QUINTINA S. VDA. DE AMPIL, AND DOMINGO BROTHERS, INC., PETITIONERS, VS. THE HON. JUDGE CARMELINO G. ALVENDIA, BRANCH XVI, COURT OF FIRST INSTANCE OF MANILA AND VICENTE MANUEL, R…

Petitioners, Quintina S. Vda. de Ampil and Domingo Brothers, Inc., pray
for a writ directing the respondent, Judge Carmelino S. Alvendia of the
Court of First Instance of Manila to order the execution pending appeal
of a decision of the Municipal Court directing respondent Vicente
Manuel to vacate the premises held by him as lessee of petitioners.

At issue in this case is the time for making deposits of current
rentals pending appeal in a forcible entry or detainer case. The
decision of the Municipal Court (Annex D of the Petition) is, in terms,
as follows:

“This is an ejectment case, where the judgment was appealed to the
Court of First Instance which remanded the case to this Court for trial
on the merits and allowed DOMINGO BROS., INC., co-plaintiffs.

From the evidence adduced by the parties, the Court believes and so
holds that the defendant is in arrears in the payment of rent at the
rate of P70.00 a month from April, 1958 up to the present and that due
notice had been made upon the defendant by the plaintiff before filing
of the complaint.

While defendant maintains that the house is owned by his deceased wife,
not by him alone, yet it is the considered opinion of the Court that,
considering his answer to the complaint, he is in estoppel at this
stage of the proceedings to raise the question of propriety of the
party defendant.

Wherefore, judgment is hereby rendered in favor of plaintiff and
against defendant, ordering the latter and all persons claiming under
him to vacate the premises referred to in the complaint; to pay the sum
of P1,870.00 representing the rent in arrears from April 1, 1958 up to
July, I9601, at the rate of P70.00 a month and monthly thereafter, within the first five (5) days of each month, beginning August, 1960,
at the said rate of P70.00 until defendant and all others claiming
under him surrender possession of the premises in question unto
plaintiff; plus the further sum of P100.00 as attorney’s fees and costs
of this suit.” (Italics supplied)

Pending
Manuel’s appeal from the judgment abovequoted in the Court of the
respondent judge, the petitioners filed a motion averring that the
appellant-lessee had failed to deposit the P70.00 monthly set by the
lower court within the first five (5) days of each month, as ordered in
the appealed judgment; wherefore, it was prayed that, as provided by
Rule 72, section 8, of the Rules of Court, the judgment under appeal be
executed as to the possession and the defendant-appellant ordered to
vacate premises under litigation.

After hearing, the respondent judge found that the appellant had been
making the monthly deposits exacted by the appealed judgment “within
the first ten days of the month following that for which the deposit
was made”, and “it can not, therefore, be said that the defendant has
failed to make the monthly deposit on time” (Annex F).

Reconsideration having been denied, petitioners resorted to this Court.

We think the order of the Court of First Instance is correct, there
being no finding in the decision by the Municipal Court (Annex D) that
the contract of lease required the monthly rent to be paid within the
first five (5) days of each month. While the initial complaint (Annex
A) did allege that defendant-appellant “agreed and undertook to pay a
rental thereon at the rate of P70.00 per month to be paid in advance
within the first five (5) days of every month”, mere allegations do not
satisfy the requirements of the Rule. Section 8 of Rule 72 expressly
prescribes that the defendant-appellant should pay or deposit, during
the pendency of the appeal,—

“the amount of rent due from time to time under the contract, as found by the judgment of the justice of the peace or municipal court to exist, or in the absence of contract, he pays to the plaintiff or unto tile Court, on or before the tenth day of each calendar month,

In the absence of any finding as to the provisions of the lease
contract by the Municipal Court, the monthly deposit may be made within
the first ten (10) days of each succeeding month. It was so ruled by
this Court, in Yu Khi Kim vs. Ten Giok Yan, G. R. No. L-544, Nov. 29, 1952, passing on this very issue;

“The
words ‘in the absence of a contract’ covers not only the situation
where there is no contract actuality, but also where the judgment does
not wxtlce findings as to ihe existence and/or terms of the contract. The amount required to be paid in such case being equivalent to the reasonable value of occupation.

In other words where the time for payment under the contract of lease
is not specifically declared in the judgment of the justice of the
peace or municipal court, the ten-day period must be followed. There is
no desire or purpose to permit the Court of First Instance, in a motion
like this, to go beyond the judgment receiving evidence as to the terms
of the contract and the time of payment.” (Kim vs. Yan, et al, G. R. No. L-5441, Nov. 29, 1952). Italics ours.”

It follows that the portion of the decision of the Municipal Court
requiring; the appellant to deposit current rentals within the first
five (5) days of each month is not controlling, there being no
pronouncement that the contract calls for such payments. As ruled in
the Kim vs. Yan case (supra), section 8 of the Rules “requires as a condition sine qua non
that the judgment shall make specific findings as to the existence and
the terms of the contract. The words “as found by the judgment” are
very material”.

The apparently contrary ruling in Chung Ben vs.
Co Bun Kim, 51 Off. Gaz., 6197, was predicated on the failure of the
appellant to dispute the terms of the contract, as averred by the
landlord in his petition. But in the case now before us, the lessee
explicitly avers “that the landlord in his petition. But in the case
now before us, the lessee explicitly avers “that there is no specific
contract providing for time of payment” (Answer, page 2, par. c).

IN VIEW OF THE FOREGOING, the writ prayed for is denied. Costs against petitioners.

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Paredes, Barrera, Dizon, and Makalintal, JJ., concur.