VALERIANO ROXAS, PETITIONER, VS. FRANCISCO ZANDUETA, JUDGE OF FIRST INSTANCE OF RIZAL, ET AL., RESPONDENTS.

This is an original application in this court, in the form of certiorari,
filed by Valeriano Roxas against Francisco Zandueta, as Judge of First Instance
of the Province of Rizal, with whom is joined the sheriff of Rizal and some
seventeen individuals, who will be herein referred to as the creditors. The
purpose of the petition is to secure the annulment of an order granted by the
respondent judge on June 9, 1932, in the Court of First Instance of Rizal.
Incidentally a preliminary injunction is sought to restrain the defendant
sheriff and his codefendants, other than the respondent judge, from taking
possession of a rice mill alleged to be the property of the petitioner. The
cause Is now heard upon answer of the various defendants.

The respondents, other than the judge and sheriff, are judgment creditors by
reason of various judgments obtained in certain civil proceedings in the courts
of Rizal Province against Claro Sta. Maria and his wife, Mercedes Roxas. For the
purpose of making these judgments effective said respondents caused executions
to be levied upon a rice mill located in the Province of Rizal, as property of
Claro Sta. Maria and wife. The present petitioner, Valeriano Roxas, a brother of
Mercedes Roxas, thereupon intervened as a third-party claimant, asserting that
the rice mill belonged to himself. In order to arrest the effect of this
third-party claim the respondent creditors executed a bond in the amount of
P14,000 to hold the sheriff harmless; and the latter official thereupon
proceeded to sell the rice mill at public auction, the judgment creditors
becoming the purchasers of the property. Being then desirous of obtaining
possession of the rice mill, the creditors caused the sheriff to take possession
of the property, to which end, so it is alleged, it was necessary for him to
break a lock which the petitioner had placed upon the camarin in which the mill
was placed, thereby dispossessing the petitioner of the property.

Meanwhile the petitioner had previously instituted a civil action in the
Court of First Instance of Rizal asserting his ownership over the mill and
asking for an injunction to prevent the sheriff from selling the property; and
later, on March 28, 1932, an amended complaint in the same proceeding was filed
by the petitioner, seeking an injunction to prevent the sheriff from delivering
possession of the mill to the creditors.

Judge Zandueta, who was then presiding in the court, refused to grant any
injunction to delay the sale or to replace the petitioner in possession; but
Judge Isidro Paredes, acting as vacation judge in Rizal Province pending the
court vacation, on April 18, 1932, ordered the provincial sheriff to replace the
petitioner, as plaintiff in the aforesaid cause, in possession of the property,
it being required that the petitioner should execute a bond in the amount of
P1,000. By virtue of this order the petitioner was restored to possession.
Against this development the creditors interposed a motion for reconsideration;
and this motion presently came before Judge Zandueta, then again acting as Judge
of First Instance of the province. The first thought of Judge Zandueta was to
allow the restorative order of Judge Paredes to continue in effect, with the
requirement that the petitioner, as plaintiff in the civil cause mentioned,
should give an additional bond of P13,000. It will be noted that this bond, in
case it had been given, together with the bond for P1,000 already executed,
would have placed the petitioner under the same obligation (in the amount of
P14,000) that had been exacted from the creditors when they first seized the
property under execution. But the petitioner did not give the additional bond;
and Judge Zandueta, at the request of the petitioner, on June 4, 1932, extended
by five days the period for the giving of the additional bond. The bond not
having been given by June 9, 1932, the court on that date vacated the order for
the extension of time and ordered that the sheriff should return to the
creditors (purchasers at the execution sale) the possession of the rice mill and
camarin wherein it is located. Thereupon the present proceeding was instituted
in this court, and a preliminary injunction was granted to prevent the
disturbance of the petitioner in the possession of the property during the
pendency of this proceeding.

As this is a certiorari proceeding the only question before the court is
whether Judge Zandueta acted within his powers in making the order of June 9. It
is claimed by the petitioner that this act, which had the effect of abrogating
the prior interlocutory order of Judge Paredes, was irregular and in excess of
the jurisdiction of the court. With this proposition we are unable to agree. The
orders made by Judge Paredes and by Judge Zandueta were all of an interlocutory
nature, and it is rudimentary that such orders are subject to change in the
discretion of the court. Certainly the order of Judge Paredes is on no higher
plane than it would have been if Judge Zandueta had made the order himself, and
the power of the presiding judge, upon motion of reconsideration, to modify or
abrogate such an order is unquestionable.

It appears that the petitioner, under the doctrine of Pabico vs. Ong Pauco
(43 Phil., 572), considers himself to be entitled to the possession of the
executed property for at least one year from the date of the execution of the
sale. It is possible that he has such right, depending on whether he is the true
owner of the property or not. But if he has the right asserted by him, he is
protected by the bond given when he intervened as a third party against the levy
of execution. Into the merit of that question we cannot here enter. The question
here is whether a judge of First Instance before whom an action is pending has
jurisdiction to modify, upon motion for reconsideration, an order in the same
case entered by another judge acting as vacation judge. Upon this point there
seems to us to be no room for any doubt whatever. The answer is in the
affirmative, and this proceeding cannot be maintained.

The petition will be. dismissed, and it is so ordered, with costs against the
petitioner.

Avanceña, C, J., Malcolm, Villamor, Ostrand, Villa-Real, Abad Santos,
Hull, Vickers, and Butte, JJ., concur

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IMPERIAL, J.

I quite agree with the majority that the only question involved in this
certiorari proceeding is whether or not Judge Zandueta acted within his powers
in making the order of June 9, 1932. I also agree that the order issued by Judge
Paredes being interlocutory in character could be set aside by Judge Zandueta as
he did. N But what I maintain is that there is another legal reason by which the
order made by Judge Zandueta in putting the private respondents in possession of
the premises is contrary to law and against the doctrine laid down by this court
in Pabico vs. Ong Pauco (43 Phil., 572) and reiterated in Gonzalez
vs. Calimbas and Poblete (51 Phil, 355).

In those two cases we have already settled that purchasers of real property
at public auction have no right to take possession of it within the year granted
by law for redemption. Relying upon this principle the petitioner herein
instituted this proceeding in order to set aside the order granted by Judge
Zandueta. If the doctrine advanced in those two cases is still in force, as it
is, there can be no question that the order of June 9 was issued in excess of
jurisdiction.

It is not good reason to dismiss this proceeding simply because the judgment
creditors and purchasers have given a bond in the amount of P14,000 in favor of
the sheriff and that the petitioner herein is fully protected by said bond.
Having been disturbed in his lawful possession, as it is admitted in the
majority opinion, the petitioner has a clear and undeniable right to maintain
this action and to pray for the preliminary mandatory injunction. When the law
recognizes several remedies to a party it should not be denied of any of them
when no such prohibition exists.

Inasmuch as according to the majority opinion the petitioner was in real
possession of the premises at the time the order of June 9 was issued and the
sheriff delivered the possession to the private respondents, the writ of
preliminary mandatory injunction should have been granted.