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FIRST DIVISION

A.M. No. P-1687 February 28, 1979

ANGEL MANALILI, SIXTO MORALES, ORLANDO MONTEMAYOR, GLORTIA SALALILA, MARCELO BAUTISTA, ERNESTO SURLA, PAULA MANALILI, MARIO CALARA and SERAFIA VDA. DELA CRUZ, complainants, vs. DANILO VIESCA and RENATO ROBLES, respondents. Re: Acting Municipal Judge Vivencio A. Bantugan.

R E S O L U T I O Nchanrobles virtual law library

FERNANDEZ, J.:

This incident arose from an administrative complaint filed against Deputy Sheriffs Danilo M. Viesca and Renato E. Robles of the Province of Bataan for alleged irregularity committed while executing a demolition order in Civil Case No. 179 of the Municipal Court of Dinalupihan, Bataan on July 12, 1977. ¹ chanrobles virtual law library

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After both Deputy Sheriffs, Renato E. Robles and Danilo M. Viesca, had filed their respective comments, this Court issued a Resolution dated October 23, 1978 dismissing the administrative complaint but requiring Acting Municipal Judge Vivencio A. Bantugan of the Municipal Court of Dinalupihan to explain within ten (10) days "why no administrative action should be taken against him for an order to execute a judgment promulgated more than 10 years old on a mere ex-parte motion in violation of Section 6, Rule 39 of the Rule of court." chanrobles virtual law library

In this explanation dated November 8, 1978, Acting Judge Vivencio A. Bantungan avers that the Order of Demolition in question was the subject of a certiorari and prohibition case filed with this Court docketed as G. R. No. L-46452, entitled "Marcela R. Diwa, et al., vs. Hon. Vivencio Bantugan, et al.," that the petition in G. R. No. L-49452 was dismissed by the Second Division of this Court in a minute resolution dated October 10, 1977 for lack of merit that the judgment rendered on October 10, 1966 in Civil Case No. 179 for illegal detainer had already been executed within the five year period from its entry so that Section 6, Rule 39 of the Revised Rules Of Court does not apply; and that the respondent judge issued the questioned order not only in the exercise of jurisdiction, but also in the exercise of sound judicial discretion"; and that it is this "inescapable and sworn duty to resolve once and for all the said motion for demolition. ² chanrobles virtual law library

It appears from the Order of Demolition that the Plaintiff's counsel in Civil Case No. 179 filed on January 12, 1977 an "Urgent Ex-Parte Motion for Immediate Issuance of an order of Demolition". However, although the motion was urgent and ex-parte, the respondent judge took it upon himself to conduct a full hearing upon proper notice to the parties and their counsel on January 21, 1977. The order mentioned the receipt of a telegraphic message from the office of the President signed by Technical Assistant for Legal Affairs, M. V. Icasiano requesting deferment of the resolution on the motion until such time as the protest lodged by defendants in Civil Case No. 179 against the prevailing party-plaintiff over the grant of the land in question shall have been resolved by said Office.chanroblesvirtualawlibrary chanrobles virtual law library

The protest in question was finally resolved by the dismissal of the appeal interposed by defendants for lack of merit. The Administrative order dismissing the appeal of the defendants was signed by Executive Assistant Ronaldo Zamora and was filed before the respondent's court on April 22, 1977. There was also filed on May 6, 1977 with the municipal court a certification from the Team Leader of the Department of Agrarian Reform stationed at Dinalupihan, Bataan, confirming said final adjudication of the protest in favor of the prevailing-plaintiff in Civil Case No. 179.chanroblesvirtualawlibrary chanrobles virtual law library

All the foregoing facts were made known to the complainants and their counsel during the hearing on June 3, 1977.chanroblesvirtualawlibrary chanrobles virtual law library

It is clear from the record that the Order of Demolition was not issued upon a mere ex-parte motion. Said order was issued only after consideration of the facts and circumstances brought out at the hearing. The judgment rendered in the detainer case was already executed within the period of five (5) years from the entry of judgment as shown by the sheriff's return filed before the Municipal Court of Dinalupihan, Bataan, on November 7, 1966.chanroblesvirtualawlibrary chanrobles virtual law library

In Albetz Investments, Inc. vs. Court of Appeals, et al., ³this Court said:

There is no question that the Municipal Court had full authority to order the demolition of the Calma's house by the Sheriff in order to give effect to its judgment in the unlawful detainer case. It is not enough for the Sheriff, in the enforcement of a judgment for delivery or restitution of property, to direct the defeated party to make such delivery or restitution. It is the duty of the Sheriff to oust the defeated party from the property and make the restitution by placing the winning party in possession of said property. If to accomplish this he has to remove an improvement constructed by the defeated party, he cannot effect such removal without special order of the court, which order can only be issued upon motion of the prevailing party with notice and after hearing, and upon the defeated party's failure to remove the improvement within the reasonable time given to him by the court. (Guevara vs. Laico et al. 64 Phil 144).chanroblesvirtualawlibrarychanrobles virtual law library

Thus, Section 14, Rule 39, of the Revised Rules of Court, specifically provides:

SEC. 14. Removal of improvements on property sub. ject of execution. - When the property subject of the execution contains improvements constructed or planted by the judgment debtor or his agent the officer shall not destroy, demolish or remove said improvements except upon special order of the court, issued upon petition of the judgment creditor after due hearing and after the former has failed to remove the within a reasonable time fixed by the court.

This provision has been taken from Section 1 of Commonwealth Act No. 39, which states that. "The Provincial Sheriff, in executing the decision of a competent court in ejectment case shall not destroy, demolish, or remove the improvements constructed or planted by the defendant or his agent or servant on the premises, unless expressly authorized by the Court. The Court may authorize the Provincial Sheriff to do so, upon petition of the plaintiff or his attorney, after due hearing and upon failure of the defendant to remove the aforementioned improvements within a reasonable tune after being so ordered by the Court.chanroblesvirtualawlibrarychanrobles virtual law library

Evident from the foregoing is the statutory purpose which is to grant to the defeated party a reasonable tune to remove his improvement from the premises. Therefore, any delay in the implementation of the order of demolition accrues to the benefit of the deforciant. The grant of such a reasonable period to remove the improvements is predicated upon reasons of fairness and justice to enable the defeated party look for another place wherein he can transfer his improvements and personal effects. The law does not specify the period within which the order of demolition should be carried out. The reason is obvious. There may be factors and circumstances which would justify deferment of the implementation of the order of demolition. (Emphasis supplied)

Moreover, in the instant case, the order of demolition was subject in G. R. No. L-46452 for certiorari and prohibition. The petition was dismissed by the Second Division of this Court for lack of merit.chanroblesvirtualawlibrary chanrobles virtual law library

WHEREFORE, the explanation of Acting Judge Vivencio A. Bantugan on why he issued the order of demolition is found satisfactory and no administrative action lies against him.chanroblesvirtualawlibrary chanrobles virtual law library

SO ORDERED.

Endnotes:

1 Rollo, pp. 1-3.chanrobles virtual law library

2 Letter of Judge Vivencio A. Bantugan dated November 8, 1978, pp. 1-3.chanrobles virtual law library

3 75 SCRA 311, 316-317