JOSE ABROGAR AND JUANA DESEAR, PETITIONERS, VS. INTERMEDIATE APPELLATE COURT, SOCORRO DESEAR AND BRIGIDA DESEAR, RESPONDENTS.

Abrogar versus Intermediate Appellate Court

The Case

This is a petition for review on certiorari brought by Jose Abrogar and Juana Desear against the Intermediate Appellate Court, now the Court of Appeals, and against the private respondents Socorro Desear and Brigida Desear. The petitioners were the judgment creditors in an earlier civil case; the private respondents were the judgment debtors. When the debtors failed to satisfy a final and executory judgment, two parcels of their land were levied upon and sold at public auction. The trial court annulled that sale, the appellate court affirmed, and the petitioners came to the Supreme Court. The case matters for two enduring lessons: when a sheriff may lawfully adjourn an execution sale, and when attorney's fees may be awarded.

Procedural History

The petitioners and the private respondents were judgment creditors and judgment debtors, respectively, in a civil case decided by the trial court and affirmed by the appellate court. To satisfy that final and executory judgment, the Provincial Sheriff levied on execution on two parcels of land belonging to the private respondents and advertised them for public sale. After the auction was held and a certificate of sale issued, the private respondents went to the trial court, which annulled the sheriff's final sale for lack of notice and publication and awarded attorney's fees of 2,000 pesos in their favor. The petitioners appealed to the Intermediate Appellate Court, which affirmed the trial court in all respects. The petitioners then filed a petition for review on certiorari with the Supreme Court, assigning two errors: that the appellate court wrongly held there was no valid postponement of the auction sale originally set for March 27, 1971, and that it wrongly awarded attorney's fees of 2,000 pesos despite the absence of any prayer and any legal basis.

Facts

The private respondents failed to satisfy a final and executory judgment amounting to only 2,553 pesos. To enforce it, their two parcels of land, with a combined market value of 75,000 pesos, were levied on execution and advertised for public sale by the Provincial Sheriff of Pangasinan. The auction was scheduled for March 27, 1971, and the required notice and publication in a newspaper were made for that date.

One day before the scheduled auction, or on March 26, 1971, the trial court, upon motion of the private respondent Socorro Desear, issued an order postponing the sale on the condition that the movant pay the publication fees. The movant never paid as ordered. Because the condition was not complied with, there was no valid postponement, and the sale should have proceeded on March 27, 1971. Instead, the sheriff held the auction almost four months later, on July 16, 1971, when the two parcels were sold for 2,553 pesos only. A sheriff's certificate of sale was subsequently issued. There was no showing that Socorro Desear agreed to the July 16, 1971 auction, and it is indisputable that there was neither new notice nor new publication of that sale.

The trial court ruled that the sheriff's final sale was null and void for lack of notice and publication, and awarded attorney's fees of 2,000 pesos in favor of the private respondents. The appellate court affirmed in toto, and the petitioners elevated the matter to the Supreme Court.

Issues

• Whether or not there was a valid postponement of the auction sale originally set for March 27, 1971, such that the sale held on July 16, 1971 without new notice and publication was valid.
• Whether or not the award of attorney's fees of 2,000 pesos in favor of the private respondents was proper, there being no prayer for it in the complaint and no evidence to support it.

Applicable Provisions

Section 24 of Rule 39 of the Revised Rules of Court, as discussed in the decision, governs the adjournment of execution sales:

The officer may adjourn the sale from day to day if it is necessary to do so for lack of time to complete the sale on the date fixed in the notice.

This provision limits the sheriff to a day to day adjournment for lack of time, and the Court reads it to forbid any adjournment to another date without the written consent of the parties, which is precisely what was absent here.

Article 2208 of the New Civil Code, particularly its paragraph 11, governs the award of attorney's fees:

In the absence of stipulation, attorney's fees and expenses of litigation, other than judicial costs, cannot be recovered, except: x x x When the court deems it just and equitable that attorney's fees and expenses of litigation should be recovered.

This provision makes attorney's fees the exception rather than the rule, and it requires a factual, legal, and equitable justification stated in the decision itself.

Ruling

On the first issue, the Court held that there was no valid postponement of the March 27, 1971 auction. The trial court's order of March 26, 1971 postponed the sale only on the condition that the movant pay the publication fees, and the movant did not pay. The condition being a suspensive condition that was never fulfilled, the postponement never took effect. The Court also stressed that there was no written consent of the debtor and the creditor, and no agreement in writing authorizing the sheriff to adjourn the sale to any date agreed upon in writing by the parties. The sale set for March 27, 1971 complied with all the requirements of law, including notice and publication, and should have been held on that date. The sheriff may adjourn from day to day for lack of time to complete the sale, but he may not adjourn to another date without the written consent of the parties. Since there was no valid postponement, the auction held on July 16, 1971, almost four months later and without proper notice and publication, was null and void.

On the second issue, the Court ruled for the petitioners. There was neither allegation nor evidence to support the award of 2,000 pesos in attorney's fees. The complaint did not pray for attorney's fees, and even the transcript of stenographic notes contained no testimony to support the award. As the Court put it, the claim for attorney's fees was neither pleaded nor proved. The Court held that the exercise of judicial discretion in awarding attorney's fees demands a factual, legal, and equitable justification; without it, the award is a conclusion without a premise, its basis improperly left to speculation and conjecture. Attorney's fees are not recoverable as a matter of right. The decision must contain an express finding of fact bringing the case within the exception, and the reason for the award must be stated in the text of the decision; if stated only in the dispositive portion, it must be disallowed on appeal. The award therefore had no basis and was disallowed.

Doctrine

First, an execution sale may be adjourned from day to day only for lack of time to complete the sale on the date fixed in the notice. The officer may not adjourn the sale to another date unless the parties consent in writing. A purported postponement conditioned on an act that the movant never performs is no postponement at all, and a sale held on a later date without new notice and publication is null and void.

Second, attorney's fees are recoverable not as a matter of right but as an exception under Article 2208 of the New Civil Code. The award demands a factual, legal, and equitable justification, and the reason must be stated in the text of the decision, not merely in the dispositive portion. A claim for attorney's fees that is neither pleaded nor proved cannot be granted.

Disposition

The Supreme Court affirmed the appellate court's decision declaring the public auction sale of July 16, 1971 null and void for lack of notice and publication, but reversed the award of attorney's fees, with costs against the petitioners, and declared the decision immediately executory.

Remember This

Memorize this line: the sheriff may adjourn an execution sale from day to day for lack of time, but never to another date without the written consent of the parties, and attorney's fees must be both pleaded and proved and justified in the text of the decision. Examiners use this case on execution sales and postponements under Rule 39, and on the strict requirements for awarding attorney's fees under Article 2208.