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FIRST DIVISION

A.M. No. P-1622 June 29, 1979

LEONARDA VDA. DE MALASARTE, Complainant, vs. DEPUTY SHERIFF LIBRADO Z. YEBES COURT OF FIRST INSTANCE OF ZAMBOANGA DEL NORTE, DIPOLOG CITY, Respondent.

R E S O L U T I O N

This is an administrative complaint filed by LEONARDA Vda. de MALASARTE, dated March 7, 1977, charging respondent Librado Yebes Deputy Sheriff of the Court of First Instance of Zamboanga del Norte, Branch 111, Dipolog City, with alleged failure to execute a writ of execution issued in her favor as a prevailing litigant and for demanding and receiving from her the sum of Two Hundred Pesos (P200.00) to reimburse what the respondent supposedly incurred while serving the aforesaid writ of execution. ¹

In Civil Case No, 2627 for Forcible Entry, originally filed with the Municipal Court of Sibutad, Zamboanga del Norte, the plaintiffs therein, heirs of Juanito Malasarte, et al., obtained a favorable decision, dated September 16, 1974, which, when appealed to the Court of First Instance of Zamboanga del Norte and later to the Court of Appeals, was sustained and affirmed. Although the decision of the Court of Appeals was elevated to this Court on certiorari because of failure of the petitioners to pay the required fees on time, the petition was dismissed. When the decision of the Court of Appeals became final and executory, the Court of First Instance of Zamboanga del Norte, Branch I, Dipolog City, upon application, issued a writ of execution, dated March 4, 1976. The Writ commanded the Provincial Sheriff or any of his deputies to:

1) Place the plaintiffs' heirs, represented by Leonarda Vda. de Malasarte, in the possession of a parcel of land described therein; and

2) To satisfy from the goods and chattels of the defendants the sum of P629.00 and deliver the same to the plaintiffs, represented by Leonarda Vda. de Malasarte. If sufficient personal property cannot be found to satisfy the judgment and other fees, to raise the amount from real properties of defendants in accordance with the Rules of Court. ²

In a 1st Indorsement, dated March 9, 1977, the then Executive Judge of the Court of First Instance of Zamboanga del Norte, Branch III, Dipolog City, Hon. Dimalanes B. Buissan, required the respondent Deputy Sheriff Librado Yebes to explain within seventy-two (72) hours (1) why he had not served the writ of execution in the case or if he had served it, why no return had been made; and (2) why it was necessary for him to get P200.00 from complainant Leonarda Vda. de Malasarte and to explain what he did with the money. ³

In his reply dated March 14, 1977 to the aforesaid 1st Indorsement the respondent stated: ⁴

a) That he received the office directive assigning him to serve the Writ of Execution in Civil Case No. 2627 on March 5, 1976; that finding out later on that one of the defendants, Amparo Dumuag was residing in Sapang Dalaga, Misamis Occidental, about 80 kilometers away from Dipolog City, which may be reached only through a circuituous way, he had to hire a pump boat and sail in open sea; that he had to stay overnight at said Sapang Dalaga, take his meals there as well as on the way and to buy gasoline for the pump boat, and succeeded in serving the writ;

b) That on March 8, 1976, he had to hike some l2 kilometers to reach Baylimangao Dapitan City, to serve the writ on Teofila M. Bolay-og another defendant;

c) That plaintiff Leonarda Vda. de Malasarte was placed in possession of the land subject of the Writ of Execution on March 6, 1976;

d) That he received the amount of P200.00 from complainant to reimburse him for the expenses he incurred while serving the said writ but submitted an accounting of how the money was disbursed;

e) That he could not raise the amount of P629.00 from the personal properties of defendants because these are exempt from execution under the Rules of Court and defendants had no real properties registered in their names; and

f) That he was unable to make a return of the Writ within the 60- day period because he was trying to help Malasarte locate other properties of defendants and he kept the Writ of Execution in his possession. ⁵

In a Resolution of this Court dated September 18, 1978, the case was referred to Executive Judge Simplicio Apalisok of the Court of First Instance of Zamboanga del Norte, at Dipolog City, for investigation, report and recommendation. ⁶

At the hearing conducted by the Executive Judge on November 6, 1978, the complainant, Leonarda Vda. de Malasarte, declared that she was no longer interested to pursue her complaint against Deputy Sheriff Yebes. ⁷ However, for the good of the service, Judge Apalisok continued the investigation to elicit facts. In his report, he made the following findings: ⁸

a) Complainant Leonarda Vda. de Malasarte had been placed in possession of the property in accordance with the Writ of Execution;

b) The amount of P629.00 could not be secured because defendants have no properties which could be seized and levied upon for the purpose;

c) Respondent's explanation regarding his failure to make a return of the Writ to the court was unsatisfactory;

d) The expenditure by respondent of the P200.00 was not justified since the expenses incurred by him in serving the Writ were unnecessary.

The investigating judge recommended that respondent Librado Yebes be exonerated with respect to the charges that he failed to place complainant in possession of the property or secure the amount of P629.00 from defendants but that the erring Deputy Sheriff be severely reprimanded for demanding and obtaining the amount of P200.00 from complainant Malasarte to reimburse himself for the purported expenses he incurred while serving and executing the Writ.chanrobles virtual law library

The findings of fact of Executive Judge Simplicio Apalisok who conducted the inquiry into the case are supported by the record. This is the second time that the respondent Yebes has committed the same offense despite an earlier warning. The respondent deputy sheriff should be meted a heavier penalty for having disregarded the warning.chanrobles virtual law library

WHEREFORE, having again failed to make a return of the Writ of Execution within the maximum period of sixty (60) days prescribed by Sec. 11, Rule 39 of the Revised Rules of Court and for demanding the amount of Two Hundred Pesos (P200.00) from the prevailing party to cover his expenses incident to serving and executing the writ of execution, an act which is in violation of existing regulation on the matter, the respondent Librado Yebes Deputy Sheriff of the Court of First Instance of Zamboanga del Norte, Dipolog City, is hereby suspended for a period of one (1) month without pay commencing from the time his preventive suspension is lifted.chanrobles virtual law library

SO ORDERED.