LUZON SURETY CO., INC., PETITIONER, VS. LEOVEGILDA, BONIFACIA AND JOVITA, ALL SURNAMED BESON, CONCEPCION BESON DE GUTIERREZ, PASTOR QUEBRAR, THE MANILA SURETY & FIDELITY CO., IN…

Petitioner Luzon Surety
Co., Inc., far from reconciled with the prospect of having to comply with the
writ of execution dated September 27, 1966 issued by the clerk of court of
respondent Judge Eduardo D. Enriquez of the Court of First Instance of Negros Occidental, for the satisfaction of the amount of
P8,732.23, a liability allegedly imposed on it without its right to procedural
due process having been respected, filed this special civil action for certiorari
with a writ of preliminary injunction on November 22, 1966.  More specifically, it would seek to nullify
such a writ as it was not in accordance with a previous order of respondent
Judge on which it was presumably based, allegedly issued without petitioner
having been heard, a matter of more than ordinary significance as there was a
previous order cancelling the two bonds executed by
it for respondent executor Pastor Quebrar, handed
down as early as October 20, 1962.  The movants, Leovegilda, Bonifacia and Jovita Beson as well as Cocepcion Beson de Gutierrez, herein after referred to as Bosons, were also
named respondents.  Another
surety firm, the Manila Surety & Fidelity Co.,
Inc. was likewise included as one of the respondents, having, on November
11, 1965, subscribed
to an executor’s bond with respondent Pastor Quebrar
for exactly the above amount of P
3,732.23.  The question to which we thus address ourselves
is whether, on the facts as above summarized, to be hereafter set forth in detail, petitioner is entitled to the writ prayed for.

The order of August 6,
1966 of respondent Judge, on which the assailed writ of execution is made to
rest, had its origin in a motion, filed on July 18, 1966 by the Besons, for the confiscation of the executor’s bond,
wherein it was alleged that in a previous order of June 25, 1966 respondent
Judge directed the executor to reimburse the two estates, the proceedings
for the settlement of which were
held jointly, the amount of P8,732.23 within ten days from receipt thereof, otherwise the
bond would be confiscated and that though more than fifteen days had since
elapsed, such an order was not complied with.^[1] To such a motion, there was an
opposition filed by respondent Manila Surety & Fidelity Co., Inc., dated
July 25, 1966, to the effect that as of the time of the approval of such
accountability, the executor of the estate was bonded by the petitioner in the
sum of P15,000.00, that upon motion of the executor, there was indeed an order
of October 20, 1962 cancelling such bond although as
of that time its liability had already attached, and that respondent Manila
Surety & Fidelity Co., Inc., without any knowledge of such existing and
previous accountability of the executor, did execute the new bond in the
aforesaid amount, but only subject to the conditions therein stated.  It therefore prayed for the denial of the
motion for the confiscation of its bond on the ground that it had only a
prospective effect, its conditions not expressly or impliedly covering the
liability of the executor previously incurred.^[2]

There was, on September
14, 1966, a motion filed again by respondents, the Besons, for the specification of the particular surety
company which should reimburse the aforesaid estates such amount of P8,732.23.  This time,
though, a copy of such motion apparently was sent the same day to peti­tioner’s
office in Bacolod
City, although there was no proof
that it was indeed received.^[3]
Respondent Judge thus had the opportunity to assure that petitioner was duly
heard, but failed to do so.^[4]  Then on September 24, 1966, the Besons filed an ex parte
motion for the issuance of a writ of execution.^[5] 
Without the matter having gained the required precision, there being no
clarification as to which surety firm should be made to respond, came the writ
of execution, herein challenged, dated September 27, 1966, made to rest on the
previous order of August 6, 1966, worded in this wise: “Como se pide por el abogado
de los opositores, Sr. Raymundo M. Lozada, Jr., en su mocion de fecha
18 de Julio de 1966, y por las
razones alegadas en ella, por el presente
se declara confiscada la fianza presentada por el albace a para responder del pago de la suma de P8,732.23 debiendo hacerse efectiva dicha cantidad por la compania aseguradora que era al tiempo en que se dicto la sentencia dictada por la Corte de Apelaciones confirmando la
decision de este Juzgado en
que se le ha dicho responsable al albacea de la mencionada cantidad.”^[6]

Not only did it fail to specify which surety firm was liable, but
also, it added to such uncertainty by the nebulous reference to “la compania aseguradora que era al tiempo en que se dicto la sentencia dictada por la Corte de Apelaciones.”
As already mentioned, in the very opposition of respondent Manila Surety &
Fidelity Co., Inc., the appellate court affirmed the lower court order only on October 8, 1964.^[7]
It is to be remembered that as early as October 20, 1962, respondent Judge,
acting on a motion of respondent executor, for the cancellation or reduction of
his bond and praying in the alternative for the filing of a new bond in the
amount of P8,732.23, did issue this order: “Acting upon the Motion for
cancellation and/or reduction of Executor’s bond, dated October 17, 1962, filed
by counsel for the Executor, the Court
hereby orders the cancellation of the executor’s bond and the filing of a new
bond in the amount of P8,732.23, in lieu thereof to be presented to this court
for approval.^[8] It would thus appear on the face of the petition that as far back as October 20, 1962, there was a cancellation of the bond
executed by petitioner and that a new bond for such amount of P8,732.23 was not filed until November 11, 1965 and by another surety firm, respondent
Manila Surety & Fidelity Co. , Inc.

Petitioner did file a motion to quash such writ of execution and
a motion for reconsideration upon its denial but to no avail.^[9]
Its motion for reconsideration stressed that it had ceased to be a party to the proceedings upon the
cancellation of its bond as far back as October 20, 1962 and that moreover it “was not given
an opportunity to be heard. “Hence its contention that
the writ of execution amounted to a “deprivation of property without due process
of law.”^[10]  Respondent Judge summarily denied the above
motion on the ground of “no encontrando bien fundadas las
razones en apoyo de la misma, * * *.”^[11]

The petition on its face, impressed with more than its share of
plausibility, this Court, on November
28, 1966, required respondents to answer, a writ of preliminary
injunction likewise being issued upon petitioner posting a bond of P1,000.00. Two answers were filed, one by respondent Manila
Surety & Fidelity Co. Inc. on December
10, 1966 and the other by respondents, the Besons,
on December 23, 1966.  Necessarily, the answer of the former was not
as explicit as that of the Besons in view of its being involved much later in the
proceedings before respondent Judge. 
There was an explicit admission, except for the insistence that the
challenged writ of execution of September 27, 1966 was issued pursuant to the order of respondent
Judge of August 6, 1966, in the answer of the Besons of the
allegations of the petition.

Petitioner, on the above facts, must prevail.  It is entitled to the writ prayed for.  The denial of procedural due process was
quite manifest.  The motion for the
confiscation of the bond filed by the Besons
evidently was not aimed at petitioner. 
The amount sought was precisely
that assumed in the bond of re­spondent Manila Surety & Fidelity Co., Inc.,
which moreover did feel alluded to as it filed an opposition.  It is true that the Besons
must have had a second thought and would ascertain from the
lower court in a later pleading whether petitioner could likewise be a party
still subject to liability.  Respondent
Judge, without being too clear in his order, must have enter­tained such
belief, as attested by the writ of execution now assailed.  If such indeed were his state of mind, he
should have, at the very least, granted petitioner the opportunity to be
heard.  There was the more reason for
such indispensable step as he apparently was no longer aware of a previous
order canceling petitioner’s bond issued as far back as four years previously.  When his attention was subsequently called to
the grave defect in the procedure adopted by him, both in a motion to quash the
writ of execution and a motion to reconsider filed by petitioner, he was not
even sufficiently impressed to devote some degree of attention on the
matter.  He satisfied himself with a curt
order of denial in both cases.

It thus appears
indisputable that the lower court was quite insensible to the demands of
procedural due process.  Under the
circumstances then, the writ of execution cannot survive the attack launched
against it by petitioner.  The due
process requirement is not a mere formality that may be dispensed with at
will.  Its disregard is a matter of
serious concern.  It is a constitutional
safeguard of the highest order.  It is a
response to manes innate sense of justice. 
It demands that governmental acts, more specially
so in the case of the judiciary, be not infected with arbitrariness.  It cannot be satisfied unless the elementary
requirements of fairness are met.  More
specifically, when as in this case, the imposition of a pecuniary liability was
far from clear, with petitioner apparently not lacking in defenses that, to say
the least, could not just be summarily brushed aside, it certainly was entitled
to be heard.^[12]

Nor is this a novel
thought.  A surety, as pointed out by us
in a recent decision, must be given “an opportunity * * * “to be
heard.  Otherwise, in the categorical
language of Justice Dizon, who penned the opinion,
“the writ of execution issued thereunder [is]
void. “^[13]
This is a doctrine that goes back to a 1926 decision, Gamay
v. Gutierrez David.^[14]
Considering, moreover, that even when execution is proper, the party against
whom it may be directed could show facts that had developed subsequently that
would make it unjust or inequitable, the in­dispensable character of a hearing
before such writ could issue becomes even more undeniable.^[15]

WHEREFORE, the writ of certiorari prayed for is
granted and the preliminary injunction
issued by us in accordance with our resolution of November 28, 1966 made permanent.  The matter is remanded to the sala of respondent Judge, or
whoever may now be acting in his place, for appropriate disposition conformably
to law and to this opinion.  With costs against private respondents.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Teehankee,
and Barredo, JJ., concur.

^[1]
Petition, Annex F.

^[2]
Ibid, Annex G.

^[3]
Ibid, Annex H.

^[4]
Ibid, par. 15.

^[5]
Ibid, par. 16.

^[6]
Ibid, Annex I.

^[7]
Ibid, Annex G, par. 2.

^[8]
Petition, par. 4.

^[9]
Ibid, pars. 20 and 21.

^[10]
Ibid, Annex K.

^[11]
Ibid, Annex L.

^[12]
Ermita-Malate Hotel and Motel Operators Asso., Inc. v. City Mayor of Manila, 20 SCRA 849
(1967); Macabingkil v. Yatco,
21 SCRA 150 (1967); Caltex (Phil.), Inc. v.
Castillo, 21 SCRA 1071 (1967); Morfe v. Mutuc, 22 SCRA 424 (1968); Batangas
Laguna Tayabas Bus Co. v. Cadiao,
22 SCRA 987 (1968); Santiago v.
Alikpala, 25 SCRA 356 (1968); Manila Pest Control,
Inc. v. Workmen’s Compen­sation
Corn., 25 SCRA 700 (1968); Florendo v. Florendo, 27 SCRA 432 (1969); Victorias
Milling Co., v. Workmen’s Compensation Cons., 28 SCRA 285 (1969); Garcia v. Reyes, L-27419, Oct.
31, 1969.

^[13]
Luzon Surety Company, Inc. v, Guerrero, 17 SCRA 400
(1966).

^[14]
48 Phil. 768. The Gamay
decision was cited with approval
in Monte­verde v. Jaranilla,
60 Phil. 294 (1934).

^[15]
Calvo v. De Gutierrez, 4 Phil. 203 (1905); Lee
v. Mapa, 51 Phil. 624 (1928); Li Kim Tho v. Sanchez, 82 Phil. 776 (1949); Pascual v. Tan, 85 Phil. 164 (1949); City of Butuan v. Oitiz, 3 SCRA 659 (1961); Candelario
v. Cañizares, 4 SCRA 738 (1962); Vda. de Albar
v. Carangdang, 6 SCRA 211 (1962); Robles v.
Timario, 6 SCRA 380 (1962); Abellana
v. Dosdos, 13 SCRA 244 (1965).