FREDESWINDA R. CASANOVA, PETITIONER, VS. THE HON. MARIANO A. LACSAMANA, IN HIS CAPACITY AS PRESIDING JUDGE OF PASAY CITY COURT, BRANCH II, THE SPOUSES JOSE V. OCHOA AND ELENA VE…

Petition for certiorari and mandamus with preliminary
injunction wherein petitioner prays this Court: 
(1) to enjoin respondent Judge from enforcing his order of demolition
dated July 8, 1976 and the respondent City Sheriff of Pasay
City from carrying out his notice of demolition; (2) to annul the said order of
demolition and the Sheriff’s notice of demolition; and (3) to issue a writ of mandamus
commanding the respondent Judge to accord due pro­cess of law under the
Constitution to the petitioner and formal hearing under section 14, Rule 39 of
the Revised Rules of Court.

Sometime in 1974, private respondent Jose V. Ochoa instituted an
action for ejectment against petitioner in the City
Court of Pasay City,
Branch II (Civil Case No. 10977). 
Petitioner alleged among others, that he is the absolute owner of the
lot having purchased the same from the Estate of Don Mariano San Pedro and has
been in possession thereof for more than thirty (30) years.  In the said case, the respondent Judge
rendered judgment in favor of respondent Ochoa on March 5, 1976, the dispositive
portion of which reads as follows:

“WHEREFORE, judgment on the pleadings is hereby rendered in
favor of the plaintiff Jose V. Ochoa and against the defendant Fredeswinda R. Casanova ordering her to vacate and
surrender the possession of the premises to the plaintiff or his duly
authorized representative; to pay the accrued back rentals for the premises in
the total amount of P300.00; to pay P60.00 per month as damages for the illegal
detainer of the property until such time as the
defendant actually vacates the premises; and to pay the sum equivalent to 25%
of the amount involved as attorney’s fees.”^[1]

On April 9, 1976, petitioner moved for reconsideration and
suspension of the order of execution dated April 5, 1976 and prayed that the
Sheriff of Pasay City be ordered to withdraw and
desist from enforcing his notice of collection and ejectment
dated April 13, 1976, citing as basis for said motion General Order No. 53,
dated August 21, 1975 which provides, among others, that “all orders for
the ejectment of tenants or the demolition of their
homes are hereby suspended until further orders.” Respondent Ochoa opposed
said motion on April 28, 1976,
on the ground that General Order No. 53 had no application in the case because
it was issued for the purpose of forestalling the indiscriminate eviction of bona
fide tenants from agricultural and/or residential lands converted or
proposed to be converted into subdivision or commercial center and
establishment.  Further, respondent Ochoa
stated that the ejectment case was instituted due to
the failure and/or refusal of petitioner to comply with her obligation as
lessee.

On May 6, 1976,
private respondent filed an Urgent Ex-Parte Motion
for Issuance of Order of Demolition and an Urgent Ex-Parte
Motion for Issuance of Alias Writ of Execution and Order of Demolition.  On June
4, 1976, upon the manifestation of private respondent that said
motions were submitted for re­solution without further oral argument, the
respondent Judge issued an order which considered said motions as submitted for
resolution without further oral arguments.

On June 14, 1976,
petitioner filed an urgent motion for postponement of the hearing scheduled on June 17, 1976 at 9:00 a.m. 
Considering that it had already issued on June 4, 1976 an order which considered the motions of
private respondent as submitted for resolution without further oral arguments,
respondent court issued an order dated June
16, 1976 reiterating its afore-mentioned order of June 4, 1976, thus for all intents and
purposes denying the motion for postponement.

On July 8, 1976,
respondent Judge issued an order denying petitioner’s motion for reconsideration
and suspension of order of execution.  In
the same order, the motions of private respondent were granted and the Sheriff
of Pasay City was ordered “to demolish the
house/structure of the defendant (petitioner) erected on the plaintiff’s property
and to remove the same therefrom.” On July 26, 1976, the Deputy Sheriff of Pasay City,
in a letter of even date, notified the petitioner as follows:

“* * *              * * *                  * * *

THAT AT 9:00
AM, 30 JULY 1976,
YOUR HOUSE WILL BE DEMOLISHED BY THIS OFFICE.

Please remove said house outside of the Plaintiff’s lot before the
given period.”^[2]

Petitioner in seeking to annul the order of respondent Judge
dated July 8, 1976 and to
restrain the Sheriff of Pasay City from demolishing
her house cites as basis for her petition section 14, Rule 39 of the Revised
Rules of Court which provides:

“SEC. 14.  Removal of
improvements on property subject of execution.  – When the property subject of the execution
contains improvements constructed or planted by the judgment debtor or his
agent, the officer shall not destroy, demolish or remove said improvements
except upon special order of the court, issued upon petition of the
judgment creditor after due hearing and after the former has failed
to remove the same within a reasonable time fixed by the court.”
(Italics supplied.)

It is petitioner’s contention that the respondent Judge failed to
observe said provision in not setting for hearing private respondent’s motion
for order of demolition and motion for issuance of alias writ and order of
demolition and in the questioned order the court did not fix a definite
reasonable period within which her house should be removed, thus rendering the
order of the court granting said motions null and void.

Upon the other hand, private respondents argue that from the
decision of the lower court dated March
5, 1976, no appeal was taken and the same has become final and executory.  Further,
according to private respondents there was no denial of due process on the part
of the petitioner when the respondent Judge issued the questioned order because
the petitioner was given ample time by both respondent Judge and the Deputy
Sheriff of Pasay City within which to remove the
construction she erected on pri­vate respondent’s premises.

We find petitioner’s contention meritorious.  We agree with private respondents that the
decision in the ejectment case has already become
final and executory, but what is being questioned in
the present petition is the order of the court ordering the Sheriff of Pasay City or his deputies and the City Engineer’s Office
of Pasay City or his duly authorized representative
to demolish the house/structure of the petitioner erected on the respon­dents’
property and to remove the same therefrom.  The questioned order was issued without due
hearing of the motions of private respondent and without granting petitioner a
reasonable time within which to remove her house from the premises.

In Folloso v. Director of
Lands,^[3]
this Court said:

“Under Section 13 (now 14), Rule 39, the officer called upon
to enforce a final judgment involving delivery or restitution of property may
do so by placing the plaintiff in possession of such property, but ‘the officer
shall not destroy, demolish or remove the improvements made by the defendant or
his agent on the property, except by special order of the court, which order
may only issue upon petition of the plaintiff after due hearing and upon the
defendant’s failure to remove the improvements within a reasonable time to be
fixed by the court.’ The safeguard accorded to the defendant by the above
provision has not been followed.  While
the motion of the appellee for the removal of the
houses was set for hearing after due notice given to the appellants, the court
ordered the sheriff to remove said houses within a period of 30 days but
without giving them a reasonable time within which to do so as required by said
section 13 (now 14).  This requirement is
not an empty gesture.  This safeguard is
necessary to give the defendant an opportunity to protect his interest.  The lower court erred in issuing the order of
demolition without giving a reasonable time to the appellants.”

The same ruling was reiterated in Rom
v. Cobadora,^[4]
where this Court held:

“* * * Under Rule 39, section 14, the appellant’s house could
not be removed pending appellee’s recourse to the
Court for a special order for the demolition and removal of such improvements
constructed by the appellant, which order is to be issued ‘upon petition of the
judgment creditor after due hearing and after the former has failed to
remove the same within a reasonable time fixed by the Court.’ * *
*.”

WHEREFORE, the order of demolition dated July 8, 1976, issued by respondent
Judge, and the Sheriff’s Notice of Demolition, are hereby set aside, and
respondent Judge ordered to accord petitioner a reasonable time to remove her
house from the premises after a formal hearing, in accordance with section 14,
Rule 39 of the Revised Rules of Court.

Fernando, Acting C.J., Aquino, Concepcion, Jr., and Santos,
JJ., concur.

Abad Santos, J., did not take part.

Barredo, J., on leave.

^[1]
Annex “C”, Petition, Rollo, p. 12.

^[2]
Annex “B”, Petition, Rollo, p. 8.

^[3]
L-4991, March 23, 1953, 92
Phil. 810.

^[4]
L-24764, July 17, 1969, 28 SCRA 758.