M. A. ZARCAL, MAGDALENA DE ZARCAL AND HERIBERTO ZARCAL, PETITIONERS, VS. S. HERRERO, REMEDIOS HERRERO VDA. DE GONZALES, FILOMENA VDA. DE HERRERO, FELIPE NATIVIDAD, JUDGE OF FIRS…

In an ejectment case between respondent S. Herrero, as
plaintiff, and herein petitioners, as defendants (civil case No. 2801), the
municipal court of Manila rendered a decision on March 5, 1947, sentencing the
petitoners to vacate the premises in question and to pay to respondent Herrero
the monthly rental of P77 from January 1, 1947, until the premises shall have
been vacated, plus the costs.

Upon appeal by the petitioners to the Court of First Instance
of Manila, the respondent Judge, Hon. Felipe Natividad, rendered a decision
dismissing the complaint, with costs against the plaintiffs (it appears that in
the Court of First Instance the complaint was amended so as to include other
parties plaintiff). The plaintiffs (herein respondents other than the respondent
judge and the respondent sheriff), duly submitted their record on appeal as one
of the steps for elevating the case to the Court of Appeals. In the meantime, or
on May 9, 1948, the respondent Herrero and others filed a petition with teh
Court of First Instance of Manila for the execution of the decision of the
municipal court, on the ground that the defendants (herein petitioners) failed
to pay or deposit the rentals for the months of January to May, 1948. On August
9, 1948, the respondent judge of the Court of First Instance of Manila issued an
order granting the aforesaid petition and directing the issuance of a writ for
the execution of the judgment of the municipal court. On the same date, or
August 9, 1948, the record on appeal filed by the plaintiffs (herein respondents
other than respondent judge and respondent sheriff) was approved by the
respondent judge, and the case was ordered certified to the Court of
Appeals.

The petitioners have instituted the present petition for
certiorari, with a view to obtaining the annulment of the order directing the
issuance of a writ of execution against the petitioners. There is merit in said
petition. We have already held that the judgment of the municipal court is
superseded by the judgment of the Court of First Instance, and the latter court
cannot order the execution of said judgment of hte municipal court which has
become functus oficio (De la Fuente and Teodoro, vs. Jugo and Borromeo,
76 Phil., 262). The action of the respondent judge in ordering the execution of
the decision of the municipal court, in spite of the judgment of said respondent
in favor of the herein petitioners, amounts to a reversal of his own judgment
pending appeal by the plaintiffs (herein respondents other than respondent judge
and respondent sheriff).

Moreover, it appears that the execution was ordered on the
ground that herein petitioners failed to pay the rentals awarded in the decision
of the municipal court. This is erroneous not only because the rental to be paid
or deposited by the defendant in an ejectment case pending appeal form a
judgment o fthe Court of First Instance, is that determined by the latter court
(Romero vs. Pecson, 83 Phil., 308)—in the case at bar the judgment of the Court
of First Instance dismissed the complaint,—but because the defendant in an
ejectment case has to pay or deposit said rentals only in case he appeals from
the judgment of the Court of First Instance, in order to stay ececution. In the
case now before us, the petitioners are not bound to pay or deposit said
rentals, because it is the plaintiffs (herein respondents other than respondent
judge and respondent sheriff) who have appealed from the decision of the Court
of First Instance. (Rule of Court No. 72, section 9.)

The petition for certiorari is hereby granted and the order of
the respondent judge in civil case No. 2102, directing the issuance of a writ
for the execution of the judgment of the municipal court, is set aside. The writ
of preliminary injunction heretofore issued is made permanent. So ordered, with
costs against the respondents other than respondent judge and respondent
sheriff.

Moran, C. J., Ozaeta, Feria, Pablo, Perfecto, Bengzon,
Tuason, Montemayor, and Reyes, JJ., concur.