NARCISO DEL ROSARIO, PETITIONER, VS. HON. JUDGE YATCO, PROVINCIAL SHERIFF OF BULAGAN AND ISABELO DE CHANGCO, RESPONDENTS.

In Civil Case No. 2869 of the Court of First Instance of Quezon City, the
plaintiff Isabelo de Changco obtained on June 16, 1955 a judgment for a sum of
money against the defendant Narciso del Rosario. On February 10, 1956, the said
plaintiff asked for a writ of execution by virtue of which the property of del
Rosario covered by Transfer Certificate of Title No. 4853 of the Registry of
Deeds of Bulacan was levied upon, the provincial sheriff there of having caused
a notice of levy inscribed in said Registry of Deeds.

On December 28, 1959, del Rbsario, judgment debtor, mortgaged the levied
property to Severo Brigino, Fausta Roxas and Simeona Roxas. Later, or on June
14, 1961, the said del Rosario, joined by his mortgageesi fib d before the court
a Petition to Cancel Notice of Levy in Civil Case No. 2869, on the ground that
since more than five years have already elapsed after the notice of levy and yet
no execution sale was made during that period, the plaintiff is already barred
from enforcing the judgment and his only recourse is to institute an ordinary
action to revive judgment.

The plaintiff, Isabelo Changco, filed opposition to the petition to cancel
notice of levy, arguing that the judgment in the case was already enforced by
the issuance of the writ of execution on February 10, 1956 by virtue of which
notice of levy dated February 16, 1956 was duly inscribed and annotated on the
title covering the property involved.

After consideration of the petition and opposition thereto, the court issued
an order dated July 8, 1961, giving the plaintiff Isabelo de Changco “sixty (60)
days within which to take the necessary steps to have the execution issued in
this case be satisfied by going through with the sale of the properties levied
otherwise the court will order the cancellation of the levy on execution as
prayed for in the petition.” His motion for the reconsideration of this order
having been denied, the defendant, del Rosario, brought the instant petition for
certiorari with injunction protesting against the order giving de Changco a
period of time to sell the properties levied upon and the order denying
reconsideration thereof. Petitioner contends that since more than five years
have elapsed since the entry of judgment, execution sale can no longer take
place.

As prayed for, We issued, at the outset of the certiorari proceedings, a
preliminary injunctive writ restraining the carrying out of the questioned
orders.

After going over the record, We do not think the judge committed any abuse of
discretion in giving the plaintiff 60 days to sell the properties levied upon.
Section 6, Rule 39 of the Rules of Court, upon which the herein petitioner bases
his argument, reads:

“Execution by motion or by independent action.—A judgment may be
executed on motion within five (5) years from the date of its entry, or from the
date it becomes final and executory. After the lapse of such time, and before it
is barred by the statute of limitations, a judgment may be enforced by
action.”

This rule is no authority for petitioner’s contention because while it limits
the time within which a writ of execution may be issued to enforce a judgment,
it does not prescribe a period when the sale at public auc- tion by the sheriff
shall take place after the iMuance of the writ of execution and a valid levy
made pursuant thereto. This observation was first made by this Court in the case
of Government of the Philippines v. Echaus, et al., 71 Phil. 319,
referring to a similar provision in the Code of Civil Procedure^[1] which was governing at that time. The
following is the ruling laid down in the said case which was recognized and
restated in Nestora Rigor vda. de Qulambao et al v. Manila Motor Co., Inc. and
the Court of Appeals, G. R. No. L-17384, decided on October 31, 1961.

“We are of the opinion that a valid execution issued and levy made within the
period provided by law may be enforced by a sale thereafter, xxx The
sale of the property by the sheriff and the application of the proceeds are
simply the carrying ou of the writ of execution and levy which when issued were
valid. This rests upon the principle that the levy is the essential act by
which the property is set apart far the satisfaction of the judgment and
taken into custody of the law, and that after it has been taken from the def
endant, his interest is limited to its application to the judgment,
irrespective of the time when it may be sold, (Southern Cal. Co.
v. Hotel Co., 94 Cal. 217, 222). (Italics supplied)

It appearing that the execution and levy in this case was made within the
five-year period limited by the Rules, We see no error committed by the
respondent judge in issuing the orders complained of.

IN VIEW HEREOF, We are dismissing the petition for
certiorari and injunction. The writ of preliminary in- junction issued
heretofore is hereby ordered dissolved. Costs against the
petitioner.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon,
J.P., Zaldivar, Sanchez and Ruiz Castro, JJ., concur.

---

^[1] Section 443, which
reads:
“When Execution May Issue—The party in whose favor judgment
is given may, at any time within five years after entry thereof, have a writ of
execution issued for its enforcement, as hereinafter provided.