JUAN CASTRO, PETITIONER, VS. POTENCIANO PECSON ETC. AND ACRO TAXICAB CO., INC., RESPONDENTS.

This is a petition for a writ of mandamus to compel the respondent
Judge of the Court of First Instance of Manila to issue a writ of
execution upon a final judgment.

It appears that on March 31, 1941, the herein petitioner, as
plaintiff in Civil Case No. 55683 of the Court of First Instance of
Manila, obtained a judgment against the respondent Acro Taxicab Co.,
Inc. for a sum of money for medical expenses, damages, interests and
costs. Modified as to amount by the Court of Appeals in May, 1944, the
judgment was, as thus modified and with the elimination of interests,
affirmed by the Supreme Court in 1949 and became final on February 19th
of that year. After the case was returned to the court of origin, the
court, at the instance of plaintiff, issued a writ of execution, but
later ordered the writ lifted when defendant invoked moratorium as a war
damage claimant. Plaintiff did not appeal from this last order, which
was rendered on March 28, 1949. But some three years thereafter he
again filed a motion for the issuance of a writ of execution, alleging
that on January 30, 1952, the Supreme Court had rendered a decision in
the case of Arizabal et al. vs. Abaya et al., G. R. No. L-5076, holding
that the right to invoke the debt moratorium was waivable and that it
was deemed waived on account of defendant’s failure to raise it at any
time during the pendency of the case in the Court of First Instance and
in the Court of Appeals. Defendant opposed the motion on the grounds
that the object of the motion had already become res judicata;
that it had not waived its right to the debt moratorium; and that, even
granting that the right had been waived, the waiver became ineffective
upon the passage of Republic Act No. 342 on July 26, 1948. The motion
for the issuance of the second writ of execution having been denied,
plaintiff brought the present action to compel the respondent judge to
issue a writ of execution.

Though defendant has filed a motion for the dismissal of the
petition on the technical ground that it fails to allege the facts
constituting plaintiff’s cause of action, the parties have finally
agreed to submit the case for decision upon the pleadings.

Section 6 of Rule 39, Rules of Court, provides that a judgment
may be executed on motion within five years from the date of its entry.
The last motion for execution in the present case was filed within that
period of time. Even supposing that the judgment debtor has never
waived the benefits of the debt moratorium, those benefits can no longer
be invoked not that the law and executive orders on moratorium have
already been declared null and void by this Court in the case of Royal
L. Rutter vs. Placido J. Esteban, G. R. No. L-3708, promulgated on May
18, 1953.

Wherefore, the petition is granted and the respondent judge
ordered to issue the writ of execution prayed for. With costs against
the respondent taxicab company.

Paras, C. J., Feria, Pablo, Bengzon, Tuason, Montemayor,
Jugo, Bautista Angelo and Labrador, JJ., concur.

Padilla, J., no part.