[ A.M. No. OCA-IPI-97-353-P. February 21, 2000]

CARLOS FLORETA vs. ABDUWA K. IBNO

SECOND DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated FEB 21 2000.

A.M. No. OCA-IPI-97-353-P (Carlos Floreta vs. Abduwa K. Ibno, Sheriff IV, Regional Trial Court, Branch 2, Isabela, Basilan).

This is a complaint for grave abuse of authority and gross misconduct filed against Abduwa K. Ibno, Sheriff IV, Regional Trial Court, Branch 2, Isabela, Basilan. The complaint was filed by Carlos Floreta who was the respondent in Special Civil Action No. 212-100 for mandamus before the trial court.

It appears that Cristeta Dagatan, the petitioner in the mandamus case, bought a parcel of land which has an easement of right of way over the adjoining property of complaint. However, as complainant blocked the passage to Dagatan's land, the latter filed a complaint for mandamus in the trial court to compel complainant to recognize the easement of right of way.

In its decision, dated October 9, 1995, the trial court rendered judgment in favor of Dagatan. Its decision was subsequently affirmed by the Court of Appeals. As the decision had become final, a writ of execution was issued by the trial court on June 11, 1997. On July 31, 1997, complainant filed a Motion to Quash Writ of Execution alleging that he had voluntarily complied with the decision of the trial court. However, on August 6, 1997, respondent enforced the decision by causing to be cut a number of trees in the property of complainant.

Complainant claims that respondent committed grave abuse of authority and gross misconduct in enforcing the decision during the pendency of his Motion to Quash Writ of Execution and in demanding from him P3,621.00 to pay to pay for expenses in enforcing the writ.

The Office of the Court Administrator (OCA), to which this case was referred, recommended the dismissal of the complaint against respondent on the ground that, in enforcing the writ of execution, respondent simply performed a ministerial duty and that he made a liquidation of the amount he had received from complainant.

The Court finds the recommendation of the OCA to be well taken.

The duty of a sheriff to enforce a writ of execution is ministerial. Pursuant to Rule 39, �11 of the 1964 Rules of Court, a sheriff, unless restrained by the court, has to make a return of the writ not less than 10 nor more than 60 days after receipt of the same. As respondent received the writ on June 13, 1997, the last day for making a return was on August 12, 1997. Since the trial court had issued no contrary order, respondent properly enforced the writ on August 6, 1997, six days before the he was required to make a return.

With respect to the claim that respondent demanded P3,621.00 from complainant for personal gain, the record shows that the amount was spent in enforcing the writ of execution, and that respondent made a liquidation thereof by submitting receipts for the payment of wages of two laborers, food, photographs, and sheriff's fee. The allegation that respondent demanded money from complainant for his personal gain is thus without basis.

WHEREFORE, the complaint is DISMISSED for lack of merit.

Very truly yours,

(Sgd.) TOMASITA M. DRIS

Clerk of Court


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