JUAN BENEMRITO, ET AL., PETITIONERS AND APPELLANTS, VS. PETRONILA COSTANILLA, JULITA DE RABOY AND MARCIAL UGBINAR, JUSTICE OF THE PEACE OF BADIAN, CEBU, RESPONDENTS AND APPELLEES.

Juan Benemrito and Solomon Benemrito
appeal on questions of law from the decision of the Court of First Instance of
Cebu dismissing their petition for a writ of
certiorari against respondents Petronila Costanilla, Julita de Raboy and Marcial Ugbinar.

The facts are: In Civil Case No.
15 of the Justice of the Peace Court of Badian,
Cebu, for forcible entry, judgment
was rendered on February 5,
1951 in
favor of plaintiffs Petronila Costanilla and Julita de Raboy. The judgment ordered defendants Juan Benemrito and Solomon Benemrito to
vacate the land in litigation and to pay monthly rents until the return of
possession, plus damages.

The defendants appealed to the
Court of First Instance of Cebu. They filed a supersedeas bond to stay execution and regularly paid the
adjudged monthly rents. Pending appeal the parties entered into an amicable
settlement, so on July 20,
1956 they
filed a joint motion asking the court “to have the appeal of the above-entitled
case dismissed.” On the same day the court issued an order dismissing the appeal
and directing that the case be returned to the Justice of the Peace Court of
Badian for the execution of its
judgment.

Having received the case, Marcial Ugbinar, the Justice of
the Peace of Badian (and now one of the
respondents-appellees), on December 13,
1956
issued a writ of execution of the judgment, but when the sheriff tried to
enforce the writ the defendants refused to leave the premises. Instead on
January 2,
1957,
they filed a motion to quash the writ, alleging that the court’s judgment could
not be executed since the same had been novated by the
amicable settlement, whereby it was agreed that the defendants would continue in
possession of the land until the question of ownership could be litigated and
decided. , On March 16,
1957 the
court denied the motion.

Consequently, the defendants in
that action filed a petition for certiorari in the Court of First Instance of
Cebu, seeking the annulment of the writ of execution issued by the Justice of the Peace of Badian and the order denying their motion to quash. After
trial the writ prayed for was denied, hence this appeal.

The only question to be resolved
is whether respondent Justice of the Peace acted without or in excess of
jurisdiction or with grave abuse of discretion in issuing the two orders
complained of.

The effect of the dismissal of
the appeal in the Court of First Instance, pursuant to the “joint motion of the
parties, was to revive the judgment appealed from (Section 9, Rule 48, Revised
Rules of Court). It was as though no appeal had been duly perfected, and
therefore execution should issue as a matter of right (Section I, Rule 39, Revised Rules of Court). It was evidently in accordance with
this Rule that the Court of First Instance directed the return of the case to
the Justice of the Peace Court and ordered expressly the “execution of the
judgment.” Upon the foregoing facts respondent court neither acted without or in
excess of its jurisdiction nor abused its discretion. Indeed it had no
discretion at all which it could exercise. Compliance with the order of the
Court of First Instance was a ministerial duty, which it could not shirk by
denying execution or quashing it afterwards.

Petitioners’ position is that in
the amicable settlement entered into by the parties in the forcible entry case
and by reason of which they jointly moved for the dismissal of the appeal
therein it was agreed that they (petitioners) would remain in possession of the
litigated property. This is denied by private respondents, who claim that it is
they who were to be in possession, and they have been sustained in the decision
subject of this appeal. But this point is of no decisive importance or after the
Court of First Instance dismissed the appeal in the forcible entry case and
returned it to the court of origin for execution of the judgment, petitioners’
remedy was to have the order of dismissal reconsidered and modified so that it
would reflect the true agreement. This petitioners
failed to do, and the order became final. What would amount to a modification
thereof could certainly not be obtained from the Justice of the Peace Court,
whose only possible course of action was to issue, as it did, a writ of execution.

The judgment appealed from is
affirmed, with costs against appellants.

Bengzon, C. J., Bautista Angelo, Reyes,
J. B. L.., Barrera, Paredes, Bengzon, J. P. and Zaldivar, JJ.,
concur.