PASTOR ACIBO, ET AL., PETITIONERS, VS. HON. HIGINIO MACADAEG, MARIA PAZ MENDOZA-GUAZON, AND SHERIFF OF MANILA, RESPONDENTS.

This is an action for certiorari and prohibition to set aside a
demolition order issued by the Court of First Instance of Manila in a
suit for unlawful detainer and to compel the judge thereof to approve
the supersedeas bonds filed by the petitioners.

It appears that in the Municipal Court (now the City Court) of
Manila, Dr. Maria Paz Mendoza-Guazon filed an ejectment suit against 56
persons, 31 of whom are the petitioners, alleging that the latter were
unlawfully withholding from her the possession of a piece of land in
Paco, Manila, After hearing, the court gave judgment for the plaintiff
Mendoza-Guazon and ordered the defendants to vacate the premises and
pay back rents in various amounts and corresponding to various periods
ending August, 1961 and the rents from September, 1961 up to the time
the defendants actually, left the premises.

The defendants appealed to the Court of First Instance of Manila,
but, at the instance of Dr. Mendoza-Guazon, the court ordered the
immediate execution of the appealed decision on the ground that the
defendants failed to file a supersedeas bond as required in Section 8
of Rule 72 (now Section 8, Rule 70, of the Revised Rules of Court).

On March 20, 1962, the defendants asked the court to give them ten
days within which to file a supersedeas bond and to suspend its order
of execution in the meantime. Dr. Mendoza-Guazon opposed the motion and
on March 27 asked for an order of demolition to clear the property of
houses built by the tenants which, she averred, the latter refused to
remove. In the meantime and without waiting for the approval of their
motion, 31 of the defendants, who are petitioners in this case, filed
supersedeas bonds and asked the court to stay the execution of the
decision under appeal.

Acting on the various motions of the parties, the lower court, on
April 14, 1962, denied defendants’ motion to suspend execution,
disapproved the bonds filed by some of them and ordered the demolition
of their houses.

The writ of demolition was issued on April 14, but the sheriff did
not carry it out at once. Instead he gave the defendants-tenants five
days, that is, until April 22, within which to clear the premises. And
when he was informed of the filing of the present petition for
certiorari and prohibition in this Court, the sheriff gave the tenants
three more days to secure a writ of injunction but when none was issued
by this Court he proceeded with the demolition of houses on April 26.
This Court issued a writ of preliminary injunction only on May 5, so
that, upon representation of Dr. Mendoza-Guazon that the decision of
the Municipal Court had already been executed, the injunction was
dissolved.

In this action, the respondent judge of the Court of First Instance
is said to have acted in excess of jurisdiction and with grave abuse of
discretion on two counts, first, in refusing to suspend the execution
of the appealed decision and approve the bonds of petitioners and,
second, in allegedly denying petitioners reasonable time to remove
their houses.

With respect to the first ground, Section 8- of Rule 70 provides in part as follows:

“Immediate execution of judgment. How to stay
same.—If judgment is rendered against the defendant, execution shall
issue immediately unless an appeal has been perfected and the defendant
to stay execution files a sufficient bond, approved by the justice of
the peace or municipal court and executed to the plaintiff to enter the
action in the Court of First Instance and to pay the rents, damages,
and costs accruing down to the time of the judgment appealed from, and
unless, during the pendency of the appeal, he deposits with the
appellate court the amount of rent due from time to time under the
contract, if any, as found by the judgment of the justice of the peace
or municipal court to exist.

Under this rule, when the judgment is in favor of the plaintiff, it
must be executed immediately in order to prevent further damages to him
arising from the loss of possession. However, the defendant may stay
execution (a) by perfecting an appeal and filing a supersedeas bond;
and (b) by paying from time to time either to the plaintiff or to the
Court of First Instance the reasonable value of the use and occupation
of the property as may be fixed by the justice of the peace court in
its judgment. This rule is mandatory, the only exception being when the
delay is due to fraud, accident or mistake or excusable negligence.
(Sison vs. Bayona, et al., 109 Phil., 557; Moran, 3 Comments on Rules
of Court 298-299 [1963])

As already stated, the petitioners, who were defendants in the
ejectment suit, appealed to the Court of First Instance without filing
a supersedeas bond and without paying the current rents. Therefore, in
accordance with the rule just mentioned, the lower court ordered the
immediate execution of the decision of the Municipal Court. Indeed, it
is said that the failure of the defendant to file a supersedeas bond or
to deposit on time the monthly reasonable value of the use and
occupation of the property or the rents fixed in the appealed judgment
is a ground for outright execution of such judgment, the duty of the
court in this respect being ministerial and imperative. (See Moran, 3
Comments on the Rules of Court 303-304 [1963)

Petitioners rely on Igama vs. Soria, 42 Phi]., 11 and Tolentino vs.
Court of First Instance of Manila, 75 Phil. 282, to support their claim
that the lower court, in the exercise of its discretion, should have
suspended the order of execution it had earlier issued and that it
should have approved the bonds they later filed.

The contention lacks merit. The cases cited are authorities for the
view that the Court of First Instance may allow the filing of the
supersedeas bond (which should properly be filed in the inferior court)
if the judgment is not yet executed and, to this end, it has the
discretion to allow a reasonable time within which the supersedeas bond
may be filed. To be sure, the discretion spoken of is not discretion
alone to allow a supersedeas bond, otherwise it would be a duty. It is
a discretion to grant or to deny. As stated in a later case, this Court
never ruled in the Igama case that “refusal of the court to grant time
(to file a supersedeas bond) constitutes in itself unwarranted exercise
of power. He (the judge) has discretion to grant or to deny.”
(Tagulimot vs. Makalintal and Tanangunan, 85 Phil. 40) Here, the
petitioners, as deferdants in the ejectment case, did not ask the Court
of First Instance for time to file a bond. On the contrary, they
opposed the motion for immediate execution on the ground that under the
Rules of Court, a supersedeas bond may only be required by the
Municipal Court because Section 8 of Rule 72 (now Rule 70) speaks of “a
sufficient bond, approved by the justice of the peace or municipal
court.” It was only after their opposition had been overruled and a
writ of execution had been issued that they asked the court to suspend
its order of execution on the promise that they would soon file a bond.

There is one other reason justifying immediate execution. It is that
petitioners did not make deposits for current rents. It is true that
the bonds filed by them covered both the back rents and the current
rents as of March, 1962, but it is now settled that the supersedeas
bond answers only for rents or damages down to the time of the
perfection of the appeal and not for the future rents or damages
arising during the appeal, which rents are guaranteed by periodic cash
deposits. (See Moran, 3 Comments on the Rules of Court 300 [1983]) The
Court of First Instance has no authority to accept a bond in lieu of
cash deposits for future rents (See Moran, 3 Comments on the Rules of
Court 304-305 [1963]) ‘

The other ground relied upon by petitioners is based on Section 13,
Rule 39 (now Sec. 14, Rule 39) of the Rules of Court which states:

“Removal of improvements on property subject of execution.—
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.”

Petitioners claim that, contrary to this provision, the lower court
ordered their houses demolished from the premises without hearing them,
without serving their .counsel with a copy of the demolition order and
without giving them reasonable time to move out voluntarily.

The facts do not bear out tho claim. Dr. Mendoza— Guazon’s motion
for a special writ of demolition and petitioners’ opposition were set
for hearing on March 31, 1962. On the appointed day, however, the court
announced through the clerk that all motions set for that day would be
deemed submitted for resolution, obviously because it saw no need for
oral arguments. We see no denial of due process here. It was enough
that the parties were able to make known to the court their positions
by means of the motion and the opposition thereto. Oral Argument is
never a part of due process.

Neither was there lack of service of the demolition order on
petitioners’ counsel. Service was perhaps made after the writ of
demolition had been carried out by the sheriff. But then it was not
necessary that service of the order should come first before service of
the writ of,demolition. As Moran states In his book:

“With regard to the appealability of an order of
execution of a final judgment the settled rule is that ordinarily such
an order is not appealable because otherwise a case would never end,
for as often as an order of execution of judgment is made, it could be
objected to and the case brought for review.” (2 Comments on the Rules
of Court 250 [1963])

Since the order of demolition was not appealable, there was no point
in waiting until that order could be served on the adverse parties
before issuing the corresponding writ of demolition.

With regard to the claim that petitioners were not given reasonable
time to remove their houses, suffice it to say that although the writ
of demolition was served on them on April 17, 1962, it was not actually
carried out until April 26. We think that was enough time for
petitioners to do as ordered.

Wherefore, the petition for certiorari and prohibition is hereby denied, without pronouncement as to costs.

Bengzon, C. J. Padilla, Bautista Angelo, Paredes, and Makalintal, JJ. concur.
Concepcion and Reyes, J. B. L., JJ., concur in the result.