TIBURCIO ALCOBER, APOLONIA ALCOBER AND LUCIA ALCOBER, PETITIONERS, VS. HON. HONORATO GARCIANO, PRESIDING JUDGE, COURT OF FIRST INSTANCE, CARIGARA, LEYTE, SATURNINO GARDON, GREGO…

This is a petition for certiorari with preliminary injunction, to
annul an order for the execution of the decision of the Court of First Instance
of Leyte, Carigara, in
Civil Case No. 433 thereof.  Upon the
filing of said petition we authorized the issuance of the writ of preliminary
injunction prayed for, upon the filing and approval of the requisite bond.

Petitioners Tiburcio, Apolonia and Lucia, all surnamed Alcober
– hereinafter referred to as the Alcobers – were
defendants in said civil case, which was instituted by respondents Saturnino Gardon and Gregoria Gler – hereinafter
referred to as the plaintiffs – to establish their title to a parcel of land
described in the com­plaint, as alleged owners of said land, and to annul the
title thereto issued in favor of the Alcobers, with
damages.  Respondents, Tranquilino and Herculano Basea – hereinafter referred to as the Baseas
– were intervenors in said case.

On February 17, 1965,
respondent Judge, Honorato Garciano,
who presided over said court, rendered judgment in favor of the plaintiffs and
the Baseas and against the Alcobers.  The latter filed, on March 10, 1965, their notice of appeal.  Their appeal bond and record on appeal were
approved by respondent Judge on April 3, 1965, Four days later, or on April 7,
1965, the plaintiffs filed a motion for the execution of said decision pending
appeal, which motion was granted by respondent Judge, in an order dated April
20, 1965, directing the issuance of the writ prayed for, upon the posting of a
bond of P500,00.  The next day, April 21, 1965, the Baseas, likewise, moved for the execution of the same
judgment, during the pendency of the appeal, at the
same time stating that they adopted as theirs plaintiffs’ motion of April 7, 1965.

On April 22, 1965,
the Alcobers moved for a reconsideration of said
order of April 20, 1965,
and filed, on May 5, 1965, a
motion for the approval of a supersedeas bond in the
sum of P1,000.00 posted by them and the stay of said execution.  However, on May 17, 1965, respondent Judge denied said motion for
reconsideration, as well as the motion to stay execution, and granted the
motion of the Baseas dated April 21, 1965. 
Forthwith, the Alcobers moved to set aside the
order of April 20, 1965,
which respondent Judge denied on May
29, 1965.  Meanwhile, or on May 24, 1965, the clerk of court had
issued the corresponding writ of execution, whereupon the Alcobers
commenced the present action.

This case hinges on the question whether or not respondent Judge
had jurisdiction to issue its order of April
20, 1965, directing the execution of the decision rendered in the
main case, considering that plaintiffs’ motion for execution had been filed
after the perfection of the appeal from said decision taken by the Alcobers.

Respondent Judge resolved the issue in the affirmative, upon the
authority of Laurilla vs. Uichangco^[1]
and, also, upon the ground that “the plaintiffs on the day the record on
appeal was submitted for approval, manifested to the Court (their intention) to
file a motion for execution pending appeal, which was actually filed on April
7, 1965 x x x.”

The Laurilla case is not in point.  The motion for execution of the judgment
therein was actually filed before the perfection of the appeal therein
taken, although it was not granted until after the approval of the record on
appeal.  This Court, accordingly
declared that:

“x x x the
approval given to the record on appeal filed by the petitioner in the court
below was merely provisional; and that both the court and the parties
understood that such approval was not final, since there was another
question still pending, to wit, whether a writ of execution should be issued
pending appeal.  It is to be presumed
that the court and the parties knew that if the court granted the writ of
execution, its order had to be included in the records to be elevated to the
appellate court (Rule 39, sec. 2) and hence, the record of appeal, as
it stood before the court acted on the motion for execution, could not
be considered complete and definitive. 
It is plain that if the approval of the record was final and not merely
provisional, there was no sense in giving the parties time to submit memoranda
on the merits of the motion for execution. 
The fact that the appellant, now petitioner, did not call attention at
the time to the futility of submitting a memorandum, since upon approval of the
record of appeal the court would no longer have jurisdiction to issue
execution, confirms our view that the approval of the record was understood by
all concerned to be provisional in character.  That being the case, the court
retained jurisdiction to resolve the motion for execution and to order it
issued unless the appellant filed the corresponding supersedeas
bond.  The subsequent issuance of the
writs of execution were mere implementations of the power thus reserved
and consequently, it can not be said that the court acted without or in excess
of its jurisdiction in issuing the same.” (Underscoring supplied)

Upon the other hand, Section 9 of Rule 41 of the Rules of Court
provides that “upon the approval of the record on appeal and of the appeal
bond” – “if the notice of appeal, the appeal bond and the record on
appeal have been filed in due time,” – the “trial court loses its
jurisdiction over the case, except”: 
(1) to “issue orders for the protection and preservation of
the rights of the parties which do not involve any matter litigated by the
appeal;” (2) to “approve compromises offered by the parties prior
to the trans­mittal of the record on appeal to the appellate court,” and
(3) to “permit the prosecution of a pauper’s appeal.”

The motion for execution filed by the plaintiffs in the lower
court does not come under any of these ex­ceptions.  In fact the writ of execution issued in pursuance
of the order of respondent Judge of April 20, 1965, directed that the
plaintiffs be placed in possession of one-third (1/3) of the litigated
property; that one-half (1/2) thereof be placed in the possession of the Baseas; that the Alcobers be made
to execute the corresponding deeds of conveyance of said portions in favor of
the plaintiffs and the Baseas, as well as to pay the
costs and attorney’s fees in the sum of P500.00, in addition to the expenses
incidental to the execution of the decision appealed from – the propriety of
which is the very issue litigated in the appeal taken by the Alcobers.  Hence, in Añonuevo vs. Zurbano,^[2]
we used the following language:

“The sole question now before this Court is whether or not the
trial court may issue partial execution of its judgment after appeal therefrom had been perfected.

“By statute, once the appeal is perfected, ‘the trial court
loses its jurisdiction over the case, except to issue orders for the protection
and preservation of the rights of the parties which do not involve any matter
litigated by the appeal’ (Sec. 9, Rule 41, Rules of Court).  Execution of a judgment is a proceeding
affecting the rights of the parties, involving the matter litigated by
the appeal.  Its purpose is not to
preserve and protect the subject of the litigation.  The lower court accordingly has lost its
power   to issue a writ of partial
execution of the judgement herein.  (Marcelo vs. Estacio,
69 Phil., 145, 148, 149, citing Syquia vs. Concepcion, et al., 60 Phil. 186, 190-191; Abrasaldo vs. Fernandez, et al., 97 Phil., 964-965).”

This view was, in effect, reiterated in our decision in Cabilao vs. Hon. Judge of the Court of First Instance of Zamboanga del Sur,^[3]
from which we quote:

“It is different, however, with respect to the order of
execution pending appeal granted by the trial court after perfection of the
appeal.  It is settled that the execution
of a judgment is a proceeding affecting the rights of the parties, which are the
subject matter thereof, and from which appeal is taken, and its purpose is not
to protect and preserve the subject matter of the litigation (Sumulong vs. Imperial, 51 Phil., 251; Vda.
de Syquia vs. Concepcion,
60 Phil., 186; De la Fuente vs. Jugo,
76 Phil., 718).

“Summarizing, therefore, the above considerations, We find
that the trial court had jurisdiction to reconsider the approval of the record
on appeal, solely for the purpose of ordering its completion or correction;
said order did not produce the effect of reviving the trial court’s full
jurisdiction over the case, and said court still had no power to order
execution of its judg­ment pending appeal.

“The trial court’s order of execution issued on April 12, 1961, and the writ of
execution issued pursuant thereto, on May
9, 1961, are, therefore, null and void.  Accordingly, the execution had thereunder should be set aside and the status quo
restored.” (Underscoring supplied)

The case of Borromeo Bros. Estate Inc.
vs. Court of Appeals,^[4]
invoked by the plaintiffs, does not justify the order complained of.  That case involved the execution of an order
appointing the widow of a deceased person as administratrix
of his estate and ordering the former administrator, who had been removed as
such – by virtue of an order that had become final and executory
sometime before – to deliver to her certain records in his possession and
notifying the bank, in which some assets of said estate were deposited, of the
change of administration.  Said order
merely sought to protect and preserve the decedent’s estate, because there was
no one in charge there­of since the removal of said former administrator.  Although an appeal had been taken from the
order appointing the new administratrix, the
aforementioned order directing the turn over of the records and notifying the
bank falls under one of the exceptions set forth in Section 9 of Rule 41 of the
Rules of Court, to which class the motion for execution of the plaintiffs in
the main case involved herein does not belong. 
It should be noted that the aforementioned administratrix
had not been authorized to dispose of any of the properties of the decedent.

WHEREFORE, the order of respondent Judge dated April 20,
1965, and the writ of execution subsequently issued in compliance therewith are
null and void, and, hence, may not be enforced, with the costs of this instance
against respondents herein, except respondent Judge.

Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez,
Castro, and Angeles, JJ., concur.

^[1]
104 Phil., 171.

^[2]
L-22277, May 19, 1966.

^[3]
L-18454, August 29, 1966.

^[4]
L-12240, April 5, 1959.