JESUS O. TUAZON AND LUZ P. TUAZON, PETITIONERS, VS. THE HONORABLE CONRADO M. MOLINA, JUDGE OF THE COURT OF FIRST INSTANCE OF MANILA AND JOSEPH ROQUE, RESPONDENTS.

This is a petition for certiorari seeking the following
relief:

“WHEREFORE, Petitioners respectfully pray this Honorable
Supreme Court:

“1.    For the issuance of an Order requiring the
Clerk of Court of the Court of First Instance of the City of Manila to certify
to this Honorable Court a copy of the Order of October 29, 1980, issued in
Civil Case No. 95668 between your Petitioners and respondent Joseph Roque, and
of the Order denying the former’s Motion for Reconsideration, that the same may
be reviewed by the Court;

“2.    That the Honorable Conrado M. Molina and his
agents/representatives, the City Sheriff of Manila, be ordered to refrain from
further proceeding in the matter here sought to be reviewed until further order
of this Court;

“3.    That after hearing the parties, a judgment be rendered decla­ring
the Order of October 29, 1980 and the
resulting Writ of Execution, to be null and void, and conceding to the
Petitioners such further and other reliefs
and remedies in the opinion of the Court they are justly and equitably
entitled, with costs.

“Manila, December 15, 1980.”^[1]

The petition alleges that
a decision dated January 31, 1979 was rendered by the respondent judge, Hon.
Conrado M. Molina, in Civil Case No. 95668 of the Court of First Instance of
Manila where the petitioners were among the defendants and the res­pondent,
Joseph Roque, the plaintiff therein; that the decision was being served to the
office of the petitioners’ counsel on March 9, 1979 but because the said
counsel was out of the country and
in view of the refusal of the
person in the office to receive the copy of the decision, the serving officer
asked that the fact that counsel was abroad be noted on the face of the notice
of decision; that the serving officer did not leave a copy of the decision at
the office of petitioner’s counsel but intimitated that he would come back at
the expected date of arrival of said counsel to serve his copy; that the afore­said
serving officer never went back to the office of petitioners’ counsel to
deliver a copy of the decision; that the serving officer did not serve a copy
of the decision to the petitioners themselves; that on August 18, 1980 the
counsel of the respondent Joseph Roque filed a motion for execution of the
decision; that on August 20, 1980 the petitioners filed an opposition to the
motion for execution, contending
that since they have never been
served with a copy of the decision either personally or through
their counsel, the said decision can never attain finality and cannot be the
object of a motion for execution; that on September 4, 1980, the respond­ent
Joseph Roque filed a reply to the opposition; that on September 24, 1980 the
petitioners filed a rejoinder to the plaintiff’s reply; that on October 29,
1980 the respondent judge issued an order grant­ing the motion for execution of
the decision; that on November 17, 1980 the petitioners filed a motion for
reconsideration of the order granting the motion for execution; that unknown to
the petitioners even as of October 29, 1980 a writ of execution was issued in
the case; that pursuant to the aforesaid writ of execution the City Sheriff of
Manila through his deputies actually made levies on both personal and real
properties of the petitioners; that moreover on December 12, 1980 the City
Sheriff of Manila, through his deputies, served the petitioners with a notice
of auction scheduled to take place on December, 19, 1980 covering the
properties levied upon; and that also on December 12, 1980 the petitioners’
motion for reconsideration of the order dated October 29, 1980 was
resolved belatedly and adversely by the respondent judge.^[2]

Upon being ordered to
comment, the private respondent through counsel manifested on December 23, 1980
that he is adopting his “Reply to Opposi­tion” dated September 4,
1980, Annex “C” of the petition, as his comment to the petition.^[3]

The aforesaid “Reply to Opposition” alleged that there was valid service of the copy of
the deci­sion on March 9, 1979 through counsel because the Deputy Sheriff
served a copy of the decision on one Josephine A. Serrano, an employee of Atty.
Arsenio O. de Leon; that the refusal of Josephine A. Serrano to receive a copy
of the decision was of no moment or meaning; that Atty. de Leon was inexcusably negli­gent when he left for abroad
without making provisions on who should manage his law office and how; and that
the judgment has become final
and executory.^[4]

The record discloses that
Josephine A. Serrano, the person on whom the sheriff attempted to serve a copy
of the decision in Civil Case No. 95668 of the Court of
First Instance
of Manila, was not an employee
of Atty. Arsenio O. de Leon, counsel of the petitioners.  Josephine A. Serrano was the Assistant
Manager of the Prompt Service and she was instructed by Atty. de Leon not to
“receive in the absence of the other associates any pleading which may
require immediate action for him”. 
She was only requested “the favor of attending to incoming mails
and/or court pleadings being served to his office” for the reason that
“the Secretary of the law office was absent.”^[5]

The attempt of the Deputy
Sheriff to serve a copy of the decision on Josephine A. Serrano was not a valid
service under Section 4, Rule 13, Revised Rules of Court which provides that
the service should be made on “the party or his attorney, or by leaving it
in his office with his clerk or with a person having charge thereof.”

Josephine A. Serrano was
neither a clerk of Atty. Arsenio O. de Leon nor in charge of his office.

It does not appear that the Deputy Sheriff made any attempt to serve a copy of the decision
on any of the associates of Atty. de Leon. 
There is no showing that the said Deputy Sheriff left a copy of the
decision at the party’s or attorney’s residence with a person of sufficient
discretion to receive the same.

The decision has not become final and executory.  It should be
properly served on the counsel of the petitioners.

WHEREFORE, the petition for certiorari is hereby
granted and the order of execution of the decision in Civil Case No. 95668
dated October 29, 1980 and the writ of execution issued pursuant thereto are
set aside.  Let the said decision be
immediately served on the counsel of the petitioners.

SO ORDERED.

Makasiar, Guerrero, and
Melencio-Herrera, JJ., concur.

Teehankee, J., (Chairman), in
the result.

^[1]
Rollo, p. 7.

^[2]
Rollo, pp. 3-6.

^[3]
Rollo, p. 39.

^[4]
Rollo, pp. 15-20.

^[5]
Rollo, pp. 16-17.