RUFINO KABILING, PETITIONER, VS. EMILIO PEÑA, JUDGE OF THE COURT OF FIRST INSTANCE OF MANILA, THE SHERIFF OF MANILA, AND ROSA NITORREDA, RESPONDENTS.

Asserting a better right to occupy stalls Nos. 250 to 253 of the Quinta
Market, than respondent Rosa Nitorreda, petitioner Rufino Kabiling, as plaintiff
in civil case No. 312 of the Court of First Instance of Manila, filed an
injunction suit (pet., paragraph 2) against said respondent, as defendant
therein, and against the Mayor of Manila and other city officials therein named,
concerning said stalls. He prayed for and obtained a writ of preliminary
injunction restraining the defendants therein from ejecting him from the said
stalls.

After hearing the evidence of both parties, said court, the Honorable Emilio
Peña presiding, rendered its decision (Annex A) wherein it adjudged that the
therein defendant Rosa Nitorreda was the lawful occupant of the above-mentioned
stalls of the Quinta Market and sentenced the therein plaintiff (now petitioner)
to pay to said Nitorreda as damages the sum of P5 daily from August 10, 1946,
“up to the date he vacates said stalls,” with costs. The preliminary injunction
theretofore issued was set aside. Although the dispositive part of said decision
employed the phrase “lawful occupant” in referring to Nitorreda, and to the
stalls above mentioned, it is clear from the context that the court’s meaning is
that Nitorreda was lawfully entitled to occupy them.

That decision was dated December 11, 1946. Thirteen days thereafter,
Nitorreda, through counsel, filed an urgent motion for execution of said
judgment (Annex B), to which motion the therein plaintiff, now petitioner, filed
his written opposition (Annex C). Judge Peña, by an order dated January 3, 1947,
(Annex D) granted the motion and decreed that execution issue in the case.

In his present petition petitioner asks us to annul the order for the
issuance of the writ of execution as well as the orders of Judge Peña denying
his petition to dismiss the “injunction case” (said case No. 312 of the Court of
First Instance of Manila), and for general relief.

Petitioner contends that there was no special reason justifying the immediate
execution of the judgment of the Court of First Instance pending the appeal to
the Court of Appeals, and in view of the fact that he was willing to post a bond
“to answer for whatever damages the respondent, Rosa E. Nitorreda may suffer by
reason of the appeal” (Petition, paragraph 5), and in view of Republic Act No.
37 having been enacted and supplemented by Department Order No. 32 of the
Department of Finance, petitioner asserts (petition, paragraphs 6-9) that said
case No. 312 should have been dismissed, and that the respondent judge Honorable
Emilio Peña acted “without and in excess of jurisdiction and with grave abuse of
discretion” in denying his petition to dismiss said “injunction case” and in
issuing the aforesaid writ of execution.

Petitioner himself calls civil case No. 312 of the Court of First Instance an
“injunction case” (petition, paragraph 7 and prayer), and his own evidence
tended not to establish a legal and permanent adjudication of the stalls to him,
but merely actual occupancy based upon a sort of provisional or conventional
permission of the market master, in which occupancy he wished to be protected
through the special remedy of injunction. Consequently, Rule 39, section 4,
should be applied. By virtue of this provision, “unless otherwise ordered by the
court”—which is not the case here—”a judgment in an action for injunction * * *
shall not be stayed after its rendition and before an appeal is taken or during
the pendency of appeal.”

As for Republic Act No. 37 and Department Order No. 32 of the Department of
Finance, as already stated in our decision in Co Chiong and Lim Chiu Guan
vs. Dinglasan (p. 122, ante), the Secretary of Finance has
suspended motu propio the operation of said Department Order, and without
it or some other similar order or regulation, Republic Act No. 37 is not
susceptible of execution.

For all the foregoing, the petition is hereby dismissed, with costs. So
ordered.

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

---

PERFECTO, J.:

The order of respondent judge dated January 3, 1943, providing for the
issuance of a writ of execution in civil case No. 312 of the Court of First
Instance of Manila, Rufino Kabiling vs. Honorable Valeriano Fugoso et
al., must be set aside and to said effect the petition must be granted.

On December 11, 1946, respondent judge rendered decision in the case
above-mentioned providing as follows:

“In view of all the foregoing, judgment is hereby rendered in favor of the
defendant Rosa E. Nitorreda, and against the plaintiff, declaring the former the
lawful occupant of stalls Nos. 250-253 of the Quinta Market, and sentencing him
to pay her as damages the sum of P5 daily from August 10, 1946 up to the date he
vacates said stalls, the costs of the proceedings. The preliminary injunction
issued is hereby set aside.”

On December 24, 1946, Rosa E. Nitorreda filed an urgent motion for execution
alleging:

“That on December 11, 1946, this Honorable Court rendered judgment in the
above entitled case sentencing plaintiff to vacate stalls Nos. 250-253 of the
Quinta Market and to pay damages and costs;

“That to this date, plaintiff has not perfected his appeal nor served notice
of intention to appeal;

“That even if he perfects an appeal, execution of the judgment rendered in
the above entitled case shall not be stayed.

“Wherefore, it is respectfully prayed of this Honorable Court to cause the
issuance of the corresponding writ of execution.”

Petitioner Kabiling objected to the motion alleging the following:

“Comes now the plaintiff thru counsel in the above-entitled case, and in
opposing the urgent motion for execution of the decision dated December 11,
1946, unto this Honorable Court respectfully alleges:

“1. The Rule of Court invoked by the movant in his urgent motion for
execution requires for special reasons to exist in order that the court in the
exercise of its judicial discretion may issue an execution pending the appeal of
a case. Such special reasons do not appear in the motion, thus,

” ‘The requirement as to special reasons is one the importance of which trial
courts must not overlook. If the judgment is executed, and, on appeal, the same
is reversed, although there are provisions for restitution, oftentimes damages
may arise which cannot be fully compensated. Accordingly, execution should be
granted only upon these considerations and clearly outweighed by superior
circumstances demanding urgency, and the above provision requires a statement of
those circumstances as a security for their existence.’ (Monteverde
versus Jaranilla, 60 Phil., 768, cited in Moran’s Rules of Court.)

“2. The plaintiff, pending the appeal of this case is willing to file a bond,
as fixed by this Honorable Court to answer for whatever damages the appeal might
occasion to the defendant, Rosa E. Nitorreda,

“Wherefore, it is respectfully prayed that the urgent motion be denied for
lack of merits.”

The opposition appears to be well-founded on the authority of section 2 of
Rule 39:

“Execution discretionary.—Before the expiration of the time to appeal,
execution may issue, in the discretion of the court, on motion of the prevailing
party with notice to the adverse party, upon good reasons to be stated in a
special order. If a record on appeal is filed thereafter, the special order
shall be included therein. Execution issued before fie expiration of the time to
appeal may be stayed upon the approval by the court of a sufficient supersedeas
bond filed by the appellant, conditioned for the performance of the judgment or
order appealed from in case it be affirmed wholly or in part.”

Nitorreda’s allegation to the effect that Kabiling has not yet perfected his
appeal and, even if he perfects an appeal, execution of the judgment shall not
be stayed, is not supported by any law, authority, or reason. Therefore, under
section 2 of Rule 39, the respondent judge must have denied the motion for the
issuance of a writ of execution. Furthermore, the fact that Kabiling expressed
his willingness to file a bond to answer for whatever damages the appeal may
occasion to Nitorreda, serves to strengthen the oposition to Nitorreda’s motion.
The filing of said bond is authorized by section 2 of Rule 39. Respondent judge,
notwithstanding, issued the following order on January 3, 1947:

“As prayed for by the attorney for Rosa Nitorreda in his motion filed on
December 27, 1946, and in accordance with section 4 of Rule 39 of the Rules of
Court, let an order of execution issue in this case. So
ordered.”

On its very face, the order appears to be violative of section 2 of Rule 39,
as in said order no reason at all, whether general or special, is advanced in
support of the issuance of a writ of execution.

Here there is a clear case of violation of the law. Petitioner Kabiling, the
aggrieved party, is entitled to relief. We are of opinion that the relief must
not be denied by this court.

For all the foregoing, we vote that the petition
should be granted in the sense that the order of respondent judge dated January
3, 1947, should be set aside.