LEE KO, PETITIONER, VS. DIONISIO DE LEON, JUDGE OF THE COURT OF FIRST INSTANCE OF MANILA, AND CHE TUNG, RESPONDENTS.

The municipal court of Manila rendered on June 21, 1948, a
decision ordering Che Tung to vacate the premises located at 734 Quezon
Boulevard, to restore its possession to Lee Ko and to pay the latter rents at
the rate of P250 a month from April 1, 1948, until the property is surrendered
to Lee Ko.

Che Tung appealed and put up a supersedeas bond of P1,000 to
stay the execution of the judgment. After the appeal had been docketed at the
Court of First Instance of Manila, the rent of June, 1948, became due on July
10, 1948. On August 10, 1948, the rent for July, 1948 became also due, but said
two monthly rents were neither paid to the plaintiff nor deposited in court.

On August 18, 1948, petitioner moved for an immediate execution
of a judgment of the municipal court on the ground that the rents for June and
July, 1948, have been overdue and not paid to the plaintiff nor deposited in
court. On August 21, 1948, respondent judge, instead of ordering the execution
prayed for, granted Che Tung ten days within which to deposit the rents for June
and July, 1948. Lee Ko comes to us complaining against the action of respondent
judge as done with lack of jurisdiction or grave abuse of discretion.

Upon the facts in this case, it appears to be clear that
respondent judge should have granted the petition for the issuance of a writ of
execution, as Che Tung failed to deposit the overdue rents for June and July,
1948, in violation of one of the conditions for the suspension of the execution
of the judgment of the municiapl court as provided by Rule 72. Respondent acted
with grave abuse of discretion in granting Che Tung ten-day period form August
21, 1948, to deposit the rents for June and July, 1948, it appearing in the
order complained of that Che Tung’s failure to pay to plaintiff or to deposit in
court said rents was not due to fraud, accident or error, the circumstances
under which Rule 38 gives relief.

Granting the petition, the order of the respondent judge of
August 21, 1948, is set aside, and the trial court is commanded to order the
issuance of a writ for the execution of the judgment of the municipal court,
with costs against Che Tung.

Moran, C. J., Ozaeta, Paras, Feria, Pablo, Bengzon, Tuason,
Montemayor, and Reyes, JJ., concur.