represented by MAYOR GEMILIANO C. LOPEZ,
G. R. No. 100626
November 29, 1991
COURT OF APPEALS
E C I S I O N
and THE ARMY & NAVY CLUB, INC.,
Court of Appeals is faulted in this
action for certiorari for having set aside the Order of
dated June 10, 1991, and the Writ of Execution issued by Judge Wilfredo
Reyes of the Regional Trial Court of Manila in Civil Case No. 9156335.
This was a
complaint for unlawful detainer filed
by the City of Manila against private respondent Army and Navy Club for
violation of the lease agreement between them over a parcel of land on
Roxas Boulevard in the said city. A summary judgment in favor of the
was rendered by the Metropolitan Trial Court of Manila
and seasonably elevated to the Regional Trial Court. To stay its
ANC filed a supersedeas bond in the amount of P2,700,000.00 which was
by Judge Reyes.
He subsequently affirmed the appealed judgment on June 7, 1991.
On June 10, 1991,
the petitioner filed an ex-parte
motion for execution on the ground that the judgment had already become
final and executory under R. A. 6031. Judge Reyes granted the motion
same day 4 and at 4:00 o'clock that afternoon the writ of execution was
served on ANC. ANC moved to quash the writ on June 11, 1991, but
hours later, sensing that the motion could not be acted upon, filed a
for certiorari and prohibition with the Court of Appeals.cralaw
On July 3, 1991,
that court issued the questioned
prompting the filing of the present petition for certiorari. The
assails the action of the respondent court and contends that decisions
of the regional trial court in cases exclusively cognizable by inferior
courts and are final and executory under R. A. 6031. Thus:
Sec. 1. In cases falling under the
original jurisdiction of municipal and city courts which are appealed
the courts of first instance, the decision of the latter shall be
final: Provided, That the findings of facts contained in said
are supported by substantial evidence as basis thereof, and the
are not clearly against the law and jurisprudence; in cases falling
the concurrent jurisdictions of the municipal and city courts with the
courts of first instance, the appeal shall be made directly to the
of Appeals whose decision shall be final: Provided, however,
the Supreme Court in its direction may, in any case involving a
of law, upon petition of the party aggrieved by the decision and under
rules and conditions that it may prescribe, require by certiorari that
the case be certified to it for review and determination, as if the
had been brought before it on appeal. [Emphasis supplied].
argue, on the other hand, that under
B. P. 129, decisions of the regional trial court in cases originating
and within the exclusive jurisdiction of the metropolitan or municipal
trial courts are not final but subject to appeal in a petition for
to the Court of Appeals. Such decisions cannot be executed where the
of time for the defendant to perfect his appeal has not yet expired.
Sec. 22. [B. P. 129]. Appellate
jurisdiction. - Regional Trial Courts shall exercise appellate
over all cases decided by Metropolitan Trial Courts, Municipal Trial
and Municipal Circuit Trial Courts in their respective territorial
Such cases shall be decided on the basis of the entire record of the
had in the court of origin and such memoranda and/or briefs as may be
by the parties or required by the Regional Trial Courts. The decision
the RTC in such cases shall be appealable by petition for review to the
Intermediate Appellate Court which may give it due course only when the
petition shows prima facie that the lower court has committed an error
of fact or law that will warrant a reversal or modifications of the
or judgment sought to be reviewed. [Emphasis supplied].
It is useful,
at this point, to review the distinction
between a "final" judgment and one which has become "final and
In PLDT Employees
Union v. PLDT Free Telephone
the Court observed:
An order or judgment is deemed final when
finally disposes of the pending action so that nothing more can be done
with it in the trial court. In other words, a final order is that which
gives an end to the litigation when the order or judgment does not
of the case completely but leaves something to be done upon the merits,
it is merely interlocutory.
The case of
Antonio v. Samonte,
elaborated on this matter, thus:
A final order of judgment finally
adjudicates, or determines the rights, or some right or rights of the
either on the entire controversy or on some definite and separate
thereof, and concludes them until it is reversed or set aside.
no issue is left for future consideration, except the fact of
or non-compliance with the terms of the judgment or order, such
or order is final and appealable.
By contrast, in
Investments, Inc. v. Court of Appeals,
Now, a "final judgment" in the sense just
becomes final "upon expiration of the period to appeal therefrom if no
appeal has been duly perfected" or, an appeal therefrom having been
the judgment of the appellate tribunal in turn becomes final and the
of the case are returned to the Court of origin. The "final" judgment
then correctly categorized as a "final and executory judgment" in
to which, as the law explicitly provides, "execution shall issue as a
of right." It bears stressing that only a final judgment or order, i.e.,
"a judgment or order that finally dispose of the action of proceeding"
can become final and executory.
becomes "final and executory" by operation
of law. Finality of judgment becomes a fact upon the lapse of the
period to appeal if no appeal is perfected. In such a situation, the
party is entitled to a writ of execution, and issuance thereof is a
duty of the court.
Both R. A. 6031 and B. P. 129 provide that
of the regional trial court in its appellate capacity may be elevated
the Court of Appeals in a petition for review. In effect, both laws
that such judgments are "final" in the sense that they finally dispose
of, adjudicate, or determine the rights of the parties in the case. But
such judgments are not yet "final and executory" pending the expiration
of the reglementary period for appeal. During that period, execution of
the judgment cannot yet be demanded by the winning party as a matter of
In the present
case, the private respondent had
up to June 25, 1991, to appeal the decision of the regional trial
The motion for execution was filed by the petitioner on June 10, 1991,
before the expiration of the said reglementary period. As the decision
had not yet become final and executory on that date, the motion was
and should therefore not have been granted. Contrary to the
contention, what the trial court authorized was an execution pending
While it is true
that execution pending appeal
is allowed under Rule 39, Sec. 2, of the Rules of Court, this provision
must be strictly construed, being an exception to the general rule. The
reason allowing this kind of execution must be of such urgency as to
the injury or damage of the losing party should it secure a reversal of
the judgment on appeal. Absent any such justification, the order of
must be struck down as flawed with grave abuse of discretion.
We see no such
justification in the case before
It is worth
remarking that as the case was not
tried under the Rule on Summary Procedure, the writ of execution did
even fall under the following Section 18 thereof:
d) Sec. 18. Appeal.- The
or final order, including that rendered under Section 5 hereof, shall
appealable to the appropriate regional trial court which shall decide
same on the basis of the records, in accordance with Section 22 of
Pambansa Blg. 129. The decision of the regional trial court in such
cases shall be immediately executory.
To stay the
execution, a supersedeas bond is necessary
except where one has already been filed in the lower court. This bond
to be effective if the judgment of the regional trial court is
But during the pendency of the appeal, the defendant-appellant must
to depositing with the appellate court the payments required in the
judgment. The rentals accruing during the pendency of the appeal must
deposited on or before the date stipulated, if there is one, and in the
absence thereof, on or before the dates provided for in Sec. 8 of Rule
70. Failure to make such deposits or payments is ground for execution
Since the private
respondent in the case at bar
has filed a supersedeas bond and the stipulated rental is yearly,
execution may issue only when it fails to make the yearly deposit of
rental, and after notice and hearing. Such default has not yet been
The Court notes
with disapproval the arbitrary
manner in which Sheriff Dominador Cacpal and Deputy Sheriff Reynaldo
acted in delivering possession of the leased premises to the
The evidence shows that they enforced the writ of execution on the same
date they received it, forcibly taking out movables from the said
including chandeliers, furniture and furnishings, music organs, stereo
components, lighting fixtures and computers. They turned off the water,
cut off the electricity and disconnected the telephones. They also
prevented ANC members from entering the premises to get their personal
Cordero are hereby sternly reprimanded
and warned that a repetition of similar arbitrariness will be dealt
more severely. Their conduct was a clear violation of the requirement
Under the Rules of Court the immediate
of a writ of ejectment execution is carried out by giving the defendant
notice of such writ, and making a demand that defendants comply
within a reasonable period, normally from three  to five  days,
it is only after such period that the sheriff enforces the writ by the
bodily removal of the defendant and his personal belonging.
On the issue of
the propriety of a special civil
action for certiorari to assail an order of execution pending appeal,
Court has held that:
Although Sec. 1, Rule 66 of the Rules of
provides that the special civil action of certiorari may only be
when "there is no appeal, nor any plain, speedy and adequate remedy in
the (ordinary) course of law" this rule is not without exception. The
of the ordinary course of appeal does not constitute sufficient ground
to prevent a party from making use of the extraordinary remedy of
where the appeal is not an adequate remedy or equally beneficial,
and sufficient. It is the inadequacy not the mere absence of all
other legal remedies and the danger of failure of justice without merit
that usually determines the propriety of certiorari.
While appeal is
normally employed to question an
order or writ which varies the terms of the decision being executed, it
is nevertheless not the sole and exclusive remedy. The special civil
of certiorari and prohibition under Rule 65 was available to the
respondent on the allegation that the regional trial court, in issuing
the writ of execution, committed grave abuse of discretion and acted
its jurisdiction and that the ordinary remedy of appeal was inadequate.
The last question
to be resolved is, assuming
that the decision of the regional trial court had already become "final
and executory," could the said court order its execution?
The rule is that
if the judgment of the metropolitan
trial court is appealed to the regional trial court and the decision of
the latter is itself elevated to the Court of Appeals, whose decision
became final, the case should be remanded through the regional trial
to the metropolitan trial court for execution.
The only exception is the execution pending appeal, which can be issued
by the regional trial court under Sec. 8 of Rule 70 or the Court of
or the Supreme Court under Sec. 10 of the same Rule.cralaw
observed, the petitioner has shown
no weighty justification for the application of the exception. Hence,
respondent court committed no error in reversing the Regional Trial
of Manila and annulling the writ of execution issued by it on June 10,
1991, pending appeal of its decision.cralaw
petition is dismissed and the
challenged decision of the Court of Appeals is affirmed in toto.
Melencio-Herrera, Gutierrez, Jr., Paras,
Feliciano, Padilla, Bidin, Griño-Aquino, Medialdea, Regalado,
Jr. and Romero, JJ., concur.
is on leave.
Rollo, pp. 25-32.
lbid., p. 51.
Id., pp. 35-46.
Id., pp. 140-141.
Id., pp. 49-62. Kapunan, J., Ponente; Chua & Victor, JJ.,
97 Phil. 424, per Mr. Justice Cesar Bengzon.
1 SCRA 1072; per Mr. Justice J.B.L. Reyes.
147 SCRA 334; per Mr. Justice Andres R. Narvasa.
Valencia v. Court of Appeals, 184 SCRA 561.
De Laureano v. Adil, 72 SCRA 148.
Rollo, p. 26.
Reformina v. Adriano, 189 SCRA 723.
Jaca v. Davao Lumber Co., 113 SCRA 107.
Regalado, Remedial Law Compendium, Vol. 1, p. 276.