorit( to the plainti2 to prosecute the suit as a pauper litigant, 1+ the a'end'ent of the
co'plaint b( the plainti2 as a 'atter of right -ithout leave of court, 11 authori@ation b( the Court of service of
su''ons b( publication, 12 the dis'issal of the action b( the plainti2 on 'ere notice. 13
+his, too, is true -ith regard to the provisional re'edies of preli'inar( attach'ent, preli'inar( injunction,
receivership or replevin. 1' +he( 'a( be validl( and properl( applied for and granted even before the defendant
is su''oned or is heard fro'.
A preli'inar( attach'ent 'a( be de,ned, paraphrasing the Rules of Court, as the provisional re'ed( in virtue of
-hich a plainti2 or other part( 'a(, at the co''ence'ent of the action or at an( ti'e thereafter, have the
propert( of the adverse part( ta>en into the custod( of the court as securit( for the satisfaction of an( judg'ent
that 'a( be recovered. 1( 8t is a re'ed( -hich is purel( statutor( in respect of -hich the la- reDuires a strict
construction of the provisions granting it. 16 Fithal no principle, statutor( or jurisprudential, prohibits its
issuance b( an( court before acDuisition of jurisdiction over the person of the defendant.
Rule /% in fact spea>s of the grant of the re'ed( &at the co''ence'ent of the action or at an( ti'e thereafter.&
1) +he phase, &at the co''ence'ent of the action,& obviousl( refers to the date of the ,ling of the co'plaint G
-hich, as above pointed out, is the date that 'ar>s &the co''ence'ent of the actionC& 1* and the reference
plainl( is to a ti'e before su''ons is served on the defendant, or even before su''ons issues. Fhat the rule is
sa(ing Duite clearl( is that after an action is properl( co''enced G b( the ,ling of the co'plaint and the
pa('ent of all reDuisite doc>et and other fees G the plainti2 'a( appl( for and obtain a -rit of preli'inar(
attach'ent upon ful,ll'ent of the pertinent reDuisites laid do-n b( la-, and that he 'a( do so at an( ti'e, either
before or after service of su''ons on the defendant. And this indeed, has been the i''e'orial practice
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sanctioned b( the courtsE for the plainti2 or other proper part( to incorporate the application for attach'ent in
the co'plaint or other appropriate pleading 3counterclai', crossclai', thirdpart( clai'6 and for the +rial Court
to issue the -rit e$-parte at the co''ence'ent of the action if it ,nds the application other-ise su2icient in for'
and substance.
8n .oledo v. Burgos, 19 this Court ruled that a hearing on a 'otion or application for preli'inar( attach'ent is
not generall( necessar( unless other-ise directed b( the +rial Court in its discretion. 2+ And in /ilinvest #redit
#orporation v. 0elova, 21 the Court declared that &3n6othing in the Rules of Court 'a>es notice and hearing
indispensable and 'andator( reDuisites for the issuance of a -rit of attach'ent.& +he onl( prereDuisite is that
the Court be satis,ed, upon consideration of &the a2idavit of the applicant or of so'e other person -ho
personall( >no-s the facts, that a su2icient cause of action eBists, that the case is one of those 'entioned in
Section " . . . 3Rule /%6, that there is no other su2icient securit( for the clai' sought to be enforced b( the action,
and that the a'ount due to the applicant, or the value of the propert( the possession of -hich he is entitled to
recover, is as 'uch as the su' for -hich the order 3of attach'ent6 is granted above all legal counterclai's.& 22 8f
the court be so satis,ed, the &order of attach'ent shall be granted,& 23 and the -rit shall issue upon the
applicant:s posting of &a bond eBecuted to the adverse part( in an a'ount to be ,Bed b( the judge, not eBceeding
the plainti2s clai', conditioned that the latter -ill pa( all the costs -hich 'a( be adjudged to the adverse part(
and all da'ages -hich he 'a( sustain b( reason of the attach'ent, if the court shall ,nall( adjudge that the
applicant -as not entitled thereto.& 2'
8n 1indanao %avings & Loan Association, Inc. v. #ourt of Appeals, decided on April "1, "#1#, 2( this Court had
occasion to e'phasi@e the postulate that no hearing is reDuired on an application for preli'inar( attach'ent,
-ith notice to the defendant, for the reason that this &-ould defeat the objective of the re'ed( . . . 3since the6
ti'e -hich such a hearing -ould ta>e, could be enough to enable the defendant to abscond or dispose of his
propert( before a -rit of attach'ent issues.& As observed b( a for'er 'e'ber of this Court, 26 such a procedure
-ould -arn absconding debtorsdefendants of the co''ence'ent of the suit against the' and the probable
sei@ure of their properties, and thus give the' the advantage of ti'e to hide their assets, leaving the creditor
plainti2 holding the proverbial e'pt( bagC it -ould place the creditorapplicant in danger of losing an( securit(
for a favorable judg'ent and thus give hi' onl( an illusor( victor(.
Fithal, a'ple 'odes of recourse against a preli'inar( attach'ent are secured b( la- to the defendant. +he
relative ease -ith -hich a preli'inar( attach'ent 'a( be obtained is 'atched and paralleled b( the relative
facilit( -ith -hich the attach'ent 'a( legiti'atel( be prevented or frustrated. +hese 'odes of recourse against
preli'inar( attach'ents granted b( Rule /% -ere discussed at so'e length b( the separate opinion in 1indanao
%avings & Loans Asso. Inc. v. #A., supra.
+hat separate opinion stressed that there are t-o 3<6 -a(s of discharging an attach'entE 2rst, b( the posting of a
counterbondC and second, b( a sho-ing of its i'proper or irregular issuance.
".*. +he sub'ission of a counterbond is an e2icacious 'ode of lifting an attach'ent alread( enforced against
propert(, or even of preventing its enforce+ent altoget!er.
".". Fhen propert( has alread( been sei@ed under attach'ent, the attach'ent 'a( be discharged upon
counterbond in accordance -ith Section "< of Rule /%.
Sec. "<. isc!arge of attac!+ent upon giving counter&ond. G At an( ti'e after an order
of attach'ent has been granted, the part( -hose propert( has been attached or the
person appearing in his behalf, 'a(, upon reasonable notice to the applicant, appl( to the
judge -ho granted the order, or to the judge of the court in -hich the action is pending,
for an order discharging the attach'ent -holl( or in part on the securit( given . . . in an
a'ount eDual to the value of the propert( attached as deter'ined b( the judge to secure
the pa('ent of an( judg'ent that the attaching creditor 'a( recover in the action. . . .
".<. But even before actual lev( on propert(, sei@ure under attach'ent 'a( be prevented also upon counterbond.
+he defendant need not -ait until his propert( is sei@ed before see>ing the discharge of the attach'ent b( a
counterbond. +his is 'ade possible b( Section / of Rule /%.
Sec. /. 1anner of attac!ing propert*. G +he o2icer eBecuting the order shall -ithout
dela( attach, to a-ait judg'ent and eBecution in the action, all the properties of the part(
against -ho' the order is issued in the province, not eBe'pt fro' eBecution, or so 'uch
thereof as 'a( be su2icient to satisf( the applicant:s de'and, unless t!e for+er +a3es a
deposit wit! t!e cler3 or (udge of t!e court fro+ w!ic! t!e order issued, or gives a
counter-&ond e$ecuted to t!e applicant, in an a+ount suficient to satisf* suc! de+and
&esides costs, or in an a+ount e'ual to t!e value of t!e propert* w!ic! is a&out to &e
attac!ed, to secure pa*+ent to t!e applicant of an* (udg+ent w!ic! !e +a* recover in
t!e action. . . . 3E'phasis supplied6
<.*. Aside fro' the ,ling of a counterbond, a preli'inar( attach'ent 'a( also be lifted or discharged on the
ground that it has been irregularl( or i'properl( issued, in accordance -ith Section "0 of Rule /%. 4i>e the ,rst,
Page 3 of 5
this second 'ode of lifting an attach'ent 'a( be resorted to even &efore an( propert( has been levied on.
8ndeed, it 'a( be availed of after propert* !as &een released fro+ a lev* on attac!+ent, as is 'ade clear b( said
Section "0, vi4.E
Sec. "0. .ischarge of attach'ent for i'proper or irregular issuance. G +he part( -hose
propert( has been attached 'a( also, at an( ti'e either B5/O05 or A/.50 t!e release of
t!e attac!ed propert*, or &efore an* attac!+ent s!all !ave &een actuall* levied, upon
reasonable notice to the attaching creditor, appl( to the judge -ho granted the order, or
to the judge of the court in -hich the action is pending, for an order to discharge the
attach'ent on the ground that the sa'e -as i'properl( or irregularl( issued. 8f the
'otion be 'ade on a2idavits on the part of the part( -hose propert( has been attached,
but not other-ise, the attaching creditor 'a( oppose the sa'e b( countera2idavits or
other evidence in addition to that on -hich the attach'ent -as 'ade. . . . 3E'phasis
supplied6
+his is so because &3a6s pointed out in #alderon v. I.A.#., "// SCRA /0" 3"#1%6, +he attach'ent debtor cannot be
dee'ed to have -aived an( defect in the issuance of the attach'ent -rit b( si'pl( availing hi'self of one -a( of
discharging the attach'ent -rit, instead of the other. Moreover, the ,ling of a counterbond is a speedier -a( of
discharging the attach'ent -rit 'aliciousl( sought out b( the attaching creditor instead of the other -a(, -hich,
in 'ost instances . . . -ould reDuire presentation of evidence in a fullblo-n trial on the 'erits, and cannot easil(
be settled in a pending incident of the case.& 2)
8t 'a( not be a'iss to here reiterate other related principles dealt -ith in 1indanao %avings & Loans Asso. Inc.
v. #.A., supra., 2* to -itE
3a6 6!en an attac!+ent +a* not &e dissolved &* a s!owing of its irregular or i+proper
issuance7
. . . 3F6hen the preli'inar( attach'ent is issued upon a ground -hich is at the sa'e ti'e
the applicant:s cause of actionC e.g., &an action for 'one( or propert( e'be@@led or
fraudulentl( 'isapplied or converted to his o-n use b( a public o2icer, or an o2icer of a
corporation, or an attorne(, factor, bro>er, agent, or cler>, in the course of his e'plo('ent
as such, or b( an( other person in a ,duciar( capacit(, or for a -illful violation of dut(.&
3Sec. " HbI, Rule /%6, or &an action against a part( -ho has been guilt( of fraud '
contracting the debt or incurring the obligation upon -hich the action is brought& 3Sec. "
HdI, Rule /%6, the defendant is not allo-ed to ,le a 'otion to dissolve the attach'ent
under Section "0 of Rule /% b( o2ering to sho- the falsit( of the factual aver'ents in the
plainti2:s application and a2idavits on -hich the -rit -as based G and conseDuentl( that
the -rit based thereon had been i'properl( or irregularl( issued 3SEE Benite@ v. 8.A.C.,
"/) SCRA )"6 G the reason being that the hearing on such a 'otion for dissolution of the
-rit -ould be tanta'ount to a trial of the 'erits of the action. 8n other -ords, the 'erits
of the action -ould be ventilated at a 'ere hearing of a 'otion, instead of at the regular
trial. +herefore, -hen the -rit of attach'ent is of this nature, the onl( -a( it can be
dissolved is b( a counterbond 3!.B. 8nc. v. Sanche@, #1 Phil. 11$6.
3b6 5fect of t!e dissolution of a preli+inar* attac!+ent on t!e plaintifs attac!+ent &ond7
. . . +he dissolution of the preli'inar( attach'ent upon securit( given, or a sho-ing of its
irregular or i'proper issuance, does not of course operate to discharge the sureties on
plainti2:s o-n attach'ent bond. +he reason is si'ple. +hat bond is &eBecuted to the
adverse part(, . . . conditioned that the . . . 3applicant6 -ill pa( all the costs -hich 'a( be
adjudged to the adverse part( and all da'ages -hich he 'a( sustain b( reason of the
attach'ent, if the court shall ,nall( adjudge that the applicant -as not entitled thereto&
3SEC. ), Rule /%6. =ence, until that deter'ination is 'ade, as to the applicant:s
entitle'ent to the attach'ent, his bond 'ust stand and cannot be -ithdra-n.
Fith respect to the other provisional re'edies, i.e., preli'inar( injunction 3Rule /16, receivership 3Rule /#6,
replevin or deliver( of personal propert( 3Rule $*6, the rule is the sa'eE the( 'a( also issue e$ parte. 29
8t goes -ithout sa(ing that -hatever be the acts done b( the Court prior to the acDuisition of jurisdiction over the
person of defendant, as above indicated G issuance of su''ons, order of attach'ent and -rit of attach'ent
3andJor appoint'ents of guardian ad lite+, or grant of authorit( to the plainti2 to prosecute the suit as a pauper
litigant, or a'end'ent of the co'plaint b( the plainti2 as a 'atter of right -ithout leave of court 3+ G and
ho-ever valid and proper the( 'ight other-ise be, these do not and cannot bind and a2ect the defendant until
and unless jurisdiction over his person is eventuall( obtained b( the court, either b( service on hi' of su''ons
or other coercive process or his voluntar( sub'ission to the court:s authorit(. =ence, -hen the sheri2 or other
proper o2icer co''ences i'ple'entation of the -rit of attach'ent, it is essential that he serve on the defendant
not onl( a cop( of the applicant:s a2idavit and attach'ent bond, and of the order of attach'ent, as eBplicit(
reDuired b( Section / of Rule /%, but also the su''ons addressed to said defendant as -ell as a cop( of the
co'plaint and order for appoint'ent of guardian ad lite+, if an(, as also eBplicit( directed b( Section 0, Rule ")
Page 4 of 5
of the Rules of Court. Service of all such docu'ents is indispensable not onl( for the acDuisition of jurisdiction
over the person of the defendant, but also upon considerations of fairness, to apprise the defendant of the
co'plaint against hi', of the issuance of a -rit of preli'inar( attach'ent and the grounds therefor and thus
accord hi' the opportunit( to prevent attach'ent of his propert( b( the posting of a counterbond in an a'ount
eDual to the plainti2:s clai' in the co'plaint pursuant to Section / 3or Section "<6, Rule /%, or dissolving it b(
causing dis'issal of the co'plaint itself on an( of the grounds set forth in Rule "$, or de'onstrating the
insu2icienc( of the applicant:s a2idavit or bond in accordance -ith Section "0, Rule /%.
8t -as on account of the failure to co'pl( -ith this funda'ental reDuire'ent of service of su''ons and the other
docu'ents above indicated that -rits of attach'ent issued b( the +rial Court e$ parte -ere struc> do-n b( this
Court:s +hird .ivision in t-o 3<6 cases, na'el(E %ievert v. #ourt of Appeals, 31 and BA# 1anufacturing and %ales
#orporation v. #ourt of Appeals, et al. 32 8n contrast to the case at bar G -here the su''ons and a cop( of the
co'plaint, as -ell as the order and -rit of attach'ent and the attach'ent bond -ere served on the defendant G
in %ievert, lev( on attach'ent -as atte'pted not-ithstanding that onl( the petition for issuance of the -rit of
preli'inar( attach'ent -as served on the defendant, -ithout an( prior or acco'pan(ing su''ons and cop( of
the co'plaintC and in BA# 1anufacturing and %ales #orporation, neither the su''ons nor the order granting the
preli'inar( attach'ent or the -rit of attach'ent itself -as served on the defendant &before or at the ti'e the
lev( -as 'ade.&
9or the guidance of all concerned, the Court reiterates and rea2ir's the proposition that -rits of attach'ent 'a(
properl( issue e$ parte provided that the Court is satis,ed that the relevant reDuisites therefor have been ful,lled
b( the applicant, although it 'a(, in its discretion, reDuire prior hearing on the application -ith notice to the
defendantC but that lev( on propert( pursuant to the -rit thus issued 'a( not be validl( e2ected unless preceded,
or conte'poraneousl( acco'panied, b( service on the defendant of su''ons, a cop( of the co'plaint 3and of the
appoint'ent of guardian ad lite+, if an(6, the application for attach'ent 3if not incorporated in but sub'itted
separatel( fro' the co'plaint6, the order of attach'ent, and the plainti2:s attach'ent bond.
F=ERE9;RE, the petition is !RAN+E.C the challenged decision of the Court of Appeals is hereb( REKERSE.,
and the order and -rit of attach'ent issued b( =on. Milagros C. Nartate@, Presiding ?udge of Branch 1, Regional
+rial Court of .avao Cit( in Civil Case No. "#/"01# against 7ueensland =otel or Motel or 7ueensland +ourist
8nn and +eodorico Adarna are hereb( RE8NS+A+E.. Costs against private respondents.
S; ;R.ERE..
1elencio-Herrera, Gutierre4, 8r., #ru4, "aras, /eliciano, "adilla, Bidin, Gri9o-A'uino, 1edialdea, 0egalado and
0o+ero, 88., concur.
/ernan, #.8., is on leave.
avide, 8r., 8., too3 no part.
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