SPS. CAPA v CA GR No.
160082
September 19, 2006 AUSTRIA-MARTINEZ, J.
TOPIC IN SYLLABUS: Execution pending appeal; effect of Digest By: amb
elevation of records; terceria
SUMMARY: A third party claimed ownership of two vessels levied during execution pending
appeal with the RTC. Originally, the claim was never challenged, with the Sps. Capa
(petitioners) relying on the posting of an indemnity bond. When their bond was denied, they
then challenged the claim itself in the CA as the records were elevated to it. The CA did not
act on their motion challenging the claim as it should have been filed with the RTC Cebu. SC
found this to be the proper course of action as the third party claim should have been
challenged in the first instance, at the RTC.
DOCTRINE: To challenge a claim of terceria (which was used against execution pending
appeal), the claim should be challenged in the earliest possible opportunity—that is, the court
where the terceria was filed, and before any actions that may lead to waiver of the opposition
(e.g. indemnity bonds).
PROCEDURAL ANTECEDENTS: RTC complaint for damages > Notice of appeal filed > Urgent
Motion for Execution Pending Appeal (EPA) > Notice of levy on 2 properties owned by
respondents > Third-party claim by Raco > Indemnity bond filed with RTC > Records elevated to
CA > Indemnity bond filed with CA (denied) > Motion to Deny Third-Party Claim with Motion to
Admit Claim for Damages > NOT ACTED UPON (should be RTC) > SC petition for Certiorari and
mandamus
FACTS:
The Sps. Capa owned a motor banca named the M/B CLM Zoltan, while United Vismin owned a
motorized vessel named M/V Cebu Pearl. One evening, the two collided, resulting in the sinking
of the Zoltan. This led to the filing with the RTC Cebu of a complaint for damages against United
Vismin, the ship captain, and the captain's wife Rene Yhapon. On March 9, 2001, the RTC ruled
in favor of the Spouses.
United Vismin and the Sps. Yhapon filed a notice of appeal, which was given due course in an
order dated June 6, 2001. The records were ordered elevated to the CA.
However, before this, on April 2, 2001, the Sps. Capa filed an Urgent Motion for Execution
Pending Appeal on the ground that Unived Vismin had already given notice to the MARINA of
the cessation of its operation. This was granted. On January 14, 2002, a notice of levy was issued,
covering two of United Vismin's vessels, the MV Island Pearl and MV Sea Pearl.
Days after the issuance of the notice of levy, a certain Raco, through her attorney-in-fact, Tolosa,
filed a Third-Party Claim with the RTC claiming ownership over the levied properties. The sheriff-
in-charge sent a notice of claim to the Sps. Capa, requiring them to file an indemnity bond in
the amount of P2.7M on February 4, 2002.
United Vismin and the Sps. Yhapon filed a Motion to Quash Levy on the ground that the bond
was not required. In an order dated February 1, 2002, the Motion was NOT entertained by the
RTC as it had lost jurisdiction over the case when the appeal was perfected. However, the
records were finally elevated to the CA on February 6 of the same year.
The Sps. Capa then filed with the CA a motion to approve the bond, which was later denied as
they failed to comply with a later order to submit the CTC of the surety bond and a SC
certification on the status of the surety company. Undeterred, they then filed a Motion to Deny
Third-Party Claim with Motion to Admit Claim for Damages praying that the third-party claim
be denied as it was invalid for failure by Raco, the principal, to sign the same. This was NOTED
without action, as it should have been filed with the RTC Cebu. Hence the present petition for
certiorari and mandamus.
PETITIONER’S ARGUMENT(S):
- The CA has jurisdiction to resolve the Motion to Deny Third-Party Claim since the trial court
had lost jurisdiction over the case upon perfection of appeal and elevation of records to the CA.
The said motion was an incident to the execution pending appeal. Notwithstanding the fact the
motion for EPA was filed before the RTC long before it lost jurisdiction over the case, the motion
should be filed with the CA as under Rule 39.2, once a trial court loses jurisdiction over a case,
the motion for EPA and its incidents may be filed before the appellate court.
- Moreover, the Third Party claim was spurious and frivolous as the transfer of ownership
appears to be for the purpose of evading satisfaction of the appealed decision. Apparently, one
day after the Sps. Capa sent a letter to MARINA requesting for a certification of United Vismin's
filing of a notice to suspend operation of its vessels in order to support their motion for EPA,
Vismin filed a petition with MARINA for the transfer of the vessels to Raco, without the
knowledge of the Sps. Capa.
RESPONDENT’S ARGUMENT(S):
- Raco: The third party claim was properly filed. If anything, the levy was never perfected as the
Sps. Capa failed to have the indemnity bond approved in spite of extensions granted. United
Vismin and Sps. Yhapon relied on a similar argument.
ISSUE(S): Whether or not the CA committed grave abuse of discretion when it did not act on
petitioners Motion to Deny Third-Party Claim with Motion to Admit Claim for Damages on the
ground that the same should have been filed with the Regional Trial Court of Cebu, Branch VIII,
Cebu City. (NO!)
HELD: DENIED.
- Rule 41.9 explains the instances when the trial court would lose jurisdiction over a case: for
appeals by notice of appeal, it is upon perfection of the appeals filed in due time and the
expiration of the reglementary period BUT with the qualification that the trial court may still
avail of its residual jurisdiction PRIOR to transmittal of the original record. This residual
jurisdiction allows the court to order execution pending appeal. As such, the actual reckoning
point for the filing of the motion for EPA with the appellate court is AFTER the records have
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been transmitted. Given this, the motion for EPA with the RTC was PROPER.

- What complicated this case was the availing of terceria by Raco under Rule 3.16 by serving on
the sheriff making the levy an affidavit of his title and a copy thereof upon the party availing of
EPA. Upon receipt of the affidavit, the sheriff notified the Sps. Capa and required them to post
the said indemnity bond.

- The Sps. Capa never questioned the affidavit in the TC while the records were still there,
instead opting for the filing of an indemnity bond. When the records were raised to the CA, they
again relied on the said bond. However, they suddenly changed to the denial of the third-party
claim when their motions for the indemnity bond were denied, partly for their own failure to
comply with related court orders (therefore questioning the affidavit). The belated raising of
the issue, along with the attempts at an indemnity bond, was in effect a waiver of defects in the
affidavit. (In other words, it should have been filed with the RTC)

(As for the Motion to Admit Claim for Damages, Rule 39.16 requires that there be a separate
action. It cannot be through a simple motion as this requires the filing of proper pleadings and
the holding of a trial so that the parties may submit their respective evidence.)

2
 Navarosa v. Comelec G.R. No. 157957
September 18, 2003 Carpio, J.
TOPIC IN SYLLABUS: Execution of Judgment Digest By: Bries
SUMMARY: Navarosa won as mayor of Libacao by 3 votes over Esto. Esto filed a protest with
the Kalibo, Aklan RTC alleging irregularities in canvassing. RTC: Esto won by 42 votes, he is
the proclaimed winner, Navarosa’s proclamation annulled. Navarosa appealed to COMELEC,
and Esto filed a motion for execution of the judgment pending Navarosa’s appeal with the
RTC. Navarosa offered to file a supersedeas bond to stay execution pending appeal, should
the RTC grant Esto’s motion. RTC: granted Esto’s motion subject to the filing of a bond.
However RTC also granted Navarosa’s prayer to stay the execution pending appeal, upon
filing a supersedeas bond. Esto filed a petition for certiorari with COMELEC. COMELEC
affirmed the RTC Order granting execution pending appeal and nullified the stay of the
execution. COMELEC En Banc denied Navarosa’s MR. SC: The supersedeas bond Navarosa
filed can only answer for that portion of the RTC’s ruling ordering her to pay to Esto actual
damages, attorneys fees and the cost of the suit. It cannot secure execution of that portion
proclaiming Esto duly elected.
DOCTRINE: On the assumption that the filing of the supersedeas bond applies in an election
protest case, the practical considerations dictate that it cannot secure the performance of
or satisfy the judgment rendered in an election protest which basically involves the right to
hold a public office and the performance of its functions, except re: the monetary award
provided in the order. Such bond cannot answer for the deprivation of a duly elected
candidate of his post, and constituents of their leader, such deprivation being unquantifiable.
PROCEDURAL ANTECEDENTS: election protest filed by Esto with RTC, then appealed by Navarosa
to COMELEC Second Division. Esto filed a petition for certiorari with COMELEC En Banc. Navarosa
filed MR to COMELEC En Banc, which was denied, hence this petition for certiorari
FACTS: Charito Navarosa and Roger Esto were candidates for mayor of Libacao, Aklan. The
COMELEC Municipal Board of Canvassers of Libacao proclaimed Navarosa as mayor, winning by
3 votes. Claiming irregularities marred canvassing in several precincts, Esto filed an election
protest in the Kalibo, Aklan RTC. Navarosa, who also claimed that canvassing irregularities
prejudiced her, filed a counter-protest in the same case. After revision of the contested ballots,
RTC declared Esto the elected mayor of by a margin of 42 votes and annulled the earlier
proclamation of Navarosa. RTC also ordered Navarosa to pay Esto actual damages and
attorney’s fees.
Navarosa appealed to COMELEC. Esto filed with the RTC a motion for execution of the judgment
pending Navarosa’s appeal. Navarosa opposed Esto’s motion. Navarosa offered to file a
supersedeas bond to stay execution pending appeal, should the RTC grant Esto’s motion.
RTC: granted Esto’s motion subject to the filing of a P300,000 bond. RTC also granted Navarosa’s
prayer to stay the execution pending appeal, upon filing a P600,000 supersedeas bond. Both
Navarosa and Esto sought reconsideration but the RTC denied their motions.
Esto filed a petition for certiorari with COMELEC against the Order. In her memorandum to the
petition, Navarosa raised for the first time the issue of the RTC’s failure to acquire jurisdiction
over the election protest because of Esto’s failure to pay the COMELEC filing fee.
The COMELEC Second Division, through a Resolution, affirmed the RTC Order granting execution
pending appeal and nullified the stay of the execution. It found that Esto duly paid the COMELEC
filing fee, stating that it is for COMELEC, in the exercise of its appellate jurisdiction to issue the
extraordinary writs of certiorari, prohibition, mandamus and injunction over all contests
involving elective municipal officials decided by the trial courts of general jurisdiction elevated
on appeal, and not the trial court, that may order the stay or restrain the immediate execution
of the decision pending appeal granted by the trial court of general jurisdiction in an election
contest. Except when the trial court reversed itself in a motion for reconsideration of its order
granting immediate execution, it cannot later on stay or restrain the execution thereof in the
guise of allowing the losing party to file a supersedeas bond. The issue before the RTC where a
motion for execution pending appeal is filed is to determine WON there are good reasons to
justify the immediate execution pending appeal, not whether there are good reasons to stay
the immediate execution of the decision pending appeal.
It also stated: “The trial court cannot indirectly reverse its substantial finding of good reasons
by a rule of procedure which does not strictly apply in election protest cases when it allowed
the filing of a supersedeas bond under Sec. 3, Rule 39 of the 1997 Rules of Civil Procedure. To
allow the application of the said procedural relief would defeat the right of the winning
candidate in an election protest to hold the public office by virtue of the people’s mandate
expressed through the ballot and to perform the functions of the said public office.”
Navarosa sought reconsideration, but COMELEC En Banc denied her motion. Hence, this
petition.
ISSUE: WON COMELEC committed grave abuse of discretion in ordering execution pending
appeal of the trial court’s decision
HELD: NO. PETITION DISMISSED. To grant execution pending appeal in election protest cases,
the following requisites must concur: (1) there must be a motion by the prevailing party with
notice to the adverse party; (2) there must be good reasons for the execution pending appeal;
and (3) the order granting execution pending appeal must state the good reasons. Navarosa
contests the RTC’s finding that there are good reasons to order discretionary execution of its
decision.
In Ramas v. COMELEC, the SC gave the circumstances qualifying as good reasons justifying
execution pending appeal: (1) public interest involved or the will of the electorate; (2) shortness
of the remaining portion of the term of the contested office; and (3) length of time that the
election contest has been pending.
RTC here invoked two good reasons to justify its order allowing execution pending appeal. First,
the order will give substance and meaning to the people’s mandate. Second, more than 10
months (1/3 of the 3-year term of the office) had already lapsed. COMELEC found these good
reasons sufficient. Being consistent with Ramas, there is no grave abuse of discretion.
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Unlike the Election Code of 1971, which expressly provided for execution pending appeal of trial
courts rulings in election protests, the present election laws are silent on such remedy. Sec. 2,
Rule 39 of the RoC applies in suppletory character to election cases, allowing execution pending
appeal in the discretion of the court. As explained in Ramas:
“In election contests involving elective municipal officials, which are cognizable by courts of
general jurisdiction; and those involving elective barangay officials, which are cognizable by
courts of limited jurisdiction, execution of judgment pending appeal under Sec. 2 of Rule 39 are
permissible pursuant to Rule 143 of the Rules of Court, which is now Sec. 4, Rule 1: SEC 4: These
Rules shall not apply to election cases, land registration, cadastral, naturalization and insolvency
proceedings, and other cases not herein provided for, except by analogy or in a suppletory
character and whenever practicable and convenient.”
Sec. 3 of Art. IX-C of the Constitution vests COMELEC with authority to promulgate its rules of
procedure. Sec. 52(c), Art. VII of the Omnibus Election Code empowers the COMELEC to
promulgate rules and regulations implementing the provisions of the Code or other laws which
it is required to enforce and administer. Accordingly, the COMELEC promulgated the COMELEC
Rules of Procedure. Section 1 of Rule 41 expressly provides that in the absence of any applicable
provision in said Rules, the pertinent provisions of the Rules of Court in the Philippines shall be
applicable by analogy or in a suppletory character and effect.
party in an ordinary civil action to secure the performance or to satisfy the judgment appealed
from in case it is affirmed on appeal in favor of the prevailing party. This is filed for the
performance of the judgment appealed from in case it is affirmed by the appellate court. On
the assumption that the filing of the supersedeas bond applies in an election protest case, the
practical considerations of the matter dictate that it cannot secure the performance of or satisfy
the judgment rendered in an election protest which basically involves the right to hold a public
office and the performance of its functions in accordance with the mandate of the law, except
insofar as the monetary award provided in the special order. By allowing the filing of a
supersedeas bond to stay the execution of a judgment in an election protest declaring the
protestant as the winning candidate who is entitled to the right to hold and perform the
functions of the contested public office, would render the judgment in an election protest
illusory. While this bond ensures that the appealed decision if affirmed is satisfied, in an election
protest case, this, in the event the appealed case is affirmed and the execution pending appeal
is proven to be meritorious, cannot answer for the deprivation of a duly elected candidate of
his post, and his constituents of their leader of choice, such deprivation being unquantifiable.
The supersedeas bond Navarosa filed can only answer for that portion of the RTC’s ruling
ordering her to pay to Esto actual damages, attorneys fees and the cost of the suit. It cannot
secure execution of that portion proclaiming Esto duly elected. This anomalous situation defeats
the very purpose for the filing of the supersedeas bond in the first place.

A primordial public interest to obviate a hollow victory for the duly elected candidate as
determined by the RTC lies behind the present rule giving suppletory application to Sec. 2. Only
a more compelling contrary policy consideration can prevent suppletory application of Sec. 2.
In insisting that the simple expedient of posting a supersedeas bond can stay execution pending
appeal, Navarosa neither claims nor offers a more compelling contrary policy consideration.
Instead, she merely contends that Sec. 3 of Rule 39 applies also in a suppletory character
because its Siamese twin provision, Sec. 2, is already being so applied. A supersedeas bond
under Sec. 3 cannot fully protect the interests of the prevailing party in election protest cases.
Sec. 3 provides:

“Discretionary execution issued under the preceding section may be stayed upon approval by
the proper court of a sufficient 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.”

A supersedeas bond secures performance of the judgment or order appealed from in case of its
affirmation. Sec. 3 finds application in ordinary civil actions where the interest of the prevailing
party is capable of pecuniary estimation, and thus, of protection, through the filing of a
supersedeas bond. Sec. 3 states: The bond thus given may be proceeded against on motion with
notice to the surety. Consequently, it finds no application in election protest cases where
judgments invariably include orders which are not capable of pecuniary estimation such as the
right to hold office and perform its functions.

As observed by the COMELEC Second Division in the present case: The supersedeas bond, as
used under Sec. 3, Rule 39, refers to a bond, either in cash or a surety bond, filed by the losing
4
 ISM v. CA GR No. 131109
June 29, 1999 Gonzaga-Reyes, J.
TOPIC IN SYLLABUS: Rule 29 – Execution Digest By: Abu
SUMMARY: ISM previously lost a case against private respondents, Sps. Torralba. ISM filed
an appeal but the lower court granted the Sps’ motion for execution pending appeal, saying
that ISM’s appeal was merely dilatory and the Sps’ filing of a bond was a “good reason.” SC
said they were wrong.
DOCTRINE: The rule is now settled that the mere filing of a bond by the successful party is
not a good reason for ordering execution pending appeal, as a combination of circumstances
is the dominant consideration which impels the grant of immediate execution, the
requirement of a bond is imposed merely as an additional factor, no doubt for the protection
of the defendants creditor.
PROCEDURAL ANTECEDENTS: RTC granted Sps’ motion for execution pending appeal. CA denied
ISM’s petition for Certiorari aka affirmed the RTC. SC reversed.
FACTS:
 The RTC of QC rendered a decision in a civil case entitled “Spouses Alex and Ophelia Torralba
v. International School, Inc. (Manila), Dr. Rodney C. Hermes, Noli Reloj and Danilo de Jesus”
involving a complaint for damages due to the death of the spouses’ only son, Ericson, while
in the custody of International School (ISM) and its officers.
o The RTC ruled in favor of the defendants and dismissed the complaint of the Torralbas.
o ISM appealed to the CA.
 During the pendency of the appeal, the spouses filed a motion for execution pending appeal
before the lower court on the grounds that the appeal is merely dilatory and that filing of
the bond is another good reason for the execution of a judgment pending appeal.
o This was opposed by ISM.
 The lower court granted execution pending appeal upon the posting of a bond in the amount
of P5 million by the spouses.
 A Notice of Garnishment of ISM’s bank deposits at Global Consumer Banking, Citibank was
served by Deputy Sheriff to Citibank; he reported that Citibank, via letter, informed him that
the bank deposits of ISM in the amount of P5.5M were on hold/ pledge.
 ISM filed an MR or for approval of supersedeas bond in the amount of P5.6M.
 The lower court denied ISM's motion for reconsideration and authorized and directed
Deputy Sheriff Doroni to encash the Citibank Manager's Check payable to the said court in
the amount of P5.5 million and to turn over the proceeds therefor after deducting all legal
fees and charges if any, to the plaintiffs or their representative.
 ISM filed a Petition for Certiorari with the CA. ISM sought nullification of the lower court’s
orders for having been issued in excess of jurisdiction with GAD.
 CA – dismissed petition for lack of merit. It agreed with the lower court that ISM’s appeal is
merely dilatory (ISM already in admission of fault daw when it adopted project “Code Red”
consisting safety measures, only after the death of their son; plus this delay already cost the
Sps. financially) and the filing of a bond constitutes good reasons.
ISSUES:
Whether or not the filing of a bond can be considered a good reason to justify immediate
execution under Section 2, Rule 39 – NO. Court of Appeals erred in finding that the lower court
did not commitany grave abuse of discretion in granting execution
pending appeal of its decision
HELD:
In upholding the writ of execution pending appeal, the Court of Appeals observed that the lower
court had, prior to it its issuance, duly noted the presence of the circumstances laid down by
Section 2, Rule 39 of the Rules of Court, 23 allowing execution as an exception, or pending
appeal, even before final Judgment, to wit:
(a) There must be a motion by the prevailing party with notice to the adverse party;
(b) There must be good reasons for issuing the execution; and
(c) The good reasons must be stated in a special order.
Likewise, the Court of Appeals accepted as "good reasons" that ISM's appeal appears to be
dilatory in view of its virtual admission of fault when it adopted the project "Code Red"
consisting of safety and emergency measures only after the death of plaintiffs-spouses
Torralba's son, and the delay of the case which already affected plaintiffs spouses Torralbas
financially.
For purposes only of determining the correctness of the writ of execution pending appeal, the
SC could not see how the lower courts came upon the conclusion of virtual admission of fault
or negligence by ISM based on ISM's swimming coach’s admission that he read the school paper
article introducing "Code Red". As correctly pointed out by ISM, the article was not an official
statement of the school, but merely an opinion of its author. Moreover, the statement of Mr.
Noli Reloj that he read the article on "Code Red" cannot be construed as an admission of liability
by the school. Clearly then, the conclusion of the lower courts that the appeal is dilatory based
solely on the foregoing exchange rests on shaky ground.
In fine, the rule is now settled that the mere filing of a bond by the successful party is not a good
reason for ordering execution pending appeal, as a combination of circumstances is the
dominant consideration which impels the grant of immediate execution, the requirement of a
bond is imposed merely as an additional factor, no doubt for the protection of the defendants
creditor. Since we have already ruled that the reason that an appeal is dilatory does not justify
execution pending appeal, neither does the filing of a bond, without anything more, justify the
same. Moreover, ISM could not be faulted for its withdrawal of its supersedeas bond inasmuch
as the lower court granted the execution pending appeal and rejected its offer of supersedeas
bond.
The SC has held in jurisprudence, “to consider the mere posting of a bond a `good reason would
precisely make immediate execution of a judgment pending appeal routinary, the rule rather
than the exception. Judgments would be executed immediately, as a matter of course, once
rendered, if all that the prevailing party needed to do was to post a bond to answer for damages
that might result therefrom. This is a situation, to repeat, neither contemplated nor intended
by law.”
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Finally, we note that writ of execution pending appeal covered the moral and exemplary
damages adjudged by the lower court against ISM. In this regard, we likewise reproduce what
was said in Radio Communications of the Philippines, Inc. (RCPI) vs. Lantin, et al. that awards for
moral and exemplary damages cannot be the subject of execution pending appeal, under the
following rationale: “The execution of any award for moral and exemplary damages is
dependent on the outcome of the main case. Unlike the actual damages for which the
petitioners may clearly be held liable if they breach a specific contract and the amounts of which
are fixed and certain, liabilities with respect to moral and exemplary damages as well as the
exact amounts remain uncertain and indefinite pending resolution by the Intermediate
Appellate Court and eventually the Supreme Court xxx”

Much as we appreciate the predicament of the bereaved parents, however, this Court is of the
opinion that the general rule still finds application in the instant case. In other words, the
respondent Court of Appeals committed reversible error in upholding the writ of execution
pending appeal absent the `good reasons required by law.

RE: PROPRIETY REMEDY OF CERTIORARI AGAINST ORDER OF EXECUTION PENDING APPEAL

Certiorari lies against an order granting execution pending appeal where the same is not founded
upon good reasons. Also, the fact that the losing party had appealed from the judgment does
not bar the certiorari action filed in respondent court as the appeal could not be an adequate
remedy from such premature execution.

That petitioner could have resorted to a supersedeas bond to prevent execution pending
appeal, as suggested by the two lower courts, is not to be held against him. The filing of such
bond does not entitle him to the suspension of execution as a matter of right. It cannot,
therefore, be categorically considered as a plain, speedy and adequate remedy. Hence, no rule
requires a losing party so circumstanced to adopt such remedy in lieu or before availment of
other remedial options at hand.

CA decision reversed and set aside. Writ of Execution issued by the Lower Court is ANNULLED.

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MANACOP, RAMNANI, PESSUMAL, AND RAMNANI v. GR No. 162814-17
EQUITABLE, LAVINE LOUNGEWEAR, PFMIC, 1ST LEPANTO
25 August 2005 Ynares-Santiago, J.
TOPIC: Execution (Pending Appeal) Athena De Mesa
SUMMARY: (GUYS SORRY ANG HIRAP INTINDIHIN NG FACTS)
Lavine is a manufacturing corporation insured by the ff: Rizal Surety, TICO, First Lepanto,
Equitable Insurance, and Reliance Insurance. All the insurances, except First Lepanto,
provides that the policies are payable to Equitable Bank. The corporation was gutted by fire.
Harish represents Lavine then, but he was replaced by Chandru thereafter. Prior to release
of proceeds, Insurance companies required Lavine to sign a subrogation agreement where
the insurance companies will be absolved from liabilities upon payment of proceeds to
Equitable bank. Only Harish signed the document and other BOD refused. Chandru, on the
other hand, demands that the payment be made to Lavine directly and that Lavine would
pay Equitable Bank instead. But some insurance companies did not heed this request.
Chandru, in behalf of lavine, filed a Petition for issuance of WPI with TRO against Philfire,
TICO, Rizal Surety, First Lepanto, and Equitable Bank. Harish, Manacop, Pessumal, Ramnani
and Cortez (“the intervenors”), moved to intervene disclaiming Chandru’s authority and Atty.
Aguinaldo’s authority to file action. They also denied having refused to sign the subrogation
agreement. Court granted the intervention. The intervenors in an amended answer-in-
intervention claimed that since Equitable Bank was already paid the full amount of Lavine’s
obligation, other proceeds should go directly to Lavine through the intervenors. Equitable
Bank denied the full payment of Lavine’s loans. The insurance companies filed interpleaders
because they aren’t sure which party to pay. The RTC dismissed Chandru’s complaint and
ordered insurance companies to pay through the intervenors (not to Equitable Bank).
Intervenors filed a motion for execution pending appeal on the following grounds: (a) TICO
was on the brink of insolvency; (b) Lavine was in imminent danger of extinction; and (c) any
appeal from the trial courts judgment would be merely dilatory.
Rizal Surety, First Lepanto, Equitable Bank and Lavine separately filed a Notice of Appeal.
PhilFire likewise filed a Notice of Appeal, a Motion for Reconsideration (Ad Cautelam), and a
Motion to Dismiss. Meanwhile, Equitable Bank and Lavine (thru Chandru) separately filed a
Rule 65. The motion for execution pending appeal was granted. Equitable Bank filed a
supplemental Rule 65 assailing the grant of execution pending appeal. The cases (appeals
and Rule 65s) were consolidated in the CA. The CA ruled against the intervenors and ordered
the remand of the case to the lower courts and declared void the execution pending appeal.
Intervenors went to the SC via Rule 45. SC held that execution pending appeal cannot be had
in this case because there are no good reasons for it. Moreover, SC upheld the CA when it
declared null and void the writ of execution.
DOCTRINE:
The general rule is that only judgments which have become final and executory may be
executed. However, discretionary execution of appealed judgments may be allowed under
Section 2 (a) of Rule 39 of the Revised Rules of Civil Procedure upon concurrence of the
following requisites: (a) there must be a motion by the prevailing party with notice to the
adverse party; (b) there must be a good reason for execution pending appeal; and (c) the
good reason
must be stated in a special order.
The yardstick remains the presence or the absence of good reasons consisting of exceptional
circumstances of such urgency as to outweigh the injury or damage that the losing party may
suffer, should the appealed judgment be reversed later. Since the execution of a judgment
pending appeal is an exception to the general rule, the existence of good reasons is essential.
PROCEDURAL ANTECEDENTS: Rule 45 filed by the intervenors questioning the reversal of the
ruling made in their favor
FACTS: (HUHU ANG HIRAP PO INTINDIHIN)
 Lavine Loungewear Manufacturing, Inc. (“Lavine”) insured its buildings and supplies against
fire with Philippine Fire and Marine Insurance Corporation (“PhilFire”), Rizal Surety and
Insurance Company (Rizal Surety), Tabacalera Insurance Company (“TICO”), First
Lepanto-Taisho Insurance Corporation (“First Lepanto”), Equitable Insurance Corporation
(“Equitable Insurance”), and Reliance Insurance Corporation (Reliance Insurance). Except for
Policy No. 13798 issued by First Lepanto, all the parties provide that: “Loss, if any, under this
policy is payable to Equitable Banking Corporation-Greenhills Branch, as their interest may
appear subject to the terms, conditions, clauses and warranties under this policy.”
 1 Aug 1998—A fire gutted Lavines buildings and their contents thus claims were made against
the policies. As found by the Office of the Insurance Commission, the insurance proceeds
payable to Lavine is P112,245,324.34.
 Lavine was then represented by Harish C. Ramnani (Harish) but his authority was withdrawn
by the BOD due to his alleged failure to account for the insurance proceeds. Chandru C.
Ramnani (Chandru) was appointed in his stead and was designated, together with Atty. Mario
A. Aguinaldo, as Lavine’s representatives. Prior to the release of the proceeds, the insurance
companies required Lavine to sign a Sworn Statement in Proof of Loss and Subrogation
Agreement whereby the former would be absolved from their liabilities upon payment of the
proceeds to Equitable Bank. Only Harish signed the document while the rest of Lavines
directors refused to sign.
 Notwithstanding Chandrus request that payments be made first to Lavine who shall thereafter
pay Equitable Bank as the latters interest may appear, certain insurance companies released
the proceeds directly to Equitable Bank thus Chandru filed, in behalf of Lavine, a Petition for
the Issuance of a Writ of Preliminary Injunction with Prayer for a Temporary Restraining Order
before the Pasig RTC against PhilFire, Rizal Surety, TICO, First Lepanto and Equitable Bank.
 Harish, Jose F. Manacop, Chandru P. Pessumal, Maureen M. Ramnani and Salvador Cortez,
moved to intervene claiming they were Lavines incumbent directors and that Harish was
Lavines authorized representative. They disclaimed Chandrus designation as president of
Lavine as well as his and Atty. Aguinaldos authority to file the action. They also denied having
refused to sign the Sworn Statement in Proof of Loss and Subrogation Agreement.
 14 Feb 2001—RTC granted the intervention and denied Lavine’s MR.
 Answer with Compulsory Counterclaim, Rizal Surety stated its willingness to pay the insurance
proceeds but only to the rightful claimant, while Equitable Bank alleged it had sufficiently
established the amount of its claim and as beneficiary of the insurance policies, it was entitled
to collect the proceeds.
7
 The intervenors in their Amended Answer-in-Intervention with cross-claim against the
insurance companies alleged that as of August 1, 1998, Lavines obligations to Equitable Bank
amounted to P71,000,000.00 and since Equitable Insurance and Reliance Insurance have
already paid the bank more than this amount, respondent insurance companies should be
ordered to immediately deliver to Lavine the remaining insurance proceeds through the
intervenors and to pay interests thereon from the time of submission of proof of loss.
 The insurance companies filed interpleaders because they aren’t sure which party to pay.
 The RTC dismissed Chandru’s complaint and ordered insurance companies to pay through the
intervenors (not to Equitable Bank).
 Intervenors filed a motion for execution pending appeal on the following grounds: (a) TICO
was on the brink of insolvency; (b) Lavine was in imminent danger of extinction; and (c) any
appeal from the trial courts judgment would be merely dilatory.
 Rizal Surety, First Lepanto, Equitable Bank and Lavine separately filed a Notice of Appeal.
PhilFire likewise filed a Notice of Appeal, a Motion for Reconsideration (Ad Cautelam), and a
Motion to Dismiss.
 Meanwhile, Equitable Bank and Lavine (thru Chandru) separately filed a Rule 65.
 The motion for execution pending appeal was granted. Equitable Bank filed a supplemental
Rule 65 assailing the grant of execution pending appeal.
 The cases (appeals and Rule 65s) were consolidated in the CA. The CA ruled against the
intervenors and ordered the remand of the case to the lower courts and declared void the
execution pending appeal.
 Intervenors went to the SC via Rule 45
PETITIONER’S ARGUMENT(S):
 Judge Lavia disregarded mandatory provisions of the Rules of Court when he allowed
petitioners to intervene; that he also resolved the issue of corporate representation between
the two groups of directors of Lavine when he had no jurisdiction over the subject matter.
 Execution pending appeal is justified because respondent insurance companies admitted their
liabilities under the insurance contracts and thus have no reason to withhold payment.
 Appeals are merely dilatory because, while the insurance companies admitted their liabilities,
the matter of how much is owing from each of them and who is entitled to the same remain
unsettled.
 Lavines financial distress is sufficient reason to order execution pending appeal. In Borja v. CA,
execution pending appeal may be granted if the prevailing party is already of advanced age and
in danger of extinction.
RESPONDENT’S ARGUMENT(S):
 Judge Lavias partiality was evident in his refusal to issue and serve summons on Jethmal Inc.
and in conducting pre-trial on petitioners Second Amended Answer-in-Intervention.
 Certiorari may be allowed even with the availability of an appeal, such as where valid and
compelling considerations would warrant the same or where rigid application of the rules
would result in a manifest failure or miscarriage of justice, as in this case.
ISSUE(S): WON Execution pending appeal may be granted in this case—NO.
HELD: PARTIALLY GRANTED
THE RULE 65 PETITION SHOULD BE DISMISSED BECAUSE APPEAL IS AVAILABLE AS A REMEDY
 Equitable Bank and Lavine inappropriately filed the petitions for certiorari when appeal was
clearly a plain, speedy and adequate remedy from the decision of the trial court. In fact, both
filed their respective notices of appeal from the trial courts decision, although Lavine later
withdrew its notice of appeal. They therefore cannot be allowed to question the same
decision on the merits and also invoke the extraordinary remedy of certiorari.
 Simultaneous filing of a petition for certiorari under Rule 65 and an ordinary appeal under
Rule 41 of the Revised Rules of Civil Procedure cannot be allowed since one remedy would
necessarily cancel out the other.
 It is elementary that for certiorari to prosper, it is not enough that the trial court committed
grave abuse of discretion amounting to lack or excess of jurisdiction; the requirement that
there is no appeal, nor any plain, speedy and adequate remedy in the ordinary course of law
must likewise be satisfied.
EQUITABLE AND LAVINE RECOGNIZED ORDINARY APPEAL AS PROPER REMEDY IN SEEKING
REVERSAL OF THE ASSAILED DECISION
 When Equitable Bank and Lavine filed their respective petitions before the Court of Appeals
on April 24, 2002, the trial court had already rendered on April 2, 2002 a judgment on the
merits. Both had notice of said final judgment as they even filed notices of appeal with the
trial court. This only goes to show that Equitable Bank and Lavine unwittingly recognized
ordinary appeal.
 The remedy to obtain reversal or modification of the judgment on the merits is appeal. This is
true even if the error, or one of the errors, ascribed to the trial court rendering the judgment
is its lack of jurisdiction over the subject matter, or the exercise of power in excess thereof,
or grave abuse of discretion in the findings of fact or of law set out in the decision.
 While it may be true that a final order or judgment was rendered under circumstances that
would otherwise justify resort to a special civil action under Rule 65, the latter would
nonetheless be unavailing if there is an appeal or any other plain, speedy and adequate
remedy in the ordinary course of law.
NO VALID AND COMPELLING REASONS TO ALLOW R65 IN THIS CASE
 Equitable Bank simply alleged grave abuse of discretion on the part of the trial judge as
purportedly shown by a pattern of questionable rulings in favor of petitioners. However, these
rulings may not be corrected by certiorari no matter how irregular or erroneous they might
be. If the court has jurisdiction over the subject matter and of the person, its rulings upon all
questions involved are within its jurisdiction and may be corrected only by an appeal from the
final decision.
 Equitable’s reliance on Estate of Salud Jimenez v. Philippine Export Processing Zone is
misplaced. In that case, resort by the respondent to a special civil action was justified, even
as the reglementary period for the proper remedy of appeal had already lapsed, because the
assailed order of the trial court set aside an expropriation order that had long become final
and executory. The Court declared therein that the trial court clearly acted beyond its
jurisdiction for it cannot modify a final and executory order. The questioned order of the trial
court in that case was a patent nullity.
 Equitable Bank has not shown any valid or extraordinary circumstance that would justify
immediate resort to certiorari. It simply alleged grave abuse of discretion on the part of the
trial judge as purportedly shown by a pattern of questionable rulings in favor of petitioners.
However, these rulings may not be corrected by certiorari no matter how irregular or
8
 erroneous they might be.
EQUITABLE AND LAVINE ARE GUILTY OF FORUM SHOPPING
 Although PCIBank did not join its co-parties in the latters appeal and instead separately filed
its own petition under Rule 65, the Court nonetheless found PCIBanks acts as constituting
forum- shopping.
 If we allow the instant petitions of Equitable Bank and Lavine to prosper, this Court would be
confronted with the spectacle of two (2) appellate court decisions (one on the special civil
actions brought by Equitable Bank and Lavine, and another on the ordinary appeals taken by
Rizal Surety, Equitable Bank and the other respondents) dealing with the same subject matter,
issues, and parties.
whose existence cannot be likened to a natural person. Its precarious financial condition is
not by itself a compelling circumstance warranting immediate execution and does not
outweigh the long-standing general policy of enforcing only final and executory judgments.
OTHER ISSUES RAISED NO LONGER DISCUSSED
 The propriety of the intervention, the lack of pre-trial and the extent of Equitable Banks
interests in the insurance proceeds, among others, are issues that must properly be resolved
in the ordinary appeals. Except for Lavine which apparently withdrew its notice of appeal, all
the other respondents appealed the decision of the trial court under Rule 41. These appeals
must consequently be allowed to proceed.

[IMPORTANT] AS A GR, THERE CAN BE NO EXECUTION PENDING APPEAL

 Certiorari lies against an order granting execution pending appeal where the same is not
founded upon good reasons. The fact that the losing party had also appealed from the
judgment does not bar the certiorari proceedings, as the appeal could not be an adequate
remedy from such premature execution. Additionally, there is no forum-shopping where in
one petition a party questions the order granting the motion for execution pending appeal
and at the same time questions the decision on the merits in a regular appeal before the
appellate court. After all, the merits of the main case are not to be determined in a petition
questioning execution pending appeal and vice versa.
 The general rule is that only judgments which have become final and executory may be
executed. However, discretionary execution of appealed judgments may be allowed under
Section 2 (a) of Rule 39 of the Revised Rules of Civil Procedure upon concurrence of the
following requisites: (a) there must be a motion by the prevailing party with notice to the
adverse party; (b) there must be a good reason for execution pending appeal; and (c) the good
reason must be stated in a special order. The yardstick remains the presence or the absence
of good reasons consisting of exceptional circumstances of such urgency as to outweigh the
injury or damage that the losing party may suffer, should the appealed judgment be reversed
later.
 Since the execution of a judgment pending appeal is an exception to the general rule, the
existence of good reasons is essential.

[IMPORTANT] NO COMPELLING REASONS TO GRANT EXECUTION PENDING APPEAL

 The fact that the insurance companies admit their liabilities is not a compelling or superior
circumstance that would warrant execution pending appeal. On the contrary, admission of
their liabilities and willingness to deliver the proceeds to the proper party militate against
execution pending appeal since there is little or no danger that the judgment will become
illusory.
 Respondent insurance companies are questioning the amounts awarded by the trial court for
being over and above the amount ascertained by the Office of the Insurance Commission.
There are also three parties claiming the insurance proceeds, namely: petitioners, Equitable
Bank, and Lavine as represented by the group of Chandru.
 The appeal being merely dilatory is not a good reason for granting execution pending appeal.
 Borja is not applicable to the case at bar because its factual milieu is different. In Borja, the
prevailing party was a natural person who, at 76 years of age, may no longer enjoy the fruit
of the judgment before he finally passes away. Lavine, on the other hand, is a juridical entity

9
 CURATA VS PPA G.R. Nos. 154211-12
June 22, 2009 Velasco, Jr., J.
Execution of Judgment
SUMMARY: PPA filed complaint for expropriation. RTC allowed the expropriation. PPA
appealed to CA. pending appeal, RTC issued several orders implementing the Compensation
Orders. Petitioners question the propriety of execution pending appeal.
DOCTRINE: The funds of PPA partake of government funds, and such may not be garnished
absent an allocation by its Board or by statutory grant. If the PPA funds cannot be garnished
and its properties, being government properties, cannot be levied via a writ of execution
pursuant to a final judgment, then the trial court likewise cannot grant discretionary
execution pending appeal, as it would run afoul of the established jurisprudence that
government properties are exempt from execution. What cannot be done directly cannot be
done indirectly.
FACTS: (Guys, sorry, andaming nangyari)
PPA filed a Complaint for Expropriation of 185 lots (231 owners) before the RTC (in
accordance with EO 385 and EO 431 Series of 1990 delineating the Batangas Port Zone or
BPZ).
For convenience, the RTC divided the defendant-lot owners into three groups: the first group
represented by Atty. Reynaldo Dimayacyac (Dimayacyac Group); the second group by Attys.
Gregorio F. Ortega (Ortega Group) and Cesar C. Cruz (Cruz Group); and the third group by
Atty. Emmanuel Agustin (Agustin Group). There were other defendant-lot owners who did not
belong to any of said groups.
RTC allowed the expropriation and appointed three Commissioners to determine just
compensation. The Partial report of the Commissioners recommended PhP 4,800 per square
meter. PPA protested such, saying that the price should be lower considering that the lots
were agricultural in nature.
The First Compensation Order (July 10, 2000 Order Involving Dimayacyac Group)
RTC ordered PPA to pay the Dimayacyac Group PhP5,500 per square meter (it amended the
recommendation)
After this, the Dimayacyac Group filed a motion for issuance of writ of execution, which was
granted by RTC.A notice of garnishment was also sent to LBP Batangas.
The Second Compensation Order (August 15, 2000 Order involving the Agustin, Ortega and Cruz
Groups and Pastor Realty Corp., et al.)
Same price as the first (5,500) but this order included in the fixed compensation those lot-
owners similarly situated but who did not file their answer.
PPA questioned the two orders with the CA but the CA dismissed the appeals. Hence, this
petition.
BUT WAIT THERE’S MORE
The RTC issued several orders implementing the two Compensation Orders concerning the
Agustin and Ortega Groups.
PPA also questioned these orders which implemented the Compensation Orders. However,
PPA was not able to seasonably file the Record on Appeal (nagbrownout kasi on the last day,
half-day yung govt workers so di umabot). Also, they failed to pay docket fees. So RTC said
that the orders became final and executory. PPA appealed this to the CA.
There were orders implementing the Compensation Order for the cruz group which attained
finality because PPA did not appeal. Thus, upon motion, RTC granted a writ of execution to the
Cruz Group.
In the meantime, RTC granted a writ of possession to PPA upon its deposit of a certain amount
of money. So, PPA took possession of some lots.
While the August 15, 2000 Order was pending appeal with the CA, the Agustin group filed a
Motion for Immediate Payment and prayed for the release of 100% of the zonal value of the
lots, based on RA 8974. Because PPA filed to question the orders on time, the Land Bank of
the Philippines was directed to pay the amount ordered by the RTC.
ISSUES:
WON execution pending appeal is applicable to expropriation proceedings - NO
HELD: WHEREFORE, the Court resolves to DENY giving due course to the petitions in G.R. No.
207412 and G.R. No. 207542.
RATIO: (GUYS, NILAGAY KO LANG LAHAT NG RELATED TO EXECUTION PERO FEEL KO YUNG
FIRST PART LANG ANG RELATED DITO. Everything else relates to expropriation so di ko na
sinama coz sobrang haba.)
As early as 1919 in Visayan Refining Co. v. Camus and Paredes,[100] the Court held: “When
the Government is plaintiff the judgment will naturally take the form of an order merely
requiring the payment of the award as a condition precedent to the transfer of the title, as a
personal judgment against the Government could not be realized upon execution.”
PPA’s monies, facilities and assets are government properties. Ergo, they are exempt from
execution whether by virtue of a final judgment or pending appeal.
PPA is a government instrumentality charged with carrying out governmental functions
through the management, supervision, control and regulation of major ports of the country. It
is an attached agency of the Department of Transportation and Communication pursuant to
PD 505.
Therefore, an undeniable conclusion is that the funds of PPA partake of government funds,
and such may not be garnished absent an allocation by its Board or by statutory grant. If the
10
PPA funds cannot be garnished and its properties, being government properties, cannot be
levied via a writ of execution pursuant to a final judgment, then the trial court likewise cannot
grant discretionary execution pending appeal, as it would run afoul of the established
jurisprudence that government properties are exempt from execution. What cannot be done
directly cannot be done indirectly.

G.R. No. 168272

Ps Buenafe and Castillo are claiming that they should benefit from the July 10, 2000 Order
(First Compensation Order) despite not being expressly mentioned in the Order.

It is simple logic that said petitioners were not included in the PPAs appeal, since they were
not covered by the July 10, 2000 Order. Hence, they cannot claim that because they were not
included in the appeal, then they can demand execution of an order that does not apply to
them in the first place. More importantly, since they are not included in the First
Compensation Order, then such order cannot be considered as an adjudication in their favor.
Consequently, the nullification of the November 6, 2003 Order utilizing the July 10, 2000
Order is proper. Where the Order of execution is not in harmony with and exceeds the final
order that gives it life, the order has pro tanto no validity.

11
 GARCIA v. PAL GR No. 165856
January 20, 2009 Carpio-Morales, J.
TOPIC IN SYLLABUS: Execution of Judgment Digest By: Maite Fernandez
SUMMARY: Petitioners filed an illegal dismissal case against PAL, which was placed under
rehabilitation receivership. The LA ruled in their favor and ordered immediate
reinstatement. The NLRC later reversed. Petitioners sought the salaries for the period
between the LA’s favorable decision and the NLRC’s decision. SC held that that generally,
such would have been awarded, but this obligation does not attach when the delay in
enforcing reinstatement pending appeal was without the employer’s fault.
DOCTRINE: A dismissed employee whose case was favorably decided by the LA is entitled to
receive wages pending appeal upon reinstatement, which is immediately executory. Unless
there is a restraining order, it is ministerial upon the LA to implement the order of
reinstatement and it is mandatory on the employer to comply therewith. | After the LA’s
decision is reserved by a higher tribunal, the employee may be barred from collecting the
accrued wages if it is shown that the delay in enforcing reinstatement pending appeal was
without the employer’s fault.
PROCEDURAL ANTECEDENTS: R45 assailing CA decision annulling writ of execution and notice of
garnishment issued by the LA.
FACTS:
PAL filed administrative charges against Garcia and Dumago after allegedly being caught sniffing
shabu during a raid of the PAL Technical Centers Toolroom Section. After due notice, the 2 were
dismissed for transgressing PAL Code of Discipline, prompting the 2 to file a complaint for illegal
dismissal. LA ruled in their favor, ordering PAL to immediately comply with the reinstatement
aspect of the Decision. Prior to the LA decision, however, SEC placed PAL under Receivership.
PAL appealed to the CA which reversed the LA and dismissed the complaint for lack of merit.
MR denied and an Entry of Judgment was issued on July 13, 2000.
Subsequently (Oct. 5, 2000) LA issued a Writ of Execution (writ) respecting the reinstatement
aspect of its decision and on Oct 25, issued a Notice of Garnishment (notice). PAL moved to
quash the Writ and lift the Notice, while petitioners moved to release the garnished amount.
PAL then filed an Urgent Petition for Injunction with the NLRC, which affirmed the validity of the
writ and notice, BUT suspended and referred the action to the Rehabilitation Receiver for
appropriate action.
PAL elevated the matter to the CA, which nullified the NLRC resolutions on 2 grounds: (a) no
basis for implementing the reinstatement aspect due to a subsequent finding of a valid dismissal
(1st ground), and (b) impossibility to comply with the order due to corporate rehabilitation (2nd
ground).
The case reached the SC, which, in its Aug 2007 Decision, partially granted the present petition
in that, proceedings were suspended until further notice from the Court. Thereafter, PAL by
manifestation and compliance, informed the court that the SEC granted its request to exit from
rehab proceedings. In view of the termination of the rehab, proceeded to resolve the remaining
issue.
ISSUE(S): WoN petitioners may collect their wages during the period between LA’s order of
reinstatement pending appeal and NLRC decision overturning the LA decision, now that PAL
exited from rehab proceedings —N
HELD:
Anent 1st ground, SC noted the seemingly divergent decisions concerning reinstatement
pending appeal, or particularly, option of payroll reinstatement (Air Phil Corp v. Zamora v.v.
Genuino v. NLRC). At the core thereof is the application of Art 223, par. 3 of the Labor Code,
which reads:
“In any event, the decision of the Labor Arbiter reinstating a dismissed or separated
employee, insofar as the reinstatement aspect is concerned, shall immediately be
executory, pending appeal. The employee shall either be admitted back to work under
the same terms and conditions prevailing prior to his dismissal or separation or, at the
option of the employer, merely reinstated in the payroll. The posting of a bond by the
employer shall not stay the execution for reinstatement provided herein.”
In Air Phil Corp v. Zamora: a dismissed employee whose case was favorably decided by the LA is
entitled to receive wages pending appeal upon reinstatement, which is immediately executory.
Unless there is a restraining order, it is ministerial upon the LA to implement the order of
reinstatement and it is mandatory on the employee to comply therewith. If on appeal the
decision is reversed with finality, the employee is not required to reimburse whatever salary he
received.
Genuino v. NLRC: If the decision of the LA is later reversed on appeal upon the finding that the
ground for dismissal is valid, then the employer has the right to require the dismissed employee
on payroll reinstatement to refund the salaries s/he received while the case was pending appeal,
unless the employee was reinstated to work and rendered actual services.
SC Resolution: Air Philippines doctrine prevails. The social justice principles of labor law outweigh
or render inapplicable the civil law doctrine of unjust enrichment. The “refund doctrine”
demonstrates how a favorable decision by the LA could harm, more than help, a dismissed
employee. The employee would necessarily have to use up the salaries received during the
appeal’s pendency, only to have to refund these in case of a final unfavorable decision. It would
become more logical for the employee to refuse payroll reinstatement and find work elsewhere
in the interim, if any is available.
The new NLRC Rules of Procedure, which took effect on January 7, 2006, now require the
employer to submit a report of compliance within 10 calendar days from receipt of the LA’s
decision, disobedience to which clearly denotes a refusal to reinstate—the employee need not
file a motion for the issuance of the writ of execution since the LA shall thereafter motu proprio
issue the writ, and, with the new rules in place, there is hardly any difficulty in determining the
employer’s intransigence in immediately complying with the order
The rule on reinstatement pending appeal necessitates immediate execution. Any attempt of
the employer to evade or delay execution should not be countenanced. But after the LA’s
decision is reversed by a higher tribunal, the employee may be barred from collecting the
accrued wages if it is shown that the delay in enforcing reinstatement pending appeal was
without the employer’s fault.
12
 rehabilitation may have prevented PAL from exercising its option either to re-admit
Two-fold test: (1) actual delay and (2) not due to the employer’s unjustified act or omission. petitioners to work or to reinstate them in the payroll, it did not defeat petitioners right to
Here, there was delay, but it may be attributable to the appointment of the rehabilitation reinstatement pending appeal which vested upon rendition of the LA’s decision; more so
receiver. Thus, the delay was justified and PAL’s obligation to pay the salaries pending appeal when no actual and imminent substantial losses were proven by PAL. To reiterate, there is
did not attach. While reinstatement pending appeal aims to avert the continuing threat or no longer any legal impediment to hold PAL liable for petitioners salaries which
danger to the survival or even the life of the dismissed employee and his family, it does not automatically accrued from notice of the Labor Arbiters order of reinstatement until its
contemplate the period when the employer-corporation itself is similarly in a judicially ultimate reversal by the NLRC.
monitored state of being resuscitated in order to survive.
Dissenting, J. Velasco, Jr.
1. Since no actual or payroll reinstatement pending appeal transpired, petitioners are no
longer entitled to their salaries for the period in question with the reversal of the Labor
Arbiters reinstatement order. There is no more legal basis for the payment of their salaries
since their right to reinstatement pending appeal has been lost and extinguished. To release
their salaries for the period in question would constitute unjust enrichment.
2. The writ of execution in the instant case was issued after the promulgation of the NLRC
resolution. As petitioners failed to act on their rights and seek enforcement of the
reinstatement pending appeal, PAL is not liable to pay their accrued salaries for the period
in question.
3. Art. 223 of the Labor Code does not automatically make the employer liable for accrued
salaries during the reinstatement pending appeal where no reinstatement took place. The
only relief given under the NLRC Rules of Procedure is the remedy of compulsion via a
citation for contempt.
Separate Opinion, J. Quisumbing:
1. The principle of unjust enrichment does not apply. First, the provision on reinstatement
pending appeal is in accord with the social justice philosophy of our Constitution. It is meant
to afford full protection to labor as it aims to stop (albeit temporarily, since the appeal may
be decided in favor of the employer) a continuing threat or danger to the survival or even
the life of the dismissed employee and his family. Second, the provision on reinstatement
pending appeal partakes of a special law that must govern the instant case. The provision
of the Civil Code on unjust enrichment, being of general application, must give way.
2. The reinstatement order is self-executory. It does not require a writ of execution, much less
a motion for its issuance. To require petitioners to move for the enforcement of the
reinstatement order and blame them for its belated enforcement, as J. Velasco does, would
render nugatory the self-executory nature of the award.
3. Contrary to the position of J. Velasco, there are actually two reliefs given in the NLRC Rules:
(1) the payment of accrued salaries, and (2) a citation for contempt. If the Labor Arbiters
decision includes a reinstatement order, the decision should state that the reinstatement
aspect is immediately executory and direct the employer to submit a compliance report
within ten calendar days from receipt of the said decision. Should the employer disobey the
directive of the Labor Arbiter or refuse to reinstate the dismissed employee, the Labor
Arbiter shall immediately issue a writ of execution, even pending appeal, directing the
employer to immediately reinstate the dismissed employee either physically or in the
payroll, and to pay the accrued salaries as a consequence of such reinstatement. If the
employer still disobeys the writ of execution, then he may be cited for contempt.
4. Rehabilitation merely provides for the automatic stay of all pending actions or the
suspension of payments of the distressed corporation to prevent the dissipation of its
assets; it does not relieve the corporation of its obligations. Upon its successful
rehabilitation, it must settle in full all claims previously suspended. Thus, while its
13
 LEONARDO ARCENAS v. CA GR No. 130401
Dec. 04 1998 Martinez, J.
TOPIC IN SYLLABUS: Execution of Judgment Digest By: Monique Lee
SUMMARY:
Decision was rendered by RTC Rizal in favor of private respondent Dela Riva, which awarded
payment of unrealized profits, moral damages, exemplary damages, attorney’s fees, and
costs to the latter. This became final and executory. Due to the failure to execute despite a
granted Motion for Issuance of Writ of Execution, the private respondent filed a Complaint
for Revival of Judgment before RTC Pasig. The Sheriff tried to serve personally to the
petitioner herein but to no avail since the latter was allegedly living abroad already, he was
thereafter declared in default. Judgment was then rendered in favor of Dela Riva, awarding
him damages higher than that originally granted by the RTC. Petitioner, through his attorney-
in-fact contested this alleging that the court never acquired jurisdiction over him for failure
to serve summons, and that the judgment of the RTC in the Complaint for Revival was
substantially different from the original decision as rendered by RTC Rizal. The SC agreed
with the arguments of the petitioner.
DOCTRINE:
Purpose of the action for revival of judgment is not to modify the original judgment subject
of the action but is merely to give a creditor a new right of enforcement from the date of
revival. The rule seeks to protect judgment creditors from wily and unscrupulous debtors
who, in order to evade attachment or execution, cunningly conceal their assets and wait until
the statute of limitations sets in.
PROCEDURAL ANTECEDENTS:
Petition for Review on Certiorari to the SC impugning the decision of the CA dismissing the
Petition for Annulment of Judgment filed by the petitioner.
FACTS:
The RTC of Rizal rendered a decision on Mar. 21, 1985 in favor of defendant Jose dela Riva,
ordering plaintiffs Emilio Espino to return the barge, pay unrealized profit, and for both Espino
and Leonardo Arcenas to pay moral damages, exemplary damages, attorney’s fees and costs.
The CA affirmed this but reduced the moral damages and exemplary damages. The SC dismissed
the Petition for Review filed by Arcenas. The decision of the CA became final and executory on
Nov. 2, 1987.
- Unrealized profits: P46,000 monthly from Feb. 3, 1980 until actual possession is
surrendered to Dela Riva (Espino only liable for this)
- Moral Damages: P10,000
- Exemplary Damages: P2,000
- Attorney’s Fees: P15,000 each
- Costs
Dela Riva filed a Motion for Issuance of Writ of Execution which was granted on Jan. 25, 1988.
However, despite the issuance of the Writ, there was a failure to enforce the judgment.
On Oct. 13, 1993, or five years from the time of entry of judgment, dela Riva filed a Complaint
for Revival of Judgment before RTC of Pasig.
In the Sheriff’s Return, it was stated that the sheriff tried to serve summons upon the defendants
but failed, the sheriff said that he was told by the neighbor that the defendant is already out of
the country, however the defendant’s counsel told him that the defendant is still here
conducting his business. Sheriff then tried to serve summons on Arcenas’ mother who refused
to receive it. Upon motion, the sheriff served alias summons on the mother of Arcenas who
again refused to accept the same. There was no mention of WON there was proper service on
Espino, but since it was not raised as an issue in this case, then presumably, it has been properly
served.
Arcenas failed to file his Answer, and upon motion by Dela Riva, was declared in default. On Mar.
21, 1994, the RTC rendered a decision in favor of Dela Riva.
- Reviving decision of the RTC of Rizal and for the corresponding writ of execution to
be issued
- Ordering defendant Arcenas to pay plaintiff (a) P171,022 in his capacity as one of the
principals under the surety bond, (b) P10,000 as moral and exemplary damages, and
(c) 15% of the amount recoverable as and by way of attorney’s fees.
On Mar. 8, 1995, a Writ of Execution was issued and Arcenas’ properties were levied.
On Feb. 17, 1997, petitioner through his attorney-in-fact Carmelita A. Villanueva filed before
the CA a Petition to Annul the Judgment of the RTC. This was denied.
PETITIONER’S ARGUMENT(S):
The TC never acquired jurisdiction over his person because there was no valid service of
summons since he was already living in the US when the summons was served and that it was
served at the wrong address.
The TC decision is void because it substantially amended the original decision of the RTC
absolving him of any liability with regard to the return of the barge.
RESPONDENT’S ARGUMENT(S):
Petitioner never sufficiently proved that he was already living outside the Philippines when
summons was served on his house. The attorney-in-fact of Arcenas (who is also his sister),
averred that her brother left the Philippines on or about Apr. 1991 and has not returned since
then. On the other hand, Arcenas’ mother averred that her son was already in the States since
Jun. 1993. Further, it is stated in the Sheriff’s Return that the security guard of the village of
Arcenas said that the latter occasionally visits the place. There was also no evidence presented
as to when Arcenas allegedly left the Philippines.
ISSUE(S):
WON there was valid service of summons / NO!
WON decision of RTC Pasig is valid, assuming that there was valid service of summons / NO!
HELD:
NO PROPER SERVICE OF SUMMONS
14
In this case, petitioner is no longer residing and found in the Philippines. He left for the US in
June 1993 as evidenced by the Sheriff's Return. Hence, summons may be served on him either
personally or by publication. However, since the complaint filed against him is one in
personam (a personal action) and does not involve the personal status of the private
respondent, nor any property in the Philippines in which petitioner has or claim or an interest,
or which the private respondent has attached, summons should be served on him personally.
The deputy sheriff cannot serve the summons by substituted service.

REVIVAL OF JUDGMENT MUST ONLY REVIVE THE DECISION OF THE COURT, AND NOT TO
AMEND THE SAME
Even assuming that the TC acquired jurisdiction over the person of the petitioner, still, the
judgment rendered by it is a nullity because the original judgment which was the subject of the
action for revival was substantially modified.
The judgment of RTC Rizal ordered only petitioner's co-defendant Espino to return the barge to
Dela Riva and to pay unrealized profit from February 3, 1980 or until June 18, 1980. The said
judgment absolved petitioner from any liability insofar as the barge is concerned but found him
jointly liable to private respondent and Antonio Sy, Sr., for moral and exemplary damages.
On the other hand, the revived judgment now subject of this case, substantially modified the
original judgment by directing petitioner to pay private respondent the sum of P171,022.00
representing double the value of the barge; P10,000.00 as moral and exemplary damages; and
15% of the amount recoverable by way of attorney's fees.
These new monetary awards can not be allowed since they were not adjudged in the original
judgment which had long become final and executory. For, it is a fundamental rule that when a
final judgment becomes executory, it thereby becomes immutable and unalterable.
Any amendment or alteration which substantially affects a final and executory judgment is null
and void for lack of jurisdiction, including the entire proceedings held for that purpose.
The purpose of the action for revival for a judgment is not to modify the original judgment
subject of the action but is merely to give a creditor a new right of enforcement from the date
of revival. The rule seeks to protect judgment creditors from wily and unscrupulous debtors
who, in order to evade attachment or execution, cunningly conceal their assets and wait until
the statute of limitation sets in.

WHEREFORE, the petition is hereby GRANTED. The Decision of the Court of Appeals dated June
3, 1997 in CA-G.R. SP. No. 43407 is hereby REVERSED and SET ASIDE.

15
 RCBC v. Serra GR No. 203241
July 10, 2013 Carpio, J.
TOPIC IN SYLLABUS: Execution of Judgment Lopez, C.
SUMMARY: Serra and RCBC entered into a contract of lease with option to buy. When RCBC
informed Serra of his decision to exercise its option ot buy, Serra replied that he was no
longer selling his property. RCBC filed a complaint for specific performance (Spec Perf Case).
RTC ruled in favor of RCBC. Serra appealed to CA. During pendency of the case with the CA,
Serra donated his property to his mother who then sold it to Liok. RCBC filed a complaint for
nullification of deed of donation and sale (Annulment Case). RTC, CA, SC all ruled in favor of
RCBC. Afterwards, RCBC filed a motion for execution of the Spec Perf Case. Serra opposed
this, alleging that the motion was barred by prescription and laches. SC held that although
the motion was filed after 5 years from when the judgment became final and executory, it
falls under the exceptions. Since the delay was caused by Serra through fraudulent transfers,
execution through motion is still allowed.
DOCTRINE: A final and executory judgment may be executed by motion within five years
from the date of its entry or by an action after the lapse of five years and before prescription
sets in. Exceptions are allowed when execution may be made by motion even after the lapse
of five years. These exceptions have one common denominator: the delay is caused or
occasioned by actions of the judgment obligor and/or is incurred for his benefit or
advantage.
PROCEDURAL ANTECEDENTS: Petition for Review on Certiorari with Prayer for WPI and TRO
from RTC Makati Decision
FACTS:
 May 20, 1975 – Serra and RCBC entered into a contract of lease with option to buy. Serra
would grant RCBC the option to buy his parcel of land within 10 years from the signing of
the contract.
 Sept. 4, 1984 – RCBC informed Serra of its decision to exercise his option to buy. Serra
replied that he was no longer interested in selling.
 Mar 14, 1985 – RCBC filed a complaint for Specific Performance and Damages before RTC
Makati (Spec Perf Case)
o RTC initially dismissed, later reversed itself in the Jan 5, 1989 Order. RTC ordered
Serra to execute and deliver the deed of sale.
o Serra appealed to CA but CA and SC affirmed RTC.
o Jan 4, 1994 – SC declared that Contract of Lease with Option to Buy was valid,
effective and enforceable.
o April 15, 1994 – the decision in the Spec Perf case became final and executory upon
entry of judgment.
 May 18, 1989 – Serra donated the property to his mother (Ablao) who then sold it to Liok.
A new land title was issued in favor of Liok.
 RCBC then filed a complaint for Nullification of Deed of Donation and Deed of Sale
(Annulment case).
o RTC Masbate ruled in favor of RCBC and held that the deed of donation and sale
was null and void.
o CA upheld the RTC, stating that the deed of donation was simulated and done to
evade obligation. Since Ablao had no right to transfer and Liok was not a buyer in
GF, the deed of sale is likewise void.
 Liok filed a Petition for Certiorari. Serra and Ablao also filed a petition for Certiorari.
o In separate resolutions, SC held that CA did not commit reversible error or grave
abuse of discretion.
 Aug 25, 2011 – RCBC moved for execution of Spec Perf case, stating that since it was
legally impossible to ask for execution prior to the Annulment transfer, the period to
execute by motion has been suspended.
 Serra insists that motion for execution was barred by prescription and laches. He alleges
that RCBC was at fault for failing to register as lien in the original title the contract of lease
with option to buy.
 RTC Makati denied the motion for execution
o Ruling that RCBC should have asked for the execution of the deed of sale and have
the same registered with the Registry of Deeds, so that even if Serra sold or
transferred the subject property to any person the principle of caveat emptor would
set in.
ISSUE(S): W/N RTC Makati erred in holding that RCBC is barred from having the Jan 5 1989 RTC
decision executed through a motion?
YES. The case falls under the exceptions for execution through motion after lapse of 5 years.
HELD:
 A final and executory judgment may be executed by motion within five years from the
date of its entry or by an action after the lapse of five years and before prescription sets
in.
 Exceptions are allowed when execution may be made by motion even after the lapse of
five years. These exceptions have one common denominator: the delay is caused or
occasioned by actions of the judgment obligor and/or is incurred for his benefit or
advantage.
 In Camacho v. Court of Appeals: where delays were occasioned by the judgment debtor’s
own initiatives and for her advantage as well as beyond the judgment creditor’s control,
the five-year period allowed for enforcement of the judgment by motion is deemed to
have been effectively interrupted or suspended.
 In CAB: No dispute that RCBC seeks to enforce the decision which became final and
executory on 15 April 1994. However, to evade his obligation to RCBC, Serra transferred
the property which prompted RCBC to file the Annulment case.
 Delay in the execution of the decision was caused by Serra for his own advantage.
Pendency of the Annulment case effectively suspended the five-year period to enforce
through a motion the decision in the Specific Performance case.
 Decision in the Annulment case attained finality on March 3, 2009 and RCBC’s motion for
execution was filed on Aug 25, 2011, RCBC’s motion is deemed filed within the five­year
period
 Purpose of prescribing time limitations for enforcing judgments is to prevent parties from
sleeping on their rights. Far from sleeping on its rights, RCBC has pursued persistently its
action against Serra in accordance with law.
PETITION GRANTED
16
 INFANTE v ARAN BUILDERS GR No. 156596
24 August 2007 Austria-Martinez, J.
TOPIC IN SYLLABUS: Execution of Judgment (R39) Digest By: Manalastas
SUMMARY: Aran filed an Action for Revival of Judgment in the RTC of Muntinlupa against
Infante. The judgment sought to be revived was rendered by the RTC of Makati, and the
original judgment was for an Action for Specific Performance which ordered Infante to
execute a Deed of Sale over Ayala Alabang properties. Infante filed a MTD on the ground
that the venue was improperly laid, because the original judgment was rendered in Makati.
RTC denied the MTD. CA affirmed the denial, saying that since the action involved title to or
possession of real property, it properly belongs to the RTC where the property is located --
in Muntinlupa, where Aran also happened to file it. SC affirmed the lower courts. Since the
revival involved a real action, the complaint should be filed with the RTC where the realty is
located.
DOCTRINE: Under Rule 4 ROC, the proper venue depends on the determination of whether
the action for revival of judgment is a real action or a personal action. Applying the rules on
venue, if the action for revival of judgment affects title to or possession of real property or
any interest therein, it is a real action that must be filed with the court of the place where
the real property is located. If such action does not fall under the category of real actions, it
is then a personal action that may be filed with the court of the place where the plaintiff or
defendant resides.
FACTS:
In 06 June 2001, Aran filed an Action for Revival of Judgment in the RTC of Muntinlupa against
Infante
The judgment sought to be revived was rendered by the RTC of Makati in an Action
for Specific Performance and Damages.
The Makati RTC judgment, which became final and executory on 16 November
1994. It ordered Infante to do the following, among others:
1) To deliver to the plaintiff ARAN BUILDERS, INC. the: the complete
plans; irrevocable Power of Attorney; Real Estate Tax clearance; tax
receipts; etc.
2) To execute the deed of sale of a lot Ayala Alabang Subdivision in
favor of the plaintiff;
3) To register the deed of sale with the Registry of Deeds and deliver
to AYALA CORPORATION the certificate of title issued in the name of
plaintiff pursuant to such registration;
4) To pay to the defendant the sum of P321,918.
Petitioner filed a motion to dismiss (MTD) the Action for Revival of Judgment, on
the grounds that a) the Muntinlupa RTC has no jurisdiction over the persons of the
parties and that b) venue was improperly laid. Private respondent opposed the
motion.
Muntinlupa RTC denied the MTD.
CA affirmed. It held that since the judgment sought to be revived was rendered in
an action involving title to or possession of real property, or interest therein, the
action for revival of judgment is then an action in rem which should be filed with
the RTC of the place where the real property is located. Petitioner moved for
reconsideration of the CA Decision but the motion was denied.
Hence, the present petition before the SC.
PETITIONER POV: The CA was wrong in finding that the complaint for revival of judgment is an
action in rem which was filed with the RTC of the place where the disputed real property is
located. In contrast, the action for revival of judgment is an action in personam; therefore, the
complaint should be filed with the RTC of the place where either petitioner or private
respondent resides. Hence, the filing of the action for revival of judgment with the RTC of
Muntinlupa City, the place where the disputed property is located, should be dismissed on the
ground of improper venue.
RESPONDENT POV: The judgment I’m seeking to revive involves interest over real property. As
such, the present action for revival is a real action, and venue was properly laid with the court
of the place where the realty is located.
ISSUE(S): W/N the Action for Revival is properly brought before RTC of Muntinlupa: [YES]
SC HELD:
Section 6, Rule 39 of the 1997 ROC provides that after the lapse of five (5) years from entry of
judgment and before it is barred by the statute of limitations, a final and executory judgment
or order may be enforced by action. The Rule does not specify in which court the action for
revival of judgment should be filed.
In Aldeguer v. Gemelo, the SC held that:
“An action upon a judgment must be brought either in the same
court where said judgment was rendered or in the place where the
plaintiff or defendant resides, or in any other place designated by the
statutes which treat of the venue of actions in general.”
17
…but SC also emphasized that other provisions in the rules of procedure which fix the venue
of actions in general must be considered.

Under the present Rules found under Rule 4, the proper venue depends on the determination
of whether the present action for revival of judgment is a real action or a personal action. Applying
the said rules on venue, if the action for revival of judgment affects title to or possession of real
property, or interest therein, then it is a real action that must be filed with the court of the place
where the real property is located. If such action does not fall under the category of real actions,
it is then a personal action that may be filed with the court of the place where the plaintiff or
defendant resides.

Moreover, it is the allegations in the complaint for revival of judgment that determine whether
it is a real action or a personal action.

Recall that the Complaint for Revival of Judgment alleges that a final and executory judgment
has ordered herein petitioner to execute a deed of sale over a parcel of land in Ayala Alabang
Subdivision in favor of herein private respondent; pay all pertinent taxes in connection with said
sale; register the deed of sale, and so on. It is further alleged that petitioner refused to comply
with her judgment obligations despite private respondent's repeated requests and demands, and
that the latter was compelled to file the action for revival of judgment. Private respondent then
prayed that the judgment be revived and a writ of execution be issued to enforce said judgment.

The previous judgment has conclusively declared private respondent's right to have the title
over the disputed property conveyed to it. It is, therefore, undeniable that private respondent
has an established interest over the lot in question; and to protect such right or interest, private
respondent brought suit to revive the previous judgment. The sole reason for the present action
to revive is the enforcement of private respondent's adjudged rights over a piece of realty.
Verily, the action falls under the category of a real action, for it affects private respondent's
interest over real property.

The present case for revival of judgment being a real action, the complaint should indeed be filed
with the RTC of the place where the realty is located.

From Sec 18 of BP 129 (see), it is quite clear that a branch of the RTC shall exercise its authority
only over a particular territory defined by the Supreme Court. Originally, Muntinlupa City was
under the territorial jurisdiction of the Makati Courts. However, Section 4 of RA 7154 (An Act to
Amend Sec 14 of BP 129, Otherwise Known As The Judiciary Reorganization Act of 1981, took
effect on September 4, 1991. Said law provided for the creation of a branch of the RTC in
Muntinlupa. Thus, it is now the RTC in Muntinlupa City which has territorial jurisdiction or
authority to validly issue orders and processes concerning real property within Muntinlupa City.

Thus, there was NO GAD committed by the RTC of Muntinlupa City when it denied petitioner's
motion to dismiss; and the CA did not commit any error in affirming the same.

Petition DENIED.

18
 ALBINO JOSEF vs. OTELIO SANTOS G.R. No. 165060
November 27, 2008 YNARES-SANTIAGO
TOPIC IN SYLLABUS: Execution of Judgment (Rule 39) Digest By: PUNZALAN
SUMMARY: Otelio Santos filed a complaint for collection of sum of money against Albino Josef.
The trial court, CA and SC decided in Otelio’s favor. Santos moved for the issuance of a writ of
execution which was granted despite Josef’s opposition. The writ was issued an enforced.
Personal and real property of Josef were sold on public auction. Josef filed a petition for
certiorari before the CA questioning the sale on the grounds that the personal property sold
off were not his own but his children and the real property sold was his family home which
was exempt. CA denied his petition.
DOCTRINE:
Upon being apprised that the property subject of execution allegedly constitutes petitioners
family home, the trial court should have observed the following procedure:
1. Determine if petitioners obligation to respondent falls under either of the exceptions
under Article 155of the Family Code;
2. Make an inquiry into the veracity of petitioners claim that the property was his family
home; conduct an ocular inspection of the premises; an examination of the title; an interview
of members of the community where the alleged family home is located, in order to
determine if petitioner actually resided within the premises of the claimed family home;
order a submission of photographs of the premises, depositions, and/or affidavits of proper
individuals/parties; or a solemn examination of the petitioner, his children and other
witnesses. At the same time, the respondent is given the opportunity to cross-examine and
present evidence to the contrary;
3. If the property is accordingly found to constitute petitioners family home, the court should
determine:
a) if the obligation sued upon was contracted or incurred prior to, or after, the effectivity of
the Family Code;
b) if petitioners spouse is still alive, as well as if there are other beneficiaries of the family
home;
c) if the petitioner has more than one residence for the purpose of determining which of
them, if any, is his family home; and
d) its actual location and value, for the purpose of applying the provisions of Articles 157 and
160 of the Family Code.
PROCEDURAL ANTECEDENTS:
Petition for review on certiorari under Rule 45 assailing the Resolution of the CA, dismissing
Petitioners Petition for certiorari for failure to file a prior motion for reconsideration, and the
Resolution denying the motion for reconsideration.
FACTS:
1. Petitioner Albino Josef was the defendant in a case for collection of sum of money filed by
respondent Otelio Santos
2. After trial, the RTC of Marikina City, Br. 272, found petitioner liable to respondent in the
amount of P404,836.50 with interest at 12% per annum reckoned from January 9, 1995
until full payment.
3. Petitioner appealed to the CA, which affirmed the RTC. Petitioner filed before the SC a
petition for review on certiorari, but it was dismissed. The Judgment became final and
executory on May 21, 2002.
4. On February 17, 2003, respondent moved for issuance of a writ of execution, which was
granted in an Order dated July 16, 2003, despite the petitioner’s opposition.
5. A writ of execution was issued on August 20, 2003 and enforced on August 21, 2003. On
August 29, 2003, certain personal properties subject of the writ of execution were
auctioned off. Thereafter, real property located at Marikina City was sold on October 28,
2003 by way of public auction to fully satisfy the judgment credit. Respondent emerged as
the winning bidder and a Certificate of Sale dated November 6, 2003 was issued in his
favor.
6. On November 5, 2003, petitioner filed a petition for certiorari with the CA, questioning the
sheriffs levy and sale of the personal and real properties.
7. On November 17, 2003, the CA issued the assailed Resolution dismissing the petition for
failure of petitioner to file a motion for reconsideration of the RTC’s July 16, 2003 Order
granting the motion for execution and ordering the issuance of a writ therefor, as well as
for his failure to indicate in his petition the timeliness of its filing as required under the
Rules of Court. On May 7, 2004, the CA denied petitioner’s MR.
ISSUE: WON the levy and sale of the properties is legal. – NO.
Petitioner’s arguments:
1. The personal properties auctioned off did not belong to him but to his children; and that the
real property sold was his family home thus exempt from execution.
2. The execution sale was irregular because it was conducted without complying with the notice
and posting of requirements
3. The personal and real properties were sold for inadequate prices as to shock the conscience.
The real property was allegedly worth P8 million but was sold for only P848,448.64.
Respondent’s argument:
The alleged family home has not been shown to have been judicially or extrajudicially
constituted, obviously referring to the provisions on family home of the Civil Code not those of
the Family Code which should apply in this case; that petitioner has not shown to the courts
satisfaction that the personal properties executed upon and sold belonged to his children.
Respondent argues that he is entitled to satisfaction of judgment considering the length of time
it took for the parties to litigate and the various remedies petitioner availed of which have
delayed the case.
HELD:
Petitioner, in his opposition to respondents motion for issuance of a writ of execution, claimed
that he was insolvent; that he had no property to answer for the judgment credit; that the house
and lot in which he was residing at the time was his family home thus exempt from execution;
that the household furniture and appliances found therein are likewise exempt from execution;
and that these furniture and appliances belonged to his children Jasmin Josef and Jean Josef
19
Isidro. Thus, as early as during proceedings prior to the issuance of the writ of execution,
petitioner brought to the fore the issue of exemption from execution of his home, which he
claimed to be a family home in contemplation of the civil law.
However, instead of inquiring into the nature of petitioners allegations in his opposition, the
trial court ignored the same and granted respondent’s motion for execution.
The Order did not resolve nor take into account petitioners allegations in his Opposition, which
are material and relevant in the resolution of the motion for issuance of a writ of execution. This
is serious error on the part of the trial court. It should have made an earnest determination of
the truth to petitioners claim that the house and lot in which he and his children resided was
their duly constituted family home. Since it did not, its July 16, 2003 Order is thus null and void.
Where a judgment or judicial order is void it may be said to be a lawless thing, which can be
treated as an outlaw and slain at sight, or ignored wherever and whenever it exhibits its head.
The family home is a real right which is gratuitous, inalienable and free from attachment,
constituted over the dwelling place and the land on which it is situated, which confers upon a
particular family the right to enjoy such properties, which must remain with the person
constituting it and his heirs. It cannot be seized by creditors except in certain special cases.
Upon being apprised that the property subject of execution allegedly constitutes petitioners
family home, the trial court should have observed the following procedure:
1. Determine if petitioners obligation to respondent falls under either of the exceptions under
Article 155of the Family Code;
2. Make an inquiry into the veracity of petitioners claim that the property was his family home;
conduct an ocular inspection of the premises; an examination of the title; an interview of
members of the community where the alleged family home is located, in order to determine if
petitioner actually resided within the premises of the claimed family home; order a submission
of photographs of the premises, depositions, and/or affidavits of proper individuals/parties; or
a solemn examination of the petitioner, his children and other witnesses. At the same time, the
respondent is given the opportunity to cross-examine and present evidence to the contrary;
3. If the property is accordingly found to constitute petitioners family home, the court should
determine:
a) if the obligation sued upon was contracted or incurred prior to, or after, the effectivity of the
Family Code;
b) if petitioners spouse is still alive, as well as if there are other beneficiaries of the family home;
c) if the petitioner has more than one residence for the purpose of determining which of them,
if any, is his family home; and
d) its actual location and value, for the purpose of applying the provisions of Articles 157 and
160 of the Family Code.
The family home is the dwelling place of a person and his family, a sacred symbol of family love
and repository of cherished memories that last during ones lifetime. It is the sanctuary of that
union which the law declares and protects as a sacred institution; and likewise a shelter for the
fruits of that union. It is where both can seek refuge and strengthen the tie that binds them
together and which ultimately forms the moral fabric of our nation. The protection of the family
home is just as necessary in the preservation of the family as a basic social institution, and since
no custom, practice or agreement destructive of the family shall be recognized or given effect,
the trial courts failure to observe the proper procedures to determine the veracity of petitioners
allegations, is unjustified.
The same is true with respect to personal properties levied upon and sold at auction. Despite
petitioners allegations in his Opposition, the trial court did not make an effort to determine the
nature of the same, whether the items were exempt from execution or not, or whether they
belonged to petitioner or to someone else.
Respondent moved for issuance of a writ of execution on February 17, 2003 while petitioner
filed his opposition on June 23, 2003. The trial court granted the motion on July 16, 2003, and
the writ of execution was issued on August 20, 2003. Clearly, the trial court had enough time to
conduct the crucial inquiry that would have spared petitioner the trouble of having to seek relief
all the way to this Court. Indeed, the trial courts inaction on petitioner’s plea resulted in serious
injustice to the latter, not to mention that its failure to conduct an inquiry based on the latter’s
claim bordered on gross ignorance of the law.
Being void, the July 16, 2003 Order could not have conferred any right to respondent. Any writ
of execution based on it is likewise void. Although we have held in several cases that a claim for
exemption from execution of the family home should be set up and proved before the sale of
the property at public auction, and failure to do so would estop the party from later claiming
the exemption since the right of exemption is a personal privilege granted to the judgment
debtor which must be claimed by the judgment debtor himself at the time of the levy or within
a reasonable period thereafter, the circumstances of the instant case are different. Petitioner
claimed exemption from execution of his family home soon after respondent filed the motion
for issuance of a writ of execution, thus giving notice to the trial court and respondent that a
property exempt from execution may be in danger of being subjected to levy and sale.
Thereupon, the trial court is called to observe the procedure as herein laid out; on the other
hand, the respondent should observe the procedure prescribed in Article 160 of the Family
Code, that is, to obtain an order for the sale on execution of the petitioners family home, if so,
and apply the proceeds less the maximum amount allowed by law under Article 157 of the Code
which should remain with the petitioner for the rebuilding of his family home to his judgment
credit. Instead, both the trial court and respondent completely ignored petitioners argument
that the properties subject of the writ are exempt from execution.
20
 CAJA v NANQUIL A.M. P-04-1885
September 13, 2004 CHICO-NAZARIO, J
TOPIC IN SYLLABUS: Execution; Manner of execution Digest By: amb
SUMMARY: The sheriff, during execution of a civil case for sum of money, committed a LOT of
procedural lapses (see Petitioner’s Argument). The SC found the Sheriff guilty of grave
misconduct and gross ignorance of the rules of execution due to the said lapses.
DOCTRINE: In money judgments, personal properties must be exhausted prior to real
properties. Moreover, levy should only be to the extent of the judgment amount.
When the said properties are to be levied upon, a notice of levy or receipts should be issued.
Whatever is to be taken through the levy should be taken to a place under the sheriff’s custody
(or at least a bonded warehouse) and NOT to land owned by the judgment creditor.
PROCEDURAL ANTECEDENTS: Civil Case for Sum of Money (RTC) > Procedural errors during
execution > OCA complaint > Referred to SC
FACTS:
Caja was a defendant in a Civil Case for Sum of Money, Triangle Ace v Subic Realty. In the trial
court stage, he lost. He and the other defendants were required to pay around P956k, with
interest, attorney's fees, and costs of suit.
Consequently, on February 12, 1997, a Writ of Execution, addressed to respondent Sheriff
Nanquil, was issued.
In order to satisfy the writ, Sheriff Nanquil performed the following acts:
1. February 27, 1997: Notice of Garnishment to Manager of PAG-IBIG; a total of P157,500 was
garnished
2. May 19, 1997: Alias writ issued as the previous writ was returned unsatisfied
3. May 19, 1997: Notice of Levy on a parcel of land owned by Subic Realty with total assessed
value of P1.79m
4. July 1, 1997: Levy of personal properties owned by defendants: a payloader, a dump truck,
and 77 pieces of GI Sheets (BUT NO NOTIVE OF LEVY OR RECEIPT WAS SERVED/ISSUED)
On July 8, 1997, Antero Dominguez of BCGC filed a Notice of Third Party claim, alleging that the
payloader and dumptruck were previously mortgaged to BCGC. He sought to lift and/or
discharge the levy in accordance with Rule 39.17, with the company later filing an Urgent
Motion to Lift Writ of Attachment in order to foreclose its mortgage. Through an order dated
November 27, 1998, the same was NOT granted.
On January 18, 2000, the defendants in the civil case filed a Motion to Lift Levy on Execution as
to their REAL PROPERTIES on the ground that the levy made on their personal properties is
sufficient to satisfy the judgment. This was NOT granted as it cannot be determined at the time
if the amount levied is way above the amount necessary to satisfy the judgment creditor. He
also ordered the scheduling of the auction sale for BOTH REAL AND PERSONAL PROPERTIES.
This led to an OCA complaint against Sheriff Nanqui for grave misconduct and gross ignorance
of the rules of execution on the ground of over levy and disregard of the rule that personal
properties must be levied prior to real properties. Nevertheless, the auction sale took place as
to the personal properties-- they were sold for P705,000 (around P863k satisfied). However,
that amount was not paid to the sheriff because it did not exceed the total obligation of the
judgment debtors. All these matters were referred by the OCA to the SC.
PETITIONER’S ARGUMENT(S):
- The Sheriff committed the following errors: levying real property ahead of personal property,
overlevy on both REAL AND PERSONAL PROPERTIES, levy on personal properties without serving
a Notice of Levy or issuing a receipt therefor, delivery of personal properties to the judgment
creditor without conducting an auction sale, and delayed sale (four years after levy). In
particular, the petitioner focuses on the levy on real property ahead of personal properties.
RESPONDENT’S ARGUMENT(S):
- The levy on real properties was in accordance with the Rules as it states that the officer shall
levy upon the properties of the judgment obligor of every kind and nature whatsoever which
may be disposed for value and not otherwise exempt from execution. Although the rules require
that personal properties be levied first, the rules also state that when there is more property of
the judgment obligor that is sufficient to satisfy the judgment and lawful fees, he must sell only
so much of the personal or real property as is sufficient to satisfy the judgment and lawful fees
(parang sinasabi niya na the real properties satisfied the judgment amount, but the personal
properties did not).
- At any rate, he levied on the personal properties anyway because the judgment creditor
desisted with the levy on the real property because it turned out the same was already
mortgaged. Also, there was no over levy as the cost of the personal properties in acquisition is
not the price in an auction sale (implying it's the latter amount that may determine the over
levy).
- The Notice of Levy on the personal properties was not given because nobody would receive it.
Besides, the defendants knew where they were taken.
- The properties were not brought to the judgment creditor; he only kept the same in a secured
place owned by the judgment creditor. He did this because the Sherrifs Office and RTC Olongapo
had no warehouse or place to keep levied personal properties (corroborated by a Clerk of
Court).
ISSUE(S): Whether or not the execution was attended with irregularities that amount to grave
misconduct and gross ignorance. (YES, EXCEPT for the delayed auction sale)
HELD: SHERIFF GUILTY.
- Rule 39.8 clearly states that in money judgments, execution must first be against personal
properties. Only if sufficient personal property cannot be found can the sheriff go after real
properties. Such is to be enforced in the manner stated in Rule 39.15, which requires levy, and
later sale; any excess would go to the judgment debtor unless otherwise directed by the
21
judgment or order of the court, and if the property is more than sufficient to satisfy the - However, the four year delay prior to the auction sale was excusable as it was not the sheriff's
judgment and costs, the officer must levy only on such part that is amply sufficient to satisfy the fault. There were pending incidents that had to be resolved first-- namely, the Third Party Claim
judgment and costs. These rules were reflected in the Writ of Execution and Alias Writ of and the motions filed pursuant to it.
Execution.
- The initial garnishment on the PAG-IBIG account was indeed proper, as it was garnishment of
personal properties. However, it was after this initial garnishment when the sheriff committed
multiple blunders, starting from his levy of real properties when the defendants had other
personal properties aside from the PAG-IBIG account.

- Respondent's reasoning in justifying his levy on the real properties (only to later sell only the
personal properties he levied on thereafter) did not persuade the Court. The sheriff was clearly
negligent as there were means of checking if the defendant had other personal properties; for
example, he could have gone to the LTO to see if there are vehicles registered there, but he did
not do so-- he did not exhaust any possible remedies before going after the real property. As to
the desistance, it turned out that the desistance was as to the sale, but NOT the levy, which at
the time was already completed by filing of the copy of the writ of execution (and supporting
documents) with the ROD, and as evidenced by the Notice of Levy.
It should be noted that levy is diffferent from an execution sale. Levy is the act of
appropriation of property for the purpose of satisfying the command of a writ of execution. The
execution sale is sale of property already levied.

- There was certainly overlevy. As it turned out, the Tax Declaration of the real property, and its
improvements, amounted to P1.787M, and it was mortgaged for P10M. This mortgage amount
means that the actual value is far more than the said amount-- as per the ordinary course of
business, the value of a property is usually bigger than the amount for mortgage. This is far
larger than the judgment debt-- clearly, there is overlevy. Even if the same was not sold, the
value can still be taken into account in computing the total amount levied by the sheriff.

(but there was no overlevy on the personal properties: though the petitioner claims that the
value of the personal properties was around P3M, this was not proven through invoices and
delivery receipts, of which he had access)

- There was also a problem with the non-service of the notice of levy. The sheriff could not even
remember if he did leave a copy. His duty is to give the notice of levy or receipt to the person
to whom the personal properties were taken. If no one would like to receive the same, he could
have left copies in his office, and reported the same. He did neither of these.

- Equally problematic is the delivery of the personal properties to the judgment creditor without
conducting an auction sale. The rule is that the levied properties must be in HIS custody, and
they cannot be delivered to any of the parties or their representative. If the courts lacked
storage, he could have at least deposited the same in a bonded warehouse, or he could have
sought prior authorization of the Court. Instead, the properties were delivered to the vacant lot
of the judgment creditor, Triangle Ace. Such was supported by Caja himself, as well as BGCG's
Urgent Motion to Lift Writ of Attachment. These acts allowed others to use them before they
can be sold in public auction (which may mean their value may have dwindled since then).

22
 Zamora v. Villanueva A.M. P-04-1898
September 18, 2003 PER CURIAM
TOPIC IN SYLLABUS: Execution of Judgment Digest By: Bries
SUMMARY: Atty. Zamora filed an administrative complaint against Sheriff Villanueva. The
RTC, in a case where Zamora was counsel for the plaintiff, granted plaintiff’s motion for the
writ of execution, so Zamora told Villanueva that the defendant has real property in Nasugbu
and requested him to prepare the Notice of Levy on the property. Villanueva demanded from
Zamora P10,000, and later demanded an additional 5% of the bid price before proceeding
with the sale. SC: Villanueva prematurely adjourned the execution sale and is dismissed from
the service.
DOCTRINE: Sec. 22, Rule 39 shows that a sheriff has no blanket authority to adjourn an
execution sale. It is only upon written consent of the judgment obligor and obligee, or their
duly authorized representatives, that the sheriff may adjourn the sale to a date and time
agreed upon. The sheriff may adjourn it from day to day when there is no such agreement
but only if it becomes necessary to do so for lack of time to complete the sale on the day
fixed in the notice or the day to which it was adjourned.
PROCEDURAL ANTECEDENTS: letter complaint filed by Atty. Zamora charging Ramon Villanueva,
Deputy Sheriff, QC RTC Branch 96, with Gross Misconduct.
FACTS: Atty. Zamora is the counsel for plaintiff in Civil Case No. Q-01-43767, entitled Sps. Mario
and Carmelita Cruel v. Sps. Ernesto Pe Lim and Lulu Yu Pe Lim. Zamora narrates that on June 28,
2002, the RTC granted plaintiff’s motion for the issuance of a writ of execution, so he informed
Villanueva that the defendant has real property in Nasugbu, Batangas and requested him to
prepare the Notice of Levy on the property. Villanueva demanded from Zamora P10,000,
allegedly to defray the expenses for the execution proceedings. Zamora agreed and initially gave
him P5,000 as advance payment; the balance was to be paid upon the transfer of the property
in the name of his client.
Villanueva and one of Zamora’s paralegal staff members proceeded to Nasugbu, for the purpose
of annotating the notice of levy on the property’s title. After the notice had been annotated,
Villanueva refused to proceed with the execution sale unless and until he was paid the balance
of P5,000.
Zamora gave him P5,000, after which Villanueva assured him that he would proceed with the
execution sale. However, before the date of the sale, Villanueva demanded an additional 5% of
the bid price before proceeding with the sale. Zamora refused. Hence Villanueva refused to
proceed with the sale on the scheduled date; and further refused to accept the bid of Zamora’s
client.
In a letter, Zamora reminded Villanueva that his continued refusal to proceed with the sale
would render him administratively and criminally liable. Villanueva still failed to perform his
duty. Hence, this administrative complaint.
In his Comment, Villanueva admitted receiving the P10,000 but contended that the amount was
used in serving the writ of execution. He asserted that he, along with another court personnel,
Maveric Marasigan, and two police officers, tried to attach the personal properties of Ernesto
Pe Lim. However, Deputy Sheriff Visnar of the QC RTC was already implementing another writ
of execution against the same defendant. In his attempt to attach the properties, Villanueva
incurred transportation, representation and other expenses. Thereafter, he and Marasigan
went to Nasugbu to register the notice of levy, where he incurred further expenses. Lastly, he
adds that he tried to serve the notice on the defendant twice and had to post it twice in three
conspicuous public places and once in Nasugbu.
Villanueva contended that he was ready to proceed with the public auction, with Zamora’s client
as the only bidder. He requested Zamora to pay the corresponding Office Commission to the
Clerk of Court pursuant to the Rules of Court. However, Zamora refused to pay, claiming that
the title should first be consolidated. Villanueva prayed that the administrative complaint be
dismissed.
The parties filed their respective letters to refute each other’s accusations and defenses. OCA
(Office of the Court Administrator), in its report, recommended that Villanueva be adjudged
guilty of grave misconduct and suspended for 3 months without pay.
ISSUE: WON Villanueva prematurely adjourned the execution sale contrary to Sec. 22, Rule 39,
Rules of Court
HELD: YES. Ramon Villanueva GUILTY of grave misconduct and DISMISSED from the service with forfeiture
of all benefits and privileges, except accrued leave credits, if any, with prejudice to reemployment in any
branch or instrumentality of the government, including GOCCs and financial institutions. He is ordered to
return the amount of P10,000 to Atty. Zamora.
It is undisputed that Villanueva demanded and received P10,000 from complainant. He reasoned that the
amount was to defray expenses incurred in implementing the writ of execution and annotating the notice
of levy on defendants property in Nasugbu. Nevertheless, his justifications for demanding and receiving the
amount from complainant are futile attempts to exculpate himself from liability.
As to the validity of the adjournment of the execution sale, Sec. 22, Rule 39 of the clearly shows that a
sheriff has no blanket authority to adjourn the sale. It is only upon written consent of the judgment obligor
and obligee, or their duly authorized representatives, that the sheriff may adjourn the sale to a date and
time agreed upon. The sheriff may adjourn it from day to day when there is no such agreement but only if
it becomes necessary to do so for lack of time to complete the sale on the day fixed in the notice or the day
to which it was adjourned. Consequently, Villanueva’s act of unilaterally adjourning the execution sale is
irregular and contrary to the Rules.
As employees of the court who play an important role in the administration of justice, high standards are
expected of sheriffs. This Court expounded in Vda. de Abellera v. Dalisay: “…sheriffs and deputy sheriffs are
indispensably in close contact with the litigants, hence, their conduct should be geared towards maintaining
the prestige and integrity of the court, for the image of a court of justice is necessarily mirrored in the
conduct, official or otherwise, of the men and women who work thereat, from the judge to the least and
lowest of its personnel; hence, it becomes the imperative sacred duty of each and everyone in the court to
maintain its good name and standing as a temple of justice.:
By the nature of their functions, sheriffs must conduct themselves with propriety and decorum, to be above
suspicion. Sheriffs are court officers and, like everyone else in the judiciary, are called upon to discharge
their sworn duties with great care and diligence. They cannot afford to err in serving court writs and
processes and in implementing court orders lest they undermine the integrity of their office and the efficient
administration of justice.
23
 SPS. LANDRITO v. CA GR No. 133079
August 9, 2005 Garcia, J.
TOPIC IN SYLLABUS: Execution; R39 Sec.28 Digest By: Abu
SUMMARY: Petitioners’s parcel of land was foreclosed for failure to pay a loan. They failed
to exercise their right of redemption within 1 year from the issuance of the Certificate of
Sale. They belatedly filed a petition for the annulment of the extra judicial foreclosure. The
TC, CA and SC held that they were barred by laches.
DOCTRINE:
The period of redemption is not a prescriptive period but a condition precedent provided by
law to restrict the right of the person exercising redemption. The period within which to
redeem the property sold at a sheriffs sale is not suspended by the institution of an action
to annul the foreclosure sale.
PROCEDURAL ANTECEDENTS: TC dismissed petitioner’s petition to annul the extra judicial
foreclosure. CA affirmed. Rule 45 to SC, which affirmed.
FACTS:
 In July 1990, Sps. Landrito and Egalanai obtained a loan of P350,000.00 from respondent
Carmencita San Diego.
 02 August 1990 - To secure payment thereof, petitioners executed in favor of the same
respondent a deed of real estate mortgage over a parcel of land.
 After making substantial payments, petitioners again obtained and were granted by
Carmencita San Diego an additional loan of 1M Pesos.
o To secure this additional loan, the parties executed on 13 September 1991 an
“Amendment of Real Estate Mortgage”, whereunder they stipulated that the loan shall
be paid within six (6) months from 16 September 1991, and if not paid within said
period, the mortgagee shall have the right to declare the mortgage due and may
immediately foreclose the same judicially or extrajudicially.
 Spouses defaulted. Therefore, Carmencita San Diego sent them on 27 April 1993, a final
notice of demand to settle their financial obligation which already amounted to
P1,950,000.00.
 30 June 1993 - Carmencita San Diego filed a petition for the extrajudicial foreclosure of the
mortgage in the Office of the Register of Deeds, Makati City.
 06 July 1993 - said office sent to the parties a Notice of Sheriff’s Sale, therein announcing
that petitioners’ mortgaged property will be sold in a public auction to be conducted on 11
August 1993 at 10 am.
1
Republic Act No. 3135 (An Act to Regulate the Sale of Property Under Special
Powers Inserted In Or Annexed to Real Estate Mortgages), as amended by Republic
Act No. 4118, provides in Section 6 thereof, thus: “Sec. 6. In all cases in which an
extrajudicial sale is made under the special power hereinbefore referred to, the debtor,
his successors in interest or any judicial creditor or judgment creditor of said debtor,
or any person having a lien on the property subsequent to the mortgage or deed of
 As announced, the public auction sale was held and the mortgaged property sold to
respondent Carmencita San Diego as the highest bidder for P2,000,000.00.
 29 October 1993 - respondent San Diego caused the registration of the sheriff’s certificate
of sale with the Office of the Register of Deeds.
 With the petitioners having failed to redeem their property within the 1-year redemption
period from the date of inscription of the sheriff’s certificate of sale, the San Diegos caused
the consolidation of title over the foreclosed property in their names.
 Petitioners filed their complaint for annulment of the extrajudicial foreclosure and auction
sale, with damages.
 San Diego filed a motion to dismiss. RTC granted respondents’ motion to dismiss and
accordingly dismissed petitioners’ complaint, saying that the latter’s cause of action, if any,
is already barred by laches on account of their failure or neglect.
 CA affirmed in toto.
ISSUE: WON petitioners were barred by laches  YES
RATIO:
The validity of the extrajudicial foreclosure on 11 August 1993 was virtually confirmed by the
trial court when it dismissed petitioners complaint, and rightly so, what with the fact that
petitioners failed to exercise their right of redemption within the 1-year period therefor
counted from the registration of the sheriffs certificate of sale.
For sure, in the very petition they filed in this case, petitioners have not offered any valid excuse
why, despite notice to them of the petition for extrajudicial foreclosure filed by the
respondents, they failed to attend the proceedings and there voiced out what they are now
claiming. Truly, laches has worked against them.
The law on redemption of mortgaged property is clear.1 In a long line of cases, this Court has
consistently ruled that the one-year redemption period should be counted not from the date of
foreclosure sale, but from the time the certificate of sale is registered with the Register of
Deeds.
Here, it is not disputed that the sheriff’s certificate of sale was registered on 29 October 1993.
It is clear as day that even the complaint filed by the petitioners with the trial court on 09
November 1994 was instituted beyond the 1-year redemption period. In fact, petitioners no less
acknowledged that their complaint for annulment of extrajudicial foreclosure and auction sale
was filed about eleven (11) days after the redemption period had already expired on 29 October
1994.
trust under which the property is sold, may redeem the same at any time within the
term of one year from and after the date of the sale; xxx” (Emphasis supplied)
24
Spouses presently insist that they requested for and were granted an extension of time within
which to redeem their property, relying on a handwritten note allegedly written by Mrs. San
Diego’s husband on petitioners’ statement of account, indicating therein the date 11 November
1994 as the last day to pay their outstanding account in full. Even assuming, in gratia argumenti,
that they were indeed granted such an extension, the hard reality, is that at no time at all did
petitioners make a valid offer to redeem coupled with a tender of the redemption price.

Here, there is no showing whatsoever that petitioners agreed to pay the redemption price on
or before 11 November 1994, as allegedly set by Mrs. San Diego’s husband. On the contrary,
their act of filing their complaint on 09 November 1994 to declare the nullity of the foreclosure
sale is indicative of their refusal to pay the redemption price on the alleged deadline set by the
husband.

The period of redemption is not a prescriptive period but a condition precedent provided by
law to restrict the right of the person exercising redemption. Correspondingly, if a person
exercising the right of redemption has offered to redeem the property within the period fixed,
he is considered to have complied with the condition precedent prescribed by law and may
thereafter bring an action to enforce redemption. If, on the other hand, the period is allowed
to lapse before the right of redemption is exercised, then the action to enforce redemption will
not prosper, even if the action is brought within the ordinary prescriptive period.

Moreover, the period within which to redeem the property sold at a sheriffs sale is not suspended
by the institution of an action to annul the foreclosure sale. It is clear, then, that petitioners have
lost any right or interest over the subject property primarily because of their failure to redeem
the same in the manner and within the period prescribed by law. Their belated attempts to
question the legality and validity of the foreclosure proceedings and public auction must
accordingly fail.

CA AFFIRMED.

25
 MARMOSY & MORALES v. CA, NLRC, ARBITER SALINAS, GR No. 170515
AND HUBILLA
6 May 2010 Perez, J.
TOPIC IN SYLLABUS: Execution Athena De Mesa
SUMMARY: Hubilla filed an illegal dismissal case against his employer, Marmosy. The case
reached the SC which upheld the dismissal. Marmosy kept on MRing/Appealing the writ of
execution (or alias writ of execution). Morales, the president and GM of Marmosy’s property
was to be annotated for the money judgment. Morales questioned this before the SC. SC
ruled against Morales as the questioned writ is consistent with the LA decision and Morales
has been barred by final judgment from questioning it.
DOCTRINE: Judgments of courts should attain finality at some point lest there be no end in
litigation. The final judgment in this case may no longer be reviewed, or in any way modified
directly or indirectly, by a higher court, not even by the Supreme Court.
PROCEDURAL ANTECEDENTS:
NLRC ordered the levy of the execution on Morales’ property. CA affirmed NLRC. CA denied the
MR. Morales filed a Rule 45 to the SC.
FACTS: (All MRs/Appeals/Petitions are here)
 Marmosy Trading, Inc. (“Marmosy”) is a domestic corp. It distributes chemicals from foreign
suppliers. Victor Morales is the President and General Manager of Marmosy.
 12 Feb 1991—Joselito Hubilla (“Hubilla”) was hired as Technical Salesman.
 15 Jul 1997—Hubilla was terminated.
 Hubilla filed an illegal dismissal, illegal deduction, and diminution of benefits against Marmosy
in the LA.
 31 May 1999—LA Cueto ruled against Marmosy. Hubilla was illegally dismissed. He must be
reinstated (or be given an equivalent position without loss of seniority rights and other
benefits and privileges) and be given separation pay. Marmosy filed an appeal to the NLRC.
 31 May 2000—NLRC denied the appeal.
 26 Jun 2000—NLRC Resolution became final and executory.
 Marmosy filed an MR for the issuance of writ of execution and also filed a petition to the CA.
 CA dismissed the petition outright for procedural infirmities (failure to file an MR, failure to
append relevant pleadings in the petition).
 25 Nov 2000—CA Resolution became final and executory. Entry of Judgment was issued.
 Marmosy filed a Rule 45 to the SC. SC denied it for late filing and failure to show reversible
error in the part of CA.
 Hubilla filed a motion for the issuance of alias writ of execution.
 28 Aug 2001—LA Salinas issued a writ of execution directed to the NLRC Sheriff.
 5 Sept 2001—Marmosy filed an MR and a Motion to Recall the Writ of Execution with the LA
assailing the computation of the LA and arguing the ff: (a) Marmosy stopped operations as of
June 1997, (b) no more position where respondent can be appointed to, and (c) Hubilla was
already paid his separation pay. In a supplement to their own computation of the monetary
award given to respondent, petitioners showed that in actuality, respondent still owes them
the amount of P22,383.15, when they ceased operations at the end of 1997 and respondent
had already received his separation pay.
 22 Oct 2001—MR was denied but the monetary award in favor of respondent was corrected
to read as P274,823.70, and the Sheriff was directed to proceed with the execution.
 Marmosy filed a Memorandum of Appeal with Prayer for Injunction assailing the 22 Oct 2001
Order. Hubilla filed an opppostion on the ground of failure to file a supersedeas bond on the
part of the petitioners and that no new issues were raised therein.
 22 May 2002—NLRC dismissed the Appeal for failure to file a supersedeas bond. NLRC
affirmed in toto the LAW order. Marmosy filed an MR which was denied. No further MR shall
be entertained.
 Hubilla filed an ex-parte motion for re-computation of monetary award and for the issuance
of the alias writ of execution.
 11 Mar 2003—LA Salinas issued an alias Writ of Execution addressed to the NLRC Sheriff.
 Pursuant to the writ of execution issued by Labor Arbiter Elias Salinas, the Sheriff garnished
petitioners account with Equitable-PCI Bank in the amount of P22,896.58, which was later
released to the NLRC cashier and, thereafter, turned over to the respondent as partial
satisfaction of the judgment in his favor.
 Marmosy objected to the garnishment by filing a motion for reconsideration and to recall the
order of release and alias writ of execution alleging that the account with Equitable-PCI Bank
belongs to both Marmosy Trading, Inc. AND Victor Morales; that only Marmosy Trading, Inc.
was the employer of Hubilla whereas Morales, who was president of the Marmosy Trading,
Inc. when the complaint was filed, is only a nominal party.
 MR was denied. Marmosy went to the NLRC on appeal. Denied. “Morales is therefore to be
held responsible for the corporations obligations to the workers including complainant
especially when as alleged the company had already closed its business operations. The
termination of the existence of a corporation requires the assumption of the companys
liabilities and there is no responsible officer but the President who must assume full
responsibility of the consequences of the closure.
 Marmosy filed an MR to the NLRC decision. Also denied.
 8 Oct 2004—Resolution became final and executory.
[GRABENG EXHAUSTION OF ALL REMEDIES PO YUNG GINAWA NG MARMOSY NAKAKAPAGOD.
Huhu]
 Marmosy filed a Rule 65 to the CA. Denied. “The writ of execution commanded the Sheriff to
proceed to the premises of petitioners located in Makati City or wherever they can be found to
collect the sum of PhP251,927.12. Since petitioner Morales was likewise ordered in the
decision sought to be executed to pay private respondent, the Sheriff properly levied on his real
property. Section 2 Rule 4 of the NLRC Manual on Execution of Judgment provides that the
Sheriff or proper officer shall enforce the execution of a money judgment by levying on all the
property, real and personal, of the losing party, of whatever name and nature and which may
be disposed of for value, not exempt from execution.”
MORALES’ ARGUMENT(S): My personal property cannot be liable for the monetary award in
favor of Hubilla.
ISSUE(S): WON the notice of levy to be annotated on the title of the real property registered
under TCT in the name of Morales is proper—YES.
HELD: DENIED
26
SC LAMENTS THE DELAY OF THE EXECUTION party be not deprived of the fruits of the verdict. Courts must guard against any scheme
 The Court takes notice of the fact that petitioners already exhausted all the remedies available calculated to bring about that result and must frown upon any attempt to prolong
to them since the time the Labor Arbiter rendered his decision dated 31 May 1999. controversies.
 Execution in favor of the respondent ought to have taken place as a matter of right. From the
finality of the original case for illegal dismissal, this case was remanded to the Labor Arbiter
for execution. Regrettably, due to the series of pleadings, motions and appeals to the NLRC,
including petitions to the Court of Appeals, filed by the petitioners, they have so far
successfully delayed the execution of the final and executory decision in this case. The
decision of the Labor Arbiter, rendered on 31 May 1999, has been elevated to, for review by,
the NLRC, the Court of Appeals and finally this Court which entered judgment on the matter
nine years ago, or on 13 August 2001. Until the present, the decision in 1999 has not yet been
executed.
 Now, nothing is more settled in law than when a final judgment becomes executory, it thereby
becomes immutable and unalternable. The judgment may no longer be modified in any
respect, even if the modification is meant to correct what is perceived to be an erroneous
conclusion of law or fact, and regardless of whether the modification is attempted to be made
by the court rendering it or by the highest court of the land. The only recognized exception
are the correction of clerical errors or the making of so-called nun pro tunc entries which
cause no injury to any party, and, of course, where the judgment is void x x x.
THE LABOR ARBITER’S DECISION HAS LONG BECOME FINAL AND EXECUTORY AND IT CAN NO
LONGER BE REVERSED OR MODIFIED.
 We disfavor delay in the enforcement of the labor arbiters decision. Once a judgment
becomes final and executory, the prevailing party should not be denied the fruits of his victory
by some subterfuge devised by the losing party. Final and executory judgments can neither
be amended nor altered except for correction of clerical errors, even if the purpose is to
correct erroneous conclusions of fact or of law.
 Trial and execution proceedings constitute one whole action or suit such that a case in which
execution has been issued is regarded as still pending so that all proceedings in the execution
are proceedings in the suit.
 Everything considered, what should be enforced thru an order or writ of execution in this case
is the dispositive portion of the Labor Arbiters decision as affirmed by the NLRC, the Court of
Appeals and this Court. Since the writ of execution issued by the Labor Arbiter does not vary
but is in fact completely consistent with the final decision in this case, the order of execution
issued by the Labor Arbiter is beyond challenge.
 It is no longer legally feasible to modify the final ruling in this case through the expediency of a
petition questioning the order of execution. This late in the day, petitioner Victor Morales is
barred, by the fact of a final judgment, from advancing the argument that his real property
cannot be made liable for the monetary award in favor of respondent. For a reason greater than
protection from personal liability, petitioner Victor Morales, as president of his corporation,
cannot rely on our previous ruling that to hold a director personally liable for debts of a
corporation and thus pierce the veil of corporate fiction, the bad faith or wrongdoing of the
director must be established clearly and convincingly.
 Judgments of courts should attain finality at some point lest there be no end in litigation. The
final judgment in this case may no longer be reviewed, or in any way modified directly or
indirectly, by a higher court, not even by the Supreme Court. The reason for this is that, a
litigation must end and terminate sometime and somewhere, and it is essential to an effective
and efficient administration of justice that, once a judgment has become final, the winning

27
 BENITEZ vs ACOSTA A.M. P-01-1473
March 27, 2001 PER CURIAM
Execution Digest by: Faith Desquitado
SUMMARY:
Respondent, as the Sheriff of RTC Bacoor, Cavite, failed to make a return of the writ of
execution. There were also discrepancies in the entries in the Minutes of the public Auction
that he made. The Court adopted the conclusions of the OCA which found Respondent
administratively liable for Grave Misconduct, Dishonesty and Conduct Prejudicial to the Best
Interests of the Service.
DOCTRINE: It is unusual for the sheriff not to know his duties and functions as laid down by
law. These include, among other things, the preparation of a written account of all his
proceedings pursuant to any process issued by the court, particularly the return of a writ of
execution. Because of the irregularities above pointed out, the public auction sale conducted
by respondent appears to have been simulated. Indeed, the MCTC declared the said sale null
and void. In effect, respondent failed to conduct a public auction sale.
FACTS:
 Complainant Gloria Benitez filed this administrative case against Acosta, Sheriff IV,
assigned at RTC bacoor, Cavite. She filed this case in representation of her mother,
Amparo Osila, who was the defendant in the case “Leon Basas vs Amparo Osila”.
Judgment was rendered against Amparo.
 Complainant alleged that in implementing the writ of execution and conducting the
execution sale to satisfy the judgment, Acosta committed the following:
(a) ignored the bid of Gloria Osila Benitez and Edna Samson;
(b) sold the jeepney to the highest bidder, Mario Timbol, who was absent and only
sent his bid through Joe Castillo, who was also absent during the bidding;
(c) sold the jeepney for an unconscionably low price of P15,000.00;
(d) used Mario Timbol and Joe Castillo merely as fronts because Acosta was
interested in the jeepney;
(e) failed to deliver the jeepney even as of April 2, 1998;
(f) did not make a return of the writ of execution until March 30, 1998; and
(g) did not comply with the notice requirements in Rule 39, 14 of the 1997 Revised
Rules of Civil Procedure as there were no notices of posting attached to the
certificate of sale.
 Amparo Osila also filed a Motion to Declare the Auction Sale Null and Void.
 In his counter-affidavit, Acosta denied the allegations and said that he complied with
Rule 39 Sec 14, and that the jeepney was kept in Gen. Mariano Alvarez, Cavite for
repairs.
 MCTC declared the public auction null and void. It also found Acosta to be
administratively liable.
 OCA recommended Acosta’s dismissal from service. It found that:
(a) that in making his return only on March 30, 1998, respondent violated Rule 39
Sec. 14
(b) that respondent submitted different versions of the Minutes of Public Auction,
both of which had different handwritten entries in violation of Article 171 of the
Revised Penal Code;
(c) that it was within respondent's discretion to reconvene the sale to a date when
there would be more bidders and the jeepney would fetch a higher price;
(d) that his failure to exercise sound discretion is proof that he did not live up to the
standards of professionalism the law demands of him; and
(e) there was no auction sale as contemplated by the law.
ISSUE:
WON Acosta complied with the requirements of rule 39 Sec 14 - NO
HELD: WHEREFORE, in accordance with the recommendation of the Office of the Court
Administrator, respondent Sheriff Medel P. Acosta is hereby DISMISSED from service for
misfeasance, nonfeasance, and dereliction of duty, with forfeiture of all retirement benefits
and with prejudice to re-employment in any branch of the government, including
government-owned or controlled corporations.
RATIO:
 As per the pertinent portion of the order issuing the writ of execution, respondent
should have made a return on the writ within 60 days from his receipt of the order,
or by February 9, 1998. To date, respondent has not submitted or made a return on
the writ and has violated a mandate of the court. It is well settled that the sheriff's
duty in the execution of a writ issued by a court is purely ministerial. As such, any
failure to comply with such constitutes nonfeasance in the performance of his
duties.
 Under Rule 39, Sec. 14, Acosta is required (1) to make a return and submit it to the
court immediately upon satisfaction in part or in full of the judgment; and (2) if the
judgment cannot be satisfied in full, to make a report to the court within 30 days
after his receipt of the writ and state why full satisfaction could not be made. The
Sheriff shall continue making a report every 30 days on proceedings being taken
thereon until the judgment is full satisfied. The reason for this requirement is to
update the court as to the status of the execution and give it an idea why the
judgment has not been satisfied. It also provides the court an idea as to how
efficient court processes are after the judgment has been promulgated. The over-all
purpose of the requirement is to ensure the speedy execution of decisions.
 In this case, the records show that respondent received the writ of execution on
December 11, 1997. Following the rule, he was supposed to make a return to the
court 30 days after December 11, 1997, or by January 10, 1998, and every 30 days
thereafter until the judgment has been satisfied. However, as of July 17, 2000, he
failed to make any report to the court as it was his ministerial duty to do so. He was
thus guilty of nonfeasance.
 Under Rule 39, Sec. 9, fees collected by the sheriff are required to be paid over to
the judgment obligee or the latter's authorized representative. In the absence of
both, respondent is obligated to pay them over to the clerk of the court who issued
28
 the writ or, if this is not possible, to deposit the amount in the nearest government
depository bank.
 The records show that when Mario Timbol paid the bid price to respondent, the
latter did not turn over the amount to Atty. Delfin Gruspe, as counsel of Leon Basas,
Sr., or the Clerk of Court, but rather to Cesar Gruspe, the brother of plaintiff's
counsel. The Minutes of the Public Auction Sale reveal that during the said sale, the
judgment obligee, Leon Basas, Sr., was absent and so was Cesar Gruspe. As such,
under Rule 39, 9, respondent was under the obligation to turn over the P15,000.00
to Atty. Delfin Gruspe, the authorized representative of Leon Basas Sr. Instead, as
evidenced by the Minutes of the Public Auction, respondent paid the amount to
Cesar Gruspe, who was not even present at the bidding, nor authorized by Leon
Basas, Sr. to receive the amount from respondent.
 As complainant points out, there are discrepancies in the Minutes of Public Auction
Sale prepared by respondent. These discrepancies are the following:
1. The first discrepancy concerns the absence of any mention of complainant's bid.
No entries were made on the blank spaces opposite the words "other bidders"
despite the fact that complainant did submit a bid.
2. Next is the manner in which the words "Fifteen Thousand" is written in
complainant's copy and in respondent's copy of the Minutes. In the copy submitted
by respondent, there are no erasures in the particular entry, whereas in
complainant's copy, there is an erasure that separates the words from each other.
This discrepancy suggests that respondent executed two different documents and
submitted one to the court and one to complainant. This disparity places in doubt
the veracity of each copy, as well as respondent's motives in making two different
copies concerning the same matter, the one he submitted to the court, and the
other he furnished complainant.
3. The manner in which Mario Timbol signed the copies of the Minutes of Public
Auction is another anomaly. Respondent claims that Mario Timbol authorized Joe
Castillo to bid on his behalf. This allegation is confirmed by Mario Timbol's affidavit.
Yet, both copies of the Minutes of the Public Auction are signed by Mario Timbol as
agent, and not as the principal. This discrepancy is proof that respondent
misrepresented some aspect of the facts to the court.
 It ought not be forgotten that a judgment, if not executed, would just be an empty
victory on the part of the prevailing party. The failure of sheriffs to implement or
execute a writ results in a grave omission. We have held that failure to make a
return makes respondent guilty of malicious nonfeasance warranting dismissal.

29
 ST. AVIATION SERVICES CO. v. GRAND INTERNATIONAL GR No. 140288
AIRWAYS, INC.
October 23, 2006 Sandoval-Gutierrez, J.
TOPIC IN SYLLABUS: Execution of Judgment Digest By: Maite Fernandez
SUMMARY: SAS and GIA entered into 2 repair and maintenance agreements for 2 aircrafts
owned by the latter. SAS undertook the works and promptly delivered the aircrafts to GIA.
However, GIA, despite repeated demands, failed to pay. SAS filed an action with the SG High
Court, which issued a writ of summons to be served extraterritorially, seeking assistance
from Pasay City. Said summons was served upon GIA’s office and was received by the
Secretary of the General Manager. Despite such service, GIA failed to answer; thus SG Court
rendered a judgment by default. SAS then filed a petition for enforcement of judgment
before Pasay City RTC. GIA filed a MTD for lack of jurisdiction over its person, arguing that
the service of summons was defective. RTC denied. CA reversed. SC reversed the CA holding
that there was proper service of summons. Hence, the judgment by default rendered by SG
Court is valid.
DOCTRINE: A foreign judgment or order against a person is merely presumptive evidence of
a right as between the parties. | The party attacking the foreign judgment has the burden of
overcoming the presumption of its validity.
PROCEDURAL ANTECEDENTS: Petition for review on certiorari (R45) of the CA Decision and
Resolution setting aside the Orders of the RTC.
FACTS:
St. Aviation Services (SAS), foreign corp based in SG, is engaged in the manufacture, repair and
maintenance of airplanes and aircrafts. Grand Int’l Airways (GIA) is a domestic corp engaged in
airline operations. The 2 entered into 2 agreements (1st was written, 2nd was verbal) for the
maintenance and modification of Airbus A 300 B4-103 and Aircraft No. RP-C8881, respectively.
Under said agreements, the parties agreed that the performance of the works shall be governed
by the laws of SG and that any suit arising from their agreement should be submitted to the
non-exclusive jurisdiction of SG Courts.
SAS undertook the contracted works and promptly delivered the aircrafts to GIA. It billed GIA
US$ 304K but despite repeated demands, GIA failed to pay.
Thus, SAS filed an action with the SG High Court. Upon motion with leave filed by SAS, said Court
issued a writ of summons to be served extraterritorially, wherein the Court sought the
assistance of Pasay City to effect service thereof. However, despite direct receipt of summons,
GIA failed to answer the claim. Hence, the SG Court entered a judgment by default against GIA.
SAS then filed with the Pasay City RTC a Petition for Enforcement of Judgment. GIA filed a MTD
based on 2 grounds: (a) SG High Court did not acquire jurisdiction over its person, and (b) foreign
judgment is void for having been rendered in violation of its right to due process. RTC denied.
MR denied.
GIA filed a R65 certiorari before the CA assailing said orders. CA granted the petition and set
aside the RTC orders, stating that the action, being a personal action, service of summons should
be personal or substituted, not extraterritorial, in order to confer jurisdiction (See Sec. 15, R
14). MR denied.
RESPONDENT’S ARGUMENT(S): Judgment sought to be enforced is void for lack of jurisdiction
over its person, since service of summons was void.
ISSUE(S):
1) WoN SG High Court acquired jurisdiction over GIA by service of summons upon its
office in the PH - Y
2) WoN the judgment by default in Suit No. 2101 by the SG High Court is enforceable in
the PH —Y
HELD:
Generally, in the absence of a special contract, no sovereign is bound to give effect within its
dominion to a judgment rendered by a tribunal of another country. However, under the rules
of comity, utility and convenience, nations have established a usage among civilized states by
which final judgments of foreign courts of competent jurisdiction are reciprocally respected and
rendered efficacious under certain conditions that may vary in different countries.
Under Sec. 48, Rule 39, a foreign judgment or order against a person is merely presumptive
evidence of a right as between the parties. It may be repelled, among others, by want of
jurisdiction of the issuing authority, or by want of notice to the party against whom it is
enforced. The party attacking the foreign judgment has the burden of overcoming the
presumption of its validity.
Generally, matters of remedy and procedure are governed by lex fori or the internal law of the
forum (in this case, SG Law). In the case at bar, the SG Court, in its Order, granted leave to serve
a copy of the Writ of Summons by a method of service authorized by PH Law for service of any
originating process issued by the PH. This service of summons is in accordance with Order 11,
r.4(2) of the 1996 RoC of SG, which provides:
“(2) Where in accordance with these Rules, an originating process is to be served on a
defendant in any country with respect to which there does not subsist a Civil Procedure
Convention providing for service in that country of process of the High Court, the
originating process may be served
a) through the government of that country, where that government is willing to effect
service;
b) through a Singapore Consular authority in that country, except where service through
such an authority is contrary to the law of the country; or
c) by a method of service authorized by the law of that country for service of any
originating process issued by that country.”
In the PH, jurisdiction over the person is acquired by personal or substituted service. In this case,
the Writ of Summons issued by SG High Court was served upon GIA at its office located at
Mercury Hotel, MIA Rd., Pasay City. The Sheriff’s return shows that it was received by Joyce
Austria, Secretary of the General Manager of GIA. Considering that the Writ of Summons was
served upon GIA iaw our Rules, jurisdiction was acquired by SG High Court. Thus, the judgment
by default rendered against GIA is valid.
30
CITY GOV’T OF MAKATI v. EMERITA ODEÑA GR No. 191661
AUG. 13, 2013 Sereno, CJ.
TOPIC IN SYLLABUS: Execution of Judgment Digest By: Monique Lee
SUMMARY:
Respondent was found to have been illegally dismissed by the CSC, which ruled that she was
entitled to reinstatement and backwages not exceeding 5 years worth of such - this decision
was affirmed, by the CA and the SC. Despite the directive of the CSC, the petitioner did not
reinstate her nor pay the respondent her backwages. Respondent then opted for early
retirement and was given 5-years worth of backwages and was made to sign a quitclaim
releasing the petitioner from paying benefits for her early retirement. Respondent later
wrote a letter-complaint to the CSC questioning the 5-year limitation of the payment of her
backwages. The CSC ruled in her favor, and granted her 7-years worth of backwages. The CA
denied the appeal of the petitioner which was via Rule 43 because the judgment has become
final and executory, and thus the proper remedy is Rule 65. The SC reversed the ruling of the
CA stating that Appeal via Rule 43 is indeed one of the remedies allowed in this case.
DOCTRINE:
The general rule is that no appeal lies from an order or writ directing the execution of a final
judgment, for otherwise a case will not attain finality. This rule is not absolute since a party
aggrieved by an improper or irregular execution of a judgment is not without a remedy. Thus,
in Limpin v. IAC, the Court enumerated the exceptional circumstances where a party may
elevate the matter of an improper execution for appeal, to wit:
There may, to be sure, be instances when an error may be committed in the course of
execution proceedings prejudicial to the rights of a party. These instances, rare though they
may be, do call for correction by a superior court, as where —
1) the writ of execution varies the judgment;
2) there has been a change in the situation of the parties making execution
inequitable or unjust;
xxxx
6) it appears that the writ of execution has been improvidently issued, or that it is
defective in substance, or is issued against the wrong party, or that the judgment
debt has been paid or otherwise satisfied, or the writ was issued without authority;
In these exceptional circumstances, considerations of justice and equity dictate that there
be some mode available to the party aggrieved of elevating the question to a higher court
by appeal (writ of error or certiorari), or by a special civil action of certiorari, prohibition, or
mandamus.
PROCEDURAL ANTECEDENTS:
Respondent filed an appeal before the CSC, which ruled in her favor
After its MR was denied, Petitioner filed a Rule 43 before the CA, this was denied.
Petitioner filed a Rule 45 before the SC assailing the decision of the CA, this was denied. SC ruled
in favor of respondent, affirming in toto the ruling of the CA which awarded her backwages not
exceeding 5 years worth.
Respondent filed a letter-complaint before the CSC after she found that the petitioner
shortchanged her.
CSC ruled in her favor, and awarded her backwages amounting to 7 years, 8 months, and 28
days worth.
Petitioner filed a Rule 43 before the CA, this was denied.
Petitioner filed a Rule 45 before the SC, this was granted.
FACTS:
Respondent Emerita Odeña was a teacher who was previously employed by petitioner since
1980. Respondent signed Attendance Sheets to signify her attendance, instead of using a Daily
Time Record. In 2000, she was asked to explain why she failed to attend work starting Nov.
1999. She explained that she was not absent during that time and presented the employees’
logbook as proof– this was not given consideration, and she was later issued a Memorandum
by Mayor E. Binay dropping respondent from the roll of employees. She sought reconsideration
but was denied.
Respondent then appealed to the CSC, which ruled in her favor, finding that the dropping of
respondent from the rolls was not supported by evidence. It gave credence to the contents of
the logbook. Petitioner filed an MR, but this was denied. Petitioner appealed before the CA. The
CA affirmed the CSC ruling.
WHEREFORE, the petition is DISMISSED for lack of merit. CSC Resolution… are affirmed… subject
to the modification that payment of her back salaries shall be computed from date of dismissal
up to date of reinstatement, but in no case to exceed five (5) years.
Petitioner appealed before the SC. The SC (2007 Decision) dismissed the petition and affirmed
in toto the CA ruling. After the 2007 Decision became final, the CSC upon motion of the
respondent, directed the incumbent Mayor of Makati to immediately reinstate her and cause
the payment of her salaries and other benefits from the date of her illegal dismissal up to her
actual reinstatement. This directive was never complied with. Respondent instead opted for
early retirement and was thereafter paid P558,944.19 representing her supposed backwages
and benefits. In acknowledging receipt of this amount, she was made to sign a quitclaim
foreclosing her right to receive amounts pertaining to her early retirement.
After realizing that the petitioner had shortchanged her, she filed a letter-complaint before the
CSC. This was given cognizance by the CSC, and directed petitioner to file her comment – which
petitioner complied with. The CSC ruled in favor of respondent. It awarded her backwages and
benefits for a period of seven years, eight months, and twenty-eight days. The petitioner
appealed by Rule 43 to the CA, this was denied for being the improper remedy since a final
judgment of the CSC is not appealable by Rule 43, but rather it may be assailed via Rule 65.
PETITIONER’S ARGUMENT(S):
31
The CSC resolutions were violative of the doctrine of res judicata because it awarded backwages
to the respondent greater than what was originally ruled upon by the SC in its 2007 Decision.
RESPONDENT’S ARGUMENT(S):
The instant Petition for Review under Rule 43 is the wrong mode of remedy because orders of
execution cannot be the subject of appeal, the proper remedy being a Rule 65 petition. (The CA
seemed to take into consideration the subsequent CSC Resolution giving credence to the
arguments of the respondent in her letter-complaint)
her former position, but not to exceed five (5) years. The reinstatement portion was rendered
moot by respondent’s early retirement effective on 13 February 2008.
To comply with the second directive, the amount of P558,944.19 representing the amount of
back wages for a period not exceeding five (5) years, as computed by petitioner, was paid to
respondent.
We rule, however, that the Quitclaim executed by respondent is void and of no effect and
cannot validly foreclose her right to receive amounts pertaining to her early retirement.

ISSUE(S): The Letter-Complaint is a belated attempt to seek the reversal of this Court’s 2007 Decision,
WON petitioner undertook an improper remedy in filing a Rule 43 with the CA to question the which should not have been considered by the CSC. The CSC grievously erred in taking
CSC Resolutions / NO. cognizance of respondent’s Letter-Complaint which was actually a prohibited appeal of the
2007 Decision that by then had long become final and executory. It is axiomatic that final and
HELD: executory judgments can no longer be attacked by any of the parties or be modified, directly or
According to Rule 43 Sec. 1, the CA has jurisdiction not only over judgments and final orders of indirectly, even by the highest court of the land.
the CSC, but also over appeals from awards, judgments, final orders or resolutions issued by the
latter. WHEREFORE, the instant Petition for Review filed by City of Makati is hereby GRANTED. The
Although the general rule is that an order of execution is not appealable, the CA failed to consider Resolutions dated 23 October 2009 and 17 March 2010 of the Court of Appeals in CA-G.R. SP
that there are exceptions to this rule, as illustrated in this case. A writ of execution is a direct No. 108983 are REVERSED. The Release, Waiver and Quitclaim signed by respondent,
command of the court to the sheriff to carry out the mandate of the writ, which is normally the however, is without force and effect, and should not foreclose her entitlement to retirement
enforcement of a judgment. The CA was correct in treating the CSC Resolutions as orders of benefits. The City of Makati is hereby likewise directed to immediately pay the same.
execution that were issued in connection with the implementation of this Court’s 2007 Decision.
The CA, however erred in dismissing the petitioner’s Rule 43 petition for being the improper
remedy. Indeed, the general rule is that an order of execution is not appealable; otherwise, a
case would never end. But there are exceptions to this rule as enumerated in the case of Limpin
v. IAC. There may, to be sure, be instances when an error may be committed in the course of
execution proceedings prejudicial to the rights of a party. These instances, rare though they may
be, do call for correction by a superior court, as where —
1) the writ of execution varies the judgment;
2) there has been a change in the situation of the parties making execution inequitable
or unjust;
xxxx
6) it appears that the writ of execution has been improvidently issued, or that it is
defective in substance, or is issued against the wrong party, or that the judgment debt
has been paid or otherwise satisfied, or the writ was issued without authority;

In these exceptional circumstances, considerations of justice and equity dictate that there be
some mode available to the party aggrieved of elevating the question to a higher court. That
mode of elevation may be either by appeal (writ of error or certiorari), or by a special civil action
of certiorari, prohibition, or mandamus. The court finds no sound justification to abandon the
aforequoted pronouncement insofar as it recognizes the filing of an ordinary appeal as a proper
remedy to assail a writ or order issued in connection with the execution of a final judgment, where
factual review in the manner of execution is called for to determine whether the challenged writ
or order has indeed varied the tenor of the final judgment.

To recall, the 2007 Decision, in relation to the CA Decision dated 14 May 2004, directed
petitioner to do two things: (1) to reinstate respondent to her former position;72 and (2) to pay
her back wages to be computed from the time of her illegal dismissal until her reinstatement to
32
 Fernando v. Santamaria GR No. 160730
Dec. 10, 2004 Ynares-Santiago, J.
TOPIC IN SYLLABUS: Appeals Lopez, C.
SUMMARY: Fernando filed a complaint against Chua, Uy and Borres for fraudulent transfers
of property. RTC dismissed the complaint as to Chua and Uy but maintained Fernando’s third
cause of action against Borres since it was an action for recovery of money directed only to
Borres. Fernando only filed a notice of appeal, alleging that TC cannot render several
judgments and separate the liability of Borres with that of her co-respondents. SC held that
Fernando’s cause of action against Borres for collection of sum of money is clearly severable
from her action against the other respondents.
DOCTRINE: Where rendition of several judgments is proper, record on appeal is required to
enable the appellate court to decide the appeal without the original record, which should
remain with the lower court pending disposal of the case with respect to the other
defendants.
PROCEDURAL ANTECEDENTS: Petition for Review of CA decision
FACTS:
 Fernando obtained loans from Chua in the amount of P5M on three separate
occasions. As security, she executed a real estate mortgage.
 Before third loan was released, Fernando executed a deed of absolute sale conveying
the lot to Chua for P3M, upon assurance from Borres (Chua’s agent) that deed was a
mere formality.
 Nov. 9, 1995 – Fernando discovered that her title was cancelled and new one was
issued in the name of Chua
 Chua offered to resell the property to Fernando for P10M, who accepted the offer.
 Dec 7, 1995 – Fernando discovered that Chua sold the property to Uy for P7M.
 Oct. 13, 2000 – Fernando filed a complaint against Uy, Chua, and Borres for:
o Annulment of deeds of absolute sale
o Recovery of P200k from Borres, which she gave as payment of real property
taxes + P120k, which Borres allegedly deducted from the third loan
o Recovery of damages from all respondents
 Chua filed MTD on the ground that the ground of fraud upon which the action is
founded is barred by prescription.
 Uy and Borres filed their Answers, alleging that Fernando’s cause of action has been
waived or abandoned.
RTC dismissed the complaint (Oct. 25, 2001) against all the respondents on the ground of
prescription, ratification and abandonment of cause of action.
2“Dear Mr. Uy, I offer to buy back the property xxx which once belonged to me and my family at P13M
and I will pay on or before January 22, 1996.”
 Fernando ratified the Chua’s act of selling the lot by acknowledging that Uy is the new
owner as shown in her letter2 offering to repurchase.
RTC modified its decision (July 24, 2001)
 Reinstated the complaint insofar as the action for recovery of money against Borres
is concerned.
 Defendant Borres is given a fresh period of 15 days from receipt of copy to file her
Answer to the complaint
Nov. 16, 2001 – Fernando filed a Notice of Appeal of the Oct and July RTC decisions. Chua filed
an MTD for failure to file a record on appeal within the required period.
RTC granted the MTD.
PET’s ARGUMENTS:
 Fernando filed a petition for certiorari with CA contending that her complaint seeks
to hold ALL respondents solidarily liable for the fraudulent transfer of property
 TC cannot render several judgment and separate the liability of Borres with that of her
co-respondents. So appeal from the decision of TC can be perfected by the filing of a
notice of appeal w/in 15 days from receipt of order without submitting a record on
appeal.
CA dismissed the petition because the liability of Borres may in Fernando’s cause of action is
distinct from the liability of her co-respondents.
 Sec 2(a) and 3 of Rule 41 requires the filing of record on appeal in addition to the
notice of appeal within 30 days from notice of the assailed order
ISSUE(S): W/N Fernando was able to perfect an appeal within the required period? NO.
Fernando should have filed a record on appeal since it is a severable action.
HELD:
 Under Sec. 4, Rule 36: Several judgments. In an action against several defendants, the
court may, when a several judgment is proper, render judgment against one or more of
them, leaving the action to proceed against the others.
 A several judgment is proper when:
o Liability of each party is clearly separable and distinct from that of his co-parties
o Such that the claims against each of them could have been the subject of separate
suits
o Judgment for or against one of them will not necessarily affect the other.
 On Fernando’s third cause of action3 for payment is directed only against Borres to the
exclusion of Uy and Chua.
 The issues of whether or not Borres should reimburse the amounts are distinct from and
independent of the question of whether petitioner signed the deed of absolute sale
through the misrepresentation of respondents.
3“ordering defendant BORRES to return to plaintiff the sums of P120,000.00 and P200,000.00
wrongfully obtained by her from the latter, with interest at the legal rate from the filing of the instant case
until fully paid”
33
 Even if TC debunks Fernando’s claim that respondents connived in defrauding her to
convey the property, the action against Borres for sum of money will still subsist because
it is based on different issues

 In Roman Catholic Archbishop of Manila v. CA: Suit does not require multiple appeals.
There is no ground for the splitting of appeals in this case, even if it involves an Order
granting (and denying) an MTD and a Partial Judgment granting a motion for judgment on
the pleadings.
o The subject matter covered in the Order and in the Partial Judgment pertain to the
same lessor-lessee relationship, lease contract and parcel of land.
o Splitting appeals in the instant case would, in effect, be violative of the rule against
multiplicity of appeals.
o Since a case has not been made out for multiple appeals, a record on appeal is
unnecessary to perfect the appeal
 In CAB, Fernando’s cause of action against Borres for collection of sum of money is clearly
severable from her action against the other respondents. Thus, rendition of several
judgments is proper.
 Rationale for filing of a record on appeal in cases where several judgment is rendered:
o To enable the appellate court to decide the appeal without the original record which
should remain with the lower court pending disposal of the case with respect to the
other defendants
 Fernando is required to file a record on appeal within thirty days from Nov. 15, 2001 (date
of receipt of order). Since no record on appeal was filed, CA correctly sustained the order
of dismissal of appeal for failure to perfect the same within the reglementary period.

 Reglementary periods under the Rules are to be strictly observed for being considered
indispensable interdictions against needless delays and an orderly discharge of judicial
business.
 Upon expiration of the period without an appeal having been perfected, the assailed order
or decision becomes final and executory and the court loses all jurisdiction over the case
 The right to appeal is not a natural right or a part of due process. It is merely a statutory
privilege, and may be exercised only in the manner and in accordance with the provisions
of law. The party who seeks to avail of the same must comply with the requirements of
the rules.
 Failing to do so, the right to appeal is lost appeal is still dismissible because petitioners
conduct is inconsistent with her claim of fraud. Instead of impugning the validity of the
sale of the lot to Chua, petitioner accepted the latters offer to resell the property in the
amount of P10M.
PETITION DENIED.

34
 Security Pacific v. Tria-Infante GR No. 144740
Aug. 31, 2005 Chico-Nazario, J.
TOPIC IN SYLLABUS: Attachment Lopez, C.
SUMMARY: Anzures instituted a criminal case against Villaluz and filed an ex parte motion
for Preliminary Attachment, which was granted by RTC. Sheriff attached the properties of
Villaluz. RTC acquitted Villaluz but found her civilly liable. Villaluz appealed the case to CA
(affirmed RTC) then elevated to SC and posted a counterbond issued by Security Pacific. SC
affirmed CA. RTC issued writ of execution upon Anzures’ motion. Since Villaluz no longer
resided in her address, a notice of garnishment was sent to Security Pacific who refused to
assumed its obligation on the counterbond. It argued that since the SC failed to approve the
counterbond and discharge the attachment against Villaluz, the condition upon which the
counterbonds were premised did not happen. Hence, it was not liable. SC held that the
counterbond states solidary liability so Security Pacific is liable. When the execution is
returned unsatisfied, the liability of the bond automatically attaches and the writ of
execution may issued against the surety.
DOCTRINE: there are two (2) ways to secure the discharge of an attachment. a) First, the
party whose property has been attached or a person appearing on his behalf may post a
security; b) Second, said party may show that the order of attachment was improperly or
irregularly issued. (in CAB, the first way applies)
PROCEDURAL ANTECEDENTS: Petition for Review of CA decision
FACTS:
 Reynaldo Anzures instituted a criminal case against Teresita Villaluz for violation of BP
22
 Anzures made an Ex-Parte motion for Preliminary Attachment which the RTC granted
then issued a writ of preliminary attachement.
 Anzures posted the required bond and the sheriff attached the properties of Villaluz.
 RTC: acquitted Villaluz but found her civilly liable.
 Villaluz appealed to the CA.
 CA affirmed the RTC.
 Villaluz elevated the case to the SC and posted a counter-bond issued by Security
Pacific Assurance Corporation.
 SC affirmed the CA.
 Anzures moved for execution of judgment.
RTC issued the Writ of Execution.
 Sheriff was not able to serve it because Villaluz no longer resided in her given address.
A notice of garnishment was sent to Security Pacific who refused to assume its
obligation on the counter-bond.
 Anzures filed a Motion to Proceed with Garnishment.
 RTC granted the motion.
 Security Pacific then filed a Petition for Certiorari with Preliminary Injunction and/or
TRO with the CA, contending that the sheriff erred in proceeding against them on their
counter-attachment bond, despite the fact that the SC did not approve the bond and
that the condition by which said bond was issued did not happen.
o Acc to Security Pacific – failure of the SC to approve the counter-bond and
to cause the discharge of the attachment against Villaluz prevented the
happening of a condition upon which the counter-bonds issuance was
premised, such that petitioner should not be held liable.
o Agreement between it and Villaluz is not a suretyship agreement in the
sense that petitioner has become an additional debtor in relation to private
respondents. It is merely waiving its right of excussion that would ordinarily
apply to counter-bond guarantors
CA ruled against Security Pacific.
• Security Pacific filed a Petition for Certiorari under Rule 45 with Urgent Application for Writ of
Preliminary Injunction and/or TRO with the SC.
ISSUE: W/N CA erred in allowing execution on the counter-bond filed by Security Pacific? NO.
The counter bond states solidary liability.
HELD:
 In Tijam v. Sibonghanoy, the Court ruled that: “after the judgment for the plaintiff has
become executory and the execution is ‘returned unsatisfied,’ the liability of the bond
automatically attaches and, in failure of the surety to satisfy the judgment against the
defendant despite demand therefore, writ of execution may issue against the surety
to enforce the obligation of the bond.”
 In Luzon Steel Coporation v. Sia, it was held that: “Counterbonds posted to obtain the
lifting of a writ of attachment is due to these bonds being security for the payment of
any judgment that the attaching party may obtain; they are mere replacements of the
property formerly attached, and just as the latter may be levied upon after final
judgment in the case in order to realize the amount adjudged, so is the liability of the
counter-sureties ascertainable after the judgment has become final
 The counter-bond itself states that the parties jointly and severally bind themselves to
secure the payment of any judgment that the plaintiff may recover against the
defendant in the action. A surety is considered in law as being the same party as the
debtor in relation to whatever is adjudged touching the obligation of the latter, and
their liabilities are interwoven as to be inseparable.
 The surety’s obligation is not an original and direct one for the performance of his
own act, but merely accessory or collateral to the obligation contracted by the
principal.
 Security Pacific’s argument that the mere filing of a counter-bond cannot
automatically discharge the attachment without first an order of discharge and
approval of the bond, is lame.
 Under the Rules, there are two (2) ways to secure the discharge of an attachment.
o a) First, the party whose property has been attached or a person appearing
on his behalf may post a security.
o b) Second, said party may show that the order of attachment was
improperly or irregularly issued.
 The first applies in the instant case.
35
 It is quite palpable that the necessary steps in the discharge of an attachment upon
giving counter-bond have been taken
 To require a specific order for the discharge of the attachment when the SC has
already ruled in the prior case that the petitioner is solidarily bound with Villaluz
would be mere surplusage.
 In Belisle Investment v. SIHI: “The mere posting of a counterbond does not
automatically discharge the writ of attachment. It is only after hearing and after the
judge has ordered the discharge of the attachment if a cash deposit is made or a a
counterbond is executed to the attaching creditor is filed, that the writ of attachment
is properly discharged under Section 12, Rule 57 of the Rules of Court.”

CA AFFIRMED

36
 TORRES v SATSATIN GR No. 166759
25 Nov 2009 Peralta J.
TOPIC IN SYLLABUS: Provisional Remedies – Attachment Digest By: Manalastas
SUMMARY: Torres siblings own a 20,000 sq.m. parcel of land in Dasmarinas Cavite. Nicanor
was authorized to negotiate its sale to Solar for P35M and thereafter remit P28M to the
Torres siblings. However, Nicanor only remitted P9M despite repeated demands. Thus,
Torres siblings filed a Complaint for Sum of Money and Damages in the RTC against Nicanor.
An ex parte Motion for Issuance of a Writ of Attachment was filed. RTC then directed Torres
to post a bond of P7M. Pursuant thereto, RTC issued a Writ of Attachment and deputized a
sheriff to serve it upon Nicanor. The sheriff levied Nicanor’s properties. Subsequently,
summons was served upon Nicanor. (see specific dates in the main digest)
Nicanor filed an Answer and a Motion to Discharge the Writ of Attachment. Nonetheless,
RTC denied this and directed Nicanor to file a Counterbond. CA found that RTC committed
GAD and directed the lifting of the levy on Nicanor’s properties. SC affirmed the CA and held
that when the attachment was implemented, the RTC had not yet acquired jurisdiction over
the person of the defendant, which was indispensable before the Writ of Attanchment can
be validly implemented.
DOCTRINE:
The grant of the provisional remedy of attachment involves three (3) stages: first, the court
issues the order granting the application; second, the writ of attachment issues pursuant to
the order granting the writ; and third, the writ is implemented. For the initial two stages, it
is not necessary that jurisdiction over the person of the defendant be first obtained.
However, once the implementation of the writ commences, the court must have acquired
jurisdiction over the defendant, for without such jurisdiction, the court has no power and
authority to act in any manner against the defendant. Any order issuing from the Court will
not bind the defendant.
FACTS:
The siblings Sofia Torres, Fructosa Torres, and Mario Torres (collectively, Torres siblings) own
adjacent 20,000 square meters track of land situated at Barrio Lankaan, Dasmariñas, Cavite.
In 1997, Nicanor Satsatin (Nicanor) asked petitioners’ mother, Agripina Aledia, if she wanted to
sell their lands. Petitioners thus authorized Nicanor, through a SPA, to negotiate for the sale of
the properties.
Nicanor offered to sell the properties to Solar Resources, Inc. (Solar). Solar allegedly agreed to
purchase the three parcels of land, together with the another property owned by a certain
Rustica Aledia, for P35M. Petitioners alleged that Nicanor was supposed to remit to them the
total amount of P28M.
Petitioners claimed that Solar has already paid the entire purchase price of P35M to Nicanor.
However, notwithstanding the receipt of the entire payment for the subject property, Nicanor
only remitted the total amount of P9M. Despite repeated verbal and written demands, Nicanor
failed to remit to them the balance of P19M.
Consequently, petitioners filed before the regional trial court (RTC) a Complaint for sum of
money and damages, against Nicanor et al.
On October 30, 2002, petitioners filed an Ex-Parte Motion for the Issuance of a Writ of
Attachment, alleging among other things: that respondents are about to depart the Philippines;
that they have properties, real and personal in Metro Manila and in the nearby provinces; that
the amount due them is P19M above all other claims; that there is no other sufficient security
for the claim sought to be enforced; and that they are willing to post a bond fixed by the court
to answer for all costs which may be adjudged to the respondents and all damages which
respondents may sustain by reason of the attachment prayed for, if it shall be finally adjudged
that petitioners are not entitled thereto.
On October 30, 2002, the trial court issued an Order9 directing the petitioners to post a bond in
the amount of P7M before the court issues the writ of attachment. Petitioners then filed a
Motion for Deputation of Sheriff, informing the court that they have already filed an attachment
bond. They also prayed that a sheriff be deputized to serve the writ of attachment that would
be issued by the court. The RTC granted the said motion and deputized the sheriff, together
with police security assistance, to serve the writ of attachment.
Thereafter, the RTC issued a Writ of Attachment directing the sheriff to attach the estate, real
or personal, of the respondents, On November 19, 2002, a copy of the writ of attachment was
served upon the respondents. The sheriff levied the real and personal properties of the
respondent, including household appliances, cars, and a parcel of land located at Las Piñas,
Manila.
On a subsequent date, summons, together with a copy of the complaint, was served upon the
respondents.
Respondents filed their Answer and a Motion to Discharge Writ of Attachment, which the RTC
denied, and instead directed the respondents to file a counter-bond of P7M, if it so desires, in
order to discharge the Writ of Attachment.
CA found RTC to be in GAD in issuing its Orders.
37
ISSUE(S): W/N the Writ of Attachment should be lifted: [YES]
PETITIONERS POV: The only way the subject writ of attachment can be dissolved is by a counter-
bond. The respondents are not allowed to file a motion to dissolve the attachment under
Section 13, Rule 57 ROC. Otherwise, the hearing on the motion for the dissolution of the writ
would be tantamount to a trial on the merits, considering that the writ of preliminary
attachment was issued upon a ground which is, at the same time, the applicant’s cause of
action. Moreover, the determination of the existence of grounds to discharge a writ of
attachment rests in the sound discretion of the lower court. The Certification issued by the
Office of the Administrator and the Certifications issued by the clerks of court of the RTCs of
Dasmariñas and Imus, Cavite, would show that the bonds offered by Western Guaranty
Corporation, the bonding company which issued the bond, may be accepted by the RTCs of
Dasmariñas and Imus, Cavite, and that the said bonding company has no pending liability with
the government.
Also, respondents are barred by estoppel, laches, and prescription from questioning the orders
of the RTC issuing the writ of attachment. They also maintain that the issue whether there was
impropriety or irregularity in the issuance of the orders is moot and academic, considering that
the attachment bond questioned by the respondent had already expired on November 14, 2003
and petitioners have renewed the attachment bond covering the period from November 14,
2003 to November 14, 2004, and further renewed to cover the period of November 14, 2004
to November 14, 2005.
SC HELD:
A “writ of preliminary attachment” is defined as a provisional remedy issued upon order of the
court where an action is pending, to be levied upon the property/properties of the defendant
therein, to be held thereafter by the sheriff as security for the satisfaction of whatever judgment
that might be secured in the said action by the attaching creditor against the defendant.
In the case at bar, the CA correctly found that there was GADALEJ on the part of the trial court
in approving the bond posted by petitioners despite the fact that not all the requisites for its
approval were complied with. In accepting a surety bond, it is necessary that all the requisites
for its approval are met; otherwise, the bond should be rejected.
Every bond should be accompanied by a clearance from the SC showing that the company
concerned is qualified to transact business which is valid only for thirty (30) days from the date of
its issuance. HOWEVER, the Certification issued by the Office of the Court Administrator (OCA)
at the time the bond was issued would clearly show that the bonds offered by Western Guaranty
Corporation may be accepted only in the RTCs of the cities of Makati, Pasay, and Pasig.
Therefore, the surety bond issued by the bonding company should NOT have been accepted by
the RTC of Dasmariñas, Branch 90, since the certification secured by the bonding company from
the OCA at the time of the issuance of the bond certified that it may only be accepted in the
above-mentioned cities. Thus, the trial court acted with GADALEJ when it issued the writ of
attachment founded on the said bond.
Moreover, in provisional remedies, particularly that of preliminary attachment, the distinction
between the issuance and the implementation of the writ of attachment is of utmost importance
to the validity of the writ. The distinction is indispensably necessary to determine when
jurisdiction over the person of the defendant should be acquired in order to validly implement
the writ of attachment upon his person.
A party to a suit may, at any time after filing the complaint, avail of the provisional remedies
under the ROC. Specifically, Rule 57 on preliminary attachment speaks of the grant of the remedy
"at the commencement of the action or at any time before entry of judgment." This phrase refers
to the date of the filing of the complaint, which is the moment that marks "the commencement
of the action." The reference plainly is to a time before summons is served on the defendant, or
even before summons issues.
In Davao Light & Power Co., Inc. v. CA, SC clarified the actual time when jurisdiction should be
had:
Whatever be the acts done by the Court prior to the acquisition of jurisdiction over
the person of defendant x x x issuance of summons, order of attachment and writ of
attachment x x x these do not and cannot bind and affect the defendant until and unless
jurisdiction over his person is eventually obtained by the court, either by service on him
of summons or other coercive process or his voluntary submission to the court’s
authority. Hence, when the sheriff or other proper officer commences
implementation of the writ of attachment, it is essential that he serve on the
defendant not only a copy of the applicant’s affidavit and attachment bond, and of
the order of attachment, as explicitly required by Section 5 of Rule 57, but also the
summons addressed to said defendant as well as a copy of the complaint x x x
In Cuartero v. CA, SC held that the grant of the provisional remedy of attachment involves three
stages: first, the court issues the order granting the application; second, the writ of attachment
issues pursuant to the order granting the writ; and third, the writ of attachemnt is implemented.
For the initial two stages, it is not necessary that jurisdiction over the person of the defendant
be first obtained. HOWEVER, once the implementation of the writ commences, the court must
have acquired jurisdiction over the defendant, for without such jurisdiction, the court has no
power and authority to act in any manner against the defendant. Any order issuing from the
Court will not bind the defendant.
Thus, it is indispensable not only for the acquisition of jurisdiction over the person of the
defendant, but also upon consideration of fairness, to apprise the defendant of the complaint
against him and the issuance of a writ of preliminary attachment and the grounds therefor that
prior or contemporaneously to the serving of the writ of attachment, service of summons,
together with a copy of the complaint, the application for attachment, the applicant’s affidavit
and bond, and the order must be served upon him.
In the instant case, assuming arguendo that the trial court validly issued the writ of attachment
on November 15, 2002, which was implemented on November 19, 2002, it is to be noted that
the summons, together with a copy of the complaint, was served only on November 21, 2002.
38
At the time the trial court issued the writ of attachment on November 15, 2002, it can validly to
do so, since the motion for its issuance can be filed "at the commencement of the action or at
any time before entry of judgment." HOWEVER, at the time the writ was implemented, the trial
court has NOT acquired jurisdiction over the persons of the respondent since no summons was
yet served upon them. The proper officer should have previously or simultaneously with the
implementation of the writ of attachment, served a copy of the summons upon the respondents
in order for the trial court to have acquired jurisdiction upon them and for the writ to have
binding effect. Consequently, even if the writ of attachment was validly issued, it was improperly
or irregularly enforced and, therefore, CANNOT bind and affect the respondents.

Moreover, although there is truth in the petitioners’ contention that an attachment may not be
dissolved by a showing of its irregular or improper issuance if it is upon a ground which is at the
same time the applicant’s cause of action in the main case, since an anomalous situation would
result if the issues of the main case would be ventilated and resolved in a mere hearing of a
motion. However, the same is not applicable in the case bar. It is clear from the respondents’
pleadings that the grounds on which they base the lifting of the writ of attachment are the
irregularities in its issuance and in the service of the writ, NOT petitioners’ cause of action.

Further, petitioners’ contention that respondents are barred by estoppel, laches, and
prescription from questioning the orders of the RTC issuing the writ of attachment and that the
issue has become moot and academic by the renewal of the attachment bond covering after its
expiration, is devoid of merit. As correctly held by the CA:

There are two ways of discharging the attachment. First, to file a counter-bond in accordance
with Section 12 of Rule 57. Second, to quash the attachment on the ground that it was
irregularly or improvidently issued, as provided for in Section 13 of the same rule. Whether the
attachment was discharged by either of the two ways indicated in the law, the attachment
debtor cannot be deemed to have waived any defect in the issuance of the attachment writ by
simply availing himself of one way of discharging the attachment writ, instead of the other. The
filing of a counter-bond is merely a speedier way of discharging the attachment writ instead of
the other way.

Moreover, again assuming arguendo that the writ of attachment was validly issued, although
the trial court later acquired jurisdiction over the respondents by service of the summons upon
them, such belated service of summons on respondents CANNOT be deemed to have cured the
fatal defect in the enforcement of the writ. The trial court cannot enforce such a coercive
process on respondents without first obtaining jurisdiction over their person. The preliminary
writ of attachment must be served after or simultaneous with the service of summons on the
defendant whether by personal service, substituted service or by publication as warranted by
the circumstances of the case. The subsequent service of summons does not confer a
retroactive acquisition of jurisdiction over her person because the law does not allow for
retroactivity of a belated service.

Petition DENIED.

39
 INSULAR SAVINGS BANK vs. CA, Hon. Amin (Br 135 RTC G.R. NO. 123638
of Makati), and FAR EAST BANK AND TRUST COMPANY
June 15, 2005 GARCIA, J
TOPIC IN SYLLABUS: Attachment (Rule 57) Digest By: PUNZALAN
SUMMARY: While an arbitration case was pending between Far Eastern Bank and Insula
Savings Bank involving three unfunded checks, Far Eastern filed a civil case and prayed for the
issuance of a writ of preliminary attachment which was granted. It was to be issued upon the
posting of a bond. Insular later filed a motion to discharge the attachment by filing a
counterbond which was denied
DOCTRINE:
The former Section 12 of Rule 57 of the Rules of Court provides that where the value of the
property attached shall be the defining measure in the computation of the discharging
counter-attachment bond. The present less stringent Section 12 of Rule 57 provides that the
court shall order the discharge of attachment if the movant makes a cash deposit, or files a
counter-bond . . . in an amount equal to that fixed by the court in the order of attachment,
exclusive of costs.
PROCEDURAL ANTECEDENTS:
Petition for review on certiorari to set aside the decision dated October 9, 1995 of the CA and its
resolution dated January 24, 1996, denying petitioners MR. The assailed decision of October 9,
1995 cleared the RTC, of committing grave abuse of discretion in denying petitioners motion to
discharge attachment by counter-bond.
FACTS:
1. On December 11, 1991, Far East Bank instituted an Arbitration Case against petitioner
Insular Savings Bank before the Arbitration Committee of the Philippine Clearing House
Corporation [PCHC].
2. The dispute between the parties involved three unfunded checks with a total value of
P25,200,000.00. The checks were drawn against respondent Bank and were presented by
petitioner for clearing. As respondent Bank returned the checks beyond the reglementary
period, but after petitioners account with PCHC was credited with the amount of
P25,200,000.00 petitioner refused to refund the money to respondent Bank.
3. While the dispute was pending arbitration, on January 17, 1992, respondent Bank
instituted a Civil Case in the RTC of Makati and prayed for the issuance of a writ of
preliminary attachment. On January 22, 1992, the RTC issued an Order granting the
application for preliminary attachment upon posting by respondent Bank of an attachment
bond in the amount of P6,000,000.00. On January 27, 1992, the RTC issued a writ of
preliminary attachment for the amount of P25,200,000.00.
4. During the hearing on February 11, 1992 before the Arbitration Committee, petitioner and
respondent Bank agreed to temporarily divide between them the disputed amount of
P25,200,000.00 while the dispute has not yet been resolved. As a result, the sum of
P12,600,000.00 is in the possession of respondent Bank.
5. On March 9, 1994, petitioner filed a motion to discharge attachment by counter-bond in
the amount of P12,600,000.00. On June 13, 1994, respondent Judge issued the first
assailed order denying the motion. On June 27, 1994, petitioner filed a motion for
reconsideration which was denied in the second assailed order dated July 20, 1994. CA
upheld the RTC.
ISSUE: WoN the RTC committed grave abuse of discretion in denying petitioners motion to
discharge attachment by counter-bond in the amount of P12,600,000.00. – YES.
Respondent Court’s disposition:
The counter-bond posted by Insular Savings Bank should include the unsecured portion of the
claim of P12,600,000.00 as agreed by means of arbitration between them; Actual damages at
25% percent per annum of unsecured amount of claim from October 21, 1991 in the amount
of P7,827,500.00; Legal interest of 12% percent per annum from October 21, 1991 in the
amount of P3,805,200.00; Exemplary damages in the amount of P2,000,000.00; and attorneys
fees and expenses of litigation in the amount of P1,000,000.00 with a total amount of
P27,237,700.00 (Adlawan vs. Tomol, 184 SCRA 31 (1990).
Petitioner’s arguments:
The starting point in computing the amount of counter-bond is the amount of the respondents
demand or claim only, in this case P25,200,000.00, excluding contingent expenses and
unliquidated amount of damages. And since there was a mutual agreement between the parties
to temporarily, but equally, divide between themselves the said amount pending and subject to
the final outcome of the arbitration, the amount of P12,600,000.00 should, so petitioner argues,
be the basis for computing the amount of the counter-bond.
HELD:
The then pertinent provision of Rule 57 (Preliminary Attachment) of the Rules of Court under
which the appellate court issued its assailed decision and resolution, provides as follows:
SEC. 12. Discharge of attachment upon giving counter-bond. At any time after an order of
attachment has been granted, the party whose property has been attached, may upon
reasonable notice to the applicant, apply to the judge who granted the order or to the judge of
the court which the action is pending, for an order discharging the attachment wholly or in part
on the security given. The judge shall, after hearing, order the discharge of the attachment if a
cash deposit is made, or a counter-bond executed to the attaching creditor is filed, on behalf of
the adverse party, with the clerk or judge of the court where the application is made in an
amount equal to the value of the property attached as determined by the judge, to secure the
payment of any judgment that the attaching creditor may recover in the action. x x x . Should
such counter-bond for any reason be found to be, or become insufficient, and the party
furnishing the same fail to file an additional counter-bond, the attaching party may apply for a
new order of attachment (Emphasis supplied).
As may be noted, the amount of the counter-attachment bond is, under the terms of the
aforequoted Section 12, to be measured against the value of the attached property, as
determined by the judge to secure the payment of any judgment that the attaching creditor
may recover in the action. Albeit not explicitly stated in the same section and without
40
necessarily diminishing the sound discretion of the issuing judge on matters of bond approval,
there can be no serious objection, in turn, to the proposition that the attached property - and
logically the counter-bond necessary to discharge the lien on such property - should as much as
possible correspond in value to, or approximately match the attaching creditors principal claim.
Else, excessive attachment, which ought to be avoided at all times, shall ensue.
Turning to the case at bar, the records show that the principal claim of respondent, as plaintiff
a quo, is in the amount of P25,200,000.00, representing the 3 unfunded checks drawn against,
and presented for clearing to, respondent bank. Jurisprudence teaches that a writ of
attachment cannot be issued for moral and exemplary damages, and other unliquidated or
contingent claim.
transpired under the old rules on preliminary attachment which has since been revised. And
unlike the former Section 12 of Rule 57 of the Rules of Court where the value of the property
attached shall be the defining measure in the computation of the discharging counter-attachment
bond, the present less stringent Section 12 of Rule 57 provides that the court shall order the
discharge of attachment if the movant makes a cash deposit, or files a counter-bond . . . in an
amount equal to that fixed by the court in the order of attachment, exclusive of costs. Not being
in the nature of a penal statute, the Rules of Court cannot be given retroactive effect.
THE PETITION IS GRANTED, GRANTING PETITIONERS MOTION TO DISCHARGE ATTACHMENT BY
COUNTER-BOND IN THE AMOUNT OF P12,600,000.00 UPON THE REPOSTING OF THE SAME
COUNTER-BOND.

The order of attachment dated January 22, 1992 fixed the bond to be posted by respondent, as
applicant, at P6,000,000.00. The writ of attachment issued on January 27, 1992, in turn,
expressly indicated that petitioner is justly indebted to respondent in the amount of
P25,200,000.00. On February 11, 1992, before the Arbitration Committee of the Philippine
Clearing House Corporation, petitioner and respondent, however, agreed to equally divide
between themselves, albeit on a temporary basis, the disputed amount of P25,200,000.00,
subject to the outcome of the arbitration proceedings. Thus, the release by petitioner of the
amount of P12,600,000.00 to respondent. On March 7, 1994, petitionker filed a motion to
discharge attachment by counter-bond in the amount of P12,600,000.00 which, to petitioner,
is the extent that respondent may actually be prejudiced in the event its basic complaint for
recovery of money against petitioner prospers.

As things stood, therefore, respondents principal claim against petitioner immediately prior to
the filing of the motion to discharge attachment has effectively been pruned down to
P12,600,000.00. The trial court was fully aware of this reality. Accordingly, it should have
allowed a total discharge of the attachment on a counter-bond based on the reduced claim of
respondent. If a portion of the claim is already secured, we see no justifiable reason why such
portion should still be subject of counter-bond. It may be that a counter-bond is intended to
secure the payment of any judgment that the attaching party may recover in the main action.
Simple common sense, if not consideration of fair play, however, dictates that a part of a
possible judgment that has veritably been preemptively satisfied or secured need not be
covered by the counter-bond.

With the view we take of this case, the trial court, in requiring petitioner to post a counter-bond
in the amount of P27,237,700.00, obviously glossed over one certain fundamental. We refer to
the fact that the attachment respondent applied for and the corresponding writ issued was only
for the amount of P25.2 Million. Respondent, it bears to stress, did not pray for attachment on
its other claims, contingent and unliquidated as they were. Then, too, the attaching writ rightly
excluded such claims. While the records do not indicate, let alone provide a clear answer as to
the actual value of the property levied upon, it may reasonably be assumed that it is equal to
respondents principal claim. Be that as it may, it was simply unjust for the trial court to base the
amount of the counter-bond on a figure beyond the P25,200,000.00 threshold, as later reduced
to P12,600,200.00.

It bears to stress, as a final consideration, that the certiorari proceedings before the appellate
court and the denial of the motion to discharge attachment subject of such proceedings,
41
 SPS. GREGORIO & JOSEFA YU v. NGO YET TE GR No. 155868
February 6, 2007 Austria-Martinez, J.
TOPIC IN SYLLABUS: Attachment (Rule 57) Digest By: Anit
SUMMARY: Sps. Yu bought P594,240 worth of detergent soap bars from Ngo. The spouses
failed to pay, so Ngo sued to collect and to have the properties of the spouses preliminarily
attached. Court granted the preliminary attachment as against a parcel of land, a Ford Fierra
automobile, a bus, a jeep, and a delivery van owned by the spouses. Spouses filed a
counterclaim for damages due to the preliminary attachment. RTC discharged the
attachment on the jeep, Fierra, and van. On certiorari, the CA affirmed the discharge on the
selected properties, which SC affirmed. RTC then rendered a decision in the collection case
holding the spouses liable to pay on the transaction. On manifestation by the spouses, the
judgment was clarified as to the counterclaim, which was dismissed. Spouses appealed the
dismissal of their counterclaim to the CA, denied. On R45 to the SC, CA was affirmed, the SC
holding that malice or bad faith that would entitle the attachment defendant to damages
does not necessarily follow from a finding of a wrongful attachment, hence the counterclaim
was properly dismissed, as the spouses failed to prove with certainty the actual damages
they suffered due to the wrongful attachment. Nevertheless, finding the fact of damage (but
not the amount) certain, SC awarded P50,000 as temperate damages.
DOCTRINE: If the surety was not notified when the claim for damages against the principal
in the bond was heard, then as a matter of procedural due process the surety is entitled to
be heard when the judgment for damages against the principal is sought to be enforced
against the surety’s replevin bond.
Where there is a wrongful attachment, the attachment defendant may recover actual
damages even without proof that the attachment plaintiff acted in bad faith in obtaining the
attachment. The wrongfulness of the attachment does not warrant the automatic award of
damages; these must first be proven.
To merit an award of actual damages arising from a wrongful attachment, the attachment
defendant must prove, with the best evidence obtainable, the fact of loss or injury suffered
and the amount thereof. Such loss or injury must be capable of proof and should actually be
proven with a reasonable degree of certainty, i.e., measurable based on specific facts and
not speculative.
If the claim for actual damages covers lucro cesante, the amount of unrealized profits must
be established and supported by evidence of the mean income of the business interrupted
by the wrongful attachment.
PROCEDURAL ANTECEDENTS: R45 petition for review on Certiorari against the denial of an
appeal by the CA. Original action for sum of money with preliminary attachment.
FACTS:
 Spouses Yu bought P594,240 worth of detergent soap bars from Ngo Yu Te, issuing 3
postdated checks as payment.
 The checks bounced, so Ngo demanded payment from the spouses.
 Mar. 3, 1993 - The demands went unheeded, so Ngo filed a suit for collection with
prayer for preliminary attachment against the spouses before the RTC-Cebu.
o To support her prayer for attachment, Ngo alleged that the spouses did not
really intend to pay her, and were about to dispose of their properties in
fraud of creditors.
o Ngo posted an attachment bond in the form of a Surety Bond with Visayan
Surety & Insurance Corp.
 Mar. 29, 1993 – Upon Ngo’s posting of the bond, the RTC issued an Order of
Attachment/Levy.
 On the basis of the Order, the RTC-19 sheriff levied and attached a parcel of land, a
Ford Fierra, a jeep, a Canter delivery van, and a passenger bus, all owned by the
spouses.
 Apr. 21, 1993 – The spouses filed an Answer with counterclaim for damages arising
from the attachment of their properties. They also filed an Urgent Motion to Dissolve
Writ of Preliminary Attachment and a Claim against the Surety Bond.
 May 3, 1993 – RTC discharged the Fierra, the jeep and the Canter van from
attachment on humanitarian grounds. The spouses filed an MR, denied. They went to
the CA on certiorari.
 Sep. 14, 1993 – CA decision
o Lifted the attachment on the lot and passenger bus.
o Ngo failed to specifically plead the badges of fraud against the spouses’
creditors which she relies upon in her application for preliminary
attachment.
o At the hearing, the spouses presented evidence that Ngo had been
extending multi-million peso credit lines to them for the past 7 years and
that they consistently paid these on time; and that they have been recently
been robbed of certain valuable properties.
o Ngo filed an MR, denied. She raised the matter to the SC on R45.
 June 8, 1994 - SC denied Ngo’s petition. The CA ruling on the wrongfulness of the
attachment became conclusive and binding.
 July 20, 1994 – RTC DECISION in the ORIGINAL CASE
o Spouses ordered to pay P549,404.00 with interest and attorney’s fees
o Issue of attachment was not ruled upon in view of the pendency of the
petition before the SC (which had already been decided)
o The spouses filed an MR and manifested that the SC had already ruled on
the issue of the attachment.
 Aug. 9, 1994 – RTC ORDER in view of the manifestation
o Affirmed its original decision, in view of its reading of the SC and CA decision
to the effect that while the attachment was ruled as wrongful, no damages
were awarded to the spouses.
o The spouses filed an MR, denied.
 Dec. 2, 1994 – RTC granted Ngo’s Motions for Correction on the amount of interest
and for Execution pending Appeal.
 The spouses filed 2 notices of appeal with the RTC, both denied.
 June 22, 1995 – CA granted the spouses’ R65 petition against the denial of their
notices of appeal.
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  Hence, the spouses filed their appeal with the CA, assailing the non-awarding of
damages on their counterclaim.
 Mar. 21, 2001 – CA DECISION
o Affirmed RTC
o Spouses failed to adduce sufficient evidence of their entitlement to
damages
o Their MR was denied, hence this recourse to the SC.
PETITIONER’S ARGUMENTS:
 The attachment was made in bad faith and damages should be awarded to them as a
consequence. CA erred in not ruling that there was bad faith in view of the final SC
decision finding that the attachment was wrongful.
 Ngo is guilty of bad faith as she was guilty of perjury in the Affidavit of her son which
she attached to her application for preliminary attachment, for Ngo’s son stated
therein that the spouses did not intend to pay the purchase price and were intending
to defraud their creditors, even if Ngo’s son knows that the spouses had been paying
their dues on time and where the properties of the spouses were located.
 They are entitled to damages on the basis of the SC ruling that the attachment was
illegal, because the illegality of the attachment suggests of malice/bad faith on Ngo’s
part (Javellana v. D.O. Plaza Ent.)
 Assuming that Ngo did not act with malice, she is still liable because she inflicted
damage on the spouses by applying for an attachment even when she was not clearly
entitled thereto.
RESPONDENT’S ARGUMENT: The CA decision should be affirmed. Furthermore, the
counterclaim was properly dismissed for failure of the spouses to comply with Rule 57, Sec. 20,
as the surety company was not notified of the counterclaim.
ISSUE(S):
1) W/N the CA erred in not ruling that the attachment was made in bad faith (NO)
2) W/N the CA erred in not awarding actual, moral, and exemplary damages (NO, but temperate
damages and atty.’s fees in order)
HELD:
1) PRELIMINARY ISSUE RE: NOTICE TO SURETY COMPANY
 Ngo’s argument is flawed and specious.
 Records reveal that the spouses filed a Motion to Give Notice to Surety on June 18,
1993. Visayan Surety was thus notified of the pre-trial conference and the notice was
evinced by a Registry Receipt dated July 12, 1993.
 Assuming that the surety company was not notified, this is not fatal.
 Malayan Insurance v. Salas: If the surety was not notified of the hearing for damages
against the principal, it is entitled to be heard when the judgment for damages against
the principal is sought to the enforced against the bond (i.e., 2 chances to be heard).
 This is applicable to both replevin and attachment bonds, since the procedure for
claiming damages against both bonds is the same.
2) NO BAD FAITH ON PART OF NGO IN PROCURING ATTACHMENT
 It appears from the record that Josefa Yu had testified to the effect that they had
sufficient funds in their checking account but chose to transfer their funds to another
bank.
 Ngo therefore had reasonable basis for suspicion and malice or bad faith cannot be
attributed to her. Ergo, she could not be held liable for moral and exemplary damages.
3) DAMAGES SOUGHT WERE NOT SUFFICIENTLY PROVEN
 The spouses had a limited understanding of Javellana, for in that case, malice need
not be proven because moral damages were not being claimed.
 Lazatin v. Twaño: Where there is a wrongful attachment, the attachment defendant
may recover without proof that the attachment plaintiff acted in bad faith in obtaining
the attachment.
o However, if it is alleged that the attachment was not merely wrongful but
also malicious, the attachment defendant may recover moral and
exemplary damages as well.
 A finding that the attachment was wrongful does not relieve the attachment
defendant of the burden of proving their counterclaim for damages.
STANDARDS FOR AWARD OF ACTUAL DAMAGES
 To be entitled to actual damages arising from a wrongful attachment, the attachment
defendant must prove, with the best evidence obtainable, the fact of loss or injury
suffered and the amount thereof. The loss or injury must be capable of proof and
must be proven with reasonable certainty, not based on guesswork or speculation.
o If the claim for actual damages covers lost profits (lucro cesante), the
amount must be established and supported by independent evidence of
the mean income of the business undertaking interrupted by the illegal
seizure.
EVIDENCE PRESENTED BY SPOUSES YU NOT ENOUGH
 To prove the profits lost from the passenger bus, the spouses presented ticket stubs,
both used and unused, to establish the daily amount being earned from bus
operations.
 SC deferred to the CA’s appreciation of the evidence in the absence of the
jurisprudentially mandated exceptions.
o CA ruled that the ticket stubs were not enough to prove their claim for
damages, as there was no evidence of daily net income, routes being plied,
average actual profits, and other evidence of profitability.
o The computation based on ticket stubs for only 5 days.
 Furthermore, the spouses could not complain of undue deprivation of profits since the bus had
already been attached prior to the case at bar, for a separate case.
 SC however, awarded P50,000 temperate damages after finding that the spouses did suffer
some form of pecuniary loss due to the mere fact that their properties were seized. Since the
amount cannot be definitively ascertained, temperate damages are in order.
ATTORNEY’S FEES
 GR: Attorney’s fees cannot be awarded when moral and exemplary damages are not granted
 EX: Party incurred expenses to lift a wrongfully issued writ of attachment
 CAB: It has been proven that the spouses did wage a protracted legal battle to fight of the
attachment. P30,000 attorney’s fees are in order.
DISPOSITION: Petition partially granted, P50,000 temperate damages and P30,000 attorney’s fees awarded
to spouses Yu.
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