HONORIA LAO AND PRIMITIVO LAO, PETITIONERS, VS. HON. JUDGE EULOGIO MENCIAS, OF THE COURT OF FIRST INSTANCE OF RIZAL, AND LINO VICTORINO, LETICIA PIKE, FRANCISCA VDA. DE PIKE, NO…

In this petition for certiorari, the issuance of a writ of execution pending appeal, primarily on the allegation that the motion
on which it was based “was not sworn to and no affidavit was attached to substantiate the factual
allegations” contained therein, is sought to be quashed and set aside on
the ground that respondent Court acted with grave abuse of discretion.

In
the petition dated September 18, 1964, it was alleged and admitted that
petitioners were defendants in a complaint for rescission of contract and
damages with attachment filed with the respondent Judge, the Hon. Eulogio Mencias, the other respondents namely, Lino Victorino, Leticia Pike, Francisca Vda. de Pike, Norma
Pike, Agatona Natividad and
Felisa Lakambakal, being
the plaintiffs, the complaint being filed on May 4, 1963, and the answer on August 10,
1963.^[1] It was then alleged
that on February 28, 1964, respondent Judge
conducted a hearing without sending the notice of hearing to the counsel
of defendants then, now petitioners, who were thus deprived of their day in
court.^[2]
The answer of respondents dated October 16, 1964 denied the truth of the above assertion with allegation that respondent
Judge did not hear the case on February 28, 1964,
until after he was informed by a deputy clerk that notice of such trial to
petitioners were sent as early as October 15, 1963.  Parenthetically it may be observed that this
issue, the pertinence of which is not so apparent in this petition for
certiorari being more connected with the case on the merits, apparently
has been abandoned in the memorandum of petitioners dated January 25, 1965, as noted
by respondents in their reply memorandum of
February 8, 1965.

The petition for certiorari went on to state that the decision
was rendered by respondent Judge on March 5, 1964, that petitioners as
defendants filed a motion to set aside
and for new trial dated March 9,
1964, and that on July 21, 1964, the other respondents, plaintiffs in that case, filed an unverified motion for
issuance of a writ of execution before the
decision was final and executory.^[3] The above paragraphs are admitted by
respondents with the modification that an opposition to petitioners’ motion to set
aside decision and for new trial was filed and that their motion for
writ of execution which was set for hearing on August 8, 1964 was not opposed by counsel for petitioners.

The contention as to why the writ of execution was improvidently
issued is based primarily on the ground that “the motion for execution was
not sworn to and no affidavit was attached to substantiate the factual allegations therein contained.”  Nor “was any evidence presented
by the movants during the hearing of said motion conducted by the respondent court.” It was further argued that it
“failed to state good and adequate reasons to justify the issuance of the
writ prayed for; that no evidence was introduced in support of the factual allegations
of said motion; that a writ of execution would disturb the status quo
and cause irreparable damage and injury to the petitioner.”^[4]

The denial of the above allegation by respondents was predicated
on the provision of Rule 39 of the Rules of Court which “does not require that a motion for writ of execution pending appeal
should be under oath much less supported by any affidavit.”  It would
suffice, according to respondents that there be “good and special
reasons for the issuance of a writ of execution
which was done in the instant case on the basis of the very evidence presented and submitted
by [them] which became the basis of the decision * * *.”^[5]

On September 28, 1964,
this Court gave due course to the petition for certiorari and issued a writ of
preliminary injunction.

The motion for the issuance of a writ of execution filed by the
other respondents with the respondent Judge stated the following:  “That a Decision was rendered by this Honorable Court in the above-entitled case dated
March 5, 1964 against [petitioners as] defendants in favor of [the other respondents
as] plaintiffs; that [petitioners as] defendants filed a ‘Motion To Set Aside
Decision And For New Trial dated March 9, 1964 but the same was denied
by this Honorable Court; that the property in question owned by [petitioners
as] defendants was encumbered and the obli­gations thereof have not been
settled; that [petitioners as] defendants have been exhausting for their
personal use all the monthly installments being received by them from the sales
of the different lots of the Fatima Subdivision in question and they have not
constructed therein the improve­ments required by law like the construction of
roads, gutters, * * *; that the said [petitioners as] defendants do
not appear to
have any other properties or assets to answer not only for the aforementioned
obligations but more particularly for the obligations imposed upon them by the aforecited Decision of this Honorable Court in favor of
[respondents as]  plaintiffs and that
[they] will be deprived of the right to collect the amounts due to them if this
case will drag for several years by the appeal of [petitioners as] defendants to the superior courts
for by that time all [their] remaining assets
with the said subdivision would have been completely exhausted; that by virtue
of the foregoing special reasons although the period for appeal of the
aforementioned decision has not yet expired yet this Honorable Court may issue a
writ of
execution pending appeal pursuant to Sec. 2, Rule 39 of the Rules of Court;
that a writ of execution is necessary to be issued as
soon as
possible so that the remaining rights of [petitioners as] defendants to the
Fatima Subdivision in question may be accordingly levied upon by the [other
respondents as] plaintiffs to answer for their obligations * * * pursuant
to the aforecited decision, which obligations
represented payments made to [petitioners as] defendants for several lots which the [other respondents as] plaintiffs purchased from
them from the above-described subdivision.”^[6] The prayer was for a writ
of execution to be issued pursuant to Section 2 of Rule 39 to enforce the decision of March 5, 1964 pending
its appeal.

As
noted in the answer of
respondents, the aforesaid motion for
writ of execution “was not objected to or opposed by the defendants
therein, who are now the petitioners * * *.” Moreover, it was likewise asserted in such answer that pe­titioners
“did not file in the lower court any motion for the reconsideration
of the Order of Execution * * *.” There
was no denial of such an assertion by petitioners.  It should not be lost sight of either, that
neither in the petition nor in the memorandum of petitioners is there any
showing that the facts alleged in the motion for execution
were lacking in truth.  The record is barren
of any attempt to refute the allegations therein
contained.

Instead, the main thrust
of petitioners’ attack is centered
on the fact that the motion for the issuance of the writ of execution filed by
the other respondents was “unverified.”  There is no such requirement under the Rules
of Court.  A motion of the prevailing
party with notice to the adverse party allows the Court to “order
execution to issue even before the expiration of the time to appeal, upon good
reasons to be stated in a special order.”^[7] According to the late Chief Justice Moran,
“in order that discretionary execution may issue before the expiration of
the time to appeal the following three circumstances must be present:  (a) there must be a motion by the
prevailing party with notice to the adverse party; (b) there must be good
reasons for issuing execution and (c) that the good reasons be stated in a
special order.”^[8]

All such requisites being present, this petition must fail.  That the action of respondent Judge could not
correctly be characterized as a grave abuse of discretion is obvious as it
finds direct support in the applicable legal provision.  What he did was in accordance with procedural
principles.  Astraquillo
v. Javier,^[9]
is not without relevance.  As stated in
the opinion of this Court, thru Justice J. B. L. Reyes.  “It is not disputed that respondents Javier filed their motion for
execution pending appeal in the trial court before petitioners Astraquillos perfected their appeal, and averred the insol­vency
of the latter as the special and good reason
for such execution specifying and citing the facts appearing in the
records of the case upon which such claim is based.  Respondent trial judge, in granting the
motion, seemed to have been satisfied that the evidence already submitted did
warrant such execution pending appeal. 
This finding was confirmed by the Court of Appeals in its disputed
resolution.” From which inevitably flowed the conclusion.  “Under the circums­tances prevailing in
the case at bar, we are constrained not to disturb the disputed ruling of the
Court of Appeals.”

At the very least then, it could likewise be well and truly said
that this Court is “constrained not to disturb” the challenged
actuation of respondent Judge in granting the motion for the issuance of an
execution pending appeal.  There may be
cases where undoubtedly such a discretion
vested in the lower court must
be interfered with.  This is not one of
them.  To repeat, the petition must fail.

WHEREFORE, this petition for certiorari is denied and the
preliminary injunction dissolved.  With
costs against petitioners.

Dizon, Acting C.J., Makalintal, Bengzon, Zaldivar, Sanchez, Castro and
Angeles JJ., concur.

Concepcion, C.J., and Reyes J.B.L., J., are on official leave.

^[1]
Pars. 1 to 4, Petition.

^[2]
Pars. 5 and 6, Petition.

^[3] Pars.
7, 8 and 9, Petition.

^[4]
Par. 10, Petition.

^[5]
Par. 5, Answer.

^[6]
Pars. 1 to 7, Motion for
Issuance of Writ of Execution.

^[7]
Section 2, Rule 39.

^[8]
II Moran, Comments on the Rules of Court, 1963 ed., at p. 238.

^[9]
L-20034, January 30, 1965.