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[G.R. No. 138222.June 16, 1999]

REFORMADO vs. HON. CA et al.

SECOND DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated JUN 16 1999 .

G.R. No. 138222 (Blas Reformado vs. Honorable Court of Appeals and Cesaer Lee/Hyatt Holdings, Inc.)

Petitioner is the plaintiff in all action for possession filed in the Regional Trial Court, Branch 255, Las Piñas City. On July 1, 1998 judgment was rendered in his favor, ordering private respondents to vacate the land covered by TCT No. 50663 in Las Piñas City and to pay P200,000.00 representing the cost of the house of petitioner, P30,000.00 as litigation expenses, and P100,000.00 as attorney's fees and the costs.

On motion of petitioner, the trial court ordered on August 31, 1998 the execution of the judgment pending appeal by private respondents. The trial court stated:

To the mind of the court, if the defendants have unlawfully appropriated the house of the plaintiff, they are duty bound to pay for its value under the provisions of the Civil Code (Articles 435, 436 and 539), and the court considers this as a good reason for granting execution pending appeal. And as there was no evidence at all presented during the trial by the defendants, the appeal in this case therefore is clearly dilatory (Rodriguez vs. CA, L-12534, May 23, 1959; De Vera vs. Santos, L-24351, September 22, 1977). In De Leon, et al. vs. Soriano, L-7648, September 17, 1994, it was held that where the prevailing party is of advance age and in a precarious state of health, execution of judgment pending appeal may be granted.

On petition for certiorari by private respondents, the Court of Appeals set aside the trial court's order on the following grounds:

The advance age of the prevailing party, standing alone, is not a sufficient and good reason to allow discretionary execution. In Borja vs. CA, 196 SCRA 847, execution pending appeal was allowed because the Supreme Court found not only that the prevailing party was already 75 years of age but that the appeal was frivolous and intended for the purpose of delay.

Besides, while private respondent may be in his late sixties, it cannot be said that he is already of advance age. Hence, the Borja case, wherein the prevailing party was already 75 years old, cannot be invoked in support of the assailed order.

Private respondent argues that petitioners should have posted a supersedeas bond to stay the execution pending appeal, pursuant to Section 3 of Rule 39.

The argument is untenable.

For one thing, the filing of supersedeas bond to stay execution pending appeal is discretionary upon the court. What is more, it presupposes a valid order allowing such execution. Precisely, petitioners are before this Court to seek the annulment of the Order of August 31, 1998.

In view of the foregoing, the Court finds that, indeed, respondent Judge acted with grave abuse of discretion amounting to lack of jurisdiction in issuing assailed order.

Hence, this petition for review on certiorari.

First. Petitioner contends that since private respondents did not file a supersedeas bond in the trial court, it was error for the Court of Appeals to set aside the trial court's order of execution pending appeal.

"This contention has no merit. Rule 39, �3 of the Rules of Court provides:

Discretionary execution issued under the preceding section may be stayed upon approval by the proper court of sufficient supersedeas bond filed by the party against whom it is directed, conditioned upon the performance of the judgment or order allowed to be executed in case it shall be finally sustained in whole or in part. The bond thus given may be proceeded against on motion with notice to the surety.

It has been held that the filing of a supersedeas bond is a necessary but not sufficient condition for staying the execution of a judgment pending appeal. ¹ NAWASA v. Catolico, 19 SCRA 980 (1967). The Court of Appeals erred in holding that the filing of a supersedeas bond is not required to stay the execution of a judgment pending appeal. However, what private respondents sought in the Court of Appeals was not the stay of execution pending appeal but the nullification of the trial court's order granting execution pending appeal on the ground that such order was issued with grave abuse of discretion. There is a difference, The first assumes the validity of the execution. The second precisely denies the validity of execution.

Second. Petitioner assails the appellate court's finding that there was no good reason shown for ordering execution pending appeal. He claims that he is of advance age and that his health is precarious; and these are good and sufficient reasons for the execution of the judgment pending appeal.

A motion for execution pending appeal may, indeed, be granted where a case has been pending for a considerable time and the prevailing party is of advance age and in a precarious state of health. Thus, in Borja v. Court of Appeals, ² 196 SCRA 847 (1991). execution pending appeal was allowed in a case which had been pending for more than ten (10) years. However, in this case the complaint for accion publiciana was filed only in 1996, and the petitioner, in moving for execution pending appeal, did not indicate his age or present proof of ill health. As has been held, the reasons for allowing execution of a judgment pending appeal must constitute superior circumstances demanding urgency which will overweigh the injury to the losing party should he secure a reversal of the judgment. ³ Jaca v. Davao Lumber Co., 113 SCRA 107 (1982). Hence, the Court of Appeals correctly set aside the order of execution pending appeal of the trial court.

WHEREFORE, the petition is DISMISSED for lack of showing of any reversible error committed by the Court of Appeals.

Very truly yours,

(Sgd.) TOMASITA B. MAGAY-DRIS
Clerk of Court

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