TOMAS DELGADO, PLAINTIFF AND APPELLEE, VS. ADRIANO CARAEL ET AL., DEFENDANTS AND APPELLANTS.

This case, No. 13409, has come before us for hearing, together with the
written motion filed by counsel for the defendants, in which, among other
petitions, it is asked that the writ of final injunction decreed by the Court of
First Instance be dissolved and that the land, with its plantations, as well as
its products harvested by the plaintiff on his taking possession of said land be
restored to the defendants the mover offering for the purpose to put up a bond,
the amount of which to be fixed by the Supreme Court. In support of his motion
said counsel alleged that in the final judgment rendered the plaintiff was
declared to be the owner of said land, and the defendants were ordered to
restore it to him; that, after the restitution had been made, a final injunction
issued against the defendants, enjoining them not to hinder the plaintiff from
performing upon the land in litigation the acts of possession, ownership, and
usufruct which he was entitled to perform as the lawful owner of the property;
that, notwithstanding that the defendants had appealed from said judgment,
counsel for the plaintiff, without prior notification to the defendants,
succeeded in having the judge of the Court of First Instance order the execution
of the dispositive part of the judgment, relative to the injunction, in
compliance with which order the sheriff proceeded to deliver the land with its
plantations to the plaintiff, notwithstanding the appeal. Therefore said counsel
petitioned that the injunction be dissolved and that the land, of which the
defendants had been deprived of possession, be returned to them.

Counsel for the plaintiff-appellee opposed said motion on the ground that it
should have been made prior to the approval of the bill of exceptions. He
invited the attention of this court to the fact that the trial court, on issuing
the injunction, based its action on the provisions of section 171, in connection
with section 144, of the Code of Civil Procedure, and that, if any error were
committed by the lower court, the appellants could avail themselves of their
right by the prosecution of the proceedings prescribed by law.

The action brought by the plaintiff, by means of the special remedy of final
injunction, is denominated in law ejectment. In pursuance thereof, on September
17 of the present year, the plaintiff, by a final judgment, was declared to be
the owner of the disputed land. It was ordered in the judgment that the property
be restored to the defendants (plaintiff), and, when this was done, said writ of
final injunction issued against the defendants.

On the fourth day after judgment had been notified to both parties, the
motion made for a new trial had been overruled and counsel for the defendants
had excepted thereto and announced his intention to appeal therefrom and file
the proper bill of exceptions, counsel for the plaintiff requested the issuance
of the final injunction against the defendants in conformity with the judgment,
and the court, recognizing that the plaintiff was entitled to the immediate
issuance of said final injunction, as ordered in the judgment, granted said
petition and, on October 5, the injunction issued. The record shows that on the
fourth day thereafter, on the 9th of the same month of October, the bill of
exceptions filed by the defendants was approved.

Act No. 190, section 144, treating of stay of execution, prescribes as
follows:

“Except by special order of the cour6, no execution shall issue upon a final
judgment rendered in a Court of First Instance until after the period for
perfecting a bill of exceptions has expired. But the filing of a bill of
exceptions shall of itself stay execution until the final determination of the
action, unless for special reasons stated in the bill of exceptions the court
shall order that execution be not stayed, in which event execution may at once
issue. But the court may require as a condition of a stay of execution that a
bond shall be given reasonably sufficient to secure the performance of the
judgment appealed from in case it be affirmed in part or wholly.”

Before the filing and approval of the bill of exceptions, on petition by
counsel for the plaintiff, the court issued said order directing the issuance of
the final injunction in accordance with his previous judgment and compliance
with this order was not limited to a notification of the parties, but preceded
the restitution and delivery of the land in litigation to the plaintiff, whereby
the defendants were deprived of the possession they had been enjoying of the
property and the second mandate of the final judgment was carried into execution
without the fulfillment of which the final injunction could not issue. A mere
perusal of the dispositive part of the judgment rendered in the case clearly
shows that the part of the judgment relative to the final injunction was put
into execution without first having effected the restitution or delivery of the
land in litigation to the plaintiff-appellee, for the record does not disclose
that said restitution was made prior to the order of October 3 and the writ of
the 5th of the same month, and the executor of the prohibitory order, perhaps
seeing this irregularity in the procedure, made delivery of the land in question
to the plaintiff, dispossessing the defendants thereof and fulfilling
prematurely and untimely the second mandate of the judgment, in spite of the
fact that an appeal had been filed before the Supreme Court, and that the trial
judge had not issued any special order for the execution of the judgment.

A final injunction is virtually a process for the protection and aid of the
holder of a title as owner, declared to be such by the final order or judgment
of a court. The judgment of the trial court, recognizing the plaintiff to be the
owner of the property in question and ordering its restitution to him, still
continues to be subject to examination until the pending appeal is finally
decided.

The order of October 3, directing the issuance of the injunction, contains no
provision whatever for the fulfillment of the mandate of the judgment, relative
to the restitution and delivery of the disputed land to the plaintiff, with the
defendants’ consequent dispossession; and although it may be indispensable to
make record of the special reasons that determine the fulfillment of the mandate
of the judgment relative to the delivery or restitution of the property to the
appellee even before finally disposing of the appeal filed by the defendants,
who in fact were prematurely deprived of the possession they were enjoying, it
is nevertheless true that, in order to comply with the final injunction—one of
the mandates of the judgment appealed from—another mandate thereof was executed
which was not the subject of any special decree of the court and does
not appear to be comprised in the order directing the issuance of said
injunction. Therefore justice requires that the defendants be restored to the
possession of the property of which they were unduly dispossessed, and that said
final injunction be dissolved, leaving them in the same status in which they
were at the time of the rendition of the judgment appealed from, inasmuch as in
that same judgment it is ordered that after the land in litigation has been
restored to the plaintiff, declared to be its owner, a final injunction shall
issue such as shall efficaciously protect him in his rights. If the restitution
of the land was not duly made and if no special order of the court directed it
to be effected beforehand, out of the regular course of procedure, there is no
warrant in law for the issuance of the final injunction, for the time to order
such prohibition had not yet arrived, inasmuch as the plaintiff was not in
lawful possession of the land by virtue of a final judgment.

If the plaintiff is now in possession of the property, it is due to a
mistaken compliance with an order dictated by the court for another
purpose certainly different from that of the delivery or
restitution of the land, and this delivery or restitution continues to be the
subject of the judicial pleadings on the pending appeal.

For the foregoing considerations, and taking into account the provisions of
the preinserted section 144 of the Code of Civil Procedure, we set aside as
improper the restitution of possession made in the plaintiff’s behalf without it
having been ordered by a special decree of the court. We likewise set aside the
final injunction issued, inasmuch as, pursuant to the judgment itself, this writ
should issue only after the possession of the land has been restored to the
plaintiff-appellee. For the purpose of the fulfillment of this resolution, a
mandatory letter shall issue to the judge of the Court of First Instance of
Cebu, with a transcript of this order, so that, after the filing of the bond
offered by counsel for the defendants, in the sum of P1,000, and its due and
formal approval, the trial court may proceed in accordance with law by
immediately ordering that the defendants be placed in possession of the land in
question and its plantations. So ordered.

Arellano, C. J., Torres, Johnson, Araullo, Street, and Malcolm,
JJ., concur.