FLAVIANO ROMERO, PETITIONER, VS. POTENCIANO PECSON, AS PRESIDING JUDGE OF SALA NO. VI OF THE COURT OF FIRST INSTANCE OF MANILA, MACARIO OFILADA, AS SHERIFF OF THE CITY OF MANILA…

This is a special civil action of certiorari instituted by the
petitioner against Judge Pecson of the Court of First Instance of Manila, et
al., on the ground that the respondent judge acted with grave abuse of
discretion in ordering under section 2 of Rule 59, the execution of the judgment
of the Court of First Instance in the civil case No. 3280, which sentenced the
petitioner to pay Dolores P. de Espedido the monthly rental of P150 a month from
February, 1947 to April, 1948, and to vacate the premises in an action of
forcible entry and illegal detainer.

According to Exhibit A of the petition or complaint, which is a
copy of the judgment of the Court of First Instance in the civil case No. 3280
of forcible entry and illegal detainer, the petitioner was sentenced by the
Municipal Court of Manila to pay the monthly rental of P120 and to vacate the
premises. He appealed from the decision, but as he did not file a supersedeas
bond nor made a deposit with the Municipal Court of the rentals in arrears since
the month from February, 1947, he was ordered to vacate, and the petitioner
vacated, the leased premises on April 21, 1947, on a writ of execution. On
appeal the respondent judge rendered a judgment sentencing the petitioner to pay
to the respondent Dolores P. de Espedido a monthly rental of P150 from February,
1947, to April 21, 1948, and to vacate the premises. The petitioner appealed
from said decision.

The respondent Espedido moved for the execution of the judgment
of the Court of First Instance and the latter granted the petition on the ground
that the defendant appellant had failed to pay the monthly rental neither had he
filed a supersedeas bond or deposited the rental in arrears with the Clerk of
the Court, and that the appeal interposed by the petitioner is a dilatory tactic
which constitutes a great drawback to the administration of justice.

The petitioner alleges that the order of execution was issued
with grave abuse of discretion, because the petitioner had already perfected his
appeal and the order of execution did not contain any special reason except that
the petitioner had not filed a supersedeas bond in the inferior court and the
appeal was a dilatory tactic, and there was no need for the filing of said
supersedeas bond since the petitioner, who is a party defendant in said case,
was no longer occupying the premises therein involved.

The petitioner’s contention is untenable. The order of
execution was issued under section 9, Rule 72, end not under section 2, Rule 39
of the Rules of Court. Under the provision of said section 9, the decision of
the Court of First Instance on appeal from a judgment of the inferior, court in
an action of forcible entry and illegal detainer, shall not be stayed unless the
appellant pays either to the plaintiff or into the appellate court the amounts
referred to in section 8 of the same Rule. The petitioner having failed to pay,
either to the plaintiff respondent Espedido, or to the Clerk of the Court of
First Instance or appellate court, the rents for the months, from February to
April 21, 1948, determined by the judgment of the respondent judge or to file a
supersedeas bond to secure the payment of the rent in arrears determined by the
municipal court, and for that reason the decision of the inferior court was
executed, the judgment of the Court of First Instance shall not be stayed by the
appeal therefrom taken by the petitioner. Therefore, the respondent judge acted,
not with grave abuse of discretion, but in accordance with law in ordering the
execution of the judgment, because the execution of the judgment is not only for
the restoration of the possession of the premises leased but also for the
payment of the rents due and payable as determined by said judgment.

The original provision of section 88 of Act No. 190 provided
that appeal by the defendant from the judgment of the justice of the peace in
forcible entry and illegal detainer to the Court of First Instance, shall not be
allowed unless the defendant files an obligation with sufficient sureties to
answer for the rents already accrued and to become due from time to time down to
the time of the final judgment in the action, and that if no such obligation
were filed the appaal would not become perfected and the judgment shall be
executed. Said section was amended by Act No. 1778 so as to provide that the
appeal shall not be allowed if the defendant appellant did not file an
obligation with sufficient sureties to answer for the rents, damages, and costs,
and after it had been allowed it shall be dismissed, upon motion of the
plaintiff, should the appellant fail to pay during the pendency of the appeal to
the plaintiff or into the court the amount of rents or damages which is the
reasonable value of the use and occupation of the premises due from time to time
during the pendency of the appeal; and “the dismissal of the appeal shall revive
the judgment of the justice of the peace, which judgment may be enforced by
execution as though no appeal has been taken.”

Subsequently Acts 2588 and 4115 amended said section 88 by
providing that if, during the pendency of the appeal the defendant-appellant
fails to pay the plaintiff or into court the amount of rents or damages due from
time to time, the court shall not dismiss the appeal and this may proceed, but
order the execution of the judgment of the inferior court relative to the
possession of the property in litigation; and that “in any case wherein it
appears that the defendant has been deprived of the lawful possession of land
and a building pending the appeal by virtue of the execution of the judgment of
the justice of the peace, damages for such deprivation of possession may be
allowed the defendant in the judgment of the Court of First Instance disposing
of the appeal.”

The above quoted provisions of section 88 of Act No. 190, as
amended by Acts Nos. 2558 and 4115, were incorporated in section 8 of Rule 78 of
the Rules of Court, with the amendment, which the Supreme Court has the power to
make, for it is a matter of procedure, that should the defendant appellant fail
to make the payments of rents or reasonable value for the use and occupation of
the premises from time to time, the court shall order the execution of the
judgment appealed, without any limitation or qualification, that is, not only
relative to the possession of the property in litigation but also the rents or
damages due from the defendant to the plaintiff if there is any adjudged in the
judgment, as if no appeal has been taken. Because under the provisions of said
section 8, the stay of the immediate execution of the judgment of the inferior
court is conditioned, not only upon the filing of a supersedeas bond, but upon
the periodical payment to the plaintiff, or into the court of the rents or
damages due from time to time; while under section 88 of Act 190, as amended by
Act 2588 aid incorporated in Act No. 4115, the execution of the judgment after
its rendition is stayed by the filing of a supersedeas bond; and during the
pendency of the appeal, the stay of the execution of the judgment relative to
the possession of the property in litigation is conditioned upon the payment
to the plaintiff or into the court of the rents or damages due from time to
time, and if no such payment is made the judgment relative to possession shall
be executed. The provision of section 8 of Rule 72 adopts substantially those of
section 88 of Act No. 190, as amended by section 1778, except that, instead of
providing for the dismissal of the appeal and execution of the judgment as if no
appeal has been taken according to Act 1778, it provides for the execution of
the judgment and not for the dismissal of the appeal.

The provision of section 9 of Rule 72 which requires, as the
only condition for staying the execution of the judgment of the Court of First
Instance, that the defendant appellant shall pay, during the pendency of the
appeal, to the plaintiff or into the court the rents or the reasonable value of
the use and occupation of the premises as found by the Court of First Instance,
is predicated on the assumption that a supersedeas bond or obligation to answer
for the rents and damages determined by the inferior court has been filed and
the required payments of rents or damages due from time to time has been made
during the pendency of the appeal, as it is generally the case. But if no
supersedeas bond had been filed with the inferior court or the rents or damages
determined by the inferior court until the judgment of the Court of First
Instance had not been paid, the defendant appellant must file a supersedeas bond
to secure the payment of all the back rents or damages determined by the Court
of First Instance, and also make the payments above referred to in said section
9 in order to stay the execution of the judgment of the Court of First Instance.
Otherwise, the defendant, by appealing, may continue in possession of the
premises without paying or giving any guarantee or security for the payment of
the rents or damages due and unpaid up to the rendition of the final judgment of
the appellate court, contrary to the rationale of the law relative to execution
of the judgment in forcible entry and illegal detainer.

Therefore, the petition of certiorari is dismissed. So
ordered.

Moran, C.J., Pablo, Perfecto, Bengzon, Briones, Tuason,
Montemayor, and Reyes, JJ., concur.

Paras, J., I concur in the result. Failure to file a supersedeas bond or
to make a deposit in lieu thereof, made or rendered the original decision
executory.