G.R. No. 93262 - NOVEMBER 1991 - PHILIPPINE JURISPRUDENCE CASE NUMBERCASE TITLE G.R. No. 93262November 29, 1991Davao Light and Power Company, Inc. vs. Court of Appeals G.R. No. 100626November 29, 1991City of Manila vs. Court of Appeals G.R. No. 96302November 29, 1991Ambrocio Muyco vs. Court of Appeals G.R. No. 90627November 29, 1991People of the Philippines vs. Ramon R. Lao G.R. No. 89362November 29, 1991Jose Baritua vs. Sec. of Labor G.R. No. 89113November 29, 1991The People of the Philippines vs. Genaro Lardizabal G.R. No. 85714November 29, 1991Hydro Resources Contractors Corporation vs. Court of Appeals G.R. No. 74697November 29, 1991Lino Alabanzas vs. Intermediate Appellate Court G.R. No. 63025November 29, 1991Ramon C. Ong vs. Court of Appeals G.R. No. 96397November 21, 1991People of the Philippines vs. Melencio Mendoza G.R. No. 94642November 21, 1991People of the Philippines vs. Edgardo C. Atilano G.R. No. 94050November 21, 1991Sylvia H. Bedia vs. Emily A. White G.R. No. 93732November 21, 1991People of the Philippines vs. Ramon Carson G.R. No. 93310-12November 21, 1991University of the East vs. Sec. of Labor, et al. G.R. No. 91896November 21, 1991Aurora T. Aquino vs. Court of Appeals, et al. G.R. No. 91013November 21, 1991People of the Philippines vs. Eduardo Tiad G.R. No. 90478November 21, 1991Republic of the Philippines vs. Sandiganbayan G.R. No. 88555November 21, 1991Eduardo N. Aswat vs. Alejandro Galido G.R. No. 88381-82November 21, 1991People of the Philippines vs. Rodolfo R. Nicolas, et al. G.R. No. 86785November 21, 1991Commissioner of Internal Revenue vs. Court of Appeals G.R. No. 84966November 21, 1991Republic of the Philippines vs. Court of Appeals G.R. No. 84272November 21, 1991Bacolod-Murcia Milling Company vs. National Labor Relations Commission G.R. No. 82789November 21, 1991Narciso Kho vs. Manuel Camacho G.R. No. 75111November 21, 1991Margarito Almendra vs. Intermediate Appellate Court G.R. No. 73747November 21, 1991People of the Philippines vs. Dennis Song G.R. No. 72990November 21, 1991People of the Philippines vs. Manuel Badeo G.R. No. 71145November 21, 1991People of the Philippines vs. Arsenio M. Caponpon G.R. No. 66479November 21, 1991Juanito Gonzales, et al. vs. Intermediate Appellate Court, et al. G.R. No. 65021November 21, 1991Benguet Corporation vs. Oscar L. Leviste G.R. No. 60388November 21, 1991People of the Philippines vs. Bertito Bacus G.R. No. 54135November 21, 1991People of the Philippines vs. Policarpio Rafanan, Jr. G.R. No. 53476November 21, 1991G & P Company vs. Court of Appeals G.R. No. 49576November 21, 1991Josefina B. Cenas vs. Antonio P. Santos G.R. No. 45037November 21, 1991People of the Philippines vs. Floreliana Castro-Bartolome G.R. No. 39519November 21, 1991People of the Philippines vs. Daniel Pinto G.R. No. 39120November 21, 1991Apolonio Madrona, Sr. vs. Avelino S. Rosal G.R. No. 89914November 20, 1991Jose F.S. Bengzon Jr., et. al. vs. Senate Blue Ribbon Committee G.R. No. 97793November 19, 1991Stronghold Insurance Comp. vs. Court of Appeals G.R. No. 96602November 19, 1991Eduardo Arroyo, Jr. vs. Court of Appeals G.R. No. 91729November 19, 1991Mercedes Aniceta Garcia vs. Dominador G. Mendoza G.R. No. 85771November 19, 1991People of the Philippines vs. Bayani P. De Los Reyes G.R. No. 79496November 19, 1991Solid Engineering & Machine Works vs. National Labor Relations Commission G.R. No. 101844November 18, 1991People of the Philippines vs. Benedicto M. Cruz G.R. No. 95850November 18, 1991People of the Philippines vs. Renee N. Parojinog G.R. No. 64129-31November 18, 1991Fermina Ramos vs. Court of Appeals G.R. No. 57256November 18, 1991Rodolfo B. Inaldo vs. Hon. Cecilio F. Balagot G.R. No. 37404November 18, 1991Eduardo Cojuangco, Jr. vs. Court of Appeals G.R. No. 27923November 18, 1991Marcela N. Gonzales vs. Gumersindo Arcilla, et al. G.R. No. 94716November 15, 1991Association of Court of Appeals Employees vs. Pura Ferrer-Calleja, et al. G.R. No. 75420November 15, 1991Kabushi Kaisha Isetan vs. Intermediate Appellate Court, et al. G.R. No. 93847-48November 14, 1991People of the Philippines vs. Alberto A. Torrevillas G.R. No. 73992November 14, 1991Ernesto Mabaylan vs. National Labor Relations Commission, et al. G.R. No. 62359November 14, 1991People of the Philippines vs. Rodolfo Bragaes G.R. No. 58879November 14, 1991Expedita Librea vs. Employees Compensation Commission G.R. No. 60887November 13, 1991Perla Compania De Seguros, Inc. vs. Jose R. Ramolete G.R. No. 101041November 13, 1991Adriano R. Villamor vs. Bernardo Ll. Salas G.R. No. 96094-95November 13, 1991People of the Philippines vs. Jessie Mayoral G.R. No. 92541November 13, 1991Carmen G. Aquino-Sarmiento vs. Manuel L. Morato G.R. No. 86738November 13, 1991Nestle Philippines Inc. vs. Court of Appeals G.R. No. 72275November 13, 1991Pacific Banking Corporation vs. Intermediate Appellate Court G.R. No. 58281November 13, 1991Dionisio Gomez vs. Marcelo Gealone G.R. No. 50433November 13, 1991People of the Philippines vs. Cipriano Barba Y Doria G.R. No. 55346November 13, 1991People of the Philippines vs. Jesus Saldivia G.R. No. 87590November 12, 1991Purificacion R. Quizon vs. Employees' Compensation Commission G.R. No. 52740November 12, 1991Eusebio Abrin vs. Vicente R. Campos G.R. No. 45107November 11, 1991Benedicto Ramos vs. Elviro L. Peralta, et al. G.R. No. 93252November 8, 1991Rodolfo T. Ganzon vs. Court of Appeals G.R. No. 86784November 8, 1991People of the Philippines vs. Eduardo Cavite G.R. No. 78853November 8, 1991People of the Philippines vs. Roel Punzalan G.R. No. 75028November 8, 1991People of the Philippines vs. Pioquinto C. De Joya G.R. No. 75968November 7, 1991Antonio Benolirao vs. Court of Appeals A.M. RTJ-90-446November 7, 1991Court Administrator vs. Jose T. Bartolome G.R. No. 90667November 5, 1991Republic of the Philippines vs. Sandiganbayan G.R. No. 32982November 5, 1991Conrado A. Zaragosa vs. Workmen's Compensation Commission G.R. No. 94787November 19, 1991People of the Philippines vs. Ricardo Urquia, Jr. The Lawphil Project - Arellano Law Foundation, Inc. Davao Light and Power Company, Inc. vs. Court of AppealsCity of Manila vs. Court of AppealsAmbrocio Muyco vs. Court of AppealsPeople of the Philippines vs. Ramon R. LaoJose Baritua vs. Sec. of LaborThe People of the Philippines vs. Genaro LardizabalHydro Resources Contractors Corporation vs. Court of AppealsLino Alabanzas vs. Intermediate Appellate CourtRamon C. Ong vs. Court of AppealsPeople of the Philippines vs. Melencio MendozaPeople of the Philippines vs. Edgardo C. AtilanoSylvia H. Bedia vs. Emily A. WhitePeople of the Philippines vs. Ramon CarsonUniversity of the East vs. Sec. of Labor, et al.Aurora T. Aquino vs. Court of Appeals, et al.People of the Philippines vs. Eduardo TiadRepublic of the Philippines vs. SandiganbayanEduardo N. Aswat vs. Alejandro GalidoPeople of the Philippines vs. Rodolfo R. Nicolas, et al.Commissioner of Internal Revenue vs. Court of AppealsRepublic of the Philippines vs. Court of AppealsBacolod-Murcia Milling Company vs. National Labor Relations CommissionNarciso Kho vs. Manuel CamachoMargarito Almendra vs. Intermediate Appellate CourtPeople of the Philippines vs. Dennis SongPeople of the Philippines vs. Manuel BadeoPeople of the Philippines vs. Arsenio M. CaponponJuanito Gonzales, et al. vs. Intermediate Appellate Court, et al.Benguet Corporation vs. Oscar L. LevistePeople of the Philippines vs. Bertito BacusPeople of the Philippines vs. Policarpio Rafanan, Jr.G & P Company vs. Court of AppealsJosefina B. Cenas vs. Antonio P. SantosPeople of the Philippines vs. Floreliana Castro-BartolomePeople of the Philippines vs. Daniel PintoApolonio Madrona, Sr. vs. Avelino S. RosalJose F.S. Bengzon Jr., et. al. vs. Senate Blue Ribbon CommitteeStronghold Insurance Comp. vs. Court of AppealsEduardo Arroyo, Jr. vs. Court of AppealsMercedes Aniceta Garcia vs. Dominador G. MendozaPeople of the Philippines vs. Bayani P. De Los ReyesSolid Engineering & Machine Works vs. National Labor Relations CommissionPeople of the Philippines vs. Benedicto M. CruzPeople of the Philippines vs. Renee N. ParojinogFermina Ramos vs. Court of AppealsRodolfo B. Inaldo vs. Hon. Cecilio F. BalagotEduardo Cojuangco, Jr. vs. Court of AppealsMarcela N. Gonzales vs. Gumersindo Arcilla, et al.Association of Court of Appeals Employees vs. Pura Ferrer-Calleja, et al.Kabushi Kaisha Isetan vs. Intermediate Appellate Court, et al.People of the Philippines vs. Alberto A. TorrevillasErnesto Mabaylan vs. National Labor Relations Commission, et al.People of the Philippines vs. Rodolfo BragaesExpedita Librea vs. Employees Compensation CommissionPerla Compania De Seguros, Inc. vs. Jose R. RamoleteAdriano R. Villamor vs. Bernardo Ll. SalasPeople of the Philippines vs. Jessie MayoralCarmen G. Aquino-Sarmiento vs. Manuel L. MoratoNestle Philippines Inc. vs. Court of AppealsPacific Banking Corporation vs. Intermediate Appellate CourtDionisio Gomez vs. Marcelo GealonePeople of the Philippines vs. Cipriano Barba Y DoriaPeople of the Philippines vs. Jesus SaldiviaPurificacion R. Quizon vs. Employees' Compensation CommissionEusebio Abrin vs. Vicente R. CamposBenedicto Ramos vs. Elviro L. Peralta, et al.Rodolfo T. Ganzon vs. Court of AppealsPeople of the Philippines vs. Eduardo CavitePeople of the Philippines vs. Roel PunzalanPeople of the Philippines vs. Pioquinto C. De JoyaAntonio Benolirao vs. Court of AppealsCourt Administrator vs. Jose T. BartolomeRepublic of the Philippines vs. SandiganbayanConrado A. Zaragosa vs. Workmen's Compensation CommissionPeople of the Philippines vs. Ricardo Urquia, Jr.The Lawphil Project - Arellano Law Foundation, Inc.

Manila

EN BANC

G.R. No. 93262. November 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.

D E C I S I O N

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, 1990.1That decision nullified and set aside the writ of preliminary attachment issued by the Regional Trial Court of Davao City2in Civil Case No. 19513-89 on 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.

This Order of September 19, 1989 was successfully challenged by Queensland and Adarna in a special civil action ofcertiorariinstituted 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:

" x x the Orders dated May 3, 1989 granting the issuance of a writ of preliminary attachment, dated September 19, 1989 denying the motion to discharge attachment; dated November 7, 1989 denying 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 -

" x x While it is true that a prayer for the issuance of a writ of preliminary attachment may be included in the complaint, as is usually done, it is likewise true that the Court does not acquire jurisdiction over the person of the defendant until he is duly 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. x x ."

It went on to say, citingSievert v. Court of Appeals,3that "in a proceeding in attachment," the critical time which must be identified is x x when the trial court acquires authority under law to act coercively against the defendant or his property x x; " and that "that critical time is the time of the vesting of jurisdiction in the court over the person of the defendant in the main case."

Reversal of this Decision of the Court of Appeals of May 4, 1990 is what Davao Light seeks in the present appellate proceedings.

The question is whether or not a writ of preliminary attachment may issueex parteagainst 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 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 dependent 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 theresor object thereof.

An action or proceeding is commenced by the filing of the complaint or other initiatory pleading.4By that act, the jurisdiction of the court over the subject matter or nature of the action or proceeding is invoked or called into activity;5and it is thus that the court acquires jurisdiction over said subject matter or nature of the action.6And it is by that self-same act of the plaintiff (or 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.7On the other hand, jurisdiction over the person of the defendant is obtained, as above stated, by the service of summons or other coercive process upon him or by his voluntary submission to the authority of the court.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 on the defendant. During this period, different acts may be done by the plaintiff or by the Court which are of unquestionable validity and propriety. Among these, for example, are the appointment of a guardianad litem,9the grant of authority to the plaintiff to prosecute the suit as a pauper litigant,10the amendment of the complaint by the plaintiff as a matter of right without leave of court,11authorization by the Court of service of summons by publication,12the dismissal of the action by the plaintiff on mere notice.13

This, too, is true with regard to the provisional remedies of preliminary attachment, preliminary injunction, receivership or replevin.14They may be validly and properly applied for and granted even before the defendant is summoned or is heard from.

A preliminary attachment may be defined, paraphrasing the Rules of Court, as the provisional remedy in virtue of which a plaintiff or other proper party may, at the commencement of the action or at any time thereafter, have the property of the adverse party taken into the custody of the court as security for the satisfaction of any judgment that may be recovered.15It is a remedy which is purely statutory in respect of which the law requires a strict construction of the provisions granting it.16Withal no principle, statutory or jurisprudential, prohibits its issuance by any court before acquisition of jurisdiction over the person of the defendant.

Rule 57 in fact speaks of the grant of the remedy "at the commencement of the action or at any time thereafter."17The phrase, "at the commencement of the action," obviously refers to the date of the filing of the complaint -- which, as above pointed out, is the date that marks "the commencement of the action;"18and 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.ℒαwρhi৷And this indeed, has been the immemorial practice sanctioned by the courts: for the plaintiff or other proper party to incorporate the application for attachment in the complaint or other appropriate pleading (counterclaim, cross-claim, third-party claim) and for the Trial Court to issue the writex parteat the commencement of the action if it finds the application otherwise sufficient in form and substance.

InToledo v. Burgos,19this Court ruled that a hearing on a motion or application for preliminary attachment is not generally necessary unless otherwise directed by the Trial Court in its discretion.20And inFilinvest Credit Corporation v. Relova,21the Court declared that "(n)othing in the Rules of Court makes notice and hearing indispensable and mandatory requisites for the issuance of a writ of attachment." The only 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."22If the court be so satisfied, the "order of attachment shall be granted,"23and the writ shall issue upon the applicant's posting of "a bond executed to 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."24

InMindanao Savings & Loan Association, Inc. v. Court of Appeals,decided on April 18, 1989,25this Court had occasion to emphasize the postulate that no hearing is required on an application for preliminary attachment, with notice to the defendant, for the reason that this "would defeat the objective of the remedy (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,26such a procedure would 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 inMindanao Savings & Loans Asso. Inc. v. C.A., supra.

That separate opinion stressed that there are two (2) ways of discharging an attachment:first,by the posting of a counterbond; and second, by a showing of its improper or irregular issuance.

1.0. The submission of a counterbond is an efficacious mode of lifting an attachment already enforced against property, or even ofpreventing its enforcement altogether.

1.1. When property has already been seized under attachment, the attachment may be discharged upon counterbond in accordance with Section 12 of Rule 57.

"SEC. 12.Discharge of attachment upon giving counterbond.-- At any time after an order of attachment has been granted, the party whose property has been attached or the person appearing in his behalf, may, upon reasonable notice to the applicant, apply to the judge who granted the order, or to the judge of the court in which the action is pending, for an order discharging the attachment wholly or in part on the security given x x in an amount equal to the value of the property attached as determined by the judge to secure the payment of any judgment that the attaching creditor may recover in the action.x x

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

'SEC. 5.Manner of attaching property.-- The officer executing the order shall without delay attach, to await judgment and execution in the action, all the properties of the party against whom the order is issued in the province, not exempt from execution, or so much thereof as may be sufficient to satisfy the 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 evenbeforeany property has been levied on. Indeed, it may be availed ofafter 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 eitherBEFORE or AFTERthe 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 inCalderon 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, instread of the other. Moreover, the filing of a counterbond is a speedier way of discharging the attachment writ maliciously sought out by the attaching creditor instead of the other way, which, in most instances x x would require presentation of evidence in a fullblown trial on the merits, and cannot easily be settled in a pending incident of the case."27

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

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

x x (W)hen the preliminary attachment is issued upon a ground which is at the same time the 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 in contracting the debt or incurring the obligation upon which the action is brought (Sec. 1 [d], Rule 57), the defendant is not allowed to file a motion to dissolve the attrachment 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 plaintiff's attachment bond:

" x x . The dissolution of the preliminary attachment upon security given, or a showing of its irregular or improper issuance, does not of course operate to discharge the sureties on 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 withdrawn."

With respect to the other provisional remedies,i.e.,preliminary injunction (Rule 58), receivership (Rule 59), replevin or delivery of personal property (Rule 60), the rule is the same: they may also issueex 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 the defendant, as above indicated -- issuance of summons, order of attachment and writ of attachment (and/or appointment of guardianad 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 it matter of right without leave of court30-- and however valid and proper they might otherwise be, these do not and cannot bind and affect the defendant until and unless jurisdiction over his person is eventually obtained by the court, either by service on him of summons or other coercive process or his voluntary submission to the 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 explicitly required by Section 5 of Rule 57, but also the summons addressed to said defendant as well as a copy of the complaint and order for appointment of guardianad litem,if any, as also explicitly directed by Section 3, Rule 14 of the Rules of Court. Service of all such documents is indispensable not only for the acquisition of jurisdiction over the person of the defendant, but also upon considerations of fairness, to apprise the defendant of the complaint against him, of the issuance of a writ of preliminary attachment and the grounds therefor and thus accord him the opportunity to prevent attachment of his property by the posting of a counterbond in an amount equal to the plaintiffs claim in the complaint pursuant to Section 5 (or Section 12), Rule 57, or dissolving it by causing dismissal of the complaint itself on any of the grounds set forth in Rule 16, or demonstrating the insufficiency of the 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 Courtex partewere 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.,32In contrast to 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 issueex parteprovided 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 guardianad litem,if any), the application for attachment (if not incorporated in but submitted separately from the complaint), the order of attachment, and the plaintiffs attachment bond.

WHEREFORE,the petition isGRANTED; the challenged decision of the Court of Appeals is herebyREVERSED,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 herebyREINSTATED. Costs against private respondents.

SO ORDERED.

Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Bidin, Grino-Aquino, Medialdea, Regalado, and Romero, JJ., concur.

Fernan, C.J., on leave.

Davide, Jr., J., no part.

Footnotes