MAURECIO BORDEN AND ADELA DE BORDEN, PETITIONERS, VS. HON AGAPITO HONTANOSAS, PRESIDING JUDGE OF BRANCH XI (BANTAYAN, CEBU), COURT OF FIRST INSTANCE OF CEBU, RESPONDENTS.

Original petition for certiorari and prohibition to annul
the “proceedings of the respondent Judge as the law requires”.

On 11 July 1968,
Ramon Torralba
commenced in the City Court of Cebu an action for ejectment with damages against the spouses Maurecio Borden and Adela de
Borden (Civil Case No. R-13060) in
that, sometime in 1952, through stealth, strategy, threat and intimi­dation, he
was deprived by the defendants of possession of a portion thereof consisting of
about 300 square meters and, despite repeated demands, defendants had refused
to vacate the same (Petition, Annex “A”).

In their answer, defendants admitted occupancy of the portion of
the lot in question, but claimed that they had been paying rentals therefor to the plaintiff from 1953 until 1966, when they
decided to lease the property themselves from the provincial government.  As affirma­tive defense, defendants set up
lack of jurisdiction, pointing out that under the allegations of the complaint
the supposed illegal entry into the land took place more than 12 months from
the filing of the case (Annex “B”).

The City Court, acting on defendants’ prayer for preliminary
hearing on their motion to dismiss, under Section 5, Rule 16, of the Rules of
Court^[1]
denied the motion to dismiss on the following findings (Petition, Annex
“E”, page 3):

“The nature, therefore, of the Complaint is more of an
unlawful detainer rather than a forcible entry case
and with respect to the former the one
year period within which to file an action for unlawful detainer
must be counted from the date of the demand and according to the defendants,
demand for payment of rental was made within the one year period prior to the
filing of this Complaint.  (Emphasis
supplied)

and ordered the case set for trial on the merits.

After hearing on the merits during which plaintiff’s evidence was
received ex parte on account of defendants’
failure to appear, judgment was rendered for the plaintiff, and defendants were
ordered to vacate the premises and to pay plaintiff a monthly rental of P50.00
from 1952 until the time they actually vacate it, plus costs.  From this decision, defendants duly perfected
an appeal to the Court of First Instance of Cebu
(Civil Case No. R-10911).

On 27 November 1968,
plaintiff applied to the Court of First Instance for immediate execution of the
decision, due to defendants having failed to file a supersedeas
bond and to deposit the monthly rentals-in court, as required by Section 8,
Revised Rule 70, of the Rules of Court. 
Granted by the court by order of 9
December 1968, the execution of the judgment pending appeal was
opposed by the defendants in their
motion of 15 December 1968.  Instead, defendants prayed for a writ of pre­liminary
injunction to restrain the City Court and the Provincial Sheriff from enforcing
the appealed decision.  The motion was based on alleged want of
jurisdiction of the City Court, nullity of judgment for lack of due process,
and fraud.

Denied by the court in its order of 14 January 1969 (Annex “L”), on the ground
that the appealed decision was presumed valid until the contrary is proved and hence, the writ of execution can
not as yet be voided before
actual reception of evidence, defendants filed a motion dated 19 January 1969 to reconsider the aforesaid denial
order.  Then, on 27 January 1969, defendants filed another motion,
this time for the dismissal of the appeal, on the same ground of lack of
jurisdiction.

On 8 February 1969,
the court denied the motion for reconsideration and the motion to dismiss for
lack of merit.

On 11 February 1969,
defendants asked for reconsideration of this order of 8 February 1969, claiming that the denial of the
prayer to dismiss the case would be contrary to law and evidence on
record.  The motion was denied on 18 February 1969, the court holding
that the matters raised therein are evidentiary in nature and must be supported
by proof.

On 27 February 1969,
plaintiff finally filed an urgent motion for a special demolition order to
enable the removal of the houses of defendants, informing the court below of
the Sheriff’s inability to enforce the writ of execution although it had been
received by and served on defendants since 12 December 1968.

On 26 March 1969, and before a demolition order could be issued
in the case, defendants spouses filed the present petition, and, upon their
motion, a temporary restraining order was issued by this Tribunal stopping the
hearing by the lower court of Civil Case No. R-10911, until final orders.

Petitioners contend in this proceeding that the respondent judge
acted without, or in excess of, jurisdiction in granting the motion of private
respondent (plaintiff below) for immediate execution of the decision of the
City Court (order of 9 December 1968), and in denying their motions for issuance of a preliminary writ to
enjoin execution of said decision and for the outright dismissal of the case
(orders of 14 January, 8 and 18 February 1969), all predicated on the alleged
lack of jurisdiction of the inferior court.

Petitioners’ insistence on the dismissal of the appealed case,
allegedly because of lack of jurisdiction of the city court that rendered the
original decision, due to the filing of the case beyond one year from
dispossession, can not be sustained, since the City Court made findings that
defendants had been paying rentals from 1953 to 1966, and that plaintiff had
sent demands to vacate, both verbal and written, upon the defendants.  Whether or not there was proper demand, or
whether the case was instituted within the one-year period, computed from the
date of last demand^[2],
is, therefore, a matter of evidence.  The
res­pondent judge, in the exercise of his discretion, denied the prayer for
immediate dismissal of the case, deferring action on the jurisdictional issue
until after evidence has been received on the matter.  This action by the court is allowed by
Section 3 of Revised Rule 16.

We find no abuse of discretion attending the issuance of the
disputed orders of the respondent judge, which could have prejudiced the
petitioners.  On the contrary, if there
was any error of law committed by the respondent judge at all, it is in his
being patient with herein petitioners, by acting on the various pleadings filed
by the latter and holding off the immediate execution of the decision of the
City Court, notwithstanding the explicit provisions of Section 8 of Rule 70 of
the Revised Rules of Court which authorizes immediate execution of judgment in
a forcible entry or detainer case, if decided
adversely to the defendant, even if said judgment is on appeal.  Under the said provision of the Rules, such
execution, when prayed for by the plaintiff, can only be stayed if the
defendant (a) shall perfect an appeal and file a sufficient supersedeas
bond, and (b) shall pay to the plaintiff or deposit in the court of first
instance the rentals or the reasonable amount fixed for the use and occupation
of the property.^[3]

In this case, it is not
denied that petitioners had failed, not only to post a supersedeas bond but also to pay the monthly rentals
adjudged by the City Court for their use of the property, which failure makes
it mandatory upon the lower court to order the immediate execution of the
decision.^[4]
In fact, even delayed payment of the rentals alone, unless excused by mistake,
accident or fraud^[5],
would have already rendered the function of the court of executing the
judgment, ministerial and imperative.^[6]  Consequently, the denial by respondent judge
of petitioners’ motion for an order to restrain enforcement of the decision is
in order.

True it is that if the City Court actually lacked jurisdiction,
the defendants-appellants (now petitioners) would not be under obligation to
file a supersedeas bond nor deposit the rentals.  But having chosen to raise the issue of
jurisdiction by appeal from the judgment to vacate, instead of by certiorari
from the order denying their motion to dismiss for lack of jurisdiction,
petitioners as appellants are perforce bound by Rule 70 governing such appeals
from a judgment of ejectment as previously
discussed.  Nor do we see any substantial
prejudice to appellants in the application of Section 8 of Rule 70, since
neither the supersedeas bond nor the deposit of
rentals constitutes a deprivation of property or rights, and the Court of First
Instance had correctly denied the prayer for demolition of appellants’ house
pending determination of the merits of the jurisdictional question raised by
petitioners.  Otherwise, a party ordered
evicted could easily evade the rule on super­sedeas
bond and deposit of rentals by setting up on appeal an issue of jurisdiction,
however unmeritorious, to the prejudice of the winning party.

WHEREFORE,
and subject to the condition that no order
of demolition shall be issued until and unless the jurisdiction of the City
Court is affirmed, the petition
is hereby dismissed and the restraining order
heretofore issued is ordered dissolved, with costs against petitioners.

Concepcion, C.J., Makalintal,
Zaldivar, Castro, Fernando, Teehankee,
Barredo, Villamor, and Makasiar, JJ., concur.

^[1]
“Section 5. Pleadings grounds as affirmative defenses. – Any of the
grounds for dismissal provided for in this rule, except improper venue, may be
pleaded as an affirmative defense, and a preliminary hearing may be had thereon
as if a motion to dismiss had been filed.”

^[2]
Sy Oh vs. Garcia, L-29328, 30 June 1969, 28
SCRA 735; DBP vs. Canonoy,
L-29422, 30 Sept. 1970, 35 SCRA 197; also Racaza vs.
Susana Realty, Inc. L-20330, 22 Dec. 1966, 18 SCRA 1172; Calubayan
vs. Pascual, L-22645, 18 September 1967, 21
SCRA 146.

^[3]
Sison vs. Bayona,
109 Phil. 557; Acierto vs. Laperal,
107 Phil. 1088; Romero vs. Pecson, 63 Phil.
308, and cases therein cited.

^[4]
Arcilla vs. Del Rosario, 74 Phil. 445; Cunanan vs. Rodas, 78 Phil.
800; also Laurel vs. Abalos, L-26098, 31
October 1969, 30
SCRA 281.

^[5]
Cunanan vs. Rodas, supra.

^[6]
Pangilinan vs. Peña, 89 Phil. 122; Galewsky vs.
De la Rama, 79 Phil. 583; Basilio
vs. Natividad, 80 Phil. 52; De la Cruz vs. Burgos, L-28095, 30 July 1969, 28 SCRA 977.