PANTALEON DEMETRIOU AND AUREA A. MADRID, PETITIONERS, VS. JUAN G. LESACA, JUDGE OF FIRST INSTANCE OF ALBAY, AND CIRIACO CHUNACO, RESPONDENTS.

In civil case No.  4665  of the Court of First Instance  of Albay, instituted by Ciriaco  Chunaco  against Pantaleon Demetriou, judgment was rendered on July 19, 1928, ordering the defendant to pay  the plaintiff the sum of P3,047.87, with interest and costs.  On August 26 of the same  year the judgment became final and executory.  There is nothing in the record to show when the judgment was entered in the book of judgments, but it does  appear that on December 3 of the same year, a writ of execution was issued which was returned unsatisfied.  A second writ of execution was issued on January 29, 1929, by virtue of which levy was made  upon certain  properties claimed by Aurea A. Madrid,  wife of  Pantaleon Demetriou,  in a complaint which  she  immediately  filed  and  which  was  docketed as  civil  case  No. 4997  of  the  Court  of  First Instance of Albay.  On  March  18 following, the court,  at the instance of Aurea A.  Madrid,  issued  a preliminary injunction   against defendants  Ciriaco   Chunaco  and Max.  M.  Romero, the latter  as  deputy sheriff  of the Province of Albay,  “enjoining them from selling  at public auction the properties described in the complaint (of intervention)  during the pendency of  this case and  until further order of the court.”  Judgment was rendered on this complaint  on February  24,  1933,  whereby the properties  in suit  were declared paraphernal of  Aurea A. Madrid, with the exception  of a certain part of the lot and house  described in  paragraph 3, subsection  (a),  of said complaint.  The injunction became permanent in part and was lifted in part in accordance with  the judgment. A third writ of execution was issued on October 10, 1934, by virtue of which  the respondent judge,  upon petition  of Ciriaco Chunaco,  objected to by Pantaleon Demetriou and Aurea A. Madrid, required in an order of January 18,1935, the appearance of the latter on the 26th of the said month for examination “on the properties yielding palay and the products thereof subject to levy, together with a residential lot and house of  strong materials in which the  defendant Pantaleon Demetriou has an interest or share.”   The petitioners now ask for the issuance of a writ of certiorari addressed to the respondent judge, alleging that the latter acted without jurisdiction, or in excess of that which he might have, in issuing the writ of execution of October 10, 1934, and in entering the order  of January 18,  1935, requiring the examination of Pantaleon Demetriou and Aurea A. Madrid under sections 474 and 476 of the Code of Civil Procedure.

The party in whose favor judgment is given,  may, at any  time within  five years after the entry thereof, have a writ of execution issued for its enforcement.  The judgment may be enforced after the lapse  of  this period and before the same shall have been  barred by any  statute of limitations, by instituting  an ordinary action.   (Sections 443 and 447, Code of Civil Procedure; Compania General de Tabacos vs. Martinez, 17 Phil., 160; Paterno vs. Aguila, 22 Phil., 427; Compania General de  Tabacos vs. Martinez and Nolan, 29 Phil., 515; Araxnbulo vs. Court of First Instance of Laguna and Municipality of Santa Rosa, 53 Phil., 302.)

It is not  open  to question  that the writ of execution of October 10, 1934, was issued after the lapse of five years from the  date of entry of judgment in civil case No. 4665, considering said  date as the time when the judgment became final and executory or August 26,1928.  Consequently the only question for consideration and decision is whether the  injunction issued in  civil  case  No. 4997, at the  instance of Aurea  A.  Madrid, had the  effect of suspending, while it  was in force, the  five-year  period provided in section 443.  In the affirmative case, the writ of execution of October  10,  1934, was issued within the said period. Otherwise, the five years had elapsed when the said writ was issued, and the same should be declared null and void as an act in excess of the jurisdiction  of the respondent judge.

The decisions of the states of  the Union are conflicting on this point.   Those of  California,  where sections  443 and  447 of our  Procedural Law were taken, hold  that the five-year period  within which a judgment may be enforced is not suspended by the issuance  of an injunction restraining  the execution  of  the judgment.   (Solomon  vs. Maguire, 29 Cal., 227, 237; Rogers  vs. Druffel, 46 Cal., 654; Cortez vs. Superior Court, 86 Cal., 274, 278; Buell vs. Buell, 92 Cal., 393, cited with approval in Compania General de Tabacos vs. Martinez, 17 Phil., 160; Arambulo vs. Court of First Instance of Laguna and Municipality of Santa Rosa, 63 Phil., 302.)   The contrary view prevails, however, in Mississippi (Work vs. Harper, 31 Miss., 107, 109); Georgia (Rogers vs. Smith, 98 Ga., 788, 789); and New York (Underwood vs. Green, 56 N. Y., 247, 248).  In our opinion the better rule is that announced in 21 A. L. R., 1059, citing Series vs. Cromer  (88 Va., 426), a case similar to  the present, where  it was said:

“An injunction suit brought  by a judgment debtor to restrain the sale of his home place, but not asking for an order restraining the issuance of execution, is not such a legal proceeding as  to suspend  the statute of limitations under a statute  providing that any time during which the right to sue out execution on a judgment is suspended by the terms thereof or by legal proceedings shall be omitted in computing the period of limitations prescribed.”

It  appears from the record that the injunction issued in civil  case No. 4997 was not to enjoin the execution of the judgment, but only to have the creditor Ciriaco  Chunaco and  the sheriff Max. M. Romero “abstain from selling at public auction the  properties described  in  the complaint *   *   *  during  the  pendency  of this  case and until further order  of  the court.”  It is manifest  that  the  issuance of said injunction at no time prevented Ciriaco Chunaco from executing his judgment otherwise than  by making a public sale of  the properties claimed by Aurea A.  Madrid.   The  examination of the latter as well as the debtor Pantaleon  Demetriou under sections 474  and 476 of the Code of Civil Procedure, required by the respondent judge in his order of  January 18, 1935, could have been made during the  lifetime of said injunction, inasmuch as the terms thereof did not prohibit such an examination.

Wherefore, we  hold that  the  issuance  of an injunction the terms of which do not prohibit the execution of a judgment does not suspend the  five-year period within which a writ of execution may be obtained,  and rule that in  issuing the writ of execution of  October 10, 1934; in  civil case No. 4665, and in entering the order of January 18, 1935, by virtue of said writ, the’ respondent  judge acted without jurisdiction.   The writ of certiorari prayed for is granted, with the  costs to the respondent  Ciriaco Chunaco.

Avanceña, C. J., Villa-Real, Abad Santos, Imperial, Diaz, and Laurel, JJ., concur.