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A.M. OCA IPI No. 05-2183-P. April 19, 2006]
HERALD ADALLA v. DARWIN B. BONA, SHERIFF IV, REGIONAL TRIAL COURT, BRANCH 70, BURGOS, PANGASINAN
First Division
Sirs/Mesdames:
Quoted hereunder, for your information, is a resolution of the First Division of this Court dated APR. 19, 2006
A.M. OCA IPI No. 05-2183-P (Herald Adalla v. em>Darwin B. Bona, Sheriff IV, Regional Trial Court, Branch 70, em>Burgos , Pangasinan )
Acting on the Report of the Office of the Court Administrator (OCA) dated November 21, 2005, to wit:
EVALUATION : After a careful perusal of the records of this case, this Office finds for the respondent.
The case stemmed from the implementation of a writ of execution by the respondent against the defendant Jessie Bobis in Civil Case No. 1057-D entitled "Virgilio B. Cabarlo, represented by Josefina Cabarlo Vda. De Balois v. Jessie C. Bobis," for collection of Sum of Money with Damages.
Records show that the respondent levied upon a motor boat named "Jerrick." The complainant assailed the levy contending that he owned the motor boat and had merely entrusted it to the judgment obligor, Jessie Bobis, his father-in-law.
Section 9 (b), Rule 39 of the Revised Rules of Court provides that:
"x x x. If the judgment obligor cannot pay all or part of the obligation in cash, certified bank check or other mode of payment acceptable to the judgment obligee, the officer shall levy upon the properties of the judgment obligor of every kind and nature whatsoever which may be disposed of for value and not otherwise exempt from execution giving the latter the option to immediately choose which property or part thereof may be levied upon, sufficient to satisfy [the] judgment. If the judgment obligor does not exercise the option, the office shall first levy on the personal properties, if any, and then on the real properties if the personal properties are insufficient to answer for the judgment. x x x"
The respondent observed and complied with this rule. Not finding the defendant obligor, Jessie C. Bobis, when he tried to serve the writ of execution on 17 December 2002, the respondent served the writ on the defendant's wife, Ailyne Bobis, and demanded [that] the defendant x x x settle his obligation under the writ as soon as possible.
The respondent implemented the writ of execution by levying upon the motor boat "Jerrick" on 29 January 2003. Notice of Sale of the boat was received by the defendant Jessie C. Bobis on 19 March 2003. It was only on 26 March 2003 that the subject motor boat was sold at public auction. Between 29 January 2003 and 26 March 2003, complainant Herald Adalla had a remedy to abort the sale of the motor boat under Section 16, Rule 39 of the Revised Rules of Court which provides:
"Section 16. Proceedings where property claimed by third person. - If the property levied on is claimed by any person other than the judgment obligor or his agent, and such person makes an affidavit of his title thereto or right to the possession thereof, stating the grounds of such right or title, and serves the same upon the judgment obligee, the officer shall not be bound to keep the property, unless such judgment obligee, on demand by x x x the officer, files a bond approved by the court to indemnify the third-party claimant in a sum not less than the value of the property levied on." x x x
By failing to resort to the remedy allowed under the Rules by serving upon the judgment obligee (the plaintiff in the civil case), a third party claim in the form of an affidavit of his title to the motor boat or his right to its possession, the complainant cannot seek recourse against the respondent through an administrative complaint.
RECOMMENDATION : Respectfully submitted for the consideration of the Honorable Court is our recommendation that the instant administrative complaint be DISMISSED for lack of merit. [1] cralaw
The Court agrees with the foregoing recommendation.
It must be stressed that when a writ is placed in the hands of a sheriff, it is his duty, in the absence of any instructions to the contrary, to proceed with reasonable celerity and promptness to execute it according to its mandate. Thus, a sheriff's duty in the execution of a writ is purely ministerial and the order of the court must be executed strictly to the letter. [2] cralaw
In Evangelista v. Penserga , [3] cralaw the Court explained the remedies available to a third person whose property was seized by a sheriff to answer for the obligation of a judgment debtor, thus:
The third party owner may invoke the supervisory power of the court which authorized such execution. Upon due application by the third person and after summary hearing, the court may command that the property be released from the mistaken levy and restored to the rightful owner or possessor (Sy v. Discaya , 181 SCRA 282 [1990]). In this particular instance, the said court can determine whether the sheriff has acted rightly or wrongly in the performance of his duties in the execution of judgment. The court cannot pass upon the question of title to the property with the character of finality.
Another remedy which the third person may avail of is the remedy known as terceria as provided in Section 17 [now Section 16], Rule 39 of the Rules of Court. This is done by serving on the officer making the levy an affidavit of his title and a copy thereof upon the judgment creditor. According to the said rule, the officer shall not be bound to keep the property, unless such judgment creditor or his agent, on demand of the officer, indemnifies the officer against such claim by a bond in a sum not greater than the value of the property levied on. An action for damages may be later on brought against the sheriff.
The above mentioned remedies are without prejudice to any proper action that a third-party claimant may deem suitable, to vindicate his claim to the property. This proper action is distinct and separate from that in which the judgment is being enforced (Ong v. Tating, 149 SCRA 265 [1987]). Hence, a person other than the judgment debtor who claims ownership or right over levied properties is not precluded from taking other legal remedies to prosecute his claim (Consolidated Bank and Trust Corp. v. Court of Appeals, 193 SCRA 158 [1991]). [4] cralaw
As pointed out by the OCA, the complainant in this case did not avail of any of these remedies, and instead resorted to the filing of an administrative complaint. In the absence of cogent proof, bare allegations of misconduct cannot prevail over the presumption of regularity in the performance of official functions. [5] cralaw Indeed, while it is the Court's duty to investigate and determine the truth behind every matter in complaints against court personnel, it is also our duty to see to it that they are protected and exonerated from baseless administrative charges. The Court will not shirk from its responsibility of imposing discipline upon its personnel, but neither will it hesitate to shield them from unfounded suits that only serve to disrupt rather than promote the orderly administration of justice. [6] cralaw
WHEREFORE, the Court resolves to DISMISS the charges against Darwin B. Bona for lack of merit.
(Sgd.) ENRIQUETA ESGUERRA-VIDAL
Clerk of Court
First Division
Endnotes:
[1] cralaw Rollo , pp. 21-23.
[2] cralaw Garcia v. Yared , 447 Phil. 444, 455-456 (2003).
[3] cralaw 312 Phil. 806 (1995).
[4] cralaw Id. at 812-813.
[5] cralaw Sayson v. Luna, A.M. No. P-04-1829, July 7, 2004, 433 SCRA 502, 505.
[6] cralaw Dr. Cruz v. Judge Iturralde , 450 Phil. 77, 88 (2003), citing Sarmiento v. Salamat , 416 Phil. 684, 694-695 (2001).
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