GAW SIN GEE, PETITIONER, VS. EMILIO PEÑA, JUDGE OF FIRST INSTANCE OF MANILA, ET AL., RESPONDENTS.

Except for some legal issues which the industry of petitioner’s counsel
uncovered, this case presents the same material features as others recently
disposed of. The dispute concerns the occupation of market stalls of the
Divisoria Market, City of Manila.

Alleging that, without valid cause, the master of the Divisoria Market had
required him to vacate stalls Nos. 1420-1423, which he had leased from the city,
herein petitioner Gaw Sin Gee filed in the court of First Instance of Manila a
petition for injunction. The respondent officer answered that he was acting upon
orders of the Mayor, who had found, upon investigation, that Gaw Sin Gee had
violated the terms of the lease, and therefore had forfeited his right to
continue occupying the said market places.

Fortunata M. Torres, the other respondent herein, joined the defendant market
master, supporting his allegations of violation of the conditions of the lease
and cancellation thereof. And averring that the said stalls had been duly
awarded to her, and that under Republic Act No. 37 she had preference as a
Filipino citizen, she asked for judgment sustaining her right as occupant and
lessee of said market places.

The court, Judge Emilio Peña presiding, tried the issues, and in due course,
promulgated a decision, the dispositive part of which reads as follows:

“Having arrived at the conclusion that the revocation of the lease was
justified by the circumstances and no evidence having been presented to prove
that the adjudication of stalls Nos. 1420-1423 to the defendant, Fortunata M.
Torres, was irregular, it must be presumed that the provisions of the Market
Code were followed in said adjudication.

“Wherefore, judgment is hereby rendered in favor of the defendant, Fortunata
M. Torres, and against the plaintiff, declaring the former the lawful occupant
of stalls Nos. 1420-1423 of the Divisoria Market, Manila, and ordering the
latter to vacate said stalls, with the costs of the proceedings taxed against
him. The order of preliminary injunction is hereby lifted.”

Thereafter the aforesaid respondents filed an “urgent motion for immediate
execution” alleging the rendition of the judgment and the inability of the city
authorities to eject Gaw Sin Gee and his agents unless authorized to do so. Over
plaintiff’s opposition, and notwithstanding his appeal, the court directed the
issuance of execution.

Hence this petition for certiorari and allied remedies, principally to annul
the order of execution. It is based on alleged excess of jurisdiction and grave
abuse of discretion.

We have recently denied petitions to impede similar “execution” of judgment
on the right to hold market stalls. We made these remarks:

“The decision in civil case No. 971 set aside the writ of preliminary
injuction issued at its commencement. Under section 4 of Rule 39 of the Rules of
Court, unless otherwise ordered by the trial court, a judgment dissolving or
denying an injunction shall not be stayed after its rendition and before an
appeal is taken or during the pendency of an appeal, although said court, in its
discretion may restore such injunction during the pendency of the appeal upon
such terms as to bond or otherwise as it may constitute proper for the security
of the rights of the adverse party. In the instant case, the respondent judge
not only did not restore the writ of preliminary injunction dissolved in his
decision, but expressly ordered its execution and refused to allow the herein
petitioner to file a supersedeas bond. In the absence of such injunction, the
defendant city officials in civil case No. 971 could have proceeded, with the
ouster of the petitioner from the stalls in question. Indeed, there is really
nothing to be executed under the decision which merely determined who has a
better title to said stalls; and the order of the respondent judge now
complained of, can only be interpreted to mean as an authorization for the city
authorities to carry out, with the aid of the sheriff, the said ouster.”
(Buenaventura vs. Peña, 78 Phil., 795.)

Mutatis mutandis, the above is conclusive against petitioner
herein.

It may be noted, in connection with his point that the lower court lacked
jurisdiction to order the ejectment because none of the parties had asked for
such remedy, that respondent Fortunata M. Torres as intervenor, had in effect
solicited analogous relief. As to the other objection, vigorously pressed here,
that the occupant of a market stall may not, summarily and administratively, be
deprived of his lawful privilege without due process of law and all its
applicable connotations, it is enough to state that this aspect of the
litigation should be taken up when the appeal is considered on the merits.

The petition is denied, with costs. So ordered.

Moran, C.J., Feria,
and Pablo, JJ., concur.