G.R. No. L-18454. August 29, 1966
MARIANO CABILAO, LEONOR CABILAO AND BERNARDINO GRAMATICA, PETITIONERS, VS. THE HON. JUDGE OF THE COURT OF FIRST INSTANCE OF ZAMBOANGA DEL SUR, CRISANTO TUBEL AND ISABEL TUBEL, R…
BENGZON, J.P., J.:
mandamus, assailing an order of the Court of First Instance of
Zamboanga del Sur granting execution pending appeal.
On November 7, 1959 Crisanto and Isabel Tubel filed in the Court of
First Instance of Zamboanga del Sur a complaint denominated for
“Forcible Entry and Damages with Preliminary Injunction,” against
Mariano Cabilao, Leonor Cabilao and Bernardino Gramatica.[1]
The plaintiffs alleged that they are the absolute owners of a
24-hectare coconut land in Gapul, Alicia, Zamboanga del Sur, and had
been in lawful and peaceful possession thereover since they inherited
it from their parents in 1935; that on May 9, 1957 – that is, more than
a year before the filing of the action – the defendants, by means of
force, intimidation, strategy and stealth, unlawfully entered the
above-stated property, thereby depriving them of their lawful and
peaceful possession over the whole parcel of land; and that the
defendants have been gathering the coconut fruits therein and still
retain possession and enjoyment of said land. It was prayed that the
defendants be enjoined from further possessing the land illegally and
from gathering its fruits; that they be ordered to pay P100 monthly
rentals, P500 actual damages and attorney’s fees, P400 moral damages
and P100 exemplary damages.
The defendants moved, on February 18, 1960, to dismiss the action
for lack of jurisdiction over the subject matter, alleging that it was
a suit for forcible entry and detainer, falling within the exclusive
original jurisdiction of the Justice of the Peace (now Municipal)
Court. This motion was denied by the Court of First Instance on March
1, 1960, because, it being alleged that the unlawful deprivation or
withholding of possession started more than one year prior to the
filing of the action, the suit falls within the Court of First
Instance’s jurisdiction.[2]
On March 2, 1960 the defendants filed their answer, stating that
they are the true owners of the property and have been in lawful
possession thereof since many years before the war and have introduced
permanent improvements therein worth P13,000.
Trial followed and, thereafter, on December 21, 1960, judgment was
rendered by the Court of First Instance in favor of the plaintiffs. The
dispositive portion of the decision reads:
“WHEREFORE, judgment is hereby rendered in favor of
the plaintiffs and against the defendants: (1) Ordering the defendant,
Mariano Cabilao, Leonor Arellano Cabilao, Bernardino Gramatica and all
others claiming under them, to vacate the land in question, described
in paragraph 2 of plaintiffs’ complaint and covered by Tax Declaration
No. 165 (Exhibit D), and to restore the immediate possession thereof to
the plaintiffs; (2) sentencing the defendants, to jointly and severally
pay to the plaintiffs the sum of P30.00 a month from May 9, 1957, until
possession of the land in question is fully restored to the plaintiffs,
as the reasonable compensation for the unlawful use and withholding
thereof by the defendants; (3) sentencing the defendants to jointly and
severally pay the plaintiffs the sum of P300.00 as attorney’s fees; and
to pay the cost of suit.“It is so ordered.”
(Petition, Annex A, pp. 10-11)
After receiving copy of the decision on January 6, 1961, the
defendants filed on January 18, 1961 their notice of appeal, appeal
bond and record on appeal. And on February 10, 1961 the Court of First
Instance approved the appeal bond and the record on appeal.
Six days later, on February 16, 1961, the plaintiffs, through
counsel, moved for reconsideration of the order of February 10, 1961
afore-stated, upon the ground that “the Notice of Appeal, Appeal Bond
and Record on Appeal filed by the defendants in the above entitled case
have not been received by the undersigned counsel in view of the fact
that he just arrived yesterday from the City of Manila”; and, that he
“has not gone over the Notice of Appeal, Appeal Bond and Record on
Appeal and could not for the present make any valid objection” thereto.
Said motion for reconsideration was granted by the Court of First
Instance by order of February 25, 1961, and the plaintiffs were given
ten days from notice of the order to examine the record on appeal.
The plaintiffs, on March 6, 1961, filed a motion for immediate
execution of the judgment, pending appeal. And on March 9, 1961, they
filed an opposition to the record on appeal, stating that it should be
amended so as to include the proceedings in Civil Case No. 455 of the
same court, which was allegedly dismissed but refiled in the form of
the present Civil Case No. 518.
Acting thereon, the trial court, on March 18, 1961, ordered the
defendants to amend the record on appeal to include the proceedings in
Civil Case No. 455. Furthermore, on April 12, 1961, said court issued
an order for immediate execution of the judgment. A writ of execution
was subsequently issued on May 9, 1961 and served upon the defendants.
Pursuant thereto the defendants were ejected from the property by the
sheriff, who turned it over to the plaintiffs, on May 13, 1961.
The petition herein was thereupon filed on May 29, 1961 by the
defendants. Petitioners invoice Section 9 of Rule 41 of the old Rules
of Court and contend that with the perfection of their appeal the trial
court had lost jurisdiction over the case and could no longer
reconsider its approval of the record on appeal, much less issue an
order for execution pending appeal.
Said provision of the Rules states:[3]
“SEC. 9. When appeal deemed perfected, effect, thereof.
– Upon the filing of the notice of appeal and the approval of the
appeal bond and the record on appeal, the appeal is deemed perfected
and 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, and to
approve compromises offered by the parties prior to the transmittal of
the record on appeal to the appellate court.”
There is no question that the trial court, after perfection of the
appeal but prior to the transmittal of the record on appeal to the
appellate tribunal, still has power “to issue orders for the protection
and preservation of the rights of the parties which do not involve any
matter litigated by the appeal.”
The question is whether (1) an order reconsidering the approval of
the record on appeal with a view to its correction or completion and
(2) an order of execution pending appeal, are among the above-stated
orders still within the trial court’s jurisdiction to issue.
This Court ruled in Valdez v. Court of First Instance of Bulacan, 88
Phil. 585, that the trial court cannot revoke its previous order
approving the record on appeal to compel inclusion of other pleadings
therein, because the inclusion of said other pleadings would
necessarily concern matters discussed in the appeal. And in Calingo v.
Tan, L-10336, May 31, 1957, some members of this Court’s majority
therein expressed the view that the trial judge has no authority to
reconsider his order approving the record on appeal, in view of the
trial court’s loss of jurisdiction upon perfection of the appeal.
Subsequently, however, this Court, through Justice Arsenio Dizon,
adopted a more liberal view. Thus it was ruled in Cabungcal v.
Fernandez, L-16520, April 30, 1964, that prior to the transmittal of
the record on appeal to the appellate court, the trial court can set
aside its order approving the record on appeal with a view to further
inquiring into the matter of whether or not said record on appeal is
complete or contains errors. It was pointed out therein that such an
order does not vacate the judgment of the lower court nor affect the
issues involved in the appeal. Said latest ruling of this Court on this
point is the more reasonable and should be followed herein.
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 v.
Imperial, 51 Phil. 251; Vda. de SyQuia v. Concepcion, 60 Phil. 186; De
la Fuente v. 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. The record before Us
does not show that the order to amend the record on appeal has been
complied with. Petitioners herein are therefore given ten days from
finality of our decision in this case to comply with said order, after
which the trial court shall approve the corrected or completed record
on appeal and transmit the same to the appellate court.
WHEREFORE, the trial court’s order of execution of April 12,
1961 and writ of execution of May 9, 1961 are hereby declared null and
void and respondent Judge is ordered to approve and transmit to the
appellate court the amended record on appeal which petitioners herein
may file within ten (10) days from finality of this decision.
SO ORDERED.
Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Makalintal, Zaldivar, Sanchez, and Ruiz Castro, JJ., concur.
Regala, J., no part.
[1] Civil Case No. 518
[2] Citing Sec. 1, Rule 72 (now Rule 70), Rules of Court.
[3] See also Sec. 9, Rule 41, Revised Rules of Court, similarly worded.