FERNANDO HERNANDEZ AND FELICIDAD B. HERNANDEZ, PETITIONERS, VS. EMILIO PEÑA, JUDGE OF THE COURT OF FIRST INSTANCE OF MANILA, AND INES OLIVEROS, RESPONDENTS.

Ines Oliveros, as defendant in an unlawful detainer case pending
before the respondent Judge Emilia Peña on appeal from the Municipal
Court, failed to deposit with the Clerk of Court the rent of P200
corresponding to the month of October, 1948, in accordance with the
judgment of the Municipal Court. A motion for the issuance of a writ of
execution was filed by the petitioners on November 23, 1948, which was
opposed by the respondent on the ground that her failure to make the
deposit was due to the fact that she had instituted in this court a
petition for certiorari and prohibition (G.R. No. L-2602), in which she
prayed to be relieved of the obligation of making a monthly deposit of
P200.

Acting upon said motion and the reply thereto, the respondent judge on December 21, 1948, issued the following order:

“The Court orders the defendants to deposit in
Court the rents corresponding to the months of October and November,
1948, within five days from the receipt of a copy of this order, and
should they fail to do so, it is hereby ordered that the corresponding
writ of execution be issued.”

The above-quoted order, which is the subject of the present
petition for certiorari and mandamus, is contrary to section 8 of Rule
72 and the decisions of this court in various cases. Said rule provides
that should the defendant fail to make the payment or deposit of the
rent during the pendency of the appeal, “the Court of First Instance,
upon motion of the plaintiff of which the defendant shall have notice,
and upon proof of such failure, shall order the execution of the
judgment appealed from * * *.” This court has repeatedly held that the
Court of First Instance has no jurisdiction to allow extensions of time
for such payments. (Lapuz vs. Court of First Instance of Pampanga, 46 Phil. 77; Arcega vs. Dizon, 42 Off. Gaz., 2138; Meneses vs. Dinglasan, 46, Off. Gaz., [Supp to No. 1], 252.

The mere filing by the respondent Ines Oliveros of a petition for
certiorari and prohibition, praying that she be relieved of the
obligation of making the monthly deposit, did not ipso facto
relieve her of such obligation, as the respondent judge himself
impliedly held by requiring her to make the deposit within five days.

The order complained of is set aside, and the respondent judge is
hereby directed to issue the writ of execution prayed for by the
petitioners, with costs against the respondent Ines Oliveros.

Pablo, Bengzon, Tuason, Montemayor, and Reyes, JJ., concur.