PHILIPPINE NATIONAL BANK, PLAINTIFF-APPELLANT, VS. AGUSTIN PARIÑA, DEFENDANT-APPELLEE.

This is a direct appeal from the decision of the Court of First
Instance of Manila, dated Janua­ry
17, 1963, in its Civil Case No. 46448, dismissing the complaint filed
by herein plaintiff-appellant,
said court having declared the action barred by the statute of limitations.

The facts of this case
are simple.  In Civil Case No. 7417
between the same parties in the present case, entitled “Philippine National Bank vs. Agustin Pariña,” the Court of First Instance of Manila, after declaring defendant in default,
rendered its decision, under date of November 28, 1950, with the following dispositive
portion:

“WHEREFORE, defendant Agustin R. Pariña
is hereby sentenced to pay to the plaintiff the amount of:  on the first cause of action, P4,966.22 plus
interest at the rate of 7% on the amount of P4,440.00 from December 14, 1948 to
the date of payment plus 10% of the amount due as at­torney’s fees; on the
second cause of action P16,777.81 plus
interest at the rate of 7% on the amount of P15,000.00 from December 14, 1948
to the date of payment, plus 10% of the amount due as attorney’s fees, plus the
costs of this suit.”

The foregoing decision
having become final, writs of execution were issued to enforce it, but because judgments
thereof remained unsatisfied, on February 28, 1961, herein plaintiff-appellant
instituted the present action (Civil Case No. 46448) before the same Court of
First Instance of Manila to revive the judgment aforestated,
and prayed that defendant be ordered to pay to plaintiff the amount of
P43,355.03,^[1] as of February 8, 1961, with the stipulated
interest from February 9, 1961 until fully paid, plus 10% attorney’s fees, and
costs of suit.

On account of the failure
to locate defendant at his known address, upon motion of plaintiff, summons
publication was ordered by the court below. 
When defendant failed to file his answer within the period provided for
in the summons plaintiff moved that the defendant be declared in default, which
motion for default was acted favorably by the court a quo.
 Subsequently, Federico T. Beltran, the Deputy Clerk of the Court of
First Instance of Manila, was commissioned by the court to receive the evidence
of the plaintiff.

On January 16, 1963,
Commissioner Beltran sub­mitted his report to the court, recommending the
dismissal of the complaint upon the ground of prescription, it appearing that
plaintiff filed the same only on February 28, 1961, or more than ten years from
the time the decision of November 28, 1950, sought to be revived, had became
final.  On January 17, 1963, the lower court, presided over by Judge
Francisco Geronimo, rendered a decision approving the commissioner’s report and
dismissing plaintiff’s
complaint, the action having been barred by the statute of limitations.

In this appeal, plaintiff-appellant does not deny that an action
to revive a judgment under Section 6, Rule 39 of the Rules of Court, in
relation to Articles 1144 and 1155 of the Civil Code, must be instituted within
ten years from the time the judgment became final.  Appellant does not likewise question the
finding of the trial court that the instant case was filed more than ten years
from the time the judgment rendered by the same court, dated November 28, 1950, had become
final.  But the plaintiff contends that
the lower court erred in dismissing the complaint upon the ground that
plaintiff’s action was barred by the statute of limitations.  It is the position of the plaintiff that the
defense based on the statute of limitations must be pleaded, and because the
defendant was declared in default the defendant is considered as having waived
that defense.

We agree with the plaintiff that the defense based on the statute
of limitation, or on prescription, may be
considered only if pleaded, and failure to plead such a defense constitutes a waiver of the
defense.  In the particular circumstance
of this case, however, this con­tention of the plaintiff
cannot be sustained.  The record shows
that the whereabouts of the defendant was unknown, so that upon motion by the
plaintiff the lower court ordered that the defendant be summoned by publication.  Summons by publication is a constructive process and it is simply
assumed that the defendant had notice of the summons and of the complaint that
was filed against him.  It cannot be
said, therefore, that the defendant by his failure to answer the complaint had
waived the defense based on the statute of limitation or on prescription
because it is not shown that he was actually aware of the complaint that was
filed against him.  It would be dif­ferent
if the defendant had been summoned by personal service – and it is actually shown that the defendant had received
the summons and the complaint – that when he failed to file his answer it can
be considered that he waived the defenses that he is required to plead
under the rules of court.

Since in the present case it is shown by plaintiff’s own evidence that its action
had already prescribed, the court may act motu
proprio to extend to the defendant the
benefits of the defense based on the statute of limitations even if he die not plead that defense. 
We have before Us a case where it clearly appears that a party has a
right but is at a disadvantage and could not as­sert his right, and so the court has to take the initiative
in protecting that right.^[2]

We find that the lower court correctly dismissed plaintiff’s
complaint.

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

IT IS SO ORDERED.

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

Dizon, J., reserves his vote.

^[1]
Total indebtedness of defendant has
accumulated as of February 8, 1961.

^[2]Article
24, New Civil Code.