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[A.M. OCA IPI No. 03-1728-P.
ANDO vs. BANATICLA
SECOND DIVISION
Gentlemen:
Quoted hereunder, for your information, is a resolution of this
Court dated
A.M. OCA IPI No. 03-1728-P (Juliet Ando and Quirino Yap vs. Noel C. Banaticla, Sheriff III.)
For resolution is a verified complaint dated August 1, 2003 of Julieta Ando and Quirino Yap charging respondent Noel C. Banaticla, Sheriff III with Gross Misconduct relative to Civil Case No. 073337-CV entitled "La Vilma Realty Co., Inc., vs. Quirino Yap and Julieta Ando" for ejectment decided by the Metropolitan Trial Court of Manila, Branch 7 (MTC).
In their complaint, complainants averred that a decision was rendered by the MTC ordering them to vacate the premises; that the administrator of the subject premises filed an urgent motion dated May 26, 2003 for the stay or suspension of the court's decision; that a writ of execution was issued dated July 8, 2003; that the said administrator likewise filed with the Regional Trial Court of Manila, Branch 8 (RTC) an action for quieting, annulment and/or cancellation of TCT No. 47092 on which land the subject premises stands against the plaintiff in the aforesaid ejectment case; that despite the pendency of this action, respondent issued a Notice to Vacate dated July 22, 2003 - within 5 days from said date; that when respondent sheriff implemented the writ of execution, he failed to follow the rules by haphazardly removing the valuable hardware and goods and placing them in sacks by the streets and sidewalks resulting to losses and injury; and that respondent sheriff prematurely scheduled the auction sale.
In his Comment, respondent Sheriff alleged that a Notice to Vacate was served on the complainants as required by the Rules before the writ of execution was implemented; that the goods were placed in sacks; that sacks containing valuable items were left inside the subject premises for safekeeping as they were part of the levied personal properties; that only sacks containing bolts and nuts were placed outside the subject premises specifically in the sidewalk because the subject premises is a along the street but were manned by complainants workers; that the auction dated was set on August 8, 2003 or ten days after the Notice of Levy of July 29, 2003 was issued and that said auction was deferred pursuant to the status quo Order issued by the RTC relative to the case for quieting, annulment and/or cancellation of title.
There is no showing that complainants impugned or refuted the veracity of respondent sheriff's aforesaid allegations.
From the foregoing, it is clear that respondent Sheriff merely did his job.The urgent motion for the stay or suspension of the MTC's decision appears to have been denied by the MTC for said court issued the subject writ of execution.The mere filing of a case before the RTC does not bar respondent sheriff from implementing the writ of execution.No restraining order was issued.The duty imposed upon the sheriff to execute a writ of execution is ministerial [1] cralaw and unless restrained by a court order to the contrary they should see to it that the execution of judgments is not unduly delayed. [2] cralaw
WHEREFORE, the instant complaint is DISMISSED for lack of merit.
SO ORDERED.
Very truly yours,
(Sgd.) LUDICHI YASAY-NUNAG
Clerk of Court
Endnotes:
[1] cralaw Portes vs. Tepace, 267 185, 191.
[2] cralaw Marisga-Magbanua vs. Villamar V, 305 SCRA 132, 137.
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