PACITA SY TORRES, COMPLAINANT, VS. FROILAN S. CABLING, DEPUTY SHERIFF, RTC, MALABON, METRO MANILA, RESPONDENT.

In a complaint filed on 30 March 1995 with the Office of the
Ombudsman and later referred to this Court for appropriate action, the
complainant, who was the defendant in Civil Case No. 1769-MN of Branch 170 of
the Regional Trial Court (RTC) of Malabon, Metro Manila, charged the respondent
with abuse of authority and grave abuse of discretion in the implementation of
the writ for the execution of the balance of P6,000 of her judgment
debt. She claimed that the respondent
carted away over her vigorous protest and objection the following: (a) a sala set worth P7,000; (b) a
Mitsui karaoke worth P3,500; (c) a G.E. refrigerator worth P7,000;
and (d) a Sony television worth P1,500. The sala set or the refrigerator would have been sufficient to answer
for the money judgment, but the respondent insisted on taking all the aforementioned
properties. She even offered to pay in
cash her judgment obligation. Besides,
the levied properties belonged to her son Wilfredo Sy and her sisters Diosdada
Sy de Guzman and Victoria Sy Esquivel, which were merely kept in her house for
the use of her mother. Despite the
third party claims, the respondent sold all these properties, whose aggregate
value is P19,000, for only P5,750 at a public auction on 21 March
1995 without giving her any copy of the plaintiff’s indemnity bond as required
by the Rules of Court.

In his comment dated 22 September 1995, the respondent admitted
having levied the aforementioned properties pursuant to a Writ of Execution
issued on 11 November 1994. He,
however, claimed that the complainant neither objected to the levy nor offered
to pay the judgment debt in cash. After
the levy of the subject properties, he issued and left a Notice of Levy and
Sheriff’s Sale to the party concerned. Upon receiving an Affidavit of Third Party Claim on 13 March 1995, he
sent a Notice of Third Party Claim to plaintiff Apolonio Coronel directing him
to file an indemnity bond if he wanted to stay the levy on the properties. As the indemnity bond was filed by the
plaintiff on 17 March 1995 he proceeded with the sheriff’s sale scheduled on 21
March 1995 and then sold the properties at public auction to the highest
bidder. It was not his obligation to
sell the subject properties at a price acceptable to the defendant or the third
party claimants. Respondent further
declared that the third party claimants had already filed a claim for damages
against him and Apolonio Coronel, docketed as Civil Case No. 4514 at MeTC,
Branch 71, Pasig City.

In her Reply to Comment dated 20 November 1995, the complainant
stressed that it was irregular for respondent sheriff to accept the bond of P12,000
considering that the properties levied upon were worth more or less P19,000. Section 17, Rule 39 of the Rules of Court
provides that the sheriff should have required the judgment creditor to put up
a bond in the sum not greater than the value of the property levied upon which
is P19,000. It was also
irregular and corrupt for the respondent to sell the levied properties at
public auction without giving notices of the date of the auction sale to the
third party claimants as required by the Rules. He thereby disregarded claimants’ right to participate, if not to
question, the proceedings especially as to the price of the properties. The respondent unjustifiably refused to
follow the requirement under Section 7, Rule 60 of the Rules of Court that in
case of disagreement as to the value of property levied, he should submit the
same to the court that issued the order for decision. The civil action filed against him will not exonerate him from
his liability for the aforementioned irregular and corrupt practices.

On 20 May 1996, we referred this case to Hon. Benjamin T.
Antonio, the Presiding Judge of Branch 170 of the RTC of Malabon, for
investigation, report, and recommendation. However, Judge Antonio inhibited himself to avoid suspicion of
partiality considering that the respondent is a member of his staff. Thus, we reassigned the case to the
Vice-Executive Judge of the said court, Judge Amanda Valera-Cabigao.

In the affidavit she submitted during the investigation, the
complainant merely adopted the testimonial and documentary evidence offered by
her sisters in Civil Case No. 4514, as well as the latter’s memorandum
submitted in said case.

Upon the other hand, in his affidavit which he submitted during
the investigation, the respondent reiterated that there is no truth in
complainant’s claim that she had objected to the levy and offered to pay in
cash her judgment obligation. He
further alleged that the third party claims of complainant’s son and sisters
were highly suspicious.

On 30 October 1996, Judge Cabigao submitted her Investigation
Report, Findings, and Recommendation. She found the respondent to be guilty of misconduct for acting with
undue haste in levying the personal properties and selling them at a public
auction without giving the judgment debtor and the third party claimants a
chance to be heard. She then
recommended that the respondent be meted out the penalty of suspension for one
month and one day as per Memorandum Circular No. 30 series of 1989 and
Resolution No. 89-506 dated 20 July 1989 of the Civil Service Commission.

On 4 December 1996, we referred the report of Judge Cabigao to
the Office of the Court Administrator (OCA) for evaluation, report, and
recommendation.

In the Memorandum of 12 March 1997, the OCA made the following
findings and conclusion:

A close review of the records reveal that as correctly claimed by
complainant, respondent failed to prove that he complied with Section 18 (b and
d), Rule 39 of the Rules of Court which provides that before the sale of
personal property in execution, notice thereof must be given by posting a
similar notice in three public places in the municipality or city where the
sale is to take place for not less than five (5) nor more than ten (10) days. Respondent likewise failed to prove that
written notice of sale was given to judgment debtor as required under Section
18(d) Rule 39 of the Rules of Court. Moreover, respondent also violated Section 23, Rule 39 of the Rules of
Court in not requiring the judgment creditor to pay the winning bid in
cash. This he categorically admitted in
his Comment as well as in the Certificate of Sale dated 22 March 1995 (Rollo,
p. 270).

Respondent cannot escape administrative sanctions for his
acts. The sale was precipitately
executed by him for he did not bring to the attention of the trial court the
disagreement as to the value of the properties levied and allegedly owned by
third parties.

It then recommended that respondent be
“SUSPENDED for one (1) month without pay for abuse of authority and abuse of
discretion.”

As we see it, the liability of the respondent lies not in
immediately levying on the personal property found in complainant’s residence
and in not allowing her to pay in cash, but in the proceedings relative to the
sale of the levied personal property. Section 15 of Rule 39 of the Rules of Court allows immediate levy on
execution of personal property. A
sheriff is not required to give the judgment debtor some time to raise
cash. If time be given, the property
may be placed in danger of being lost or absconded. In the instant case, we doubt that the complainant was ready with
cold cash to pay the judgment debt.

However, we agree with that portion of the findings and
conclusion of the OCA that the respondent did not comply with paragraphs (b)
and (d) of Section 18 of Rule 39, which pertinently provide as follows:

SEC. 18. Notice of sale
of property on execution. — Before the sale of property on execution,
notice thereof must be given as follows:

x x x

(b)           In case of other
personal property, by posting a similar notice in three public places in the
municipality or city where the sale is to take place, for not less than five
(5) nor more than ten (10) days;

x x x

(d)           In all cases,
written notice of the sale shall be given to the judgment debtor. (As amended by SC Circular No. 8, prom. May
15, 1987).

These requirements are emphasized under
Section D (Duties and Functions of the Sheriff) paragraph f, subsection 2 of
Chapter VIII of the Manual for Clerks of Court.

The posting of the notice is to let the public know of the sale
to the end that the best price or a better bid may be made possible to minimize
prejudice to the judgment debtor. The
notice to the judgment debtor is intended to give him the opportunity to
prevent the sale by paying the judgment debt sought to be enforced and the
costs which may have been incurred pursuant to Section 20 of Rule 39. Or, at the very least, it affords him a
chance to be present at the auction sale and help insure a regular bidding or
prevent the rigging of the process. Section 19 of Rule 39 imposing a penalty for selling without notice or
for removing or defacing the notice underscores the importance of the notice of
sale of levied properties. It reads:

SEC. 19. Penalty for
selling without notice, or removing or defacing notice. — An officer selling without the notice prescribed by the last preceding
section shall forfeit five hundred pesos (P500) to any party injured
thereby, in addition to his actual damages, both to be recovered in a single
proper action; and a person willfully removing or defacing the notice posted,
if done before the sale, or before the satisfaction of the judgment if it be
satisfied before the sale, shall forfeit five hundred pesos (P500) to
any person injured by reason thereof, to be recovered in any proper action.

We also agree with the finding of the OCA that the respondent
likewise violated Section 23 of Rule 39, which provides as follows:

SEC. 23. Judgment
creditor as purchaser. — When the purchaser is the judgment creditor,
and no third-party claim has been filed, he need not pay the amount of the bid
if it does not exceed the amount of his judgment. If it does, he shall pay only the excess.

Since in this case there was a third-party
claim, the respondent should have demanded from the judgment creditor, who was
the highest bidder for the sala set, Karaoke, and refrigerator, payment
in cash of the amount of his bid instead of merely crediting the amount to the
partial satisfaction of the judgment debt. (Matias vs. The Provincial Sheriff of Nueva Ecija, 74 Phil. 326, 328
[1943]; Filipinas Colleges, Inc. v. Timbang, 106 Phil. 247, 255 [1959].

The failure of the respondent to comply with Section 18 (b and d)
of Rule 39 of the Rules of Court could have been a contributing factor for the
sale of the properties for only P5,750 when their aggregate value, as
claimed by the complainant (which the respondent did not deny) was P19,000. Such non-compliance, coupled with the
violation of Section 23 of Rule 39 of the Rules of Court, amounted to abuse of
authority. If it were not deliberate,
the respondent may be liable for gross neglect of duty. We do not however share the view of the OCA
that respondent’s actuation also constituted abuse of discretion. Sections 18 and 23 of Rule 39 do not vest
discretionary power on sheriffs.

We need not rule on the possible irregularities committed in
respect of the third-party claim, since the third-party claimants did not join
the complainant in this administrative case but, instead, filed a complaint for
damages against the respondent presumably pursuant to Section 17 of Rule 39 of
the Rules of Court.

Considering the foregoing, the penalty of suspension from office
without pay for one month recommended by the OCA is appropriate.

WHEREFORE, for abuse of authority respondent FROILAN S.
CABLING is hereby SUSPENDED from office for a period of one month without pay
effective upon receipt of a copy of this decision, and WARNED that the
commission in the future of the same or similar act shall be dealt with more
severely.

The Office of the Court Administrator should forthwith cause the
service of this decision on the respondent. The Presiding Judge of Branch 170
of the Regional Trial Court stationed in Malabon, Metro Manila, shall
thereafter report to this Court the completion of the service of such
suspension.

Let a copy of this decision be attached to the personal record of
the respondent with the Office of the Court Administrator.

SO ORDERED.

Narvasa, C.J., (Chairman), Melo, Francisco, and Panganiban, JJ., concur.