GASPAR M. LLAMAS, PETITIONER, VS. HONORABLE SEGUNDO MOSCOSO AS JUDGE OF THE COURT OF FIRST INSTANCE OF LEYTE, RUFO RAGA, AS ACTING PROVINCIAL SHERIFF OF LEYTE, AND CIRIACO ENRIQ…

This is a petition for certiorari to annul an order for execution
and subsequent processes for its implementation. It appears that on
February 1, 1948, the herein respondent Ciriaco Enriquez, in his
capacity as judicial administrator of the estate of his deceased wife,
Manuela Dioso, which was then the subject of an intestate proceeding in
the Court of First Instance of Leyte, leased to the herein petitioner
Gaspar M. Llamas two parcels of land known as Lots Nos. 56 and 57 of
the Cadastral Survey of Tacloban and covered by Original Certificates
of Title Nos. 381 and 455, respectively, of the land records of that
province, issued in the name of the spouses. The lease had the approval
of the court and was recorded in the Registry of Deeds. According to
its terms, it was to run for a period of ten years from April 1, 1948,
at a monthly rental of P300 and the lessee could construct on the
leased premises such buildings and other improvements as he might deem
proper, provided that they were to become the property of the lessor
upon the expiration or earlier termination of the lease. The lessee was
not an heir to the estate in administration, though his wife
Encarnacion Enriquez was, being one of the children of the deceased.

A few months after the lease was entered into, Ciriaco Enriquez, his
co-administrator Panfilo Enriquez, and the rest of the heirs of the
deceased submitted for the approval of the court a project of partial
partition, allocating various portions of the estate to different heirs
with the proviso “that the heirs shall continue occupying the premises
of the estate they are presently using until the termination of these
proceedings.” Among the portions allocated were those covered by the
lease, namely, lots No. 56 and No. 57 of the Tacloban Cadastre, the
first of which was assigned to Ciriaco Enriquez and the second, to
Encarnacion Enriquez, wife of the lessee. Acting on the petition, the
court, under dated of July 19, 1948, handed down an order approving the
partial partition and stating that it was “to become effective as of
August 1, 1948, on which date the respective parties will take
possession of the premises or estate ceded to them with all the
corresponding rights and privileges of ownership.”

After the issuance of the above order of Ciriaco Enriquez, in his
capacity as administrator of the estate, filed a petition in the
intestate proceedings asking for the rescission of the lease in
question for various reasons, alleging, among other things, that by
virtue of the said order he had become the owner of lot 56 and entitled
to the possession thereof and that the lease had been breached by
lessee’s failure to pay rents. In a subsequent petition he also asked
for a writ of preliminary injunction restraining the lessee from
collecting rents from the occupants of the leased property and
authorizing petitioner instead to collect those rents. But the court
denied both motions, holding that the rescission of the lease should be
the subject of a separate action by Ciriaco Enriquez in his own behalf
and not as an administrator of the estate.

As a consequence of the above order, Ciriaco Enriquez filed an
ordinary civil action against the lessee Gaspar M. Llamas praying that
the lease in question be declared cancelled and terminated and Llamas
ousted from the leased premises, alleging as a ground for his action
that, as sole and absolute owner of lot 56 by virtue of the decree of
partial partition plaintiff had the right to terminate the lease, or in
the alternative, to receive the rents corresponding to said lot, but
that defendant had failed to pay those rents and had also refused to
vacate the premises. With this action still pending, Ciriaco Enriquez
filed a motion in the intestate proceeding calling attention to that
part of the order approving the partial partition which says that “on
August 1, 1948, the respective parties will take possession of the
premises or estate ceded to them with all the corresponding rights and
privileges of ownership” and praying for the issuance of a writ of
executive to enforce the said part of the order by commanding the
sheriff to place movant in possession of lot 56 and ejecting therefrom
Llamas and his wife. These two opposed the motion, calling attention to
the existence of the lease in favor of Llamas and the pendency of the
civil action for its cancellation, and, in effect, objecting to the
jurisdiction of the probate court by alleging that the question of
whether or not the order approving the partial partition had the effect
of terminating the lease of lot 56 in favor of Llamas came within the
competence of the court in the exercise of its ordinary jurisdiction as
a Court of First Instance but was not cognizable by it as a probate
court. Notwithstanding this objection, the court ordered the writ to
issue, and in compliance therewith the sheriff placed Ciriaco Enriquez
in possession of lot 56 and gave notice thereof to the tenants of the
building which the lessee had constructed on said lot. An attempt was
made to have the Court of Appeals enjoin the enforcement of the writ,
but the petition for that purpose was denied by said court on the
ground that the same was filed after what was sought to be prevented
had already been totally accomplished.

On January 8, 1954, the court, upon complaint of Ciriaco Enriquez,
issued an order warning Llamas and his wife and the occupants of the
building in question not to interfere with complainant’s possession of
said building on pain of being punished for contempt, and in a later
order dated January 16, 1954, the court further decreed that Llamas and
his wife must immediately vacate the lot and building in favor of
Ciriaco Enriquez, with warning that should the occupants of the
building continue paying rentals to them, it would send them and the
said occupants to jail for contempt of court.

The present petition asks for the annulment of the order for
execution and the subsequent orders for its implementation on the
grounds that all of the said orders were issued in excess of
jurisdiction and with grave abuse of discretion.

After going over the record and hearing the parties in oral
argument, we have come to the conclusion that the petition should be
granted. It is obvious that the orders complained of have the effect of
depriving the lessee of his rights under the lease without the lease
having been terminated or annulled as the civil case instituted for
that purpose was still pending in court. The contention that the lease
on lot 56 must be deemed terminated by the order approving the project
of preliminary partition which allocated the said lot to Ciriaco
Enriquez and authorized him to take possession thereof from August 1,
1948 “with all the corresponding rights and privileges of ownership,”
is without merit, for the lessee was not a party to that partition and
the court cannot, without any legal ground and without proper
proceedings for the purpose, annul the lease. The allegation that the
lease has been breached and should therefore be declared terminated, is
a question that must be ventilated in the pending civil action for that
purpose as the same is not within the competence of the court in the
exercise of ite probate jurisdiction.

Likewise, the defense of res adjudicata predicated on the
decision of the Court of Appeals denying a petition for injunction to
prevent the writ of execution from having carried, cannot be sustained.
For it is obvious from the said decision that if the injunction was
denied, it was because the writ of execution had already been carried
out when the petition was filed. The decision did not pass upon the
legality of the writ.

As an act done in excess of its jurisdiction as a probate court, the
lower court’s order for execution may be corrected by certiorari.

Wherefore, the petition for certiorari is granted and the orders
complained of and the acts done thereunder are annulled, with costs
against the respondent Ciriaco Enriquez.

Paras, C. J., Pablo, Bengzon, Padilla, Montemayor, Jugo, Bautista Angelo, Labrador, Concepcion and Reyes, J. B. L., JJ., concur.