VIRGILIO SURIGAO, DOING BUSINESS UNDER THE NAME AND STYLE OF SURIGAO MOTOR WORKS, COMPLAINANT, MARINO V. CACHERO, DEPUTY SHERIFF OF QUEZON CITY, RESPONDENT.

Administrative charge that respondent Sheriff Marino V. Cachero of the Court of First Instance of Quezon City acted illegally and with abuse of authority in
implementing a writ of execution.  This
complaint was referred to Executive Judge Ernani Cruz
Paño of the Court of First Instance of Quezon City for investigation, report and
recommendation.  Hereunder is Judge Paño’s report and recommendation:

“With respect to the first charge, it cannot be said that the
sixty-day period had already expired because admittedly the delay in enforcing
the writ was due to several motions and petitions filed by Surigao.  The enforcement of the writ was reiterated by
the Court of Appeals on December 13,
1979 but the complainant Surigao went to
the Supreme Court and filed a petition for certiorari but which petition
was dismissed.  The sixty-day period
fixed in the writ had not expired when the levy was made on December 14, 1979 not only because
of the delay occasioned by the legal moves of Surigao
but also because the Court of Appeals itself directed enforcement on December 13, 1979.  Moreover, execution in this case was issued
pending appeal under the authority of Sec. 8, Rule 70 of the Rules of
Court.  It cannot be said that immediate
execution may be defeated by the defendant’s own parrying moves which delayed
enforcement of the writ.  In fact, the
rule is that when a valid levy is made, the auction sale may be effected even beyond the five (5) year period.  (See Del Rosario vs. Yatco,
18 SCRA 1263.)

“On the matter of entry to the premises, without a court
order, the contention of Cachero is that he was
authorized in the resolution of the Court of Appeals of August 1, 1979. 
This defense is tenable because the resolution of August 1, 1979 authorizes the sheriff to break
open the premises in question.  As to the demolition of the motor shop, the
evidence on record shows that the constructions were levied upon as chattels by
Cachero. 
Thereafter, the same was sold to the judgment creditor and it was the
judgment creditor who caused the demolition so that at the time of the
demolition the title to the improvements had already passed to the judgment
creditor.

“There does not appear to be any necessity to proceed with the
sale of the improvements only after following the procedure for the sale of
real property as the parties did not appear to treat the improvements as real
property.  When Sheriff Cachero levied on the materials as personal property on December 14, 1979, and issued a
notice of Sheriff’s sale on April 10,
1980, describing the levied property as chattels, Surigao did not complain on the treatment of the construction
as personal property.  As a matter of
fact the City Court in Civil Case No. VII-24660 as affirmed by both the Court
of First Instance and the Court of Appeals found no evidence to support the
claim of Surigao on the major repairs in the premises
as no material evidence had been adduced by him.

“While it is true that in case a house is constructed on the
land belonging to another it should be treated as real property for purposes of
execution, it does not appear that said doctrine should be followed in this
case because as earlier stated Surigao did not object
to the levy on the construction as personal property.  Moreover, it was admitted by Surigao that the premises was never declared by him for tax
purposes with the City government; he did not pay any real taxes for the
premises.  At any rate, no evidence was
introduced during the investigation that the so-called motor shop was a
permanent structure on the property; also there is no charge that Sheriff Cachero did not observe the procedure prescribed for the
sale of real property on execution under Sec. 18, Subsec.
(c) of Rule 39, Rules of Court.

“WHEREFORE, premises considered, it is recommended that the complaint
against Deputy Sheriff Marino Cachero be
dismissed.”

The Court has examined the record and found the above report to
be supported by the evidence.  Under the
circumstances found by the Investigator, the Court holds that the actuations of
respondent complained were substantially in accordance with the pertinent rules
even if not literally adhering thereto. 
The most that We can say is that henceforth,
the Sheriff should await another writ of execution even if the court, as in
this case, has reiterated its order of execution of the previous writ.

The Court, therefore, resolved to DISMISS this case with the
admonition as above stated to respondent to henceforth act more strictly in
conformity with the rules.

Aquino, Concepcion,
Jr., Abad Santos, and
De Castro, JJ., concur.