JOSE PONCE DE LEON, PETITIONER, VS. JUDGE FIDEL IBAÑEZ, JUDGE OF THE COURT OF FIRST INSTANCE OF MANILA, AND SANTIAGO SYJUCO, INC., RESPONDENTS.

On April 15, 1952, judgment was entered in this Court in G. R. No.
L-3316, entitled Jose Ponce de Leon, plaintiff-appellant vs. Santiago
Syjuco, Inc., defendant-appellant; Philippine National Bank,
defendant-appellee (Exhibit 1), the dispositive part of which judgment
reads as follows:

* * *. It is further ordered that should the amount
of this judgment—principal and interests—be not paid within ninety (90)
days from the date this judgment becomes final, properties mortgaged
should be sold at public auction, and the proceeds applied to the
payment of this judgment in accordance with law, with cost against the
plaintiff.

However, this judgment shall be held in abeyance
or no order for the execution thereof shall be issued, until after the
moratorium orders shall have been lifted.

The moratorium law (Republic Act No. 342) and pertinent executive
orders having been lifted on June 9, 1953, by virtue of this Court’s
decision in Rutter vs. Esteban (93 Phil., 63, Santiago Syjuco, Inc.,
filed a motion on July 7, 1953, for the execution of the above-quoted
judgment. On July 22, 1953, the Court of First Instance of Manila
granted said motion, and on July 24 issued a writ of execution of the
said judgment. The court said in its order of execution:

The entry of judgment in this case issued by the
Clerk of the Supreme Court on April 15, 1952, declared that the said
judgment became final and executory on April 15, 1952, and the 90 days’
period mentioned in the decision started to run on April 16, 1952, the
next day following the entry of judgment declaring the same final and
executory. However, the issuance of the order of execution could not be
made due to the existence at” that time of the moratorium suspending
the enforcement of the obligation. Upon the declaration by the Supreme
Court in the case of Rutter vs. Esteban, supra, that the Moratorium Law
and Orders were null and void and unconstitutional, execution of the
judgment would immediately issue inasmuch as the period of 90-days from
the date of the finality of the judgment had already elapsed. During
the said period of 90 days, in spite of the existence of the Moratorium
Law, the debtor could pay his obligation because the said Moratorium
Law did not prohibit him to do so. * * *.

A motion to reconsider the order of execution was denied, hence this
petition for a writ of certiorari based upon the ground that since the
decision of this Court in Rutter vs. Esteban considered the moratorium
law and orders lifted only on June 9, 1953, the petitioner, against
whom the writ of execution was issued, was deprived of the 90-day
period provided by Rule 70 of the Rules of Court within which the
amount of the judgment may be paid.

In answer to the petition, respondents allege as special defense
that since the debt, by its terms, fell due on May 5, 1949, and it was
being executed only in July, 1953, petitioner can not complain that he
has not had sufficient time to pay it; that the petition has become
moot because, assuming that the judgment should have started to run on
June 9, 1953, the 90-day period expired on September 7, 1953, without
the obligation having been paid, and the action, therefore, is purely
dilatory.

In a subsequent petition filed by the respondents, it is prayed that
the preliminary injunction issued by this Court be lifted. Against this
petition the petitioner has filed an opposition, alleging that the
validity of the execution determines the validity of the sale, and that
in any case the rights of the respondent creditor is fully protected by
the properties subject of the mortgage.

It must be noted that the 90-day period granted the mortgage debtor
within which to pay the amount of the mortgage is in section 2 of Rule
70 of the Rules of Court, and it is to be counted “from the date of the
service of the order,” not from the date thereof. The order referred to
in the rule is the order requiring the debtor to pay the judgment
within 90 days. This 90-day period given in the rule is not a
procedural requirement merely; it is a substantive right granted to the
mortgage debtor as the last opportunity to pay the debt and save his
mortgaged property from final disposition at the foreclosure sale. It
is one of the two steps necessary to destroy what in law is known as
the mortgagor’s “equity of redemption,” the other being the sale. It
may not be omitted. As the writ of execution or the order allowing the
sale of the mortgaged property was issued without granting the mortgage
debtor said 90-day period, the order for the sale of the property would
be a denial of a substantial right and void. It is true that the
original judgment of this Court required payment within 90 days, but
this same judgment was expressly held in abeyance; therefore, the
90-day period never began to pun. Neither was it effective while the
moratorium was in force. The order of execution that was held in
abeyance did not ipso facto become effective upon the lifting of the
moratorium. A new order of the court became necessary to revive the
order of payment, and this new order may not suppress or deny the
90-day period originally fixed and required by the rules. The order
complained of does not grant this 90-day period, and is, therefore,
invalid.

In the answer of the respondents, it is alleged that the injunction
issued by this Court should be lifted, and the sale of the property as
ordered by the respondent court now allowed, as the 90-day
period has already transpired since the order was issued. The order of
the court for the sale of the property is null and void, because it
denied petitioner the 90-day period provided by the rules; hence, it
may not be enforced on that ground. Even if it were to be interpreted
as requiring the sheriff not to proceed with the sale unless the 90-day
period had expired, as the order of the sheriff for the sale of the
property was made only one day after the order, it is also null and
void. The claim that the action is moot can not be sustained, because
it is the validity of the order of execution that is attacked, not that
of an order that may now be issued. The remedy of the respondent should
have been to seek another order of the court, after the expiration of
the 90-day period, for the sale of the property mortgaged, instead of
contesting the petition for certiorari. If any delay has been caused
the respondent by the delay in the sale, the petitioner is not to blame
but the respondent corporation, which did not take the more expedient
step above indicated.

The petition is hereby granted, and the orders complained of are
hereby declared null and void. However, in the interest of a speedy
administration of justice, and as the judgment to be executed is our
judgment, we hereby order the petitioner to pay the amount of the
judgment within ninety (90) days, otherwise the property mortgage shall
be sold to satisfy the amount of the judgment. Without costs.

Paras, C. J., Pablo, Bengzon, Montemayor, Reyes, A., Jugo, Bautista Angelo, and Concepcion, JJ., concur.

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RESOLUTION

June 29, 1954

 

LABRADOR, J.:

Upon considering the motion for reconsideration filed by respondent
Santiago Syjuco, Inc., the penultimate paragraph of the decision is
hereby amended to read as follows:

In the answer of the respondents, it is alleged that
the injunction issued by this Court should be lifted, and the sale of
the property as ordered by the respondent court now allowed,
as the 90-day period has already transpired since the order was issued.
The order of the court for the sale of the property is null and void,
because it denied petitioner the 90-day period provided by the rules;
hence, it may not be enforced on that ground. Even if it were to be
interpreted as requiring the sheriff not to proceed with the sale
unless the 90-day period had expired, as the order of the sheriff for
the sale of the property was made only one day after the order, it is
also null and void. The claim that the action is moot can not be
sustained, because it is the validity of the order of execution that is
attacked, not an order that may now be issued. The remedy of the
respondent should have been to seek another order of the court
directing the payment of the judgment within 90 days therefrom and the
sale of the property mortgaged in case of failure to comply therewith,
instead of contesting the petition for certiorari. If any delay has
been caused the respondent by the delay in the sale, the petitioner is
not to blame but the respondent corporation, which did not take the
more expedient step above indicated.

Paras, C. J., Pablo, Bengzon, Montemayor, Reyes A., Jugo, Bautista Angelo, and Concepcion, JJ., concur.