AMPARO D. SANTOS, PETITIONER, VS. HON. ANGEL H. MOJICA, EMMA R. GENIZA, AURELIO GENIZA, CATALINA CARREON-RIVERA, ZACARIAS RIVERA, LORENZO RIVERA, THE SHERIFF OF MANILA AND THE S…

Original action for certiorari to annul an order of execution of
the decision in Civil Case No. 2043-P of the Court of First Ins­tance of Rizal, entitled “Emma R. Geniza,
et al. vs. Roque M. Garcia, et al.” and the writ
of execution issued in pursuance of said order, as well as to restrain the
enforcement of both, during the pendency of this
case.

Petitioner, Amparo D. Santos,
– hereinafter referred to as Mrs. Santos, although she is, also, Mrs. Moreno –
was one of the defendants in said Civil Case No. 2043-P.  Her co-defendants therein were Roque M. Garcia and her husband by second mar­riage, Miguel
Moreno.  The three (3) of them are
hereinafter re­ferred to collectively as the defendants.  The plaintiffs in said case – private
respondents herein – were Emma R. Geniza, her
husband, Aurelio Geniza, her brother, Zacarias Rivera, the lat­ter’s wife, Catalina Carreon-Rivera, and Lorenzo Rivera, father of Emma R. Geniza and Zacarias Rivera.  All of them are hereinafter referred to
collectively as the plaintiffs.

On April 30, 1964,
decision was rendered in said case sentencing the defendants to pay, jointly and
severally, to the plain­tiffs:

“(1) P100,000.00, plus 12% interest
thereon from July 9, 1959,
up to the date of payment;

“(2) P97,000.00 as compensatory damage to Aurelio Geniza and Lorenzo Rivera, and P195,000.00 as compensatory
damage to Catalina Carreon;

“(3) P30,000.00 as moral damage;

“(4) P10,000.00 as exemplary damage;

“(5) P25,000.00 as attorney’s fees and
costs of the suit.”

From said decision the defendants appealed to this Court, in
which the case is docketed as G.R. No. L-24071.  Owing to the failure of Garcia and Moreno
to file their briefs on time, their respective appeals were dismissed on February 7, 1966, thereby leaving Mrs.
Santos as the only appellant in that case.

Pending the perfection of defendants’ appeal, or on November 6, 1964, the plaintiffs
filed, with the lower court a motion for the immediate execution of its
decision, upon the ground that the appeal taken therefrom
was dilatory in nature.  Despite
defendants’ opposition thereto, said court, then presided over by Honorable
Angel A. Mojica, Judge, now Associate Justice of the
Court of Appeals, issued an order, dated November 19, 1964 – or before the
approval of defendants’ record on appeal, on December 23, 1964 – granting said
motion, “unless defendants file a supersedeas
bond in the amount of the judgment within ten (10) days from receipt” of
said order.  No such bond having been
filed, the corresponding writ of execution was issued on January 12, 1965. 
Acting in pursuance thereof, the Sheriffs of Quezon City and Manila
levied upon various properties as follows:

“1.  On January 16, 1965
– certain movables belonging to petitioner and her husband, and issued notice
that said movables would be sold at public auction on January 26, 1965 (Annex
“H”);

“2.  On January 18, 1965
– the rights, title, interest or participation which petitioner Amparo D. Santos may have on the real properties and
improve­ments thereon covered by TCT No. 22744, Quezon
City, and issued notice that said properties would be sold at public auction on
February 16, 1965 (An­nex “I”);

“3.  On February 2, 1965 –
the Pampanga Sugar Mills, Marilag
Bldg., Ayala Blvd., Makati, Rizal,
was served notice of Garnishment (Annex “K”) of all goods, effects,
etc., and specifically the salaries, bonuses, per diems, and allowances of
herein peti­tioner in the possession or under the control of, or receivable
from, said company; and

“4.  On February 3, 1965 – the
Pasumil Planters, Inc., 2930 Sta. Mesa Blvd., Manila,
was served notice of Garnishment (Annex “L”) of 8,010 shares therein
registered in the name of herein petitioner evidenced by Stock Certificates
Nos. 430, 474 and 566.”

The projected sheriffs’ sales mentioned in paragraphs (1) and (2)
were, however, suspended on account of a third party claim filed by Luis D.
Santos and other heirs of Demetrio Santos, and an
order, issued in an action, filed by the third party claimants, with the Court
of First Instance of Quezon City, directing the
preserva­tion of the status quo, pending final determination of said
action.

Upon the other hand, Mrs. Santos had moved to lift the gar­nishment
referred to in paragraphs (3) and (4), insofar as it affected her salary and
per diems as treasurer of the Pampanga Sugar Mills
-hereinafter referred to as the PASUMIL – upon the ground that they are
necessary for her support and that of her children by her first husband, the
late Demetrio Santos. 
Moreover, these children filed a third party claim with respect to the
shares of stock described in said paragraph (4).

On March 4, 1965,
Mrs. Santos commenced the present action for certiorari with preliminary
injunction, against the plaintiffs in the main case and Judge Mojica, as well as the Sheriffs of Manila
and Quezon City.  Upon the filing of a bond in the sum of P5,000, this Court issued said writ of preliminary injunction,
on March 11, 1965.

Mrs. Santos maintains that Judge Mojica
had gravely abused his discretion in ordering the execution of the decision in
the main case because, in the language of Aguilos vs.
Barrios:^[1]

“x x x If
the judgment is executed and, on appeal, the same is reversed, although there
are provisions for restitution, oftentimes damages may arise which cannot be
fully compensated.  Accordingly,
execution should be granted only when these considerations are clearly
outweighed by superior circumstances demand­ing urgency, and the provision
contained in Rule 39, sec. 2, requires a statement of those circumstances as a
security for their existence.”

It is further urged, on behalf of Mrs. Santos, that her
participation in and liability for the fraud allegedly practiced upon private
respondents herein is a matter divorced from the participation and liability of
Garcia and Moreno inasmuch as:  the proof
linking her to said fraud is not of the same nature or weight as that
introduced against her co-defendants in the main case; the decision therein
rendered was based upon allegedly spurious and non-existent preponderance of
evidence; her motion for new trial in the main case had been unjustly and
erroneously denied; and excessive dam­ages and damages not suffered have been
awarded.  Needless to say, however, these
arguments deal with the merits of the decision in the main case, which is the
subject-matter of G. R. No. L-24071 and cannot be passed upon in the present
action for certiorari, in which the issue is whether or not Judge Mojica had exceeded his jurisdiction in authorizing the
execution of said decision.

Upon a review of the record, we are fully satisfied that peti­tioner
has not made out a case against respondents herein.  Indeed, it is well-settled that the question
whether or not a decision should be executed pending appeal is mainly addressed
to the sound discre­tion of the court, which appears to have properly exercised
it, for:

(1)  The co-defendants of
Mrs. Santos do not seemingly have any property upon which the judgment against
them may be satisfied.  Upon the other
hand, Mrs. Santos has a house and lot in Quezon City with a total assessed
value of P136,150. 
This property is, how­ever, subject to a mortgage for P150,000, in favor of the Philippine Trust Company.  Besides, due to non-payment of interest, the
mort­gage debt aggregated, as of October
12, 1964, to P191,863, which has probably
increased owing to the interest accruing subsequently thereto.  In other words, petitioner is in imminent
danger of insol­vency.^[2]

(2)  No other property
appears to be available for the satis­faction of said judgment.  The movables described in the aforemen­tioned
paragraph (1) are the object of a third party claim of Luis D. Santos and other
alleged heirs of the late Demetrio Santos.  The shares of stock above referred to are the
object of a similar claim, filed by the children begotten by Mrs. Santos to her
first husband.  Then again Mrs. Santos
maintains that her salary and bonuses as treasurer of the PASUMIL are needed
for her support and that of her children.

(3)  Mrs. Santos had a
plain, speedy and adequate remedy in the ordinary course of law to forestall
execution of the decision against her. 
She could have filed a supersedeas bond.  In fact, the order complained of conditioned
the issuance of the writ of exe­cution upon the absence of said bond, which she
did not file within the period given in said order, or at any time
thereafter.  We have repeatedly held that
failure to avail of such remedy is sufficient ground to deny a writ of
certiorari against an order authorizing the execution of a decision pending
appeal.^[3]

(4)  The suit against the
defendants in the main case was for the recovery of damages resulting from
fraud allegedly committed by them against the plaintiffs therein.  The latter alleged and the lower court found
that, by fraudulently inducing them to believe that a barter license for
P16,000,000 in favor of Southern Luzon Coconut Producers Association, Inc. –
whom the defendants claimed to represent – had been approved and would be
released within two (2) weeks after payment of P100,000 as license fee, and
that Emma R. Geniza would get a commission of
P480,000 if she found a buyer of said license – which in fact had never been
approved – the defen­dants succeeded in persuading her, her husband and her
father to mortgage several parcels of land to one Henry Sy
for P50,000, as well as in inducing Catalina Carreon-Rivera
and her husband to mortgage another parcel of land to the Asia Mercantile
Corporation for another P50,000, both sums payable within 40 days, and to de­liver
to the defendants, in the house of Mrs. Santos and her second husband, Miguel
Moreno, the aggregate sum of P100,000 thus bor­rowed, under promise on
defendants’ part to pay it back within the same period of time, which promise
they did not fulfill, in view of which the mortgaged properties – with an
aggregate market value of P292,000^[4] –
were foreclosed and title thereto eventually conso­lidated in the respective
mortgagees.

Mrs. Santos denied having performed the acts imputed to her by
the plaintiffs, as well as the genuineness of the signature purport­ing to be
hers on the promissory note allegedly signed by her when said sum of P100,000
was delivered, as above stated, to the de­fendants. Considering, however, the
evidence for the plaintiffs, including the testimony of a handwriting expert,
on the genuine­ness of the aforementioned signature of Mrs. Santos, and the
other circumstances surrounding the case, respondent Judge – after comparing
the questioned signature with standard signatures of Mrs. Santos – found the
evidence for the defendants unworthy of credence, and concluded that their
appeal had been “taken for the purpose of delay.” The record before us
does not warrant our disturbing this conclusion, which, in turn, is sufficient
ground to justify execution pending appeal.^[5]

WHEREFORE, the petition herein is dismissed and the writ
of preliminary injunction issued by this Court on March 11, 1965, hereby
dissolved, with costs against petitioner Amparo D.
Santos.  Writ denied.

IT IS SO ORDERED.

Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez,
Castro, Fernando, Capistrano, Teehankee, and Barredo, JJ., concur.

^[1] 72 Phil., 285, 287.

^[2] Baldisimo v. CFI, L-22261, Sept. 29, 1967; Lao v. Men­cias,
L-23554, Nov. 25, 1967.

^[3] Javellana v. Querubin,
L-26166, July 30, 1966, citing Claudio v. Zandueta,
64 Phil., 812; Haw Pia v. San Jose, 78 Phil.,
238; Santos v. Court of Appeals, 95 Phil., 360, 364; David v.
Miranda, L-6215, Sept. 28, 1954; Dans v. Court
of Appeals, 49 O. G. 2753; Dauz v. Elcosida, L-15950, April 20, 1961; Paringit
v. Masakayan, 58 O.G. 8239.

^[4] P97,000
for the property of Emma R. Geniza, Aurelio Geniza and Lorenzo Rivera, and P195,000 for the property of
Catalina Carreon-Rivera and Zacarias
Rivera.

^[5] Iloilo
Trading Center & Exchange vs. Rodas, 73
Phil., 327, 328, 329; Presbitero vs. Rodas, 73 Phil., 300, 303; Rodriguez vs. Court of
Appeals, L-12534, May 23, 1959; Javellana v. Querubin, L-26166, July 30, 1966.