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Rule 39

HORACIO LUNA and LIBERTY HIZON-LUNA, petitioners, vs.


INTERMEDIATE APPELLATE COURT, HON. ROQUE A. TAMAYO, as
Presiding Judge of Regional Trial Court, NCJR, Branch CXXXII,
Makati, Metro Manila, MARIA LOURDES SANTOS, and SIXTO
SALUMBIDES, respondents.
FACTS:

The records of the case show that the herein private


respondent Maria Lourdes Santos is an illegitimate child of the
petitioner Horacio Luna who is married to his co-petitioner
Liberty Hizon-Luna.

Maria Lourdes Santos is married to her correspondent Sixto


Salumbides, and are the parents of Shirley Santos Salumbides,
also known as Shirley Luna Salumbides, who is the subject of
this child custody case.

It appears that 2 or 4 months after the birth of Shirley


Salumbides on April 7, 1975, her parents gave her to the
petitioners, a childless couple with considerable means.

The couple doted upon Shirley who called them "Mama" and
"Papa". She calls her natural parents "Mommy" and "Daddy."

When Shirley reached the age of four (4) years in 1979, she
was enrolled at the Maryknoll College in Quezon City.

A few months before September, 1980, her "Mama" and "Papa"


decided to take Shirley abroad and show her Disneyland and
other places of interest in America.

Shirley looked forward to this trip and was excited about it.
However, when the petitioners asked for the respondents'
written consent to the child's application for a U.S. visa, the
respondents refused to give it, to the petitioners' surprise and
chagrin.

As a result, the petitioners had to leave without Shirley whom


they left with the private respondents, upon the latter's
request. The petitioners, however, left instructions with their
chauffeur to take and fetch Shirley from Maryknoll College
every school day.

When the petitioners returned on October 29, 1980, they


learned that the respondents had transferred Shirley to the St.
Scholastica College.

The private respondents also refused to return Shirley to them.


Neither did the said respondents allow Shirley to visit the
petitioners.

In view thereof, the petitioners filed a petition for habeas


corpus (Spec. Proc. No. 9417) with the Court of First

Instance of Rizal, Branch XV, against the private


respondents to produce the person of Shirley and deliver her
to their care and custody
On March 9, 1981, a decision was rendered declaring the
petitioners entitled to the child's custody and forthwith
granted the writ prayed for.
Respondents appealed to CA
CA: The appealed decision was reversed and set aside and
another entered, ordering the petitioners, among other things,
to turn over Shirley to the private respondents.
The herein petitioners filed a motion for the reconsideration of
the decision but their motion was denied.
Consequently, the petitioners filed a petition for review of
the decision of the appellate court. The case was docketed
herein as G.R. No. 60860 and on November 10, 1982, this
Court, in a minute resolution, denied the petition for
lack of merit.
Upon finality of the judgment, the case was remanded
to the court of origin and assigned to Regional Trial
Court, NCJR, Branch CXXXII, Makati, Metro Manila, presided
over by respondent Judge Roque A. Tamayo who, thereafter,
issued an order directing the issuance of a writ of
execution to satisfy and enforce the resolution of the
Supreme Court which affirmed the decision of the Court
of Appeals.
Petitioners opposed the execution of the judgment by
filing an MR of the order and to set aside the writ of execution
on the ground of supervening events and circumstances1.
By reason thereof, the respondent judge called a
conference among the parties and their counsels, and
conducted hearings on the petitioners' motion for
reconsideration and to set aside the writ of execution.
Shirley made manifest during the hearing that she
would kill herself or run away from home if she should
ever be separated from her Mama and Papa, the
petitioners herein, and forced to stay with the respondents.
But, the respondent judge denied the petitioners'
motion to set aside the writ of execution.

1 more particularly, the subsequent emotional, psychological and physiological condition of


the child Shirley which make the enforcement of the judgment sought to be executed
unduly prejudicial, unjust and unfair, and cause irreparable damage to the welfare and
interests of the child

Rule 39

The petitioners filed a motion for the reconsideration of


the order and when it was denied, they filed a petition
for certiorari and prohibition with preliminary injunction
and restraining order with the respondent Intermediate
Appellate Court, to stop altogether the execution of the
decision of the Court of Appeals, however after hearing the
case, said petition was dismissed.
Hence, the present recourse. LibLex

ISSUE:
WON procedural rules, more particularly the duty of lower
courts to enforce a final decision of appellate courts in child custody
cases, should prevail over and above the desire and preference of the
child

HELD: No.

It is a well-known doctrine that when a judgment of a higher


court is returned to the lower court, the only function of the
latter court is the ministerial one of issuing the order of
execution.
The lower court cannot vary the mandate of the superior court,
or examine it, for any other purpose than execution; nor review
it upon any matter decided on appeal or error apparent; nor
intermeddle with it further than to settle so much as has been
demanded.
However, it is also equally well-known that a stay of
execution of a final judgment may be authorized
whenever it is necessary to accomplish the ends of
justice as when there had been a change in the
situation of the parties which makes such execution
inequitable, or when it appears that the controversy
had never been submitted to the judgment of the court;
or when it appears that the writ of execution has been
improvidently issued; or that it is defective in substance; or is
issued against the wrong party; or that the judgment debt has
been paid or otherwise satisfied; or when the writ has been
issued without authority.
The manifestation of the child Shirley that she would
kill herself or run away from home if she should be
taken away from the herein petitioners and forced to
live with the private respondents, made during the

hearings is a circumstance that would make the


execution of the judgment rendered in Spec. Proc. No.
9417 of the Court of First Instance of Rizal inequitable,
unfair and unjust, if not illegal.
Article 363 of the Civil Code provides that in all questions
relating to the care, custody, education and property of the
children, the latter's welfare is paramount.
This means that the best interest of the minor can
override procedural rules and even the rights of parents
to the custody of their children.
Since, in this case, the very life and existence of the
minor is at stake and the child is in an age when she
can exercise an intelligent choice, the courts can do no
less than respect, enforce and give meaning and
substance to that choice and uphold her right to live in an
atmosphere conducive to her physical, moral and intellectual
development. 6
The threat may be proven empty, but Shirley has a right to a
wholesome family life that will provide her with love, care and
understanding, guidance and counselling, and moral and
material security.

Rule 39
the compromise agreement. On the same date, Judge Rodas issued an
order, to wit:
As prayed for in the motion of the attorneys for the plaintiff in
these two cases, the court thereby orders that a statement of
their lien be entered upon the record of said cases thereby
subjecting any judgment or decree in favor of their client to the
payment of said lien, consisting in one-half of whatever amount
or property she may obtain from the defendants or any of them
by reason of the complaint filed in the above-entitled case.

Pursuant to the above order, Mendoza surrendered to the Register of


Deeds of Nueva Ecija the Torrens titles covering the lands adjudicated
to her, for annotation and registration of aforesaid attorney's lien.

LORENZO TAADA, ROSARIO M. DELGADO and CONCEPCION DELGADO,


substituted heirs of the deceased plaintiff Francisco A. Delgado, petitioners
vs.
COURT OF APPEALS and JOSE H. TECSON, respondents.

Then, the parties attempted to make a partition of the properties but due
to varied difficulties encountered in physically segregating the share
pertaining to the law firm, the latter offered to sell its interest to
Mendoza.

Ponente: Escolin,J:
Nature: Petition for Review of CAs decision which reduced the attorney's fees
adjudicated by the CFI in favor of petitioners

Mendoza, though willing to buy, did not have sufficient funds at the time.
Hence, pending actual division of the properties involved, the parties
agreed that Mendoza would manage and administer the same with the
obligation of giving to petitioners, after proper accounting, their one-half
share in the income at the end of every crop year.

In accordance with said agreement, Mendoza, from 1941 to 1958,


delivered to the law firm its share in the proceeds of the disputed lands.

Starting 1959, however, Mendoza stopped giving to the law firm its
share in the produce. Petitioners then filed a complaint against Narcisa
Mendoza 4 in the Court of First Instance of Nueva Ecija for partition of
the properties in question, with accounting of all the fruits and/or
income thereof, and for delivery of their share, plus interests.

In her answer, Mendoza alleged that 1) while she had agreed to pay a
contingent fee equivalent to one-half of whatever amounts or properties
she might recover in her cases, said litigations were in fact terminated
through a compromise agreement; 1) that petitioners did not utilize their
legal knowledge and professional skill to win these actions

G.R. No. L-40007 October 23, 1985

FACTS:

Petitioner Taada and the late Francisco A. Delgado were former


partners in the law firm "Delgado and Taada", while petitioners
Modesto T. Flores and Santiago Macapagal, together with Alberto Dizon
and Gregorio Fernandez, Jr., now both deceased, were assistant
attorneys in said law office.

Sometime in 1940, Narcisa Mendoza (now deceased) retained the


services of the law firm to represent her in 2 Civil Cases pending before
CFI Nueva Ecija. She agreed to pay contingent fee equivalent to onehalf of whatever amounts and/or properties she might recover after the
termination of the aforesaid suits.
Apparently, the parties to said cases eentered into a compromise
agreement, to which CFI used as a basis for its decision declaring
Narcisa Mendoza the owner of [9] parcels of land assigned to her under

Rule 39
CFI

In favor of petitioners declaring the plaintiffs to be the absolute owner of one-half and the partition of the disputed properties and for defednants
to pay attorneys fees;
modified the above decision by reducing the awards that (1) plaintiffs-appellees are declared to be the absolute owners of () of the parcels of
land described in the dispositive portion of said appealed judgment; (2) defendant-appellant is hereby ordered to pay to plaintiffs-appellees the
amount of P550.00 a year, as their share in the harvest of said properties, covering the year 1959 until their one-fourth interest in each of said
parcels of land shall have been actually delivered to them; and (3) the award of P2,000.00 as attorney's fees is hereby deleted. The appealed
judgment is hereby affirmed in all other respects. No pronouncement as to costs.
Petitioner moved for its Motion for Reconsiderartion DENIED Hence thgis petiion.

CA

ISSUE: WON the compliance of Mendoza to the order of CFI constitutes as


ratification on the judgment against he
HELD:YES. It is significant to note that the CFI in its order had given its approval
to the petitioners' lien when it ruled to subject "any judgment or decree in favor of
their client to the payment of said lien consisting of one-half of whatever amount
or property she may obtain from defendants or any of them by reason of the
complaint filed in the case. Mendoza did not question the reasonableness of said
order before the court, much less did she interpose an appeal therefrom. As said
order had become final and executory, it could no longer be disturbed, not even
by the very court which rendered it. Defendant is now estopped from either
contesting the reasonableness of the said order of disputing the claim of plaintiffs
over one-half of the parcel of plaintiffs in question. After recognizing by words
and deeds the participation and interest of plaintiffs over these lands, defendants
cannot now be heard to deny it or assert a contrary position with respect thereto (
Article, 1431 Civil Code; Sec. 3, Rule 131, Rules of Court; Magdalena Estate,
Louis Myrich, 71 Phil. 344, 19 Am Jur 634). 9

It further appears that immediately after the promulgation of the Rodas


order, Narcisa Mendoza surrendered to the Register of Deeds the
certificates of title covering the lands involved for annotation of the
petitioners' lien; and that, pending the physical division of the lands in
question, she delivered to the petitioners their one-half share of the
yearly produce from 1941 to 1958. Indeed, such actuation on her part
was tantamount to virtual acquiesence in the order of Judge Rodas
and she cannot now be allowed to repudiate her representations or
assume an inconsistent posture. It is a rule constantly adhered to
"that a party who voluntarily executes, either partially or in toto, a
judgment rendered for or against him, or who voluntarily
acquiesces in or ratifies, either partially or in toto, the execution of
that judgment is not permitted to appeal from it."

Rule 39

Title:
G.R. No. 77353
July 30, 1987
ASSOCIATED BANK, petitioner, vs. HON. ARSENIO M.
GONONG, in his capacity as Presiding Judge of the Regional Trial
Court of Manila, Branch VIII; ROLE, INC. and ROMEO R.
ECHAUZ, respondents.
Facts:

The petition was filed on February 17, 1987. Private


respondents Role, Inc. and Romeo R. Echauz filed
their Comments on March 24 and March 27, 1987
respectively. The petitioner filed its Reply on June
16, 1987. We treat the Comments as the
respondents' Answers and decide the petition on its
merits.
This case has its origins in a complaint for the
recovery of a sum of money filed by petitioner
Associated Bank against respondent ROLE,
Incorporated and Romeo R. Echauz before the then
Court of First Instance of Manila, Branch 37.
On November 3, 1986, the trial court rendered its
decision in favor of the petitioner. On November 6,
1986, respondent ROLE filed its notice of appeal.
On November 24, 1986, respondent Echauz
followed suit.
Meanwhile, on November 19, 1986, the petitioner
filed a motion for execution pending appeal.

On December 16, 1986, the respondent court


issued the questioned order denying the
petitioner's motion for execution on the ground that
the notices of appeal seasonably filed by private
respondents had already been given due course
when he issued his previous orders. According to
the court, the filing of the respondents' notices of
appeal and its approval of those notices deprived
the trial court of jurisdiction to entertain the motion
for execution pending appeal.

Issue:
WON trial court loses its jurisdiction to decide on a motion
for execution of judgment pending appeal when a notice of appeal
had already been perfected by respondent?
Held:
No, as long as the 15 day reglamentary period had not yet
elapsed the trial court still has jurisdiction.
Ratio:
As long as any of the parties may still file his, her, or its
appeal, the court does not lose jurisdiction over the case.
The plaintiff or plaintiffs may not deprive the defendants or
co-plaintiffs and neither may the defendant or defendants deprive
the plaintiff or co-defendants of the right to file a motion for
reconsideration or to move for a new trial or an execution pending
appeal by immediately filing a notice of appeal. The filing of an
appeal by a losing party does not automatically divest the party
favored by a decision of the right to move for a more favorable
decision or to ask for execution pending appeal. It is only after all
the parties' respective periods to appeal have lapsed that the court
loses its jurisdiction over the case. As pointed out in Universal Far
East Corporation v. Court of Appeals (131 SCRA 642) the period
when a court considers and acts upon a motion for execution may
take some time. As a matter of fact, the resolution of a motion may

Rule 39
take place long after the expiration of the reglementary fifteen-day
period for appeal.
As early as 1934, this Court in People v. Ursua (60 Phil. 252)
stressed this mode of determining when an appeal is perfected.An
appeal by the defendant in a criminal case does not result in the
court's losing its jurisdiction to entertain a motion for
reconsideration filed by the offended party, insofar as civil liability
is concerned, within the 15-day period. Thus we held in Ursua:
... If the accused has the right within fifteen days to appeal from
the judgment of conviction, the offended party should have the
right within the same period to appeal from so much of the
judgment as is prejudicial to him, and his appeal should not be
made dependent on that of the accused. If upon appeal by the
accused the court altogether loses its jurisdiction over the cause,
the offended party would be deprived of his right to appeal,
although fifteen days have not yet elapsed from the date of the
judgment, if the accused files his appeal before the expiration of
said period. Therefore, if the court, independently of the appeal of
the accused, has jurisdiction, within fifteen days from the date of
the judgment, to allow the appeal of the offended party, it also has
jurisdiction to pass upon the motion for reconsideration filed by the
private prosecution in connection with the civil liability of the
accused. (at pp. 254-255).
The above ruling was reiterated in Simsim v. Belmonte (34 SCRA
536) where we stated:
Timoteo Simsim balked at the order to amend the record on appeal.
contending that it was beyond the power of the Court to issue once
his appeal had been perfected by the approval of the record. ...

... Furthermore, such a view would place it within the power of one
of the parties, by the simple expedient of immediately perfecting
his appeal, to deprive the other party of the right to ask for a
reconsideration of the decision, let alone to have the court approve
his own appeal if such a motion is denied. These consequences
find no justification in the Rules. (at pp. 538 & 539).

Rule 39
o

G.R. No. 89431

April 25, 1990

ERIBERTO G. VALENCIA, petitioner, vs. HON. COURT OF APPEALS, HON.


CARLOS C. OFILADA, Presiding Judge, Regional Trial Court, Bulacan,
Branch XL, Third Judicial Region, Deputy Sheriff PABLO R. GLORIOSO,
MIGUEL BUNYE and RICARDO BAGTAS, respondents.
FACTS:

On July 6, 1984, petitioner filed before the Regional Trial Court at


Malolos, Bulacan, for the rescission of a lease contract over a 24
hectare fishpond in Paombong, Bulacan, with a prayer for a writ of
preliminary mandatory injunction against private respondents.

Private respondents filed an answer with a counterclaim for damages.

During the pendency of the case, as found by the trial court, the lease
contract expired and the defendants therein peacefully
surrendered the fishpond to therein plaintiff.

Consequently, the court a quo declared that the plaintiff's


prayer for rescission of contract had become moot and
academic and the only remaining issue for adjudication
was the matter of damages claimed by the defendants.

Petitioner claims that defendant Bagtas acknowledged in writing his


receipt of a copy of said decision on January 3, 1989.
o

On the other hand, petitioner received a copy of the decision


on January 10, 1989, and filed a notice of appeal on January
16, 1989.

On the same day, respondent judge issued an order that


said notice of appeal be "given due course" and
directing that the records of the case be forwarded to
the Court of Appeals.

On January 17, 1989, private respondents filed a motion for


execution pending appeal, alleging that:
a

Under Section 2 of Rule 39 of the Rules of Court, a writ of


execution may be issued to enforce a judgment before the
expiration of the period to appeal upon showing good
reasons. It has already been held that the filing of the bond by
the successful party is a good reason for ordering execution.

Pursuant to said Section 2 of Rule 39 and the jurisprudence on the


matter, defendant is now moving that a writ of execution be
issued pending appeal to enforce judgment of this
Honorable Court and for this purpose hereby offers to post a
bond in such amount that this Honorable Court may deem
adequate to answer for all damages that the plaintiff may suffer by
reason of the execution prayed for.

On March 6, 1989, respondent judge issued an order granting


the motion for execution pending appeal, the defendants
having filed a bond in the amount of P330,000.00 posted by
the Domestic Insurance Company of the Philippines.
o

On that score, the trial court awarded moral damages and


exemplary damages to each defendant and further ordered
plaintiff to pay attorney's fees, aside from the costs of suit.

It also granted a within which the plaintiff may "file a


counterbond to stay the implementation of the Writ of
Execution to be issued."

Petitioner's motion for reconsideration thereof was denied by the trial


court in its order on the ground that "an offer of a bond for

Rule 39
immediate execution of judgment is a good ground for
execution pending appeal" and "execution pending appeal may
be granted as long as movant files a good and sufficient
surety."

In the present case, the defendants had up to January 18,


1989 within which to appeal and the plaintiff had up to
January 25, 1989. The motion for execution was filed by
defendants on January 17, 1989, before the expiration of the
last day to appeal by any of the parties.

On April 10, 1989, a writ of execution pending appeal was issued


by the trial court.

Petitioner
then
filed
a
petition
for certiorari,
prohibition
and mandamus with the Court of Appeals but dismissed said petition
and refused to reconsider such dismissal.

The fact that plaintiff filed a notice of appeal on


January 16, 1989 did not, as already stated, result in
the perfection of the appeal.

Despite plaintiff's having filed his notice of appeal,


defendants, had they been so minded, could still have
availed of the right, up to their last day to appeal
which was January 18, 1989, to also file their notice of
appeal or to file a motion for new trial or to move for
execution as in fact they did, since plaintiff s appeal
had not yet been perfected.

That respondent judge gave "due course" to plaintiffs


notice of appeal, on the same date when it was filed on
January 16, 1989, is inconsequential.

Both under the former and present procedural governance on


appeals, a notice of appeal does not require the
approval of the trial court, and its act of giving "due
course" thereto, or seeming approval thereof, does not
affect the rule as to when an appeal is deemed
perfected.

Hence, the present petition.

ISSUE(S):
1

Whether or not the respondent judge, upon the perfection of the


appeal from the decision rendered in the present civil case, a copy
thereof having been received by respondents, lost jurisdiction over the
case and accordingly, no longer had any jurisdiction to entertain
respondents motion for execution pending appeal, let alone to issue a
writ of execution.
Whether or not mere filing of a bond does not suffice absent of (sic) a
showing of superior circumstances demanding urgency which will
outweigh the injury or damages should the losing party secure a
reversal of the judgment, and ruling that a trial court exceeds the limits
of its jurisdiction where it orders advance of (sic) execution of
consequential damages, exemplary damages and attorney's fees.
Whether or not respondent judgment (sic) should have implemented
his order giving due course to Valencia's appeal and directing the
records of the case forwarded to this Court.

HELD:

The Court is not persuaded by the first and third grounds invoked by
petitioner.
o

Under the present procedure, an appeal is perfected upon


the expiration of the last day to appeal by any party. It
is not perfected on the date the notice of appeal was
filed.

Petitioner's second ground, however, commends itself as a meritorious


submission. It is concordant with our present doctrinal pronouncements
and must be sustained.
o

Conformably with Section 2, Rule 39 of the Rules of Court, in


order that there may be a discretionary issuance of a
writ of execution pending appeal the following
requisites must be satisfied:
(a) There must be a motion by the prevailing party with notice
to the adverse party;
(b) There must be a good reason for issuing the writ of
execution; and
(c) The good reason must be stated in a special order.

Rule 39
o

In the case at bar, the ground relied upon by the trial court in
allowing the immediate execution, as stated in its order of
March 20, 1989, is the filing of a bond by private respondents.

The rule is now settled that the mere filing of a bond


by the successful party is not a good reason for
ordering execution pending appeal, as clarified in Roxas
vs. Court of Appeals, et al2.

The exercise of the power to grant or deny immediate or


advance execution is addressed to the sound discretion of the
court.

However, the existence of good reasons is principally


what confers such discretionary power.

Absent any such good reason, the special order of


execution must be struck down for having been issued
with grave abuse of discretion. The Court has had the
occasion
to
explain
the
importance
of
such
requirement for good reasons.

The courts look with disfavor upon any attempt to execute a


judgment which has not acquired a final character.

Section 2 of Rule 39 which authorizes the discretionary


execution of judgments, being an exception to the
general rule, must be restrictively construed.

It would not be a sound rule to allow indiscriminately the


execution of a money judgment, even if there is a sufficient
bond.

Anent the issue of the propriety of a special civil action for certiorari to
assail an order for execution pending appeal, the Court ruled that
although Section 1, Rule 65 of the Rules of Court provides that the
special civil action of certiorari may only be invoked when "there is no
appeal, nor any plain, speedy and adequate remedy in the (ordinary)
course of law," this rule is not without exception.
o

The availability of the ordinary course of appeal does


not constitute sufficient ground to prevent a party
from making use of the extraordinary remedy
of certiorari where appeal is not an adequate remedy
or equally beneficial, speedy and sufficient.

It is the inadequacy not the mere absence of all other


legal remedies and the danger of failure of justice without the
writ that usually determines the propriety of certiorari.

Certiorari lies against an order granting execution


pending appeal where the same is not founded upon
good reasons.

Also, the fact that the losing party had appealed from the
judgment does not bar the certiorari action filed in respondent
court as the appeal could not be an adequate remedy from
such premature execution.

That petitioner could have resorted to a supersedeas bond to


prevent execution pending appeal, as suggested by the two
lower courts, is not to be held against him.

The filing of such bond does not entitle him to the


suspension of execution as a matter of right.

It cannot, therefore, be categorically considered as a plain,


speedy and adequate remedy.

2 It is not intended obviously that execution pending appeal shall issue as a


matter of course. Good reasons, special, important, pressing reasons must exist
to justify it; otherwise, instead of an instrument of solicitude and justice, it may
well become a tool of oppression and inequity. But to consider the mere posting
of a bond a "good reason" would precisely make immediate execution of a
judgment pending appeal routinary, the rule rather than the exception.
Judgments would be executed immediately, as a matter of course, once
rendered, if all that the prevailing party needed to do was to post a bond to
answer for the damages that might result therefrom. This is a situation, to
repeat, neither contemplated nor intended by law.

Moreover, the awards for moral and exemplary


damages cannot be the subject of execution pending
appeal because the execution of any award for moral
and exemplary damages is dependent on the outcome
of the main case.

Rule 39
o

Hence, no rule requires a losing party so circumstances to


adopt such remedy in lieu or before availment of other
remedial options at hand.

Furthermore, a rational interpretation of Section 3, Rule


39 should be that the requirement for a supersedeas
bond
presupposes
that
the
case
presents
a
presumptively
valid
occasion
for
discretionary
execution.

Otherwise, even if no good reason exists to warrant


advance execution, the prevailing party could unjustly
compel the losing party to post a supersedeas bond
through the simple expedient of filing a motion for, and
the trial court improvidently granting, a writ of
execution pending appeal although the situation is
violative of Section 2, Rule 39.

This could not have been the intendment of the rule; hence
the Court gives its imprimatur to the propriety of petitioner's
action for certiorari in respondent court.

G.R. No. L-34589 June 29, 1988


ENGINEERING CONSTRUCTION INCORPORATED vs. NATIONAL POWER
CORPORATION (NPC) and COURT OF APPEALS
FACTS:

On August 29, 1968, petitioner Engineering Construction Incorporated


(ECI) filed a complaint for damages against respondent NAPOCOR
in the CFI of Manila alleging that it suffered damages to its

Rule 39
facilities and equipment due to the inundation of its campsite in
Norzagaray, Bulacan, as a direct result of the improper and careless
opening by respondent of the spillway gates of Angat Dam at the
height of typhoon "Welming" on November 4,1967.

- Granted NPCs petition and nullified the execution pending appeal rendered by
the TC. One justice dissented.

MERALCO sought from CA a reconsideration of the decision on the ground


that the decision was being used by NPC to compel MERALCO to return the
amount of P1,114,545.23 (inclusive of sheriff's fees) in two checks which it
had already entrusted to the deputy sheriff, who then indorsed and
delivered the same to ECI.

CA held the sheriff, MERALCO and ECI liable to restore to NPC the
amount due to NPC which MERALCO had earlier turned over to the
sheriff for payment to ECI.

Their two motions for reconsideration having been


denied, ECI and MERALCO filed separate petitions for review
before SC: Nos. L-34589 and 34656.

In this connection, SC limited their discussion to the correctness of the


extraordinary writ of execution pending appeal and the ordered
restitution of the garnished funds---two collateral matters which have
greatly exacerbated the existing dispute between the parties.

TRIAL COURT
- Found NAPOCOR guilty of gross negligence > Ordered defendant to pay
plaintiff damages.
1. Actual or compensatory damages = P675,785.31;
2. Consequential damages = P233,200.00; *
3. Exemplary damages = P50,000
4. Attorneys fees = P50,000

Respondent filed a notice of appeal from that decision but before it could
perfect its appeal, ECI moved for and was granted execution pending
appeal upon posting a covering bond of P200,000 which it later
increased to P1,109,000 to fully answer for whatever
damages NPC might incur by reason of the premature execution of the
lower court's decision.
In granting said motion for the exceptional writ over the strong opposition
of the NPC, the trial court adopted the grounds adduced by movant ECI:
that on appeal, the case would certainly drag on for many years, and the
actual loss and damages sustained by plaintiff, who because of such loss
have become heavily obligated and financially distressed, would remain
uncompensated and unsatisfied.

Deputy Sheriff Restituto R. Quemada who was assigned to enforce the writ
of execution, garnished in favor of ECI all amounts due and payable
to NPC which were then in possession of MERALCO and sufficient
to cover the judgment sum of P1,108,985.31.

Attempts to lift the order of execution having proved futile and the offer of
a supersedeas bond having been rejected by the lower court, NPC filed
with the Appellate Court a petition for certiorari.

ISSUE: WON the execution pending appeal granted by the trial court was
proper
HELD: YES. It was proper with respect to the award of actual and exemplary
damages only.

Execution pending appeal. On motion of the prevailing


party with notice to the adverse party the court may, in its
discretion, order execution to issue even before the expiration
of the time to appeal, upon good reasons to be stated in a
special order. If a record on appeal is filed thereafter, the
motion and the special order shall be included thereon.

COURT OF APPEALS

Section 2, Rule 39 of the Rules of Court provides:

While the rule gives the court the discretionary power to allow immediate
execution, the following requisites must be satisfied for its valid exercise:
(a) There must be a motion by the prevailing party with notice
to the adverse party;

Rule 39
(b) There must be a good reasons for issuing the execution;
and
(c) The good reasons must be stated in a special order.

In its assailed decision, CA, through Justice Salvador V. Esguerra, observed


that NPC, as defendant in the civil case for damages, was being ordered to
pay the amount of P1,108,985.31 pending appeal when practically 40%
thereof was made up of awards of damages based on the court's sole and
untrammeled discretion. Such amount might greatly be reduced by the
superior court, especially the items for consequential and exemplary
damages and attorney's fees which by themselves would amount to the
"staggering" sum of P433,220.00

CA noted the instances when on review, the amounts for attorney's fees
and exemplary and moral damages were drastically cut or eliminated
altogether in the absence of proof that the losing party acted with malice,
evident bad faith or in an oppressive manner.

In as much as the list submitted by ECI of the estimated losses and


damages to its tunnel project caused by the instant flooding was duly
supported by vouchers presented in evidence, and considering that NPC,
for its part, failed to submit proofs to refute or contradict such documentary
evidence, we are constrained to sustain the order of execution
pending appeal by the trial court but only as far as the award for
actual or compensatory damages is concerned. We are not
prepared to disagree with the lower court on this point since it was
not sufficiently shown that it abused or exceeded its authority.

With respect to the consequential and exemplary damages as well


as attorney's fees, however, we concur with the Appellate Court in
holding that the lower court had exceeded the limits of its
discretion. Execution should have been postponed until such time as the
merits of the case have been finally determined in the regular appeal.

The point that the Court wishes to emphasize is this: Courts look
with disfavor upon any attempt to execute a judgment which has
not acquired a final character. Section 2, Rule 39, authorizing the
premature execution of judgments, being an exception to the general rule,
must be restrictively construed. It would not be a sound rule to allow
indiscriminately the execution of a money judgment, even if there is a
sufficient bond. "The reasons allowing execution must constitute superior
circumstances demanding urgency which will outweigh the injury or
damages should the losing party secure a reversal of the judgment."

Rule 39
RATIO:

RULE 39 [G.R. No. 95667. May 8, 1991.]


JOSE C. BORJA, vs. THE COURT OF APPEALS and RURAL BANKERS
ASSOCIATION OF THE PHILIPPINES, INC.,
FACTS:

On October 11, 1979, the petitioner filed a complaint against the


private respondent for the sum of P78,325.00, representing unpaid
commissions, and damages. He was then 66 years old.

Judgment was rendered in his favor five years later when he was
already 71 years, and promulgated on November 28, 1986, after he
had turned 73.

On December 3, 1986, before the respondent's appeal was perfected,


the petitioner moved for execution of the judgment.

The motion was denied by the trial court on July 28, 1988, on the
ground that the grant thereof "would affect the issues involved in the
appeal."

On March 14, 1989, the petitioner filed with the trial court, the records
of the case not yet having been elevated to the appellate court, a
second motion for execution pending appeal. This was also denied on
the same ground.

On April 18, 1990, the petitioner filed a third motion for execution
pending appeal, this time with the CA. This was also denied.

The appellate court saw no justification for execution at that time,


observing that it had ordered the retaking by the trial court of the
testimony of one of the witnesses.

It was only on September 14, 1990, that the complete records of the
case were finally elevated to the CA, at which time the petitioner was
already 75.

The petitioner now seeks certiorari under Rule 65 of the Rules of Court
against the resolutions of the CA denying his motion for execution, and
reconsideration.
ISSUE: WON the petitioner's motion for execution pending appeal should have
been granted
HELD: YES

The general rule in Rule 39, Section 1, of the Rules of Court is that a
judgment can be executed only after it has become final and
executory, or "finally disposes of the action or proceeding. Such
execution shall issue as a matter of right upon the expiration of the
final appeal therefrom if the appeal has been duly perfected."
However, execution pending appeal is allowed under Section 2 of the
same Rule
The petitioner argues that the case has been dragging for more than
ten years since it was filed in 1979, with no early resolution of the
appeal in sight.
The elevation of the records alone from the trial court took all of six
years. The proceedings in the appellate court will entail further delay.
The petitioner has grown old with the case and is now 76 years of age.
He fears he may no longer be in this world when the case is finally
decided.
The private respondent points out that the petitioner is raising the
argument about his age only at this time, when he should have
invoked it earlier. Not having been seasonably raised, the issue cannot
now be considered on appeal.
We are not persuaded by this argument. He may not have considered
himself old in 1984, but now, at 76, he is feeling his age.
While we may not agree that a man of his years is practically
moribund, the Court can appreciate his apprehension that he will not
be long for this world and may not enjoy the fruit of the judgment
before he finally passes away. That is the reason why he has raised the
issue now.
The Court realizes the seriousness of the private respondent's
challenge to the appealed decision, which appears to have been
rendered by Judge Tomas P. Maddela, Jr. on June 13, 1984, but
promulgated only after two years, when he had already retired.
The important point is that if the appealed judgment is annulled, the
complaint of the petitioner will have to be tried anew and will probably
be appealed whatever its outcome.
It will take years again before it is finally decided. By that time, the
petitioner may be facing a different judgment from a Court higher than
any earthly tribunal.
The decision on his complaint, even if it be in his favor, will have
become meaningless as far as he himself is concerned.
The Court feels that this circumstance is a "good reason" to allow
execution of the challenged judgment pending appeal, consistently
with Rule 39, Section 2. Despite the misgivings of the private
respondent, we may presume the said judgment to be valid at this
time in the absence of evidence that it is a nullity.
The applicable rule is Rule 131, Section 5, of the Rules of Court under
which it is presumed that "official duty has been regularly performed"
and that "a court, or judge acting as such, whether in the Philippines or
elsewhere, was acting in the lawful exercise of his jurisdiction."

Rule 39

As for the supersedeas bond, we note that the petitioner is willing to


post it in the amount to be determined by the lower court. It is of
course settled that the filing of a supersedeas bond cannot by itself
alone entitle the appellee to execution pending appeal. In the case at
bar, however, we find that the bond provides added justification,
together with the advanced age of the petitioner, for the grant of the
motion under the exception to the general rule.

We agree that in a petition for certiorari under Rule 65 of the Rules of


Court, the impugned decision may be reversed only if it is clearly
shown to be tainted with grave abuse of discretion amounting to lack
or excess of jurisdiction.

This requirement has been established in the present case, in light of


Rule 39, Section 2, and the particular circumstance of the petitioner's
advanced age, which is the most formidable argument in his favor.

We reach this conclusion on the basis not only of the law but also of
equity, which supports the law. Aequitas non facit jus, sed juri
auxiliatur.

It should be added that even if filed under Rule 45 rather than Rule 65,
the petition would still prosper.

The record shows that the petitioner was notified of the denial of his
motion for reconsideration by the respondent court on October 11,
1990, and that on October 26, 1990, he moved for and was granted an
extension of thirty days from that date within which to file his petition.
This was actually filed on November 23, 1990. The docket fees were
also paid on time, on October 26, 1990. No less importantly, the
petition raises a question of law, to wit, the correct interpretation and
application of Rule 39, Section 2, of the Rules of Court.

It is therefore not correct to say, as the private respondent does, that


the petitioner is availing himself of certiorari under Rule 65 as a
substitute for a lost appeal.

We are convinced that the petitioner's motion for execution pending


appeal should have been granted. In sustaining its denial by the trial
court, the respondent court committed an error of judgment reversible
under Rule 45 or grave abuse of discretion that can be corrected under
Rule 65.
SYLLABUS
1.CIVIL PROCEDURE; JUDGMENT; EXECUTION; GENERALLY FOLLOWS WHEN
JUDGMENT BECOMES FINAL AND EXECUTORY. The general rule in Rule 39,
Section 1, of the Rules of Court is that a judgment can be executed only after it
has become final and executory, or "finally disposes of the action or proceeding.
Such execution shall issue as a matter of right upon the expiration of the final
appeal therefrom if the appeal has been duly perfected."
2.
ID.; ID.; EXECUTION PENDING APPEAL; ALLOWED UNDER SECTION 2,
RULE 39 OF THE RULES OF COURT. Execution pending appeal is allowed
under Section 2 of the same Rule as follows: Sec. 2. Execution pending appeal.
On motion of the prevailing party with notice to the adverse party, the court
may in its discretion, order execution to issue even before the expiration of the
time to appeal, upon good reasons to be stated in a special order. If a record on
appeal is filed thereafter the motion and the special order shall be included.

3.
ID.; ID.; ID.; ADVANCED AGE OF PARTY LITIGANT, "GOOD REASON" FOR
ALLOWING EXECUTION OF CHALLENGED JUDGMENT. The petitioner argues
that the case has been dragging for more than ten years since it was filed in
1979, with no early resolution of the appeal in sight. The elevation of the
records alone from the trial court took all of six years. The proceedings in the
appellate court will entail further delay. The petitioner has grown old with the
case and is now 76 years of age. He fears he may no longer be in this world
when the case is finally decided. The court feels that this circumstance is a
"good reason" to allow execution of the challenged judgment pending appeal,
consistently with Rule 39, Section 2.
4.
ID.; ID.; ID.; ID.; SUPERSEDEAS BOND, AN ADDED JUSTIFICATION. As
for the supersedeas bond, we note that the petitioner is willing to post it in the
amount to be determined by the lower court. It is of course settled that the
filing of a supersedeas bond cannot by itself alone entitle the appellee to
execution pending appeal. In the case at bar, however, we find that the bond
provides added justification, together with the advanced age of the petitioner,
for the grant of the motion under the exception to the general rule.
5.
ID.; ID.; ID.; DENIAL OF MOTION; A PROPER CASE FOR CERTIORARI.
In a petition for certiorari under Rule 65 of the Rules of Court, the impugned
decision may be reversed only if it is clearly shown to be tainted with grave
abuse of discretion amounting to lack or excess of jurisdiction. This requirement
has been established in the present case, in light of Rule 39, Section 2, and the
particular circumstance of the petitioner's advanced age, which is the most
formidable argument in his favor. We reach this conclusion on the basis not only
of the law but also of equity, which supports the law. Aequitas non facit jus, sed
juri auxiliatur.
6.
ID.; ID.; ID.; DENIAL OF MOTION BEING AN ERROR OF JUDGMENT,
REVERSIBLE UNDER RULE 45 OF THE RULES OF COURT. Even if filed under
Rule 45 rather than Rule 65, the petition would still prosper. No less importantly,
the petition raises a question of law, to wit, the correct interpretation and
application of Rule 39, Section 2, of the Rules of Court. It is therefore not correct
to say, as the private respondent does, that the petitioner is availing himself of
certiorari under Rule 65 as a substitute for a lost appeal. We are convinced that
the petitioner's motion for execution pending appeal should have been granted.
In sustaining its denial by the trial court, the respondent court committed an
error of judgment reversible under Rule 45 or grave abuse of discretion that can
be corrected under Rule 65.

Rule 39

RULE 39 SEC 2
G.R. No. L-27594. November 28, 1975.
THE DIRECTOR OF LANDS, THE DIRECTOR OF FORESTRY, and the
ARMED FORCES OF THE PHILIPPINES, petitioners, vs. HON. SALVADOR
C. REYES, as Judge of the Court of First Instance of Nueva Ecija, Branch
III, PARAAQUE INVESTMENT & DEVELOPMENT CORPORATION, ROMAN
C. TAMAYO, THE COMMISSIONER OF THE LAND REGISTRATION
COMMISSION and the REGISTER OF DEEDS OF NUEVA ECIJA,
respondents.
FACTS:

the applicant Alipio Alinsunurin sought the registration of title


under Act 496, as amended, of a vast tract of land, containing an
area of 16,800 hectares, more or less, situated at the municipality
of Laur, province of Nueva Ecija, admittedly inside the
boundary of the military reservation of Fort Magsaysay.
Alinsunurin is claiming ownership in fee simple by inheritance
from the late Maria Padilla,
the Director of Lands, Director of Forestry, and the Armed
Forces of the Philippines opposed the application, claiming that
the applicant was without sufficient title and was not in open,
exclusive, continuous and notorious possession and occupation of the
land in question for at least thirty (30) years immediately preceding
the filing of the application; that approximately 13,957 hectares of said
land consist of the military reservation of Fort Magsaysay established
under Proclamation No. 237
the applicant Alipio Alinsunurin filed a motion for substitution
of parties, requesting that the Paraaque Investment and
Development Corporation (PIDC) be considered as the
applicant in his place, it having acquired all his rights, interests,
ownership and dominion over the property subject matter of the
application.
The motion was granted by the lower court
It is beyond dispute that the land subject of the application is
included within the area reserved for military purposes under
Proclamation No. 237 of the President. The land is largely
uncultivated, mountainous and thickly forested with a heavy growth of
timber of commercial quantities. Except for a small area cultivated for
vegetation by homesteaders issued patents by the Director of Lands,
there were no occupants on the land.
It is claimed by the applicant that Melecio Padilla acquired the
land by virtue of a possessory information title issued during
the Spanish regime on March 5, 1895, and upon his death in
1900, he transmitted the ownership and possession thereof to
his daughter and sole heir, Maria Padilla.
Maria, in turn continued to cultivate the land thru tenants and utilized
portions for pasture, until her death sometime in 1944.
CFI

the lower court rendered decision holding that the


parcel of land applied for, described in the technical
description Plan II-6752, is adjudicated to and ordered to
be registered in favor of
Paraaque
Investment
and
Development
Corporation, subject to the rights of Ariosto Santos
2/3 portion of the property
2. Roman C. Tamayo - one-third (1/3) portion of the
said property.

Rule 39

the oppositors Director of Lands, Director of Forestry and the


Armed Forces of the Philippines filed a Notice of Appeal from
the said decision to the Supreme Court, copy of which notice was
furnished counsel for the applicant Paraaque Investment and
Development Corporation; however, no copy was furnished to
counsel for Roman C. Tamayo, to whom one-third (1/3) portion of
the land was adjudicated.
Within the extended period granted by the court, the oppositorsappellants filed the corresponding Record on Appeal, copy of
which was duly served upon appellees Paraaque Investment and
Development Corporation and Roman C. Tamayo.
The lower court required the Provincial Fiscal to file an
Amended Record on Appeal, so as to include therein certain orders
and pleadings, within ten (10) days from receipt of the order
The Amended Record on Appeal was duly filed and copies served upon
the appellees.
Pending the approval of the Record on Appeal, the applicant
Paraaque Investment and Development Corporation filed a
motion for the issuance of a decree of registration pending
appeal.
Likewise, Roman C. Tamayo, thru counsel, filed a motion for the
issuance of a decree of registration.
Both motions were opposed by the Government.

CFI (acting on the


motion
for
the
issuance
of
a
decree
of
registration
pending appeal)

GRANTED THE MOTIONS FILED BY PIDC and


TAMAYO
ORDER: directed the issuance of a decree of registration
of the entire land, one-third (1/3) pro-indiviso in favor of
Roman C. Tamayo, and two-thirds (2/3) pro-indiviso in
favor of Paraaque Investment and Development
Corporation, subject to the final outcome of the appeal
REASON: its decision had become final as to the share
of Tamayo PIDC

the Commissioner of Land Registration forthwith issued Decree


No. 113485 pursuant to the said order
Then, the Register of Deeds issued Original Certificate of Title
No. 0-3151 of the Register of Deeds of the Province of Nueva Ecija.
Later, the lower court approved the Amended Record on Appeal
which, together with the evidence and transcripts, was forwarded to
this Court in due course of appeal.
As the lower court denied reconsideration of the order
directing the issuance of a decree of registration, the Director
of Lands, Director of Forestry and the Armed Forces of the
Philippines instituted before this Court a special civil action for
certiorari and mandamus with preliminary injunction (L-27594),
seeking to nullify the order of the decree of registration issued
pursuant and Original Certificate of Title No. 0-3151 of the Register of

Deeds for the province of Nueva Ecija, and to command the respondent
court to certify the entire proceedings and to allow appeal to the
Supreme Court from its decision in toto
SC issued a writ of preliminary injunction

ISSUE: WON execution pending appeal is applicable in a land registration


proceeding.
HELD: NO

It is fraught with dangerous consequences. Innocent purchasers may


be misled into purchasing real properties upon reliance on a judgment
which may be reversed on appeal.

A Torrens title issued on the basis of a judgment that is not


final is a nullity, as it is violative of the explicit provisions of
the Land Registration Act which requires that a decree shall be
issued only after the decision adjudicating the title becomes
final and executory, and it is on the basis of said decree that
the Register of Deeds concerned issues the corresponding
certificate of title.

Consequently, the lower court acted without jurisdiction or


exceeded its jurisdiction in ordering the issuance of a decree
of registration despite the appeal timely taken from the entire
decision a quo.
OTHER ISSUES (NOT RELATED TO THE TOPIC, BUT IT IS RE LTD ):
5.
ID.; ID.; LIS PENDENS, INSCRIBED PENDING AN APPEAL, EFFECT OF.
Where the oppositors in a land registration case caused the notice of lis
pendens to be duly inscribed in the Original Certificate of Title pending an
appeal from the decision granting the registration, such inscription keeps the
whole land subject matter of the appeal within the power of the court until the
litigation is terminated. Such entry of lis pendens cannot be cancelled until the
final termination of the litigation, and the notice must be carried over in all titles
subsequently issued, which will yield to the ultimate result of the appeal.
6.
ID.; ID.; ID.; ACTION FOR RECONVEYANCE PENDING APPEAL OF
JUDGMENT IN REGISTRATION CASE. Where during the pendency of an appeal
by the government from a decision of the land registration court, decreeing the
registration of a parcel of land, a complaint for reconveyance of the same land
was filed against the adjudicatee, and the trial court after deciding the same on
the merits in favor of the plaintiff, despite the writ of injunction issued by this
Court and the inscription of a notice of lis pendens in the primary entry book of
the Register of Deeds and annotated on the title, directed the Register of Deeds
to cancel the original certificate of title and to issue new titles to the plaintiffs
free from all liens and encumbrances, such orders of the court cancelling the
original title and issuing new ones are null and void.
7.
ACTIONS; LAND REGISTRATION; ACTION FOR RECONVEYANCE BARRED
BY PENDENCY OF AN APPEAL FROM LAND REGISTRATION DECREE INVOLVING
THE SAME LAND. An action in personam for reconveyance of a portion of
land, adjudicated in a land registration case to defendants, which registration
case is subject to the outcome of appeal by the Government (which was not a
party to the action for reconveyance) is barred by the pendency of the appeal,

Rule 39
and the trial court in such action in personam is without jurisdiction to order the
register of deeds to cancel the original Certificate of Title and to issue titles to
the transferees "free from all liens and encumbrances," nor can such be
construed to authorize the register of deeds to cancel the notice of lis pendens,
which was not entered by virtue of the reconveyance case.
8.
LAND REGISTRATION; REGISTER OF DEEDS; LIS PENDENS; DUTY TO
CARRY OVER NOTICE OF LIS PENDENS ON ALL TITLES SUBSEQUENTLY ISSUED.
The register of deeds is duty bound to carry over a notice of lis pendens on
all title subsequently issued. The act of a register of deeds in erasing the notice
of lis pendens, in plain violation of his duty, constitutes misfeasance in the
performance of his duties for which he may be held civilly and even criminally
liable for any prejudice caused to innocent third parties, and cannot affect those
who are protected by the notice inscribed in the original title.
9.
ID.; INJUNCTION; VIOLATION BY REGISTER OF DEEDS OF COURT
INJUNCTION, EFFECT OF. Where the Supreme Court, in its injunction order,
restrained the register of deeds from accepting for registration documents
referring to the subject land until the petitioners shall have filed a notice of lis
pendens as to the title certificates of the adjudicatees under Section 24, Rule
14, Rules of Court, subject matter of the appealed land registration case, its
plain meaning is to enjoin registration of documents and transactions unless the
notice of lis pendens is annotated and so subject the same to the outcome of
the litigation. In such case, subsequent transferees cannot be considered
innocent purchasers for value.
10.
COURTS; LOWER COURTS CANNOT OVERRULE INJUNCTION ISSUED BY
SUPREME COURTS. A lower court cannot overrule injunctions issued by the
Supreme Court.
11.
LAND REGISTRATION; LIS PENDENS NOTICE TO ALL PERSONS. The
entry of the notice of lis pendens in the day book (primary entry book) is
sufficient to constitute registration and such entry is notice to all persons of
such adverse claim.
12.
ID.; EVIDENCE; EFFECT OF FAILURE TO SUBMIT TRACING PLAN. The
original tracing cloth plan of the land applied for, approved by the Director of
Lands, must be submitted in evidence. The submission of such plan is a
statutory requirement of mandatory character. And unless a plan and its
technical description are duly approved by the Director of Lands, the same are
not of much value.
13.
ID.; ID.; LAND REGISTRATION COMMISSION, NO AUTHORITY TO
APPROVE ORIGINAL SURVEY PLANS. The applicant may not justify the nonsubmission of the original tracing cloth plan by claiming that the same may be
with the Land Registration Commission (LRC) which checked or verified the
survey plan and the technical descriptions thereof, for it is not the function of
the LRC to check the original survey plan as it has no authority to approve
original survey plans.
14.
ID.; ID.; PURPOSE OF REQUIRING SUBMISSION OF TRACING CLOTH
PLAN. The applicant is not relieved from submitting in evidence the original
tracing cloth plan approved by the Director of Lands as required by law. One of
the distinguishing marks of the Torrens System is the absolute certainty of the
identity of a registered land. Consequently the primary purpose of the aforesaid
requirement is to fix the exact or definite identity of the land as shown in the

plan and technical descriptions. Hence, the applicant is not relieved of his duty
of submitting the acreage.
15.
ID.; ID.; LANDS ACQUIRED UNDER INFORMACION POSSESSORIA
LIMITED TO 1,000 HECTARES. Where the claim of an applicant is based on an
alleged informacion possessoria but the alleged informacion possessoria covers
an area of "sies mil quinones, poco mas o menos" or an equivalent of 16,800
hectares, while under the Royal Decrees in force at the time of the supposed
acquisition, no one could acquire public land in excess of 1,000 hectares, since
the Royal Decrees of November 25, 1880 and October 26, 1881, prohibited any
grant of public land in excess of 1,000 hectares, such a factor would weigh
heavily against the applicant's claim.
16
ID.; ID.; INFORMACION POSSESSORIA, NATURE OF. A document which
states: "en su virtud habieno examinado el Registro nuevamente formado por la
perdida o destruccion del mismo y no hallando en ningun asiento contrario a lo
relacionado reinscribe la posesion de la finca de este numero a favor de Don
Melecio Padilla sin perjuico de tercero que puede tener mejor derecho de la
propiedad" is not a titulo de informacion possessoria, because it was merely a
certification of possession over the property, and was issued without prejudice
to a third party or parties having a better right. Under Spanish Law, in order that
an informacion possessoria may be considered as title of ownership, it must be
proven that the holder thereof has complied with the provisions of Article 393 of
the Spanish Mortgage Law.
17.
ID.; ID.; ID.; CONVERSION OF INFORMACION POSSESSORIA INTO
RECORD OF OWNERSHIP. Where the supposed holder of an informacion
possessoria died 5 years after the inscription of the informacion, he could not
have converted the same into a record of ownership 20 years after such
inscription, pursuant to Art, 393 of the Spanish Mortgage Law. One year after
the promulgation of the Maura Law, or on April 17, 1895, the right to perfect
possessory information title under the law expired. After that date, full property
right of the land reverted to the government and the right of the cultivator and
possessor to obtain gratuitous title was extinguished.
18.
ID.; POSSESSION; OPEN AND CONTINUOUS POSSESSION. Where the
evidence shows that before the military reservation on the land applied for was
established, the land involved was largely mountainous and forested; that
approximately 13,975 hectares of said land consist of public forest; that during
the lifetime of applicant's predecessors-in-interest only a small portion thereof
was cleared and cultivated under the "kaingin" system, while some portions
were used as grazing land; that the succeeding possessors caused the planting
of vegetables thereon by 40 tenants, that when the applicants took possession
of the land, they had to abandon the place due to the unsettled peace and order
conditions in the area, and that when they tried to reoccupy the land they were
prevented by the army, it is obvious, on the basis of said facts, that neither the
applicant nor his predecessors-in-interest had been in open, continuous,
exclusive, and notorious possession and occupation of the property in question
under bona fide claim of acquisition of ownership for at least thirty years
immediately preceding the filing of the application for confirmation of title.
19.
ID.; ID.; CASUAL CULTIVATION OF PORTIONS OF LAND DOES NOT
CONSTITUTE POSSESSION UNDER CLAIM OF OWNERSHIP. A mere casual
cultivation of portions of a public land by the claimant, and the raising thereon
of cattle, do not constitute possession under claim of ownership. In that sense

Rule 39
possession is not exclusive and notorious so as to give rise to a presumptive
grant from the State. While grazing livestock over the land is of course to be
considered with other acts of dominion to show possession, the mere occupancy
thereof by grazing livestock upon it, without substantial inclosures or other
permanent improvements, is not sufficient to support a claim of title through
acquisitive prescription.
20.
ID.; ID.; PUBLIC LAND; ACQUISITIVE PRESCRIPTION. The possession
of public land, however long the period may have extended, never confers title
thereto upon the possessor because the statute of limitations with regard to
public land does not operate against the State, unless the occupant can prove
possession and occupation of the same under claim of ownership for the
required number of years to constitute a grant from the State.
21.
ID.; ID.; ID.; TAX DECLARATION, PROOF THAT HOLDER HAD A CLAIM
OVER THE PROPERTY. While tax receipts and declarations of ownership for
taxation purposes are not incontrovertible evidence of ownership, they
constitutes at least proof that the holder had a claim of title over the property.
22.
ID.; ID.; ID.; PUBLIC LAND ACT EXCLUDES FORESTS. Section 48(b) of
Com. Act No. 141, as amended, applies exclusively to public agricultural land.
Forest lands or areas covered with forest are excluded, and are incapable of
registration, and its inclusion in a title, whether such title be one issued during
the Spanish sovereignty or under the present Torrens system of registration,
nullifies the title.
23.
ID.; ID.; MILITARY RESERVATIONS; CLAIMANT MUST SHOW TITLE.
Under presidential proclamation reserving an area for military purposes which
states that the same is subject to "private rights, if any there be," the applicant
must prove its private rights over the property. For it is well settled that unless
the applicant has shown by clear and convincing evidence that the property in
question was ever acquired by him or his ancestors either by composition title
from the Spanish Government or by possessory information title, or any other
means for the acquisition of lands, the property must be held to be part of the
public domain.
DISPOSITIVE PORTION: WHEREFORE, decision in the above case is hereby
rendered:
(1)
in G. R. No. L-27594, the petition for certiorari is granted; the order
dated March 11, 1967 in LRC Case No. N-675, LRC Rec. No. N-25545, the decree
of registration issued pursuant thereto (Decree No. 113485 dated March 14,
1967), and Original Certificate of Title No. 0-3151 of the Registry of Deeds of
Nueva Ecija are all declared void; the Registry of Deeds of Nueva Ecija is
ordered to recall and cancel all transfer certificates of title, including owners'
duplicates and mortgagees' copies, if any, arising out of Original Certificate of
Title No. 0-3151; the preliminary injunction issued on June 5, 1967 and the
temporary restraining order issued on June 1, 1973 are made final and
permanent, with costs against respondents (except respondent Judge); and
(2)
in G. R. No. L-28144, the appealed decision is hereby reversed and set
aside, and judgment is rendered dismissing the application for registration.

Rule 39

G.R. No. 92989 July 8, 1991


PERFECTO
DY,
JR. petitioner,
vs.
COURT OF APPEALS, GELAC TRADING INC., and ANTONIO
V. GONZALES, respondents.

be cleared first before Libra could release the chattels in


question.

Meanwhile, Civil Case No. R-16646 entitled "Gelac Trading,


Inc. v. Wilfredo Dy", a collection case to recover the sum of
P12,269.80 was pending in another court in Cebu.

On the strength of an alias writ of execution issued on


December 27, 1979, the provincial sheriff was able to seize
and levy on the tractor which was in the premises of Libra in
Carmen, Cebu. The tractor was subsequently sold at public
auction where Gelac Trading was the lone bidder. Later,
Gelac sold the tractor to one of its stockholders, Antonio
Gonzales.

The petitioner, Perfecto Dy and Wilfredo Dy are brothers.


Sometime in 1979, Wilfredo Dy purchased a truck and a
farm tractor through financing extended by Libra Finance
and Investment Corporation (Libra). Both truck and tractor
were mortgaged to Libra as security for the loan.

Petitioner wrote a letter to Libra requesting that he be


allowed to purchase the tractor from his brother and assume
the mortgage debt. Libra approved.

Thus, on September 4, 1979, Wilfredo Dy executed a deed


of absolute sale in favor of the petitioner over the tractor in
question.

It was only when the check was cleared on January 17, 1980
that the petitioner learned about GELAC having already
taken custody of the subject tractor.

Consequently, the petitioner filed an action to recover the


subject tractor against GELAC Trading with the RTC of Cebu
City.

At this time, the subject tractor was in the possession of


Libra Finance due to Wilfredo Dy's failure to pay the
amortizations.

Despite the offer of full payment by the petitioner to Libra


for the tractor, the immediate release could not be effected
because Wilfredo Dy had obtained financing not only for
said tractor but also for a truck and Libra insisted on full
payment for both.

Their sister Carol-Dy purchased the truck. On November 22,


1979, a PNB check was issued in the amount of P22,000.00
in favor of Libra, thus settling in full the indebtedness of
Wilfredo Dy with the financing firm. Payment having been
effected through an out-of-town check, Libra insisted that it

RTC

Rendered judgment in favour of petitioner Dy holding


that the latter
is the owner of the tractor and
directing the defendants to return it.

CA

Reversed. Dismissed the action to recover the tractor.


It held that the tractor still belonged to Dy when it was
seized and levied by the se=heriff by the writ of
execution in the collection civil case.

Respondents Contention:

Rule 39
at the time of the execution of the deed of sale, no constructive
delivery was effected since the consummation of the sale
depended upon the clearance and encashment of the check
which was issued in payment of the subject tractor.
ISSUE 1:
Whether Dy, as mortgagor, could validly sell the mortgaged
tractor
HELD: YES. He remained the owner.
The mortgagor who gave the property as security under a
chattel mortgage did not part with the ownership over the
same. He had the right to sell it although he was under the
obligation to secure the written consent of the mortgagee or he
lays himself open to criminal prosecution under the provision of
Article 319 par. 2 of the Revised Penal Code. And even if no
consent was obtained from the mortgagee, the validity of the
sale would still not be affected.
There is no reason why Wilfredo Dy, as the chattel mortgagor
can not sell the subject tractor. There is no dispute that the
consent of Libra Finance was obtained in the instant case. Libra
allowed the petitioner to purchase the tractor and assume the
mortgage debt of his brother. The sale between the brothers
was therefore valid and binding as between them and to the
mortgagee, as well.
Re Actual Possession vis a vis the right to sell
While it is true that Wilfredo Dy was not in actual possession
and control of the subject tractor, his right of ownership was not
divested from him upon his default. Neither could it be said that
Libra was the owner of the subject tractor because the
mortgagee can not become the owner of or convert and
appropriate to himself the property mortgaged. (Article 2088,
Civil Code) Said property continues to belong to the mortgagor.
The only remedy given to the mortgagee is to have said

property sold at public auction and the proceeds of the sale


applied to the payment of the obligation secured by the
mortgagee. There is no showing that Libra Finance has already
foreclosed the mortgage and that it was the new owner of the
subject tractor. Undeniably, Libra gave its consent to the sale of
the subject tractor to the petitioner. It was aware of the transfer
of rights to the petitioner.
Re contention that the consummation of the sale depended upon the
encashment of the check:
Untenable. The payment of the check was actually intended to extinguish the
mortgage obligation so that the tractor could be released to the petitioner. It was
never intended nor could it be considered as payment of the purchase price
because the relationship between Libra and the petitioner is not one of sale but
still a mortgage. The clearing or encashment of the check which produced the
effect of payment determined the full payment of the money obligation and the
release of the chattel mortgage. It was not determinative of the consummation of
the sale. The transaction between the brothers is distinct and apart from the
transaction between Libra and the petitioner.
ISSUE 2: Whether the levy by the sheriff for the execution of the judgment is
proper: NO.
The sale of the subject tractor was consummated upon the execution of the
public instrument on September 4, 1979. At this time constructive delivery was
already effected. Hence, the subject tractor was no longer owned by Wilfredo
Dy when it was levied upon by the sheriff in December, 1979. Well settled is the
rule that only properties unquestionably owned by the judgment debtor and
which are not exempt by law from execution should be levied upon or sought to
be levied upon. For the power of the court in the execution of its judgment
extends only over properties belonging to the judgment debtor.3
Respodents also contend: at that time the sheriff levied on the tractor and took
legal custody thereof no one ever protested or filed a third party claim
It is inconsequential whether a third party claim has been filed
or not by the petitioner during the time the sheriff levied on the
subject tractor. A person other than the judgment debtor who
claims ownership or right over levied properties is not
precluded, however, from taking other legal remedies to

3 Consolidated Bank and Trust Corp. v. Court of Appeals, G.R.


No. 78771, January 23, 1991

Rule 39
prosecute his claim. (Consolidated Bank and Trust Corp. v. Court
of Appeals, supra) This is precisely what the petitioner did when
he filed the action for replevin with the RTC.
DISPOSITIVE: Petition is granted. RTC decision is reinstated.

Rule 39
[G.R. No. L-6770. August 31, 1954.]
HONORABLE MARCIANO ROQUE, ETC., petitioners, vs. PABLO
DELGADO, ET AL., respondents.
FACTS:

On September 6, 1952, the Petitioner- Roque (Acting Executive


Secretary) issued an order for the closure of a cockpit known
as "Bagong Sabungan" in Calios, Sta Cruz Laguna, being only
some 500 meters from the Seventh Day Adventist Church, in
violation of Executive Order No. 318, series of 1941.
On November 21, 1952, Respondents- Pablo Delgado, Eugenio
Zamora and Pio Manalo filed in the CFI Laguna a petition for
certiorari and prohibition, Civil Case No. 9616, against
Petitioners Hon. Marciano Roque as Acting Executive Secretary,
Hon. M. Chipeco as Provincial Governor of Laguna, and Patricio
Rebeque as Municipal Secretary of Sta. Cruz, Laguna, praying
for the issuance of a writ of preliminary injunction restraining
said respondents from carrying out the order of closure above
mentioned.
On November 22, 1952, Judge Nicasio Yatco issued the
corresponding writ.
On March 6, 1953, a decision was rendered in Civil Case No.
9616, dismissing the petition for certiorari and prohibition and
dissolving the writ of preliminary injunction.
On April 23, 1953, the Respondents (petitioners in Civil Case
No. 9616) filed a motion, praying that under the provision of
Rule 39, section 4, of the Rules of Court, the writ of preliminary
injunction issued on November 22, 1952, be restored.
RTC: On June 1, 1953, Judge Yatco granted the motion filed by
respondents by reinstating the writ of preliminary injunction
pending appeal.
"The Court, in consideration of Rule 39, section 4, of the Rules
of Court, makes use of its discretion in ordering the suspension
of the dissolution of the injunction during the pendency of the
appeal of the judgment rendered by this Court in its decision of
March 6, 1953, by thereby reinstating the writ of preliminary
injunction pending appeal. The Court further took into
consideration the importance of the case and the tense
situation of the contending parties, at this stage of the
proceedings. The Executive Secretary and all other authorities
concerned are hereby instructed to abide by this order, made

effective upon receipt hereof, for the maintenance of the status


quo."

Petitioner, thru The first Assistant Solicitor General, , filed an


urgent MR which was denied by Judge Yatco.
On June 26, 1953, Petitioner Roque, through the First Assistant
Solicitor General, instituted before the SC the present petition
for certiorari with preliminary injunction against Pablo Delgado,
Eugenio Zamora, Pio Manalo and Judge Nicasio Yatco of the
Court of First Instance of Laguna, for the annulment of the
order of June 1, 1953.

ISSUE:
WON the order issued by Judge Yatco should be annulled
HELD:

NO.
It is contended for the petitioner that the respondent Judge
acted with grave abuse of discretion or in excess or lack of
jurisdiction, because when the order restoring the writ of
preliminary injunction was issued, there was no pending
appeal.
It appears, however, that in the petition dated April 23, 1953,
filed in Civil Case No. 9616, it was expressly alleged that, in
their projected appeal, the petitioners therein would in effect
assail the correctness of the decision in said case.
Section 4 of Rule 39 provides that "the trial court,
however, in its discretion, when an appeal is taken from
a judgment granting, dissolving or denying an
injunction, may make an order suspending, modifying,
restoring, or granting such injunction during the
pendency of the appeal, upon such terms as to bond or
otherwise as it may consider proper for the security of
the rights of the adverse party."
Although this provision speaks of an appeal being taken and of
the pendency of the appeal, we cannot see any difference, for
all practical purposes, between the period when appeal has
been taken and the period during which an appeal may be
perfected, since in both cases the judgment is not final.
As a matter of fact there is authority to the effect that the trial
court may restore a preliminary injunction in anticipation of an
appeal. (Louisville & N. R. Co. et al. vs. United States et al., 227
Fed. 273.)

Rule 39

PETITIONER: It is also argued for the petitioner that at the time the
order of June 1, 1953, was issued by the respondent Judge, the act
sought to be enjoined had already been performed, the cockpit in
question having been actually closed on May 24 and 31, 1953.
SC:

In answer to this argument, it may be recalled that as early as


April 23, 1953, the petitioners in Civil Case No. 9616 filed a
petition to suspend the decision of March 9, 1953 and to
restore the preliminary injunction previously issued, which
petition was not resolved until June 1, 1953, with the result
that, if there was any closure, it should be deemed to
be without prejudice to the action the respondent Judge
would take on said petition dated April 23.

PETITIONER: Another contention of the petitioner is that the


respondent Judge was inconsistent in holding in his decision of March
6, 1953, that the location of the cockpit is in open violation of
Executive Order No. 318, and in subsequently restoring the writ of
preliminary injunction that would allow the continued operation of said
cockpit.
SC:

It is significant that, under section 4 of Rule 39, the


respondent Judge is vested with the discretion to
restore the preliminary injunction; and when we
consider that the order of June 1, 1953, took into
account "the facts and the circumstances surrounding
the case," as well as "the importance of the case and the
tense situation of the contending parties, at this stage of the
proceedings," in addition to the fact that in his order of June
11, 1953, denying the motion for reconsideration filed by the
First Assistant Solicitor General on June 3, the respondent
Judge expressly stated that he acted "on the basis of
the new facts and circumstances registered on record
on the date of the hearing" of the petition of April 23 filed
by the petitioners in Civil Case No. 9616, we are not prepared
to hold that the respondent Judge had acted with grave abuse
of discretion.
The allegation in the herein petition that the petitioner was not
notified of the hearing of the petition of April 23, is now of no
moment, since the petitioner, through counsel, had filed a
motion for the reconsideration of the order of June 1, 1953.

DISPOSITIVE: Wherefore, the petition is hereby denied, and it


is so ordered without cost.

Rule 39
G.R. No. L-63188 June 13, 1990
FERNANDO, PELAGIO, CARLOS, JULIA and JUANA, all surnamed
ARANDA, petitioners,
vs.
THE HONORABLE COURT OF APPEALS, MARCELO DE LARA, MARIA DE
LARA, and DOMINADOR, PEDRO, and LIBRADA, all surnamed
RAMOS, respondents.

certificates of title covering the parcels of land mortgaged to Alfredo


Cruz and Aurelio Oxiles.

CA reversed TCs decision and declared the De Laras et al. as the


owners of the disputed lots covered by sixteen transfer certificates of
title.

The TC, pursuant to the reversal by the Appellate Court issued an order
which required the Arandas (plaintiffs in execution) to re convey to
private respondents within five (5) days from notice the properties
transferred to them by virtue of the writ of execution pending appeal,
with the exception of the property covered by TCT No. 98052, and
authorized the clerk of court to execute the proper documents of
reconveyance should the Arandas fail to comply. The order further
required the petitioners to return to private respondent Marcelo de Lara
the jeepney which was levied on execution or to turn over the proceeds
of the sale thereof.

the clerk of court executed the deed of reconveyance in favor of private


respondents (defendants) with respect to the 16 lots.

Thereafter, on September 25, 1978, the De Laras et al. filed a motion to


nullify the aforesaid sixteen (16) titles to the disputed properties for
failure and/or refusal of the Arandas to surrender their owner's copy of
the said titles to the Register of Deeds in order that new ones could be
issued in favor of private respondents.

After hearing the arguments of both parties in said motion to nullify the
titles, the lower court issued an order cancelling the title of certain lots
while the other lots issued in favor of Alfredo Cruz and Aurelia Oxiles
were not nullified.

Having failed in their attempt to nullify the titles now in the names of
Cruz and Oxiles, private respondents filed an amended motion for
restitution with motion for contempt, which motions were rejected by the
trial court on the ground that the consolidated ownership of said realty in
the names of mortgagees Cruz and Oxiles could no longer be disturbed
in said proceedings. However, this would not bar the De Laras, et al.
from going after the Arandas in a separate direct action to seek redress
for the former's inability to recover the said properties.

FACTS:

Respondents De Laras et al., appealed from the decision of CFI Malolos


ordering them 1) to reconvey to herein petitioners, as well as the
Arandas several parcels of land situated in Bigaa (now Pandi), Bulacan
and covered by (16) transfer certificates of title. 2) tp pay P10,00.00 as
moral damages plus P10,000.00 as attorney's fees and the costs of the
suit.

However, the Arandas, as the prevailing parties, moved for an


execution pending appeal which the TC granted upon the filing by the
Arandas of a bond worth P10,000.

As a consequence of the execution pending appeal, the various lots


were transferred to petitioners. In addition, a jeepney belonging to
respondent Marcelo de Lara was sold at public auction and the amount
of P42,159.00 due from Tecson Chemical Corporation to Marcelo de
Lara was garnished and turned over to the Arandas.

During the pendency of the appeal, the Arandas mortgaged 8 of 10


reconveyed parcels of to Alfredo Cruz to secure a loan of P80,000.00.
Similarly, the Arandas mortgaged two more lots, to Aurelia Oxiles to
secure another loan of P 40,000.00. The loans matured during the
pendency of the appeal and because of the failure of the Arandas to
redeem the same, the two mortgages were foreclosed and the
encumbered properties were sold at public auction to mortgagees Cruz
and Oxiles. Eventually, the mortgagees consolidated their ownership
and new transfer certificates of title were issued in their names.

Meanwhile, on June 11, 1970, while their appeal was still pending
before the Appellate Court, private respondents decided to register with
the Register of Deeds of Bulacan notices of lis pendens on all transfer

Rule 39

De Laras et al then filed a special civil action


for certiorari and mandamus before the CA to set aside the said order.

CAs decision: 1) ordering Arandas to pay the De Laras 2) The De Laras


may enforce restitution which must be done in a separate civil action,
where they can demand from Alfredo Cruz and Aurelia Oxiles their
share of the harvest from the time of the levy. But they cannot demand
the amounts realized from the auction sale. The right to recover profits
is evidently derived from the right to specific restitution. ... As held by
the CA:
It must be home in mind in this connection that the
proceedings for the execution of the decision pending appeal
are lawful and that 'those who act under the profess are
protected by the law." This is the generally recognized rule.
After a reversal, the plaintiff is bound to make restitutionthat is, to return to the defendant whatever he got by
means of the judgment; but he cannot be treated as a
wrongdoer for causing execution to issue, and the
defendant's property to be levied on and sold. It protects
him while it remains in force.

Hence this petition

ISSUE: WoN CA erred in giving due course to the special civil action of certiorari
in CA-G.R. No. 14821-SP despite the lapsed remedy of ordinary appeal
HELD: NO.
-

CA can legally entertain the special civil action of certiorari in CA-G.R.


No. 14821-SP considering the broader and primordial interests of justice
which compel an occasional departure from the general rule that the
extraordinary writ of certiorari cannot substitute for a lost appeal, the
order of March 15, 1979 having become final upon the lapse of the
reglementary period of appeal.

While the lower court correctly denied the motion to nullify the subject
titles in the names of Cruz and Oxiles, it failed to provide private
respondents complete restitution as decreed in Section 5, Rule 39 of the
Rules of Court which states:

Effect of reversal of executed judgment.-Where the


judgment executed is reversed totally or partially on
appeal, the trial court, on motion, after the case is
remanded to it, may issue such orders of restitution as
equity and justice may warrant tinder the circumstances.
-

When a judgment is executed pending appeal and subsequently


overturned in the appellate court, the party who moved for immediate
execution should, upon return of the case to the lower court, be required
to make specific restitution of such property of the prevailing party as he
or any person acting in his behalf may have acquired at the execution
sale. If specific restitution becomes impracticable, the losing party in the
execution becomes liable for the full value of the property at the time of
its seizure, with interest.

While the trial court may have acted judiciously under the premises, its
action resulted in grave injustice to the private respondents. It cannot be
gainsaid that it is incumbent upon the plaintiffs in execution (Arandas) to
return whatever they got by means of the judgment prior to its reversal.
And if perchance some of the properties might have passed on to
innocent third parties as happened in the case at bar, the Arandas are
duty bound nonetheless to return the corresponding value of said
properties as mandated by the Rules.

Rule 39

Title:
TOMAS HILARIO, VICENTE BAGUIO, J. N. BELTRAN and
MARIANO FUENTECILLA, Plaintiffs-Appellees, v. W. E.
HICKS, KUENZLE & STREIFF, ALHAMBRA CIGAR
FACTORY, PACIFIC COMMERCIAL COMPANY, MANILA
WINE MERCHANTS & CO. (FORMERLY SULLIVAN &
FRANCIS), SAN MIGUEL BREWERY and DIONISIO VIDAL,
as deputy sheriff, Defendants-Appellants.
Facts:

This action was instituted by the plaintiffs to


recover damages supposed to have been incurred
by them in consequence of the alleged wrongful
sale of certain land under an execution issued upon
a judgment of the Court of First Instance of the
Province of Lanao.
On May 13, 1913, W. E. Hicks, Kuenzle & Streiff,
Alhambra Cigar Factory, Pacific Commercial
Company, Manila Wine Merchants, Anderson &

Company, and the San Miguel Brewery hereafter


collectively referred to as the creditors obtained
a judgment in case No. 292 in the Court of First
Instance of the Province of Lanao for the sum of
P30,827.40 against one A. E. Kramer, as
administrator of the estate of Frank Shephard,
deceased. In this action there were joined as
codefendants with Kramer numerous other
individuals who had become solidarily bound with
Kramer on his bonds as administrator, and
judgment was rendered in the same action against
these sureties to the extent of the liabilities
respectively assumed- by them. The plaintiffs
herein, to wit, Tomas Hilario, Vicente Baguio, J. M.
Beltran, and Mariano Fuentecilla, were four of the
bondsmen of Kramer against whom judgment was
rendered in said proceeding.
From the judgment thus rendered an appeal was
taken to the Supreme Court by the defendants; and
on August 17, 1916, this court rendered judgment
in case No. 292, 1 reversing the judgment of the
Court of First Instance and reducing the amount of
the recovery to P2,673.18. Soon after the original
judgment had been rendered for P30,827.40, as
above stated, in the Court of First Instance against
the numerous parties who were defendants in that
action, the creditors procured an order for the
immediate execution of the judgment. An execution
was accordingly issued and 48 parcels of real
property were levied upon and sold on April 25,
1914, as property of one or the other of the
numerous defendants, in addition to certain
personal property pertaining to Kramer and other
personal property belonging to C. L. Molo, one of
the sureties.

Rule 39

In considering the rights of the parties to this


litigation, as affected by the reduction of the
recovery in case No. 292 by the Supreme Court, it
must be borne in mind that, though the execution
of the judgment of the Court of First Instance in
that case was premature, the sale of the properties
belonging to the execution debtors in that action
was lawful. Said sale was effected under a lawful
order of the Court of First Instance; and when the
property was levied upon and sold at public
auction, the levy was not excessive. In fact the
property sold brought much less than the amount
of the judgment as it then stood. Admitting,
however, that the sale was in itself legal, it is
evident that, when the Supreme Court reduced the
amount of the recovery, it immediately became the
duty of the creditors to make restitution, and, so far
as practicable, to restore the parties to the position
which they would have occupied if the original
judgment had been for the amount finally awarded
by the appellate court.
Now, in order to discover the true scope and extent
of the duty of the execution creditor in a case of
this kind, it is important to consider the exact
nature of the judgment finally rendered in the
appellate court, that is, to discover whether that
judgment was really a reversal or a mere
modification of the original judgment; for by this
distinction must the question be determined
whether the creditor can be compelled to make
specific restitution of the properties bid in by him or
can only be required to restore the excess actually
realized by the sheriffs sale. The authorities are
practically harmonious upon the proposition that
specific restitution can be enforced in case of a
complete reversal, but it is generally accepted that

if the judgment is merely modified in its amount


and affirmed in other respects, the creditor cannot
be compelled to make specific restitution, though
he can be required to restore the excess realized
upon the execution over and above the amount
finally awarded.
In the case before us the judgment of this court
was in terms a reversal, and a new judgment was
rendered for the amount found to be actually due;
and we are of the opinion that, for the purposes of
this litigation, such an order must be taken to
operate with all the effect of a complete reversal. It
is undoubtedly true, as is observed by the author of
the annotation to Cowdery v. London and San
Francisco Bank, in volume 96 of the American State
Reports, at page 126, that appellate courts
sometimes, and perhaps often enter orders of
reversal without having in mind the questions
which may afterwards be presented because of
proceedings taken under a judgment while it
remained in force, and when, in view of those
questions a modification rather than a reversal
should have been directed, nevertheless when the
order is made and free from ambiguity, it must be
given effect in the form in which it is framed. "If an
order declares that a judgment is reversed, it must
be treated as at an end." (Id., p. 126.)

Issue:
WON the buyers at the auction sale should restitute the
properties they bought to the respective owners?
Held/Ratio:
Now, in order to discover the true scope and extent of the
duty of the execution creditor in a case of this kind, it is important
to consider the exact nature of the judgment finally rendered in the
appellate court, that is, to discover whether that judgment was

Rule 39
really a reversal or a mere modification of the original judgment;
for by this distinction must the question be determined whether the
creditor can be compelled to make specific restitution of the
properties bid in by him or can only be required to restore the
excess actually realized by the sheriffs sale. The authorities are
practically harmonious upon the proposition that specific
restitution can be enforced in case of a complete reversal, but it is
generally accepted that if the judgment is merely modified in its
amount and affirmed in other respects, the creditor cannot be
compelled to make specific restitution, though he can be required
to restore the excess realized upon the execution over and above
the amount finally awarded.
In the case before us the judgment of this court was in terms a
reversal, and a new judgment was rendered for the amount found
to be actually due; and we are of the opinion that, for the purposes
of this litigation, such an order must be taken to operate with all
the effect of a complete reversal. It is undoubtedly true, as is
observed by the author of the annotation to Cowdery v. London
and San Francisco Bank, in volume 96 of the American State
Reports, at page 126, that appellate courts sometimes, and perhaps
often enter orders of reversal without having in mind the questions
which may afterwards be presented because of proceedings taken
under a judgment while it remained in force, and when, in view of
those questions a modification rather than a reversal should have
been directed, nevertheless when the order is made and free from
ambiguity, it must be given effect in the form in which it is framed.
"If an order declares that a judgment is reversed, it must be treated
as at an end." (Id., p. 126.)
In the case referred to (Cowdery v. London and San Francisco
Bank, 139 Cal., 298-[96 Am. St. Rep., 115]), it appeared that the
Supreme Court of California had made an order reversing a

judgment of an inferior court and remanding the cause with


directions to the trial court to enter judgment for a smaller amount.
This was held to constitute a reversal and to justify the setting
aside of a sale that had been made pursuant to the original decree
of the lower court in which the plaintiff had become purchaser. In
discussing the point now under consideration, the Supreme Court
of California said:jgc:chanrobles.com.ph
"The legal effect of the order of the supreme court was to reverse
and vacate the judgment, and not merely to modify it. Upon a
decision of the Supreme Court that there was material error in the
action of the court below, that court may direct the character of the
subsequent proceedings in the lower court, and its mandate will
vary according to its views as to the proper course to be pursued. It
may conclude not to reverse the judgment, but to modify it, by
eliminating some portion, or by adding something to it, leaving the
remaining part of the judgment below to stand affirmed and in full
force and effect from the date of its original entry or rendition; or it
may reverse the judgment, which means to entirely vacate it, and
may remand the cause for new trial; or if a new trial is not
necessary, it may upon the reversal remand it, with directions to
the lower court to enter a particular judgment. To reverse is to
overthrow; set aside; make void; annul; repeal; revoke; as, to
reverse a judgment, sentence, or decree. (Century Dictionary), or,
to change to the contrary, or to a former condition. (Standard
Dictionary). . . . The distinction between a reversal of a judgment
and an affirmance with a modification is too marked and radical to
justify us in disregarding it. . . . We are bound to assume that this
court in this case acted advisedly and deliberately, and had good
reason for ordering a reversal rather than a modification and
affirmance. The part of the order directing the entry of a new
judgment related solely to the proceedings after the reversal and
the return of the case to the court below, and was not intended to,

Rule 39
nor could it, change the reversal to a mere modification. Neither
can the fact that it may now appear to us that the same result could
have been reached by a modification justify this court in now
changing the effect of the mandate."cralaw virtua1aw library
In view of the foregoing, the final judgment entered upon appeal in
case No. 292 must be considered to have been a reversal rather
than a mere modification of the original judgment and upon this
hypothesis we proceed to consider the effect of this reversal upon
rights of the respective parties.
Upon one proposition all authorities concur, which is, that as to
those properties which were sold by the sheriff to third parties, the
sale is in no wise affected by the subsequent reversal of the
judgment by the Supreme Court. The doctrine is everywhere
accepted that the title of one who buys at a sheriffs sale, being a
stranger to the proceedings, will not be affected by the subsequent
reversal of the judgment, unless of course for want of jurisdiction
over the subject matter or over the party whose title was sought to
be divested. (10 R. C. L., 1233; 17 Cyc., 1309.) Therefore, as to
those properties which were sold to third parties, the obligation of
the creditors is limited to the duty to account for the amount
realized at the sheriffs sale in excess of the amount of the final
judgment, together with interest upon such excess from the date of
the sale.
The position of a creditor with respect to property bid in by him is
different; and it is held with practical unanimity that the creditor
buying at his own sale takes subject to the eventuality of the
lawsuit and may be required, if the execution debtor so elects, to
surrender the property and account for mesne profits when the
judgment is finally reversed. (See cases cited in note to Cowdery v.
London and San Francisco Bank, 96 Am. St. Rep., 137-139; 17

Cyc., 1310; 10 R. C. L., 1233). The same rule is applicable where


the attorney of the plaintiff in the execution becomes the purchaser.
(Galpin v. Page, 18 Wall. [U. S. ], 350 [21 L. ed., 9591])
As was said by the Supreme Court of California in Reynolds v.
Harris (14 Cal., 681 [76 Am. Dec., 459]), "a party obtaining
through a judgment, before reversal, any advantage or benefit,
must restore what he got to the other party, after the reversal;" and
in a later case the same court observed "The true condition of the
sale as valid or invalid we consider to be this: The sale was
valid at the time it was made; but the plaintiff in the execution
having become the purchaser, it was liable to be set aside upon the
reversal or modification of the judgment by this court, or by the
court below upon the return of the case, upon motion." (Johnson v.
Lamping, 34 Cal., 301.)
The right to obtain specific restitution of the properties bought in
by the creditors carries with it as a necessary incident the right to
require an accounting as to the rents and profits. (Delano v. Wilds,
11 Gray [Mass. ], 17 [71 Am. Dec., 687].)

Rule 39

G.R. No. L-41334

June 18, 1976

LUCIANO M. DAVID, petitioner, vs. HON. BIENVENIDO EJERCITO and


SPOUSES HORACIO A. GOMEZ and GLORIA S. GOMEZ, respondents.
FACTS:

On November 25, 1968, spouses Horacio Gomez and Gloria S. Gomez,


the private respondents, filed in the City Court of Angeles City a
complaint for ejectment against Luciano M. David, the petitioner,
from Lot No. 285-B situated in Sto. Rosario Street, Angeles City.

Upon his failure to answer the complaint, the petitioner was


declared in default by City Court of Angeles City in its order
dated April 7, 1969.

On May 12, 1969, a decision was rendered against petitioner


ordering him to vacate the premises in question, to pay private
respondents the sum of P300.00 as reasonable rentals and
P300.00 as attorney's fees.

On September 22, 1969, the private respondents filed a motion for


the execution of the decision and two days thereafter, or on
September 24, 1969, the corresponding writ of execution was
issued.

There was a return made of the writ of execution on November 6, 1969


by the Deputy Clerk of Court, Avelina Santiago, and attached to said
return was an affidavit of Buenaventura Liwanag.

As petitioner did not want to comply with the writ of execution, the
private respondents filed on March 11, 1970 a motion for demolition
of the residential house of petitioner on the lot of the private
respondents. In due time the City Court issued the order of
demolition.

As the Office of the Chief of Police could not carry out the order of
demolition as shown in the return of Francisco Tanjuakio dated
November 19, 1974, the private respondents filed a motion for
the issuance of an alias writ of execution. An alias writ of
execution was issued on November 21, 1974.

Rule 39

On January 13, 1975 the City Sheriff made a return of thealias writ of
execution with the information that the petitioner refused to comply
with it and insisted in occupying the premises involve

ed in the litigation.

The private respondents filed another motion for demolition.

On January 25, 1975 the City Court of Angeles City issued the
corresponding order of demolition but on February 25, 1975 when the
City Sheriff of Angeles City tried to implement the order of demolition,
he was constrained to stop because of the promise of
petitioner to remove the residential house in question within
thirty (30) days from the execution of the agreement he
entered with the City Sheriff and private respondent Horacio
Gomez before the City Fiscal of Angeles City.

the lot of private respondents and from the order denying his motion for
reconsideration.
HELD:

On April 11, 1975, the petitioner filed a motion to recall the


order of demolition on the ground that under Section 6, Rule
39 of the Rules of Court, a judgment can only be enforced by
action after the lapse of five (5) years from the date it became
final and executory.

Petitioner's contention that the respondent Court erred in not holding that he
may appeal from the order of the City Court denying his motion to recall the
order of demolition of his residential house on the lot of private respondents and
from the order denying his motion for reconsideration, has no merit.

It is a settled rule that ordinarily an order of execution is not


appealable because otherwise a case would never end, for so
often as an order for execution of judgment is made, it could
be objected to and the case be brought for review.

If the order of execution cannot be appealed, neither can the order of


demolition issued in pursuance thereof be appealable.

Obviously, the respondent Court was correct in dismissing and


disapproving the appeal of the petitioner from the order
denying his motion to recall the order of demolition in question
and denial of reconsideration.

Said motion to recall the order of demolition was denied and a motion
to reconsider said order denying the motion to recall the order of
demolition was likewise denied.

His proper recourse, if any, would have been through a special civil
action of certiorari or prohibition if valid grounds existed to assail the
trial court's orders for lack of Jurisdiction or grave abuse of discretion.

On July 3, 1975, the petitioner filed a notice of appeal.

On July 16, 1975, private respondents filed with the City Court of
Angeles City an opposition to the petitioner's notice of appeal.

PETITIONERS CLAIM: The alias writ of execution of November 21,


1974 and the order of demolition of January 6, 1975 were null
and void because they were issued after the five-year limitation within
which a decision may be revived by mere motion in violation of Section
6, Rule 39 of the Rules of Court.

On August 1, 1975, the respondent Judge issued an order


disapproving and dismissing petitioner's appeal.

the petitioner has come to the Court on a writ of certiorari to review


the aforesaid order.

ISSUE:
Whether or not the petitioner may appeal from the order of the City Court
denying his motion to recall the order of demolition of his residential house on

This pretense is untenable.

The record shows that petitioner was at fault and


himself caused the delay in the execution of the
judgment for almost eight (8) years from the time it
became final and executory in 1969, although as early
as September 20, 1969, private respondents had
moved for execution of the judgment, but petitioner
refused to abide by the writ of execution.

Rule 39
o

Accordingly, respondents moved for an order of demolition of


petitioner's residential house which was issued on March 13,
1970 but again for one reason or another could not be carried
out.

Finally, petitioner is estopped from questioning the order of


demolition or from reneging on his express undertaking to
vacate the premises after the final 30-day grace period
secured by him.
o

Nevertheless, petitioner still tried futilely to get around his


express undertaking to return the premises by having his
brothers and sisters file in vain a petition for preliminary
injunction although they are not parties to the case.

But prescinding from petitioner's estoppel and even granting


for the sake of argument that the motion for execution filed
on November 19, 1974 and the subsequent motion
for alias writ of execution and the motion for demolition in
which petitioner was heard, were beyond the five-year
limitation within which a judgment may be executed by mere
motion, still under the circumstances prevailing wherein all
the delay in the execution of the judgment lasting for almost
eight (8) years is due to petitioner's own act, the Court for
reasons of equity is constrained to treat the motion
for execution filed on November 19, 1974 and the
subsequent motion for alias writ of execution and
motion for demolition as constituting in effect an
action to revive the judgment in question under
Section 6, Rule 39 of the Rules of Court and a
substantial compliance therewith.

The parties were fully heard as in an independent action and


there could be no other outcome than to order the execution
of the subsisting judgment.

It would be an idle ceremony to insist on the filing of a


separate action that would only unduly prolong petitioner's
unlawful retention of the premises which he has through all
devious means unjustly withheld from respondents all these
years.

Accordingly, the issuance of the writ of execution on


November 21, 1974 and the order of demolition of
January 25, 1975 are hereby upheld.

Rule 39
petitioner belonging to B.R. Sebastian & Associates, Inc.,
particularly the judgment in Civil Case No. 77140 in the amount of
P2,007,157.00 to satisfy the amount of P580,228.19 adjudged to be paid by
B.R. Sebastian & Associates, Inc. to respondent PCIB in Civil Case No.
79092.
G.R. No. 93238 August 31, 1992

NATIONAL POWER CORPORATION vs. THE HON. COURT OF APPEALS,


HON. ELISA R. ISRAEL, in her capacity as Presiding Judge, RTC,
National Capital Judicial Region, Manila and the Philippine Commercial
and Industrial Bank
FACTS:

It appears on record that private respondent Philippine Commercial


International Bank (PCIB) instituted a complaint against B.R. Sebastian &
Associates, Inc. with the then CFI of Manila in Civil Case No. 79092 for the
recovery of a sum of money.

On June 30, 1978 an acknowledgment receipt covering PNB Check No.


739673 in the amount of P249,256.74 was issued by respondent
PCIB in partial compliance of said Notice of Garnishments leaving a
balance of P340,971.45.

Attempts by respondent PCIB to compel petitioner to deliver the remaining


balance of the garnished amount were to no avail. PCIB was forced to seek
the recovery of said amount in Civil Case No. 79092 with respondent trial
judge as well as instituting an independent action for damages with the
then CFI of Rizal (Civil Case No. 39255), which was dismissed, as it is the
court trying Civil Case 79092 which has jurisdiction to enforce the collection
of said balance.

Later, PCIB filed a Motion with the respondent trial court to Require the
National Power Corporation to Satisfy the Judgment of November 26, 1970
in Civil Case No. 79092. It prays that an order be issued directing
petitioner to remit the "unsatisfied amount" of P340,971.41 plus
interest until full payment thereof is made as it is the respondent trial court
that has jurisdiction to enforce and satisfy the judgment of November 26,
1970 in Civil Case No. 79092 as stated in the decision of the Court of
Appeals in CA.G.R. CV No. 9678. The motion was granted.

Dissatisfied, petitioner went up to the Court of Appeals in a Petition


for Certiorari, where it was also unsuccessful, resulting in the dismissal of
the petition.

Unfazed, petitioner elevated the matter to SC in a Petition for Review,


alleging that the writ of execution issued by the court a quo on July 16,
1976 has long expired; and that the period to revive the judgment of
November 26, 1970 in Civil Case No. 79092 has already prescribed.

TRIAL COURT
- Rendered a decision in favor of respondent PCIB wherein B.R. Sebastian &
Associates, Inc. was ordered to pay respondent PCIB the amount of
P580,228.19 which decision was affirmed by the Court of Appeals and
the same became final and executory on March 2, 1972.

B.R. Sebastian & Associates, Inc. instituted a complaint against


petitioner with the then CFI of Manila in Civil Case No. 77140 for
collection of a sum of money.

After trial on the merits, said court rendered a decision ordering


petitioner to pay B.R. Sebastian & Associates, Inc. the amount of
P2,007,157.00 which became final and executory on June 20, 1976.

The trial court issued an alias writ of execution against B.R.


Sebastian & Associates, Inc. for the recovery of a sum of money in
Civil Case No. 79092.
Pursuant to said writ, the sheriff of Manila thru its deputy Ruben Gatmaitan
issued on July 21, 1976 a Notice of Garnishment to the petitioner's
treasurer wherein said notice attached and levied upon all the
goods, effects, and monies in the possession and control of

TC in Civil Case No. 79092 issued an order directing petitioner to deliver to


the Sheriff of Manila or to respondent PCIB the amount in its possession
minus the contractors tax of P60,215.71 belonging to B.R. Sebastian &
Associates, Inc. equivalent to the money judgment stated in the Notice of
Garnishment in said case.

ISSUE: WON delay caused by judgment obligor/debtor suspends the running of


prescriptive period in enforcing judgment

Rule 39
HELD: YES. SC found no merit in the peftition.

Section 6 of Rule 39 of the Revised Rules of Court provides that a


judgment may be executed on motion within 5 years from the date
of its entry or from the date it became final and executory and,
thereafter, and before it is barred by the statute of limitations, it
may be enforced by an independent civil action.

The Prescriptive period for the enforcement of a judgment by ordinary


action is 10 years computed from the time the judgment became
final and the lifetime of a writ of execution is 60 days after its receipt by
the levying officer.

However, in the case at bar, it was the petitioner who caused the
delay in the payment of the remaining balance of the aforesaid
Notice of Garnishment. Therefore, the delay of more than 10 years
from the time the judgment of November 26, 1970 became final
and executory should not be counted in computing the 5-year
period in executing a judgment by motion, since the delay was not
respondent's doing but petitioner's.

In computing the time limited for suing out an execution, although there is
authority to the contrary, the general rule is that there should not be
included the time when execution is stayed, either by agreement of the
parties for a definite time, by injunction, by the taking of an appeal or writ
of error so as to operate as a supersedeas, by the death of a party, or
otherwise. Any interruption or delay occasioned by the debtor will
extend the time within which the writ may be issued without scire
facias.

Thus, the filing of respondent PCIB of a motion requiring the petitioner to


remit the unsatisfied amount of the Notice of Garnishment on November 8,
1988 is still seasonable and well within the 5-year period since the statute
of limitations has been devised to operate primarily against those who
slept on their rights and not against those desirous to act but cannot do so
for causes beyond their control.

Rule 39

On March 26, 1958, counsel for the oppositors filed a motion, alleging
that the applicant had abandoned his right to the reimbursement of his
expenses for registration and praying that a decree for the registration
of the land be issued in the name of the oppositors.

Opposition to this petition was again filed by attorney for the applicant,
on the ground that as the decision in the case became final 30 days
after November 28, 1931, and the oppositors have slept on their rights,
their cause of action is barred by Statute of Limitations.

The lower court overruled the objection and on May 14, 1958, it
ordered issuance of the decree of registration of the parcels of land in
the name of the oppositors.

ISSUE #1: WON the decision in the registration case was rendered on November
28, 1931, it had become unenforceable 15 years later, that is, at the time the
petition for the reconstitution of the records was presented on June 24, 1947.
HELD: NO

Act No. 3110, which governs the reconstitution of lost or destroyed


records, provides that records of judicial proceedings in the office of
the Clerk of Court of the Court of First Instance may be reconstituted as
soon as practicable, after the occurrence of any fire or other public
calamity resulting in the loss of all or part of the records of judicial
proceedings.

RULE 39 G.R. No. L-15564


April 29, 1961
PASCUAL STA. ANA vs.EULALIO MENLA, ARCADIO NARVADES and
DOMINGA NARVADES
FACTS:

On June 24, 1947, attorney for oppositor Eulalio Menla filed a petition
for reconstitution, alleging that the court records of the above-entitled
case were destroyed in or about March, 1945.

Notice for the hearing of the abovemotion was furnished the attorney
for the applicant Pascual Sta. Ana, who filed a motion to dismiss the
petition for reconstitution, on the ground that the cause of action is
barred by the Statute of Limitations.

On November 21, 1957, the court denied the motion to dismiss and
ordered the records of the above-entitled case reconstituted upon (a)
the transcript of stenographic notes taken during the trial; (b) the blue
print plan, PSU 9624 and 96264 covering the land in question; and (c)
the decision of the court dated November 28, 1931.

The loss occurred during the Liberation of this country in 1945, and the
application for the reconstitution was made on June 24, 1947.

It is apparent that the petition for reconstitution herein is not belated;


it must have taken some time before the oppositors-appellees, who
asked for the reconstitution, came to know of the loss of the judicial
records of the registration case.

ISSUE #2: WON THE LOWER COURT ERRED IN ORDERING THAT THE DECISION
RENDERED IN THIS LAND REGISTRATION CASE ON NOVEMBER 28, 1931 OR
TWENTY SIX YEARS AGO, HAS NOT YET BECOME FINAL AND UNENFORCEABLE.
HELD: NO

We fail to understand the arguments of the appellant in support of the


above assignment, except in so far as it supports his theory that after a
decision in a land registration case has become final, it may not be
enforced after the lapse of a period of 10 years, except by another
proceeding to enforce the judgment may be enforced within 5 years by
motion, and after five years but within 10 years, by an action (Sec. 6,
Rule 39.)

This provision of the Rules refers to civil actions and is not applicable
to special proceedings, such as a land registration case because a

Rule 39
party in a civil action must immediately enforce a judgment that is
secured as against the adverse party, and his failure to act to enforce
the same within a reasonable time as provided in the Rules makes the
decision unenforceable against the losing party.

In special proceedings the purpose is to establish a status, condition or


fact; in land registration proceedings, the ownership by a person of a
parcel of land is sought to be established. After the ownership has
been proved and confirmed by judicial declaration, no further
proceeding to enforce said ownership is necessary, except when the
adverse or losing party had been in possession of the land and the
winning party desires to oust him therefrom.

Furthermore, there is no provision in the Land Registration Act similar


to Sec. 6, Rule 39, regarding the execution of a judgment in a civil
action, except the proceedings to place the winner in possession by
virtue of a writ of possession. The decision in a land registration case,
unless the adverse or losing party is in possession, becomes final
without any further action, upon the expiration of the period for
perfecting an appeal.

ISSUE #3: WON THE LOWER COURT ERRED IN ORDERING THE ISSUANCE OF A
DECREE OF REGISTRATION IN THE NAMES OF THE OPPOSITORS-APPELLEES
BASED ON A DECISION WHICH HAS ALLEGEDLY NOT YET BECOME FINAL, AND IN
ANY CASE ON A DECISION THAT HAS BEEN BARRED BY THE STATUTE OF
LIMITATIONS.
HELD: NO

There is nothing in the law that limits the period within which the court
may order or issue a decree.

The reason is what is stated in the consideration of the second


assignment error, that the judgment is merely declaratory in character
and does not need to be asserted or enforced against the adverse
party.

Furthermore, the issuance of a decree is a ministerial duty both of the


judge and of the Land. Registration Commission; failure of the court or
of the clerk to issue the decree for the reason that no motion therefore
has been filed cannot prejudice the owner, or the person in whom the
land is ordered to be registered.

RULE 39 SEC 6
G.R. Nos. L-49315 and 60966. February 20, 1984.
BERNARDA S. CANONIZADO, petitioner, vs. THE HONORABLE JUDGE
REGINA G. ORDONEZ BENITEZ Presiding Judge of the Juvenile and
Domestic Relations Court Manila, and ATTY. CESAR R. CANONIZADO,
respondents.

FACTS:

Bernarda Canonizado is the daughter of Atty. Cesar Canonizado. The


former is asking support from the latter.

The present case involves 2 petitions.


1
seeking to compel the respondent Juvenile and Domestic Relations
Court to order the issuance of an alias writ of execution for the
enforcement of a decision ordering the payment of past support
2
to order the payment of current support in favor of the petitioner.

On September 27, 1968, the Court of Appeals rendered a decision,


ordering defendant to give plaintiff a monthly support of
P100.00 beginning with October, 1964, payable in advance within the
first five (5) days of each month, and the appealed judgment is hereby
affirmed in all other respects, without costs."

This decision became final and executory on January 21, 1969.

On October 24, 1Dy969, an order of execution was issued for


P27,900.00 followed by the writ itself on October 28, 1969.

However, the writ was recalled and set aside to enable the
plaintiff, petitioner herein, to correct the amount therein
stated.

Earlier on October 6, 1967, Christina, daughter of petitioner and


respondent, became of age but since she was still studying then, her
support was formally terminated only in April, 1969

. The total amount due her as of this latter date was determined at
P16,150.00, for the period from October, 1964 to April, 1969.

Writs of execution were again issued on February 10 and March


30, 1970 in favor of petitioner and Christina respectively.

Said writs were both returned unsatisfied.

On July 11, 1973, the petitioner and the respondent entered into
an agreement4

On February 16, 1976, the petitioner filed a motion for execution


and contempt of court, praying that a writ of execution be
issued for P17,200.00 in her favor and P16,150.00 in favor of
Christina.

On February 23, 1976, an order was issued by the lower court


stating that after submission by petitioner of a verified

4STIPULATIONS OF THEIR AGREEMENT "2.The total arrears in support payable to Mrs. Bernarda
Canonizado as of December, 1972 is determined at SEVENTEEN THOUSAND TWO HUNDRED PESOS
(P17,200.00). A moratorium of payment will be observed on this amount.
"3.
On or before July 31, 1973, Mr. Canonizado will deposit the amount of SEVEN HUNDRED PESOS
(P700.00) covering support from January to July, 1973. Henceforth, current support of ONE HUNDRED
PESOS (P100.00) will be deposited within the first ten (10) days of every month punctually.
"4.
At any time that Mr. Canonizado will receive a sizeable income, payment on the arrears in
support of P17,200.00 will be made partially or in full, depending on the income received.
"5.
At any time that Mr. Canonizado should fail to remit current support for four (4) consecutive
months then the total arrears in support will be immediately due and demandable.
"6.
Mr. Canonizado also agrees that upon receipt of an income, he will liquidate the unpaid support
due their daughter Christina, the same to be given to Bernarda Canonizado

Rule 39
statement of the total arrears in support and application to the
Clerk of Court, a writ of execution shall be issued.

On March 15, 1976, the petitioner filed the required verified


statement but since the respondent on the same date was granted a
period of time within which to liquidate the arrears in support, the
application of the petitioner for a writ of execution was
deferred until April 14, 1976.

On said date, the petitioner filed a motion for the issuance of a


warrant of arrest and for an alias writ of execution.

These motions, however, were temporarily denied after the


respondent was granted a last extension to pay the arrears in support
on May 14, 1976.

On July 14, 1976, the lower court ordered the issuance of a writ
of execution for the collection of the amounts of P16,150.00
and P17,200.00 and for the calling of the case on August 2, 1976
for respondent to show cause why he should not be found in contempt
of court for failure to pay the arrears in support.
On July 22, 1976, a writ of execution was issued.

Enforcement of this writ, however, was not pressed by the


petitioner because on August 3, 1976, she and the respondent
entered into an agreement wherein she agreed to accept the
P200.00 to be deposited and to defer further action as long as
defendant shall fulfill the following commitments which he made

On April 14, 1977, petitioner filed a motion for an alias writ of


execution based on the original writ issued on July 22, 1976.
JDRC

On September 14, 1977, the respondent judge denied the


motion for issuance of an alias writ of execution
GROUND: the decision of the Court of Appeals dated September 27,
1968 became final and executory on January 21, 1969, or seven (7)
years and five (5) months had elapsed prior to the filing of plaintiff's
motion for issuance of writ of execution on July 1, 1976; that, that
being the case, the judgment may no longer be executed by Motion
(Sec. 6, Rule 39 of the Rules of Court); and that Christina, having
attained the age of majority on October 6, 1967 and who does not
appear to be suffering from any incapacity, may take the necessary
action herself to collect the indebtedness of her father to her."
On October 13, 1978, the petitioner filed a motion for
reconsideration of the above ruling but the same was denied.
Hence, on November 21, 1978, the petitioner filed a petition for
mandamus with preliminary mandatory injunction praying that
an alias writ of execution be issued based on the writ of
execution issued on July 22, 1976. The petition is the case now
docketed as G.R. No. L-49315.
Meanwhile, on January 12, 1982, the petitioner filed with the
respondent court a motion to require the respondent to pay

current support beginning February, 1978 based on the decisions of


September 27, 1968 and January 21, 1969.
On March 1, 1982, the respondent filed an opposition to said
motion on the ground that his obligation to support has terminated.
Subsequently, the respondent filed a motion to terminate
support.
Petitioner failed to appear at the hearings set for such motion,
the last of which was on August 28, 1982, on the presumption that
termination of support can be pleaded only in a separate and
independent action, not by motion in the same proceeding.
On July 5, 1982, the petitioner filed another petition for
mandamus with preliminary mandatory injunction praying that
the respondent judge be ordered to act on petitioner's motion for
current support and further, to be enjoined from hearing the motion for
termination of support.
The Court resolved to give due course to the petition and to treat the
respondent's comment as answer to the petition.

ISSUE: WON judgment for support can be enforced by mere motion


notwithstanding the lapse of 5 years
HELD: YES

In the case at bar, although petitioner obtained the favorable


judgment on January 21, 1969, she can still enforce the same
by a motion for a writ of execution, notwithstanding the lapse
of the five-year period provided for in Rule 39, Section 6 of the
Rules of Court because a judgment for support does not
become dormant and the five-year period for executing it by
motion does not apply thereto.
OTHER ISSUES (NOT RELATED TO THE TOPIC; RE SUPPORT):
SPECIAL CIVIL ACTION; MANDAMUS; REQUISITE BEFORE ISSUANCE OF WRIT. It
is essential to the issuance of the writ of mandamus that the plaintiff should
have a clear right to the thing demanded and it must be the imperative duty of
the defendant to perform the act required.
JUDICIAL COMPROMISE; ENFORCEABLE BY WRIT OF EXECUTION. A judicial
compromise may be enforced by a writ of execution. If a party fails or refuses to
abide by the compromise, the other party may either enforce the compromise
or regard it as rescinded and insist upon his original demand. (Mabale vs.
Apalisok, 88 SCRA 234; citing Arts. 2037, 2038 and 2041, Civil Code). Therefore,
petitioner was just enforcing a vested right when she asked for a writ of
execution and subsequently, an alias writ of execution to enforce the original
judgment on her and her daughter's favor insisted of enforcing the said
compromise agreements. Parenthetically, the agreements were only for
deferment but never for a waiver or giving up of the respondent's obligations to
the petitioner.
JUDGMENT FOR SUPPORT; RIGHT TO SUPPORT SUBSISTS DURING MARRIAGE
BUT ACTION TO MAKE IT DEMANDABLE MAY BE SUSPENDED; CASE AT BAR.
With regard to the issue of payment of current support, Article 303 of the New
Civil Code provides that the obligation to give support shall also cease "when

Rule 39
the recipient may engage in a trade, profession, or industry, or has obtained
work, or has improved his fortune in such a way that he no longer needs the
allowance for his subsistence;" When any of the above circumstances occurs,
the support stops since the recipient no longer needs it for subsistence. It does
not mean, however, that the obligation to give or the right to ask for support
also ceases permanently because the lack of a need for it may only be
temporary. In other words, the above circumstances do not affect the right to
support between spouses but only the action to make it demandable, such right
being born from the law and created as such by the marriage tie. It subsists
throughout the period that the marriage subsists.
TRIAL COURT TO DETERMINE NEED FOR SUPPORT SUBJECT TO PRESENTATION
OF EVIDENCE IN THE SAME CASE. It is not necessary to file a separate
action for a suspension of current support. The matter of determining
whether or not petitioner is entitled to support up to the present is
subject to the presentation of evidence both by the petitioner and the
respondent and is for the lower court to decide. The respondent judge,
therefore, cannot be compelled by mandamus to order respondent to pay
current support when the latter alleges that a ground exists for the suspension
of such obligation.
NEVER ATTAINS FINALITY. A judgment for support is never final in the
sense that not only can its amount be subject to increase or decrease
but its demandability may also be suspended or re-enforced when
appropriate circumstances exist.
DISPOSITIVE: WHEREFORE, the petition in G.R. No. L-49315 is GRANTED, and
the respondent court is hereby ordered to immediately issue the alias writ of
execution prayed for by herein petitioner. Respondent Cesar Canonizado is also
ordered to pay the sum of P3,000.00 as attorney's fees and costs. The petition
in G.R. No. 60966 is DISMISSED for lack of merit. The respondent court is
directed to set the case for hearings on whether or not there is a continuing
need for current support.

Rule 39

G.R. No. L-49188 January 30, 1990


PHILIPPINE
AIRLINES,
INC., petitioner,
vs.
HON. COURT OF APPEALS, HON. JUDGE RICARDO D.
GALANO, Court of First Instance of Manila, Branch XIII,
JAIME K. DEL ROSARIO, Deputy Sheriff, Court of First
Instance, Manila, and AMELIA TAN,respondents.

respondent court, Emilio Z. Reyes, as evidenced by cash


vouchers properly signed and receipted by said Emilio Z.
Reyes.

CA (on the issuance of an alias writ of execution): denied the


issuance of the alias writ for being premature, ordering the
executing sheriff Emilio Z. Reyes to appear with his return
and explain the reason for his failure to surrender the
amounts paid to him by petitioner PAL.

Respondent Amelia Tan, under the name and style of Able


Printing Press commenced a complaint for damages before
the Court of First Instance of Manila.

However, the order could not be served upon Deputy Sheriff


Reyes who had absconded or disappeared.

CFI rendered judgment in favour of Amelia Tan ordering PAL


to pay actual and moral damages among others.

Amelia Tan filed a motion for the issuance of a partial alias


writ of execution.

PAL appealed to which CA affirmed CFI decision.

No further appeal having been taken by the parties, the


judgment became final and executory and on May 31, 1977,
judgment was correspondingly entered in the case.

Then, respondent Amelia Tan filed a motion to withdraw


"Motion for Partial Alias Writ of Execution" with Substitute
Motion for Alias Writ of Execution.

CA (this time, on the Motion to withdraw the Motion for


partial writ with Substitute Motion for Alias Writ of
Execution): granted the withdrawal; Alaias writ ordered to
be issued.

Deputy Sheriff Jaime K. del Rosario was appointed Special


Sheriff for the enforcement thereof.

PALs ACTION: PAL received a copy of the first alias writ of


execution to which it filed an urgent motion to quash the
alias writ of execution stating that no return of the writ had
as yet been made by Deputy Sheriff Emilio Z. Reyes and
that the judgment debt had already been fully satisfied by
the petitioner as evidenced by the cash vouchers signed
and receipted by the server of the writ of execution, Deputy
Sheriff Emilio Z. Reyes.

On October 11, 1977, the trial court issued its order of


execution with the corresponding writ of execution of the
judgment in favor of the respondent. The writ was duly
referred to Deputy Sheriff Emilio Z. Reyes of Branch 13 of
the Court of First Instance of Manila for enforcement.

Four months later, Amelia Tan moved for the issuance of an


alias writ of execution stating that the judgment rendered by
the lower court, and affirmed with modification by the Court
of Appeals, remained unsatisfied.

PAL filed an opposition to the motion for the issuance of an


alias writ of execution stating that it had already fully paid
its obligation to plaintiff through the deputy sheriff of the

Rule 39

Deputy Sheriff Del Rosario (the new sheriff assigned for the
execution) served a notice of garnishment on the depository
bank of petitioner and garnished total amount of P64,408.

PAL now filed Petition for Certiorari on the following grounds:


1

An alias writ of execution cannot be issued without prior


return of the original writ by the implementing officer

Payment of judgment to the implementing officer as


directed in the writ of execution constitutes satisfaction
of judgment

Sec 5, Rule 39 particularly refers to levy of property of


judgment debtor and disposal or sale thereof to satisfy
judgment

ISSUE 1: Can an alias writ of execution be issued without


prior return of the original writ by the implementing
officer? YES!
(quoted RTC decision) The issuance of the questioned alias writ of execution
under the circumstances here obtaining is justified because even with the
absence of a Sheriffs return on the original writ, the unalterable fact remains that
such a return is incapable of being obtained (sic) because the officer who is to
make the said return has absconded and cannot be brought to the Court despite
the earlier order of the court for him to appear for this purpose
A contrary view will produce an abhorent situation whereby the mischief of an
erring officer of the court could be utilized to impede indefinitely the undisputed
and awarded rights which a prevailing party rightfully deserves to obtain and
with dispatch. The final judgment in this case should not indeed be permitted to
become illusory or incapable of execution for an indefinite and over extended
period, as had already transpired.
Judicium non debet esse illusorium; suum effectum habere
debet (A judgment ought not to be illusory it ought to have its
proper effect).
Indeed, technicality cannot be countenanced to defeat the execution of a
judgment for execution is the fruit and end of the suit and is very aptly called the

life of the law. A judgment cannot be rendered nugatory by the unreasonable


application of a strict rule of procedure. Vested rights were never intended to rest
on the requirement of a return, the office of which is merely to inform the court
and the parties, of any and all actions taken under the writ of execution. Where
such information can be established in some other manner, the absence of an
executing officer's return will not preclude a judgment from being treated as
discharged or being executed through an alias writ of execution as the case may
be.
Where the return cannot be expected to be forthcoming, to require the same
would be to compel the enforcement of rights under a judgment to rest on an
impossibility, thereby allowing the total avoidance of judgment debts. So long
as a judgment is not satisfied, a plaintiff is entitled to other writs of
execution
It is a well known legal maxim that he who cannot prosecute his judgment
with effect, sues his case vainly

ISSUE 2: did the payment made to the absconding sheriff


by check in his name operate to satisfy the judgment
debt? NO.
It is true that under ordinary circumstances, payment by the
judgment debtor in the case at bar, to the sheriff should be
valid payment to extinguish the judgment debt. HOWEVER, the
payment made by the petitioner to the absconding sheriff was
not in cash or legal tender but in checks. The checks were not
payable to Amelia Tan or Able Printing Press but to the
absconding sheriff. A check, whether a manager's check or
ordinary cheek, is not legal tender, and an offer of a check in
payment of a debt is not a valid tender of payment and may be
refused receipt by the obligee or creditor.

Rule 39
Anent the applicability of Section 15, Rule 39, 5 the judgment debt cannot be
considered satisfied and therefore the orders of the respondent judge granting
the alias writ of execution may not be pronounced as a nullity.
(RTC decision:) It is clear and manifest that after
levy or garnishment, for a judgment to be
executed there is the requisite of payment by the
officer to the judgment creditor, or his attorney,
so much of the proceeds as will satisfy the
judgment and none such payment had been
concededly made yet by the absconding Sheriff
to the private respondent Amelia Tan. The
ultimate and essential step to complete the
execution of the judgment not having been
performed by the City Sheriff, the judgment debt
legally and factually remains unsatisfied.
Re Execution vs Satisfaction:
Execution is the process which carries into effect a decree or
judgment, whereas the satisfaction of a judgment is the
payment of the amount of the writ, or a lawful tender thereof,
or the conversion by sale of the debtor's property into an
amount equal to that due, and, it may be done otherwise than
upon an execution (Section 47, Rule 39). Levy and delivery by
an execution officer are not prerequisites to the satisfaction of a
judgment when the same has already been realized in fact
(Section 47, Rule 39). Execution is for the sheriff to accomplish

5 Section 15. Execution of money judgments. The officer must


enforce an execution of a money judgment by levying on all the
property, real and personal of every name and nature whatsoever,
and which may be disposed of for value, of the judgment debtor
not exempt from execution, or on a sufficient amount of such
property, if they be sufficient, and selling the same, and paying to
the judgment creditor, or his attorney, so much of the proceeds as
will satisfy the judgment.

while satisfaction of the judgment is for the creditor to achieve.


Section 15, Rule 39 merely provides the sheriff with his duties
as executing officer including delivery of the proceeds of his
levy on the debtor's property to satisfy the judgment debt. It is
but to stress that the implementing officer's duty should not
stop at his receipt of payments but must continue until payment
is delivered to the obligor or creditor.
DISPOSITIVE: Petition denied. The judgment of the respondent
Court of Appeals is AFFIRMED and the trial court's issuance of
the alias writ of execution against the petitioner is upheld
without prejudice to any action it should take against the errant
sheriff Emilio Z. Reyes.

Rule 39

A.M. No. 1243 January 31, 1978


FELICITAS SALAZAR-CHOCO, BIBIANO SALAZAR and WARLITO
CHOCO, complainants,
vs.
DEMETRIO S. VILLAFLOR Deputy Sheriff of the Office of the
Provincial Sheriff of Davao City, respondent.
FACTS:

This is an administrative charge filed by Felicitas Choco


and others against Demetrio S. Villaflor , Deputy Sheriff in
the Office of the Provincial Sheriff at Davao City, for abuse of
authority, harassment and so on.

The complaint filed with the DOJ on February 20, 1973 alleged
that the complainants in the instant administrative case are
defendants in Civil Case No. 78096 entitled "Nicasio Palalon,
et al., vs. Felicitas Choco et al., " Branch II;

That writ of attachment was issued in said case pursuant to an


order dated February 5, 1973; that the order issued in Civil
Case No. 7809 directed the sheriff to attach only
properties of the defendants (complainants herein) in
such value as not to exceed the claims set forth in the
complaints and that the claim of the plaintiff (respondents
herein) in the said civil case was P23,142.26 plus attorney's
fees of P5,000.00;

that the respondent, Demetrio S. Villaflor as deputy


sheriff of the Office of the Provincial Sheriff of Davao
City attached personal properties of the defendants
consisting of twenty-one (21) units of motor vehicles, all

6 This is a case filed by Nicasio Palalon et. al., as Plaintiffs against Felicitas Salazar et. al.,
for recovery of sum of money and damages with preliminary attachment

Rule 39
in good running condition and at that time operating within the
City of Davao as public utilities, being used for carriage of
and/or cargoes;

that the respondent attached properties worth more than the


claim of the plaintiffs in Civil Case No. 7809, the total amount
demanded being only approximately P28,000.00;

that the complainants demanded the release of the


motor vehicles in excess of the claim of the plaintiffs in
Civil Case No. 7809 but the respondent refused to do so
and instead threatened that he might even impound the other
motor vehicles belonging to the complainants;

that the respondent acted in gross and evident bad faith in


attaching properties of the complainants worth more than the
claim of the plaintiffs in Chief Case No. 7809;

that the Court of First Instance of Davao City issued an


order dated February 9, 1973 directing the release of (15)
units of motor vehicles out of the twenty-one (21) units
which were attached and impounded by the respondent. 1

respondent was simply discharging his ministerial duty to


execute the lawful order of the court.

The investigation of the Administrative case was commenced


by District Judge Alfredo I. Gonzales, presiding judge of Branch
II of the Court of First Instance of Davao.

The investigation however, was completed by Judge Antonio M.


Martinez who was designated as executive judge of the Court
of First Instance of Davao.

After the complainants and respondent had adduced their oral


and documentary evidence, Judge Antonio M. Martinez
submitted on January 9, 1976 his report, recommending
the imposition of the penalty of suspension of one (1)
month without pay upon the respondent.

ISSUE:

In his ANSWER 2 filed on February 2, 1973, the respondent


averred that some of the attached vehicle might have
an value of more than P5,000.00 but most of said
vehicle had a value less than P5,000.00;

that One (1) unit of the attached vehicles was sold for Only
P3,000.00; that more of the attachments, if not all of these
vehicle to be attached, who owned by other people and not by
the complainants;

That right after the attachment, different persons came to file


third party complaint with the Office of the Sheriff, that the
Court of First Instance of Davao City issued an order to fifteen
(15) units of the vehicle attached, that t did not act in bad faith
in attaching the properties in question because he could not
anticipate what the proceed would be should the properties
attached be sold at public auction, specially if the properties
attached were claimed by other person and that the

WON the attachment was proper


HELD: No

From the facts established at the hearing, it is clear that the


respondent is guilty of having attached motor vehicles
worth much more than the claim of the plaintiff in the
complaint.

The total claim of the plaintiffs in Civil Case No. 7809 was only
about P28,000.00.

The twenty-one (21) units of motor vehicles attached by the


respondent had a total value of around P105,000.00.

It is admitted by the respondent in his answer that the


attached vehicles may have an assessed value of more than
P5,000-00.

Rule 39

Even if the attached vehicles were to be amused at


P3,000.00 each, the twenty-one (21) units would at
have the total value of P63,000.00 which is much more
than the claim of P28,000.00 demanded in the
complaint.

The bad faith of the respondent is shown by the fact that he


refused to heed the request of the complainants to release
some of the vehicles attached. Index the court of First instance
of Davao, Branch 11, had to issue in Civil Case No. 7809 an
order dated February 9, 1973 directing the respondent to
immediately release fifteen (15) units of the twenty-one (21)
unit. 8 which were attached and improbable; moving only six
(6) units winch were consider insufficient to answer the claim
of the plaintiffs as embodied in the complaint. 4

The complainants suffered as a result of the attachment of the


twenty-one (21) motor vehicle. The circumstances and equity
of the case warrant the imposition on of one (1) month

DISPOSITIVE: WHEREFORE, the respondent is hereby find guilty


of misconduct in the discharge of his duties and is hereby
suspended for one (1) month without pay to take effect when
this decision becomes final and executory, with the w that a
repetition of the same or similar act win be dealt with more
severely.

Adm. Matter No. P-1974 June 29, 1982


PABLO L. BAROLA, complainant,
vs.

Rule 39
VICTORIANO L. ABOGATAL, Deputy Sheriff, CFI, Misamis Occidental,
Ozamiz City Branch II, respondent.

ABogatals version: testified that he failed to transport the appliances


because Barola had no money to pay for the freight. The appliances
had been stored in the police headquarters in Iligan City. The electric
fan, stereo phono and refrigerator were not salable anymore. He denied
having received an envelope from Gomez. Abogatal expected that
Barola and his two relatives were with Abogatal when he went to see
Gomez at his house.

The judgment against Gomez had not been satisfied.

AQUINO, J.:
FACTS:

In the case of Pablo L. Barola, et al. vs. Serapion Gomez, et al., Judge
Melecio Genato rendered a judgment on ordering defendant Gomez to
pay P15,340 as damages for the death of Felipa Lambayong Barola's
mother.
Barola in his administrative complaint alleged that on January 15, 1978,
the writ of execution to enforce the said final judgment was given to
Victoriano L. Abogatal, a deputy sheriff. That although Abogatal listed
the personal properties of Gomez which could be levied upon (a
refrigerator, electric fans, sewing machine and a stereo-phonograph)
and although Abogatal even told Gomez not to remove those properties
and to post a bond, he (the sheriff) did not proceed with their auction
sale allegedly because he received "a folded envelope" from the
judgment debtor, Gomez.

Hence, Barola filed against Abogatal to the President of the Philippines


and the Secretary of Justice and later to this Court for dereliction of
duty.

Abogatal in his comment averred 1) that in order to enforce the writ of


execution he went to Gomez's house and told him "not to squander" his
second-hand refrigerator and blowers 2) that he was not able to make a
return of the writ of execution because Barola refused to return to him
the writ.

Barolas version: On January 16, 1978 Pablo Barola, Abogatal, Jesus


Barola and Dimas Apique left for Iligan City. The following morning, they
went early to the police headquarters in Iligan City to request for police
escort during the service of the writ. When the two returned to the
house, Abogatal and Jesus Barola were not there because they went
out to serve the writ.Upon their return, Abogatal assured Barola that he
could seize the properties in the afternoon. Pablo L. Barola learned that
Abogatal had talked with Gomez (kalaban ni Barola) who handed to
Abogatal a small folded paper bag.

ISSUE: WoN Abogatal (the sheriff) failed on his duty

HELD: YES. , Abogatal is guilty of dereliction of duty for not enforcing


the writ of execution. He failed to levy on the refrigerator and the electric
fans belonging to said judgment debtor and to sell them at public
auction. He also failed to return the writ of execution "not less than ten
(10) nor more than sixty (60) days after its receipt." (Sec. 11, Rule 39,
Rules of Court.) He received the writ on January 15, 1978 but made a
return thereat only on May 22, 1978. His alibi for such delay, that the
writ was in the possession of Barola, is not meritorious. It only shows his
carelessness in handling the writ.

Rule 39

Title:
A.M. No. 1065
January 31, 1978
ANDRES M. AQUINO, Complainant, vs. MELECIO N.
AFICIAL, Deputy Sheriff, Court of First Instance, Dagupan City,
Respondent.
Facts:

In his sworn letter-complaint dated August 21, 1975


Andres M. Aquino charged the respondent Melecio
N. official, Deputy Sheriff of the Court of First
Instance at Dagupan City, with "misconduct,
inefficiency, incompetence in the performance of
official duties and conduct prejudical to the best
interest of the service" in the implementation of a
writ issued by the City Court of Dagupan, Branch II,
pursuant to a judgment in favor of the herein
complainant in an ejectment case, Civil Case No.
1411-75 entitled "Antonio M. Aquino vs. Pancho M.
Patungan".
The charges are based on the respondent's alleged
failure to levy on the goods and chattels of the
judgment debtor Pancho M. Patungan when said
writ of execution was served on May 12, 1975. The
pertinent allegations of the letter-complaint are:
That the defendant is a lessee of a portion of the
store space No. 376 located at Avenida Torres
Bugallon, Dagupan City, he being a shoemaker and
dealer of made to order and high quality shoes;
that he owns a grinding machine worth P1,000.00
more or less; Electric fan worth P200.00;
Refrigerator worth P1,500.00 more or less; gas
range North P200.00 more or less and 100 pairs of
high quality and made to order shoes worth more

or less P1,500.00; That these personal properties


were all in the store of the defendant when the Writ
of Execution was actually served on the 12th of
May 1975. That before the Writ of Execution was
served, Deputy Sheriff Melecio N. Aficial advised
me to hire a jeep to haul the personal properties of
the defendant to which I readily complied by hiring
a Ford Fiera for P11.00; That out of respect,
courtesy and gratitude to the good advice of Sheriff
Melecio N. Aficial and his promise to seize the
personal properties of' the defendant, I treated said
Deputy Sheriff Melecio N. official together with his
companions namely, Mr. Juanito C. Salcedo and Pat.
Pablo de Asis at the Dagupan City Panciteria by
serving them food and cigarettes at around 9:00
A.M., on May 12, 1975. A friend of mine, Mr.
Federico Maramba joined us in this happy-happy
affairs; Nevertheless I am very sorry to file this
letter-complaint because Deputy Sheriff Melecio N.
Aficial surprisingly failed to make good his promise
and legal obligation to seize the above-enumerated
personal properties of the defendant which were in
his store after Atty. Victor Llamas whom the
defendant requested to intercede for him nave a
talk with the said sheriff;
That instead Deputy Sheriff acceded to the promise
of the defendant to settle the total obligation with
the Sheriffs Office on or before May 19, 1975.
Attached to the letter-complaint is a copy of
respondent's return dated August 11, 1975 wherein
it is stated that the writ of execution had been
"duly served but not satisfied", with this
explanation:
Upon investigation of his personal or real properties
said judgment-debtor has no properties not exempt
from execution. However said judgment-debtor is

Rule 39

willing to settle the judgment obligation some other


days.
On September 2, 1975, this Court's Executive
Officer, Atty. Arturo B. Buena, referred the lettercomplaint through the Executive Judge of the Court
of First Instance, Dagupan City, to respondent for
his comment within ten (10) days from receipt
thereof.
In his answer dated September 17, 1975, the
respondent explained that he failed to levy on the
goods and chattel of the judgment debtor because:
That on said date, May 12, 1975, together with Pat.
Pablo de Asis of the Dagupan City Police
Department, we proceeded to the portion of the
store space at No. 376, Torres Bugallon Avenue,
Dagupan City, where the judgment-debtor Pancho
Patungan is and served the said writ but refused to
sign or acknowledge the same and witnessed by
Pat. Pablo de Asis and Mr. Juanito C. Salcedo, as
evidenced by their signatures at the back of the
original writ. After explaining to him the contents of
the Execution, he went out and brought his copy to
his counsel and after a few minutes he came back
with Atty. Victor T. Llamas, Jr. (Affidavit of Atty.
Victor T. Llamas, Jr. is hereto attached.) His counsel
interceded and promised the undersigned to settle
the total obligation on or before May 19, 1975
which I have agreed and with the consent of the
plaintiff-complainant.
But
I
instructed
said
defendant to move out or vacate the premises.
Before this, the plaintiff-complainant told and
requested me that even though we could not
collect the obligation stated therein provided, you
instruct him to vacate the premises at the earliest
possible
time
because
he
always
makes
disturbance inside the store having a drinking spree

with his friends almost daily of which said


defendant has complied with on the next day.
virtual law library

After that period, May 19, 1975, said defendant has


not fulfilled or settled the total obligation but,
instead he requested again to settle it between
June 16, to 20, 1975, as he alleged to me that he
has an application for a loan with the PCI Bank to
be released soon. After that number of days when
he has not complied again, I went to his residence
at Malued Dist., Dagupan City, but informed me
that his loan was not yet approved.
With respect to the allegations of the plaintiffcomplainant that the defendant- lessee owns a
grinding machine, electric fan refrigerator, gas
range and 100 pairs of shoes, the truth of the fact
is that, there were only five pairs of shoes inside
the shelf (display), which were ordered by and
owned by his customers and there are no other
shoes as alleged by the complainant; the electric
fan and refrigerator are not yet owned by the
defendant as they have a prior lien with the
Radiowealth Finance Company; the tools and
implements and cooking utensils inside the
premises cannot be levied upon as they are exempt
from execution. A certification of the Radiowealth
Finance Co., and affidavits of Pat. Pablo de Asis and
Mr. Juanito C. Salcedo are hereto enclosed herewith.
The certification of the Radiowealth Finance
Company attached to the answer attested that the
refrigerator of the judgment debtor Pancho M.
Patungan was pay out" by the said company on
May 31, 1975. 4 The affidavits of Victor T. Jr., Pablo
de Asis and Juanito Salcedo 5 corroborated

Rule 39

respondent's report on the service of the writ of


execution.
Upon being furnished with a copy of respondents
answer, the complaint wrote a letter dated
November 4, 1975 6 to executive Officer Arturo B.
Buena reiterating his plea that the complaint be
formally investigated.
There is no need to conduct a formal investigation
of the charges. The facts of record insufficient
provide a basis for determination of respondent's
liability. There is no question that the respondent
failed to levy on the refrigirator, gas range, electric
fan and the pairs of shoes found at the store of the
judgment debtor, Pancho M. Patungan when the
writ of execution was served on him on May 12,
1975.

Issue:
WON the Sheriff entered into a valid compromise
agreement with judgment debtor?
Held:
No!
Ratio:
Section 15, Rule 39 of the Rule of Court explicitly makes it
the duty of the sheriff to levy on all the property or on a
insufficient amount of such property of the judgment debtor not
exempt from execution, as will satisfy the amount of the judgment
and costs included in the writ of execution. While the respondent
was justified in not on the cooking utensils and the tools and
implements used by the judgment debtor in shoemaking , his trade,
for these are exempt from execution, it was incumbent upon said
respondent to levy on the other properties found within the
premises occupied by the judgment debtor.

Respondent's claim that these other properties were subject to a


prior Hen in favor of the Radiowealth Finance Corporation is no
excuse for respondent to shrink from his duty to implement the
writ of execution. The judgment debtor had a tangible and
definable interest in these properties which was of value and not
exempt from execution. It was respondent's duly to make the levy.
The said Radiowealth Finance Corporation could properly protect
its interest by filing a third party claim with respondent in
accordance
with
Section
17
of
Rule
39.chanroblesvirtualawlibrarychanrobles virtual law library
Respondent's contention that he acceded to the judgment debtor's
promise to pay at a later date because of an alleged with complaint
is not tenable. His authority under the writ of execution does not
embrace the power to compromise with the judgment debtor. Any
extra judicial agreement should be between complainant and the
judgment debtor.
Respondent's unwarranted failure to levy on execution the
Properties of the judgment debtor not exempt from execution
constitutes negligence in the performance of official duties. His
negligence not only had caused damage to complaint, but more
importantly had impaired public faith and confidence in the
administration of justice by our court. As held by this Court in
Recto vs. Racelis:
... The image of a court of justice is necessarily mirrored in the
conduct, official or otherwise, of the men and women who work
thereat, from the judge to the least and lowest of its personnel
hence, it becomes the imperative sacred duty of each and everyone
in the court to maintain its good name and standing as a true
temple of justice.

Rule 39
Negligence in the performance of official duties is one of the
grounds for diciplinary action against public officials and
employees under Presidential Decree No. 6. It falls under the
classification of a leas grave offense in accordance with Civil
Service Commission Memorandum Circular No. 8, Series of 1970.
8Considering the lances of the case and in fine with Our decisions
in Recto vs. Racelis 9 and Estioko, Sr. vs. Cantos, 10 the
appropriate imposable penalty for respondent's negligence is
suspension from office for six (6) months without pay.
WHEREFORE, the respondent Melecio N. Aficial, is declared of
gross negligence in the performance of his duties as Deputy Sheriff
of the Court of First Instance of Dagupan City, and he is hereby
suspended from office for a period of six (6) months without pay to
commence immediately after the final entry of judgment in this
case, with the seaming that a repetition of the same or similar act
wig be dealt with more severely.

Sometime in 1974, private respondent Jose V. Ochoa instituted an


action for ejectment against petitioner in the City Court of Pasay
City.

Petitioner alleged that he is the absolute owner of the lot having


purchased the same from the Estate of Don Mariano San Pedro and has
been in possession thereof for more than thirty (30) years.

In the said case, the respondent Judge rendered judgment in


favor of respondent Ochoa on March 5, 1976.

On April 9, 1976, petitioner moved for reconsideration and


suspension of the order of execution dated April 5, 1976 and
prayed that the Sheriff of Pasay City be ordered to withdraw and desist
from enforcing his notice of collection and ejectment dated April 13,
1976, citing as basis for said motion General Order No. 53, dated
August 21, 1975 which provides, among others, that "all orders for the
ejectment of tenants or the demolition of their homes are hereby
suspended until further orders."

Respondent Ochoa opposed said motion on the ground that General


Order No. 53 had no application in the case because it was
issued for the purpose of forestalling the indiscriminate
eviction
of bona
fide tenants
from
agricultural
and/or
residential lands converted or proposed to be converted into
subdivision or commercial center and establishment.
o

Further, respondent Ochoa stated that the ejectment case


was instituted due to the failure and/or refusal of
petitioner to comply with her obligation as lessee.

On May 6, 1976, private respondent filed an Urgent Ex-Parte Motion


for Issuance of Order of Demolition and an Urgent Ex-Parte
Motion for Issuance of Alias Writ of Execution and Order of
Demolition.
On June 14, 1976, petitioner filed an urgent motion for postponement
of the hearing but was denied.
G.R. No. L-44240

May 5, 1979

FREDESWINDA R. CASANOVA, petitioner, vs. THE HON. MARIANO A.


LACSAMANA, in his capacity as Presiding Judge of Pasay City Court,
Branch II, THE SPOUSES JOSE V. OCHOA and ELENA VERGEL, THE
SHERIFF OF PASAY CITY and THE ENGINEER OF PASAY CITY, respondents.

On July 8, 1976, respondent Judge issued an order denying


petitioner's motion for reconsideration and suspension of
order of execution.

Rule 39
In the same order, the motions of private respondent were
granted and the Sheriff of Pasay City was ordered "to demolish
the house/structure of the defendant (petitioner) erected on
the plaintiff's property and to remove the same therefrom."

The Court finds petitioner's contention meritorious.


o

We agree with private respondents that the decision in the


ejectment case has already become final and executory, but
what is being questioned in the present petition is the
order of the court ordering the Sheriff of Pasay City or
his deputies and the City Engineer's Office of Pasay
City or his duly authorized representative to demolish
the house/structure of the petitioner erected on the
respondents' property and to remove the same
therefrom.

The questioned order was issued without due hearing of the


motions of private respondent and without granting petitioner
a reasonable time within which to remove her house from the
premises.

On July 26, 1976, the Deputy Sheriff of Pasay City, in a letter of even
date, notified the petitioner.
Petitioner in seeking to annul the order of respondent Judge dated
July 8, 1976 and to restrain the Sheriff of Pasay City from demolishing
her house cites as basis for her petition section 147, Rule 39 of
the Revised Rules of Court.

PETITIONERS CONTENTION:
The respondent Judge failed to
observe said provision in not setting for hearing private respondent's
motion for order of demolition and motion for issuance of alias writ and
order of demolition and in the questioned order the court did not fix a
definite reasonable period within which her house should be removed,
thus rendering the order of the court granting said motions null and
void.

In Folloso v. Director of Lands,

Whether or not petitioners contention is correct.

Under Section 13 (now 14). Rule 39, the officer called upon to
enforce a final judgment involving delivery or restitution of
property may do so by placing the plaintiff in possession of
such property, but 'the officer shall not destroy, demolish or
remove the improvements made by the defendant or his
agent on the property, except by special order of the court,
which order may only issue upon petition of the plaintiff after
due hearing and upon the defendant's failure to remove the
improvements within a reasonable time to be fixed by the
court.'

The safeguard accorded to the defendant by the above


provision has not been followed.

While the motion of the appellee for the removal of the


houses was set for hearing after due notice given to the
appellants, the court ordered the sheriff to remove said
houses within a period of 30 days but without giving them a
reasonable time within which to do so as required by said
section 13 (now 14).

This requirement is not an empty gesture. This


safeguard is necessary to give the defendant an
opportunity to protect his interest.

HELD:

7 SEC. 14. Removal of improvements on property subject of execution. When


the property subject of the execution contains improvements constructed or
planted by the judgment debtor or his agent, the officer shall not destroy,
demolish or remove said improvements except upon special order of the
court issued upon petition of the judgment creditor after due hearing and after
the former has failed to remove the same within a reasonable time fixed by the
court. (emphasis supplied.)

this Court said:

PRIVATE RESPONDENTS CONTENTION: From the decision of the


lower court dated March 5, 1976, no appeal was taken and the same
has become final and executory and there was no denial of due
process on the part of the petitioner when the respondent Judge issued
the questioned order because the petitioner was given ample time by
both respondent Judge and the Deputy Sheriff of Pasay City within
which to remove the construction she erected on private respondent's
premises.

ISSUE:

Rule 39
o

The lower court erred in issuing the order of demolition


without giving a reasonable time to the appellants.

The same ruling was reiterated in Rom v. Cobadora,


held:
o

where the Court

Under Rule 39, section 14, the appellant's house could not be
removed pending appellee's recourse to the Court for a
special order for the demolition and removal of such
improvements constructed by the appellant, which order is
to be issued 'upon petition of the judgment creditor after
due hearing and after the former has failed to remove the
same within a reasonable time fixed by the Court.

A.M. No. 2734 July 30, 1986


ROSA SANTIAGO ARCADIO, et al. vs. ATTY. CESAR ZOOK YLAGAN
FACTS:
Rosa Santiago Arcadio, Jose C. Santiago, Iris C. Santiago and Guillermo C.
Santiago filed a sworn letter-complaint praying that Atty. Cesar Z.
Ylagan be disbarred on the ground that he, together with the sheriffs of
Quezon City and two barangay officials, "used violence to break open
our domicile WITHOUT authority from the court."

Complainant Arcadio is the lessee of an apartment bearing No. 26 in


Barangay Paltok, San Francisco del Monte, Quezon City. The apartment is
owned by Ernesto Ylagan, brother of respondent.

Sometime in 1983, respondent, as counsel for his brother, instituted


an ejectment suit against Arcadio before the MTC of QC, based on
three grounds: sublease by the lessee of the premises to another without
the consent of the lessor; need of the lessor/owner to repossess the unit for
his own use or for the use of any immediate member of his family; and,

Rule 39
ownership by the lessee of another residential unit in Alabang, Muntinlupa,
Metro Manila.

For failure to answer, Arcadio was declared in default. Later, a


decision was rendered in favor of Ernesto Ylagan. However, this decision
was set aside upon motion of Arcadio.

Subsequently, Arcadio was ordered to vacate the apartment and to restore


possession thereof to the owner, as well as to pay P l,000.00 a month as
damages in the form of reasonable compensation for the use and
occupancy of the premises, starting June, 1983 until it is vacated and the
sum of P l,000.00 by way of attorney's fees, in addition to the costs.

MTC
- Found that all three grounds were duly established, any of which was sufficient
to justify Arcadio's ejectment.

C. Santiago] in the next door apartment occupied by her brother, then


closed and padlocked the doors, windows and the outer gate.
About 11:00 that morning, respondent, together with the sheriffs
and barangay officials, arrived and when they found the gate
padlocked, they shook and banged it until the small padlock was
"smashed"; that the group, under the leadership of respondent, used tools
to open the apartment door and once inside, they forced open the doors of
the rooms and ransacked the place; and that before leaving the
premises, respondent locked the doors and gate with new
padlocks, to the prejudice of the complainants who were
humiliated in the neighborhood because it took them a long time
to unlock the doors. It is the contention of complainants that the
enforcement of the writ was irregular and illegal because the acts
of violence perpetrated by respondent and his group were
without authority from the court.
ISSUE: WON there is a need to secure special authority or order from the court
to break open

- Arcadio appealed to the RTC

HELD: NO. The complaint must be dismissed for lack of legal basis.

- Respondent moved for execution pending appeal, which was granted.


The writ of execution was issued on May 10, 1984.

The case of Keith vs. Johnson summed up the rules on the extent of the
authority of an officer to enter a man's house, in this wise:

Thereupon, Arcadio filed a petition for certiorari with the Regional Trial Court,
which issued a TRO on May 16, 1984.

The common law, jealous of intrusion upon domestic peace and security,
did not permit an officer to break open an outer door of the defendant's
dwelling house, for the purpose of executing a ca. sa. upon a person, or of
levying a fi. fa. on the goods of the defendant, unless the king was plaintiff.
Every man's house was deemed his castle, and an ordinary judicial writ did
not authorize the opening of the outer door, lest the king's enemies might
enter; but the officer, once legally in the house, had a right to open an
inner door: ... But the executions in civil cases for specific property might
have authorized the breaking of the house, if the officer could not
otherwise execute the command of the writ.

On June 5, 1984, the petition was dismissed and accordingly, the restraining
order was lifted, thereby paving the way for execution.

Thus, pursuant to the writ of execution, Sheriffs Johnny Reyes and Florencio
Pangilinan, accompanied by Barangay Secretary Teresita Magnaye,
Kabataang Barangay Chairman Marcelino Daligdig and the respondent,
proceeded to the subject premises in the morning of June 7, 1984. It was
the manner in which the writ was carried out which led to the filing of the
instant administrative case.

Complainants alleged that Arcadio left the apartment in the


morning of June 7, 1984 to ask the help of her sister in putting up
a supersedeas bond to stay execution of the judgment.

To ensure herself that nothing untoward happens in her absence, Arcadio


left her two yog nieces [herein complainants Iris C. Santiago and Guillerma

The name of the process commonly resorted to by the successful


party in an action of ejectment, for the purpose of being placed by
the sheriff in the actual possession of the land recovered is called
a habere facias possessionem.

The records show that the writ of execution issued by Judge Gorospe, Jr. of
the Metropolitan Trial Court on May 10, 1984 partakes of the nature of
a habere facias possessionem. It commanded the sheriff to cause the

Rule 39
defendant Arcadio to vacate the premises of the plaintiffs bearing No. 26 in
Barangay Paltok, San Francisco del Monte, Quezon City, as well as all
persons claiming rights under her and restore possession thereof to the
plaintiff. Since it is not disputed that no one was in the apartment
at the time execution was carried into effect and the doors,
windows and outer gate were padlocked, there was no need for the
sheriffs and the respondent to secure a "break-open" order
inasmuch as the character of the writ in their hands authorized
them to break open the apartment, if they could not otherwise
execute its command.

Moreover, there is merit in the position taken by the respondent,


manifested in a memorandum of authorities submitted to supplement his
comment, that there is only one instance in the Rules of Court which
requires a special "break-open" order that referred to in Section 14, Rule
39, which reads:
Sec. 14. Removal of improvements on property subject of
execution.-When the property subject of the execution
contains improvements constructed or planted by the
judgment debtor or his agent, the officer shall not destroy,
demolish or remove said improvements except upon special
order of the court issued upon petition of the judgment
creditor after due hearing and after the former has failed to
remove the same within a reasonable time fixed by the court.

The situation contemplated under the foregoing section is very


much different from the case at bar since no building or structure
constructed by the tenant was demolished or required to be
demolished. The charge therefore cannot prosper, in the absence of any
rule which imposes upon the officer the duty to obtain a break open order.

Cases of forcible entry and detainer are summary in nature, for


they involve perturbation of social order which must be restored
as promptly as possible, and, accordingly, technicalities or details
of procedure which may cause unnecessary delays should carefully
be avoided. Hence, when an officer duly qualified to act under a writ of
execution in an ejectment case should be obstructed by a lock or a latch,
he is not expected to lie in wait around the premises until such time as the
tenants arrive. He has the right to employ force necessary to enable him to
enter the house and enforce the judgment. If the rule were otherwise,
and as experience has shown, the prevailing party will be at the
mercy of his adversary who will stop at nothing to thwart
execution.

After a careful consideration of the allegations of the complaint, supported


by annexes, and the comment thereto, likewise with annexes, SC is

convinced that the complainants failed to meet the above standard


to warrant the disbarment of respondent.

SC agreed with the respondent that if there was an irregularity in the


enforcement of the writ, complainants would have immediately proceeded
against him. It is in accord with human nature to assert a right most
strongly when it is first invaded. The unexplained delay gives rise to the
inference that the complaint is a mere afterthought. Undoubtedly, the
complaint is the product of resentment and bitterness of the complainants
who wanted to strike back at the respondent for the defeat they suffered in
his hands.

Rule 39

RULE 39 [G.R. No. 73662. June 18, 1987.]


MAI PHILIPPINES, INC., vs. NATIONAL LABOR RELATIONS COMMISSION,
and RODOLFO NOLASCO
In this case, the act of an employer in professing inability and thus failing to
comply with the direction in a final and executory judgment to reinstate an
employee held to have been illegally dismissed, and offering instead to give
separation pay in accordance with law was deemed by the National Labor
Relations Commission to have given rise to a cause of action entirely distinct
from that upon which original judgment had been rendered. What is worse, the
Commission not only allowed the filing and prosecution of a subsequent
separate action by the employee for the recovery of back wages under the
original judgment as well as damages, but also the contemporaneous execution
of the original judgment in so far as it required the payment of those precise
back wages. It is perhaps futile to attempt to discover the cause of this grievous
procedural anomaly, whether it be ignorance or gross inattention or neglect. But
it is certain that the error must be corrected, and the patent injustice thereby
caused, rectified. This, this Court will now do.
FACTS: (SORRY MAHABA hindi ko kasi maintindihan)

The decision in question was rendered on November 19, 1979, by


Regional Director F. Estrella.

It declared illegal the dismissal by MAI Philippines, Inc. of its Customer


Engineering Manager, Rodolfo Nolasco, and decreed his reinstatement
with full back wages. The decision was affirmed by the Labor Minister
and in due course became final.

MAI Philippines, Inc. complied with it by paying Nolasco P155,025.00


on December 15, 1981.

It however declined to reinstate Nolasco because there was no longer


any "substantially equivalent position available." Instead, it offered to
give separation pay at the rate of one (1) month for every year of
service, an offer it communicated to Nolasco in writing on November
24, 1981.

Nolasco brought suit in the CFI against MAI to recover damages; but he
also presented a motion to dismiss his own case, based on lack of
jurisdiction, which the Court granted on August 26, 1982.

He then filed a complaint in the Arbitration Branch, NLRC on the same


ground. That MAI refused to reinstate him pursuant to Director
Estrella's final judgment.

In this new complaint, he sought recovery of P539,837.00, representing


salaries and pecuniary benefits from December 1, 1981 until May 1987
"when . . . (he) reaches the age of retirement of 65 years;"
P600,000.00 as moral damages; P300,000.00 as exemplary damages;
and P100,000.00 as attorney's fees

It is noteworthy that at the time of the filing of this second complaint


on August 16, 1982, Nolasco was already 60 years old, his 60th birth
anniversary having fallen sometime in May, 1982.

After appropriate proceedings, Arbiter Lasquite rendered judgment


dismissing the case "for being a duplication of (the earlier labor) Case
involving the same complainant (Rodolfo Nolasco) and the same
respondent (Mai Philippines, Inc.)."

The Arbiter rejected as "completely unfounded" Nolasco's claim that


"he was dismissed by respondent with malice and deceit on 24
November (1981)" since in truth he had not yet been reinstated on
that day, and had in fact still been ordered reinstated by an alias writ
of execution on December 7, 1981, and had "still received his
backwages up to 15 December 1981."

The Arbiter declared that Nolasco's "appropriate remedy . . . (was) to


pursue the enforcement/implementation of the 19 November 1979
Order of Director Estrella . . . (which) is very clear, specific and
definitive," rather than to institute and prosecute a "duplicate case."

Nolasco, Twelve (12) days later, or on September 24, 1982 the latter
filed an "Appeal" assailing the Arbiter's finding of "duplication" or res
judicata and broadly hinting that the Arbiter had knowingly rendered
an unjust judgment.

MAI filed an "OPPOSITION TO APPEAL" in which it contended that: (1)


Nolasco's appeal was filed out of time and should on this account be
dismissed; (2) the Arbiter's decision was justified by the facts and
applicable law and jurisprudence; (3) the appeal is pro forma, being "a
mere rehash of the arguments already presented" to the Arbiter; and
(4) the fact that Nolasco had in the meanwhile "reached the age of
mandatory retirement . . . (rendered) the order of reinstatement moot
and academic."

While his appeal from the Lasquite decision was pending before the
NLRC, Nolasco filed on January 10, 1985 a motion for an alias writ of
execution, to compel payment to him pursuant to the Estrella Decision
of "accrued backwages from December 1981 to the present" as well as
"his yearly Christmas bonus or 13th month pay for 1981, 1982, 1983,

Rule 39
1984 and 1985," in view of MAI's failure of "compliance to the
reinstatement of complainant."

Over MAI's objections that inter alia the matter was pending appeal,
and that reinstatement had been mooted, Director Severo Pucan
who had taken over from Mr. Estrella as Director of the National Capital
Region issued the alias writ prayed for, under date of February 6,
1985. Pursuant thereto, MAI's deposit with the Bank of America was
garnished to the extent of P239,850.00.

MAI thereupon filed with Director Pucan's Office a "MOTION TO QUASH


AND/OR MOTION FOR RECONSIDERATION" and with the Ministry of
Labor itself, an "OMNIBUS MOTION AND/OR APPEAL", seeking the recall
of the alias writ and the negation of the garnishment of its funds in the
bank.

Director Pucan gave due course to MAI's appeal, ordering the elevation
of the record to the Labor Appeals Review Staff, Office of the Minister,
and requiring MAI, to stay "execution of the judgment award," "to post
a supersedeas bond in the amount of P239,050.00 within ten (10)
days."

MAI also presented an "APPEAL" from Director Pucan's aforesaid Order


of March 13, 1985 which order, in its view, had impliedly denied its
motion to quash the alias writ of execution.

This second appeal, like the first, was also given due course by Director
Pucan, by Order dated June 7, 1985.

Earlier, by letter dated April 2, 1985, Minister Ople instructed Director


Pucan "to stay the Alias Writ of Execution pending final determination
of whether the award has already been fully satisfied or not."

Shortly before noon on May 28, 1985, MAI's attorneys were advised by
the Bank of America over the telephone that Sheriff Alfonso Balais, Jr.
and Nolasco were able to obtain from it and then encash an uncrossed
manager's check amounting to P239,850.00, which was the amount
set forth in the alias writ of execution dated February 6, 1985.

Some minutes afterwards, the same attorneys received copies of two


(2) orders which apparently constituted the authority for the
encashment of said check. The first, rendered by Deputy Minister
Vicente Leogardo, Jr. on May 27, 1985, dismissed MAI's initial appeal
and remanded the case to the National Capital Region for enforcement
of the alias writ of execution in question. The second, issued by
Director Pucan under date of May 28, 1985, commanded the Bank of
America, under threat of contempt, to convert into cash its check made

out in the name of Sheriff Balais in the amount of P239,850.00; this, in


view of the dismissal of MAI's appeal and the judgment's "having long
become final and executory."

On June 3, 1985, MAI filed with the Office of the Labor Minister a
MOTION FOR RECONSIDERATION

The motion for reconsideration was resolved by Deputy Minister


Leogardo by Order dated July 25, 1985. He declared that since the
order of Director Estrella requiring reinstatement of Nolasco with full
back wages had already become final and executory, attacks against
that order "on the merits or in substance can no longer be
entertained;" but this notwithstanding, a cause had supervened
rendering the continuous execution of that final Order of November 19,
1979 unjust, (this supervening cause being) (Nolasco's) becoming 60
years of age sometime in May, 1982," which is the compulsory
retirement age prescribed by Section 13, Rule I, Book VI of the
Omnibus Rules Implementing the Labor Code (overruling Nolasco's
theory that the retirement age for MAI employees is 65).

For this reason, Leogardo continued, Nolasco was "no longer entitled to
back wages after he became 60 years old in May, 1982; . . . (and) back
wages paid to him after May, 1982 should be credited as (full
satisfaction of) retirement pay benefits. Hence, according to Leogardo,
"the judgment . . . should be . . . considered fully satisfied and . . . (the
case) deemed closed and terminated."

NOW, There still remained the matter of Nolasco's appeal from the
decision of Arbiter Lasquite. The National Labor Relations Commission
overruled the Lasquite decision which held that Nolasco's complaint
was barred by res judicata and remanded the case back to the
arbiter "for further appropriate proceedings."

Once again MAI had to apply for relief against an adverse ruling. It
pointed out inter alia that: (1) Nolasco's appeal from the decision of
Arbiter Lasquite adjudging his second action to be barred by res
judicata was out of time and should have been dismissed, citing VirJen Shipping & Marina Services, Inc. v. NLRC, 115 SCRA 347, 361; (2) in
any case, Lasquite was quite correct in ruling that res judicata does
exist; (3) there are two contradictory resolutions dealing with the same
matter; and (4) the amount of back salaries which it (MAI) had thus far
been compelled to pay more than satisfies the total amount due
Nolasco.
38 MAI's motions were denied by the Commission, by
Resolution dated January 7, 1986.

Rule 39
ISSUE #1: In Ignoring Real Juridical Situation and Established Remedies

The NLRC was clearly wrong, and gravely abused its discretion, in
ignoring or failing to comprehend the self-evident fact that the matter
before it was, at bottom, nothing more than the failure or claimed
inability of an employer to comply with a final and executory judgment
for the reinstatement of an employee.

In this situation, the plain and obvious remedy was simply the
compulsion of the employer by writ of execution to effect the
mandated reinstatement and pay the amounts decreed in the
judgment, and disregard or overrule the employer's claim of inability to
reinstate the employee or, in the event that there be valid and
insuperable cause for such inability to reinstate, take account of this
factor in the process of directing and effectuating the award of relief to
the employee consistently with the judgment.
But, to repeat, the plain and obvious remedy is execution. The remedy
is certainly never the institution of a separate action, whether in the
regular courts or the Labor Arbiters' Branch. Such a recourse would be
violative of the well settled principle of res adjudicata, and would give
rise to that multiplicity of actions which the law abhors and exerts
every effort to eschew. Cdrep

What happened here, as already intimated, is that the single, particular


act of MAI in refusing or professing inability to comply with the
executory judgment to reinstate Nolasco was made the subject of two
proceedings: one, execution, and two, a new and separate action,
instituted by Nolasco in the NLRC for damages (compensatory, moral,
and exemplary) and attorney's fees aggregating the stupendous
amount of P1,539,837.00.

Thus, even while Nolasco was prosecuting his new action, the public
respondents, with full knowledge thereof, authorized execution of the
original judgment. Worse yet, after that execution had resulted in the
coerced payment by MAI of the no mean sum of P239,850.00 to
Nolasco, and after Director Leogardo had declared that on account
thereof, "the judgment . . . should be . . . considered fully satisfied
and . . . (the case should be) deemed closed and terminated,"
respondent NLRC still refused to dismiss the second action and instead
directed the Arbiter to conduct "further appropriate proceedings" to
determine whether or not MAI was guilty of "causing the abolition (in
bad faith) of the complainant's position to render nugatory his
reinstatement under a final judgment" so as to render it liable for the
payment of additional damages in the claimed amount of
P1,539.837.00 as aforestated. 43 A more striking example of "having
one's cake and eating it, too," can hardly be conceived.

ISSUE #2
In Ignoring Tardiness of Nolasco's Appeal

So, too, it was clearly wrong, and in grave abuse of discretion, for the
Commission to fail or refuse to take account of the fact clearly
shown by the record and to which its attention had repeatedly been
drawn that the appeal taken by Nolasco from the decision of Arbiter
Lasquite of August 2, 1984, dismissing his complaint, was late,
because perfected on September 24, 1984, twelve (12) days after
service on him of notice of the decision on September 12, 1984, 44
the reglementary period for appeal being fixed by the Labor Code at
ten (10) days.

No acceptable reason has been advanced by Nolasco, and none


appears upon the record, to excuse his tardiness in the taking of the
appeal.

MAI's opposition to the appeal should have been sustained, and the
NLRC should never have taken cognizance of the appeal. In doing so,
and in resolving the appeal adversely to MAI, it acted so whimsically,
capriciously and arbitrarily as to call for this Court's correcting hand.

ISSUE #3
In Ignoring Event Rendering Reinstatement Moot

Yet a third serious mistake, amounting to grave abuse of discretion,


too, may be ascribed to the Commission; and that is, its refusal, or
neglect to consider the fact again quite plain from the record and to
which MAI had adverted more than once that the matter of Nolasco's
reinstatement had become moot and academic at the time that he
filed his second action before the labor arbiters' office against MAI on
August 16, 1982; for as of that day, he had already reached the age of
60 years, 46 which is the retirement age fixed by the Labor Code.
GRANTED.
The Court reinstates the decision of Labor Arbiter Lasquite dated August 2, 1984
and declares it to be the law of the case together with the decision of November
19, 1979. The Court further commands the private respondent, Rodolfo Nolasco,
to return to petitioner MAI the difference between the sum of P239,850.00,
received by him pursuant to the Orders of May 27 and 28, 1985, and such other
amounts delivered to him in execution of the decision of November 19, 1979, on
the one hand, and on the other, the total amount of back salaries and pecuniary
benefits due to him in accordance with said judgment of November 19, 1979,
computed up to his 60th birthday in May, 1982, and inclusive of retirement
benefits under the company plan. Costs against the private respondent.

Rule 39

RULE 39 SEC 13
G.R. No. 58281. November 13, 1991.
DIONISIO GOMEZ, FE GOMEZ, JUAN GEALONE, LUZ GOMEZ, AQUINO
GUETA, DIONISIO GOMEZ, JR., LYDIA ANGELES, MILAGROS GOMEZ,
EMILIO T. TRAILGALGAL, CESAR GEALONE, AMADA GOMEZ, RICARDO
MANDANAS, ROSE GOMEZ, CONSOLACION ESPELA, NORMA GOMEZ, and
CORAZON GOMEZ, plaintiffs-appellees, vs. MARCELO GEALONE, LUCIA
G. ESBER, ZOILO ESBER, ODEN BONTIGAO, HONORATO BONTIGAO,
BENITO GEALONE, CESAR GEALONE, SEVERINO GERONA, TITO
GERMEDIA, AURELIO GOBRIS, NEMESIO FORTES, PONCIANO GOBRIS,
FLOSERFIDA GONA, and GORGONIO BONTIGAO, defendants-appellants.
FACTS:

Plaintiffs-appellees (Gomezes) filed with Branch II (Gubat) of


the then Court of First Instance (now Regional Trial Court) of
Sorsogon, a complaint to recover from defendants-appellants

(Gealone et al.) a parcel of land with an area of 82,862 square


meters located in Otavi, Bulan, Sorsogon.
This property corresponds to Lot No. 6790 of the Bulan Cadastre
the trial court rendered a decision in favor of plaintiffs-appellees and
ordered each and everyone of the defendants to vacate immediately
the portions of the land which they are positively occupying actually
Defendants-appellants appealed the above decision to the
Court of Appeals which, however, dismissed the appeal for
failure of defendants-appellants to pay the docket fees within the
reglementary period.
The trial court's decision became final and executory on 23
January 1973.
On 29 March 1973, plaintiffs-appellees filed a motion for its
execution which the trial court granted in its Order of 13 April
1973.
On 17 April 1973, the Deputy Provincial Sheriff of Sorsogon
delivered the land in dispute to plaintiffs-appellees.
Defendants-appellants Lucia G. de Esber and Zoilo Esber,
however, failed to pay the P2,800.00 actual damages and their
shares in the costs of the suit.
For its satisfaction, the Provincial Sheriff levied some of their
properties
Provincial Sheriff issued a Sheriff's Notice of Public Auction
Sale of the properties, copy furnished defendant-appellant Zoilo
Esber and the heirs of plaintiff-appellee Dionisio Gomez.
Plaintiffs-appellees Fe Gomez Gealone, Luz Gomez Gueta, and
Aquino Gueta, for themselves and on behalf of the other plaintiffs,
whose bid was P3,522.50, were the highest bidders for the
properties.
the Provincial Sheriff issued a Sheriffs Certificate of Sale to the
above highest bidders, incorporating the statement that the sale is
subject to the right of legal redemption within one year from the date
of sale.
Thereafter, on 27 June 1973, the Provincial Sheriff submitted to the trial
court a Return of Service summarizing the proceedings of the 21 June
1973 auction sale.
On 27 June 1974, or after the lapse of the one-year redemption period,
the Provincial Sheriff issued a Final Bill of Sale in favor of the highest
bidders. Plaintiffs-appellees filed, on 11 July 1974, an Ex-Parte Motion
for Issuance of Writ of Possession, which the trial court granted on 21
August 1974. The writ was issued on 4 September 1974.
The Provincial Sheriff then delivered the auctioned properties
to plaintiffs-appellees on 9 September 1974. On 12 September
1974, he submitted a Return of Service. prcd
On 14 September 1974, defendants-appellants Zoilo Esber and
Lucia de Esber, through counsel, filed with the trial court an
"Appearance and Manifestations" taking exceptions "on the
proceedings in this case from the levy on execution of the real

Rule 39
properties owned by the defendants, the auction sale, the
issuance of the certificate and final sale, the writ of delivery of
possession and consequent delivery of possession of the
properties"

ESBERS CONTENTIONS:
1
the real properties levied on execution and later sold in the
auction sale have prior and registered liens in favor of third
persons, and
2
the residential house and the land (on) which the building was
constructed is a family home or homestead exempt from
execution.

Consequently, plaintiffs-appellees filed a Petition To Declare


Defendants In Contempt arguing that defendants Lucia G. de Esber
and Zoilo Esber, despite the service of the writ and the warning of the
Deputy Provincial Sheriff not to infringe and disobey the order of this
Honorable Court, not to mention repeated demands made by the
plaintiffs, failed and refused and continue to fail and refuse to vacate
the properties described in the writ in open violation and disobedience
of the order of the Court and to plaintiffs' damage and prejudice.
Acting on the petition for contempt, the trial court issued an order
which, inter alia, directed Mr. Jesus G. Gaerlan, special deputy
sheriff of the court, "to repair to the twelve-hectare portion
which have (sic) been executed and for which a Bill of Sale has
been issued, and then and there place the plaintiffs in
immediate possession" thereof and to make a report to the court
immediately after accomplishing the assignment, and warned that,
hereafter, "any complaint by the winning party in regard to disturbance
of their (sic) possession as well as enjoyment of the right of ownership
of this twelve-hectare portion of land will be deemed an act of
contempt for which the defendants and/or their agents shall be held
responsible." It further stated that it will entertain a proper motion
contesting the right to levy upon the property where defendant's house
stands on the ground that it is exempt from execution under Rule 39 of
the Rules of Court.
On 2 December 1974, special deputy sheriff Jesus G. Gaerlan
submitted to the trial court a Report stating that plaintiffsappellees were actually placed in possession of the 12-hectare
land on 29 November 1974 at about 2:00 o'clock in the afternoon.
This was followed by a Supplemental Report submitted on 5
December 1974 stating that on the very day of submission, Juan
Gealone, one of the plaintiffs, and Anatolia Berjerano,
informed him (Gaerlan) and the Clerk of Court that defendant
Zoilo Esber is not the real owner of the land subject of the
previous report, and that the true owner and actual possessor
thereof is Anatolia Berjerano who inherited the same from her mother,
Vicenta Siminaino. In support of her claim of ownership, Anatolia
presented Tax Declaration No.in her name

TC

Consequently, defendants-appellants filed a Motion to Set Aside


Execution Sale on the grounds, among others that the property
described and covered by Tax (Declaration), Lot No. 360 of the Bulan
Cadastre in the Sheriffs Notice of Public Auction Sale is exempt from
execution.
On 28 December 1974, plaintiffs-appellees filed their opposition
to the above motion alleging therein that the failure to assert
or claim the right to the exemption granted under Section 12
(a) of Rule 39 of the Revised Rules of Court within a reasonable
time constituted an abandonment or waiver thereof, and that
there is no merit to the other contentions of defendants.
DENIED DEFENDANTS MOTION TO SET ASIDE EXECUTION SALE
RULING: Granting, arguendo, that such property is indeed a homestead
and therefore exempt from execution, the rule nevertheless states that the
right to claim exemption must be made by the one in whose favor
it exists, a claim that rests primarily on the judgment debtor, which must
be made at the time of levy if the debtor is present, or 'within the
reasonable time, or promptly, or before the creditor has taken any step
involving further questions, or before advertisement of sale, or before the
sale, or within a reasonable time before sale, or before the sale has
commenced
Having asserted this claim for exception only after more than a year and a
half had elapsed from the execution sale and about six months from and
after the issuance of the Final Bill of Sale, this protest of the defendants
comes too late.

Not satisfied with this Order, defendants-appellants appealed


therefrom to the Court of Appeals.

ISSUE: WON a sheriff's sale on execution of properties of a judgment debtor


may be set aside after the period of redemption had expired on the ground that
either the properties are exempt from execution or that their value is grossly in
excess of the judgment debt and costs, thereby resulting in an iniquitous
transaction amounting to a deprivation of property without due process of law
HELD: NO

Although the Rules of Court does not prescribe the period


within which to claim the exemption, the rule is, nevertheless,
well-settled that the right of exemption is a personal privilege granted
to the judgment debtor and as such, it must be claimed not by the
sheriff, but by the debtor himself at the time of the levy or
within a reasonable period thereafter:

"In the absence of express provision it has variously held that claim
[for exemption] must be made at the time of the levy if the debtor is
present, that it must be made within a reasonable time, or promptly, or
before the creditor has taken any step involving further costs, or before
advertisement of sale, or at any time before sale, or within a

Rule 39

reasonable time before the sale, or before the sale has commenced,
but as to the last there is contrary authority."
In the light of the facts above summarized, it is self-evident that
appellants did not assert their claim of exemption within a
reasonable time.
Certainly, reasonable time, for purposes of the law on
exemption, does not mean a time after the expiration of the
one-year period provided for ( to redeem) in Section 30 of Rule 39 of
the Rules of Court for judgment debtors to redeem the property sold on
execution, otherwise it would render nugatory final bills of sale
on execution and defeat the very purpose of execution to put
an end to litigation.
SC reiterated that that litigation must end and terminate sometime and
somewhere, and it is essential to an effective administration of justice
that, once a judgment has become final, the winning party be not,
through a mere subterfuge, deprived of the fruits of the verdict.
Sc ruled that claims for exemption from execution of properties
under Section 12 of Rule 39 of the Rules of Court must be
presented before its sale on execution by the sheriff.

FAMILY HOME OR IN THE ABSENCE THEREOF, THE HOMESTEAD IS


EXEMPTED FROM EXECUTION OF JUDGMENT

Among the properties which are exempt from execution is


the debtor's family house constituted in accordance with
the Civil Code, or in the absence thereof, the homestead in
which he resides, and land necessarily used in connection
therewith, both not exceeding in value of three thousand
pesos (P3,000.00).

REASON FOR THE EXEMPTION: "The great controlling purpose


and policy of the Constitution, is the protection, the preservation
of the homestead, the dwelling place. A houseless, homeless
population, is a burden upon the energy and industry, and
corrupting to the morals of the community, of which they may be
members. No greater calamity, not tainted with crime, can befall a
family, than to be expelled from the roof under which it has been
gathered and sheltered. Protection of an estate or interest in
lands, whatever may be its dignity or inferiority, merely because it
is an estate or interest in lands, is not the purpose of the
Constitution, or of the statutes. . . . It is the house, the dwelling
place, not of necessity, an estate or interest in lands, which
must be protected and preserved. . . ."

A "homestead" refers to the dwelling house of the judgment


debtor in which he resides and the land necessarily used in
connection therewith.

It is exempt from execution pursuant to Section 12 of Rule


39 if its value at the time of the execution sale was not
more than P3,000.00.

"When reference is had to 'value,' in the statute cited, it must be


understood that the law-making body meant the amount which
the property might reasonably be expected to bring if sold under
the conditions prevailing at the time; and in a case where the
property has actually been exposed to public sale, the price which
it then brought is of necessity conclusive between the parties to
the execution as to its value.

INADEQUACY OF THE PRICE IS NOT A GROUND FOR SETTING ASIDE AN


EXECUTION SALE.

The inadequacy of the price is not a ground for setting aside


an execution sale unless the inadequacy is so great as to shock
the conscience.

"A judicial sale of real estate will not be set aside for inadequacy of
price unless the inadequacy be so great as to shock the conscience or
unless there be additional circumstances against its fairness."

Besides, gross inadequacy of the purchase price is not material "when


the law gives the owner the right to redeem as when a sale is made at
public auction, upon the theory that the lesser the price the easier it is
for the owner to effect the redemption.
DISPOSITIVE PORTION: WHEREFORE, judgment is hereby rendered
AFFIRMING in toto the Order appealed from, with costs against defendantsappellants. prLL

Rule 39

G.R. No. L-44169 December 3, 1985


ROSARIO
A.
GAA, petitioner,
vs.
THE HONORABLE COURT OF APPEALS, EUROPHIL
INDUSTRIES CORPORATION, and CESAR R. ROXAS,
Deputy Sheriff of Manila, respondents.

Respondent Europhil Industries Corporation was formerly


one of the tenants in Trinity Building at T.M. Kalaw Street,
Manila, while petitioner Rosario A. Gaa was then the building
administrator.

On December 12, 1973, Europhil Industries commenced an


action CFI Manila for damages against petitioner "for having
perpetrated certain acts that Europhil Industries considered
a trespass upon its rights ie cutting of its electricity, and
removing its name from the building directory and gate
passes of its officials and employees"

CFI: in favor of respondent Europhil Industries, ordered


petitioner to pay the former the sum of P10,000.00 as actual
damages, and moral damages.

The decision became final and executory.


A writ of garnishment was issued pursuant to which Deputy
Sheriff Cesar A. Roxas on August 1, 1975 served a Notice of
Garnishment upon El Grande Hotel, where petitioner was

Rule 39

then employed, garnishing her "salary, commission and/or


remuneration."
Petitioner then filed with the CFI of Manila a motion to lift
said garnishment. Ground: her "salaries, commission and, or
remuneration are exempted from execution under Article
1708 of the New Civil Code.8
CFI denied the order and a subsequent MR.
Petitioner then filed with CA a petition for certiorari against
the said order.
CA: Dismissed holding that petitioner is not a mere laborer
as contemplated under Article 1708 as the term laborer
does not apply to one who holds a managerial or
supervisory position like that of petitioner, but only to those
"laborers occupying the lower strata." It also held that the
term "wages" means the pay given" as hire or reward to
artisans, mechanics, domestics or menial servants, and
laborers employed in manufactories, agriculture, mines, and
other manual occupation and usually employed to
distinguish the sums paid to persons hired to perform
manual labor, skilled or unskilled, paid at stated times, and
measured by the day, week, month, or season.

ISSUE: Whether the exemption in Art 1708 of the Civil Code applies to
petitioner
HELD: NO.
Article 1708 used the word "wages" and not "salary" in relation to "laborer"
when it declared what are to be exempted from attachment and execution. The
term "wages" as distinguished from "salary", applies to the compensation for
manual labor, skilled or unskilled, paid at stated times, and measured by the day,
week, month, or season, while "salary" denotes a higher degree of employment,
or a superior grade of services, and implies a position of office: by contrast, the
term wages " indicates considerable pay for a lower and less responsible
character of employment, while "salary" is suggestive of a larger and more
important service.

8 ART. 1708. The laborer's wage shall not be subject to execution


or attachment, except for debts incurred for food, shelter, clothing
and medical attendance.

"'Wages' are the compensation given to a hired person for


service, and the same is true of 'salary'. The words seem to be
synonymous, convertible terms, though we believe that use and
general acceptation have given to the word 'salary' a
significance somewhat different from the word 'wages' in this:
that the former is understood to relate to position of office, to
be the compensation given for official or other service, as
distinguished from 'wages', the compensation for labor."
The exemption in Article 1708 of the New Civil Code to operate
in favor of any but those who are laboring men or women in the
sense that their work is manual. Persons belonging to this class
usually look to the reward of a day's labor for immediate or
present support, and such persons are more in need of the
exemption than any others. Petitioner Rosario A. Gaa is
definitely not within that class.

PENTAGON SECURITY and INVESTIGATION AGENCY, Petitioner,


vs. VICENTE T. JIMENEZ, ET AL., and NATIONAL LABOR
RELATIONS COMMISSION, SECOND DIVISION, Respondents.
FACTS:

Petitioner, a single proprietorship engaged in security services,


was ordered to pay the amount of ONE HUNDRED FIFTY SEVEN
THOUSAND ONE HUNDRED NINETEEN PESOS AND FOUR
CENTAVOS (P157,119.04) representing wages and COLA
differentials due its employees, as computed in a Decision of
the NLRC dated 21 February 1986.

On 22 June 1988, a notice of garnishment was issued against


petitioner, addressed to the PC-SUSIA c/o Col. Norberto M. Lina,
Camp Crame, EDSA, Q.C.

On 5 June 1988, Deputy Sheriff Silvino B. Santos issued a


Notice of Levy and Sale on Execution of Personal Properties

Rule 39
against herein petitioner, which personal properties are the
licensed firearms in question.

"(a) Except in paragraphs (j) and (m), Sec. 12, Rule 39, Rules of
Court, the exemptions are accorded to individual debtors.

Petitioner filed an urgent petition to quash Notice of Levy and


Sale on Execution, claiming exemption from execution under
Sec. 12, par. (b), Rule 39 of the Rules of Court.

(b) The exempt properties are used personally by the debtor or


his family, or as tools or implements of the debtor in his trade
or employment.

Labor Arbiter Eduardo Magno denied the petition. The Motion


for Reconsideration was likewise denied.

(c) The properties are necessary for the livelihood of the debtor
and his family." (Rollo, p. 58)

On 21 March 1989, the NLRC issued its resolution 9 which is the


subject of this petition.:-cralaw

The Solicitor General's as well as private respondent's


comments submit that firearms of a security agency are not
exempt from execution under Rule 39, Sec. 12, par. (b) of the
Rules of Court10

Respondents contend that from the above provision, three (3)


things can be deduced, viz:

The term "tools and implements" refers to instruments of


husbandry or manual labor needed by an artisan craftsman or
laborer to obtain his living. Here petitioner is a business
enterprise. It does not use the firearms personally, but they are
used by its employees. Not being a natural person, petitioner
cannot claim that the firearms are necessary for its livelihood.

Private respondent invites the Court to take judicial notice of


the fact that there are security guards rendering service
without firearms.

Petitioner without filing any reply moves for the resolution of


the petition.

The NLRC held:"Respondent is a security agency. It is admitted that the


licensed firearm is an important implement used in the business but this licensed
firearm is not the tools and implements exempted from execution . crlaw . The
question, therefore is whether a person can run his trade or employment without
such licensed firearm. The answer is in the affirmative since the person can still
run the business or engage in his trade even without such firearm because there
are other alternatives open to him.
"Besides, there is no showing that the levied firearms are the only firearms that
the respondent-appellant has in its possession. We affirmatively believe therefore
that there are firearms still hidden in its armory sufficient enough to answer the
call of its security trade or business. In the remote assumption that no firearms
remains in respondent's custody, as practically flowing from the view of Labor
Arbiter Magno, respondent can lease or buy from legitimate sources. There (sic)
are some of the alternatives which even common layman can expediently
comprehend."

ISSUE:
WON there is grave abuse of discretion on the part of the NLRC in
upholding the sheriff's issuance of Notice of Levy and Sale on
Execution against licensed firearms owned and used by the petitioner,
a security agency, in its operations.

HELD: NO

There is no question, in our mind, that a security agency


without firearms to equip its guards is useless.: rd

However, it would appear that the exemption contemplated by


the provision involved is personal, available only to a natural
person, such as a dentist's dental chair and electric fan (Belen
v. de Leon, G.R. No. L-16412, 30 Nov. 1962).

As pointed out by the Solicitor General, if properties used in


business are exempt from execution, there can hardly be an
instance when a judgment claim can be enforced against the
business entity.

10 "Sec. 12. Property exempt from execution. Except as otherwise expressly provided
by law, the following property, and no other, shall be exempt from execution:'(b) Tools and
implements necessarily used by him in his trade or employment;'"

Rule 39

ACCORDINGLY, the petition is DISMISSED. However, for security


reasons, and to prevent the possibility that the firearms to be
sold at the execution sale may fall into the hands of lawless
and subversive elements, the sale at public auction should be
with the prior clearance and under supervision of the PC-INP
authorities.

G.R. No. 84497 November 6, 1989

Rule 39
ALFONSO ESCOVILLA, JR., CECILIO M. MERIS and CUISON ENGINEERING
and MACHINERY CO., INC., petitioners, vs. THE HON. COURT OF APPEALS,
SIBAGAT TIMBER CORPORATION and CONCHITA DEL ROSARIO,
respondents.
FACTS:

In Civil Case No. 13699, entitled Cuison Engineering and Machinery


Co., Inc. v. del Rosario and Sons Logging Enterprises, Inc.", a decision
dated March 24, 1981 was rendered by the then Court of First
Instance, Davao City awarding to Cuison Engineering and
Machinery Co., Inc. a certain sum of money and damages.

The Court of Appeals eventually affirmed the decision which


became final and executory on June 29, 1984.

Thereafter, Cuison Engineering and Machinery Co. sought the


execution of the subject decision and a corresponding writ of
execution was issued on December 27, 1984 by the RTC of Davao
City.

On January 26, 1985, petitioner Deputy Sheriff Alfonso Escovilla, Jr.


levied and seized one (1) unit electric welding machine.

A third party claim over said item was filed by Mariano Rana office
manager of Sibagat Timber Corporation, one of the private
respondents.

Because of such levy, an action for prohibition with preliminary


injunction and damages was filed on February 5, 1985 before the
RTC of Butuan City.

On February 7, 1985, petitioner Deputy Sheriff Cecilio M. Meris seized


and levied one (1) unit motor launch named "Pixie Boy No. 5" by virtue
of the writ of execution issued in Civil Case No. 13699.

On February 8, 1985, private respondent Conchita del Rosario, claiming


ownership over the motor launch filed a third party claim over the
subject property.

Consequently, a sheriff's indemnity bond filed for the third party claim
of Conchita del Rosario was approved by the Davao Court.

On the same date, February 8, 1985, petitioner Cecilio M. Meris


prepared the notice of sale setting the auction sale of the motor launch
on February 14, 1985.

On February 11, 1985, the action for prohibition with preliminary


injunction and damages was amended to include as additional
petitioner, Conchita del Rosario and as additional respondent,
Cecilio M. Meris.

As prayed for in the petition, a temporary restraining order was


issued directing the respondents to refrain from proceeding
with the public auction sale scheduled on February 14, 1985.

However on March 6, 1985, after the temporary restraining order had


lapsed and upon motion of Cuison Engineering & Machinery Co., the
RTC of Davao City issued an order in Civil Case No. 13699
directing Deputy Sheriff Escovilla to proceed with the auction
sale of the subject motor launch "Pixie Boy No. 5" with
authority to lawfully retrieve the same wherever it may be
stored or berthed.

Pursuant to such order, Escovilla took custody of the motor launch and
set the auction sale on March 27, 1985.

Despite the orders of the court directing the Sheriff to return the motor
launch and to desist from proceeding with the auction sale, the
auction sale was conducted upon motion of Cuison Engineering
and Machinery Co., Inc. and upon order of Judge Saludares in
Civil Case No. 13699.

On March 27, 1985, the subject motor launch was sold at public
auction by Deputy Sheriff Joseymour R. Robiza in lieu of Escovilla who
was then in Gen. Santos City, South Cotabato.

PETITIONERS CONTENTION: When the public auction sale was conducted on


March 27, 1985 and the corresponding sheriff's certification of sale was issued
in favor of the winning bidder, the petition for prohibition was already rendered
moot and academic because the acts sought to be enjoined in the prohibition
proceedings have already been performed.
ISSUE:
WHETHER OR NOT AN ACTION FOR PROHIBITION WILL STILL PROSPER AS A
REMEDY FOR ACTS ALREADY ACCOMPLISHED.

Rule 39
HELD:

YES. The petitioners' contention is untenable.

There is no dispute that the private respondents are indeed the actual
owners of the subject properties by virtue of a sale in their favor by Del
Rosario and Sons Logging Enterprises, Inc.
o

Such finding is based on evidence on record which this Court does


not find any reason to disturb.

Moreover, there is nothing in the petition nor in the petitioners'


memorandum to suggest that the properties sold in execution of
the judgment in Civil Case No. 13699 belonged to the judgmentdebtor in that case.

This petition merely attacks the procedure adopted by the


respondents.

In such a case, the point to be borne in mind is that the


power of the court in the execution of judgments extends
only over properties unquestionably belonging to the
judgment debtor.

As the Court stated in Bayer Philippines, Inc. v. Agana, (63 SCRA 355
[1975] ):
o

The levy by the sheriff of a property by virtue of a writ


of attachment may be considered as made under
authority of the court only when-the property levied
upon unquestionably belongs to the defendant.

If he attaches properties other than those of the defendant,


he acts beyond the limits of his authority.

Otherwise stated, the court issuing a writ of execution


is supposed to enforce its authority only over
properties of the judgment debtor, and should a third
party appear to claim the property levied upon by the
sheriff, the procedure laid down by the Rules is that
such claim should be the subject of a separate and
independent action.

This is precisely the very nature of the proceedings in the


action for prohibition with preliminary injunction filed by the
private respondents with the Regional Trial Court of Butuan
City which is sanctioned by Section 17, Rule 39 of the Rules of
Court.

As held in Rivera vs. Florendo (144 SCRA 643 [1986] ):


o

Another fundamental rule which appears to have been


violated in the case at bar is that no advantage may be
given to one to the prejudice of the other, a court
should not by means of a preliminary injunction
transfer the property in litigation from the possession
of one party to another where the legal title is in
dispute and the party having possession asserts
ownership thereto.

Similarly, the primary purpose of an injunction is to preserve


the status quo, that is the last actual peaceable uncontested
status which preceded the controversy.

In the instant case, the private respondents properly


instituted an action for prohibition with preliminary
injunction and damages which is a separate and
independent action to vindicate their claims over the
subject properties.

If at all the petitioners had any doubts as to the veracity of


the third-party claims, then the separate action instituted was
the proper forum to ventilate such protestations.

The action for prohibition was filed on February 5, 1985.

On February 18, 1985 the respondent Sheriffs admitted


having seized the disputed properties but assured the court
that they will not remove them from its jurisdiction nor sell or
dispose of the same.

From the start, the petitioners were cognizant of the


third-party claims filed with the sheriff and the
separate action instituted against them so they were
fully aware of their liabilities to these third-party
claimants who were not even parties to the case
sought to be executed.

Rule 39

power to grant the injunctive relief sought by


injunction, is applied in cases where no third-party
claimant is involved, in order to prevent one court from
nullifying the judgment or process of another court of
the same rank or category, a power which devolves
upon the proper appellate court.

The rule is clear. If a third party claim is filed, the sheriff is not
bound to proceed with the levy of the property unless he is
given by the judgment creditor an indemnity bond against the
claim.
o

The judgment creditor, by giving an indemnity bond, assumes


the direction and control of the sheriffs action; so far as it
might constitute a trespass and thus he becomes, to that
extent, the principal and the sheriff, his agent.

This makes him responsible for the continuance of the


wrongful possession and for the sale and conversion of the
goods and for all real damages which the owner might
sustain.

Thus, in this case, even if the auction sale has been


conducted and the sheriffs certificate of sale was
issued in favor of the winning bidder, the liability of
the judgment creditor and consequently, the purchaser
to the real owners of the properties levied and
executed is not extinguished.

The Court also take note of the trial court's finding that Sheriffs
Escovilla and Meris misled the Davao court as to the ownership of the
properties they had seized knowing quite well that the petitioners in
the prohibition case, were the actual owners of the property. This
brings us to the other point raised in this petition.

Corollary to the main issue raised is the argument that the Regional
Trial Court of Butuan City cannot restrain or interfere with the orders
issued by the Regional Trial Court of Davao City which is its coordinate
and co-equal authority on matters properly brought before it. This issue
has been clearly settled in the case of Traders Royal Bank v.
Intermediate Appellate Court, (133 SCRA 141 [1984] ) where the Court
held:
o

Generally, the rule that no court has the power to


interfere by injunction with the judgments or decrees
of a concurrent or coordinate jurisdiction having equal

The purpose of the rule is to avoid conflict of power between


different courts of coordinate jurisdiction and to bring about a
harmonious and smooth functioning of their proceedings.

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