“CLAUDIO S. PRIMO, PETITIONER, VS. THE HON. FIDEL FERNANDEZ IN HIS CAPACITY AS JUDGE OF THE COURT OF FIRST INSTANCE OF SAMAR, BRANCH I, FRANCISCO ASTILLA, JR., AND THE SHERIFF O…

This is a petition for certiorari to annul and set aside a writ of
execution issued by the Court of First Instance of Samar, the Hon.
Fidel Fernandez, presiding, with preliminary injunction to restrain the
provincial sheriff of Samar from carrying out the mandate of the said
writ of execution.

On May 17, 1955, in Civil Case No. 4403 of the Court of First Instance of Samar, entitled Francisco Astilla, Jr., plaintiff vs.
Claudio A. Primo, defendant, the parties therein entered into a
compromise agreement whereby the defendant bound himself to pay various
amounts mentioned in the agreement to plaintiff, plus attorney’s fees
to Lope C. Quimbo. This compromise agreement bears date of May 17,
1955. Upon the submission of said compromise agreement, the court
entered a decision on the same day, in accordance therewith. On May 9,
1961, plaintiff in the said case moved for the issuance of an execution
against the defendant for the balance of the amount remaining unpaid,
with interest at the legal rate. In accordance with said motion, the
court entered an order on May 13, 1961, ordering the issuance of a writ
of execution against defendant for the payment of the sum of P1,500
plus P100 for attorney’s fees.

Defendant moved to reconsider the said order, alleging that more
than five years having elapsed from the time that the judgment was
rendered, the execution, may not issue, in accordance with section 6 of
Rule 39 of the Rules of Court, but the court, after hearing the parties
on June 16, 1961, denied the said motion for reconsideration. On July
25, 1961, the clerk of court issued a writ of execution commanding the
sheriff of Tacloban City to collect from the defendant Claudio A.
Primo, the sums of P1,500 and P100, the latter as attorney’s fees. A
motion for reconsideration was denied, whereupon the present petition
for certiorari was filed before Us on the 21st day of August, 1961.
Upon the filing of the petition, we issued a writ of preliminary
injunction prohibiting the respondents from proceeding with the
enforcement of the writ of execution issued by the court.

Respondent has presented an answer to the petition alleging that as
the sum of Pl,500 remaining unpaid is due and demandable within a
period of two years from the date of the decision, that is, May 17,
1955, payment of this amount may not be enforced by execution until two
years had elapsed from the date when it became due and demandable, that
is, two years from May, 1955, or May, 1957. But as in May, 1961, barely
four years had elapsed from May, 1957, the payment of said sum could
still be enforced by motion.

We find no merit in the defense submitted by the respondent. Section
6 of Rule 39 is positive that the judgment can only be enforced by
motion within five years from the entry of judgment, not from
the date when payment is enforceable. The fact that the claim of the
plaintiff is not yet barred on May, 1961, when the motion for execution
was presented, does not mean that the claim of the plaintiff may yet be
enforced by motion. Before the expiration of the five-year period from
the date of the judgment on May 17, 1955, the judgment may be enforced
upon motion in the case; thereafter, before the period for the payment
expires, the judgment may be enforced only by an ordinary action as
required by the above-mentioned rule. (Section 6 of Rule 39.)

Wherefore, the petition is hereby granted and the preliminary
injunction issued by Us on the filing of the petition is hereby made
permanent. So ordered.

Padilla, Bautista Angelo, Concepcion, Barrera, Paredes, Dizon, Regala, and Makalintal, JJ., concur.