AMANDO CALUAG DOMINGO, PETITIONER, VS. THE COURT OF FIRST INSTANCE OF NUEVA ECIJA AND FELISA ROMAN VDA. DE MORENO, RESPONDENTS.

PARAS, J.:

In an ejectment case instituted in the justice of the peace court of San
Antonio, Nueva Ecija, in which the respondent (Felisa Roman Vda. de Moreno) was
the plaintiff and the petitioner (Amando Caluag Domingo) the defendant, the
latter was sentenced, in a decision rendered on November 27, 1941, to vacate the
controverted land and to pay P30 (unpaid balance of the rent from September,
1940, to September, 1941), plus the sum of P65 annually thereafter until actual
restitution of the land to Felisa Roman, and the costs. During the pendency of
the appeal interposed by the petitioner in the Court of First Instance of Nueva
Ecija, Felisa Roman filed a motion for the execution of the decision of the
justice of the peace court in view of the failure of the petitioner to file a
supersedeas bond and to pay to Felisa Roman or to the court the rents awarded in
the decision of the justice of the peace court, whereupon the Court of First
Instance of Nueva Ecija issued an order, dated September 9, 1943, directing the
execution prayed for. The petitioner subsequently was able to have this order of
execution lifted, but not without posting a bond for P1.000 required by the
Court of First Instance of Nueva Ecija in its order of August 2, 1944. Said bond
(which was in Japanese military notes) was substituted by a cash bond for the
same amount, but in Philippine currency, filed by agreement of the parties and
approved by the Court of First Instance of Nueva Ecija in the order of August 8,
1945′, which further provided that execution would automatically follow if said
bond was not put up within twelve days. On December 20, 1945, notwithstanding
the existence of this new bond, the Court of First Instance of Nueva Ecija,
acceding to another petition of Felisa Roman, ordered “the execution of the
decision under the provisions of Rule 72, of the Rules of Court.” This last
order is sought to be annulled in the certiorari proceedings now before us,
instituted by the petitioner.

The attorney for the respondents contends—and this is the basis of the Court
of First Instance of Nueva Ecija for directing the execution—that “apesar de
haberse hecho el deposito de mil pesos por el demandado Caluag1 Domingo, primero
en Japanese notes y despues en Philippine currency, ello vino a constituir
solamente la fianza de super-sedeas provista en la segunda condition prevista
para la suspension de la ejecucion,” and that, if the petitioner wanted to have
the execution suspended, he should have paid “al demandante o en la escribania
del juzgado, tod as las cantidades que venia a ser condenado a pagar, desde el
juzgado de paz, hasta la fecha de referencia 20 de diciembre de 1945, y del
mismo modo en lo sucesivo, por cada pago que periodicamente debiera hacer segun
la sentencia.”

Ordinarily, under section 8 of Rule 72 of the Rules of Court, the winning
plaintiff in an ejectment case is entitled to move for immediate execution—and
the court is bound to grant the same,—unless the defendant, who 1ms appealed
from the decision of the justice of the peace or municipal court, files a
supersedeas bond and, during the pendency of the appeal, pays to the plaintiff
or to the court the rents due from time to time. The facts of the case at bar,
however, show that the respondent Felisa Roman, by her own act, had waived her
right to immediate execution, in that she, after the petitioner had already
failed to pay the rente that fell due after the decision of the justice of the
peace court of November 27, 1941, had on two occasions agreed to suspend
execution upon the mere filing by the petitioner of a cash bond for P1,000,
first in 1944 (Japanese notes) and, then, in 1945 (Philippine currency). Indeed,
the agreement was approved by the Court of First Instance of Nueva Ecija in its
order of August 8, 1945, which recited partly as follows: “Aprobando este
convenio, por la presente se fija en P1,000 la fianza que debe prestar el
demandado dentro del termino de 12 dias, a contar desde la fecha de la presente
orden; entendiendose que si asi no lo hiciera, automaticamente se ordenara la
ejucion de la sentencia del juzgado de paz.”

That the sense of the agreement; referred to and ap proved in this order was
to suspend execution after the filing of the cash bond, is clearly deduced from
the warning “entendiendose que si asi no lo hiciera, automaticamente se ordenara
la ejecucidn de la sentencia del juzgado de paz,” and from the amount of said
bond which is sufficient to cover the rents for more than ten years, it
appearing that the decision of the justice of the peace court sentenced the
petitioner to pay only P30 (unpaid balance from September, 1940, to September,
1941) and P65 yearly from September, 1941, plus the costs, and that the back
rents in 1945 when the cash bond of P1,000 was’filed, amounted to the
insignificant sum of P290. If, as held in Mitschiener vs. Barrios (76 Phil.,
55), the supersedeas bond “has, in effect, the purpose of securing only the pay
ment of rents in arrears,” the amount of P1,000 was absively excessive if it was
not intended to cqver also future rents.;

In this connection, it also appears that on October 31, 1945, the Court of
First Instancy of Nueva Ecija decided the ejectment case in favor of tjie
plaintiff; that on November 29, 1945, the motion for execution” was filed, which
was granted—as already noted—in the order of December 20, 1945; that the
subsequent motion for reconsideration was denied on the ground that the cash
deposit of P1,000 did not take the place of a supersedeas bond “first because it
was not given as such, and second—the deposit was made before the decision the
execution of which has been asked for.” The first reason requires no other
comment than that the attorney for the respondents herein now admits that said
deposit “vino a constituir * * * la fianza de super sedeos.” As to the second
reason, it may be remarked that the cash bond of P1,000 filed before the
rendition of the judgment of the Court of First Instance of Nueva Ecija,
continued to serve its purpose and effect thereafter, as may be inferred from
section 9 of Rule 72 which provides that “where the defendant appeals from
judgment of the Court of First Instance, execution of said judgment shall not be
stayed unless the appellant pays either to the plaintiff or into the appellate
court the same amounts referred to in the preceding section to be disposed of in
the same manner as therein provided.” Of course, the record does not show that
the petitioner had duly appealed. At the same time, it is not here pretended by
the respondents that the judgment of the Court of First Instance of Nueva Ecija
has become final and executory.

It results that we need not pass upon petitioner’s allegation that the order
of execution of December 20, 1945, was issued without previous notice to him,
although, of course, a writ of execution may only be issued by the court in
ejectment cases after notice to the adverse party. (Section 8, Rule 72; Angel
Jose Realty Corp. vs. Galao, 76 Phil., 201.)

The petition for certiorari is, therefore, granted and the order of the Court
of First Instance of Nueva Ecija dated December 20, 1945, set aside, with costs
against the respondent Felisa Roman Vda. do Moreno. So ordered.

Moran, C. J.,
Feria, Pablo, Perfecto, Bengzon, Briones, and Tuason, JJ., concur.

DISSENTING

PADILLA, J., with whom concurs HILADO,
J.:

I dissent. This case can not yet be decided in view of the divergent
allegations of the petitioner and the respondent Moreno as disclosed by their
pleadings. Petitioner should not be allowed to withhold facts that must be laid
before this court. He failed to append to his petition his answer filed in the
respondent court, but in lieu thereof attached a copy of the judgment rendered
by the justice of the peace of San Antonio, Nueva Ecija. The allegation in
paragraph XI of his petition that the motion for execution filed by respondent
Moreno on November 29, ,1945, was without notice of hearing to petitioner and
that it was filed before the determination of the case on the merits, is denied
by respondent Moreno.

The latter pleads that the motion was with notice of hearing and that it was
filed after judgment on the merits had been rendered by the respondent court on
October 31, 1945. This last allegation seems to be supported by the orders of
December 20, 1945 and January 18, 1946 entered by the respondent court (Exhibits
I and L). In paragraph XVI of the petition, it is alleged that the respondent
court refused to allow petitioner to file a bond to answer for rentals due. This
is denied by respondent Moreno.

I believe that the interest of justice would be best subserved by directing
the respondent court to forward the record of the case for review by this
court.

Nevertheless, if, despite such divergent allegations, this court feels that
it can decide the case, I would still dissent, because whether the case had been
or has not been decided on the merits by the respondent court, the order of
execution of December 20, 1945, was issued because of petitioner’s failure to
pay the rentals at the rate of PG5 a year from 1941 to 1945. The cash bond of
?l,000 can not be deemed a compliance with petitioner’s obligation, during the
pendency of the appeal, to pay to the plaintiff or into the court the rentals ns
they fall due, either under section 8 or under section 9, Rule 72, of the Rules
of Court.