P.M. SILVA, PETITIONER, VS. COURT OF APPEALS AND ESTANISLAO DE OCAMPO, RESPONDENTS.

During the pendency before the Court of Appeals of a case of
unlawful detainer, in which P. M. Silva is the defendant-appellant and
Estanislao de Ocampo, the plaintiff-appellee, the appellant Silva made
the following tardy deposits of the rents adjudged by the trial court:

For the month of November, 1949, on December 13, 1949;
For the month of December, 1949, on January 12, 1950;
For the month of January, 1950, on February 13, 1950.

On February 17, 1950, Estanislao de Ocampo filed a motion before the
Court of Appeals praying that, upon the filing of a bond in the sum of
P3,000, he be allowed to withdraw the deposits for rents made by the
appellant Silva.

On February 20, 1950, long before said motion to withdraw was acted
upon by the Court, Estanislao de Ocampo, having discovered that the
deposits of the rents had not been made on the 10th day of the month as
required by section 8 of Rule 72, filed a petition for immediate
execution of the appealed judgment, which was objected to by Silva on
the ground that execution did not lie because he had already complied
with the law by depositing the rents corresponding to the months in
question. On March 7, 1950, the Court of Appeals granted the petition
and ordered the issuance of a writ of execution as prayed for.

To annul that order of the Court of Appeals and to prohibit the
execution of the judgment, Silva filed the present petition for
certiorari and prohibition in this Court against the Court of Appeals
and Estanislao de Ocampo.

After considering the petition and the answer as well as the
arguments adduced by counsel during the hearing, we find said petition
to be totally devoid of merit. Sections 8 and 9 of Rule 72 provide that
the appellant in a desahucio case shall pay to the plaintiff
or into the court, “on or before the 10th day of each calendar month,
the reasonable value of the use and occupation of the premises for the
preceding month at the rate determined by the judgment”; and that
should the defendant fail to make the payments above prescribed from
time to time during the pendency of the appeal, the court, upon motion
of the plaintiff, of which the defendant shall have notice, and upon
proof of such failure, “shall order the execution of the judgment
appealed from.” We have repeatedly held that the issuance of the writ
of execution for failure to pay or to deposit the rent on time, is
mandatory upon the court and that the latter is powerless to grant any
extension of time within which to make such payment or deposit.

The contention of the petitioner that the respondent de Ocampo had
tolerated petitioner’s belated deposits by not asking for a writ of
execution immediately upon petitioners default, is not meritorious. The
law does not require the plaintiff-appellee in a case like the present
to ask for a writ of execution immediately upon defendant-appellant’s
default on pain of forfeiture of his right to ask for it later. The law
requires the defendant to make the deposit on or before a specified
date, but it fixes no date or period on or within which the plaintiff
should file the motion for execution for failure of the defendant to
make the deposit on time.

The other contention of the petitioner—that “said respondent was in
estoppel by ratification to question petitioner’s belated deposits,
because on February 17, 1950, precisely after said petitioner had
deposited his last rents then due on February 13, 1950, said respondent
prayed for the withdrawal upon a bond of all of petitioner’s deposits
for rent”—is likewise untenable. By asking for the conditional
withdrawal of the deposited rents (subject to the approval of a bond to
respond for same), the petitioner cannot be held to have expressly
consented to the tardiness of the deposit. At the time he filed the
petition for withdrawal he had not yet discovered that the petitioner
had not made the deposits on time. Immediately after discovering that
fact and without waiting for the resolution of the court on his
petition for withdrawal, the respondent de Ocampo filed a petition for
execution of the judgment. The petition for withdrawal of the deposits,
having been objected to by Silva, was denied by the court. Had the
petition for withdrawal been consented to by the petitioner and granted
by the court, and had the respondent de Ocampo received the rents
before filing a motion for execution, a different situation would have
arisen wherein the petition for execution might be successfully
resisted.

The petition is denied, and the writ of preliminary injunction
heretofore issued by this Court is dissolved, with costs against the
petitioner.

Paras, Bengzon, Tuason, Montemayor, and Reyes, JJ., concur.

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PABLO, M., disidente:

Disiento.

El demandado deposits las rentas en 13 de Diciembre de 1949, 12 de
Enero y 13 de Febrero de 1950. El demandante podria haber pedido la
ejecuci6n de la sentencia en 11 o 12 de Diciembre y en 11 o 12 de
Febrero o en 11 de Enero. Pero no lo ha hecho. EL articulo 8, Regla 72
dispone que “should the defendant fail to make the payments
above prescribed from time to time during the pendency of the appeal,
the Court of First Instance, upon motion of the plaintiff, of which the
defendant shall have notice, and upon proof of such failure,
shall order the execution of the judgment appealed from, but such
execution shall not be a bar to the appeal taking its course until the
final disposition thereof on its merits.” Este articulo expresamente
dispone que si se prueba la falta de pago (en este caso, depdsito),
entonces se ordenara” la ejecucion. Como el demandante no presento su
mocion de ejecucion a tiempo; esto es, cuando no se habia hecho aun el
deposito, su inaccion debe interpretarse como renuncia. No hay nada
anormal en ello. El derecho para pedlr la ejecucidn de la sentencia es
renunciable. Inclusive se puede no recibir la renta por generosidad. Si
el demandante en 17 de Febrero de 1950 pidifii al Juzgado que se le
permitiese, bajo fianza, retirar los depositos hechos por el demandado,
de suponer es que no tenia reclamacion en cuanto a ellos; pero porque
fracasd en su peticion, por la oposicion del demandado, pidio la
ejecucion de la sentencia alegando que los dep6sitos no se han hecho a
tiempo. Eso es obrar como obrd el lobo de la fibula. Si el demandante
no pidid a tiempo,—cruando no se habla hecho aun el deposito— la
ejecucion de la sentencia, no tiene derecho a exigir que el demandado
debi6 haber hecho el depdsito con precision cronometrica.