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THIRD DIVISION

[A.M. No. P-97-1249. July 11, 1997]

PACITA SY TORRES, Complainant, vs. FROILAN S. CABLING, Deputy Sheriff, RTC, Malabon, Metro Manila, Respondent.

D E C I S I O N

DAVIDE, JR., J.:

In a complaint filed on 30 March 1995 with the Office of the Ombudsman and later referred to this Court for appropriate action, the complainant, who was the defendant in Civil Case No. 1769-MN of Branch 170 of the Regional Trial Court (RTC) of Malabon, Metro Manila, charged the respondent with abuse of authority and grave abuse of discretion in the implementation of the writ for the execution of the balance of P6,000 of her judgment debt. She claimed that the respondent carted away over her vigorous protest and objection the following: (a) a sala set worth P7,000; (b) a Mitsui karaoke worth P3,500; (c) a G.E. refrigerator worth P7,000; and (d) a Sony television worth P1,500. The sala set or the refrigerator would have been sufficient to answer for the money judgment, but the respondent insisted on taking all the aforementioned properties. She even offered to pay in cash her judgment obligation. Besides, the levied properties belonged to her son Wilfredo Sy and her sisters Diosdada Sy de Guzman and Victoria Sy Esquivel, which were merely kept in her house for the use of her mother. Despite the third party claims, the respondent sold all these properties, whose aggregate value is P19,000, for only P5,750 at a public auction on 21 March 1995 without giving her any copy of the plaintiffs indemnity bond as required by the Rules of Court.

In his comment dated 22 September 1995, the respondent admitted having levied the aforementioned properties pursuant to a Writ of Execution issued on 11 November 1994. He, however, claimed that the complainant neither objected to the levy nor offered to pay the judgment debt in cash. After the levy of the subject properties, he issued and left a Notice of Levy and Sheriffs Sale to the party concerned. Upon receiving an Affidavit of Third Party Claim on 13 March 1995, he sent a Notice of Third Party Claim to plaintiff Apolonio Coronel directing him to file an indemnity bond if he wanted to stay the levy on the properties. As the indemnity bond was filed by the plaintiff on 17 March 1995 he proceeded with the sheriffs sale scheduled on 21 March 1995 and then sold the properties at public auction to the highest bidder. It was not his obligation to sell the subject properties at a price acceptable to the defendant or the third party claimants. Respondent further declared that the third party claimants had already filed a claim for damages against him and Apolonio Coronel, docketed as Civil Case No. 4514 at MeTC, Branch 71, Pasig City.

In her Reply to Comment dated 20 November 1995, the complainant stressed that it was irregular for respondent sheriff to accept the bond of P12,000 considering that the properties levied upon were worth more or less P19,000. Section 17, Rule 39 of the Rules of Court provides that the sheriff should have required the judgment creditor to put up a bond in the sum not greater than the value of the property levied upon which is P19,000. It was also irregular and corrupt for the respondent to sell the levied properties at public auction without giving notices of the date of the auction sale to the third party claimants as required by the Rules. He thereby disregarded claimants right to participate, if not to question, the proceedings especially as to the price of the properties. The respondent unjustifiably refused to follow the requirement under Section 7, Rule 60 of the Rules of Court that in case of disagreement as to the value of property levied, he should submit the same to the court that issued the order for decision. The civil action filed against him will not exonerate him from his liability for the aforementioned irregular and corrupt practices.

On 20 May 1996, we referred this case to Hon. Benjamin T. Antonio, the Presiding Judge of Branch 170 of the RTC of Malabon, for investigation, report, and recommendation. However, Judge Antonio inhibited himself to avoid suspicion of partiality considering that the respondent is a member of his staff. Thus, we reassigned the case to the Vice-Executive Judge of the said court, Judge Amanda Valera-Cabigao.

In the affidavit she submitted during the investigation, the complainant merely adopted the testimonial and documentary evidence offered by her sisters in Civil Case No. 4514, as well as the latters memorandum submitted in said case.

Upon the other hand, in his affidavit which he submitted during the investigation, the respondent reiterated that there is no truth in complainants claim that she had objected to the levy and offered to pay in cash her judgment obligation. He further alleged that the third party claims of complainants son and sisters were highly suspicious.

On 30 October 1996, Judge Cabigao submitted her Investigation Report, Findings, and Recommendation. She found the respondent to be guilty of misconduct for acting with undue haste in levying the personal properties and selling them at a public auction without giving the judgment debtor and the third party claimants a chance to be heard. She then recommended that the respondent be meted out the penalty of suspension for one month and one day as per Memorandum Circular No. 30 series of 1989 and Resolution No. 89-506 dated 20 July 1989 of the Civil Service Commission.

On 4 December 1996, we referred the report of Judge Cabigao to the Office of the Court Administrator (OCA) for evaluation, report, and recommendation.

In the Memorandum of 12 March 1997, the OCA made the following findings and conclusion:

A close review of the records reveal that as correctly claimed by complainant, respondent failed to prove that he complied with Section 18 (b and d), Rule 39 of the Rules of Court which provides that before the sale of personal property in execution, notice thereof must be given by posting a similar notice in three public places in the municipality or city where the sale is to take place for not less than five (5) nor more than ten (10) days. Respondent likewise failed to prove that written notice of sale was given to judgment debtor as required under Section 18(d) Rule 39 of the Rules of Court. Moreover, respondent also violated Section 23, Rule 39 of the Rules of Court in not requiring the judgment creditor to pay the winning bid in cash. This he categorically admitted in his Comment as well as in the Certificate of Sale dated 22 March 1995 (Rollo, p. 270).

Respondent cannot escape administrative sanctions for his acts. The sale was precipitately executed by him for he did not bring to the attention of the trial court the disagreement as to the value of the properties levied and allegedly owned by third parties.

It then recommended that respondent be SUSPENDED for one (1) month without pay for abuse of authority and abuse of discretion.

As we see it, the liability of the respondent lies not in immediately levying on the personal property found in complainants residence and in not allowing her to pay in cash, but in the proceedings relative to the sale of the levied personal property. Section 15 of Rule 39 of the Rules of Court allows immediate levy on execution of personal property. A sheriff is not required to give the judgment debtor some time to raise cash. If time be given, the property may be placed in danger of being lost or absconded. In the instant case, we doubt that the complainant was ready with cold cash to pay the judgment debt.

However, we agree with that portion of the findings and conclusion of the OCA that the respondent did not comply with paragraphs (b) and (d) of Section 18 of Rule 39, which pertinently provide as follows:

SEC. 18. Notice of sale of property on execution. -- Before the sale of property on execution, notice thereof must be given as follows:

x x x

(b) In case of other personal property, by posting a similar notice in three public places in the municipality or city where the sale is to take place, for not less than five (5) nor more than ten (10) days;

x x x

(d) In all cases, written notice of the sale shall be given to the judgment debtor. (As amended by SC Circular No. 8, prom : May 15, 1987).

These requirements are emphasized under Section D (Duties and Functions of the Sheriff) paragraph f, subsection 2 of Chapter VIII of the Manual for Clerks of Court.

The posting of the notice is to let the public know of the sale to the end that the best price or a better bid may be made possible to minimize prejudice to the judgment debtor. The notice to the judgment debtor is intended to give him the opportunity to prevent the sale by paying the judgment debt sought to be enforced and the costs which may have been incurred pursuant to Section 20 of Rule 39. Or, at the very least, it affords him a chance to be present at the auction sale and help insure a regular bidding or prevent the rigging of the process. Section 19 of Rule 39 imposing a penalty for selling without notice or for removing or defacing the notice underscores the importance of the notice of sale of levied properties. It reads:

SEC. 19. Penalty for selling without notice, or removing or defacing notice. -- An officer selling without the notice prescribed by the last preceding section shall forfeit five hundred pesos (P500) to any party injured thereby, in addition to his actual damages, both to be recovered in a single proper action; and a person willfully removing or defacing the notice posted, if done before the sale, or before the satisfaction of the judgment if it be satisfied before the sale, shall forfeit five hundred pesos (P500) to any person injured by reason thereof, to be recovered in any proper action.

We also agree with the finding of the OCA that the respondent likewise violated Section 23 of Rule 39, which provides as follows:

SEC. 23. Judgment creditor as purchaser. -- When the purchaser is the judgment creditor, and no third-party claim has been filed, he need not pay the amount of the bid if it does not exceed the amount of his judgment. If it does, he shall pay only the excess.

Since in this case there was a third-party claim, the respondent should have demanded from the judgment creditor, who was the highest bidder for the sala set, Karaoke, and refrigerator, payment in cash of the amount of his bid instead of merely crediting the amount to the partial satisfaction of the judgment debt. (Matias vs. The Provincial Sheriff of Nueva Ecija, 74 Phil. 326, 328 [1943]; Filipinas Colleges, Inc. v. Timbang, 106 Phil. 247, 255 [1959].

The failure of the respondent to comply with Section 18 (b and d) of Rule 39 of the Rules of Court could have been a contributing factor for the sale of the properties for only P5,750 when their aggregate value, as claimed by the complainant (which the respondent did not deny) was P19,000. Such non-compliance, coupled with the violation of Section 23 of Rule 39 of the Rules of Court, amounted to abuse of authority. If it were not deliberate, the respondent may be liable for gross neglect of duty. We do not however share the view of the OCA that respondents actuation also constituted abuse of discretion. Sections 18 and 23 of Rule 39 do not vest discretionary power on sheriffs.

We need not rule on the possible irregularities committed in respect of the third-party claim, since the third-party claimants did not join the complainant in this administrative case but, instead, filed a complaint for damages against the respondent presumably pursuant to Section 17 of Rule 39 of the Rules of Court.

Considering the foregoing, the penalty of suspension from office without pay for one month recommended by the OCA is appropriate.

WHEREFORE, for abuse of authority respondent FROILAN S. CABLING is hereby SUSPENDED from office for a period of one month without pay effective upon receipt of a copy of this decision, and WARNED that the commission in the future of the same or similar act shall be dealt with more severely.

The Office of the Court Administrator should forthwith cause the service of this decision on the respondent. The Presiding Judge of Branch 170 of the Regional Trial Court stationed in Malabon, Metro Manila, shall thereafter report to this Court the completion of the service of such suspension.

Let a copy of this decision be attached to the personal record of the respondent with the Office of the Court Administrator.

SO ORDERED.

Narvasa, C.J., (Chairman), Melo, Francisco, and Panganiban, JJ., concur.




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