GLICERIO ROMULO AND ROQUE V. DESQUITADO, PLAINTIFFS AND APPELLEES VS. ESTEBAN DASALLA AND ERIBERTO A. UNSON, AS PROVINCIAL SHERIFF AND CLERK OF COURT, COURT OF FIRST INSTANCE OF…

Appeal involving questions of law from the decision of the Court of First Instance of Davao in Civil Case No. 2014.

The following circumstances emerge from the stipulation of facts entered into by the parties:

In Civil Case No. 564 of the Court of First Instance of Davao, entitled
“Esteban Dasalla and Basilisa Budas, plaintiffs, versus Romeo Alisna,
Hilaria Tampos and Glicerio Romulo, defendants”, the Court of Appeals
rendered judgment on August 30, 1954, reversing the lower court’s
decision and declaring “the plaintiffs-appellants to be entitled to
recover from defendants-appellees the possession of the property
described in the complaint with costs”. On January 15, 1955, Dasalla
petitioned (Exhibit A) the lower court for execution of the judgment of
the appellate court, to which petition was attached a verified bill of
costs in the sum of P387.50 (Exhibit B), and asking, among others, that
the three defendants in said case be ordered to pay jointly and
severally said costs. On February 14, 1955, the court ordered the
issuance of a writ of execution (Exhibit C). On February 22, 1955, the
clerk of court issued a writ of execution in accordance with Dasalla’s
petition for execution and for costs.

To satisfy the payment
of costs in the sum of P387.50, the provincial sheriff of Davao, in
pursuance of the writ of execution, attached two parcels of land owned
by Glicerio Romulo. These two parcels of land are located in Babac,
Samal, Davao, and, together with another parcel not included in the
attachment, are covered by T.C.T. No. T-168, Register of Deeds of
Davao. After levy and publication of the proper notices in the Davao
Sentinel, the two parcels of land were sold at public auction on June
16, 1955 to Esteban Dasalla, the sole bidder, for the sum of P592.50
(Exhibit E) which covered costs of suit of P387.50, expenses of
publication of P150.00 and sheriff’s fees and other expenses of P55.00.
The sale was annotated at the back of T.C.T. No. T-168 as per entry No.
7525.

On March 27, 1956, Glicerio Romulo sold to Roque V.
Desquitado the three parcels of land covered by T. C. T. No. T-168 for
the sum of P7,000.00 (Exhibit D). The vendee took possession of the
three parcels of land on March 27, 1956.

The year of
redemption having expired without Romulo having redeemed the property,
the provincial sheriff, on June 16, 1956, executed in favor of Dasalla
an absolute deed of sale of the aforementioned two parcels of land
(Exhibit F), which sale was duly registered in the office of the
Register of Deeds of Davao. On July 14, 1956, the lower court issued in
Dasalla’s favor a writ of possession. Romulo filed two motions for
reconsideration of this writ, while Desquitado moved to intervene in
the proceedings. Upon denial of all three motions, Romulo and
Desquitado appealed to the Court of Appeals (Exhibit G).

On
July 5, 1956, Glicerio Romulo and Roque V. Desquitado filed the present
action, Civil Case No. 2014, in the Court of First Instance of Davao,
against Esteban Dasalla and Eriberto A. Unson, the latter in his
capacity as provincial sheriff and clerk of court, praying mainly that
the writ of execution issued in Civil Case No. 564, the attachment and
sale of the three parcels of land described in the complaint and
covered by T.C.T. No. T-168, and the execution of the absolute deed of
sale of June 16, 1956, in Dasalla’s favor, be declared null and void.

After the parties had submitted their stipulation of facts and had
presented additional evidence, the lower court rendered judgment that
“the writ of execution prepared and issued by the Clerk of Court for
the enforcement of the bill of costs is hereby declared null and void
together with the levy on execution, the public auction sale and the
absolute deed of sale of the two (2) parcels of land in favor of the
defendant Esteban Dasalla, without special pronouncement as to costs.”

The case is now before us on appeal with the following issues: (1)
whether the costs in Civil Case No. 564 had been properly taxed; (2)
whether the writ of execution, the auction sale and the absolute sale
are null and void; (3) whether the appellees still have the right to
question the validity of said execution after the certificate of
absolute sale had been executed in favor of appellant Dasalla; and (4)
whether the matter in litigation in Civil Case No. 564 is the same as
the matter brought up in the present case.

Appellants claim
that the costs in Civil Case No. 564 has been duly taxed, pointing out
that the bill of costs was attached to their petition for execution
which was set for hearing on January 22, 1955, and which was duly heard
on that date in the presence of appellee Romulo.

The Rules outline the mode by which costs are taxed:

“In
inferior courts, the costs shall be taxed by the justice of the peace
or municipal judge and include them in the judgment. In superior
courts, costs shall be taxed by the clerk on five days written notice
given by the prevailing party to the adverse party. With this notice
shall be served a statement of the items of costs claimed by the
prevailing party, verified by his oath or that of his attorney,
objections to the taxation shall be made in writing, specifying the
items objected to. Either party may appeal to the court from the
clerk’s taxation. The costs shall be inserted in the judgment if taxed
before its entry, and payment thereof shall be enforced by execution.”
(Section 8, Rule 131, Rules of Court).

This
procedure must be strictly complied with before execution as to costs
may be had. So, even if the decision wherein costs were granted, had
already become final, that does not hold true for the costs, for the
payment of which the law prescribes that certain steps be first taken,
such as the assessment by the clerk of court, and the appeal, if any,
from that assessment to the court, and unless these steps are taken,
the judgment as to costs cannot be executed. If the writ of execution
of the award for costs was issued by the clerk of court motu propio,
before costs were assessed and their amount fixed, and while an appeal
from the taxation made by the clerk of court was pending determination
by this Court, such writ of execution as well as the sale at public
auction made by the sheriff to implement it, are both null) and void
for having been carried out in contravention of Section 8, Rule 131,
Rules of Court [Del Rosario vs. Sandico, et al., 97 Phil., 372; 51 Off. Gaz. (No. 8) p. 4027].

Herein, taxation of the costs was never made by the clerk of court. If
costs had been properly taxed, appellants would have submitted the
assessment of costs made by the clerk of court, for it, together with
the bill of costs, is the proper evidence to prove that the required
procedure had been followed (Lilius, et, al. vs. Manila
Railroad Co., 62 Phil., 56). Crispiniano Siega, deputy clerk of court,
testified that the bill of costs was merely attached to the petition
for writ of execution and that he prepared the writ of execution
without costs having first been taxed by the clerk of court.
Considering this, the writ of execution, and the sale at public auction
and absolute sale grounded thereon, are all null and void.

Nullity of the execution and sale also proceeds from another fact. The
appellate court’s decision declared “plaintiffs-appellants to be
entitled to recover from defendants-appellees the possession of the
property described in the complaint with costs” while the writ of
execution ordered the sheriff that “of the goods and chattels of Romeo
Alisna, Hilaria Tampos and Glicerio Romulo alias Glicerio Romulo
(defendants), Bagsac, Samal, Davao, jointly and severally you cause to
be made the sum of P387.50 as costs of suit.”

The decision
simply states that it was “with costs”, so the presumption is that the
obligation of the three defendants for costs in said Civil Case No.
564, is simply joint (Articles 1207 and 1208, New Civil Code) and not
joint and several as expressed by the writ of execution. In this
jurisdiction the established rule is that where the judgment in a case
does not state that the defendants are liable to pay jointly and
severally a given sum of money, none of them may be compelled to
satisfy in full said judgment (Contreras vs. Felix, 78 Phil., 570).

A similar issue was raised in the case of De Leon vs.
Nepomuceno (37 Phil., 180) wherein it appears that the judgment in the
election protest provided that “the costs and expenses on the contest
will be paid by the protestee and the intervenor”. As stated by this
Court, the sole issue therein “is whether the judgment actually entered
by the court below and affirmed upon appeal is or is not a ‘joint and
several’ judgment”, which issue was resolved thus:

“Examining
the language of the judgment for costs, which is set out in the
foregoing statement of facts, it is manifest that it is merely a joint
judgment against the protestado y tercerista, and does not permit
construction or interpretation as a ‘joint and several’ judgment. No
arguments is necessary. It is sufficient to cite here articles 1137 and
1138 of the Civil Code as to the rule in this jurisdiction.” (now
articles 1207 and 1208 of the new civil code).

There being a distinct disparity between the appellate court’s judgment
which provides for joint liability and the writ of execution which made
the three defendants solidarity liable, the latter is therefore null
and void on that score. The execution order must conform substantially
with the decision of the court (Bank of the Philippine Islands vs. Green, 48 Phil., 284). It must not vary the terms of the judgment it seeks to enforce (Ang Liu Chi vs.
Castelo, et al., 83 Phil., 263). If it fails to harmonize with the
judgment which gives it life, it is not valid, for to maintain
otherwise would be to violate the constitutional provision against
depriving a person of his property without due process of law (Velez vs. Martinez, 63 Phil., 231).

Appellant Dasalla also maintains that the judicial sale in his favor
can no longer be assailed because the period of redemption has already
expired and a writ of possession has been issued to him. The principle
of estoppel does not apply herein, because appellees filed this action
on July 5, 1956, barely a month from the execution of the deed of sale.
Inasmuch as the absolute sale to Dasalla is null and void, Romulo’s
right to annul it is not barred by his failure to redeem the properties
within the redemption period. The redemption sale being null and void
there was no need to redeem the property (Balagtas vs. Arguelles, 57 Phil., 317). In the case of Lanci vs.
Yangco (52 Phil., 565), we had occasion to declare null and void the
sale under execution made by the sheriff and the sheriff’s certificate
pursuant thereto, although the action was filed after the lapse of the
year of redemption.

Contrary to appellants’ contention, the
matter litigated herein is not the same as that passed upon in Civil
Case No. 564. The appellate court decided in said case that Dasalla was
entitled to costs. His right to costs cannot be questioned, nor is it
being questioned herein. What Romulo assailed was the amount of costs,
the nature of his liability therefor, and the manner in which Dasalla’s
right to costs had been exercised against him. Neither the plea of res judicata
nor that pending action is available herein, the subject matter of
Civil Case No. 564 being different from that of the present case.

Wherefore, the appealed decision is hereby affirmed, with costs.

Paras, C. J., Bengzon, Padilla, Montemayor, Bautista Angelo, Labrador, Concepcion, and Barrera, JJ., concur.
Reyes, J.B.L., and Endencia, JJ., did not take part.