PACIFICO VICTORIANO, PETITIONER, VS. LEOPOLDO, JOSEFINA, OFELIA AND ENRIQUE BRIAS, AND THEIR ATTORNEY IN FACT JOSE ELZINGRE, EMILIO PEÑA, JUDGE OF FIRST INSTANCE OF MANILA, AND …

In civil case No. 532 of the Court of First Instance of Manila for unlawful
detainer, judgment was rendered on December 12, 1946, sentencing the defendant,
petitioner herein, to vacate the premises in question, to pay the rents in
arrears (P1,437.50) up to and including November, 1946, and the subsequent rents
as they fell due. On April 2, 1947, the court approved the record on appeal and
the appeal bond of P60 and ordered them forwarded to the Court of Appeals.
Before that date, on March 17, 1947, on motion of the plaintiffs, the court had
made an order requiring the defendant to file a supersedeas bond of P2,000 to
answer for the payment of the rents in arrears and the rents to become due, with
the warning that if he failed to do so execution would be issued. The defendant
sought the annulment of that order in a petition for certiorari in the Court of
Apeals. In a resolution of the latter court promulgated on the 18th of April,
1947, it denied the petition, declaring the order “valid, just and in consonance
with equity and law” but giving the lower court discretion to require the
defendant, in lieu of a supersedeas bond, to deposit the amount which the court
had found to be due as unpaid rents and thereafter P68.75 monthly during the
pendency of the appeal. That resolution was not appealed and has become final.
On June 14, 1947, the trial court ordered the execution of the judgment in view
of the defendant’s failure to file either a supersedeas bond in the required
amount or to deposit the current rents and the rents in arrears. It appears that
in June, 1947, (the exact date not stated), the plaintiff filed a motion for
execution with the Court of Appeals, but that court, by resolution of June 6,
1947, refrained from taking any action on said motion and told the movants to
reproduce it in the lower court in accordance with section 9, Rule 41, of the
Rules of Court. That resolution of the Court of Appeals has also become final.
The plaintiffs filed a motion with the trial court as suggested by the Court of
Appeals, and the Honorable Emilio Peña, Judge, on June 14, 1947, ordered
execution to issue.

This is an application for certiorari challenging the jurisdiction of the
respondent judge to issue the above execution, on the ground that more than two
months had expired after the appeal was perfected. The above statement of facts
shows that execution was to be issued before the perfection of the appeal but
that the petitioner, as defendant in the case, contested its (execution’s)
legality and succeeded in halting the same, in a petition which was later
decided against him by the Court of Appeals.

That being so, the present petition must be denied. Good conscience and fair
dealing will not permit a party to take undue advantage of a situation which he
himself not only created, but did so against the bitter opposition and to the
prejudice of his opponent. As a matter of fact, the execution complained of is
practically the same execution issued or to be issued on time and was blocked
temporarily by the now petitioner’s action. Viewed in this light, the present
petition is res adjudicata, the execution in question being the very
matter which was actually adjudged and declared in order by the Court of
Appeals.

The petitioner’s counsel cites section 2 of Republic Act No. 66 and the
decision of this court in Santos vs. De Alvarez (78 Phil., 503). That Act
and that decision seek to protect honest tenants, not to aid those who refuse to
live up to their part of the contract. As has been seen the defendant is very
far behind in his rental payments and has not put up any security for the
satisfaction of the judgment in the event the appealed decision is affirmed
totally or in part as to the amount due and to become due.

The instant petition is one in aid of appellate jurisdiction and should have
been filed with the Court of Appeals to which the petitioner has appealed the
judgment, the execution of which he wants to stop. His two previous applications
for certiorari were addressed to and decided by that court. He has not given any
reason why the third one was not presented there also. We should turn down
outright this petition for the reason just adverted to if there were a faintest
color of merit in it for the proper court to consider.

The petition is denied with costs.

Paras, Perfecto, and Hilado,
JJ., concur.