PHILIPPINE NATIONAL BANK, PLAINTIFF-APPELLANT, VS. PACIFIC COMMISSION HOUSE, DEFENDANT-APPELLEE.

On 3 February 1953 the Philippine
National Bank obtained a judgment in the Court of First Instance of Manila in
Civil Case No. 14799, entitled “Philippine National Bank, plaintiff, vs.
The Pacific Commission House, defendant.” The judgment reads as follows:

“1.  Under the first cause
of action, defendant Pacific Commission House is hereby ordered to pay plain­tiff
Philippine National Bank the sum of three thousand twenty-two peso and
forty-two centavos (P3,022.42), with legal interest on P2,313.77 from June 21, 1949 full payment thereof;

“2.  Under
the second cause of action, defendant Pacific Commission House is hereby
ordered to pay plain­tiff Philippine National Bank the sum of ten thousand
three hundred forty-five pesos and thirty-one centavos (P10,345.31), with legal
interest on P8,335.59 from June 21, 1949 until the date of full payment
thereof; and

“3.  Under
the third cause of action, defendant Pacific Commission House is hereby ordered
to pay plaintiff Philip­pine National Bank the sum of twelve thousand seven
hundred eighty-one pesos and fifteen centavos (P12,781.15) with legal interest
on P9,893.31 from June 21, 1949
until the date of full payment thereof.

Costs against defendant.”

On 31 May
1963 the Philippine
National Bank filed a complaint against the same defendant for the revival of
said judgment and for the recovery of the sums adjudged therein, with interest,
attorney’s fees and costs.  For failure to answer after due service of summons the defendant
was declared in default and the case was set for hearing for the reception of
the evidence for the plaintiff. 
On 3 January 1964 the trial court rendered the following decision:

“This is an action to revive a judg­ment rendered by the Court of
First Instance of Manila on February 3, 1953 in Civil Case No. 14799 in favor of
the herein plaintiff and against the defend­ant.

It is patent from the stamp appearing on the first page of the
complaint that the complaint was actually filed on May 31, 1963 although it was dated March 1, 1963.  It is not true, therefore, that this action
was filed less than ten years after entry of the original judgment.

During the presentation of the evidence by the plaintiff, it did
not introduce any evidence as to the date of the entry of the judg­ment.  The Court cannot presume that the date of the
entry is with­in ten years prior to the date the complaint herein was actually
filed.

WHEREFORE, the complaint is
dismissed without costs.

The plaintiff moved to reconsider, and upon denial of the motion
perfected the present appeal.  The
principal issue posed by the appellant is whether or not the Court motu proprio may
properly consider the defense of prescrip­tion of action notwithstanding the
defendant’s failure to raise the same, not having appeared in the case nor
filed an answer to the complaint.  The
appellant’s negative sub­mission on the issue is based on Rule 9, Section 2,
that “defenses and objections not pleaded either in a motion to dismiss or
in the answer are deemed
waived,” the exceptions being failure to state a cause of action or lack
of juris­diction over
the subject-matter, the first of which, according to the same rule, may be
alleged in a later pleading, if one is permitted, or by motion for judgment on
the pleadings, or at the trial on the merits; and the second imposes upon the
court the duty to dismiss the action whenever such lack of jurisdiction
appears.

However, the fact that the plaintiff’s own allegation in the complaint or
the evidence it presented shows clearly that the action had prescribed removes
this case from the rule regarding waiver of the defense by failure to plead the
same.  Thus in Philippine
National Bank vs. Amando Perez, et al., G. R. No.
L-20412, Feb. 28, 1966,
where the defendants were similarly declared in default and where it was
disclosed by the plaintiff’s own evidence that the action for revival of the judgment was filed more than
ten years after it became final, this Court held:

“It is true that the
defense of prescription can only be considered if the same is invoked
as such in the answer of the defendant and in this particular case no such
defense was invoked because the defendant had been declared in default, but
such rule does not obtain when the evidence shows that the cause of action upon
which plaintiff’s complaint is based is already barred by the statute of
limitations.”

A clearer exposition of the point is found in the decision of this Court penned by Justice, later
Chief Justice, Cesar Bengzon in Chua Lamko vs. Dioso et al., 97 Phil.
521.  It is there stated:

“It is true that if the defense of prescription is not raised
in the answer it is deemed waived under Rule 9, Secs.
9, 10 of the Rules of Court.  But the waiver applies to defenses of
prescription that would raise issues of fact not appearing upon the pre­ceding
pleading.”

“The defendant may set forth by answer as many affirmative
defenses as he may have.  All such
grounds of defense as would raise issues of fact not arising upon the preceding
pleading must be especially pleaded, including fraud, statute of limita­tions,
release, payment, illegality, statute of frauds, estoppel,
former recovery, discharge in bankruptcy, and all other matter by way of
confession and avoidance.” (Sec. 9, Rule 9.)

“The plaintiffs were not required to specifically plead
prescription, because the pleading of Chua Lamko dis­closed
that the judgment had been ren­dered in March 7, 1939 and it was asserted only in March, 1950; i.e.,
more than ten years before.  No issue of
fact was involved by their claim of prescrip­tion; these two dates were not
denied.  Therefore their failure to plead
it did not constitute waiver.”

In the present case, as
in the one just cited, there is no issue of fact involved in connection with
the question of prescription.  The
judgment sought to be revived was rendered on 3 February 1953 and the action to revive it was filed on 31 May
1963.  Furthermore, the appellant does not deny the
categorical finding in the decision of the Court a quo that the
ten-year period had expired.

The other argument of the
appellant is that the appellee
made a partial payment on the judgment debt on 29 September 1954, thereby
interrupting the prescriptive period, invoking Article 1155 of the Civil Code,
which provides that “the prescription of actions is interrupted when they
are filed before the court, when there is a written extrajudicial demand by the
creditor, and when there is an written acknowledgment of the debt by the debtor.” Payment interrupts prescription
because it amounts to an acknowledgment of the debt (Veloso
et al., vs. Fontañosa, et al., 13 Phil. 79).  This reason however, obviously does not apply
where the debt has been confirmed by final judgment, since acknowledgment by
the debtor would not render the adjudication any stronger or more
efficacious.  In
Philippine National Bank vs. Osete, et al., G. R. No.
L-24997, 18 July 1968, this Court, speaking through Chief Justice
Roberto Concepcion, said:

“Under this provision (ART. 1155,
Civil Code) not all acts of acknowledgment of a debt interrupt,
prescription.  To produce such effect,
the acknowledgment must be “written,” so that payment, if not coupled
with a communication signed by
the payor, would not interrupt the running of
the period of prescription.

Moreover, the lower court expressed the view that said “Art.
1155 of the New Civil Code
refers to the tolling of the period of prescription of the action to collect,
not to the action to enforce” or revive – a “judgment.”
Understandably, either an “extrajudicial demand” by the creditor or an
“acknowledgment of the debt” may interrupt the prescription of the
action to collect, not based upon a judg­ment, since the demand indicates that
the creditor has not slept on his rights – and removes the basis of the
statute of limitation of actions – but, was vigi­lant in the enforcement
thereof, whereas an acknowledgment by the debtor provides a tangible evidence
of the existence and validity of the debt. 
Who would, however, make an “extrajudicial demand” for the
payment of a judgment, when the same may be enforced by a writ of execution?  And, how could an acknowledgment or partial
payment affect the rights of a creditor, when the same are based, no longer
upon his contract with the debtor or upon law, but upon no less than a
judicial decree, which is final and executory?”

Even under the Code of Civil Procedure, Act No. 190, a
distinction was made between a debt based on contract and one already confirmed
by judgment insofar as the effect of acknowledgment was concerned.  Under Section 43 thereof an action upon a
contract or upon a judgment prescribed in ten years; but under Section 50 the
renovating effect of payment or of a written acknowledgment of the debt is
limited to the first kind of action, thus: 
“when payment has been made upon any demand founded upon
contract, or a written acknowledgment thereof or a promise to pay the same
has been made and signed by the party sought to be charged, an action may be
brought thereon within the time herein limited, after such payment,
acknowledgment or promise.”

WHEREFORE, the decision appealed from is affirmed, without
pronouncement as to costs.

Concepcion, C.J., Reyes, JBL, Dizon, Zaldivar, Sanchez, Ruiz Castro,
Fernando, Capistrano, and Barredo, JJ., concur.

Teehankee, J., concurs in the result.