G.R. No. L-2423




Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-2423 May 26, 1949 M. A. ZARCAL, MAGDALENA DE ZARCAL and HERIBERTO ZARCAL, petitioners, vs. S. HERRERO, REMEDIOS HERRERO VDA. DE GONZALES, FILOMENA VDA. DE HERRERO, FELIPE NATIVIDAD, Judge of First Instance of Manila, and THE SHERIFF OF CITY OF MANILA, respondents. M.A. Zarcal for petitioners. Techico & Gonzales for respondents. PARAS, J.: In an ejectment case between respondents S. Herrero, as plaintiff, and herein petitioners, as defendants (civil case No. 2801), the municipal court of Manila rendered a decision on March 5, 1947, sentencing the petitioners to vacate the premises in question and to pay to respondents Herrero the monthly rental of P77 from January 1, 1947, until the premises shall have been vacate, plus the costs. Upon appeal by the petitioners to the Court of First Instance of Manila, the respondents judge, Hon. Felipe Natividad, rendered a decision dismissing the complaint, with costs against the plaintiffs (it appear that in the Court of First Instance the complaint was amended so as to include other parties plaintiff). The plaintiffs (herein respondents other than the respondents judge and the respondents sheriff), duly submitted their record on appeal as one of the steps for elevating the case to the Court of Appeals. In the meantime, or on May 9, 1948, the respondents Herrero and other filed a petition with the Court of First Instance of Manila for the execution of the decision of the municipal court, on the ground that the defendants (herein petitioner) failed to pay or deposit the rentals for the months of January to May, 1948. On August 9, 1948, the respondent judge of the Court of First Instance of Manila issued an order granting the aforesaid petition and directing the issuance of a writ for the execution of the judgment of the municipal court. On the same date, or August 9, 1948, the record on appeal filed by the plaintiffs (herein respondents other than respondents judge and respondent sheriff) was approved by the respondents judge, and the case was ordered certified to the Court of Appeals. The petitioner have instituted the present petition for certiorari, with a view to obtaining the annulment of the order directing the issuance of a writ of execution against the petitioners. There is merit in said petition. We have already held that the judgment of the Court of First Instance, and the latter court cannot order the execution of said judgment of the municipal court which has became functus oficio (De la Fuente and Teodoro vs. Jugo and Borromeo, 76 Phil., 262). The action of the respondents judge in the ordering the execution of the decision of the municipal court, in spite of the judgment of said respondent in favor of the herein petitioners, amount to a reversal of his own judgment pending appeal by the plaintiffs (herein respondents other than respondent judge and respondent sheriff). Moreover, it appears that the execution was ordered on the ground that herein petitioners failed to pay the rentals awarded in the decision of the municipal court. This is erroneous not only because the rental to be paid or deposited by the defendants in an ejectment case pending appeal from a judgment of the Court of First Instance, is that determined by the latter court (Romero vs. Pecson, 83 Phil., 308) — in the case at bar the judgment of the Court of First Instance dismissed the complaint, — but because the defendants in an ejectment case has to pay or deposit said rentals only in case he appeals from the judgment of the Court of First Instance, in order to stay execution. In the case now before us, the petitioners are not bound to pay or deposit said rentals, because it is the plaintiffs (herein respondents other than respondents judge and respondents sheriff) who have appealed from the decision of the Court of First Instance. (Rule of Court No. 72, section 9.) The petition for certiorari is hereby granted and the order of the respondents judge in civil case No. 2102, directing the issuance of a writ for the execution of the judgment of the municipal court, is set aside. The writ of preliminary injunction heretofore issued is made permanent. So ordered, with costs against the respondents other than respondents judge and respondent judge and respondent sheriff. Moran, C.J., Ozaeta, Feria, Pablo, Perfecto, Bengzon, Tuason, Montemayor and Reyes, JJ., concur. The Lawphil Project - Arellano Law Foundation