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[A.M. OCA IPI No. 03-1691-P. August 9, 2004]

PARCUTILO vs. DAACA

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated AUG 9 2004.

A.M. OCA IPI No. 03-1691-P (Jecuson D. Parcutilo vs. Alexander M. Daaca, Sheriff IV, RTC, Branch 14, Oroquieta City .)

Considering the Report dated June 9, 2004 of the Office of the Court Administrator, to wit:

Forwarded to the Office of the Court Administrator by the Deputy Ombudsman for Mindanao is a SUBSCRIBED LETTER-COMPLAINT dated April 8, 2003 of Jecuson D. Parcutilo charging Sheriff Alexander M. Daaca with grave abuse of authority relative to Civil Case No. 4444-14-06 entitled Eli and Merlyn Parcutilo in representation of their minor child, June Eli Parcutilo, et al. vs. Jecuson Parcutilo , et al.

Complainant states that he is the defendant in the aforesaid civil case where the respondent sheriff improperly and illegally exercised his authority by executing a writ of execution against a parcel of land under Tax Declaration No, 15750 in violation of 'the rule that family home (or the homestead in which he resides, and land necessarily used in connection therewith) shall be exempt from execution.

Complainant claims further that during the implementation of the writ of possession, a companion of the respondent sheriff gathered the fruits and cut the leaves of a coconut tree leaving it dead up to the present in contravention of the basic tenet that when the property subject of the execution contains improvements, the judgment debtor or his agent shall not destroy, demolish or remove said improvements except upon special order of the court.

In a COMMENT dated August 12, 2003, respondent Sheriff Alexander M, Daaca says that he followed the usual and normal procedure in enforcing the writ of execution relative to the aforementioned civil case. As defendants failed to satisfy the award for damages in the amount of P228,407.62 pursuant to the final and executory decision of the court dated July 10, 1997, he requested the Assessor's Office of Plaridel, Misamis Occidental for certified copies of tax declarations of properties belonging to the defendants. He found out that defendants Cuje and Irma Parcutilo have various shares in the estate of their respective parents which includes (sic) a parcel of land covered by Tax Declaration No. 15750 in the name of Emiliano Dalaygon. Respondent avers that nothing is shown or indicated on the face of the said tax declaration that residential building is erected or standing thereon. As the land is unregistered, he merely relied on the entries appearing on the face of the tax declaration.

Respondent vehemently denies the allegations (sic) that there was an improper service of the writ of possession. He avers that the very statement of witness Paulino Omandam do[es] not conform with the complainant's allegations. Omandam did not declare that he was in the company of the respondent during the implementation of the writ of possession. Omandam was never in the premises, much less hired or paid by the respondent Sheriff to cut the coconut tree. On the other hand, plaintiff Eli Parcutilo in his affidavit admitted that he was the one who cut the coconut tree after the premises was turned over to him to prevent further damage to the roof of his house over which said coconut tree had leaned on.

The Station Commander of PNP Plaridel executed an affidavit stating that respondent sheriff properly, regularly and without any abuse of authority implemented the writ of execution.

EVALUATION: Complainant alleges that the writ of execution was improperly and illegally executed because one of the properties subject of the writ of execution is a family home in which he resides and the land necessarily used in connection therewith is exempt from execution.

A family home is constituted on a house and lot from the time it is occupied as a family residence. The family home under the Family Code need not be registered judicially or extra judicially. What is important is that the family actually resides in the house and lot and the total value should not exceed P300,000.00 in urban areas or P200.000.00 in rural areas to be exempt from execution.

Complainant did not state in his complaint how much is the value of the house and lot which he claims as a family home and the classification of the place where the lot is situated whether it is in an urban area or in a rural area. What is clear is that the property which complainant claims to be his family home is not covered by a homestead patent but under Tax Declaration No. 15750. What complainant should have done was to prove that [the] lot covered by Tax Declaration No. 15750 is a family home by executing an affidavit and giving it to the sheriff. The onus is on the complainant to prove that the property under Tax Declaration No. 15750 is his family home and therefore exempt from execution. The remedy of complainant is judicial by filing a Motion for the Annulment of the Writ of Execution as far as the lot covered by Tax Declaration No. 15750 is concerned in the court that issued the. writ of execution or file a separate action for recovery of the property.

RECOMMENDATION: Respectfully submitted for the consideration of the Honorable Court is the recommendation that the case be DISMISSED for lack of merit.

and finding the evaluation and recommendation thereon to be in accord with law and the facts of the case, the Court hereby adopts and approves the same.

ACCORDINGLY, the administrative complaint against Alexander M. Daaca is DISMISSED .

SO ORDERED.

Very truly yours,

(Sgd.) LUDICHI YASAY-NUNAG
Clerk of Court

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