PEDRO S. RAVELO AND CARMEN TAN RAVELO, PETITIONERS, VS. THE HONORABLE COURT OF APPEALS AND NATIONWIDE DISTRIBUTORS, INC., RESPONDENTS.

This is an appeal
by certiorari to review
the 19 March 1990 Resolution of respondent Court of Appeals in C.A.-G.R. SP No.
20210 denying due course to petitioners’ petition for certiorari, reiterated in its 20
April 1990 Resolution denying petitioners’ motion for reconsideration.

The principal issue raised in this petition is whether or not an
order granting a motion pending appeal may be enforced by the trial court after
the perfection of the appeal.

The facts of the case are not disputed.

On 14 August 1977, petitioners filed with the then Court of First
Instance (now Regional Trial Court) of Rizal a complaint for annulment and/or
reformation of contract against private respondent praying therein that the
deed of absolute sale with assumption of mortgage and the contract of lease
over a house and lot entered into with private respondent on 15 May 1967 be
declared null and void and that the parties be ordered to execute a Deed of
Mortgage over the property for at least one (1) year. The complaint was docketed as Civil Case No. 27053.^[1]

In its Answer,^[2]
private respondent asked that the validity and genuineness of the questioned
contracts be upheld and that in the remote event that the deed of sale with
assumption of mortgage be declared a simulated document or an equitable
mortgage, petitioners be ordered to refund the amounts received as
consideration for the sale. Private
respondent also prayed for damages and a return of the advances made to the SSS
and other agencies in connection with the mortgage with interest thereon.

The complaint was amended on 12 December 1977. In the Amended Complaint, petitioners
alleged that the Deed of Sale and the Lease Agreement are null and void, not
only because the same were simulated and did not represent the real intent and
agreement of the parties, but because the real purpose was to conceal the
imposition of a usurious interest rate.^[3] In
its Answer thereto, private respondent reiterated its defenses in the original
Answer and further alleged that petitioner, Atty. Pedro S. Ravelo, is a
“seasoned and experienced trial lawyer,” who is versed with the law
and could not have been “defrauded.”^[4]

On 13 June 1989, the trial court rendered a decision in Civil
Case No. 27053, the dispositive portion of which reads:

“WHEREFORE, the Court renders judgment in favor of the
defendant and against the plaintiffs -?

a) Declaring the
parties’ Deed of Sale with Assumption of Mortgage and the Contract of Lease,
both dated May 15, 1967, as valid and subsisting documents; the transactions
between the parties not to be illegal nor simulated; the defendant to have been
the party that paid off the loan in favor of the SSS and thereby saved the
property from loss thru foreclosure; and the plaintiffs to have used and
occupied the property without paying any rentals to the defendant; and

b) Ordering the plaintiffs -?

1.     
To vacate the house and lot located at and known as 1151
Pasong Tamo Street, Makati Metro Manila and surrender and deliver to the
defendant corpo­ration the peaceful possession thereof; and

2.     
To pay, jointly and severally, to the defendant corporation
monthly rentals at the rate of P4,400.00 a month from January 5, 1988 with
automatic increase at the rate of 10% every two years until they vacate the
property, all with interest at the rate of 12% per annum from the date the payment
accrued until fully paid; and

3.     
To pay, jointly and severally, to the defendant corporation
the sum of P20,000.00 as reimbursement of attorney’s fees and cost of
litigation.

Costs against the plaintiffs.

SO ORDERED.”^[5]

Copies of the decision were received by the private respondent on
23 June 1989^[6]
and by the petitioners on 26 June 1989.^[7] The
latter therefore had until 11 July 1989 to file a motion for reconsideration or
notice of appeal.

On 4 July 1989, the prevailing party filed a motion for execution
pending appeal.^[8]
Three (3) days later, or on 7 July 1989, the petitioners filed a motion for
reconsideration of the decision.^[9]
Concurrently, petitioners filed a petition for certiorari before the Court of Appeals, which was eventually
denied. The filing of this action,
described in the challenged resolution^[10] but
not mentioned in the present petition, delayed the resolution of both (a) the
motion for execution pending appeal and (b) the motion for
reconsideration. The trial court
finally resolved both motions on 5 February 1990 by granting the first and
denying the second, thus:

“If there was any shadow of doubt in favor of plaintiffs, this
last ploy completely wiped it out. This
Court is pained at fully realizing that plaintiffs are prostituting the Rules of
Court in their vain efforts to gain time and continue enjoying the property in
question for free. Plaintiffs gambled,
and lost, on the Higher Court’s looking at them with favor. This Court believes
that it cannot improve on the Court of Appeals’ Decision in said CA-G.R.
SP-18548 in disposing of their instant motion for reconsideration.

With respect to the Motion for Execution Pending Appeal, this Court
is inclined to grant the same. Sec. 2,
Rule 39 of the Rules of Court provides that the Court may, in its discretion,
order execution to issue even before the expiration of the time to appeal, upon
good reasons to be stated in the special order. To the Court’s mind,
the fact that the plaintiffs have been
in the premises in question since 1977
without paying defendant any amount whatever
for their use of the same is good
enough reason for the execution of the
decision pending appeal. It is high time that defendant
should have possession of the premises. In any event, the Court is
requiring defendant to put up a bond in the amount of P1,500,000.00 to answer
for whatever damage plaintiffs would suffer as a result of the execution of the decision
pending appeal should it later on be ruled that defendant is not entitled to
such remedy.

WHEREFORE, the plaintiffs’ Motion for Reconsideration and/or Motion
to Lift and Set Aside the Decision is hereby denied for the reasons discussed
in said Decision as well as in the Court of Appeals Decision of September 25,
1989 in CA-GR SP-18548.

Defendant’s Motion for Execution Pending Appeal is granted.

Let the Writ of Execution pending appeal be implemented by the
Deputy Sheriff of this Court upon approval of said execution bond and only
after the lapse of ten (10) days from plaintiffs’ receipt of copy hereof to
enable them to take whatever measure they may deem necessary to protect their
interest.

SO ORDERED.”^[11]

Petitioners received a copy of this Order
on 19 February 1990. On 21 February
1990, they filed a notice of appeal from the decision dated 13 June 1989.^[12]

On 22 February 1990, the trial court issued an Order directing
the Clerk of Court to forward the records of Civil Case No. 27053 to the Court
of Appeals in view of the appeal interposed by petitioners.^[13]

Thereupon, on 23 February 1990, petitioners filed a manifestation
with the Regional Trial Court of Pasig alleging that since their appeal was
perfected by the filing of the notice of appeal on 21 February 1990, the
issuance and implementation of the writ of execution, pursuant to the 5
February 1990 Order granting execution pending appeal, should be
suspended. They further aver that the
trial court’s power to order execution pending appeal ceased upon perfection of
the said appeal.^[14]

On 9 March 1990, petitioners filed with the respondent Court of
Appeals a Petition for Certiorari and
Prohibition with prayer for preliminary injunction and restraining order. The petition, docketed as C.A.-G.R. SP No.
20210,^[15]
was directed against the 5 February 1990 Order of the trial court. Petitioners contend therein that their
appeal from the decision of the trial court was perfected when they filed their
notice of appeal on 21 February 1990. As a consequence thereof, the trial court should have then suspended the
issuance and implementation of the writ of execution pending appeal because it
had already lost jurisdiction over the case.^[16]

Respondent Court of Appeals, in its Resolution of 19 March 1990,^[17]
denied due course to the abovementioned petition in this wise:

“The present petition is utterly without merit.

1.     
The defendant’s motion for execution pending appeal was filed
within said party’s period for appealing the decision, and even before
plaintiffs filed their motion for reconsideration of the decision, which motion
was also timely filed. Hence,
defendant’s motion was filed before the perfection of any appeal.

2.     
The period to appeal was tolled when plaintiffs filed
their motion for reconsideration on July 7, 1989. Consequently, when the respondent judge denied plaintiffs’
aforesaid motion and granted defendant’s motion for execution pending appeal on
February 5, 1990, the lower court no doubt still had jurisdiction over the
case.

3.     
That plaintiffs filed their notice of appeal from the
judgment and the order denying their motion for reconsideration thereof on February
21, 1990 (which was seasonably filed since they received notice of the February
5, 1990 order on February 19, 1990) is proof enough of the fact that the lower
court had not lost jurisdiction over the case.

4.     
And since the
motion for execution pending appeal was filed and was granted when the lower
court had jurisdiction over the action, the implementation of the writ of
execution cannot be suspended by the
mere fact that the losing parties had subsequently appealed from the
decision.”

Their motion for a reconsideration of this Resolution having been
denied in the respondent Court’s
Resolution of 20 April 1990,^[18]
petitioners filed this petition on 25 May 1990, well within the extended period
granted to them. They urge this Court
to set aside the challenged Resolution of the respondent Court because the
latter erred (a) in not applying in this case the provisions of Section 9, Rule
41 of the Rules of Court in relation to Section 23 of the Interim Rules and
Guidelines adopted by this Court on 11 January 1983, and (b) in not holding
that the execution pending appeal of the decision in said Civil Case No. 27053
will deprive them of the possession of their property without due process of law.^[19]

After the filing of the Comment by private respondent^[20]
and the Reply by petitioners,^[21] this
Court, in the Resolution dated
20 August 1990,^[22]
gave due course to the petition and
required the parties to submit their respective Memoranda, which they
complied with.

The instant appeal by certiorari
is devoid of merit. The
respondent Court committed no reversible error in dismissing C.A.-G.R. SP No.
20210. The due-course resolution then
of 20 August 1990 is hereby recalled.

Section 23 of the Interim Rules and Guidelines promulgated by
this Court on 11 January 1983 provides:

“SECTION 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.

In cases where a record on appeal is required the appeal is
perfected upon approval thereof by the court which should be done within ten
(10) days.”

It is clear from this section that for purposes of determining
when an appeal is deemed perfected, the commencement of the reglementary period
shall be reckoned from the last of the dates any of the parties received a copy
of the decision. It is only after all
the parties’ respective periods to appeal have lapsed that the court loses its
jurisdiction over the case.^[23] A
party must, however, file his notice of appeal within fifteen (15) days from
receipt of a final order, resolution, award, judgment or decision of any court.^[24]
The filing of a motion for reconsideration or a motion for new trial would
interrupt this period unless the same is pro-forma or is not filed in
accordance with Rule 37, in relation to Rule 15, of the Rules of Court.

As earlier stated, petitioners received a copy of the 13 June
1989 decision of the trial court in Civil Case No. 27053 on 26 June 1989. On the other hand, private respondent
received a copy thereof on 23 June 1989. Applying the aforequoted Section 23 of the Interim Rules, the basis for
determining perfection of the appeal should be 26 June 1989. Petitioners then had until 11 July 1989 to
file, and thereby perfect, their appeal. However, on 7 July 1989, or on the eleventh day of their period to
appeal, petitioners filed a motion to reconsider the decision. Earlier, on 4 July 1989, private respondent
filed a motion for execution pending appeal. The filing of the motion for reconsideration thus tolled the running of
the period to appeal. It started
running again only after receipt by the parties of copies of the 5 February
1990 Order denying the motion for reconsideration and granting the motion for
execution pending appeal. Petitioners
received a copy thereof on 19 February 1990; hence, they still had four (4)
days therefrom, or until 23 February 1990, within which to file a notice of
appeal. They filed such notice on 21
February 1990. Again, applying Section
23 of the Interim Rules, such appeal should be deemed perfected only upon the
last day to file the notice. Obviously,
therefore, the motion for execution pending appeal and its resolution were all
done before the appeal was perfected.

The order granting execution pending appeal having been issued
within the prescribed period, it can be executed or implemented even after the
filing of the notice of appeal. Such
execution merely carries out the pre-existing order over which the court
retains jurisdiction. To hold that an
order for execution pending appeal cannot be enforced by the trial court after
the appeal is perfected because it has lost jurisdiction over the case is to
negate or nullify the power granted it by Section 2, Rule 39 of the Rules of
Court.^[25]
Said section reads:

“SECTION 2. Execution
pending appeal. – On motion of the
prevailing party with notice to the adverse party the court may, in its
discretion, order execution to issue even before the expiration of the time to
appeal, upon good reasons to be stated in a special order. If a record on appeal is filed thereafter,
the motion and the special order shall be included therein.”

In Naredo vs. Yatco,^[26] this Court ruled that trial
courts have jurisdiction to issue orders for the execution of judgment to carry
out a pre-existing order even if in the meantime the record on appeal had
already been approved. The approval of
the record on appeal, if one is required, perfects the appeal.

It should be stressed that Section 6, Rule 135 of the Rules of
Court provides that when by law, jurisdiction is conferred on a court or
judicial officer, all auxiliary writs, processes and other means necessary to
carry it into effect may be employed by such court or officer.

Petitioners’ second assigned error was not raised before the
respondent Court in C.A.-G.R. SP No. 20210. It is a well-settled rule that no question will be entertained on appeal
unless it has been raised in the court below.^[27]

WHEREFORE, in view of the foregoing, the petition
is hereby DISMISSED for lack of merit.

Costs against the petitioners.

SO ORDERED.

Gutierrez, Jr., (Chairman), Bidin,
and Romero, JJ., concur.

Feliciano, J., on leave.

^[1]
Rollo, 53.

^[2]
Id., 60.

^[3]
Id., 73.

^[4]
Id., 87.

^[5]
Rollo, 104.

^[6]
Id., 29.

^[7]
Id.

^[8]
Id., 119.

^[9]
Id., 121.

^[10]
Id., 29.

^[11]
Rollo,
151-153.

^[12]
Rollo, 154.

^[13]
Id., 155.

^[14]
Id., 156.

^[15]
Id., 34.

^[16]
Rollo, 34.

^[17]
Id., 30.

^[18]
Rollo, 32.

^[19]
Id., 15.

^[20]
Id., 161.

^[21]
Id., 179.

^[22]
Id., 193.

^[23]
Associated Bank vs. Gonong, 152
SCRA 478; see also Magtibay vs. Court of Appeals, 168 SCRA 177; Sonida
Industries vs. Wasan, Sr., et al., 179 SCRA 763.

^[24]
Section 39, Batas Pambansa Blg. 129.

^[25]
Alkuino, et al. vs. Arrieta, et al., 9 SCRA 458.

^[26]
80 Phil. 220.

^[27]
Rebodos vs. WCC, 6 SCRA 717; Galicia vs. Polo, et al., 179 SCRA
371; Vencilao vs. Vano, 182 SCRA 491; Ruiz, et al. vs. Caneba, et
al., 191 SCRA 865.