OSCAR DE LEON, DOLORES DE LEON, HECTOR DE LEON, ROSARIO DE LEON-RAMIREZ, AND EMILIO DE LEON, PETITIONERS, VS. CEFERINO DE LOS SANTOS, JUDGE OF FIRST INSTANCE OF ILOCOS SUR, AND …

This is a petition to review an order of execution by the respondent judge
issued after the record on appeal was submitted but before it was approved. The
cause is one over the possession and ownership of a house and lot, and the
judgment of the court below declares “the plaintiff absolute owner of the
properties described in the complaint and ordered the defendants to restore its
possession to the former.”

The first ground of attack is grave abuse of discretion. The allegations in
the pleadings and the facts disclosed thereby do not sustain the charge. These
allegations and these facts, so far from showing an abuse of discretion on the
part of the court, satisfy us that there is a good reason for the execution and
that the court made proper use of its judgment. Far from acting arbitrarily or
capriciously, the respondent judge appears to have exercised his discretion with
discrimination and deliberation, ordering, before he decided the motion, an
ocular inspection of the house and a report on the condition thereof. The result
of the inspection and other factors reasonably warrant, in our opinion, the
lower court’s order as a suitable measure to preserve the building and protect
the interests of the parties.

The petitioners would have Section 9 of Rule 72 of the Rules of Court applied
to this case. That Rule refers to the stay of execution in cases of forcible
entry and detainer. The applicable Rule is Section 2 of Rule 39. There is no
warrant for treating the present case on the same level as a possessory action,
as petitioners urge. The parity which is said to exist between the two cases is
outweighed by the disparity. Among other differences, we may mention the fact
that in a forcible entry and detainer case the rights of the plaintiff are
protected by the continued payment of the rents; in the instant case, no damage
or compensation for the use of the house is provided in the decision. In a
possessory action, the owner of the house retains the right to make repairs that
are necessary for its proper preservation; in the present case, the plaintiff is
not at liberty to do that. A supersedeas bond is good only “for the performance
of the judgment or order appealed from in case it be affirmed.” It does not
cover damage caused to the property during the pendency of the appeal. The right
of the defendant in an ordinary action to stay execution has to be rested on the
general principles of law in relation to the peculiar circumstances of the
case.

The petitioners question the jurisdiction of the Court of First Instance to
issue execution after the submission of the record on appeal. They maintain that
after the record on appeal is presented, and even though it has not been
approved, the court loses jurisdiction over the cause. Neither reason nor
authority supports this view. The construction which the petitioners put on
Section 2 of Rule 39 would place it within the power of a losing party to
nullify the authority of the court to order execution pending appeal. If the
mere presentation of the record on appeal could prevent the execution of the
judgment, the defeated party, to forestall that contingency, could file his
notice of appeal, appeal bond and record on appeal, in any form or manner,
immediately after the decision is promulgated, or, at the latest, before the
other party has had time to prepare a motion for execution and to put it in
shape to be acted upon by the court. For the rest, the Rule specifically allows
the granting of execution, for good reason, before the expiration of the time to
appeal. It does not say, by express terms or implication, that execution may not
issue under any circumstance after the record on appeal has been perfected.

The petitioners invite attention to the provision in Section 2 of Rule 39,
that the order for execution shall be included in the record on appeal, and
reason that this requirement could not be fulfilled if execution be issued after
the filing of the record on appeal. But the incorporation of the order of
execution into the record on appeal is not indispensable in all cases. The Rule
makes it clear that inclusion has to be done only when the issuance of the order
of execution precedes the presentation of the record on appeal. This particular
provision, by the way, is one more argument for the theory that the time within
which the court is authorized to have the judgment executed is the time
prescribed for appeal irrespective of the filing of the record on appeal,
provided only that the record on appeal has not been approved. It is the
approval of the record on appeal that removes the case from the trial court’s
jurisdiction.

The petition is denied with costs against the petitioners.

Paras,
Pablo, Perfecto, and Bengzon, JJ., concur.