file:cvpro_part-1_ix.htm

9.  EXECUTION OF
JUDGMENTS AND FINAL ORDERS (Rule 39)

1.  Basic Concepts and
Doctrines

1. Execution is a legal remedy
for the enforcement of a judgment.239

2.  Kinds of Execution

There are two (2) kinds of execution:
discretionary execution and ministerial execution. Discretionary execution,
which is also called execution pending appeal, is the execution of a judgment
or final order before it attains finality. The court which rendered the
decision can grant an execution pending appeal if it still retains jurisdiction
over the case and is in possession of the records at the time of the filing of
the motion; otherwise, the motion shall be acted upon by the appellate court.240 To be valid, there should be a good
reason to justify the execution of the judgment pending appeal, the same to be
stated in the order granting it.241

On the other hand, execution as a matter of right
or ministerial execution is execution of a final judgment or final order which
has attained finality. When a judgment or order has become final, the court
cannot refuse to issue a writ of execution except:

(1) When subsequent facts and
circumstances transpire which render such execution unjust, or impossible, such
as a supervening cause like the act of the Commissioner of Civil Service
finding the plaintiff administratively guilty and which constituted a bar to
his reinstatement as ordered by the trial court in a civil case;242 or where the defendant bank was placed
under receivership;243

(2) On equitable grounds, as
when there has been a change in the situation of the parties which makes
execution inequitable;244

(3) Where the judgment has
been novated by the parties;245

(4) When a petition for relief
or an action to enjoin the judgment is filed and a preliminary injunction is
prayed for and granted;246

(5) Where the judgment has
become dormant, the five (5) year period under Rule 39, Section 6 having
expired without the judgment having been revived;247
or

(6) Where the judgment turns
out to be incomplete248
or is conditional149
since, as a matter of law, such judgment cannot become final.

3. When writ of
execution may be quashed

(1) when it was improvidently
issued;

(2) when it is defective in
substance;

(3) when it is issued against
the wrong party;

(4) where the judgment was
already satisfied;

(5) when it was issued without
authority;

(6) when a change in the
situation of the parties renders execution inequitable; and

(7) when the controversy was
never validly submitted to the court.250

4.  Execution of
final judgments and orders

There are two (2) ways of securing execution of
final judgments and orders: execution by motion and execution by action.
Execution by motion is an execution obtained through a motion for execution
filed within five (5) years from the date of its entry.251 Execution by action is obtained through
the substitution of an action to enforce a judgment or order after the lapse of
five (5) years from its entry and before it is barred by the statute of
limitations.252

5. Specific
Rules

1. Execution of judgment can only be issued
against a party to the action253
and their privies who are those between whom an action is deemed binding
although they are not literally parties to the said action254 or to an intervenor.255

2. A judgment becomes final and executory by
operation of law, not by judicial declaration. The prevailing party is entitled
as a matter of right to a writ of execution, and the issuance thereof is a
ministerial duty and compellable by mandamus.256 There must, however, be a motion.257

3. Rule on execution in case of the death of a
party

If the judgment debtor dies after entry of
judgment, execution depends upon the nature of the judgment. Thus: (a) For
recovery of real or personal property or the enforcement of a lien
thereon, execution may be done against executor, administrator or
successor-in-interest; (b) For money judgments, the judgment should be
presented as claim for payment against the estate in a special proceeding. Such
a claim need no longer be proved, since the judgment itself is conclusive.258

4. When the property subject of the execution
contains improvements constructed or planted by the judgment debtor or his
agent, the officer shall not destroy, demolish or remove said improvements
except upon special order of the court, issued upon petition of the judgment
creditor after due hearing and after the former has failed to remove the same
within a reasonable time fixed by the court.259

The special order of demolition may be granted
only upon petition of the plaintiff after due hearing, and upon the defeated
party’s failure to remove the improvements, within reasonable time given him by
the court.260

The notice required before demolition of the improvements
on the property subject of the execution is notice to the judgment debtor, and
not to a stranger or third party to the case.261
The order of demolition is not appealable.262

The sheriff and the issuing party should carry
out the demolition of the improvement of the defeated party on the premises in
dispute in a manner consistent with justice and good faith.263

Where the premises was padlocked and no one was
therein at the time execution was carried into effect, there was no need for
the sheriffs and the plaintiff to secure a ‘break-open’ order inasmuch as the
character of the writ in their hands authorized them to break open the said
premises if they could not otherwise execute its command.264

6.  Levy and Garnishment

Levy is the seizure of property, personal and/or
real, belonging to the judgment debtor for subsequent execution sale to satisfy
judgment. Garnishment is the process of notifying a third person called the
garnishee to retain and attach the property he has in his possession or under his
control belonging to the judgment debtor, to make disclosure to the court
concerning the same, and to dispose of the same as the court shall direct to
satisfy the judgment.265

1.  Decisional Rules on
Levy

1.1 A valid levy is essential to
the validity of an execution sale, and levy is invalid if the notice of levy of
real property is not filed with the office of the register of deeds, the
purpose of which is to notify third parties who may be affected in their
dealings with respect to such property.266
Where a parcel of land levied upon execution is occupied by a party other than
a judgment debtor, the procedure is for the court to order a hearing to
determine the nature of said adverse possession.267

1.2 To effect a levy upon real
property, the sheriff is required to do two specific things:

(a) file
with the register of deeds, a copy of the order and description of the attached
property and notice of attachment; and

(b) leave
with the occupant of the property a copy of the same order, description and
notice.268

Note that notice to the owner
who is not the occupant does not constitute compliance with the statute.269

1.3 Real property, stocks,
shares, debts, credits and other personal property, may be levied on in like
manner and with like effect as under a writ of attachment.270

1.4 The levy on execution
shall create a lien in favor of the judgment creditor over the right, title and
interest of the judgment debtor in such property at the time of the levy,
subject to liens and encumbrances then existing.271

1.5 Levy or attachment over
properties themselves is superior than levy on the vendor’s equity of
redemption over said properties.272

2 Decisional Rules on
Garnishment

2.1 The garnishment of
property to satisfy a writ of execution operates as an attachment and fastens
upon the property a lien by which the property is brought under the
jurisdiction of the court issuing the writ. It is brought into custodia
legis, under the sole control of such court.273
It is also known as attachment execution.

2.2 Money judgments are
enforceable only against property unquestionably belonging to the judgment
debtor. One man’s goods shall not be sold for another man’s debts, as the
saying goes.274

2.3 The prohibition against
examination or an inquiry into a bank deposit under Rep. Act No. 1405 does not
preclude its being garnished to insure satisfaction of judgment.275

2.4
Government-owned-and-controlled corporations have a personality of their own,
separate and distinct from the government; their funds, therefore, although
considered to be public in character, are not exempt from garnishment.276

7. Rules on
redemption

1. Who may redeem

1.1 Judgment debtor;

1.2 Successor-in-interest such
as a person to whom the debtor has conveyed his interest in the property; person
to whom a statutory right of redemption has been transferred; person who
succeeds to the interest of the debtor by operation of law; one or more joint
owners of the property; wife as regards her husband’s homestead; and attorney
who agreed to divide the property in litigation;277
and

1.3 Redemptioner, which is a
creditor having a lien by virtue of an attachment, judgment or mortgage on the
property sold, or on some part thereof, subsequent to the lien under which the
property was sold.278

2.  Amounts to be paid in case of redemption

2.1 Purchase price with 1% per
month interest;

2.2 Assessments or taxes paid
with 1% interest:

2.3 Amount of prior lien if
also a creditor having a prior lien to that of redemption other than the
judgment under which purchase was made with interest. Note that the foregoing
does not apply if the one who redeems is the judgment debtor unless he redeems
from a redemptioner in which case, he must make the same payments as
redemptioner.279

8. Rules
in deed of possession

1. After the deed of sale has been executed, the
vendee therein is entitled to a writ of possession but the same shall issue
only where it is the judgment debtor or his successors-in-interest who are in
possession of the premises. Where the land is occupied by a third party, the
court should order a hearing to determine the nature of his adverse possession.280 The writ shall issue when the period of
redemption has expired.

2. A writ of possession may be issued only in a
land registration proceeding, in extrajudicial foreclosure of a real estate
mortgage and in judicial foreclosure if the debtor is in possession and no
third person, not a party to the suit, had intervened.281 It has been held, however, that a writ
of possession is a complement of the writ of execution. Hence, if under a final
judgment the prevailing party acquires absolute ownership over the real
property involved, the writ may be issued for him to obtain possession without
the need of filing a separate action against the possessor.282 A writ of possession may also be sought
from and issued by the court unless a third party is holding the property
adversely to the judgment debtor.283