JRS BUSINESS CORPORATION AND JOSE R. DA SILVA, PETITIONERS, VS. THE HONORABLE AGUSTIN P. MONTESA, JUDGE OF THE COURT OF FIRST INSTANCE OF MANILA, AND THE IMPERIAL INSURANCE, INC…

This present petition for mandamus with preliminary mandatory
injunction against the then respondent Judge, now retired, Agustin P. Montesa, of the Court of First Instance of Manila, has its
roots in a 1964 decision of this Court.^[1]  Petitioners JRS Business Corporation and Jose
R. Da Silva were two of the petitioners in the above
proceeding.  The principal respondent in
this petition, Imperial Insurance, Inc., had a similar role therein.

As set forth in the opening paragraph of the decision then
rendered:  “Petitioner J. R. Da Silva, is the President of the J.R.S. Business
Corporation, an establishment duly franchised by the Congress of the Philippines,
to conduct a messenger and delivery express service.  On July
12, 1961, the respondent, Imperial Insurance, Inc., presented with
the CFI of Manila a complaint * * *, for a sum of money against the petitioner
corporation.  After the defendants
therein have submitted their Answer, the parties entered into a Compromise Agreement,
assisted by their respective counsels, * * *.”^[2]
The compromise agreement noted an indebtedness of petitioners, as defendants,
in the amount of P61,172.32, an obligation, joint and
several in character, and contained a promise to pay to then plaintiff,
respondent Imperial Insurance, Inc., such amount within sixty (60) days from March 16, 1962 or, on or before May 14, 1962.  The failure for any reason to pay in full
such amount on that date would entitle respondent Imperial Insurance, Inc., as
plaintiff, “to move for the execution of the decision to be rendered”
based on such compromise agreement.  Then
came, on March 17, 1962,
the lower court decision embodying the contents of the aforesaid compromise
agreement, the dispositive portion thereof reading:  “WHEREFORE, the Court hereby approves
the above-quoted compromise agreement and renders judgment in accordance
therewith, enjoining the parties to comply faithfully and strictly with the
terms and conditions thereof, without special pronouncement as to costs.”

One day after the failure to pay such judgment debt, on May 15, 1962, respondent Imperial
Insurance, Inc. filed a motion for the issuance of a writ of execution.  On May
23, 1962, a writ of execution was issued by the Sheriff of Manila,
the auction sale being set for June
21, 1962.  As noted in the
1964 decision of this Court: “In the sale which was conducted in the
premises of the JRS Business Corporation at 1341 Perez St., Paco,
Manila, all the properties of said corporation contained in the Notices of Sale
dated May 26, 1962, and June 2, 1962 (the latter notice being for the whole
capital stocks of the defendant, JRS Business Corporation, the business name,
right of operation, the whole assets, furnitures and
equipments, the total liabilities and Net Worth, books of accounts, * * *),
were bought by respondent Imperial Insurance, Inc., for P10,000.00, which was
the highest bid offered.  Immediately
after the sale, respondent Insurance Company took possession of the properties
and started running the affairs and operating the business of the JRS Business
Corporation.”

That was the background for that previous certiorari proceeding,
the main question raised being whether the busi­ness name or trade name,
franchise and capital stocks of the then petitioner JRS Business Corporation
were properties or property rights which could be the subject of levy,
execution and sale?

This Court in its 1964 decision answered in the negative.  It made clear why:  “The compromise agreement and the
judgment based thereon, do not contain any special
decree or order making the franchise answerable for the judgment debt.  The same thing may be stated with respect to
petitioner’s trade name or business name and its capital stock.  Incidentally, the trade name or business name
corresponds to the initials of the President of the petitioner corporation and
there can be no serious dispute regarding the fact that a trade name or
business name and capital stock are necessarily included in the enjoyment of
the franchise.  Like that of a franchise,
the law mandates, that property necessary for the enjoyment of said franchise,
can only be sold to satisfy a judgment debt if the decision especially so
provides.  As we have stated heretofore,
no such directive appears in the decision. 
Moreover, a trade name or business name cannot be sold separately from
the franchise and the capital stock of the petitioner corporation or any other
corporation, for that matter, represents the interest and is the property of
stockholders in the corporation, who can only be deprived thereof in the manner
provided by law * * *.”

It was then the decision of the Court in that proceeding
“that the inclusion of the franchise, the trade name and/or business name
and the capital stock of the petitioner corpo­ration, in the sale of the
properties of the JRS Business Corporation, has no
justification.  The sale of the
properties of petitioner corporation is SET ASIDE, in
so far as it authorizes the levy and sale of its franchise, trade name and
capital stocks.”

The present petition for mandamus with preliminary mandatory
injunction is premised on the contention that respondent Judge failed to
execute properly the above decision.

According to the present petition, on September 2, 1964, after the aforementioned
decision became final and executory, “a
certified copy of said decision had been duly transmitted by this Honorable
Court to the Court of First Instance of Manila, * * *.”^[3]
Then came “a motion for execution and an amended motion for execution,
respectively, of said decision,” in which the above-named petitioners
prayed among other things “for the immediate return or restitution of the
aforesaid franchise, trade name and capital stocks” as well as for
indemnification in the amount of P132,500.^[4]
After such motions were heard by respondent Judge Montesa,
an order was issued by him quoting the dispositive
portion of the decision of this Court and emphasizing that the sale at the
public auction must “conform with the
above-quoted decision of the Supreme Court and nothing else.”^[5]
Clearly, he pointed out that the writ of execution could not include anything
not embodied in the decision.  He
admitted that he could not modify it, stressing that it is only such decision,
“that must be enforced, nothing more, nothing less.” He therefore en­joined
“the Sheriff of Manila * * * to act accordingly in the sale of properties
of defendants.” He likewise disallowed the claim for damages against the
then plaintiff, now respondent Imperial Insurance, Inc.^[6]
In pursuance of the above order of September 18, 1964, the Sheriff of Manila
wrote a letter on October 2, 1964, to respondent Imperial Insurance, Inc., the
highest bidder at the public auction sale then in possession of the properties
of petitioner JRS Business Corporation, notifying it of the above order of
respondent Judge.^[7]

Then came the motion for restitution, the denial of which is the
basis of the present petition, wherein after setting forth the issuance of the
above order of respondent Judge of September 18, 1964 and the notice of the
Sheriff of Manila in compliance of such order to respondent Imperial Insurance,
Inc. that the franchise, trade name and the capital stocks of defendant JRS
Business Corporation are excluded from the public auction sale, immediate
restitution thereof is prayed for by present petitioners.^[8]
The above motion for restitution was denied by respondent Judge in an order of October 19, 1964, for lack of merit.^[9]

The above denial by respondent Judge is alleged in the present
petition to be a grave abuse of his discretion and a neglect as well as a
refusal to perform an act specifically enjoined upon him as a duty by virtue of
which mandamus, in the opinion of petitioners, is the proper remedy.^[10]
Petitioners likewise sought a preliminary mandatory injunction in order
allegedly to prevent further injury to them.^[11]
This Court did not issue a preliminary mandatory injunction.

In the answer of respondents, which was joined by petitioner JRS
Business Corporation, having come under a different management after such
public auction sale, there was an admission of respondent Judge Montesa issuing an order of September 18, 1964 directing
the Sheriff of Manila to act in accordance with the decision of this Court of
July 31, 1964, as well as of the step taken by the Sheriff of Manila in a
communication of October 2, 1964, to respondent Imperial Insurance, Inc.
notifying it of such order with the qualification “that petitioner JRS
Business Corporation has always been in possession of its franchise, trade-name
and capital stock and respondent Imperial Insurance, Inc. was never in
possession thereof.  That the respondent
Imperial Insurance, Inc. actually purchased on the public auction sale of the
Sheriff of Manila were, among other things, “the rights, interests and
participation of the herein petitioner Jose R. Da
Silva in the JRS Business 
Corporation.  The
decision of this Honorable Court in G. R. No. L-19891 does not set aside
the sale of the rights, interests and participation of the herein petitioner
Jose R. Da Silva in the JRS Business Corporation.”^[12]

Further, the denial of the motion for restitution of petitioner Da Silva was in the answer alleged to be “fully
justified since respondent Imperial Insurance, Inc. never took actual or
physical custody and possession thereof and petitioner Jose R. Da Silva lost his rights, interests and participation
therein.”^[13]
It is the stand therefore of respondents that mandamus does not lie in the
present case, petitioner Da Silva not being excluded
from any lawful right resulting from a failure of respondent Judge Montesa to comply with the duty specifically enjoined upon
him by law.  Respondents likewise denied
liability for any alleged actual or moral damages, as well as for attorney’s
fees.  The prayer is for the dismissal of
the petition.

Mandamus does not lie, and the petition must be dismissed.  With petitioner JRS Business Corporation
having joined in the answer filed by respondents, the sole petitioner, in
effect, is Jose R. Da Silva, whose rights, if any, in
this present petition, are traceable to the decision of this Court of July 31,
1964.  It is quite categorical; its dispositive portion reads thus:  “The sale of the properties of petitioner corporation is SET ASIDE, in so far as it
authorizes the levy and sale of its franchise, trade name and capital
stocks.” The winning party clearly is the JRS Business Corporation, the
franchise, trade name and capital stocks of which were held as not being
included in the sale at public auction.

As admitted in the petition, the above decision was, by virtue of
the writ of execution filed by petitioners, carried out.  Such order in part reads:  “The sale at public auction of the
properties of the petitioner must, therefore, conform with
the above-quoted decision of the Supreme Court and nothing else.  The writ of execution can not include
anything not embodied in the decision rendered by this Court.  It can not modify the said decision.  It is only the said decision that must be
enforced, nothing more, nothing less.”^[14]

What is even more decisive insofar as petitioner Jose R. Da Silva’s plea is concerned is the undeniable fact that
the right recognized in the 1964 decision of this Court is a right appertaining
to the JRS Business Corporation.  The
decision is silent as to any alleged right of petitioner Jose R. Da Silva, which might have been mistakenly included in the
public auction sale.  Such being the
case, there is no clear legal right that he could invoke, which could have been
the basis of a motion for restitution, the denial of which would have given rise
to a petition for mandamus.

Mandamus is the proper remedy if it could be shown that there was
neglect on the part of a tribunal in the performance of an act, which
specifically the law enjoins as a duty or an unlawful exclusion of a party from
the use and enjoyment of a right to which he is entitled.^[15]
On the face of the motion for restitution, which was denied, no motion for
reconsideration having been thereafter filed, the failure to perform a duty
resulting from an office as well as the exclusion of petitioner Jose R. Da Silva from the use and enjoyment of a right could not be
predicated.  Such being the case,
mandamus cannot be availed of.

According to former Chief Justice Moran, “only specific
legal rights may be enforced by mandamus if they are clear and certain.  If the legal rights of the petitioner are not
well defined, clear, and certain, the petition must be dismissed.”^[16]
In support of the above view, Viuda e Hijos de Crispulo Zamora v. Wright,^[17]
was cited.  As was there categorically
stated:  “This court has held that
it is fundamental that the duties to be enforced by mandamus must be those
which are clear and enjoined by law or by reason of official station, and that
peti­tioner must have a clear, legal right to the thing demanded, and that it must
be the legal duty of the defendant to perform the required act.”^[18]

As expressed by the then Justice Recto in a subsequent
opinion:  “It is well established that
only specific legal rights are enforceable by mandamus, that the right sought
to be enforced must be certain and clear, and that the writ not issue in cases
where the right is doubtful.”^[19]
To the same effect is the formulation of such doctrine by former Justice
Barrera:  “Stated otherwise, the
writ never issues in doubtful cases.  It
neither confers powers nor imposes duties. 
It is simply a command to exercise a power already possessed and to
perform a duty already imposed.”^[20]

WHEREFORE, this petition for mandamus is denied.  With­out special
pronouncement as to costs.

Reyes, J.B.L., (Acting C.J.), Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez,
Ruiz Castro, and Angeles, JJ., concur.

^[1] JRS Business Corporation, J. R. Da Silva
and A. J. Beltran v. Imperial Insurance, Inc., et al., L-19891,
promulgated July
31, 1964.

^[2] Decision
in L-19891 of July 31, 1964.

^[3] Petition, par. 5.

^[4] Petition, par. 6.

^[5] Petition, Annex C.

^[6] Petition, par. 8 and Annex C, the Order of respondent Judge Montesa on September 18, 1964.

^[7] Petition, par. 9.

^[8]
Petition, par. 10 and Annex E.

^[9] Petition,
par. 11 and Annex F.

^[10] Petition, pars. 12 to 19, citing Rule 39, Section 5 of the
Rules of Court as well as seeking actual damages in the sum of at least P5,000.00 a month as well as additional damages for alleged
suffering due to “besmirched reputation, serious anxiety, mental anguish,
social humilation, moral shock and similar injury,”
the assessment of which petitioner Da Silva would
leave to this Court, and attorney’s fees.

^[11] Petition, par. 20.

^[12]
Answer, par. 7.

^[13]
Answer, par. 9.

^[14] Petition, Annex C.

^[15]
Rules 65, Section 3, Rules of Court.

^[16] 3 Moran, Comments on the Rules of Court, 1963 ed., p. 172.

^[17] 53 Phil. 613 (1929).

^[18] Id.,
p. 621.

^[19] Sanson v.
Barrios, 63 Phil. 198, 202 (1936). 
Such a principle was followed subsequently in Diokno
v. Rehabilitation Finance Corp., 91 Phil. 608 (1952) and Pascua v. Tuason, L-13046,
May 20, 1960.

^[20] Alzate v. Aldana, L-18085,
May 31, 1963.  See also Villegas v.
Auditor General, L-21352, November 29, 1966.