CHUNG BEN, HONORABLE AGUSTIN P. MONTESA, PRESIDING JUDGE OF BRANCH B, COURT OF FIRST INSTANCE OF MANILA, AND THE SHERIFF OF THE CITY OF MANILA, PETITIONERS, VS. CO BUN KIM, LYDI…

A complaint for detainer was filed by Chung Ben against Co Bun Kim and Lydia
Tiao Han in the municipal court of Manila where after trial judgment was
rendered—

* * * in favor of the plaintiff and against both defendants, ordering the
latter to vacate plaintiff’s premises mentioned in the complaint; to pay the
plaintiff the sum of P2,700 as rentals in arrears with 6 per cent interest
thereon from June 2, 1953 until fully paid, plus the rentals that may be due
from July 1, 1953 at the Tate of P300 a month until they finally vacate and
surrender possession thereof to the plaintiff, plus the sum of P200 as and tor
attorney’s fees, aside from the costs of this suit. (Case No. 20436.)

The defendants appealed to the Court of First Instance of Manila (Case No.
20070). On 16 July 1953 the plaintiff moved for the immediate execution of the
judgment on the ground that the defendants had failed to pay him in advance or
to deposit in court the rental for July within the first five days of said month
as stipulated in the lease contract. On 18 July the Court granted the motion.
Whereupon the defendants filed in the Court of Appeals a petition for a writ of
certiorari with preliminary injunction to annul the order directing immediate
execution of the judgment. On 31 August the Court of Appeals annulled and set
aside the order complained of on the ground that the rent for July would be due
and payable on or before the 10th day of the succeeding month.

In this petition Chung Ben seeks the review and reversal of the judgment of
the Court of Appeals. The other petitioners are just nominal parties.

The petitioner contends that as the respondents failed to pay him the rental
for July or to deposit it in court on or before the 5th day of said month, as
stipulated in the lease contract, he is entitled to have the judgment of the
municipal court, executed. On the other hand, the respondents claim that
pursuant to the provisions of section 8, Rule 72, the rental for July was not
yet due on 18 , July 1953 when the writ of execution was issued by the Court of
First Instance of Manila, but on or before the 10th of August.

True, the dispositive part of the judgment rendered by the municipal court
does not make mention or reference to a contract of lease nor does it state the
time when payment of the monthly rental should be made. Nevertheless, the
respondents do not.deny the allegation of the petitioner that the writ of
execution was issued “for failure to pay or deposit rents on time as agreed;”
and “that in tms case there is no dispute that there is a contract between the
parties whereby it was agreed that the monthly rental should be paid in advance
within the first five days of the month to which such rental shall be made to
correspond.” The same allegation was made in the Court of Appeals by the
petitioner, then respondent, and the respondents, then petitioners, did not deny
it. They just relied to support their petition to annul the writ of execution on
the provisions of section 8, Rule 72, which allow them to pay to the petitioner
or deposit in Court the rental of a given month on or before the tenth day of
the following month.

As there is a contract of lea’se upon which,”the judgment rendered by the
municipal court was foundSft, that part of section 8, Rule 72, which provides: *
* . * ‘ and unless, during the pendency of the appeal, * * * or, in the absence
of a contract, he pays to the plaintiff or into the court, on or before the
tenth day of each calendar month, the reasonable value of the use and occupation
of the premises for the preceding month at the rate determined by the judgment,”
does not apply, but another part of the section and Rule immediately preceding
the one just quoted applies. . Said part provides: “* * * and unless, during the
pendency of the appeal, he pays to the plaintiff or to the Court of First
Instance the amount of rent due from time to time under the contract, if any, as
found by the judgment of the justice of the peace or municipal court1 to exist,
* * *.” This view finds support in the rule laid down in Peck vs. Concepcion, et
al., 74 Phil. 653. There as in this case the dispositive part of the judgment
rendered by the municipal court made no mention of a lease contract but merely
ordered the defendant to restore the premises to the plaintiff and to pay him a
monthly rental of P55 from October 1943 until the premises shall have been
restored to the plaintiff and costs; and a writ of execution having been issued
by the Court of First Instance to which the case had been appealed, because of
defendant’s failure to pay the monthly rental as agreed upon or stipulated in
the lease contract, the defendant sued out a writ of certiorari in this Cpurt
which was denied by the dismissal of the petition. This Court said:

The petitioner contends that since the judgment of the municipal court did
not expressly find that there existed a contract between the parties, the
monthly rental required in said judgment to be paid must be considered as “the
reasonable value of the use and occupation of the premises” and that, therefore,
it should be paid or deposited within the first ten days of the month succeeding
that to which it corresponded, as provided in the last clause of section 8 of
Rule 72 above quoted. The respondents, on the other hand, contend that since the
complaint for unlawful detainer alleged the,existence of a written contract of
lease between the parties on a month-to-month basis at a monthly rental of P55,
payable in advance, which contract, attached to the record, has not been denied
by the petitioner, the fact that the judgment of the municipal court for the
monthly rental was in accordance with said contract made it obligatory upon the
defendant to pay or deposit said rental in accordance with said contract.

We find respondents’ contention to be correct. To assume that there was no
contract between the parties and that the monthly rental of P55 mentioned in the
judgment of the municipal court was merely based on a finding as to the
reasonable value of the use and occupation of the premises, is’ not only
unwarranted by the language of the judgment itself but contrary to the record
before the respondent judge. * * *.

* * * Since in the instant case there is a contract between the parties for
the payment of the rent of P55 in advance within the first ten days of each,
month, and since the petitioner as defendant below failed to pay or deposit the
rent for the month of January 1944 on or before the 10th day of said month, the
respondent judge had no alternative but to grant the petition for execution
prayed for by his co-respondent Mrs. Montenegro.

The judgment under review rendered by the Court of Appeals is reversed, and
the writ of preliminary injunction issued by the Court below is dissolved, with
costs against the respondents, except the Court of Appeals.

Paras, C. J., Bengzon, Reyes, A., Jugo, Bautista Angelo, Labrador,
Concepcion, and Reyes, J. B. L., JJ., concur.