LILIA T. ONG, PETITIONER, VS. COURT OF APPEALS AND VIRGINIA SARMIENTO, RESPONDENTS.

This petition seeks to review on certiorari, the decision
of the Court of Appeals, upholding the writ of execution pending appeal issued
by the trial judge.

The facts of the case are stated in the Court of Appeals
decision.

Private respondent Virginia Sarmiento  (Sarmiento) sued Eligio Dee (Dee)
for the collection of the amount of P121,759.00 representing the value of
construction materials allegedly obtained by him, for attorney’s fees and
expenses of litigation.  Dee
had earlier issued checks in the total amount of P40,000.00, but these
subsequently bounced for insufficiency of funds.  Sarmiento also prayed for the issuance of a writ of preliminary attachment.

The complaint was subsequently amended to include petitioner
Lilia Ong (Ong) as party-defendant on the allegation that she and Eligio Dee
had issued the checks and that the construction materials were delivered to the
piggery farm of Ong.

A writ of attachment was issued by the trial judge and served
upon Ong, resulting in the levy of certain hogs valued at P40,000.00.  The court later issued a temporary restraining
order (TRO) against further enforcement of the writ, pending resolution of a
motion to quash filed by Ong.

On November 4, 1988,
the trial judge rendered a decision, which was received by Ong on November 29, 1988 (p. 91, Rollo)
finding Dee and Ong jointly and severally liable for the sum of P121,759.00.

Dee and Ong filed a notice of appeal on December 2, 1988.

On December 12, 1988, Sarmiento filed a “Motion for
Immediate Execution Pending Appeal,” dated December 9, 1988, alleging that
the appeal is dilatory and frivolous.

Ong opposed the motion claiming that the trial court no longer
had any jurisdiction to act on said motion since the appeal had clearly been
perfected, and besides, there was already a writ of attachment to secure the
court’s judgment.

On January 26, 1989, the trial judge issued an order granting
Sarmiento’s motion for execution pending appeal, conditioned upon a bond the
amount of P121,759. 00.

On February 2, 1989, Ong filed a petition for certiorari and prohibition with injunction
with the Court of Appeals.  The appellate
court dismissed it on October 18, 1989.

Hence this petition questioning the validity of the appellate
court’s ruling upholding the writ of execution pending appeal.

In upholding the writ of execution pending appeal, the appellate
court observed that the trial judge had, prior to its issuance, duly noted the
presence of the circumstances laid down by Section 2, Rule 39 of the Revised
Rules of Court, allowing execution as an exception, or pending appeal, even
before final judgment; viz:

“x x x.

“a.  x x x motion by the
prevailing party with notice to the adverse party;

“b.  x x x good reasons
for issuing execution; and

“c.  x x
x the good reasons be stated in a Special Order (Lao v. Mencias, G.R. No.
L-23554, November 25, 1967; 21 SCRA 1021) (See p. 92, Rollo, CA decision).

Likewise, it accepted as “good reasons” Sarmiento’s
statements in support of her motion, that “the appeal of said defendants
is clearly and obviously frivolous and dilatory in nature, considering that they
have not adduced substantial valid and meritorious defenses against the
plaintiffs.” (p. 92, Rollo, CA decision) The appellate court also ruled
that “the filing of the bond required by the court constitutes special
ground authorizing the court to issue writ of execution pending appeal:

“x x x.

“x x x the determination of the
sufficiency or insufficiency of the special reasons rests upon the sound
discretion of the court issuing the writ of
execution pending appeal.  The
appellate court cannot interfere with the exercise of this discretion unless it
appears that there had been a grave abuse or excess of authority in doing so
(Buenaventura v. Peña, 78 Phil. 795; Naredo v. Yatco, 80 Phil. 220) or
conditions have so far changed since the order was issued as to require the
intervention of the appella(te) court (Buenaventura v. Peña, supra).  In the present case, this Court finds no
abuse of discretion nor a change of condition since the order was issued as to
require the intervention of this court (CA decision, pp. 87-94, Rollo, at p.
92)

The appellate court also disagreed with Ong’s claim that upon
filing of her notice of appeal, the trial court had lost jurisdiction to act on
Sarmiento’s motion for execution pending appeal, declaring that the mere filing
of appellant’s notice of appeal does not divest the trial court of jurisdiction
over the case, since “an appeal is not perfected on the date the notice of
appeal was filed but on the expiration of the last day to appeal,” citing
the cases of Montelibano v. Bacolod Murcia Milling Co., Inc., G.R. No. 69800,
May 5, 1985, 136 SCRA 294 and Yabut v. IAC, G.R. No. 69208, May 28, 1986, 142
SCRA 124.

Thus, the appellate court observed:

“x x x when petitioner received a copy of the decision on
November 29, 1988, an appeal thereof was deemed perfected on December 14, 1988,
the expiration of the last day to appeal by
any party.  When the private
respondent filed her motion for execution pending appeal on December 12, 1988,
it is very clear that the appeal was not yet perfected.  Considering then that the motion was filed
well before the perfection of the petitioner’s appeal, the respondent Court had
jurisdiction to act on the motion.” (CA decision, p. 91, Rollo).

We agree with the Court of Appeals.

Section 23 of the Interim Rules (implementing the 1981 Judiciary
Act, BP No. 129) promulgated on January 11, 1983, provides:

“23.  Perfection of appeal. – In cases where appeal
is taken the perfection of the appeal shall be upon the expiration of the last
day to appeal by any party.”

The Interim Rules brought about a change in the procedure for
appeal by dispensing with the appeal bond, as well as the record on appeal
(except in cases of multiple appeals). 
As a result, what determines perfection of the appeal is the expiration
of the reglementary period for appeal
(Universal Far East Corp. v. Court of Appeals, G.R. No. 64931, August 31, 1984,
131 SCRA 642; Montelibano v. Bacolod-Murcia Milling Co., Inc., supra; Yabut v.
IAC, supra; Sonida Industries, Inc. v. Wasan, Sr., G.R. No. 76342, December 4,
1989, 179 SCRA 763).

The mere filing of appellant’s notice of appeal does not divest
the trial court of its jurisdiction over the case.  The court may still take cognizance of the
other party’s motion for new trial under Rule 37, if he should opt to file one,
or, as in the instant case, a motion for execution pending appeal, provided
of course, such motions are filed within 15 days
from said party’s notice of the decision.  What is crucial to determine is the
timeliness of the filing of the motion for execution pending appeal (Sonida
Industries, Inc. v. Wasan, Sr., supra).

On the other hand, We do not agree that the writ of execution
pending appeal was premised on, or justified
by good reasons, i.e. a) that the appeal was frivolous and dilatory, and b)
sufficient bond required by the court had been posted.

In the case of Roxas v. Court of Appeals (G.R. No. L-56960,
January 28, 1988, 157 SCRA 370), We stated:

“Execution pending appeal in accordance with Section 2 of Rule
39 is, of course, the exception. 
Normally, execution of a judgment should not be had until and unless it
has become final and executory — i.e., the right of appeal has been renounced
or waived, the period for appeal has lapsed without an appeal having been taken,
or appeal having been taken, the appeal has been resolved and the records of
the case have been returned to the court of origin — in which case, execution
‘shall issue as a matter of right.’ 
(Sec. 1, Rule 39 in relation to Sec. 11, Rule 51)

“On the other hand, when the period of appeal has not expired,
execution of the judgment should not be allowed, save only if there be good
reasons therefor, in the court’s discretion. 
‘As provided in Section 2, Rule 39 of the x x Rules x x, the existence
of good reasons is what confers discretionary power on a Court x x to issue a
writ of execution pending appeal.  The
reasons allowing execution must constitute superior circumstances demanding
urgency which will outweigh the
injury or damages should
the losing party secure a reversal of the judgment.’ (Jaca v. Lumber Co., G.R. No. L-25771, March 29, 1982; 113
SCRA 107, 121)

“It is not intended obviously that execution pending appeal
shall issue as a matter of course.  ‘Good
reasons, special, important, pressing reasons must exist to justify it; otherwise, instead of an instrument
of solicitude and justice, it may well become a tool of oppression and inequity.’” (Emphasis ours)

Where the reason given is that an appeal is frivolous and
dilatory, execution pending appeal cannot be justified.  It is not proper for the trial court to find
that an appeal is frivolous and consequently to disapprove it since the
disallowance of an appeal by said court constitutes a deprivation of the right
to appeal.  The authority to disapprove
an appeal rightfully pertains to the appellate court (Heirs of Gavino Sabenal
v. Hon. Benjamin Gorospe, G.R. No. 50168, September 30, 1988, 166 SCRA 145).

Having declared that the trial judge may not rightfully determine that an appeal from its own decision is
frivolous or dilatory, it is clear that the writ of execution pending appeal
would be premised solely on the bond posted by Sarmiento.  The next question to be resolved then is
whether or not the filing of a bond, without anything more, can be considered a
good reason to justify immediate execution under Section 2 of Rule 39.

In the case of Roxas v. Court of Appeals, supra, We had occasion
to address this issue directly.  We
clarified the doctrine as follows:

“x x x to consider the mere posting of a bond a ‘good reason’
would precisely make immediate execution of a judgment pending appeal
routinary, the rule rather than the exception. 
Judgments would be executed immediately, as a matter of course, once rendered,
if all that the prevailing party needed to do was to post a bond to answer for damages that might result therefrom.  This is a
situation, to repeat, neither contemplated nor intended by law.

“There are, to be sure, statements in some of this Court’s
decisions which do generate the perception that ‘the filing of the bond by the
successful party is a good reason for
ordering execution.  Petitioner Roxas
herself cites City of Manila v. C.A. to
support her postulation of this effect. 
From that case — which adverts to Hacienda Navarra,
Inc. v. Labrador, et al. (65 Phil.
531) and People’s Bank and Trust Co. etc. v. San Jose, et al. (96
Phil. 895) — she quotes the following:

‘From what has been said, it is thus clear that the Court of
Appeals erred in not considering the city’s posting to a bond as [heirs of the
estate of a deceased person under administra] (sic) good and special reason to
justify execution pending appeal.’

“But sight should not be lost
of the factual context in which the quoted
statement was made.  In that case, the
City of Manila had succeeded in obtaining judgment for the recovery of a piece
of land it had lent to the Metropolitan Theater, and immediate execution became
imperative because the theater was insolvent and there was imminent danger of
its creditor’s foreclosing a mortgage on the property.  This combination of circumstances
was the dominant consideration which impelled the grant of immediate execution,
the requirement of a bond having been imposed merely as an additional factor,
no doubt for the protection of the defendant’s creditor.  In Hacienda Navarra, there was a special
reason for immediate execution, in addition to the posting of a bond.  There, the Court said that ‘Inasmuch as the purpose
in depositing the money is to insure its receipts by the party obtaining a
favorable judgment in the above cited civil case, the filing of a sufficient
bond for the delivery of said proceeds secures said receipt.’ And in People’s
Bank, the order involved in the case decreed payment of allowances for the
support of one of the heirs of the estate of a deceased person under
administration, and the urgent need of the
party entitled thereto was the paramount
consideration for immediate execution, not the filing of a bond.”
(emphasis ours)

Based on the foregoing discussions, We have no alternative but to
strike down the writ of execution pending appeal for lack of “good
reasons” to justify its issuance.

The other issues raised by Ong on her alleged solidary liability
are not proper for discussion in this petition for certiorari, being
errors of judgment by the trial court, correctible by appeal and which has been
already undertaken by Ong.

ACCORDINGLY, the petition is GRANTED.  The Order
dated January 26, 1989 granting the issuance of a writ of execution pending
appeal is hereby SET ASIDE and NULLIFIED, having been issued in grave abuse of
discretion.  Costs against private
respondent.

SO ORDERED.

Narvasa, (Chairman), Cruz, and
Griño-Aquino, JJ., concur.