CRISTINA SOTTO, PLAINTIFF-APPELLEE, VS. HERNANI MIJARES, ET AL., DEFENDANT-APPELLANTS.

This is an appeal taken
by herein defendants from that portion of the order of the Court of First
Instance of Negros Occidental dated March 20, 1963 in
its Civil Case No. 6796 which requires them to deposit with the Clerk of
Court the amount of P5,106.00 within ten (10) days from receipt of said
order.  Originally appealed to the Court
of Appeals, this case was subsequently certified to this Court, the only issue
being one of law.

In the aforesaid Civil
case+ plaintiff filed a “Motion
for Deposit” on November 13, 1962, the pertinent portions of which read:

“2.  That
in accordance with the contract including the allied transactions as evidenced
by other documents, the balance indebtedness of the defendants in favor of the
plaintiff is the amount of P5,106.00 only, Philippine
Currency x x x;

“3.  That according to the answer of the defendants,
the said
claim of P5,106.00 is admitted x x x,
with the defendants further alleging that they have offered the said amount to
the plain­tiff why refused to receive the said amount;

“4.  That in view of the admission of the
defendants of the same and in order to limit the other controversial issue x x x it is fitting and proper that
the said amount of P5,106.00 be deposited in the
Office of the Clerk of Court of this province or to deliver the same to the
plaintiff and/or her counsel.”

Defendants, in their
“Opposition” dated November 23, 1962, signified their willingness to
deposit the requested amount provided that the complaint be
dismissed and that they be absolved of all other liabilities, ex­penses and
costs.

On November 26, 1962 the
lower court issued the following order:

“It appearing that the defendants have admitted the claim of
the plaintiff in the sum of P5,106.00, as prayed for
by the counsel for the plaintiff the said defendants are hereby ordered to
deposit said amount to the Clerk of Court pending the final termination of this
case.”

On November 28, 1962
plaintiff – this time represented by new counsel – filed a motion for partial
judgment on the pleadings with respect to the amount of P5,106.00, modifying
their previous request for judicial deposit, which had already been
granted.  On the other hand, defendants
moved to recon­sider the order of November 26, explaining that through over­sight
they failed to allege in their “Opposition” that the sum of P5,106.00 was
actually secured by a real estate mortgage. 
They would thus premise their willingness to deposit said amount upon
the condition “x x x that the plaintiff will cancel the mortgage above-mentioned and that
the plaintiff be ordered to return to the defendants Transfer Certificate of
Title No. 29326 covering Lot No. 327 of Pontevedra
and Transfer Certificate of Title No. 29327 covering Lot No. 882 of Hinigaran Cadastre, Negros
Occidental.”

On March 20, 1963 the lower court resolved both
motions, in effect denying them and reiterating its previous order, as
follows:

“WHEREFORE, the motion for partial judgment on the pleadings
dated November 28, 1962 is hereby denied but in its stead the defendants are
hereby ordered to deposit with the Clerk of Court the amount of P5,106.00 within ten (10) days from receipt of this order
subject to further disposition thereof in accordance with the decision to be
rendered after trial.”

It is the foregoing order from which the present appeal has been
taken.  Since this case was submitted
upon the filing of the briefs, there has been no showing as to the
outcome of the main case below for foreclosure of mortgage.  The decision therein, if one has been
rendered, since no injunction was sought in or granted by this Court, must have
rendered this appeal moot and academic, considering that the defendants admit
their indebtedness to the plaintiff but object merely to their being compelled
to deposit the amount thereof in court during the pendency
of the fore­closure case.  However, no
manifestation having been received on the matter, we shall proceed to the
issues raised by the parties.

The first of said issue is procedural, and has been set up, by
the appellee as a roadblock to this appeal.  She maintains that the controverted
order is interlocutory, since it does not dispose of the case with finality but
leaves something still to be done, and hence is unappealable.  The remedy, it is pointed out, should have
been by petition for certiorari.  The
point, strictly speaking, is well taken; but this Court sees fit to disregard
technicalities and treat this appeal as such a petition and consider it on the
merits, limiting the issue, necessarily, to whether or not the court below
exceeded its jurisdiction or committed a grave abuse of discretion in issuing the order complained of.

The defendants admit their indebtedness to the plaintiff, but
only in the sum of P5,106.00.  It seems that the controversy refers to the
plaintiff’s additional claim for interest, attorney’s,
fees and costs.

The defendants expressed
their willingness to deposit the said amount in court, subject to the condition that the mortgage they had executed as
security be cancelled.  The question, then, is:  Did the court act with authority and in the
judicious exercise of its discretion in ordering the defendants to make the
deposit but without the condition they had stated?  Whether or not to deposit at all the amount
of an admitted indebtedness, or to do so under certain conditions, is a right
which belongs to the debtor exclusively. 
If he refuses he may not be compelled
to do so, and the creditor must
fall back on the proper coercive processes pro­vided by law to secure or satisfy his credit, as by attach­ment,
judgment and execution.  From the
viewpoint of the debtor a deposit such as the one involved here is in the nature of consignation, and
consignation is a facultative remedy which he may or may not avail of.  If made by the debtor, the creditor merely
accepts it, if he wishes; or the court declares that it has been properly made,
in either of which events the obligation is ordered cancelled.  Indeed, the law says that “before the
creditor has accepted the con­signation or before a judicial declaration that
the consigna­tion has been properly made, the debtor may withdraw the thing or
the sum deposited, allowing the obligation to remain in force.”+ If the
debtor has such, right of withdrawal, he surely has the right to refuse to make
the deposit in the first place.  For the
court to compel him to do so was a grave abuse of discretion amounting to excess
of jurisdiction.

The order appealed from is set aside, without pronouncement as to
costs.

Reyes, J.B.L. (Acting C.J.), Dizon, Zaldivar, Sanchez, Fernando, Teehankee,
and Barredo, JJ., concur.

Capistrano, J., did not take
part.

Concepcion, C.J., and Castro, J., are
on leave.

+ Civil Case No. 6796 is a
proceeding to foreclose a real estate mortgage earlier exe­cuted by defendants in favor
of plaintiff in consideration of a P5,000.00 loan
which the former had allegedly failed to pay.

+ Art. 1260,
Civil Code.