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Rule 39 Execution, Satisfaction

And Effect of Judgments

1997 Rules on Civil Procedure


2001 Edition
Rule 39
EXECUTION, SATISFACTION AND
EFFECT OF JUDGMENTS
Rule 39 is on the subject of Execution, Satisfaction and
Effect of Judgments. This is the longest rule in the study of
Civil Procedure. Take note that there are 48 Sections. Let us
first review the fundamentals.
Q: Define execution.
A: EXECUTION is the remedy provided by law for the
enforcement of a judgment. (21 Am. Jur. 18) It is the fruit
and the end of the suit and is very aptly called the life of the
law (PAL vs. Court of Appeals, 181 SCRA 557).
It would be useless if there is judgment but you cannot
enforce the same. When you receive the decision of court in
your favor, what will you do with that? If there is no way to
enforce that decision, i-laminate mo na lang yan. Useless
eh!
Q: Who will enforce the judgment?
A: The very same court which rendered the judgment.
Q: How is execution generally done?
A: It is generally done by filing a motion for execution by
the prevailing party and the court will then issue an order of
execution, which will be followed with a writ of execution,
and the sheriff will enforce the judgment.
So, we file a motion in court after the judgment has
become final and executory.
Q: How can the court issue the order when it has already
lost jurisdiction over the case? because from what we have
learned here is that, one of the effects of the finality of
judgment is that the court loses jurisdiction over the case.
And when the court loses jurisdiction, it can no longer act on

the case. So, how can it still issue orders in that case when
actually, once the judgment becomes final and executory,
the trial court loses jurisdiction over the case and it can no
longer act in that case?
A: What is meant by that statement is that, the court can
no longer change the judgment. That is why new trial and
reconsideration is not anymore available in this stage. The
judgment is beyond the power of the court to change or
alter.
BUT definitely the court can act on that case for the
purpose of enforcing its judgment because it is absurd to
claim that a trial court has the power to try and hear a case
but once the judgment has already become final, it has no
more power to enforce it. If you will really describe
jurisdiction in its complete aspect, we can say jurisdiction is
the power of the court to act on the case, to try, to decide
and to enforce its judgment.
That would be more
complete.
Because enforcement is part of the court's
jurisdiction.
Q: Against whom shall the execution issue?
A: Generally, execution can issue only against a (losing)
party to the case and not against one who is a complete
stranger because majority of judgments are in personam.
They are only enforceable against the parties themselves or
their successors-in-interest people who derive their rights
from him. And a judgement can never be enforced against a
complete stranger who never had his day in court.
(Cruzcosa vs. Concepcion, 101 Phil. 146; Castaeda vs. De
Leon, 55 O.G. 625, Jan. 26, 1959; Bacolod vs. Enriquez, 55
O.G. 10545, Dec. 21, 1959)
Q: What portion in the decision is normally the subject of
execution ?
A: It is the dispositive portion the WHEREFORE
that is going to be enforced. (Robles vs. Timario, 58 O.G.
1507, Feb. 19, 1962)
CLASSES OF EXECUTION

Lakas Atenista
Ateneo de Davao University College of Law

Rule 39 Execution, Satisfaction


And Effect of Judgments

1997 Rules on Civil Procedure


2001 Edition
Q: What are the classes of execution under the law?
A: The following:
I.

As to their nature:
1.) COMPULSORY execution known as
Execution as a Matter of Right (Section 1)
2.) DISCRETIONARY execution known as
Execution Pending Appeal (Section 2)

II. As to how it is enforced (Section 6):


1.) EXECUTION BY MOTION
2.) EXECUTION BY INDEPENDENT ACTION
COMPULSORY EXECUTION
(Execution as a matter of right)
EXECUTION AS A MATTER OF RIGHT;
FIRST INSTANCE: NO APPEAL, JUDGMENT BECOMES
FINAL
Section 1. Execution upon judgments
or final orders. Execution shall
issue as a matter of right, on motion,
upon a judgment or order that disposes
of the action or proceeding upon the
expiration of the period to appeal
therefrom if no appeal has been duly
perfected.
If
the
appeal
has
been
duly
perfected and finally resolved, the
execution may forthwith be applied for
in the court of origin, on motion of
the
judgment
obligee,
submitting
therewith certified true copies of the
judgment or judgments or final order or
orders sought to be enforced and of the
entry thereof, with notice to the
adverse party.

The appellate court may, on motion


in the same case, when the interest of
justice so requires, direct the court
of origin to issue the writ of
examination.
Q: What are the conditions for compulsory execution?
A: The following are the conditions:
1.) FIRST CONDITION: If a judgment has disposed
already of the action or proceeding then it can be
executed ;
2.) SECOND CONDITION: The period to appeal has
expired and no appeal has been filed/taken from
the judgment.
Under the first condition, if a judgment has disposed
already of the action or proceeding then it can be executed
because if the judgment or order has not yet disposed of the
action or proceeding, that is called an interlocutory
judgment or order.
One of the effects of finality of a judgment under Rule 36
is that the prevailing party is entitled to have the judgment
executed as a matter of right. And it is the ministerial duty
of the court to execute its own judgment. So once the
judgment has become final, all that the winner or prevailing
party has to do is to file an action in court for execution, the
court has to issue.
When the law says it is a matter of right upon a
judgment or order that disposes the action or proceeding, it
means that after the judgment was rendered, there is
nothing more for the court to do because its job is over.
Therefore, if there is something more that the court can do,
as a rule, you cannot execute. That is why conditional
judgments, incomplete judgments cannot be executed.
Under the second condition, we must wait for the period
to appeal to expire before we can move for execution. So, if

Lakas Atenista
Ateneo de Davao University College of Law

Rule 39 Execution, Satisfaction


And Effect of Judgments

1997 Rules on Civil Procedure


2001 Edition
the period to appeal has not yet expired, then we cannot
execute the judgment. As corollary to that rule we have this
question:
Q: May the court refuse to execute a judgment on the
ground that the judgement was wrong or erroneous?
A: NO, because it is a matter of and the issuance of the
corresponding writ of execution upon a final and executory
judgment is a ministerial duty of the court to execute which
is compellable by mandamus. (Ebero vs. Caizares, 79 Phil.
152) The principle is: No matter how erroneous a judgment
may be, so long as the lower court had jurisdiction over the
parties and the subject matter in litigation, (in short the
judgment is valid), the said judgment is enforceable by
execution once it becomes final and executory. The error
also becomes final. If it is erroneous, the remedy is to
appeal, otherwise the error becomes final as well.
In execution, if you are not careful, there are lawyers
who are very good in thwarting an execution where a series
of maneuvers are utilized - we can still be delayed by
questioning this and that and sometimes courts are
unwitting accomplices. That is why in the 1994 of
PELAYO vs. COURT OF APPEALS
230 SCRA 606
HELD: We have time and again ruled that
courts should never allow themselves to be a
party to maneuvers intended to delay the
execution of final decisions. They must nip in the
bud any dilatory maneuver calculated to defeat
or frustrate the ends of justice, fair play and
prompt implementation of final and executory
judgment. Litigation must end and terminate
sometime and somewhere, and it is essential to
an effective administration of justice that once a
judgment has become final, the winning party be
not, through a mere subterfuge, deprived of the

fruits of the verdict. Courts must therefore guard


against any scheme calculated to bring about
that result. Constituted as they are to put an end
to controversies, courts should frown upon any
attempt to prolong them.
GENERAL RULE: Judgment is enforceable by execution
once it becomes final and executory.
EXCEPTIONS: (WOLFSON vs. DEL ROSARIO, 46 Phil. 41)
1. When there has been a change in the situation of
the parties, which makes the execution
inequitable;
2. When it appears that the controversy has never
been submitted to the judgment of the court;
3. When the judgment was novated by subsequent
agreement of the parties;
4. When it appears that the writ of execution has
been improvidently issued;
5. When the writ of execution is defective in
substance;
6. When the writ of execution is issued against the
wrong party; and
7. When the judgment debt has been paid or
otherwise satisfied.
[1] WHEN THERE HAS BEEN A CHANGE IN THE
SITUATION OF THE PARTIES
WHICH MAKE THE EXECUTION INEQUITABLE.
(Supervening Fact Doctrine)
One of the most important exceptions is the first one:
When there has been a change in the situation of the
parties which make the execution inequitable. Meaning,
from the time na nagkaroon ng final judgment up to the
present, there has been a change in the situation of the
parties so that if we will execute, the judgment becomes
inequitable already. So, this is just another way of saying

Lakas Atenista
Ateneo de Davao University College of Law

Rule 39 Execution, Satisfaction


And Effect of Judgments

1997 Rules on Civil Procedure


2001 Edition
that there has been a SUPERVENING EVENT that happened
which makes execution inequitable.
EXAMPLE: There was a case where A filed a case to eject
B from his property and B lost the case and there was a
judgment ordering him to vacate the property of A. But
while the case was going on, A mortgaged his property to
the bank. In the meantime, he failed to pay his loan and the
bank foreclosed the mortgage. So the property was sold at
public auction. And at the auction sale, B, the one occupying
it, bought the property. The owner now is B. But there is a
final judgment ejecting him. Now, shall we insist on the
judgment ejecting B? No because B is now the owner. The
fact that B became the owner is a supervening event.
PHIL. VETERANS BANK (PVB) vs. IAC
178 SCRA 645
NOTE: There was a time before that the PVB
was closed for 5 to 6 years because I think they
have some problems. So the Central Bank has to
take over. The Central Bank has ordered to stop
the operation placed under receivership, the
Central Bank will control. Now under the Central
Bank Law, once the Central Bank takes over the
control of a private bank, all its assets has to be
preserved. No assets will be sold or disposed of.
FACTS: There was somebody who sued PVB,
and PVB lost. So there was a judgment which
became final. And the winner asked the court to
execute. Practically, you have to levy on the
property of the bank. In the meantime, the PVB
was placed under receivership, where under the
law, it cannot be disposed of because it is under
the control of the Central Bank.
ISSUE: Can the prevailing party insist on the
enforcement of the judgment and get and levy
the property of the PVB?

HELD: NO. The placement of the bank under


receivership is a SUPERVENING EVENT. Once a
decision has become final and executory, it is the
ministerial duty of the court to order its
execution, admits certain exceptions. The fact
that petitioner is placed under receivership is a
supervening event that renders a judgment
notwithstanding its finality unenforceable by
attachment or execution.
SAMPAGUITA GARMENTS CORP. vs. NLRC
233 SCRA 260
FACT: An employee was terminated by his
employer on the ground of theft. He stole
company property. The management filed also a
case of theft against the employee. But in the
meantime the employee also filed a labor case
against the employer for illegal dismissal and
prayed for reinstatement with back wages. After
hearing, the NLRC ruled that there was illegal
termination and ordered the reinstatement of the
employee and payment of backwages. The NLRC
decision became final. In the meantime, the
accused was convicted in the criminal case for
theft and ordered to go to prison.
ISSUE: What happens now to the final
judgment of the NLRC reinstating the employee?
HELD: An employees conviction for theft,
which was affirmed by the RTC and the CA, is a
SUPERVENING CAUSE that renders unjust and
inequitable the NLRC decision mandating the
employees reinstatement with backwages.

Lakas Atenista
Ateneo de Davao University College of Law

Rule 39 Execution, Satisfaction


And Effect of Judgments

1997 Rules on Civil Procedure


2001 Edition
Take note however that for the supervening event to
apply, the supervening event must happen after the
judgment has become final and executory. Not that the
supervening event happened while the case was going on. If
the case is going on and something happened which you
believe would make the decision against you unfair, your
duty is to bring it to the attention of the court so that the
court deciding the case would take that into consideration.
In the case of
VALENSONA vs. COURT OF APPEALS
226 SCRA 36
HELD: While the rule is that a stay of
execution of a final judgment may be authorized
if necessary to accomplish the ends of justice, as
for instance, where there has been a change in
the situation of the parties which makes such
execution inequitable, nevertheless the said rule
cannot be invoked when the supposed change in
the circumstances of the parties took place while
the case was pending, for the reason that there
was then no excuse for not bringing to the
attention of the court the fact or circumstance
that affects the outcome of the case.
The ruling in VALENZOLA was reiterated in
ABOITIZ vs. TRAJANO
278 SCRA 387 [1997]
HELD: We are of course well aware of the
rule authorizing the court to modify or alter a
judgment even after the
same has become
executory, whenever circumstances transpire
rendering its execution unjust and inequitable.
However, this rule, we must emphasize, applies
only to cases where the facts or circumstances
authorizing such modification or alteration

transpired after the judgment has become final


executory.

[3] WHEN THE JUDGMENT WAS NOVATED BY


SUBSEQUENT AGREEMENT.
QUESTION: Can the parties enter into a compromise
agreement when there is already a decision?
ANSWER: YES. Compromise agreement is welcome
anytime before the case is filed, while the case is going on,
while the case is on appeal.
Q: Now suppose there is a decision in my favor against
you and then you approach me and say, Pwede ba pagusapan na lang natin ito? Sige okay. Then we arrive at
another agreement which we signed, where the agreement
is different from the decision in my favor. Can it be done?
A: Yes, I can waive my rights under the judgment. There
is now a new agreement between us.
Q: Can I execute on the original judgment?
A: No more, because the new agreement novated the
judgment. Take note that in case of novation, the new
obligation must be totally incompatible with the first
obligation.
A related question:
Q: Can one court by injunction or restraining order stop
the execution of a judgment of another court?
A: GENERAL RULE: NO, because that will amount to
interference.
EXCEPTIONS:(when the enforcement of a final judgment
may be stopped by way of injunction)
1.) Rule 38, Section 5:

Lakas Atenista
Ateneo de Davao University College of Law

Rule 39 Execution, Satisfaction


And Effect of Judgments

1997 Rules on Civil Procedure


2001 Edition
Rule 38, Section 5: Preliminary
injunction pending proceedings. The
court in which the petition is filed,
may grant such preliminary injunction
as
may
be
necessary
for
the
preservation of the rights of the
parties,
upon
the
filing
by
the
petitioner of a bond in favor of the
adverse party, conditioned that if the
petition is dismissed or the petitioner
fails on the trial of the case upon the
merits, he will pay the adverse party
all damages and costs that may be
awarded to him by reason of the
issuance of such injunction or the
other
proceedings
following
the
petition; but such injunction shall not
operate to discharge or extinguish any
lien which the adverse party may have
acquired upon the property of the
petitioner.
In effect, there is a final and executory judgment
but the court will issue an injunction to stop this
enforcement because of the pendency of a petition
for relief from judgment.
2.) When there is an action for annulment of judgment
of the RTC filed in the CA.
The CA may issue a writ of preliminary injunction
annulment of judgment, certiorari, or prohibition
cases where the CA will issue a preliminary injunction
to stop the RTC from enforcing its judgment pending
the resolution of whether its judgment was rendered
in excess or without jurisdiction- annulment of
judgement, certiorari, or prohibition cases where the
CA will issue a preliminary injunction to stop the RTC
from enforcing its judgement pending the resolution

of whether its judgement was rendered in excess or


without jurisdiction.
So, those are the exceptions.
EXECUTION AS A MATTER OF RIGHT;
SECOND INSTANCE: CA AFFIRMS THE RTC JUDGMENT
Q: Is there any other instances where a judgment maybe
executed as a matter of right?
A: YES, when the losing party appealed the RTC decision
to the CA and the CA affirmed the decision of the RTC. Kung
may appeal, the judgment is not final, you cannot execute.
The case is now in the CA, the CA decided in your favor, the
RTC judgment was affirmed and the CA decision has also
become final and executory. So you can now execute.
Q: How do you execute in that situation?
A: That is now covered by the second and third
paragraphs of Section 1:
If
the
appeal
has
been
duly
perfected and finally resolved, the
execution may forthwith be applied for
in the court of origin, on motion of
the
judgment
obligee,
submitting
therewith certified true copies of the
judgment or judgments or final order or
orders sought to be enforced and of the
entry thereof, with notice to the
adverse party.
The appellate court may, on motion
in the same case, when the interest of
justice so requires, direct the court
of origin to issue the writ of
execution.
Now the usual procedure no, when you win in the RTC
and the losing party appeals, the records of the case will be

Lakas Atenista
Ateneo de Davao University College of Law

Rule 39 Execution, Satisfaction


And Effect of Judgments

1997 Rules on Civil Procedure


2001 Edition
brought to the CA. Later, there will be a CA decision: The
judgment of the RTC of Davao City is affirmed in toto. Now
you have to wait for the CA judgment to become final
because that may be appealed further to the SC. If the
judgment becomes final, the clerk of court will make an
entry of final judgment of the CA decision. Normally after
that, the records from the CA will be returned to Davao. It
will be sent back to the court of origin. Once the record is
back, the RTC is supposed to tell you, the records are here.
That is the time you file a motion for execution. You will file
it in the RTC.
But sometimes, it takes months for the CA to return the
records. That is the trouble with the CA. It takes them
several months, when the case is appealed, before they tell
you that the record is here.
In the PRESENT rules, this is taken from the SC Circular
24-94 which took effect in 1994, hindi na kailangan hintayin
ang records na bumalik dito. Just get a certified copy of the
CA decision, get a copy of the entry of final judgment of the
CA. You just attach a copy of the CA judgment and a
certificate from the CA clerk of court that it is already final
and executory - meaning, that there is already entry of final
judgment. This is much faster than waiting for the records to
be returned.
The first paragraph in Section 1 normally deals with
judgment usually becoming final and executory in the RTC.
The rest of the paragraph deals with appeal which affirmed
the decision of the RTC. So that is the procedure for
execution both cases, execution is a matter of right
because judgment is final and executory.
The alternative which is the last paragraph, in the
interest of justice, you can file also your motion for
execution in the CA and the CA will direct the RTC to issue
the writ of execution.

EXECUTION AS A MATTER OF RIGHT;


THIRD INSTANCE: CASES UNDER SECTION 4
Q: Is there another instance when execution becomes a
matter of right?
A: This is the third instance found in Section 4:
Sec. 4. Judgments not stayed by
appeal. - Judgments in action for
injunction, receivership, accounting
and support, and such other judgments
as are now or may hereafter be declared
to be immediately executory, shall be
enforceable after their rendition and
shall not be stayed by an appeal taken
therefrom, unless otherwise ordered by
the trial court. On appeal therefrom,
the appellate court in its discretion
may
make
an
order
suspending,
modifying, restoring or granting the
injunction, receivership, accounting,
or award of support.
The stay of execution shall be upon
such terms as to bond or otherwise as
may be considered proper for the
security or protection of the rights of
the adverse party. (4a)
GENERAL RULE: If there is an appeal, the judgment will
be stayed.
EXCEPTIONS (Under Section 4): Judgments in actions for
injunction, receivership, accounting, support, judgment
declared to be immediately executory.
So, actions for injunction, receivership, accounting,
support. So for example: theres an injunction from the
court: The defendant is enjoined from trespassing on
plaintiffs land. Then you appealed. So, the decision is not
final. Now, if the judgment is not yet final, what will you do
in the meantime. So, youll say; Ill just continue to

Lakas Atenista
Ateneo de Davao University College of Law

Rule 39 Execution, Satisfaction


And Effect of Judgments

1997 Rules on Civil Procedure


2001 Edition
trespass because anyway the judgment is not yet final. Ah
hindi yan pwede. Even if the judgment is not yet final, even
if it is on appeal, you have to honor the injunction. So, in
effect, it is a matter of right.
Another Example: An order directing you to render an
accounting. Take the case of recovery of possession of land
with accounting of the income that you received. After trial,
Okey, Defendant, you turn over the possession of the
property to the plaintiff and you render an accounting.
Appeal ka. Pag appeal mo, there must be an accounting in
the meantime.
So, if there is a judgment for an action for support, you
must comply with the judgment even before it becomes
final. So, the amendment now includes support and this
phrase, such other judgments as are now or may hereafter
be declared to be immediately executory. Any judgment
which is declared by law to be immediately executory has to
be enforced even before it becomes final and executory
even if there is an appeal.
Q: Give an example of a law which declares a judgement
to be immediately executory?
A: The best example would be the Summary Procedure
where a decision of the MTC in a civil case is appealed to the
RTC, the decision of the RTC is immediately executory even
if we go to the CA. It has to be executed unless the appellate
court will stop the execution in the meantime.
EXECUTION AS A MATTER OF RIGHT;
FOURTH INSTANCE: FORCIBLE ENTRY AND UNLAWFUL
DETAINER CASES
Q: Is there another instance when execution becomes a
matter of right?
A: YES, under Rule 70 a judgment of the MTC in a
forcible entry or unlawful detainer case is immediately

executory (i.e. subject to immediate execution) even if it is


not yet final and executory.
TO SUMMARIZE:
Q: When is execution a matter of right?
A: In the following:
1.) Section 1, paragraph 1 no appeal; judgment
becomes final;
2.) Section 1, paragraph 2 there is an appeal; once
the CA judgment becomes final;
3.) Section 4 Judgment in an action for injunction,
receivership, accounting, support, judgment
declared to be immediately executory; and
4.) Rule 70 Judgments in Forcible Entry and
Unlawful Detainer cases.
DISCRETIONARY EXECUTION
(Execution pending appeal)
Section 2. Discretionary execution.

(a) Execution of a judgment or


final order pending appeal. On motion
of the prevailing party with notice to
the adverse party filed in the trial
court while it has jurisdiction over
the case and is in the possession of
either the original record or the
record on appeal, as the case may be,
at the time of the filing of such
motion,
said
court
may,
in
its
discretion, order the execution of a
judgment or final order even before the
expiration of the period to appeal.
After the trial court has lost
jurisdiction, the motion for execution
pending appeal may be filed in the
appellate court.

Lakas Atenista
Ateneo de Davao University College of Law

Rule 39 Execution, Satisfaction


And Effect of Judgments

1997 Rules on Civil Procedure


2001 Edition
Discretionary execution may only
issue upon good reasons to be stated in
a special order after due hearing.
(b) Execution of several, separate
or partial judgments. A several,
separate or partial judgment may be
executed under the same terms and
conditions as execution of a judgment
or final order pending appeal.
Well now go to the second type of execution discretionary or execution pending appeal. Discretionary,
meaning, the court may or may not order the execution.
Here, the prevailing party files a motion for execution
within the 15 days period. So in other words, the judgment
is not yet final and executory, normally, within the period to
appeal.
Q: Normally, can you file a motion for execution within
the period to appeal?
A: As a rule, you cannot because it is not yet final. But by
EXCEPTION, Section 2 allows you, provided, according to the
last paragraph, discretionary execution may only issue upon
good reason to be stated in the special order after due
hearing.
Q: Therefore, what are the requisites for discretionary
execution?
A: The following are the requisites for discretionary
execution:
1.) There must be a motion filed by the prevailing
party;
2.) There must be a notice of the motion given to the
adverse party; and
3.) There must be good reasons to execute to be
stated in a special order after due hearing.

Why discretionary? Because the court may or may not


grant the execution depending on whether there is a good
reason or no good reason. Unlike in Section 1, when the
judgment has become final and executory, you do not have
to cite any good reason. The only reason for the execution is
that the judgment becomes final and executory. But in the
case of execution pending appeal, you must justify it the
party must convince the court to grant the execution. And
remember according to the SC, execution under Section 2 is
not the general rule, that is the exception.
The requirement of good reason is important and must
not be overlooked, because if the judgment is executed and,
on appeal, the same is reversed, although there are
provisions for restitution, oftentimes damages may arise
which cannot be fully compensated. Accordingly, execution
should be granted only when these considerations are
clearly outweighed by superior circumstances demanding
urgency, and the above provision requires a statement of
those circumstances as a security for their existence. (City
of Bacolod vs. Enriquez, 101 Phil. 644)
It is even a misnomer execution pending appeal. For all
you know, the losing party may or may not appeal. It is
actually called execution pending appeal because you are
filing the motion within the period to appeal.
Q: What will happen if there are no good reasons?
A: The writ of execution is void because it does not state
why you are executing a judgment. (AFWU vs. Estipona, L17934, Dec. 28, 1961) And remember that execution
pending appeal is the exception rather than the rule. And
there is a possibility that the judgment in your favor will be
reversed on appeal.
Q: Suppose we will execute the judgment pending
appeal and the appeal will proceed then it will be reversed,
what will happen then?

Lakas Atenista
Ateneo de Davao University College of Law

Rule 39 Execution, Satisfaction


And Effect of Judgments

1997 Rules on Civil Procedure


2001 Edition
A: If that happens, then there is Section 5 eh di,
magsaulian tayo if it is reversed totally, partially, or annulled
on appeal or otherwise. There will be MUTUAL RESTITUTION.
That is the remedy under Section 5. But the trouble is ang
hirap man ng saulian, eh. There could not be a 100% perfect
restitution. That is the same asking the question, how can
you unscramble an unscrambled egg? This is one reason
why execution pending appeal is not favored.
Section 5. Effect of reversal of
executed judgment. - Where the executed
judgment
is
reversed
totally
or
partially, or annulled, on appeal or
otherwise, the trial court, may, on
motion, issue such orders and justice
may warrant under the circumstances
(5a)
Q: Give examples of GOOD REASONS which would justify
execution pending appeal.
A: Following are example of good reasons:
1.) When there is danger of the judgment becoming
INEFFECTUAL. (Scottish Union vs. Macadaeg, 91 Phil.
891);
In this case of MACADAEG, the plaintiff sued a
foreign corporation doing business in the Philippines.
So it has assets no? The plaintiff sued the foreign
company and he won, there was award, but hindi pa
final. In the meantime, plaintiff learned the foreign
company is going to stop completely its business in
the Philippines and they are going to send back all
their assets abroad. Sabi ng na plaintiff: Aba
delikado ako. Suppose after the appeal, I still win and
I will start running after the defendant na wala
naman dito. It has no more office, no operations, no
assets; but in the meantime meron pa? So the

plaintiff filed a motion for execution pending appeal.


If we will wait for the judgment to become final, by
that time the judgment will become ineffectual.
2.) OLD AGE; There was a case an old woman files a
case against somebody to recover her land from the
defendant which the latter has deprived her of the
property for years. The defendant enjoyed the
property and the fruits. After years of litigation she
won, she was about 80. And then mag-aappeal pa
yong kalaban. The old woman filed a motion in court
asking for immediate execution even if the judgment
is not yet final on the argument that I have been
deprived for years of the possession and of the
property; and there is a probable appeal which may
take another couple of years. By the time I win the
case on appeal, I may already be dead. I have not
enjoyed the property and the fruits. The SC said, all
right that is a good reason.
3.) Where the appeal is for the purpose of DELAY;
Q: How about the argument that the intended
appeal is dilatory? It is only intended to prolong the
supposed execution and therefore the losing party
has a chance to win the appeal. Is that a good
ground for execution pending appeal ?
A: In the old case of PRESBITERO vs. RODAS (73
Phil. 300) and JAVELLANA vs. QUERUBIN (July 30,
1966) the SC said that, that is a good reason when
the appeal is interposed for delay.
However, in the case of AQUINO vs. SANTIAGO
(161 SCRA 570) the SC said that it is not a ground
because it is as if the trial court is already acting like
the CA. It is only the CA which has the power to claim
that the appeal is without merit. Thats another
reasoning.

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Ateneo de Davao University College of Law

10

Rule 39 Execution, Satisfaction


And Effect of Judgments

1997 Rules on Civil Procedure


2001 Edition
But in the case of HOME INSURANCE CO. vs. CA
(184 SCRA 318), the SC ruled that, that would be a
good reason again specially that there are many
factors to show the inequity of not executing the
judgment immediately (if coupled with other reason).
Thats why in the case of

PB COM. vs. COURT OF APPEALS


279 SCRA 364 [Sept. 23, 1997]
HELD: It is significant to stress that
private respondent Falcon is a juridical entity
and not a natural person. Even assuming that
it was indeed in financial distress and on the
verge of facing civil or even criminal suits, the
immediate execution of a judgment in its
favor pending appeal cannot be justified as
Falcon's situation may not be likened to a
case of a natural person who may be ill or
may be of advanced age.
Even the danger of extinction of the
corporation will not per se justify a
discretionary execution unless there are
showings of other good reasons, such as for
instance, impending insolvency of the adverse
party or the appeal being patently dilatory.
Hence, it is not within competence of the trial
court, in resolving a motion for execution
pending appeal, to rule that the appeal is
patently dilatory and rely on the same as its
basis for finding good reason to grant the
motion. Only an appellate court can
appreciate the dilatory intent of an appeal as
an additional good reason in upholding an
order for execution pending appeal which may
have been issued by the trial court for other
good reasons, or in cases where the motion
for execution pending appeal is filed with the
appellate court in accordance with Section 2,
paragraph (a), Rule 39 of the 1997 Rules of
Court.

HOME INSURANCE CO. vs. COURT OF


APPEALS
184 SCRA 318
HELD: A good and sufficient reason upon
which to issue execution of the judgment
pending appeal is when the appeal is being
taken for the purpose of delay. While it is true
that it is not for the trial court to say that the
appeal may not prosper or that it is frivolous
[so,
the
SC
is
aware
of
these
pronouncements], there are circumstances
which may serve as cogent bases for arriving
at such a conclusion. Dean I: An example
where the trial court maybe justified in saying
that the appeal is dilatory is in default
judgements where there is no evidence for
the defendant. And then the defendant
appeals. Now what is the chance of reversal
when all the evidence is for the plaintiff? The
possibility that the judgment will be reversed
is almost zero (0). Therefore the court can
rule that the appeal is dilatory and then order
the execution of the judgment pending appeal
upon motion of the plaintiff.
The SC continues: Another vital factor
which led trial court to allow execution
pending appeal was the pendency of the case
for more than 17 years so that the purchasing
power of the peso has undeniably declined.
Petitioner should be given relief before it is
too late.

4.) When the successful party files a BOND;

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11

Rule 39 Execution, Satisfaction


And Effect of Judgments

1997 Rules on Civil Procedure


2001 Edition
Q: Here is a controversial question: How about an
instance when the winning party offers to put up a
bond. He says; Alright, I am asking for an order
pending appeal. I will put up a bond to answer for
any damages that the defendant may suffer in the
event that he wins the appeal.
A: In the old case of HACIENDA NAVARRA vs.
LABRADOR (65 Phil 635), the SC simply implied that
there is a good ground. HOWEVER, the SC denied
that implication in later cases. Among which were the
cases of ROXAS vs. CA (157 SCRA 370) and PNB vs.
PUNO, (170 SCRA 229) and PHOTOQUICK INC. vs.
LAPENA, JR. (195 SCRA 66).
PHILIPPINE NATIONAL BANK vs. PUNO
170 SCRA 229
HELD: The mere filing of a bond would
not entitle the prevailing party to an
execution pending appeal. Whatever doubts
may have been generated by early decisions
involving this matter, starting with Hacienda
Navarra, Inc. vs. Labrador, et al., have been
clarified in Roxas vs. Court of Appeals, et al.
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 the damages that might result therefrom.
This is a situation, to repeat, neither
contemplated nor intended by law.
So, we might say that the posting of a bond
would be an ADDITIONAL GOOD REASON but it is

NOT BY ITSELF a good reason. So, the case of


HACIENDA NAVARRA VS. LABRADOR has been
misinterpreted.
The second paragraph of Section 2 [a]:
After the trial court has lost
jurisdiction, the motion for execution
pending appeal may be filed in the
appellate court.
Q: Where can you file your motion for execution pending
appeal?
A: It DEPENDS:
1.) TRIAL COURT - while it has jurisdiction over the
case and the court is still in possession of the
records of the case. Meaning: (1.) the
judgment has not yet become final - it is still
within the 15 day period, and (2.) the court
still is in possession of the records of the case.
2.) APPELLATE COURT after the trial court has
already lost jurisdiction, the motion for
execution pending appeal may already be
filed in the appellate court.
So, if the RTC has no more jurisdiction, then doon ka na
mag-file ng motion sa CA.
Q: When will the court lose jurisdiction over the case ?
A: With regard to execution pending appeal, you can
correlate this with RULE 41, SECTION 9, to wit:
Rule 41, Section 9. Perfection of
appeal; effect thereof. - A partys
appeal by notice of appeal is deemed
perfected as to him upon the filing of
the notice of appeal in due time.

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Ateneo de Davao University College of Law

12

Rule 39 Execution, Satisfaction


And Effect of Judgments

1997 Rules on Civil Procedure


2001 Edition
A partys appeal by record on appeal
is deemed perfected as to his with
respect to the subject matter thereof
upon approval of the record of appeal
filed in due time.
In appeals by notice of appeal, the
court loses jurisdiction over the case
upon the perfection of the appeals
filed in due time and the expiration of
the time to appeal of the other
parties.
In appeals by record on appeal, the
court loses jurisdiction only over the
subject
matter
thereof
upon
the
approval of the records on appeal filed
in due time and the expiration of the
time to appeal of the other parties.
In
either
case,
prior
to
the
transmittal of the original record of
the record on appeal, the court may
issue orders for the protection and
preservation of the rights of the
parties which do not involve any matter
litigated
by
the
appeal,
approve
compromises, permit appeals of indigent
litigants,
order
execution
pending
appeal in accordance with Section 2 of
Rule 39, and allow withdrawal of the
appeal. (9a)
The phrase order execution pending appeal in
accordance with Section 2 of Rule 39 was not there in the
Old Rules. Now, that has been added and it jives with
Section 2 paragraph (a). Now, for as long as the motion is
filed, before the court loses jurisdiction and provided that
the records are still with the trial court , even if the appeal is
subsequently perfected, it can still act on the motion for
execution pending appeal.

Now, let us go back to Section 2, Rule 39 on execution of


several, separate or partial judgments meaning, there are
several judgments arising from the same case:
Rule 39, Section 2 [b]:
b) Execution of several, separate
or partial judgments. - A several,
separate or partial judgment may be
executed under the same terms and
conditions as execution of a judgment
or final order pending appeal. (2a)
Let us correlate this provision with Rule 36, Sections 4
and 5 AND Rule 37, section 8:
RULE 36, Sec. 4. Several judgments.
In
an
action
against
several
defendants, the court may, when a
several judgment is proper, render
judgment against one or more of them,
leaving the action to proceed against
the others. (4)
RULE 36, Sec. 5.
Separate
judgments. - When more than one claim
for relief is presented in an action,
the court, at any stage, upon a
determination of the issues material to
a
particular
claim
and
all
counterclaims
arising
out
of
the
transaction or occurrence which is the
subject matter of the claim, may
render a separate judgment disposing
of such claim. The judgment shall
terminate the action with respect to
the claim so disposed of and the action
shall proceed as to the remaining
claims. In case a separate judgment is
rendered, the court by order may stay

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13

Rule 39 Execution, Satisfaction


And Effect of Judgments

1997 Rules on Civil Procedure


2001 Edition
its enforcement until the rendition of
a subsequent judgment or judgments and
may prescribe such conditions as may be
necessary to secure the benefit thereof
to the party in whose favor the
judgment is rendered. (5a)
RULE 37, Sec. 8. Effect of order
for partial new trial. - When less than
all of the issues are ordered retried,
the court may either enter a judgment
or final order as to the rest, or stay
the enforcement of such judgment or
final order until after the new trial.
(7a)
Q: Can there be two or more judgments arising out of
one case?
A: YES. (Rule 36, Sections 4 and 5)
Q: Can the first judgment be immediately executed while
waiting for rendition of the second judgment?
A: Generally, the court will decide. If the court agrees,
there has to be a good reason.
There is one interesting case on execution pending
appeal the case of
RCPI vs. LANTIN
134 SCRA 395
FACTS: The case of Lantin was an action for
damages. The court awarded the plaintiff said
damages. So, the plaintiff moved for discretionary
execution.
ISSUE: Whether or not execution pending
appeal is proper in a judgment for damages.

HELD: The execution pending appeal may be


proper for enforcing the collection of ACTUAL
DAMAGES, but it is not proper to enforce the
payment of moral or exemplary damages. So, this
is where the SC distinguished.
Why is it that execution pending appeal is
proper for the collection of actual damages? In
actual or compensatory damages, the amount is
certain. Normally, there are receipts. The amount
is based on evidence.
But the award for moral or exemplary
damages is uncertain and indefinite. It is based
on abstract factors like sleepless nights,
besmirched reputation. It is hard to quantify it
based on evidence.
The SC said, in many cases the trial court
awards a huge amount for exemplary damages
but on appeal, the CA refused to award or totally
eliminate the award. So, if the award of moral or
exemplary damages is not certain or fixed, the
execution pending appeal may not be proper to
enforce its execution.
Sec.
3.
Stay
of
discretionary
execution. - Discretionary execution
issued under the preceding section may
be stayed upon approval by the proper
court of a sufficient supersedeas bond
filed by the party against whom it is
directed,
conditioned
upon
the
performance of the judgment or order
allowed to be executed in case it shall
be finally sustained in whole or in
part. The bond thus given may be
proceeded against on motion with notice
to the surety. (3a)

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Rule 39 Execution, Satisfaction


And Effect of Judgments

1997 Rules on Civil Procedure


2001 Edition
Q: Now, assuming that there is an execution pending
appeal in favor of the plaintiff under Section 2 and I am the
defendant, is there a way for me to stop the execution
pending appeal?
A: Your remedy is to apply Section 3. The defendant will
now ask the court to fix a supersedeas bond to stop the
execution pending appeal. The bond will answer for any
damages that the plaintiff may suffer if the defendants
appeal is not meritorious.
And once the supersedeas bond is filed, the court has to
withdraw the execution pending appeal. Supersedeas bond
under Section 3 is conditioned upon the performance of the
judgment or order allowed to be executed in case it shall be
finally sustained in whole or in part.
GENERAL RULE: When a defendant puts up a
supersedeas bond, the court shall recall the execution
pending appeal because discretionary execution is the
exception rather than the general rule.
EXCEPTION:
Notwithstanding
the
filing
of
the
supersedeas bond by the appellant, execution pending
appeal may still be granted by the court IF THERE ARE
SPECIAL AND COMPELLING REASONS justifying the same
outweighing the security offered by the supersedeas bond.
(De Leon vs. Soriano, 95 Phil. 806)

EXECUTION BY MOTION
EXECUTION BY INDEPENDENT ACTION
Sec. 6. Execution by motion or by
independent action. - A final and
executory judgment or order may be
executed on motion within five (5)
years from the date of its entry. After
the lapse of such time, and before it
is
barred
by
the
statute
of
limitations, a judgment may be enforced
by action. The revived judgment may
also be enforced by motion within five
(5) years from the date of its entry
and thereafter by action before it is
barred by the statute of limitations.
(6a)
Q: How do you execute a judgment?
A: You file a motion for execution before the same court
which rendered the judgment.
Q: How is the execution enforced?
A: There are two 2 modes under Section 6:
1.) Execution by motion within five (5) years from
the date of its entry; and
2.) Execution by independent action within five (5)
to ten (10) years.

EXAMPLE OF EXCEPTION: Judgment for SUPPORT. The


same
may
be
executed
pending
appeal
even
notwithstanding the filing of a supersedeas bond by the
appellant. (De Leon vs. Soriano, 95 Phil. 806) Support is
something which should not be delayed. What is the use of
the supersedeas bond when the need of the plaintiff is today
and not 5 or 6 weeks from now? [aber?]

Execution BY MOTION means that the prevailing party


shall ask the court to issue a writ of execution by simply
filing a motion in the same case.

Alright, let us go to the next important classification of


execution. The other classification as to the manner of
enforcement could be by MOTION or by INDEPENDENT
ACTION.

EXAMPLE: I am the plaintiff and I have a judgment here


against the defendant. I do not know of any assets of the
defendant because the defendant for the meantime is as
poor as a rat. But after a certain period of time he becomes

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Ateneo de Davao University College of Law

15

Rule 39 Execution, Satisfaction


And Effect of Judgments

1997 Rules on Civil Procedure


2001 Edition
a wealthy man. All I have to do is to file a motion and the
court will order the execution, provided the motion is filed
within 5 years from the date of the entry of judgment. The
date of the entry of judgment and the date of finality are the
same (Rule 36, Section 2).
Q: Suppose the defendant becomes rich after 5 years,
can I still file a motion to execute?
A: No more, because execution by motion must be filed
within 5 years only from the date of its entry. If the
judgment was not executed within the 5-year period, the
judgment has become dormant.
Q: What is a dormant judgment?
A: A DORMANT judgment is one that was not executed
within 5 years.
Q: So, how can that (dormant) judgment be awaken?
A: The procedure is to file another civil action. A civil
action for revival of judgment. That is what you call
EXECUTION BY INDEPENDENT ACTION which must be filed
before it is barred by the statute of limitations. The second
sentence states, after the lapse of such time (which is 5
years) and before it is barred by the statute of limitations, a
judgment may be enforced by action.
Q: When will it be barred by the statute of limitations ?
A: According to Article 1144 of the New Civil Code, the
judgment may be enforced only within ten (10) years.
Therefore, since the judgment will be enforced by motion
for five (5) years, then after the fifth year, it will be enforced
by independent action. So, I will start the civil action for
revival of judgment between or after the 5th year but before
the 10th year. So, that is what we have to remember.
Q: Do you mean to tell me that I have to file the case all
over again, practically repeating what happened 5 years
ago?

A: NO, because the judgment in the independent action


is a judgment reviving the first judgment.
For example, more than 5 years ago I sued you to collect
on a promissory note and you alleged payment, and you lost
and the court said that you are liable to me. On the seventh
year when I revived that judgment, my rights are no longer
based or derived on the promissory note but on such
judgment. But you can still invoke other defenses such as
lack of jurisdiction, fraud. But you cannot question the
correctness of the original judgment because that is already
res adjudicata. You are entitled to put up any defense that
you have against me provided that you cannot question the
correctness of the original judgment. That is the rule.
Q: Discuss briefly the nature of the action for
enforcement of a dormant judgment.
A: The action for enforcement of a dormant judgment is
an ordinary civil action the object of which is two-fold,
namely, (a) to revive the dormant judgment, and (b) to
execute the judgment reviving it, if it grants the plaintiff any
relief. Hence, the rights of the judgment-creditor depend
upon the second judgment. Being an ordinary civil action, it
is subject to all defenses, objections and counterclaims
which the judgment-debtor may have except that no inquiry
can be made as to the merits of the first judgment.
Therefore, defenses that do not go to the merits of the first
judgment, such as lack of jurisdiction, collusion, fraud, or
prescription, may be set sup by the judgment-debtor. (Cia.
Gral. De Tabacos vs. Martinez, 17 Phil. 160; Salvante vs. Ubi
Cruz, 88 Phil. 236) [Taken from Remedial Law Reviewer by
Nuevas]
Q: Give the exception to the rule on dormant judgment.
A: The only exception is the judgment for support which
does not become dormant, nor does it prescribe. You can
execute it anytime even beyond the 5-year period and any
unpaid installment may be executed by motion. (Florendo
vs. Organo, 90 Phil. 483) So, even if the judgment is more

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16

Rule 39 Execution, Satisfaction


And Effect of Judgments

1997 Rules on Civil Procedure


2001 Edition
than 5 years old, the defendant defaulted on the seventh
year, you just file a motion to collect that judgment.
Q: Suppose the judgment was executed and the property
of the defendant was levied on the 4th year, and the next
stage is the auction sale.
A: The SC said the auction sale must also be WITHIN 10
years. So, even if the property was levied, the auction sale
must be within 10 years. Not only the levy of the property
must be done within 10 years but also the including the
auction sale, otherwise, any auction sale done beyond 10
years in null and void.
Now, look at the last sentence in Section 6: The revived
judgment may also be enforced by motion within five (5)
years from the date of its entry and thereafter by action
before it is barred by the statute of limitations.
For example, I have here a judgment nine (9) years ago.
I want to enforce it by action to revive judgment. You mean
to tell me that the revived judgment is good for another ten
(10) years? Another 5 years for motion to a right of action
and then I can still revive it within 10 years?
Alright, in the original case of PNB vs. BONDOC (14 SCRA
770), the SC said that the period applies all over again from
the finality of the revived judgment. So, you have another
ten (10) years. However, this principle is abandoned in the
later case of PNB vs. VELOSO (32 SCRA 266), the SC said
that the original period is only computed from the date of
the original judgment.
And of course, because of those 2 conflicting cases, the
court resolved those issues in the case of LUZON SURETY
CO. vs. IAC (151 SCRA 652) where the SC said, the later
doctrine of VELOSO prevails. So, with that ruling, the 10year period applies only from the date of the original
judgment, but you cannot say that once it is revived, you
have another 10 years.

But now, you look at the new law: The revived


judgment may also be enforced by motion within five (5)
years from the date of its entry and thereafter by action
before it is barred by the statute of limitations. Ano yan?
That is a revival of the BONDOC ruling! Binalik yung original
ruling which is, the revived judgment is good for another 10
years.
So, I repeat, the last sentence has resurrected the ruling
in the case of PNB vs. BONDOC and superseded again
LUZON vs. IAC. You are entitled to another 10 years from the
date of the revived judgment.
ILLUSTRATION:
Example: First judgment became final in 1990. You can
enforce that until 2000 by motion (1990-1995) or by
independent action (1995 2000). Suppose in 2000, you
were able to secure a second judgment reviving the first
judgment, under the new rules, there is another ten years.
The first judgment by motion. The next 5 years is by
independent action. So, to illustrate:

1990

1995

5 years
by motion

10 years
Article 1144, Civil Code

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Ateneo de Davao University College of Law

2000

5 years
by independent
action

2005
2010

5 years
by motion

10 years
last sentence of Section 6

ARCENAS vs. COURT OF APPEALS

17

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Rule 39 Execution, Satisfaction


And Effect of Judgments

1997 Rules on Civil Procedure


2001 Edition
299 SCRA 733 (December 4, 1998)
HELD: The purpose of the action for revival
of a judgment is not to modify the original
judgment subject of the action but is merely to
give a creditor a new right of enforcement from
the date of revival.
The rule seeks to protect judgment creditors
from wily and unscrupulous debtors who, in order
to evade attachment or execution, cunningly
conceal their assets and wait until the statute of
limitation sets in.
Sec. 7. Execution in case of death
of party. - In case of the death of a
party, execution may issue or be
enforced in the following manner:
(a)
In case of the death of the
judgment obligee, upon the application
of his executor or administrator, or
successor in interest;
(b)
In case of the death of the
judgment obligor, against his executor
or
administrator
or
successor
in
interest, if the judgment be for the
recovery of real or personal property,
or the enforcement of a lien thereon;
(c)
In case of the death of the
judgment obligor, after execution is
actually
levied
upon
any
of
his
property, the same may be sold for the
satisfaction
of
the
judgment
obligation, and the officer making the
sale shall account to the corresponding
executor or administrator for any
surplus in his hands. (7a)

Q: What is the effect of a death of a party on the


execution of a judgment?
A: The following:
1.) If it is the obligee (the creditor) will die after he
wins the case, his executor or administrator,
his legal representative or his heirs and
successors in interest can enforce the
judgment. They will be the one to collect.
(paragraph [a])
2.) If it is the defendant (obligor) who dies and there
is final judgment which is recovery of real or
personal property, the judgment is executed
against the administrator or executor because
this is an action which survives. (paragraph
[b]);
3.) Under par. (c), it is the death of the obligor in a
money claim. This is related to Rule 3, Section
20. However, the timing of the death is
different. Let us connect these with Rule 3,
Sec. 20:
Sec. 20. Action on contractual
money claims. - When the action is for
recovery
of
money
arising
from
contract, express or implied, and the
defendant dies before entry of final
judgment in the court in which the
action was pending at the time of such
death, it shall not be dismissed but
shall instead be allowed to continue
until entry of final judgment. A
favorable judgment obtained by the
plaintiff therein shall be enforced in
the manner especially provided in these
Rules for prosecuting claims against
the estate of a deceased person. (21a)

This is related to Rule 3, Section 20.

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Rule 39 Execution, Satisfaction


And Effect of Judgments

1997 Rules on Civil Procedure


2001 Edition
So, for EXAMPLE: A filed a case against B to collect an
unpaid loan. What is the effect to the case if B dies? It will
depend on what stage of the case he dies. If he died before
final judgment could be rendered by the court (before entry
of final judgment), there will be a substitution of party and
the case will continue until entry of final judgment.
Suppose, there is already entry of final judgment and he
dies, it will depend whether there was already a levy on
execution. Meaning, there was already entry of final
judgment but before the property is levied. This should not
apply in Rule 39 because Section 7 [c] states that after
execution is levied.
But my question is no levy. The procedure there is found
in the Special Proceedings. The judgment shall be enforced
in the manner provided for by the Rules on claims against
the estate of the deceased under Rule 86. And that is also
mentioned in Rule 3, Section 20. It shall be enforced in the
manner provided for against the estate.
Q: Suppose the defendant dies when there is already a
levy. What will happen?
A: The auction sale will proceed as scheduled in
connection with Section 7 [c] because the law says the
same may be sold for the satisfaction of the judgment
obligation. Meaning, the auction sale or the execution sale
shall proceed as scheduled. No more substitution here.
So that question, What is the effect of the death of a
party on a pending civil case is a question with so many
angles anong klaseng kaso?; is it one which is personal in
nature or not?; if it is not, is it one which survives or one
which does not?; if it does not survive, who died?; the
plaintiff or the defendant? if it is the defendant, did he die
before entry of final judgment?; did he die after entry of final
judgment but before there could be levy or execution?; or
did he die after levy or execution? This last question is
answered by Section 7 [c].

Sec. 8. Issuance, form and contents


of a writ of execution. - The writ of
execution shall:
(1)
issue in the name of the
Republic of the Philippines from the
court which granted the motion;
(2)
state the name of the
court, the case number and title, the
dispositive
part
of
the
subject
judgment or order; and (3) require the
sheriff or other proper officer to whom
it is directed to enforce the writ
according to its terms, in the manner
hereinafter provided:
(a)
If the execution be against
the property of the judgment obligor,
to satisfy the judgment, with interest,
out of the real or personal property of
such judgment obligor;
(b) If it be against real or
personal property in the hands of
personal
representatives,
heirs,
devisees,
legatees,
tenants,
or
trustees of the judgment obligor, to
satisfy the judgment, with interest,
out of such property;
(c)
If it be for the sale of
real or personal property, to sell such
property, describing it, and apply the
proceeds
in
conformity
with
the
judgment, the material parts of which
shall be recited in the writ of
execution.
(d)
If it be for the delivery
of the possession of real or personal
property, to deliver the possession of
the same, describing it, to the party
entitled thereto, and to satisfy any
costs, damages, rents, or profits

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Ateneo de Davao University College of Law

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covered by the judgment out of the
personal property of the person against
whom it was rendered, and if sufficient
personal property cannot be found, then
out of the real property; and
(e)
In all cases, the writ of
execution shall specifically state the
amount of the interest, costs, damages,
rents, or profits due as of the date of
the issuance of the writ, aside from
the principal obligation under the
judgment. For this purpose, the motion
for execution shall specify the amounts
of the foregoing reliefs sought by the
movant. (8a)
WRIT OF EXECUTION is actually the document which is
issued by the court addressed to the sheriff. The writ is
actually the instruction to the sheriff on what he should do.
It would depend on what kind of decision is it an action for
sum of money or is it for recovery of real property?
Mimeographed iyan, addressed to the sheriff. These are
standard forms in court.
Now, with respect to Section 8, the changes can be
found in paragraph [e] which mandates now that the writ of
execution must state the exact amount to be collected. That
is why according to the last sentence of paragraph [e], for
this purpose, the motion for execution shall specify the
amounts of the foregoing reliefs sought by the movant.
Normally, when lawyers file a motion to execute they will
just quote the principal, but they do not state the costs or
interests. Now, under the new rule, when you file the motion
for execution, you must also state how much is the costs or
interests.
EXECUTION OF MONEY JUDGMENT

How do you execute judgment for money? Contractual


debts or damages. Example, the defendant is ordered to pay
defendant P1 million with interest, how does the sheriff
enforce that? Section 9 provides a detailed explanation on
how judgment for money is enforced. Let us go over the first
paragraph:
Sec. 9. Execution of judgments for
money, how enforced. (a)
Immediate
payment
on
demand. - The officer shall enforce an
execution of a judgment for money by
demanding from the judgment obligor the
immediate payment of the full amount
stated in the writ of execution and all
lawful fees. The judgment obligor shall
pay in cash, certified bank check
payable to the judgment obligee, or any
other form of payment acceptable to the
latter, the amount of the judgment debt
under proper receipt directly to the
judgment obligee or his authorized
representative if present at the time
of payment. The lawful fees shall be
handed under proper receipt to the
executing sheriff who shall turn over
the said amount within the same day to
the clerk of court of the court that
issued the writ.
STEPS: (under paragraph [a])
1.) The sheriff must demand payment from the
obligor;
2.) The obligor can pay in cash, certified bank check
payable to the judgment obligee (creditor) or
any other form of payment acceptable to the

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Ateneo de Davao University College of Law

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latter. Kung sabihin ng obligor: Yung kotse
ko na lang. That will be alright so long as it is
also alright with the obligee;
3.) The payment shall go to the obligee;
4.) The lawful fees shall be paid to the executing
sheriff who shall turn over the said amount
within the same day to the clerk of court of
the court that issued the writ.
This assumes that the obligee is present with sheriff.
Suppose the creditor is not around? Let us go to the second
paragraph:
Section 9 [a], 2nd par. If the
judgment obligee or his authorized
representative
is
not
present
to
receive payment, the judgment obligor
shall deliver the aforesaid payment to
the executing sheriff.
The latter
shall turn over all the amounts coming
into his possession within the same day
to the clerk of court of the court that
issued the writ, or if the same is not
practicable, deposit said amounts to a
fiduciary
account
in
the
nearest
government depository bank of the
Regional Trial Court of the locality.
If the plaintiff is not there, the payment is made to the
sheriff and he is supposed to endorse it to the clerk of court.
The clerk of court will look for the obligee to remit the
money.
In the second sentence, this usually happens if the
execution is to be done outside of the locality. For example,
the decision in Davao will be enforced in Cotabato. So, the
sheriff in Cotabato will be the one to enforce and he will give
the payment to the clerk of court there who in turn will

transmit the money to the clerk of court in Davao. This is


because the decision to be executed is one in Davao.
Let us go to the third paragraph:
The clerk of said court shall
thereafter arrange for the remittance
of the deposit to the account of the
court that issued the writ whose clerk
of court shall then deliver said
payment to the judgment obligee in
satisfaction of the judgment. The
excess, if any, shall be delivered to
the judgment obligor while the lawful
fees shall be retained by the clerk of
court for disposition as provided by
law. In no case shall the executing
sheriff demand that any payment by
check be made payable to him.
This assumes that the property of the defendant which
was levied in Cotabato but judgment is one which originated
in Davao clerk to clerk.
The last sentence says In no case shall the executing
sheriff demand that any payment by check be made
payable to him. It shall be payable to the obligee. I think
what the SC would like to avoid here is that which happened
in the case of PAL a labor case where PAL paid check
payable to the sheriff. The sheriff ran away with the check.
PAL was made to pay all over again.
(b)
Satisfaction by levy. - If
the judgment obligor cannot pay all or
part
of
the
obligation
in
cash,
certified bank check or other mode of
payment acceptable to the judgment
obligee, the officer shall levy upon
the properties of the judgment obligor

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Ateneo de Davao University College of Law

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2001 Edition
of every kind and nature whatsoever
which may be disposed of for value and
not otherwise exempt from execution
giving
the
latter
the
option
to
immediately choose which property or
part thereof may be levied upon,
sufficient to satisfy the judgment. If
the judgment obligor does not exercise
the option, the officer shall first
levy on the personal properties, if
any, and then on the real properties if
the personal properties are sufficient
to answer for the judgment.
So, under paragraph [a], the first step is when the
judgment debtor has enough money, bayaran niya in cash
or check.
Q: Suppose walang pera, or the cash is not sufficient.
What will the sheriff do?
A: He shall levy upon the properties of the judgment
obligor not otherwise exempt from execution. In the
vernacular term, sasabihing na-sheriff ka.
Q: Define levy.
A: Levy is the act whereby a sheriff sets apart or
appropriates, for the purpose of satisfying the command of
the writ, a part or the whole of the judgment-debtors
property. (Valenzuela vs. De Aguilar, L-18083-84, May 31,
1963) Normally, this is done on personal property. Kung lupa
naman, they will annotate on the title. Parang mortgage ba.
Q: What is the importance of levy with respect to
execution of a money judgment?
A: Levy is a pre-requisite to the auction sale. In order
that an execution sale may be valid, there must be a
previous valid levy. A sale not preceded by a valid levy is

void and the purchaser acquires no title. (Valenzuela vs. De


Aguilar, L-18083-84, May 31, 1963)
Q: What kind of property can be levied?
A: Any real, personal, tangible, intangible except
those properties exempt from execution.
Q: Does the debtor has the right to tell the sheriff what
property he should levy?
A: YES. The law gives the debtor or defendant the option
to immediately choose which property or part thereof may
be levied upon sufficient to satisfy the judgment. Example: I
am the debtor and I have many properties. And the sheriff
would like to levy on my house and lot, or yung Toyota Altis
ko. Under the law, I have the right to choose among them.
The phrase giving the latter the option to immediately
choose which property or part thereof may be levied upon,
sufficient to satisfy the judgment. This did not appear
under the old law. This is taken from the case of PHILIPPINE
MILLS vs. DAYRIT (192 SCRA 177), where the SC said the
debtor is given the option of which property shall be levied.
And the sequence of levying is to levy the personal
properties first. Then real properties if personal properties
are not sufficient.
Under the second paragraph of [b], when the sheriff
levies on the property of the judgment debtor and the
judgment debtor has more than sufficient property to cover
the judgment debt, the sheriff cannot levy all the properties.
Or else, he will be made liable. For example, the debt is only
P 30,000, tapos ang i-levy mo kotse (Toyota Altis) at bahay,
which worth millions? My golly! Thats too much! You sell
only up to the point that the judgment will be satisfied.
Q: But if it is real property or intangible personal
property like shares of stock, debts, credits (collectibles),
can you levy on these?

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Ateneo de Davao University College of Law

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A: YES. And under the last paragraph of [b] They may be
levied upon in like manner and with like effect as under a
writ of attachment under Rule 57 on attachment.
GARNISHMENT HOW TO LEVY
Paragraph [c] of Section 9 is on how to levy intangibles.
When you want to levy or you want to execute on intangible
property, the legal term there is garnishment.
(c)
Garnishment of debts and
credits. - The officer may levy on
debts due the judgment obligor and
other credits, including bank deposits,
financial
interests,
royalties,
commissions and other personal property
not capable of manual delivery in the
possession or control of third parties.
Levy shall be made by serving notice
upon the person owing such debts or
having in his possession or control
such credits to which the judgment
obligor is entitled. The garnishment
shall cover only such amount as will
satisfy the judgment and all lawful
fees.
The garnishee shall make a written
report to the court within five (5)
days from service of the notice of
garnishment stating whether or not the
judgment obligor has sufficient funds
or credits to satisfy the amount of the
judgment.
If not, the report shall
state how much funds or credits the
garnishee
holds
for
the
judgment
obligor. The garnished amount in cash,
or certified bank check issued in the
name of the judgment obligee, shall be
delivered directly to the judgment

obligee within ten (10) working days


from
service
of
notice
on
said
garnishee
requiring
such
delivery,
except the lawful fees which shall be
paid directly to the court.
In the event there are two or more
garnishees holding deposits or credits
sufficient to satisfy the judgment, the
judgment obligor, if available, shall
have
the
right
to
indicate
the
garnishee or garnishees who shall be
required to deliver the amount due;
otherwise, the choice shall be made by
the judgment obligee.
The executing sheriff shall observe
the same procedure under paragraph (a)
with respect to delivery of payment to
the judgment obligee. (8a, 15a)
Q: So, what are these properties which may be the
subject of garnishment?
A: Credits which include bank deposits, financial
interests, royalties, commissions and other personal
property not capable of manual delivery intangibles bah!
You send a notice upon the person owing such debts or
having in his possession or control such credits. And it shall
cover only such amount as will satisfy the judgment.
Example of garnishment: bank account. I will file a case
against you, talo ka. I learned that you have a deposit with
Sanikoh Bank. Puwede kong habulin yan ba, because that is
credit. In obligations and contracts, the relationship of the
depositor and the bank is that of a creditor and debtor. It is
not a contract of deposit because actually, the bank is
borrowing money from you. Kaya nga, it pays you interest
eh.
So, under garnishment, the bank is being commanded
not to pay you but instead pay the sheriff. Yaan!! Yan ang
concept ng garnishment. Garnishee refers to the debtor,

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Ateneo de Davao University College of Law

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2001 Edition
like the bank. When the bank deposit is garnished, the
second paragraph tell us what the bank will do. And if there
are 2 or more banks na ma-garnish, under the next
paragraph, the debtor obligor will determine. If he does not
exercise his option, then the judgment creditor will
determine.
EXECUTION OF JUDGMENT OTHER THAN MONEY
Section 10 is the procedure for executing a judgment
other than to collect money. Sometimes, money is only
incidental. There are court decisions could be something
else like specific performance, or accion publiciana. You are
more interested in recovering your property. Another is
Unlawful Detainer where unpaid rentals may be paid but the
plaintiff is more interested in the ejectment the unpaid
rentals can be collected in the same manner as Section 9.
Sec. 10. Execution of judgments of
specific act. (a)
Conveyance,
delivery
of
deeds, or other specific acts; vesting
title. - If a judgment directs a party
to execute a conveyance of land or
personal property, or to deliver deeds
or other documents, or to perform any
other
specific
act
in
connection
therewith, and the party fails to
comply within the time specified, the
court may direct the act to be done at
the cost of the disobedient party by
some other person appointed by the
court and the act when so done shall
have like effect as if done by the
party. If real or personal property is
situated within the Philippines, the
court in lieu of directing a conveyance
thereof may by an order divest the
title of any party and vest it in

others, which shall have the force and


effect of a conveyance executed in due
form of law. (10a)
x x x x x
EXAMPLES of the first sentence:
1.) An action for reconveyance of property where you
are asking the defendant, a title owner, to convey
to you his property. The property will be held in
trust or that the title be in your name instead of
his;
2.) Pacto de retro. I sold to you my land and I am
repurchasing it, pero ayaw mo. You refuse to
execute a deed of sale returning the property to
me;
3.) Public Land Law. I am the owner of a property
under homestead or free patent and sold it after
the prohibition period. Under the public land law,
I have the right to repurchase it within 5 years.
Ayaw mong ibalik, so idemanda kita. Of course, if
I win, you will be directed to return to me the
property and execute a deed of sale.
4.) An action for specific performance to compel you
to return to me said property. And the court will
order: Alright, execute a deed of sale. You
refuse. The court may order the clerk of court to
sign the deed of sale or the Register of Deeds will
be ordered to register the same as if done by the
obligor. The obligors signature is not needed.
(b)
Sale of real or personal
property. - If the judgment be for the
sale of real or personal property, to
sell such property, describing it, and
apply the proceeds in conformity with
the judgment. (8 [c] a)

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Ateneo de Davao University College of Law

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The best example for [b] is an action for termination of
co-ownership where there are 50 co-owners of one (1)
hectare the property will be ordered sold and the proceeds
will be distributed among the co-owners.
(c)
Delivery or restitution of
real property. - The officer shall
demand of the person against whom the
judgment
for
the
delivery
or
restitution
of
real
property
is
rendered and all persons claiming
rights under him to peaceably vacate
the property within three (3) working
days, and restore possession thereof to
the judgment obligee; otherwise, the
officer shall oust all such persons
therefrom with the assistance, if
necessary,
or
appropriate
peace
officers, and employing such means as
may be reasonably necessary to retake
possession, and place the judgment
obligee in possession of such property.
Any costs, damages, rents or profits
awarded by the judgment shall be
satisfied in the same manner as a
judgment for money. (13a)
Now, with respect to Section 10, particularly paragraph
[c] delivery or restitution of real property. this is
applicable to actions for forcible entry, unlawful detainer,
accion publiciana.
Q: So, what is the procedure?
A: The sheriff will give the defendant the chance to
vacate the property, I am giving you the chance to vacate
within three (3) working days and restore possession
thereof. And then ayaw mo pa rin, I will use force to oust
you with the assistance of the appropriate peace officers

and place the judgment obligee in possession of such


property.
And if there are damages or unpaid rentals, I will also
levy the property under Section 9. Because sometimes,
aside from ousting the defendant, meron pang money
judgment like unpaid rentals.
So, the property of the
defendant may be levied. That is the procedure.
In the 1995 case of
SAN MANUEL vs. TUPAS
249 SCRA 466
HELD: The immediate enforcement of a writ
of ejectment execution is carried out by giving
the defendant a notice of such writ and making a
demand that defendant comply therewith within
a reasonable period, normally from three (3) to
five (5) days, and it is only after such period that
the sheriff enforces the writ by the bodily removal
of the defendant and his personal belongings.
(d)
Removal of improvements on
property subject of execution. - When
the property subject of the execution
contains improvements constructed or
planted by the judgment obligor or his
agent, the officer shall not destroy,
demolish or remove said improvements
except upon special order of the court,
issued upon motion of the judgment
obligee after due hearing and after the
former has failed to remove the same
within a reasonable time fixed by the
court. (14a)

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Ateneo de Davao University College of Law

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Q: When you oust the defendant in regard of a
possession case, is a writ of execution a sufficient basis for
the removal of improvements of the property?
A: NO. Under paragraph [d], the plaintiff or judgment
obligee still have to get a special order from the court by
filing a petition to authorize the destruction or removal of
the improvements of the property after the defendant is
given a reasonable time to remove his shanty or house
voluntarily.
In other words, there must be a special order. The writ of
execution only authorizes you to oust the defendant
physically, but not to destroy any property. Just like in
squatters, you need a special order for demolition.
(e)
Delivery
of
personal
property. - In judgments for the
delivery of personal property, the
officer shall take possession of the
same and forthwith deliver it to the
party entitled thereto and satisfy any
judgment for money as therein provided.
(8a)
Paragraph [e] is related to REPLEVIN action to recover
personal property where the plaintiff is trying to repossess
a personal property from the defendant. For example, bili ka
ng appliance tapos hindi mo nabayaran, babawiin yan ng
appliance center. Or, the finance company or the car dealer
will resort to replevin to recover the unit by filing an action
for replevin against the buyer.
Take note that the procedure for enforcing a money
judgment is different from enforcing a judgment for
ejectment, or recovery of possession. Enforcement of money
judgment is in Section 9 you get the money. Kung walang
money, you levy on the property of the defendant. If it is
ejectment or recovery of possession of property, you follow
Section 10, paragraph [c].

Now, here is an interesting case involving these two


sections (Sections 9 & 10) the 1995 case of
ABINUJAR vs. COURT OF APPEALS
243 SCRA 531
FACTS: The case of Abinujar started when the
plaintiff filed a case for unlawful detainer against
the Abinujar spouses for the latter to vacate their
house in Manila. When the case was going on, the
parties executed a compromise agreement which
became the basis of the judgment by the court,
so a compromise judgment.
The agreement stated that the Abinujar
spouses shall pay the plaintiffs the amount
specifically agreed upon: P50,000 on January 31;
P10,000 on Febrauary 28; P10,000 on March 31,
etc. until September 30. It further states that
failure on the part of the Abinujar spouses to pay
three (3) consecutive payments, the plaintiffs
shall be entitled to a writ of execution.
After three (3) months, the plaintiffs filed a
motion for execution on the ground that the
Abinujars failed to pay the three installments. The
trial court granted the motion and the notice to
the defendant to voluntarily vacate the premises
was served on the Abinujars.
The Abinujars attacked the validity of the
sheriffs notice to vacate by way of enforcing the
compromise judgment. They maintained that
their obligation is monetary and therefore you
should apply Section 9 you collect but do not
eject us. The plaintiffs argued that what is
applicable is Section 10 on ejectment because
this is an unlawful detainer case.
ISSUE: Which section shall be applied
Section 9? or Section 10?

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Ateneo de Davao University College of Law

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HELD: The contention of the Abinujars is
meritorious meaning, you cannot eject the
Abinujars.
When the parties entered into a compromise
agreement, the original action for ejectment was
set aside and the action was changed to a
monetary obligation.
A perusal of the compromise agreement
signed by the parties and approved by the
inferior court merely provided that in case the
Abinujars
failed
to
pay
three
monthly
installments, the plaintiffs would be entitled to a
writ of execution, without specifying what the
subject of execution would be. Said agreement
did not state that Abinujars would be evicted
from the premises subject of the suit in case of
any default in complying with their obligation
thereunder. This was the result of the careless
drafting thereof for which only plaintiffs were to
be blamed.
As
Abinujars
obligation
under
the
compromise agreement as approved by the court
was monetary in nature, plaintiffs can avail only
of the writ of execution provided in Section 9, and
not that provided in Section 10.
ORDINARY AND SPECIAL JUDGMENT
Sec. 11. Execution
of
special
judgments. - When a judgment requires
the performance of any act other than
those mentioned in the two preceding
sections, a certified copy of the
judgment shall be attached to the writ
of execution and shall be served by the
officer upon the party against whom the
same is rendered, or upon any other

person required thereby, or by law, to


obey the same, and such party or person
may be punished for contempt if he
disobeys such judgment. (9a)
There are two (2) types of judgment under the law: (1)
SPECIAL and (2) ORDINARY.
ORDINARY JUDGMENT - if the judgment orders the
defendant to pay money, like a collection case (Section 9) or
to deliver real or personal property (Section 10).
SPECIAL JUDGMENT is a judgment which requires the
defendant to perform an act other than payment of money
or delivery of property. It refers to a specific act which a
party or person must personally do because his personal
qualifications and circumstances have been taken into
consideration.
EXAMPLE of a special judgment: Usurpation of
government office. You are the city treasurer and somebody
else is appointed city treasurer and you refuse to vacate. So
there will be a quo warranto proceeding. Then the judgment
will order you to vacate your position, such judgment is a
special judgment because you are not ordered to pay
anything nor deliver property.
Q: What is the difference between the Ordinary and
Special judgments?
A: A special judgment may be enforced by contempt if
the defendant refuses to comply with the judgment. But if it
is an ordinary judgment and the defendant refuses to
comply, it is not a ground for contempt.
Under Section 9, if the judgment-debtor refuses to pay
his debt, you cannot cite him in contempt because under
the Constitution, no person shall be imprisoned for debt. The
correct procedure under Section 9 is you look for properties

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Ateneo de Davao University College of Law

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Rule 39 Execution, Satisfaction


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2001 Edition
of the defendant and then ipa-levy mo. You do not send the
debtor to jail.
Under Section 10 if the squatter refuses to vacate, you
cannot cite him in contempt and send him to jail. Kung
ayaw, you get police for back up. That is the procedure.
But under Section 11, if defendant is ordered to vacate
his office because he is no longer the city treasurer, the
plaintiff can have him arrested and brought to jail because
that is a special judgment which can be enforced by
contempt.
Q: Give a specific rule on special judgment.
A: Section 9 of Rule 65 Special Civil Action for
Certiorari, Prohibition and Mandamus, to wit:
Rule
65,
Sec
9.
Service
and
enforcement of order or judgment.- A
certified copy of the judgment rendered
in accordance with the last preceding
section shall be served upon the court,
quasi-judicial
agency,
tribunal,
corporation, board, officer or person
concerned in such manner as the court
may direct, and disobedience thereto
shall be punished as contempt. An
execution may issue for any damages or
costs
awarded
in
accordance
with
section 1 of Rule 39. (9a)
Therefore, a judgement in a certiorari, prohibition or
mandamus case, if not complied with, is punishable by
contempt.
Sec. 12. Effect
of
levy
on
execution as to third persons. - The
levy on execution shall create a lien
in favor of the judgment obligee over

the right, title and interest of the


judgment obligor in such property at
the time of the levy, subject to liens
and encumbrances then existing. (16a)
This is related to Property Registration Decree.
EXAMPLE: I own a piece of land which I mortgaged with
the bank. The bank annotated the mortgage on my title. My
land is now subject to a lien or an encumbrance. I also owe
money to A. He sued me. He won and my land is levied.
Q: What happens to the mortgage lien of the bank? Will
it be affected by the levy of A?
A: NO. Even if the property is sold at public auction and
we will assume that it will go to A, that property is still under
mortgage. A has to respect the lien nauna yung sa bank
eh! Wherever the property goes, it is subject to the
mortgage lien of the bank because the banks lien is
superior.
Therefore, an execution is always subject to the liens
and encumbrances of the property then existing.
PROPERTIES EXEMPT FROM EXECUTION
We already discussed the rule that to satisfy a money
judgment, the sheriff can levy on the properties of the
judgment obligor. All properties are subject, except those
exempt from execution.
What are the properties of a
defendant-debtor which cannot be subject to a levy or
execution?
Sec.
13.
Property
exempt
from
execution.
Except
as
otherwise
expressly
provided
by
law,
the
following property, and no other, shall
be exempt from execution:

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Ateneo de Davao University College of Law

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(a) The judgment obligor's family
home as provided by law, or the
homestead in which he resides, and land
necessarily
used
in
connection
therewith;
You have a house where your family resides. You call it
FAMILY HOME it is the house where the members of the
family reside, including the lot.
Q: For instance, you lost in a case where you are liable
for P200T. You have no other property left except that house
where you live. Can the sheriff levy the house to answer
such obligations?
A: NO. The judgment obligors family home and the land
necessarily used in connection therewith is exempt. That is
a guarantee that no matter how many obligations you have,
there is no way for you to be thrown to the street to be a
homeless person. Your house cannot be levied; but in the
Family Code, theres a limit, if your house is a mansion
worth millions, that is not exempt. Please review your Family
Code on this matter.
(b) Ordinary tools and implements
personally used by him in his trade,
employment, or livelihood;
This is self-explanatory. If you are a carpenter, you earn
your living by being a carpenter. What are the ordinary tools
that you must have? Saw, hammer, etc. By public policy and
by legal provision, the tools and implements used by a
carpenter in his trade, employment, or livelihood cannot be
levied by the sheriff.
Under the prior law, there was no word ordinary and
personally. The old law says, tools and implements used
by him. In the new rules, the words ordinary and
personally are added. What is the reason behind this? This
provision is in accordance with what the SC ruled in the
1990 case of

PENTAGON SECURITY vs. JIMENEZ


192 SCRA 492
FACTS:
The
Pentagon
Security
and
Investigation Agency (PSIA) is a security agency
owned by somebody who is engaged in security
services. Because of a money judgment against
the agency in a labor case, the sheriff levied all
the firearms of the agency. PSIA claimed that the
firearms are exempt from execution under
paragraph [b] since they are tools and
implements used by the agency in its trade,
employment or livelihood because how can a
security agency operate without firearms.
ISSUE: Is the argument of PSIA correct?
HELD: NO. The firearms owned by PSIA are
not covered by the exemption.
The term tools and implements refers to
instruments of husbandry or manual labor
needed by an artisan craftsman or laborer to
obtain his living. Here, PSIA is a business
enterprise. It does not use the firearms
personally, but they are used by its employees.
Not being a natural person, petitioner cannot
claim that the firearms are necessary for its
livelihood.
It would appear that the exemption
contemplated by the provision involved is
personal, available only to a natural person, such
as a dentists dental chair and electric fan. If
properties used in business are exempt from
execution, there can hardly be an instance when
a judgment claim can be enforced against the
business entity.

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Ateneo de Davao University College of Law

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Meaning, if the exemption is extended to a juridical
person like a corporation, then practically all the properties
needed by the business could be considered as tools and
implements. For EXAMPLE, you will sue a carrier like
Bachelor Bus and you won. Then you will levy on the bus.
Bachelor will claims exemption because that is a tool or
implement.
Or, you file a case against PAL. They lost. You levy on the
airbus. PAL alleged exemption because it is a tool or
implement. My golly! Lahat ng properties, tools or
implements!? Di pwede yan! That is not what the law
contemplates.
Now, what is interesting in the PENTAGON case is that
the SC says that firearms can be levied, they can be sold at
public auction. SC: However, for security reasons, and to
prevent the possibility that the firearms to be sold at the
execution sale may fall into the hands of lawless and
subversive elements, the sale at public auction should be
with the prior clearance and under supervision of the PNP.
Otherwise, the persons who might bid are kidnappers, NPA,
Abu Sayyaff, (Kuratong Baleleng, MILF, MNLF, Lost
Command, Kulto Pinish, Polgas, PAOCTF, Osama bin Laden
et al, etc.) So, there must be a prior clearance on the sale
of the firearms during the auction sale.
(c)
Three
horses,
or
three
cows, or three carabaos, or other
beasts of burden, such as the judgment
obligor may select necessarily used by
him in his ordinary occupation;
For example, you are a farmer. You plow your land by a
carabao. You cannot levy the carabao. OR, if you are a
cochero, you have a horse for your caretela. You cannot levy
the horse. [ang horse shit, pwede! Pero yung horse mismo,
di pwede!] And under the prior rules, only 2 horses, 2 cows
or carabaos are exempt. The new rules make it three (3).

(d)
His necessary clothing and
articles for ordinary personal use,
excluding jewelry;
You cannot levy on the debtors wardrobe. These are
articles for ordinary personal use. This article excludes
jewelry. Alahas, pwede i-levy. All other things for basic
needs are exempt, like personal comb, toothbrush, etc.
(e) Household furniture and utensils
necessary for housekeeping, and used
for that purpose by the judgment
obligor and his family, such as the
judgment obligor may select, of a value
not exceeding one hundred thousand
pesos;
Household furniture like dining table, dining chair, sala
set, utensils necessary for housekeeping and used for the
purpose by the obligor and his family like plates, forks,
spoons. How can you eat without those utensils. BUT theres
a limit that the value does not exceed P100,000. If the value
exceeds, it can be levied.
There was a sheriff who asked me (Dean I). According to
him, he was enforcing a money judgment. The sheriff went
to the house of the debtor. He took the stereo, TV set,
refrigerator. Defendant said, Hindi pwede dahil hindi pa
umabot ng P100,000. Sabi ko, you look at the law: You
cannot levy those furnitures if not exceeding P100,000. In
my (Deans) view, covered yan. But utensils not necessarily
for living are not covered by the exemption. They are luxury,
not necessary. These TV, sala set, refrigerator can be levied
because they are not necessary for living as contrasted to
kutsara, plato, etc. (Dean however refused to answer the

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Ateneo de Davao University College of Law

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2001 Edition
sheriff whether the properties in question can be levied.
Tanungin mo ang abogado mo!)
(f)
or family
months;

Provisions for individual


use sufficient for four

For example, one sack of rice for daily consumption,


canned goods provisions for consumption good for 4
months are exempt. If you have one bodega of rice, ibang
storya yan.
(g)
The professional libraries
and equipment of judges, lawyers,
physicians,
pharmacists,
dentists,
engineers,
surveyors,
clergymen,
teachers, and other professional, not
exceeding
three
hundred
thousand
(P300,000.00) pesos in value;
Your books, books of judges and professionals and
equipment maybe the computer, typewriter, dentists
chair, equipment of engineers are exempt provided the
value does not exceed P300,000.
(h)
One
fishing
boat
and
accessories not exceeding the total
value
of
one
hundred
thousand
(P100,000.00)
pesos
owned
by
a
fisherman and by the lawful use of
which he earns his livelihood;
Example: Fishing boat of a fisherman, the accessories
net, provided these do not exceed P100,000.
(i)
So much of the salaries,
wages, or earnings of the judgment
obligor for his personal services
within the four months preceding the

levy as are necessary for the support


of his family;
The salary of a person within 4 months is exempt. For
example, you have backwages of 6 months. Only 2 months
salary can be levied. Exempt ang 4 months.
Technically, wages and salaries are exempt as long as
they are necessary for support of living. If you earn a
minimum wage, everything may be exempted. But if you
earn P50,000 a month and you support only two people, the
court may levy on the excess.
(j)

Lettered gravestones;

Lapida sa sementeryo, hindi pwede i-levy. Why will


you levy on lettered gravestones? My golly!
(k)
Monies,
benefits,
privileges, or annuities accruing or in
any manner growing out of any life
insurance;
The proceeds of life insurance. The amount received by
the beneficiaries cannot be levied, not a single centavo.
(l)
The right to receive legal
support, or money or property obtained
as such support, or any pension or
gratuity from the Government;
The right to receive legal support. The right ba! For
instance, ako na lang ang mag receive ng support mo. Hindi
pwede yan. Also the money given monthly to you if you are
receiving support cannot be levied. Any pension or gratuity
from the government GSIS pension, for example.

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Ateneo de Davao University College of Law

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(m)

Properties specially
exempted by law.

This is very broad any other property exempt by


special law.
Q: Give an example where a property is exempt from
execution under the special law?
A: The following:
1.) Property obtained pursuant to a free patent
application, HOMESTEAD. That is not subject
to any claim within 5 years. You cannot even
sell that within 5 years, how much more kung
embargohin sa iyo? That is under CA 141
Public Land Law;
2.) Under Social Legislation, SSS benefits are also
exempt from execution, just like GSIS benefits;
3.) Under CARP law, the property acquired by a
tenant under that law cannot be levied also.
Section 13, last paragraph:

for such amount not paid. The bookstore got a judgment.


There was a levy on the lawyers property. The sheriff levied
on the same books which became the source of the case.
The lawyer claimed exemption under Section 13 up to
P300,000 because it forms part of his professional library. Is
the lawyer correct??
A: the lawyer is WRONG because of the last paragraph of
Section 13 that no article or species of properties mentioned
in this section shall be exempt from execution issued upon a
judgment recovered for the price or upon a judgment of
foreclosure of a mortgage thereon.
What the law says, is the properties mentioned here (in
Section 13) are exempt, EXCEPT when that debt arose out of
that property. For example, here, why are you indebted to
Alemars? Because of unpaid books. So the very books which
gave rise to an obligation are not exempt from execution.
But if another creditor will file a case against the lawyer,
and that other creditor will win, that creditor cannot levy on
the books because they are exempt. But the creditor from
whom the books were bought can levy on the same books
which gave rise to an obligation.

But
no
article
or
species
of
property mentioned in this section
shall be exempt from execution issued
upon a judgment recovered for its price
or upon a judgment of foreclosure of a
mortgage thereon. (12a)

The same thing with FAMILY HOME. For example, you will
build a family home and then, hindi mo binayaran ang
materials, labor and there was judgment against you. The
creditor and the owner can levy on the house. He cannot
claim exemption because the debt arose out of that same
family home.

The last paragraph of Section 13 says that if for


example, you ordered books and you failed to pay, you
cannot claim the exemption because the obligation arose
from the same item. For example:

Another example: You borrowed money from the bank.


You mortgaged your house. Later on, you cannot pay the
loan. The bank foreclosed the mortgage. You cannot argue
that your house cannot be levied. Kaya nga may utang ka
because of your house. Since you mortgaged it, that is not
covered by the exemption.

BAR PROBLEM: A lawyer went to Alemars professional


books supply. He bought books worth half a million. That
was utang P500,000. The store decided to sue the lawyer

Q: What is the REASON behind this exemption?

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Ateneo de Davao University College of Law

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A: The reason for this exemption is PUBLIC POLICY. And
common sense no? the debtor should pay but this should
not deprive him of a means to earn his living. You can levy
on his property but not to the extent of depriving him of his
provisions for support, means of livelihood by throwing him
on to the street, homeless, penniless, despondent, dejected,
mournful, melancholy, forlorn
LIFETIME OF WRIT OF EXECUTION FIVE (5) YEARS
Sec. 14. Return
of
writ
of
execution. - The writ of execution
shall be returnable to the court
issuing
it
immediately
after
the
judgment has been satisfied in part or
in full.
If the judgment cannot be
satisfied in full within thirty (30)
days after his receipt of the writ,
the officer shall report to the court
and state the reason therefor. Such
writ shall continue in effect during
the period within which the judgment
may be enforced by motion. The officer
shall make a report to the court every
thirty (30) days on the proceedings
taken thereon until the judgment is
satisfied in full, or its effectivity
expires.
The
returns
or
periodic
reports shall set forth the whole of
the proceedings taken, and shall be
filed with the court and copies
thereof
promptly
furnished
the
parties. (11a)
Under the OLD RULE, the lifetime of a writ of execution is
only 60 days. After that, expired na yung writ. The sheriff
has to use the writ to levy on the property of the defendant
within 60 days. If the defendant has no property at present,
and the writ has already expired, and assuming that there

will be some properties found in the future, the procedure


under the old rules is, the plaintiff has to file a motion for an
ALIAS WRIT of execution, because once it is issued, it is
again good for another 60 days.
Under the PRESENT RULE, the 60-day period is already
obsolete. The effectivity now of a writ of execution is, for as
long as the judgment may be enforced by motion. And
under Section 6, a judgment may be enforced by motion
within five (5) years. So in effect, the writ of execution is
valid for FIVE (5) years. The lifetime now has been extended
from 60 days to 5 years.
Of course, as much as possible, the writ must be
enforced within 30 days and after that, the sheriff will tell
the court about what happened after 30 days.
So, the sheriff says based on the RETURN, Wala pang
property ang defendant. Now, he just keeps on holding the
writ. And maybe after one or two years, meron nang
property ang defendant, he can now enforce the writ. But
definitely, there is no need for the defendant to go back to
the court to ask for another alias writ of execution because
the writ can still be enforced for as long as the judgment
may be enforced by motion.
Although every 30 days, the sheriff has to make a
periodic report with the court. I do not know if the sheriffs
here follow this procedure. But definitely, a writ is good for
5 years and in every 30 days, the sheriff has to make a
report.
NOTICE OF SALE
Sec. 15. Notice of sale of property
on execution. - Before the sale of
property on execution, notice thereof
must be given as follows:

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Ateneo de Davao University College of Law

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(a)
In
case
of
perishable
property, by posting written notice of
the time and place of the sale in three
(3)
public
places,
preferably
in
conspicuous areas of the municipal or
city hall, post office and public
market in the municipality or city
where the sale is to take place, for
such
time
as
may
be
reasonable,
considering the character and condition
of the property;
(b)
In case of other personal
property, by posting a similar notice
in the three (3) public places abovementioned for not less that five (5)
days;
(c)
In case of real property,
by posting for twenty (20) days in the
three (3) public places above-mentioned
a
similar
notice
particularly
describing the property and stating
where the property is to be sold, and
if the assessed value of the property
exceeds fifty thousand (P50,000.00)
pesos, by publishing a copy of the
notice once a week for two (2)
consecutive weeks in one newspaper
selected by raffle, whether in English,
Filipino,
or
any
major
regional
language
published,
edited
and
circulated or, in the absence thereof,
having general circulation in the
province or city;
(d)
In all case, written notice
of the sale shall be given to the
judgment obligor, at least three (3)
days
before
the
sale,
except
as
provided in paragraph (a) hereof where
notice shall be given at any time
before the sale, in the same manner as

personal service of pleadings and other


papers as provided by section 6 of Rule
13.
The notice shall specify the place,
date and exact time of the sale which
should not be earlier than nine o'clock
in the morning and not later than two
o'clock in the afternoon. The place of
the sale may be agreed upon by the
parties.
In
the
absence
of
such
agreement, the sale of real property or
personal property not capable of manual
delivery shall be held in the office of
the clerk of court of the Regional
Trial Court or the Municipal Trial
Court which issued the writ or which
was designated by the appellate court.
In the case of personal property
capable of manual delivery, the sale
shall be held in the place where the
property is located. (18a)
Auction sale follows levy. There must be notices because
auction sale is open to the public. Notices must be posted in
3 public places preferably in the municipal hall, post office
and public market. In paragraph [c], if the property to be
sold is REAL property, the notices must describe the
property, its location, assessed value if exceeding P50,000.
Aside from notices, the law requires PUBLICATION in a
newspaper so that many people can read it.
You try to go there in the Hall of Justice, may bulletin
board diyan sa labas. Notices are posted there. If you are
interested in buying something, para mura, tingnan mo
diyan.
The law is very detailed now. The notice must specify the
date of the sale, time, place etc. And the SC ruled that these
requirements are to be strictly complied with.

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Ateneo de Davao University College of Law

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For example: You do not comply with the posting in 3
conspicuous places. Dalawa lang sa iyo, that is VOID. The SC
said the requirements of the law for the holding of the public
auction should be strictly followed. Why? Because in a public
auction, you are depriving somebody of his property the
judgment debtor. So, all the requirements of the law
intended to deprive the owner of his ownership over his
property should be followed.
Even lawyers sometimes do not pay much attention to
this Rule 39. It is perhaps because of the length of the rule
or the length of the provisions. Lawyers usually have a
general idea, not really the details. Oftentimes, they rely on
the sheriff eh. They presume that the sheriff knows more
about the details because the latter is responsible for
enforcing it. Actually, the sheriff knows less than the lawyers
because many of them are not lawyers naman eh.
Illustration based on Deans experience:
There is a property located in Panacan which is owned
by
Corporation X. Corporation X sold the property to
Corporation Y. (xx end of tape xx) Dean does not know who
was at fault. Definitely, the custodian, instead of registering
the transaction in the Register of Deeds so that a title may
be issued in the name of the buyer, tinago! Nalimutan ang
pag-register ng Deed of Sale. Yun pala, the seller,
Corporation X, has a creditor also in Davao. The creditor
sued Corporation X for a sum of money. Corporation X lost
the case and the creditor looked for property to levy. He
found that piece of land in Panacan. Corporation X said,
naibenta na iyan.
The buyer, Corporation Y did not know there was an
auction sale of that property. The buyer entered into a deal
with a corporation in Japan. One of the requirements of the
Japanese buyer is: please list down all your assets, all your
properties. Of course, Corporation Y included that land in
Panacan in the list. Saan man ang titulo? Walaaa. Nalimutan
i-register.

Who should bear the loss?? The BUYER CORPORATION


because he did not register the sale. He was given the
option to pay the loan plus P200,000 damages and interest.
But if Rule 39 is to be followed strictly, Dean says the sheriff
cannot make it. Meron talagang malimutan because sheriffs
usually are not lawyers. Rule 39 is so detailed that you
cannot easily follow the requirements. Isa-isahin mo iyan,
pag may nakita kang mali, you file a motion to annul the
execution.
I (Dean) said: I will recommend to the plaintiff company
na bayaran ka rin pero hindi naman P200,000. Masyadong
malaki yan. Nakabayad na ang buyer sa owner tapos
babayaran pa rin ang utang sa creditor? I talked to the
corporation and made a compromise. We settled for
P80,000. Kung ayaw niya ituloy ang kaso. Hindi nga naregister and Deed of Sale pero mali-mali naman ang levy.
What if ma-annul ang levy, the plaintiff will get nothing.
Chances are, hahabulin niya ang seller ng property. So, this
is an example of a dead case being resurrected to life
because of the principle: nagkamali ang sheriff sa execution.
Dean also stressed that if the trial for annulment of the
execution proceeds, the court might dismiss it because the
sheriffs mistakes ay maliit lang. Its not really substantial.
But Dean is proud that he had succeeded to scare the
plaintiff! [ehem!]
TERCERIA (THIRD-PARTY CLAIM)
SECTION
16.
Proceedings
where
property claimed by third person. If
the property levied on is claimed by
any person other than the judgment
obligor or his agent, and such person
makes an affidavit of his title thereto
or right to the possession thereof,
stating the grounds of such right or
title, and serves the same upon the
officer making the levy and a copy
thereof upon the judgment obligee, the

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Ateneo de Davao University College of Law

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officer shall not be bound to keep the
property, unless such judgment obligee,
on demand of the officer, files a bond
approved by the court to indemnify the
third-party claimant in a sum not less
than the value of the property levied
on. In case of disagreement as to such
value, the same shall be determined by
the
court
issuing
the
writ
of
execution. No claim for damages for the
taking or keeping of the property may
be enforced against the bond unless the
action therefor is filed within one
hundred twenty days from the date of
the filing of the bond.
The officer shall not be liable for
damages for the taking or keeping of
the
property,
to
any
third-party
claimant if such bond is filed. Nothing
herein contained shall prevent such
claimant or any third person from
vindicating his claim to the property
in a separate action, or prevent the
judgment obligee from claiming damages
in the same or a separate action
against a third-party claimant who
filed a frivolous or plainly spurious
claim.
When the writ of execution is issued
in favor of the Republic of the
Philippines,
or
any
officer
duly
representing it, the filing of such
bond shall not be required, and in case
the sheriff or levying officer is sued
for damages as a result of the levy, he
shall be represented by the Solicitor
General and if held liable therefore,
the actual damages adjudged by the
court shall be paid by the National

Treasurer out of such funds as may be


appropriated for the purpose. (17a)
Section 16 is a third-party claim procedure in execution.
In Spanish, it is called the remedy of TERCERIA.
ILLUSTRATION: Lolo decided to go on a prolong vacation
and he entrusted to Karen (ang paborito ni Lolo) all his
personal property like appliances TV, refrigerator, car, etc.
Karen used the property owned by Lolo while he was not
around. Unknown to Lolo, Karen has a pending civil case
filed by Gina. Gina obtained a judgment against Karen.
There was levy on execution. The sheriff went to the
premises of Karen, he found all these properties and he
enforced the levy.
Lolo came home and went to get the property from
Karen. Karen said, they were all levied by the sheriff. Lolo is
a person who is not the defendant but his properties were
erroneously levied because the sheriff thought they belong
to Karen who was in possession of them.
Q: What is the remedy of Lolo who is not a defendant?
A: The remedy is to apply Section 16, Rule 39 You file
with the sheriff, copy furnish Gina, what is known as the
third-party claim or TERCERIA. Terceria is an affidavit
asserting that he is the owner of the property levied. So with
that the sheriff is now placed on guard because the sheriff
may be held liable if he continues to sell the property of the
defendant. So, he is not bound to the proceedings regarding
the sale unless the judgment obligee, on demand of the
sheriff, files a bond approved by the court to indemnify a
third party claimant in the sum not less than the value of
the property levied on.
Suppose sabi ni Gina: Huwag kang maniwala diyan.
Kalokohan iyan. Drama lang yan ni Karen at Lolo. Proceed
with the auction sale! Gina has to file a bond if he insists
that the auction sale must proceed. Gina must put up a
bond approved by the court to indemnify the third-party

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Ateneo de Davao University College of Law

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claimant, a sum not less than the value of the property. If
the property is worth half a million, the bond must also be
half a million. Then auction sale may proceed because
theres already a bond to answer for the damages. The sale
may go on despite the third party claim.
THIRD-PARTY CLAIM vs. THIRD PARTY COMPLAINT
Now, do not confuse a third-party claim under Rule 39
with a third-party complaint under Rule 6.
Q: What is a third-party complaint under Rule 6?
A: A third-party complaint under Rule 6 is a PLEADING
filed by a defendant against the third person not a party to
the action for contribution, indemnity, subrogation, or any
other relief in respect of the plaintiffs complaint.
Q: What is a third-party claim under Rule 39?
A: A third-party claim (terceria) under RULE 39 is an
AFFIDAVIT made by a third person who claims to be entitled
to the property in the custody of a sheriff by virtue of a writ
of execution.
The one who files a third party claim is technically called
third-party CLAIMANT. The one who files a third party
complaint is called third-party PLAINTIFF. I notice that even
in SC decisions, the SC commits that lapse: The defendant
filed a third party complaint or sometimes third party
claimant. But actually, the correct term is third-party
plaintiff.
Q: Now, under the law, where will you file your thirdparty claim?
A: You file it with the sheriff although legally, it is
considered as it is filed in the court because the sheriff is
only an agent of the court. The sheriff does not have the
power to rule on the legal issues. Only the judge can. And it
is the court which decides on the validity of a third party
claim.

Q: If I am the third person and I want to vindicate my


claim to that property, is a third party claim procedure the
only remedy I have under the law? Even if theres a third
party claim, auction sale may proceed as long as theres a
bond. But I want the auction sale not to proceed and I want
the property to be returned in my favor, do I have any other
remedy?
A: YES. Second paragraph: Nothing herein contained
shall prevent such claimant or any third person from
vindicating his claim to the property in a SEPARATE
ACTION. So, the remedy of third-party claim is NOT
exclusive. There is nothing in Section 16 which says that a
third person is deprived of a right to file a separate action.
As the lawyer of Lolo, I have another option: instead of
filing a third party claim, I would file a case in court the
separate case would name Gina as the defendant. The
cause of action is that the sheriff mistakenly or erroneously
levied the properties not owned by Karen because I am the
real owner. Since there was a mistaken levy, I am also
asking the court to declare the levy as null and void, the
auction sale should not proceed.
The court might rule in my favor, so a separate action is
allowed. Thus, a third-party claim is not the only remedy
available under the law for the third party claimant.
The second part also contains a new provision, or
prevent the judgment obligee from claiming damages in the
same or a separate action against a third party claimant
who files a frivolous or plainly spurious claim.
Remember that it is possible for a third-party claimant to
be a dummy when it is a frivolous claim, without basis or
spurious, para tulungan lang niya ang defendant. There are
people like that. Now, under the new law, the prevailing
party has the right to claim damages against the third-party

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Ateneo de Davao University College of Law

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claimant for filing frivolous claims. He can claim the
damages in the same action or in a separate action.
Now, many people do not really understand what is a
third-party claim, even some lawyers:
Q: Suppose I am the lawyer of Lolo, bakit pa ako mag-file
ng another case? Can I not just complain to the court which
rendered the decision? Can I not just file a motion asking the
judge to order the release of the property? Is a separate
action not a violation of the rule against multiplicity of suits?
A: NO! You cannot bring out the issue to determine the
ownership of the property. INTERVENTION here is not proper.
[Is this not a ground for intervention? GROUNDS FOR
INTERVENTION: (1) the intervenor has legal interest in the
subject matter; (2) the intervenor has an interest in the
success of either parties; (3) the intervenor has an interest
against both parties; and (4) The intervenor is adversely
affected by a distribution of a property in the custody of a
court or an officer thereof.]
The SC said YOU CANNOT INTERVENE because under
Rule 19, an intervention can only be done at any time before
judgment. But here in Rule 39, we are now on the stage of
execution meron ng judgment! Tapos na ang kaso.
[Gago!!] Intervention comes to late. The judge has already
decided the case. Now, bakit bigyan mo naman siya ng
bagong trabaho? Thats another issue different from a case
already tried. So, a separate action is the proper remedy.
On the other hand, such doctrine should be reconciled
with what the SC said in the case of
SY vs. DISCAYA
181 SCRA 378
HELD: If your property was erroneously levied
under Rule 39, you can seek relief from the very
same court which rendered the judgment by
simply filing a motion to question the actuation of

the sheriff, because execution is part of the


process in that case and the sheriff is an officer of
the court and the court has the complete control
over the actuation of the sheriff. Therefore, why
require the 3rd-party to file another action when
he can seek relief in the same case? Meaning, the
third party can seek relief in the same case but
only to determine whether the sheriff acted
rightly or wrongly, BUT not for the purpose of
determining the issue of ownership. Questions of
ownership cannot be decided here. There must
be a separate action for the issue of ownership.
A third person whose property was seized by
a sheriff to answer for the obligation of the
judgment debtor may invoke the supervisory
power of the court which authorized such
execution. Upon due application by the third
person and after summary hearing, the court may
command that the property be released from the
mistaken levy and restored to the rightful owner
or possessor. What said court can do in these
instances, however, is limited to a determination
of whether the sheriff has acted rightly or wrongly
in the performance of his duties in the execution
of judgment, more specifically, if he has indeed
taken hold of property not belonging to the
judgment debtor. The court does not and cannot
pass upon the question of title to the property,
with any character of finality. It can treat of the
matter only insofar as may be necessary to
decide if the sheriff has acted correctly or not.
So, the court that renders the judgment cannot decide
on the issue of ownership to a third person. So your remedy
is to file another case. But in the case of DISCAYA, the court
which renders the judgment can determine whether the
sheriff has acted wrongly or correctly. And if it is wrong it
can order the property erroneously levied to be released
without need of filing a separate action.

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Q: So how do you reconcile the two doctrines?
A: If it is obvious that the sheriff committed a mistake
100% mistake, i.e. he levied property belonging to a third
person who is not a defendant to require a third person to
go to court and file another case will be tedious. Why can he
not seek relief from the same court? Anyway if it is very
obvious that the sheriff acted wrongly, that is only
incidental.
But when the issue is whether the property is owned by
the defendant or the third person, and the issue is
controversial who is the rightful owner that cannot be
decided summarily by the court which rendered decision. It
should be threshed out in an independent separate civil
action. So that will be the consideration.
of:

The SC summarized all these remedies in the 1995 case


EVANGELISTA vs. PENSERGA
242 SCRA 702
HELD: The remedies of a third person whose
property was seized by the sheriff to answer for
the obligation of a judgment obligor are the
following:
1. Invoke the supervisory power of the
court
which
authorized
such
execution (Sy vs. Discaya);
2. Terceria - third party claim (Rule 39,
Section 16); and
3. Any proper action to vindicate his
claim to the property, meaning a
separate civil action.
(second
paragraph, Section 16, Rule 39)

So these are the three remedies of a third person whose


property was seized by a sheriff to answer for the obligation
of another person.
Sec. 17. Penalty
for
selling
without
notice,
or
removing
or
defacing notice. - An officer selling
without
the
notice
prescribed
by
section 15 of this Rule shall be liable
to pay punitive damages in the amount
of five thousand (P5,000.00) pesos to
any person injured thereby, in addition
to his actual damages, both to be
recovered by motion in the same action;
and a person willfully removing or
defacing the notice posted, if done
before
the
sale,
or
before
the
satisfaction of the judgment if it be
satisfied before the sale, shall be
liable to pay five thousand (P5,000.00)
pesos to any person injured by reason
thereof, in addition to his actual
damages, to be recovered by motion in
the same action. (19a)
Notices in the auction sale should be posted in three
public places. For example, you go to the hall of justice. You
can see there a bulletin board, maraming nakalagay, half
man niyan mga notice of public aution ba. Now, do not go
there and kunin ang mga papel doon. Baka multahan ka. You
are not supposed to remove or deface them.
Sec. 18. No sale if judgment and
costs paid. - At any time before the
sale of property on execution, the
judgment obligor may prevent the sale
by paying the amount required by the

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execution and the costs that have been
incurred therein. (20a)
Q: Can the debtor stop the auction sale? Is there a way
for the debtor to prevent the sale of his property?
A: YES, if the obligor pay the amount required by the
execution and the costs bayaran mo lahat ang utang mo,
di wala na. Thats what the law says. For example, the bank
is foreclosing your mortgage and sell the property at public
auction. To stop the bank from proceeding with the sale, you
go to the bank and pay all your obligations. So, wala ng
auction sale. But you have to pay all. Kalahati lang ang
bayaran ko. Ah, hindi puydi yan.
Sec. 19. How property sold on
execution; who may direct manner and
order of sale. All sales of property
under execution must be made at public
auction, to the highest bidder, to
start at the exact time fixed in the
notice. After sufficient property has
been sold to satisfy the execution, no
more shall be sold and any excess
property or proceeds of the sale shall
be promptly delivered to the judgment
obligor
or
his
authorized
representative,
unless
otherwise
directed by the judgment or order of
the court. When the sale is of real
property, consisting of several known
lots, they must be sold separately; or,
when a portion of such real property is
claimed by a third person, he may
require it to be sold separately. When
the sale is of personal property
capable of manual delivery, it must be
sold within view of those attending the
same and in such parcels as are likely
to
bring
the
highest
price.
The
judgment obligor, if present at the

sale, may direct the order in which


property, real or personal, shall be
sold, when such property consists of
several known lots or parcels which can
be
sold
to
advantage
separately.
Neither the officer conducting the
execution sale, nor his deputies, can
become a purchaser, nor be interested
directly or indirectly in any purchase
at such sale. (21a)
Execution sale shall be done at public auction. The public
is invited to bid kaya may public notice. There are even
publication for real property TO THE HIGHEST BIDDER.
How does it happen? Normally, ang unang magbi-bid diyan
is iyong creditor. And normally, his bid will be equal to the
judgment in his favor. For example, the judgment against B
is P1 million which includes principal and interest. Ang bid
ko P1 million din. Okay lang, bahala ka kung sinong mas
mataas diyan. That is how it normally happens.
Q: Now, suppose there are many properties levied. What
is the process?
A: You sell them one by one. Hindi pwede sabay-sabay.
[Maysa-maysa laeng balong!] After sufficient property has
been sold and that is enough to satisfy the debt, then do not
sell anymore. Do not sell more than what is necessary to
satisfy the judgment.
When the sale is of real property, consisting of several
known lots, they must be sold separately.
Years ago, I witnessed an auction sale of subdivision
here. Obviously, the owner of the subdivision could not pay
his account. So there was a public auction. Of course, the
subdivision consists of more than 100 lots iba-iba ang
location, may mapa eh. Now, you cannot say, Alright, 150
lots. Pila man? Hindi puydi iyan. Isa-isa dapat Lot #1, lot
#2, lot #3 kaya pa ba iyan? I may be interested to buy

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only one lot. So, lot #1, highest bidder, lot #2until the
proceeds are enough to satisfy the account. So hindi
pwedeng one time, garapalan iyan, kapal ng sheriff niyan.
Mga 170 lots ah hindi pwede iyanisa-isa dapat. That is
how tedious it is.
The law says, the debtor, if he is present, he can
intervene. He says, Alright, unahin mo muna ito because
he may know of somebody who is willing to buy his property.
So he can tell the sheriff, If you want to sell unahin mo
muna ito because merong malaking bayad yan eh in
order for his other properties to be saved from the
execution.
Now, the last paragraph, the last sentence says, neither
the officer conducting the execution sale, nor his deputies,
can become a purchaser, nor be interested directly or
indirectly in any purchase at such sale. So the sheriff and
his deputy cannot participate in the auction, these are
prohibited interest.
I think there is also a prohibition in the Civil Code on this
on prohibited sales. The judge cannot be interested in the
sale of a property which is the subject matter of the
litigation. The lawyer here cannot purchase a property
involving a case which he handled, to prevent conflict of
interest.
Sec. 20. Refusal of purchaser to
pay. If a purchaser refuses to pay the
amount bid by him for property struck
off to him at a sale under execution,
the officer may again sell the property
to the highest bidder and shall not be
responsible for any loss occasioned
thereby; but the court may order the
refusing purchaser to pay into the
court the amount of such loss, with
costs, and may punish him for contempt

if he disobeys the order. The amount of


such payment shall be for the benefit
of the person entitled to the proceeds
of the execution, unless the execution
has been fully satisfied, in which
event such proceeds shall be for the
benefit of the judgment obligor. The
officer may thereafter reject any
subsequent bid of such purchaser who
refuses to pay. (22a)
Auction sale: We are now going to sell this piece of
property. Alright, highest bidderP10,000, next P11,000,
P12,000, P13,000. Sabi noong isa, Alright, P40,000!
Sheriff: Any other bid?wala na? Ok wala na! then, its sold
to you. Saan ang pera mo? Bidder: Wala akong pera, biro
lang iyon.
My golly!
Pwede
kang
i-contempt
niyan
ba!
[nagpapatawa, hindi naman kalbo!] You can be declared in
contempt of court. Hindi ito biruan. This is a proceeding. So
we will repeat the procedure kasi wala man. Kalokohan pala
ito. Bwiset!
Q: May he bid again?
A: No more. The officer may thereafter reject any
subsequent bid of such purchaser who refused to pay. So do
not fool around there when you make a bid. You must be
serious and you must be ready to pay for you bid.
Sec.
21.
Judgment
obligee
as
purchaser. When the purchaser is the
judgment obligee, and no third-party
claim has been filed, he need not pay
the amount of the bid if it does not
exceed the amount of his judgment. If
it does, he shall pay only the excess.
(23a)

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Q: Can the judgment obligee the creditor-plaintiff
participate in the auction sale?
A: YES, under Section 21. The sale is open to the public.
As a matter of fact, in normal auction sale, the first bidder is
the plaintiff himself.
A: Suppose, he is the highest bidder. So the property is
declared sold to him. Is he obliged to pay his bid?
A: GENERAL RULE: NO. Why? You simply apply the law on
compensation I owe you money on the purchase price for
your property but you also owe me money based on the
judgment. So quits na tayo. Wala ng bayaran! Iyang
property na ang pinaka-bayad mo.
EXCEPTION: Two (2) instances when obligee may be
required to pay for his bid:
1.) When his bid is higher than the judgment. So he has
to pay the cash for the excess or
EXAMPLE: The judgment in my favor is P1
million, my bid is P1.2 million and Im the
highest bidder. So I have to pay you the
balance, the P200,000 because that is more
than the judgment in my favor.
2.) when the property which is to be sold is a subject of
a third party claim because it is really controversial
whether the property is really owned by the
judgment debtor.
So, if there is a 3rd party claim, he has to
pay because it is controversial - as to who really
is the owner of the property. Of course, iyong
pera naka-deposit iyan. Your money will be
returned to you if it turns out the claim is
frivolous. If the third party claim turns out to be
valid, it will be given to the real owner because

the property that you bought turned out to be


owned by somebody who is not your debtor.
Sec. 22. Adjournment of sale. By
written consent of the judgment obligor
and obligee, or their duly authorized
representatives,
the
officer
may
adjourn the sale to any date and time
agreed upon by them. Without such
agreement, he may adjourn the sale from
day to day if it becomes necessary to
do so for lack of time to complete the
sale on the day fixed in the notice or
the day to which it was adjourned.
(24a)
Suppose the auction sale was scheduled today. Hindi
natapos because there are many properties to be sold like
200 lots. Then we can continue tomorrow.
Suppose we will continue next week. Then both parties
must agree by written consent of the judgment obligor and
obligee if we will postpone it to another date na mas
malayo.
Q: Do you know why these things are very important?
A: Because you already advertised that it will be held on
this day. So any change on the date has to be strictly
complied with. Thats the reason behind these.
Q: Now, what properties can be sold at public auction?
A: Its either personal property or real property. We are
sure about that.
TWO TYPES OF PERSONAL PROPERTY:
1.) one capable of manual delivery; and
2.) one not capable of manual delivery iyong mga
intangibles ba!

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Q: What is the procedure for the sale of personal
property capable of manual delivery and one not capable of
manual delivery?
A: You have Section 23 and Section 24.
Q: When it comes to real property, what is the
procedure?
A: The procedure is Section 25.
So lets go over there, conveyance to purchaser of
personal property capable of manual delivery. Like a car and
appliance or any other tangible object.
Sec. 23. Conveyance to purchaser of
personal property capable of manual
delivery. When the purchaser of any
personal property, capable of manual
delivery, pays the purchase price, the
officer making the sale must deliver
the property to the purchaser and, if
desired, execute and deliver to him a
certificate of sale. The sale conveys
to the purchaser all the rights which
the judgment obligor had in such
property as of the date of the levy on
execution or preliminary attachment.
(25a)
Sec. 24. Conveyance to purchaser of
personal
property
not
capable
of
manual delivery. When the purchaser of
any personal property, not capable of
manual delivery, pays the purchase
price, the officer making the sale must
execute and deliver to the purchaser a
certificate of sale. Such certificate
conveys to the purchaser all the rights
which the judgment obligor had in such
property as of the date of the levy on

execution
(26a)

or

preliminary

attachment.

Q: What is the procedure for the sale of property capable


of manual delivery?
A: When the property is CAPABLE OF MANUAL DELIVERY,
and you are the highest bidder, I will deliver the car to you,
and execute and deliver to you a certificate of sale. The
certificate of sale should be signed by the sheriff to prove
that you are the highest bidder. And with that certificate of
sale, you can register that with the LTO. Automatically, the
LTO will transfer the ownership and the registration of the
car in your name.
Q: What is the procedure for the sale of property NOT
CAPABLE OF MANUAL DELIVERY? Mga intangible assets?
A: There is nothing to physically give you. But according
to Section 24, the officer making the same must execute
and deliver to the purchaser a certificate and that is actually
tantamount to delivery already.
Q: When you buy a personal property at an auction sale
and the sheriff executes a certificate of sale in your favor, do
you become the owner of the property?
A: Both sections say, the sale conveys to the purchaser
all the rights which the judgment obligor have in such
property as of the date of the levy on execution. At the
sale, you acquire all the rights which the obligor had in such
property. You become the owner because you acquire the
judgment obligors right of ownership over such property.
BUT suppose the obligor holding the property is not the
owner of the property although he has some right over the
property and his rights where sold, then you only acquire
whatever rights he has over the property. You do not acquire
ownership. A spring cannot rise higher than its source.
EXAMPLE: You are the defendant but you enjoy rights
over the property as usufructuary you are the beneficial
owner of the property but not the naked owner. And your

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rights as usufructuary were levied. I am the purchaser. Can
I acquire naked ownership? Of course NOT. I only acquire
beneficial ownership. I only acquire whatever right the
debtor has over the property.
The SC made a commentary on that issue on the nature
of the sheriffs sale and one of which is the case of
LEYSON vs. TAADA
109 SCRA 66 [1981]
HELD: At a sheriffs sale they do not sell the
land advertised to sell, although that is a
common acceptation, but they simply sell what
interest in that land the judgment debtor has;
and if you buy his interest, and it afterwards
develops that he has none, you are still liable on
your bid, because you have offered so much for
his interest in open market, and it is for you to
determine before you bid what is his interest in
the property.
So, it is for you to determine what his interest is before
you bid. That is why you look at the sheriffs notice of sale,
meron mang warning ba: Notice to prospective bidders.
You are advised to find out whatever interest the debtor
has.
For EXAMPLE: You buy the land and it turns out na hindi
pala may-ari iyong taong iyon, iba ang rights niya. Then you
are to uphold his rights, Ah, I will hold the sheriff liable! No
you cannot. There is no warranty here on ownership.
So, do not confuse this with private sale of property
warranty against evictionwala iyan sa sheriffs sale. The
sheriff does not warrant the ownership of the property. The
law only warrants the guarantee that you will acquire
whatever interest he has. And if his interest is less than
what you expect, pasensha ka. This is a case of CAVEAT

EMPTOR let the buyer beware. That is the thing you have
to remember about action sale.
Sec.
25.
Conveyance
of
real
property; certificate thereof given to
purchaser and filed with registry of
deeds. Upon a sale of real property,
the officer must give to the purchaser
a certificate of sale containing:
(a) A particular description of the
real property sold;
(b) The price paid for each distinct
lot or parcel;
(c) The whole price paid by him;
(d) A statement that the right of
redemption expires one (1) year from
the date of the registration of the
certificate of sale.
Such certificate must be registered
in the registry of deeds of the place
where the property is situated. (27a)
If the property sold at public auction is a piece of land
(real property), the sheriff will execute in your favor what is
known as the sheriffs CERTIFICATE OF SALE. Anong
nakalagay diyan? It is practically what a normal deed of sale
provides the description of the land, the property sold, the
whole price paid, the lot if there are different parcels, how
much per parcel.
The important paragraph is [d]: A statement that the
right of redemption expires one (1) year from the date of
the registration of the certificate of sale.
Q: What is the main difference between a sale of
personal property under Section 23 and sale of real property
under Section 25?
A: When the property sold at public auction is real
property, the debtor has one (1) year to redeem the

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property. Thats what you call the RIGHT OF REDEMPTION
from the purchaser. But if the property sold at public auction
is personal property, like cars or appliances, there is no right
of redemption.

ikaw ang kawawa because the longer you delay it, the
redemption period is being stretched. Instead of cutting
after one year, period of redemption has not been cut off
kaya there must be a registration.

There is no right of redemption in personal property. That


is only recognized in real property. So if your (personal)
property is sold at public auction, and then there is a highest
bidder, you cannot say, Anyway, pwede ko namang bawiin
iyon. NO, wala iyang bawi, kanya na yan. But if the
property sold at public auction is real property, that is not
kissing your land goodbye. You have one year to redeem it.
That is your last chance.

Under the present rule, the right of redemption expires


after one (1) year from the date of the registration of the
certificate of sale. Under the old law, it expires after twelve
(12) months.

Q: Summary: If you are the highest bidder, when do you


acquire ownership of the property sold in a auction sale?
A: It DEPENDS whether the property sold is personal or
real:
a.) If it is PERSONAL PROPERTY, the title is
transferred after payment of the purchase price
and delivery upon the purchaser. Delivery is
either physical or symbolic; (Sections 23 & 24)
b.) If it is REAL PROPERTY, the title is transferred, not
after the auction sale, but after expiration of the
right to redeem. (Section 25)
There is no right of redemption under personal property.
It can only be exercised in real property.
Now, take note that the period to redeem is ONE YEAR
FROM THE DATE OF THE REGISTRATION of the certificate of
sale in the office of the registrar of deeds. It is NOT from the
date of the auction sale.
Under the old law, malabo eh: from the date of sale.
Anong sale? Date of the auction sale or date of the issuance
of certificate of sale? According to the SC, the date of the
registration. That is the start of the counting. Kaya nga if
there is a sale in your favor, pag i-delay mo ang registration,

Q: Is the one year under the present rule and the 12


months under the old rules the same?
A: NO, and we know that 12 months is 360 days. One
month is 30 days times 12 is 360 days. But one year is 365
days. So they are not the same.
Thats why before, the redemption period for
extrajudicial foreclosure of mortgage is one year. And the
redemption in execution under Rule 39 is 12 months. So
there is a difference. But NOW, pareho na.
Thats why the old case of STATE INVESTMENT HOUSE
when the SC made the distinction between the one year
period for mortgage and the 12 months period under Rule
39 is already MEANINGLESS because the one year period.
NOW is uniform.
Q: Can you attack the validity of an auction sale?
A: GENERAL RULE: NO, you cannot attack the auction
sale on the presumption that every fair sale is final. There is
a presumption of regular performance of duty by the sheriff.
EXCEPTION: When an execution may be set aside:
1.) When it is shown from the nature of the
irregularity or from intrinsic facts injury resulted
therefrom. (Navarro vs. Navarro, 76 Phil. 122)
Meaning, there were serious irregularities

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committed by the officer in conducting the sale
like no publication, no notice, no prior levy, etc.;
2.) When the price obtained at the execution sale is
shockingly inadequate and it is shown that a
better price can be obtained at a resale. (Barrozo
vs. Macadaeg, 83 Phil. 378) Meaning, the highest
bid is shockingly inadequate.
EXAMPLE: I owed you for P100,000 P100,000 ang
judgment! And what is levied is a brand new Mercedes Benz.
So sobra na yon na pambayad sa utang. But the highest bid
is P30,000. Just imagine the highest bid is 30,000, tapos
meron pang deficiency judgment for P70,000 of course,
there is something wrong here. So, that is an exception, no!
That is, when the price obtained at the execution sale is
SHOCKINGLY INADEQUATE to the senses and it is shown that
a better price can be obtained.
Shocking to the senses means hindi naman yung the
difference is very slight.
EXCEPTION TO THE EXCEPTION: The rule that you can
question the validity of the auction sale if the price obtained
is shockingly inadequate applies ONLY when the property
sold is PERSONAL property. The exception does not apply
when the property sold is real property because if the
property sold is a personal property, there is no right of
redemption. But if the property sold is real property, you
cannot complain because, anyway, you have one year to
pay and the redemption price is lower. So, you are not really
prejudiced. So why are you complaining? Thats what the SC
said in the case of
RAMOS vs. PABLO
146 SCRA 5 [1986]
HELD: A reading of plaintiffs' (petitioners')
complaint shows that inadequacy of price was

raised as one of the issues. Assuming that the


price was shockingly low, the same cannot vitiate
the auction sale for redemption would be
comparatively easier.
That is because the property sold in RAMOS is real
property. Pero kung personal property, I think it is really
unfair. You lose the property forever with a very small
amount.
Sec. 26. Certificate of sale where
property claimed by third person. When
a property sold by virtue of a writ of
execution has been claimed by a third
person, the certificate of sale to be
issued by the sheriff pursuant to
sections 23, 24 and 25 of this Rule
shall make express mention of the
existence of such third-party claim.
(28a)
If the property sold at public auction is a subject of a
third party claim under Section 16, the certificate of sale to
the property is issued subject to the outcome of the third
party claim by a stranger.
Sec.
27.
Who
may
redeem
real
property so sold. Real property sold as
provided in the last preceding section,
or any part thereof sold separately,
may
be
redeemed
in
the
manner
hereinafter provided, by the following
persons:
(a) The judgment obligor, or his
successor in interest in the whole or
any part of the property;

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(b) A creditor having a lien by
virtue of an attachment, judgment or
mortgage on the property sold, or on
some part thereof, subsequent to the
lien under which the property was sold.
Such redeeming creditor is termed a
redemptioner. (29a)

EXAMPLE: Alright, may property ako worth P5 million.


Na-sheriff for P2 million. Wala na, hindi ko na kaya. Ibenta ko
sa iyo for P3 million. Give me P1 million cash at ikaw na ang
mag redeem sa purchaser. Ginansiya ka pa rin di ba? P5
million gud iyon. So I can sell, and once I sell the right to
redeem to you, you are classified as successor-in-interest for
the judgment obligor.

That is an important section.


Q: Who are entitled to redeem real property?
A: There are two (2):
1.) The judgment obligor or his successor-in-interest;
and
2.) A creditor having a lien by virtue of an
attachment, judgment or mortgage on the
property sold, subsequent to the lien under which
the property was sold. He is know as the
REDEMPTIONER.
JUDGMENT OBLIGOR OR HIS SUCCESSORS-IN-INTEREST
Judgment obligor is clear the defendant who lost the
case the defendant whose property was levied. Or, his
successor-in-interest. For EXAMPLE: During the one year
period to redeem, the judgment debtor died. So it could be
his heirs, his children, his spouse who could exercise the
right to redeem because they step into his shoes. Also,
successor-in-interest would also refer to a person to whom
the obligor assigned or transferred his right to redeem.
Q: Can the defendant sell, aside from transferring, his
right to another person?
A: YES, because the right to redeem is property by itself.
My right to redeem is also property such as an interest to
the real property which can be the subject matter of a sale.

REDEMPTIONER
Q: Define redemptioner.
A: A redemptioner is a creditor having a lien by virtue of
an attachment, judgment or mortgage on the property sold,
or on some part thereof, subsequent to the lien under which
the property was sold.
ILLUSTRATION: Suppose there is a title owned by X and
he has four (4) creditors. Lets say the property is worth P10
million and he owes A for P2 million. So A levied the
property. Now theres another judgment in favor of B and
there is no other property, ito na lang. So ang ginawa ni B,
tinatakan niya another P2 million.
Under the Law on Land Titles and Deeds, B has inferior
rights. In other words, the right of A is superior to the right
of B. A has no obligation to respect the right of B but B is
obliged to respect the right of A. And Assuming that there is
a third creditor C for another P2 million. Thus,
subsequent holder din si C. If D is also a creditor, apat na
sila.
Of course, the right of A is superior. He levies the
property, may one year to redeem. Sabi ni X, Wala na
akong property, so ano pang pakialam ko kay B? Suppose X
will not redeem, so A becomes the owner after one year.
What happens to B, C and D? Bura lahat kayo because you
are underneath. A has no obligation to respect your liens.

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In other words, A acquires the entire property for only
P2M because hindi na interesado si X. Shempre si B
interesado. So B will pay A within the redemption period
para matanggal si A. Yung utang ni X na P2M binayaran niya
kay A. So P4 million na ang hawak ni B. And B will now be
the number one. B will now acquire the property. Pero sabi ni
C, Hindi pwede iyan, lugi ako! Kasi pagna-acquire na ni B
ang property, patay na naman si C and D. Sabi ni C,
Bababuyin, ah este Babayaran kita (B)! O ayan ang P4
million. Saksak mo sa baga mo! D can do the same thing to
C.
Iyan ang tinatawag na redemptioners people who have
lien subsequent because that is your only way to protect
your lien over the property. Anyway, even if D will pay
everybody, hindi pa rin lugi because the property is worth
P10 million. But he spent P8 million because he had to buy
or redeem it from people who are ahead of him. That is the
illustration of redemptioners, they have a personality or a
right to redeem the property from whoever is ahead of him
in order to protect his lien over the property because if he
will not redeem, the quickest one will acquire the property
free from any lien or encumbrance. Eh, kung wala na yung
property? Patay na ako. What property will I get to satisfy
the account wala na akong property, isa nalang. That is the
rule on redemption. That is what Section 27 is all about.
Take note that redemptioners cannot redeem if the
judgment debtor redeems.
(For Review Class) Now, let us discuss the case of
PALICTE vs. REMOLITE, infa. This case is instructive on the
issue of right of redemption under Rule 39 in relation to
special proceedings the estate of deceased person. This is
what happened:
PALICTE vs. REMOLETE
154 SCRA 132 [1987]

FACTS: A man lost a case and his properties


were levied. So lets say his properties were
levied for P1 million. But during the 1-year period
of redemption, he died. And he is survived by 5
children. And there is an administrator appointed
by the court to administer the properties of the
deceased. During the one period to redeem, one
of five children, siguro mayaman, redeemed the
properties of their father.
Take note that only one of the heirs redeemed
the entire property from the judgment creditorobligee. And one of the issues raised is whether
one heir alone has the personality to redeem
from the creditor the property of the estate when
there is an administrator. Remember, ha the
legal representative under the law, is the
administrator.
ISSUE #1: So, who has the right to redeem?
The heir or the administrator?
HELD: The HEIR has the right to redeem. At
the moment of the decedents death, the heirs
start to own the property, subject to the
decedents liabilities. In fact, they may dispose of
the same even while the property is under
administration. If the heirs may dispose of their
shares in the decedents property even while it is
under administration with more reason should the
heirs be allowed to redeem redeemable
properties
despite
the
presence
of
an
administrator.
ISSUE #2: Must the one redeeming prove
that the other co-heirs, the administrator and the
court expressly agreed to the redemption? Is it
necessary for him to get their consent?
HELD: There is NO NEED for such prior
approval. While it may have been desirable, it is

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not indispensable. There is likewise nothing in the
records to indicate that the redemption was not
beneficial to the estate. Anyway, the estate was
benefited. The property was returned to the
estate rather than acquired by the creditors.
ISSUE #3: How can one specific heir redeem
alone when his interest in the estate is not fixed
and determinate pending the order of distribution
by the court? He is just a 1/5 owner and then he
is redeeming everything, how can that be done?
HELD: It may be true that the interest of a
specific heir is not yet fixed and determinate
pending
the
order
of
distribution
BUT,
nonetheless,
the
heirs
interest
in
the
preservation of the estate and the recovery of its
properties is greater than anybody elses,
definitely more than the administrators who
merely holds it for the creditors, the heirs, and
the legatees.
ISSUE #4: Can we not consider the
administrator as the judgment-debtor himself and
the only one successor-in-interest?
HELD: NO. The estate of the deceased is the
judgment-debtor and the heirs who will
eventually acquire that estate should not be
prohibited from doing their share in its
preservation.
ISSUE #5: So, sabi ng redeeming heir, Okey,
so now let the property be registered in my name
because pera ko man ang ginamit. I spent my
money in paying the property including the
shares of my brothers and sisters who have no
money. Is the redeeming heir correct?
HELD: NO. The motion to transfer the titles
of the properties to the name of the redeeming
heir cannot prosper at this time. Otherwise, to

allow such transfer of title would amount to a


distribution of the estate. That is tantamount to
premature distribution of the estate. You cannot
distribute the estate in favor of one heir
immediately.
So, what is the solution? The other heirs are,
therefore, given a six-month period to join as coredemptioners in the redemption made by the
petitioner before the motion to transfer titles to
the latters name may be granted.
So meaning, if the other heirs are given 6 months, hindi
nyo mabayaran, pwede na yan, kasi pera man niya ang
ginamit.

Sec. 28. Time and manner of, and


amounts
payable
on,
successive
redemptions; notice to be given and
filed.
The
judgment
obligor,
or
redemptioner, may redeem the property
from the purchaser, at any time within
one (1) year from the date of the
registration of the certificate of
sale, by paying the purchaser the
amount of his purchase, with one per
centum per month interest thereon in
addition, up to the time of redemption,
together
with
the
amount
of
any
assessments
or
taxes
which
the
purchaser may have paid thereon after
purchase, and interest on such last
named amount at the same rate; and if
the purchaser be also a creditor having
a
prior
lien
to
that
of
the
redemptioner, other than the judgment
under which such purchase was made, the
amount
of
such
other
lien,
with
interest.

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Property so redeemed may again be
redeemed within sixty (60) days after
the last redemption upon payment of the
sum paid on the last redemption, with
two per centum thereon in addition, and
the amount of any assessments or taxes
which the last redemptioner may have
paid thereon after redemption by him,
with
interest
on
such
last-named
amount, and in addition, the amount of
any
liens
held
by
said
last
redemptioner prior to his own, with
interest. The property may be again,
and as often as a redemptioner is so
disposed, redeemed from any previous
redemptioner within sixty (60) days
after the last redemption, on paying
the sum paid on the last previous
redemption, with two per centum thereon
in addition, and the amounts of any
assessments or taxes which the last
previous redemptioner paid after the
redemption
thereon,
with
interest
thereon, and the amount of any liens
held by the last redemptioner prior to
his own, with interest.
Written notice of any redemption
must be given to the officer who made
the sale and a duplicate filed with the
registry of deeds of the place, and if
any assessments or taxes are paid by
the redemptioner or if he has or
acquires any lien other than that upon
which the redemption was made, notice
thereof must in like manner be given to
the officer and filed with the registry
of deeds; if such notice be not filed,
the property may be redeemed without
paying such assessments, taxes, or
liens. (30a)

ILLUSTRATION: Brown Sugar is a judgment obligor. She


has four creditors (A, B, C, and D) and all of them obtained
judgment against her and all of them levied on the same
property. Brown Sugar is given one year from the
registration of the sale to redeem it from A. Now, suppose
SUGAR cannot redeem, B will be the one to redeem because
the first redemptioner and the judgment obligor have one
year to redeem from the date of registration. That is what
Section 28 says the judgment obligor, or redemptioner.
Now, C is given 60 days to redeem. After that, wala ng right.
Suppose C was able to redeem, D has another 60 days to
redeem from C.
Q: So what is the period of redemption?
A: There are two periods of redemption: The judgment
obligor and first redemptioner are given ONE YEAR from the
date of registration of the certificate of sale to redeem and
after that all subsequent redemptioners are given 60 days.
So the second redemptioner can redeem it within 60
days. So, within 60 days, the 3rd redemptioner can redeem
it. Pasa yan, in order that the redemptioner can protect their
lien over the property. So, the redemption period is ONE
YEAR and 60 DAYS respectively.
Q: Now, suppose Brown Sugar or B would like to redeem
the property from A. How much will the property be
redeemed?
A: Under Section 28, the purchase or the bid price for the
property PLUS one percent per month interest, and
reimbursement for taxes of the property with interest also.
But definitely, the redemption price = the bid price + 1%
interest month. So, if you will redeem after one year, the bid
price and 12% of the bid price.
ILLUSTRATION: So kung P1 million ang bid price plus +
P120,000 (1%/month) = P1.12 million

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Now there are two interesting cases here which I want
you to remember. The conflicting ruling in PNB vs. CA (140
SCRA 360) and the case of SY vs. CA (172 SCRA 125). The
two cases involved a foreclosure of mortgage not execution
but the Rules of Court applies. Under the extra-judicial
foreclosure of mortgage Act 3135, the provision of the Rules
of Court are also applicable to redemption in a foreclosure
sale. So the provision in Section 28 also applies to the
redemption during an extrajudicial foreclosure of property.
PNB vs. COURT OFAPPEALS
140 SCRA 360 [1985]
FACTS: Suppose I will borrow money from the
bank and stipulate an interest at 24% per annum.
During the auction sale, it was sold to the bank.
Within one year, you approach me, gusto mo na iredeem. Magkano ang bid priceP2M plus
interest of 2% per month for the next seven or
eight months. Sabihin ng debtor, No, 1% lang. Di
ba nakalagay sa law 1% lang. Pero ang usapan
natin is 3% monthly.
ISSUE: So which prevails - the 1% per month
under the Rules of Court or the 2% per month as
stipulated in the promissory note?
HELD: The 1% of the Rules of Court prevails.
Why? The rights of the debtor or creditor, the
bank for example, under the promissory note, or
even under the mortgage law, is only good up to
the auction sale. From the moment the auction
sale is finished and there was already a bid, we
are now talking of the one year period to redeem.
So the rate in the promissory note is no longer
applicable.

The case of PNB was somehow modified by the SC in the


subsequent case of Sy vs. CA (172 SCRA 125) where the
facts are identical.
SY vs. COURT OF APPEALS
172 SCRA 125 [1989]
FACTS: They borrowed money from the bank
at 2% a month and they failed to pay the loan.
Thus, there was a foreclosure of mortgage then
there was an execution of sale.
ISSUE: Within the one year period of
redemption, pila man ang interest? The debtor
will say 1% but according to the bank, it is 2% as
stipulated. Which will prevail?
HELD: The 3% a month stipulated under the
mortgage contract prevails. Why? Because of a
special law Section 78 of the General Banking
Act R.A. 337. Between Section 28 of Rule 39 and
Section 78 of the General Banking Act, the latter
prevails because it is a special law. It applies to
banks.
The General Banking Act partakes of the
nature of an amendment to the mortgage law in
so far as the redemption price is concerned.
When the mortgagee or the creditor is a bank or
banking credit institution, Section 6 of the
mortgage law in relation to Section 28 of Rule 39
of the Rules of Court is inconsistent with Section
78 of the General Banking Act. So the bank rate
prevails.
Paano nangyari ito? I have only one single explanation.
Hindi nakita ng mga abogado ng PNB ang provision na iyon.
They did not research very well. They failed to cite the
provision of the General Banking Act which authorizes the
bank to continue charging the higher rate even during the
redemption period. Ginamit ng SC ang general rule eh. So

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mas magaling ang lawyer nung bank in the second case
because they were able to detect an exception under the
general rule.
You know, if you are a lawyer of a bank, you must know
all the laws regarding banks. Just the same, if you are a
labor lawyer, you master all the labor laws. But if you are a
bar candidate, you master all laws! Yaaaann!
Sec. 29. Effect of redemption by
judgment obligor, and a certificate to
be delivered and recorded thereupon;
to whom payments on redemption made. If
the judgment obligor redeems, he must
make the same payments as are required
to
effect
a
redemption
by
a
redemptioner, whereupon, no further
redemption shall be allowed and he is
restored to his estate. The person to
whom the redemption payment is made
must execute and deliver to him a
certificate of redemption acknowledged
before a notary public or other officer
authorized to take acknowledgments of
conveyances of real property. Such
certificate must be filed and recorded
in the registry of deeds of the place
in which the property is situated, and
the registrar of deeds must note the
record thereof on the margin of the
record of the certificate of sale. The
payments mentioned in this and the last
preceding sections may be made to the
purchaser or redemptioner, or for him
to the officer who made the sale. (31a)
Q: Suppose Tikla redeems the property from Joshua. If
the sheriff will execute in favor of Tikla a certificate of
redemption, to whom should Tikla pay?

A: The law says she can pay directly to the purchaser,


the redemptioner or the person who made the sale.
Sec.
30.
Proof
required
of
redemptioner.
A
redemptioner
must
produce to the officer, or person from
whom he seeks to redeem, and serve with
his notice to the officer a copy of the
judgment or final order under which he
claims the right to redeem, certified
by the clerk of the court wherein the
judgment or final order is entered; or,
if he redeems upon a mortgage or other
lien, a memorandum of the record
thereof, certified by the registrar of
deeds; or an original or certified copy
of
any
assignment
necessary
to
establish his claim; and an affidavit
executed by him or his agent, showing
the amount then actually due on the
lien. (32a)
When the ORIGINAL OWNER wants to redeem the
property from B, there is NO NEED for him to prove his right
as a judgment debtor. The judgment debtor has the
automatic right to redeem.
But when it is B, C or D (REDEMPTIONERS) who wants to
redeem, they MUST PROVE to the sheriff that they are
qualified to redeem. They must prove their status because
not every person in the world has the right to redeem. The
right to redeem is only given to the debtor, the successor-ininterest or the redemptioner. Thus, you must prove your
personality to effect redemption.
Sec. 31. Manner of using premises
pending redemption; waste restrained.
Until the expiration of the time
allowed for redemption, the court may,

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as in other proper cases, restrain the
commission of waste on the property by
injunction, on the application of the
purchaser or the judgment obligee, with
or without notice; but it is not waste
for a person in possession of the
property at the time of the sale, or
entitled
to
possession
afterwards,
during
the
period
allowed
for
redemption, to continue to use it in
the same manner in which it was
previously used; or to use it in the
ordinary course of husbandry; or to
make the necessary repairs to buildings
thereon while he occupies the property.
(33a)

commission of waste on the property. So, you can also stop


him by injunction.
Sec. 32. Rents, earnings and income
of property pending redemption. The
purchaser or a redemptioner shall not
be entitled to receive the rents,
earnings and income of the property
sold on execution, or the value of the
use and occupation thereof when such
property is in the possession of a
tenant. All rents, earnings and income
derived from the property pending
redemption shall belong to the judgment
obligor until the expiration of his
period of redemption. (34a)

PROBLEM: Suppose X is the debtor, A is the purchaser


because the highest bidder could be any person. During the
1-year period to redeem, who is in possessor of the
property? The purchaser or the debtor?
A: The DEBTOR. During the one-year period, iyo pa rin
yan. The buyer or the purchaser cannot take over during the
institution. He has to wait for the one-year period to expire
before he can take over. Therefore, X continues to occupy
the property. He continues to use it the same manner it was
previously used. Use it in the ordinary course of husbandry,
to make the necessary repairs to buildings thereon while he
occupies the property.

Q: My property was sold on execution in your favor. But


my property earns income. May mga tenants diyan na
nagbabayad ng renta. During the one-year period, who will
get the rentals? The purchaser or the debtor?
A: The DEBTOR. He continues to receive all the
earnings. For defensive purposes, he is still the owner. Do
not say that, Ako ang highest bidder, akin ang income!
(Gunggong!) You wait for the one-year redemption period to
expire to get the income.

Q: Suppose 8 months has passed. Sabi ni X, Mukhang


wala na akong pag-asa. Hindi ko na ito mababayaran. Sige,
wasakin ko na lang ang property. Sirain ko na lang. I will
make a waste of the land. I will cut all the coconut trees. I
will destroy all the improvements. Para pag-take-over mo,
wala na. Bwahahaha! What is the remedy of A?
A: He can ask the court to issue a writ of injunction
according to Section 31 an injunction to restrain the

Under the OLD rules, the 1964 Rules, during the oneyear period to redeem, the debtor/defendant continues to
get the income of the property but when the creditor may
opt: Your Honor, akin ang income ha? Thats allowed by
the old law. But everything is deductible also form the
redemption price. NGAYON wala na yan. 100% the debtor is
the one enjoying the income over the property. That is a
major amendment introduced by the 1997 Rules.

Section 32 is the continuation of Section 31.

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Q: Now, what happens if after the lapse of one year
there is no redemption? What is the next step?
A: That is Section 33:
Sec. 33. Deed and possession to be
given at expiration of redemption
period; by whom executed or given. If
no redemption be made within one (1)
year from the date of the registration
of
the
certificate
of
sale,
the
purchaser is entitled to a conveyance
and possession of the property; or, if
so redeemed whenever sixty (60) days
have elapsed and no other redemption
has been made, and notice thereof
given, and the time for redemption has
expired, the last redemptioner is
entitled
to
the
conveyance
and
possession; but in all cases the
judgment obligor shall have the entire
period of one (1) year from the date of
the registration of the sale to redeem
the
property.
The
deed
shall
be
executed by the officer making the sale
or by his successor in office, and in
the latter case shall have the same
validity as though the officer making
the sale had continued in office and
executed it.
Upon the expiration of the right of
redemption,
the
purchaser
or
redemptioner shall be substituted to
and acquire all the rights, title,
interest and claim of the judgment
obligor to the property as of the time
of the levy. The possession of the
property
shall
be
given
to
the
purchaser or last redemptioner by the
same officer unless a third party is

actually holding the property adversely


to the judgment obligor. (35a)
If the period to redeem expires, no more right of
redemption. What will happen? The sheriff now will now
execute in favor of the highest bidder or purchaser what is
known as the final deed of sale or DEED OF CONVEYANCE.
Remember that there are two documents here which the
sheriff executes in case of real property.
Q: What are they (two documents which the sheriff
executes in case of real property)?
A: The following:
1.) CERTIFICATE OF SALE. After the auction sale, he
will execute in your favor the certificate of sale
under Section 25, by the time you register that,
you start counting the one year.
2.) DEED OF CONVEYANCE. If after one year there is
no redemption, a deed of conveyance is
executed. (Section 33)
Q: Which of the two documents transfers the ownership
to the purchaser?
A: Only the DEED OF CONVEYANCE transfers title to the
property.
The certificate of sale one year ago does not transfer the
ownership of the land to the purchaser. It is only a memorial
that you are the highest bidder, that you paid so much and
that you are the purchaser but there is no transfer of
ownership. Only the final deed of sale in Section 33 conveys
title to property. So do not confuse the sheriffs certificate of
sale under Section 25 with the final deed of sale under
Section 33. Although in an extra-judicial foreclosure, there is
no need of deed of sale. Only affidavit of consolidation is
needed under the mortgage law.

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Q: How can the sheriff give it to you? Suppose the debtor
refuse to vacate, is there a need to file another action of
unlawful detainer or forcible entry?
A: There is no more need of filing another action to eject
the former owner. The procedure is, the purchaser can ask
the court to issue a WRIT OF POSSESSION under the
Property Registration Decree to take over the property.
Now, another interesting case about this stage in
relation to property exempted from execution, is the case of
GOMEZ vs. GEALONE
203 SCRA 474 [1991]
FACTS: The property of the defendant was
levied and sold in a public auction to the highest
bidder. One year after, there was no redemption.
Then after the period has expired, here comes
the defendant questioning the auction sale
because the property was exempt from execution
and the property really turned out to be exempt
from execution.
ISSUE: Is there a deadline for a judgment
debtor to claim exemption from execution of his
property? Can the debtor still raise the issue that
the property is exempt from execution after the
expiration of the redemption period?
HELD: The rules do not expressly mention up
to what point although the rules of court does
not prescribe the period within which to claim the
exemption, the rule is, nevertheless, well-settled
that the right of exemption must be claimed by
the debtor himself at the time of the levy or
within a reasonable time thereafter. What is
reasonable time?
REASONABLE TIME, for purposes of the law
on exemption, does not mean a time after the
expiration of the one-year period for judgment

debtors to redeem the property sold on


execution, otherwise it would render nugatory
final bills of sale on execution and defeat the very
purpose of execution - to put an end to litigation.
We now rule that claims for exemption from
execution of properties under Section 13 must be
presented before its sale on execution by the
sheriff.
Meaning, you raise the issue of exemption at the time of
the levy but not later that the auction sale. There is a
deadline because if you claim exemption after that,
masyadong ng atrasadotoo late na ba. Thus, the claim for
exemption must be raised. Thats the ruling in the case of
GOMEZ vs. GEALONE.
Sec. 34. Recovery of price if sale
not effective; revival of judgment. If
the purchaser of real property sold on
execution,
or
his
successor
in
interest,
fails
to
recover
the
possession thereof, or is evicted
therefrom,
in
consequence
of
irregularities
in
the
proceedings
concerning the sale, or because the
judgment has been reversed or set
aside, or because the property sold was
exempt from execution, or because a
third person has vindicated his claim
to the property, he may on motion in
the same action or in a separate action
recover from the judgment obligee the
price paid, with interest, or so much
thereof as has not been delivered to
the judgment obligor; or he may, on
motion, have the original judgment
revived in his name for the whole price
with interest, or so much thereof as
has been delivered to the judgment

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obligor. The judgment so revived shall
have the same force and effect as an
original judgment would have as of the
date of the revival and no more. (36a)
Q: Suppose A is the highest bidder. There is a third-party
claim which turned out to be valid. So the property is
removed from A. So, paano naman si A? Nakabayad gud siya
diyan. Paano niya babawiin ang kuwarta niya?
A: As options under Section 34:
1.) Recover the money from obligee (A here is not
the judgment obligee); or
2.) Have the judgment revived in your name and you
look for other properties of the obligor to execute
because:
a.) He lost possession of the property;
b.) He was evicted;
c.) There was irregularity of the proceedings;
d.) The judgment has been reversed or set
aside on appeal;
e.) The property sold was exempt from
execution; or,
f.) A third person has validity of his claim of
the property.
Thats one way of property being removed from the
purchaser. Your remedy is to recover the money from the
obligee ASSUMING that the obligee is different from the
purchase. Or have the judgment revived in your name
hahabol ka na lang sa ibang properties ng debtor. Thats the
procedure alright.
Sec. 35. Right to contribution or
reimbursement. When property liable to
an execution against several persons is
sold thereon, and more than a due
proportion of the judgment is satisfied
out of the proceeds of the sale of the

property of one of them, or one of them


pays, without a sale, more than his
proportion,
he
may
compel
a
contribution from the others; and when
a judgment is upon an obligation of one
of them, as security for another, and
the surety pays the amount, or any part
thereof, either by sale of his property
or before sale, he may compel repayment
from the principal. (37a)
Q: The judgment is against A, B, and C, solidary debtors.
A paid everything. What is the right of A?
A: A has the right to seek reimbursement from B and C.
Or if the surety was made to pay the loan, he can claim
reimbursement from the principal debtor. Thats under the
Law on Obligations and Contractsright to reimbursement.
REMEDIES IN AID OF EXECUTION
Another important portion of the rule to remember are
the so-called provisions of the rules in aid of execution
remedies in aid of execution because execution is a
difficult process. The purpose of the remedies in aid of
execution is to help the obligee realize the fruits of the
judgment.
It is sometimes very hard to grasp out properties of the
obligor especially if he knows how to hide them by
conveying remedies to assist him in locating the properties
of the defendant and these remedies in aid of execution are
found in Section 36 to Section 43. And the most famous are
those found in Sections 36 and 37:
Sec. 36. Examination of judgment
obligor when judgment unsatisfied. When
the return of a writ of execution
issued against property of a judgment

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obligor, or any one of several obligors
in the same judgment, shows that the
judgment remains unsatisfied, in whole
or in part, the judgment obligee, at
any time after such return is made,
shall be entitled to an order from the
court which rendered the said judgment,
requiring such judgment obligor to
appear and be examined concerning his
property and income before such court
or before a commissioner appointed by
it, at a specified time and place; and
proceedings may thereupon be had for
the application of the property and
income of the judgment obligor towards
the satisfaction of the judgment. But
no
judgment
obligor
shall
be
so
required to appear before a court or
commissioner outside the province or
city in which such obligor resides or
is found. (38a)
Sec. 37. Examination of obligor of
judgment obligor. When the return of a
writ of execution against the property
of a judgment obligor shows that the
judgment remains unsatisfied, in whole
or in part, and upon proof to the
satisfaction of the court which issued
the writ, that a person, corporation,
or other juridical entity has property
of such judgment obligor or is indebted
to him, the court may, by an order,
require such person, corporation, or
other juridical entity, or any officer
or member thereof, to appear before the
court or a commissioner appointed by
it, at a time and place within the
province or city where such debtor
resides or is found, and be examined

concerning the same. The service of the


order shall bind all credits due the
judgment obligor and all money and
property of the judgment obligor in the
possession or in the control of such
person,
corporation,
or
juridical
entity from the time of service; and
the court may also require notice of
such proceedings to be given to any
party to the action in such manner as
it may deem proper. (39a)
So under Section 36, you can ask the court to render
judgment to allow you to subpoena the obligor and take the
witness stand subject to questioning so that you can
discover where his properties are. So in effect, Section 36 is
related to modes of discovery. This is actually a mode of
discovery. This is a type of deposition taking. It is related to
the subject of deposition taking where the discovery of the
witness stand to effect execution.
EXAMPLE: The sheriff did not find any property of the
obligor. So the obligee can file a motion under Section 36 for
examination of the obligor under oath hoping that in the
course of asking questions, he might make some
admissions. And the procedure is the same as in deposition
but this is only done right inside the courtroom.
On the other hand under Section 37, you can also
examine people whom you believe owe the obligor such as
his debtors, or those holding his property, so that you can
discover all his collectibles and ask that the same be
garnished. So this time, it is the obligor of the judgment
obligor who will be examined.
EXAMPLE: Kenneth, Thadd, and Francis owe the
judgment obligor a sum of money. The obligee can file a
motion under Section 37 to subpoena Kenneth, Thadd and
Francis to find out if it is true that they are indebted to the

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2001 Edition
judgment obligor. In this case, the obligee can as the court
to garnish the money.
So, those are the objects of Sections 36 and 37. Of
course there are others, just go over them.
Sec. 38. Enforcement of attendance
and conduct of examination. A party or
other person may be compelled, by an
order or subpoena, to attend before the
court or commissioner to testify as
provided in the two preceding sections,
and upon failure to obey such order or
subpoena or to be sworn, or to answer
as a witness or to subscribe his
deposition,
may
be
punished
for
contempt
as
in
other
cases.
Examinations
shall
not
be
unduly
prolonged, but the proceedings may be
adjourned from time to time, until they
are completed. If the examination is
before a commissioner, he must take it
in writing and certify it to the court.
All examinations and answers before a
court or commissioner must be under
oath, and when a corporation or other
juridical entity answers, it must be on
the oath of an authorized officer or
agent thereof. (40a)
Section 38 is the continuation of Section 37. If the
judgment obligor, or Kenneth, Thad and Francis refuse to
comply with the subpoena, they can be punished for
contempt.
Sec. 39. Obligor may pay execution
against obligee. After a writ of
execution against property has been
issued, a person indebted to the
judgment obligor may pay to the sheriff

holding the writ of execution the


amount of his debt or so much thereof
as may be necessary to satisfy the
judgment, in the manner prescribed in
section 9 of this Rule, and the
sheriff's receipt shall be a sufficient
discharge for the amount so paid or
directed to be credited by the judgment
obligee on the execution. (41a)
Here, there is a change of the party creditor. The best
example is garnishment from a bank. B is the debtor of the
judgment obligor. If B, instead of paying the judgment
obligor, will pay the judgment creditor, B is no longer
indebted to the judgment obligor.
Sec. 40. Order for application of
property and income to satisfaction of
judgment. The court may order any
property of the judgment obligor, or
money
due
him,
not
exempt
from
execution, in the hands of either
himself or another person, or of a
corporation or other juridical entity,
to be applied to the satisfaction of
the judgment, subject to any prior
rights over such property.
If,
upon
investigation
of
his
current income and expenses, it appears
that the earnings of the judgment
obligor for his personal services are
more than necessary for the support of
his family, the court may order that he
pay the judgment in fixed monthly
installments, and upon his failure to
pay any such installment when due
without good excuse, may punish him for
indirect contempt. (42a)

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If upon investigation of his current income and expenses,
it appears that the earnings of the judgment obligor for his
personal services are more than necessary for the support
of his family, the court may order that he pay the judgment
obligee in fixed monthly installments, and upon his failure to
pay any such installment when due without good excuse,
may punish him for indirect contempt.
Q: Can the salary of an employee be garnished?
A: Yes IF there is excess for support of his family. (Section
40) Section 40 related to Section 13, paragraph [i]
properties exempt from execution:
(i)
So much of the salaries,
wages, or earnings of the judgment
obligor for his personal services
within the four months preceding the
levy as are necessary for the support
of his family;
Normally, you cannot levy on the earnings of a person
which he needs for support of his family. But actually, it is
not the entire earnings because if youre earning a lot, it is
more than sufficient for your family. So the excess of your
income can be garnished under Section 40.
Sec. 41. Appointment of receiver.
The court may appoint a receiver of the
property of the judgment obligor; and
it may also forbid a transfer or other
disposition of, or any interference
with, the property of the judgment
obligor not exempt from execution.
(43a)
The court may appoint a receiver who is an officer of the
court who will manage the property of the litigants pending

litigation. This remedy is found under Rule 59 on


Receivership. The purpose of receivership is to preserve the
property by placing it in the hands of the court to remove it
from the control of a party because a party may dispose of
the property.
Sec. 42. Sale of ascertainable
interest of judgment obligor in real
estate. If it appears that the judgment
obligor has an interest in real estate
in the place in which proceedings are
had, as mortgagor or mortgagee or
otherwise, and his interest therein can
be ascertained without controversy, the
receiver may be ordered to sell and
convey such real estate or the interest
of the obligor therein; and such sale
shall be conducted in all respects in
the same manner as is provided for the
sale of real estate upon execution, and
the
proceedings
thereon
shall
be
approved by the court before the
execution of the deed. (44a)
EXAMPLE: The obligor turns out to have an interest in
real property as a mortgagee, or he has a right to redeem,
or right to foreclose, or right to repurchase. The obligee can
levy on these rights because these rights are property rights
by themselves. This time, it is not the property which is sold
but your interest.
Sec.
43.
Proceedings
when
indebtedness denied or another person
claims the property. If it appears that
a person or corporation, alleged to
have property of the judgment obligor
or to be indebted to him, claims an
interest in the property adverse to him

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or denies the debt, the court may
authorize, by an order made to that
effect,
the
judgment
obligee
to
institute an action against such person
or corporation for the recovery of such
interest or debt, forbid a transfer or
other disposition of such interest or
debt within one hundred twenty (120)
days from notice of the order, and may
punish disobedience of such order as
for
contempt.
Such
order
may
be
modified or vacated at any time by the
court which issued it, or by the court
in which the action is brought, upon
such terms as may be just. (45a)
EXAMPLE: The obligee cannot find any property of the
obligor. But there is a rumor that Pong owes the obligor a
sum
of
money.
Upon
examination,
Pong
denies
indebtedness. But the obligee believes that he has evidence
that Pong owes the obligor money. In this case, the obligee
can ask the court that he be allowed to file a collection
case against Pong on behalf of the obligor.
Q: Can the obligee considered as a real party in interest
in this case?
A: YES. The obligee is now considered as a
representative party. Section 43 is an example of the
phrase, or a party authorized by law or these Rules
under Rule 3, Section 3:
Sec. 3. Representatives as parties.
x x x x x A representative may be a
trustee
of
an
express
trust,
a
guardian, an executor or administrator,
or a party authorized by law or these
Rules. x x x x x x
SATISFACTION OF JUDGMENT

Sec. 44. Entry of satisfaction of


judgment
by
clerk
of
court.
Satisfaction of a judgment shall be
entered by the clerk of court in the
court docket, and in the execution
book, upon the return of a writ of
execution showing the full satisfaction
of the judgment, or upon the filing of
an admission to the satisfaction of the
judgment executed and acknowledged in
the same manner as a conveyance of real
property by the judgment obligee or by
his counsel unless a revocation of his
authority
is
filed,
or
upon
the
endorsement of such admission by the
judgment obligee or his counsel on the
face of the record of the judgment.
(46a)
Sec. 45. Entry of satisfaction with
or
without
admission.
Whenever
a
judgment is satisfied in fact, or
otherwise than upon an execution, on
demand of the judgment obligor, the
judgment obligee or his counsel must
execute and acknowledge, or indorse, an
admission
of
the
satisfaction
as
provided in the last preceding section,
and after notice and upon motion the
court may order either the judgment
obligee or his counsel to do so, or may
order the entry of satisfaction to be
made without such admission. (47a)
Q: What does satisfaction of judgement mean?
A: SATISFACTION OF JUDGMENT is the compliance with or
fulfillment of the mandate thereof (31 Am. Jur. 354).
Execution is not the same as satisfaction. Execution is
the method of enforcement of a judgment. Satisfaction

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2001 Edition
refers to compliance with or fulfillment of the mandate of
judgment. Normally, execution precedes satisfaction. But
you can satisfy a judgment without execution by simply
paying voluntarily. And when the judgment is satisfied, it
has to be recorded the manner of which is found in Sections
44 and 45 either the sheriff himself will record fully
satisfied, or, the creditor will file an admission that the
judgment is fully satisfied, or, the debtor on motion will ask
that it be recorded that he has already paid.
Q: Who may compel satisfaction of judgment?
A: Satisfaction of judgment may be compelled by the
judgment-creditor by means of execution, or by the
judgment-debtor by means of voluntary payment. (Salvante
vs. Ubi Cruz, 88 Phil. 236)
Now, here is an interesting question which has not yet
been asked in the Bar. They were expecting it as early as 2
years ago.
Q: Can a plaintiff appeal from the judgment and at the
same time move for execution of the same? Can you do
both without being self-contradictory? Can you demand
satisfaction of judgment and at the same time
appeal
said judgment?
A: PRIOR CASES say, you cannot do it because it is
inconsistent. When you comply with the satisfaction of
judgment, you are already accepting the correctness of
judgment. But when you are appealing it, you do not accept
the same. That was the old ruling which was MODIFIED in
the case of
VITAL-GOSON vs. COURT OF APPEALS
212 SCRA 235 [1992] (en banc)
ISSUE: Whether or not a judgment creditor is
estopped from appealing or seeking modification
of a judgment which has been executed at his
instance.

HELD: It depends upon the nature of the


judgment as being indivisible or not. This is the
doctrine laid down by this Court in a case decided
as early as 1925, Verches v. Rios, where the
judgment is INDIVISIBLE, acceptance of full
satisfaction of the judgment annihilates the right
to further prosecute the appeal; and that even
partial execution by compulsory legal process at
the instance of the prevailing party, places said
party in estoppel to ask that the judgment be
amended. Indivisible means either you accept it
as correct or you appeal. But you can not have
your cake and eat it too.
Where the judgment is DIVISIBLE, estoppel
should not operate against the judgment creditor
who causes implementation of a part of the
decision by writ of execution. This is the clear
import of Verches and the precedents therein
invoked. The principle is fully consistent not only
with the opinion that acceptance of payment of
only the uncontroverted part of the claim should
not preclude the plaintiff from prosecuting his
appeal, to determine whether he should not have
been allowed more, but also with logic and
common sense. In other words, if a judgment is
divisible, there is no prohibition.
EXAMPLE of DIVISIBLE JUDGMENT: A judgment
adjudicating 2 or more causes of action I am satisfied with
one cause but I am not with the other. So, my appeal is only
on the 2nd cause of action where the award should be
higher. I am not appealing in the first cause of action and
the defendant did not also appeal. So I can move to execute
that portion of judgment, as far as the first cause of action is
concerned and continue with my appeal on the second. This
is a divisible judgment. This is allowed.

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PROBLEM: Plaintiff sues for P1 million damages. The
court gave an award of P500,000 only (one-half the
damages sued for). Defendant did not appeal because he is
satisfied with the judgment. Meaning, he accepts the liability
of up to P500,000, Judgment is good. Plaintiff, however, is
not satisfied, It should be P1 million, so I will appeal. He
believes that even if he loses the appeal, he is insured as to
the P500,000.
Q: Can plaintiff move for the satisfaction of P500,000
and let the other half continue on appeal?
A: YES, I think so. Anyway, there is no quarrel with
respect to the first half. To my mind, this is a DIVISIBLE
judgment since defendant accepts it and even if plaintiff
loses appeal, the former is still liable up to P500,000. So the
plaintiff might as well claim it now for it is final insofar as the
defendant is concerned while plaintiffs appeal is with
respect to the balance. This is a possibility under the ruling
in VITAL- GOSON.
Sec. 46. When principal bound by
judgment
against
surety.
When
a
judgment is rendered against a party
who stands as surety for another, the
latter is also bound from the time that
he has notice of the action or
proceeding, and an opportunity at the
surety's
request
to
join
in
the
defense. (48a)
When there is a judgment against the surety, the
principal debtor is also bound by the judgment from the
time he has notice of the action or proceeding and an
opportunity at the suretys request to join in the defense.
The surety is only liable legally but the real party liable is
the debtor.

RES ADJUDICATA
And finally, the most important section in Rule 39 is
Section 47 effect of judgment or final order. This is what
we call the principle of res adjudicata.
Sec. 47. Effect of judgments or
final orders. The effect of a judgment
or final order rendered by a court of
the Philippines, having jurisdiction to
pronounce the judgment or final order,
may be as follows:
(a) In case of a judgment or final
order against a specific thing, or in
respect to the probate of a will, or
the administration of the estate of a
deceased person, or in respect to the
personal, political, or legal condition
or status of a particular person or his
relationship to another, the judgment
or final order is conclusive upon the
title to the thing, the will or
administration,
or
the
condition,
status or relationship of the person;
however, the probate of a will or
granting of letters of administration
shall only be prima facie evidence of
the death of the testator or intestate;
(b) In other cases, the judgment or
final order is, with respect to the
matter directly adjudged or as to any
other matter that could have been
raised in relation thereto, conclusive
between
the
parties
and
their
successors
in
interest
by
title
subsequent to the commencement of the
action
or
special
proceeding,
litigating for the same thing and under
the same title and in the same
capacity; and

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(c) In any other litigation between
the same parties or their successors in
interest, that only is deemed to have
been adjudged in a former judgment or
final order which appears upon its face
to have been so adjudged, or which was
actually
and
necessarily
included
therein or necessary thereto. (49a)
We know what this is all about when the matter is
already decided or finish already, you cannot re-open that
easily. The direct provision of law which enunciates that
principle is Section 47, which is composed of 3 portions:
paragraphs [a], [b] and [c].
Now, paragraph [a] is the principle of res adjudicata as
applied in judgment in rem (binding on the whole world) or
at least quasi in rem. Paragraphs [b] and [c] are the
application of the same doctrine with respect to judgment in
personam (binding only on the parties).
RES ADJUDICATA and RES JUDICATA are the same. In the
Philippines, that is influenced by Roman Law and Spanish
Law (Pua vs. Lapitan, 57 O.G. 4914) But the principle is
known worldwide, although maybe known by another name.
In Anglo-American law, it is known as the doctrine of
Estoppel By Judgment (Fajardo vs. Bayona, 98 Phil. 659). But
it is the same. The concept is similar. That is why in the
1994 case of
SALUD vs. COURT OF APPEALS
236 SCRA 384 [1994]
HELD: The rules of res judicata are of
common law origin and they initially evolved from
court decisions. It is now considered a principle of
universal jurisprudence forming a part of the
legal system of all civilized nations.

Q: What is the FOUNDATION PRINCIPLE upon which the


doctrine of res judicata rests?
A: It rests from the principle that parties ought not to be
permitted to litigate the same issue more than once; that
when a right or fact has been judicially tried and determined
by a court of competent jurisdiction, or where an
opportunity for such trial had been given, the judgment of
the court shall be conclusive upon the parties and those in
privity with them. Otherwise, without this doctrine, litigation
would become interminable, rights of parties would be
involved in endless confusion, courts would be stripped of
their most efficient powers, and the most important function
of government, that of ascertaining and enforcing rights,
would go unfulfilled. (Zambales Academy vs. Villanueva, L19884, May 8, 1969; People vs. Macadaeg, 91 Phil. 410;
Oberiano vs. Sobremesana, L-4622, May 30, 1952; Pealosa
vs. Tuazon, 22 Phil. 303)
I think we agree with that. Imagine, if two persons
litigated for years over the ownership of a parcel of land.
Then after years of litigation, all the way to the SC,
defendant won. Final. After one generation, both plaintiff
and defendant are dead but their children would continue.
Here comes the children of the plaintiff raising the same
issue of ownership. So, there is no end if there is no res
judicata.
REQUISITES OF RES ADJUDICATA
What are the requisites of res adjudicata? How do we
know, since there are 2 cases here? Does it mean that
simply because there is a case between us, there will be no
more case between us in the future? NO.
Q: So what are the requisites of res adjudicata?
A: There is res judicata if the following REQUISITES are
present:

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1.) The judgment or order invoked as res adjudicata
must be final;
2.) The court rendering the same must have
jurisdiction over the subject matter and of the
parties;
3.) The judgment or order must be upon the merits;
and
4.) There must be, between the two cases, identity of
parties, identity of subject matter, and identity of
cause of action.
So the elements are similar with litis pendentia. Actually,
they are based on the same rule splitting of the cause of
action. The only difference is, in litis pendentia, the first
action is still pending. In res adjudicata, the first action has
already been decided and the decision has already become
final.
First Requisite: JUDGMENT OF ORDER INVOKED MUST BE
FINAL
When it says final, the previous judgment has been
final and executory (Hubahib vs. Insular Drug, 64 Phil. 119)
Meaning, it can no longer be changed. This is because there
is such a thing as final and appealable. A final and executory
judgment is already beyond the power of the court to alter
while a final and appealable judgment is still subject to
modification by the appellate court. (Macapinlac vs. CA, 86
Phil. 359)
So where there is a judgment now that you received, and
before it becomes executory, you filed another case, it is not
res judicata. It is litis pendentia because the first case is still
pending.

dismiss should be Litis Pendentia because while there is


already a decision, the same is not yet final and executory. It
is still on appeal. In such case, it is improper to invoke the
principle of res adjudicata because the first element is
missing.
Q: Now, when did the first judgment become final? Is it
before the second case is filed? Or is it after the second case
filed?
A: Either one. It could have been final before the filing
of the second action or after, provided when the defendant
invoked it, the first judgment is already final. (Galiancia vs.
CA, 173 SCRA 42)
Second Requisite: THE COURT RENDERING THE SAME
MUST HAVE JURISDICTION OVER THE SUBJECT MATTER AND
OF THE PARTIES
Meaning, the first judgment is valid because if the court
never acquired jurisdiction over the subject matter and the
parties and rendered judgment, the judgment is void and
cannot be invoked as res judicata. (Banco Espaol-Filipino
vs. Palanca, 37 Phil. 921)
Q: May a voidable judgment be invoked as res
adjudicata?
A: YES because such kind of judgment is binding upon
the parties until annulled. (Reyes vs. Barretto-Datu, 94 Phil.
446)
Now, the classic example of the second element is the
case which I mentioned to you when we were in Rule 17
the case of

EXAMPLE: Jessa files a case against Charles. Charles lost


and then appealed. While his appeal is pending, Jessa filed
the same case against Charles. Charles filed a motion to
dismiss the second case. The ground for the motion to

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REPUBLIC PLANTERS BANK (RBP) vs.


MOLINA
166 SCRA 39 [1988]

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2001 Edition
FACTS: The RPB filed a case against the
defendant for a sum of money. Defendant cannot
be summoned because his whereabouts is now
unknown. Several attempts made by the plaintiff
to look for him failed. After a while the court
dismissed the complaint for RBPs failure to
prosecute. And the order of dismissal was silent.
So, following Section 3 of Rule 17, the dismissal is
with prejudice it shall have the effect of an
adjudication upon the merits, unless the order
provides otherwise.
Then later on, the plaintiff (RPB) discovered
the whereabouts of the defendant. The RPB refiled the compliant. Defendant moved to dismiss
because when the first complaint was dismissed
and the order of dismissal was silent then the
dismissal has the effect of an adjudication on the
merits.
HELD: Since We are talking of res adjudicata,
let us correlate it with the elements of res
adjudicata under Rule 39.
One of the elements of res adjudicata is:
When the case is terminated, the court has
jurisdiction over the case both as to the person
and the subject matter;
In the case of RPB, the court never acquired
jurisdiction over the person of the defendant
because he was never served with summons.
Therefore, such dismissal did not have the effect
of res adjudicata. The second element of res
judicata is missing.
Third Requisite: THE JUDGMENT OR ORDER MUST BE
UPON THE MERITS
What do we mean by this? A judgment on the merits for
the purpose of res judicata is one finally settling the issues

raised in the pleadings (Manila Electric Co. vs. Artiaga, 50


Phil. 144). Normally, it is after trial when there is
presentation of evidence.
Therefore, when a complaint is dismissed for lack of
jurisdiction or improper venue, even if said dismissal
becomes final, the plaintiff can re-file the case because the
dismissal upon improper venue or lack of jurisdiction is not
upon the merits. It never dealt with the correctness or
validity of the cause of action. There should be trial,
generally.
So, GENERALLY, a dismissal without a trial is not an
adjudication upon the merits EXCEPT in Rule 17, Section 3
where the case was dismissed for failure of the plaintiff to
appear during the presentation of his evidence in chief, or to
prosecute his action for an unreasonable, period of time, or
failed to comply with the rules or order of the court. There is
no trial there but according to Rule 17, Section 3, the
dismissal shall have the effect of an adjudication upon the
merits. This is the exception even if there was no trial in the
first case.
Fourth Requisite: THERE MUST BE, BETWEEN THE TWO
CASES, IDENTITY OF PARTIES, IDENTITY OF SUBJECT
MATTER, AND IDENTITY OF CAUSE OF ACTION
I. IDENTITY OF PARTIES
Q: When there is identity of parties for the purpose of res
judicata?
A: There is identity of parties for the purpose of res
judicata:
1.) When the parties in the second action are the
same as the parties in the first action; or

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2.) When the parties in the second action are
successors-in-interest of the parties in the first
action, such as heirs or purchasers who acquired
title after the commencement of the first action.
EXAMPLE: The example I gave you, the
quarrel between parents, then the children did
the same. That is the same parties. The children
are the successors-in-interest of the original
parties, although literally they are not the same
parties.
One good illustration of res adjudicata on identity of
parties as applied in a labor case was the case of
DELFIN vs. INCIONG
192 SCRA 151 [1990]
NOTE: The doctrine of res adjudicata applies
not only to the decisions of regular courts but can
be invoked even in administrative cases. It also
applies to decisions of administrative bodies.
FACTS: In the case of DELFIN, a union filed a
case of unfair labor practice (ULP) against the
employer. Then later on, the case was dismissed
by the NLRC. When the case was dismissed, the
employees filed another case based on the same
ULP. The employer invoked res adjudicata and the
complainants said, No, it is not the same parties.
In the first case, it was the union. Now it is us
(employees).
HELD: NO! When the union filed the first
case, it was filing in behalf of the employees. This
is what you call representative party. In effect, it
is the same party.
While it is true that the complainant in the
first charge was the union, in reality it had no
material interest in the outcome of the case. The
real party who stands to be benefited or defeated

by a case brought in the name of the union is the


union members themselves. Since the judgment
therein had become final and executory, the
subsequent filing of another ULP charge against
the employer for the same violations committed
during its existence is barred by res judicata.
The bringing of the same action in the name
of the individual members of the union will not
take out the case from the ambit of the principle
of res judicata. So, it is still the same parties.
II. IDENTITY OF SUBJECT MATTER
Q: When is there identity of subject matter?
A: There is identity of subject matter if in the second
case, the same thing is involved or included in the first case.
(Agregado vs. Muoz, 26 Phil. 546)
EXAMPLE: A judgment in an action for the recovery of a
large tract of land shall be a bar for a subsequent action for
the recovery of a smaller parcel included in the large tract.
(Rubiso vs. Rivera, 41 Phil. 39)
EXAMPLE: A judgment in an action for accounting of a
certain funds would be a bar for a subsequent action for the
partition of the same funds. (Chua Tan vs. Del Rosario, 57
Phil. 411)
EXAMPLE: A case for recovery of property was dismissed.
The losing party files a second case for recovery of the value
of the property. In this case, there is res adjudicata. So, you
can not deviate no? Kahit konting retoke lang, it is the
same.

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Q: When is there identity of causes of action for the
purpose of res judicata?
A: There is identity of causes of action for the purpose of
res judicata when the two actions are based on the same
delict or wrong committed by the defendant, even if the
remedies be different (Qiogue vs. Bautista, L-13159, Feb. 2,
1962). You cannot change the remedy in order to escape
from the principle of res adjudicata.
Sometimes, it is one of the hardest same cause of
action because sometimes there are 2 causes of action
which are interrelated, even between the same parties.
Now, if there are 2 interrelated causes of action, there is no
res adjudicata. Interrelated only, because the law says
similar causes of action. That is hard to determine.
That is why the SC had to give some tests to determine
whether the causes of action are the same or not. Among
these tests given by the Court:
TESTS TO DETERMINE WHETHER OR NOT THE CAUSES
OF ACTION ARE THE SAME:
1) SAME EVIDENCE Test as laid down in the case of
AQUILA ESTATE vs. BACOLOD-MURCIA
MILLING CO.
144 SCRA 482
HELD: Res adjudicata can not be applied
even though in the 2 cases there is identity of
parties, subject matter, and relief prayed for, the
evidence adduced to sustain the cause of action
in the first case is not sufficient to sustain the
second case. So, the evidence was sufficient to
prove the first case while the same evidence is
not sufficient to prove the second case.
Therefore, it must be different cause of action for

how come the same evidence will not suffice


anymore. So, it must be a different one.
2. INCONSISTENCY Test given in the case of
VALENCIA vs. RTC
184 SCRA 80
HELD: One test of the identity of cause of
action is whether or not the judgment sought in
the subsequent case will be inconsistent with the
prior judgment. Meaning, you are asking for a
decision which is in conflict with the original
decision.
Q: Suppose there is an inconsistency, is this a sign of res
adjudicata or no res judicata?
A: Well, I think if there is an inconsistency, that is a sign
of res adjudicata because you are trying to change what has
already been rendered. To my mind, that is how it should be
interpreted because if the judgment I am seeking is
inconsistent with what has been decided, then I think that is
violating the rule of res adjudicata I am re-opening
something which was already decided.
3.) And the test in the 1995 case of
GUEVARRA vs. BENITO
247 SCRA 570
HELD: The causes of action can not be the
same if the cause of action in one case only arose
after the judgment in the other. The principle of
res judicata extends only to the facts and
conditions as they existed at the time the
judgment was rendered.

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Those are the important principles to remember (read
the cases in short).
RARE INSTANCES WHERE SC REFUSES TO ALLOW RES
JUDICATA DESPITE ITS EXISTENCE
Another point, res adjudicata is a rule of law, rule of
convenience, of practicality and when the evidence are
present, the courts shall not allow second litigation. We
know that but I have to admit that there are some rare
cases where despite the elements of res adjudicata, the
courts refused to allow it.
This is what we call EQUITY CASES. But this is very rare.
When there is a higher principle to be observed rather than
the rule of res adjudicata there are higher values of society
which would be subverted if we will stick to res adjudicata. A
good example is the case of
SUAREZ vs. COURT OF APPEALS
193 SCRA 183 [1991]
FACTS: This involves a custody case. A
certain Rosemarie Manese file a petition for
habeas corpus for the recovery of her minor child
from her former live-in partner or common-law
husband, Renato Suarez. Later, Manese filed a
motion to dismiss the habeas corpus case for she
intended to pursue another remedy custody of
minor under Rule 99 of the Rules of Court in
Special Proceedings.
Actually, as observed by the SC, her move
was wrong because you can obtain custody of
your child through habeas corpus. She thought
she had the wrong remedy, so she changed it.
Actually she was correct. The trouble is, she
withdrew it. In the trial for the dismissal of the

habeas corpus, it was with prejudice so actually,


it is on the merits no?
Thereafter, she filed the custody case against
Suarez. The latter moved to dismiss on the
ground of res adjudicata. All the evidence are
admitted there. There was a decision on the
merits.
HELD: The principle of res judicata should be
disregarded if its application would involve the
sacrifice of justice to technicality. In other words,
this is what we call EQUITY.
The application of the res adjudicata should
be taken on a case to case basis; you cannot say
you apply res adjudicata through and through. It
must be taken under the particular facts
obtained. Meaning, there are certain facts in that
case which will warrant a deviation from the usual
rule, to do otherwise would amount to denial of
justice and/or bar to a vindication of a legitimate
grievance.
It is worth stating here that the controversy
in the instant case is not just an ordinary suit
between parties over a trivial matter but a
litigation initiated by the natural mother over the
welfare and custody of her child, in which the
State has a paramount interest. This is not a
simple collection case.
The fundamental policy of the State as
embodied in the Constitution in promoting and
protecting the welfare of children shall not be
disregarded by the courts by mere technicality in
resolving disputes which involve the family and
the youth.
So there is a collision here between the family view
found in the Constitution and the technical principle of res
adjudicata. If we sustain the principle of res adjudicata then
the mother can no longer recover her child. But if we

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disregard res judicata, the mother will be given a chance to
get back her child, which is higher in value than res judicata.
This principle observed in SUAREZ was actually repeated
in the 1994 case of
SALUD vs. COURT OF APPEALS
233 SCRA 284 [1994]
HELD: There should not be a mechanical and
uncaring reliance on res judicata where more
important societal values deserve protection. The
doctrine of res adjudicata is a rule of justice
which cannot be rigidly applied when it results to
injustice.
This is another pronouncement which leans on the
equitable side of the situation rather than on the observance
of the technical rules of res adjudicata. You can disagree
with the decision but the same can not be wrong. This is
what you call infallible. Infallible means no room for error.
That is why Justice Jackson said commenting on the US SC:
We are not final because we are infallible. But we are
infallible because we are final.
BAR BY A FORMER JUDGMENT vs. CONCLUSIVENESS
OF JUDGMENT
If you have read the questionnaire in Remedial Law last
September (1997), one of the questions asked by the
examiner is: Distinguish the concept of BAR BY A FORMER
JUDGMENT and the concept of CONCLUSIVENESS OF
JUDGMENT.
The two concepts are found in Section 47. The concept
of bar by a former judgment is in paragraph [b] and
conclusiveness of judgment is in paragraph [c]. These are
two parts of the res adjudicata rule.

The two concepts were discussed by the SC in the case


of SALUD: The concept of Bar By A Former Judgment is
known in traditional terminology as merger or bar; and in
modern terminology, it is called CLAIM PRECLUSION; while
Conclusiveness Of Judgment is traditionally known as
collateral estoppel and in modern terminology it is called
ISSUE PRECLUSION.
Q: Distinguish BAR BY A FORMER JUDGMENT and
CONCLUSIVENESS OF JUDGMENT.
A: The following are the distinctions:
1.) As to Effect: If you analyze paragraph [b], there are
two judgments in BAR BY A FORMER JUDGMENT,
the first judgment constitute an absolute bar to
all matters directly adjudged as well as matters
that might have been adjudged; whereas
In CONCLUSIVENESS OF JUDGMENT, the first
judgment is conclusive only on matters actually
litigated and adjudged in the first action under
paragraph [c].
2.) As

to the Requisites: In BAR BY A FORMER


JUDGMENT, there must be identity of parties,
subject matter, and cause of action; but
In CONCLUSIVENESS OF JUDGMENT, even if there is
identity of parties or subject matter, it is not
necessary that there is identity of causes of
action.

Of course, for purposes of the bar exams, that kind of


answer will suffice but mas maganda if there is illustration:
Kung bar by prior judgment the first judgment is res
adjudicata to the second or matters that have been
adjudged and matters that could have been adjudged in
relation thereto.

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EXAMPLE of Bar by a Former Judgment: Compulsory
counterclaim. I filed a case against you for recovery of land.
Meron ka pa lang claim sa akin for reimbursement for
necessary expenses. It must be set-up in the main action
otherwise it is barred forever. But you did not set it up and
then afterwards, you file a case against me for
reimbursement for necessary expenses, I will move to
dismiss. Your claim is already barred because you should
have raised it as a compulsory counterclaim in the first
action. The barring of the counterclaim is considered as the
application of res adjudicata by applying the concept of bar
by a former judgment.
EXAMPLE of Conclusiveness of Judgment: The debtor
borrows from the creditor P3 million payable in 3
installments without any acceleration clause. When the first
installment fell due the creditor sue the debtor and the
debtor raised the defense of forgery, That the promissory
note is forged and as an alternative defense assuming that
the promissory note is valid, the first installment was
already extinguished by payment. After trial, the court
decided against the defendant. Tapos na. Now, the second
installment fell due. It is another cause of action. Now, here
comes the plaintiff filing the case to collect the second
installment.
Q: Can the debtor raise again, in the second case, the
defense of FORGERY of the promissory note?
A: NO. Tapos na yan. We have already decided that the
promissory note was genuine and that there was no forgery.
This is the same promissory note that we are talking about.
So, in other words, the issue of forgery is already adjudged
in the first case and therefore res adjudicata in the second
installment.
Q: Can the debtor raise the defense of PAYMENT, that
the second installment is already paid or is it also barred?
A: YES, because in the first case what was resolved was
whether the first installment is paid. The judgment is

already conclusive on matters directly adjudged but not to


matters which have not been adjudged. The issue on
whether the second or third installment have already been
paid was never adjudged in the first case. That is the
application. Take note that there is no identity of cause of
action.
Another example of Conclusiveness of Judgment was the
ruling in the case
CARANDANG vs. VENTURANZA
133 SCRA 344 [1984]
FACTS: This involves a conflict between two
brothers, B1 and B2. There is already bad blood
between them because according to B1, B2
appropriated all the properties of their parents.
So there was this threat from B1 to sue B2 to
recover his share.
So B2 consulted his friend X. X suggested that
B2 enters into a simulated sale with X. B2 sold his
property to X. As expected, B1 filed a case
against both of them to annul or rescind the
action. Unfortunately, B1 has never proved that
the sale was simulated. The case was dismissed.
Then later B1 died. After that, B2 said to X,
Isauli mo na sa akin ang mga properties ko. X
said, What are you talking about? I already
bought it from you, akin na ito! B2 filed a case
against X. The defense of X is res adjudicata.
HELD: There is NO res adjudicata. In the first
place, one of the elements of res adjudicata is
identity of parties. Of course, both of them are
also parties of the first case but they were not
adverse to each other. They were co-defendants
in the first case.
Res adjudicata is only applicable between
adverse parties in the former suit and not

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between parties. Co-parties for the judgment
therein ordinarily settle claims as to their relative
rights
and
liabilities
as
co-plaintiffs
or
co-defendants per se.
But the second reason is, the cause of action
is completely different and therefore the
judgment in the first case is conclusive only
insofar as the right of B1 is concerned. It cannot
be conclusive as to the rights of B2 and X
because it is a separate cause of action.
Another was the 1993 case of
VDA FISH BROKER vs. NLRC
228 SCRA 681 [1993]
FACTS: A complaint filed by an employee for
non-payment of service incentive leave, COLA,
13th month pay, holiday pay, is dismissed based
on the finding that no employer-employee
relationship existed between the complainant and
the respondent. The ruling became final.
Subsequently, the same complainants filed
another case against the same respondent for
reinstatement due to illegal dismissal. (How can
you file for reinstatement na wala man kayong
ER-EE relationship in the first case???)
ISSUE: Is the finding of no ER-EE relationship
in the first case res adjudicata to the second case
for illegal termination?
HELD: YES. The issue of employer-employee
relationship is crucial in the determination of the
rights of the parties in both cases. Res adjudicata
applies even when the cause of action is not
similar under the concept of conclusiveness of
judgment. The ruling in the first case that there is
no Employer-Employee relationship between the

parties is conclusive in subsequent cases


although the cause of action is not the same.
If were we to ignore the principle of res
judicata, an absurd situation would arise where
the same administrative agency would have
diametrically opposed conclusions based on
apparently similar circumstances. This is what
will happen - for the second case, there is ER-EE
relationship. It is the same agency which said
there is none in the first case. Conflict!
OTHER PRINCIPLES IN LAW WHICH MAY BE CONFUSED
WITH RES JUDICATA:
A.) LAW OF THE CASE
B.) STARE DECISIS
Another question that can be asked here is, how to
explain and distinguish 3 concepts which appear to be
similar. These 3 concepts are all anchored on the same
thing: there is a final judgement. The concept of res
adjudicata, law of the case and stare decisis. That was also
asked in the bar.
We already know RES ADJUDICATA finality of judgment,
or the issues decided in a case, once the decision has
become final and executory and cannot be litigated again by
the same parties in a subsequent action involving the same
subject matter. (Pealosa vs. Tuazon, supra.)
Q: What about the LAW OF THE CASE?
A: LAW OF THE CASE means that legal conclusions
announced on a first appeal, whether on the general law of
the law as applied to the concrete facts, not only prescribe
the duty and limit the power of the trial court to strict
obedience and conformity thereto, but they become and
remain the law of the case in all after steps, whether in the

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lower court of in the appellate court on a subsequent
appeal. (Zarate vs. Dir. of Lands, 39 Phil. 747)
EXAMPLE of law of the case: There is a case between us
and then an issue is raised before the CA and there is a
ruling, right or wrong. That ruling will subsequently bind the
parties in the same litigation. Once the case comes back,
the future now of the case will be governed by that ruling.
Right or wrong, that principle will now be the controlling
principle affecting the parties. The principle will continue
until the case is terminated.
TABACO vs. COURT OF APPEALS
239 SCRA 485 [1994]
ISSUE: Can a case be re-opened if the law of
the case has been changed?
HELD: NO, because when the case was
decided, it was the governing law at the time,
even if it turns out to be wrong.
Under the law of the case concept, whatever
is once irrevocably established as the controlling
legal principle or decision continues to be the law
of the case between the same parties in the same
case, whether correct or not, so long as the facts
on which such decision was predicated continue
to be the facts of the case before the court. Such
stability and conclusiveness given to final
judgments of courts of competent jurisdiction are
said to be grounded on reasons of public policy,
judicial orderliness and economy as well as
protection of the time and interests of the
litigants.
A good EXAMPLE: File ako ng kaso collection of an
unpaid loan based on the provision of the Civil Code but the
debtor said, There is no cause of action because the

provision of the civil code is unconstitutional. After trial the


court said, Yes, article so-so of the Civil Code is
unconstitutional. The debtor is not obliged to pay. Tapos na.
Final na ang decision because there was no appeal. What
will happen? We are bound. As far as this case is concerned,
the Civil Code is unconstitutional. That is the law of the
case.
KILOSBAYAN vs. MORATO
246 SCRA 540 [1995]
HELD: The doctrine of the law of the case
applies whenever the case before the court came
for the second time after a ruling of the appellate
court (???).
Q: What you mean by STARE DECISIS?
A: Stare Decisis means that the decision of a court
should stand as precedents for future guidance (Ballentines
Law Dict., 2nd Ed., 1228) Example is the decisions of the SC
which stands as precedents for future cases. The purpose of
this is to attain stability and judicial order. That is why we
are citing precedents.
ROSALES vs. COURT OF FIRST INSTANCE
154 SCRA 153 [1987]
HELD: Precedents are helpful in deciding
cases when they are substantially identical with
previous litigations. Argumentum a simili valet in
lege. Earlier decisions are guideposts that can
lead us in the right direction as we tread the
'highways and byways of the law in the search for
truth and justice. These pronouncements
represent the wisdom of the past. They are the
voice of vanished judges talking to the future.
Except where there is a need to reverse them
because of an emergent viewpoint or an altered

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situation, they urge us strongly that, indeed, the
trodden path is best.
Trodden Path example is when you go on hiking like in
Mt. Apo. If there is already a path or trail, you will not have a
hard time looking for your way up to the peak of Mt. Apo.
There is already a way which will guide you to reach your
destination.
But the doctrine of stare decisis admittedly does not
mean that courts should be slave forever to precedents. A
doctrine long standing has also been reversed. The SC
explained also why once in a while it abandons the doctrine
of stare decisis:
PEOPLE vs. MUOZ
170 SCRA 107 [1989]
HELD: If we have seen fit to take a second
look at the doctrine on which we were all agreed
before, it is not because of a change in the
composition of this body. It is virtually the same
Court that is changing its mind after reflecting on
the question again in the light of new
perspectives. The decisions of this Court are not
petrified rules grown rigid once pronounced but
vital, growing things subject to change as all life
is. While we are told that the trodden path is best,
this should not prevent us from opening a fresh
trial or exploring the other side or testing a new
idea in a spirit of continuing inquiry.
Q: Distinguish Res Adjudicata and Stare Decisis.
A: RES ADJUDICATA operates between two actions
involving the same parties and the same cause(of action);
while STARE DECISIS refers to cases with different parties.

STARE DECISIS refers only to decisions of the SC


(decisions of the CA are not a basis of stare decisis); while
the doctrine of RES ADJUDICATA refers to all courts: SC, CA,
RTC and MTC.
Q: Distinguish Law Of The Case and Stare Decisis.
A: LAW OF THE CASE refers only to one case which may
or may not be invoked in subsequent cases, while STARE
DECISIS may refer to various cases which are usually
invoked in subsequent cases.

Sec. 48. Effect of foreign judgments


or final orders. - The effect of a
judgment or final order of a tribunal
or
a
foreign
country,
having
jurisdiction to render the judgment or
final order is as follows:
(a) In case of a judgment or final
order upon a specific thing, the
judgment or final order is conclusive
upon the title to the thing; and
(b) In case of a judgment or final
order against a person, the judgment or
final order is presumptive evidence of
a right as between the parties and
their successors in interest by a
subsequent title.
In either case, the judgment or
final order may be repelled by evidence
of a want of jurisdiction, want of
notice to the party, collusion, fraud,
or clear mistake of law or fact. (50a)
Sec. 48 is actually a law on conflict of laws - effect of
foreign judgment. If a judgment is rendered in U.S. and is
being invoked in the Philippines, should we honor it? Yes. So,
is it conclusive? Yes. The law says, in case of judgment upon

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a specific thing, the judgment or final order is conclusive
effectively.
PROBLEM: Mortverine and Mistiqla were both in the U.S.
and they quarreled about the ownership of a ring. They went
to an American court. After trial, the court ruled that
Mortverine is the legitimate owner of the ring. The judgment
became final. Subsequently both of them came to the
Philippines and Mistiqla filed a case against Mortverine to
recover the same ring. Sabi ni Mortverine, Res adjudicata
na ito eh, tapos na yan. Here is the decision in America.
Therefore it is settled.
Q: Is A correct?
A: YES. Under paragraph [a]. In case of a foreign
judgment upon a SPECIFIC THING, the judgment is
conclusive upon the parties. Hindi puwedeng buksan. Thats
already litigated abroad, merong nang decision. We will
respect it.
Suppose the judgment is against a person. The law says
it is presumptive evidence of a right as between the parties.
EXAMPLE: A and B were both Americans. They were
married in the U.S. and obtained a divorce in the states.
They came to the Philippines. The issue is whether the
marriage was validly terminated. According to one party,
Yes, meron man tayong divorce ba. Is the decree of
divorce abroad involving these American couple allowed in
the Philippines considering we have no divorce here? That is
their law. It is presumptive evidence of a right of the parties.
EXAMPLE: H and W are Philippine citizens. They went
abroad and somehow able to get a divorce in an American
court which became final. They came back here. Will the
Philippine court honor the divorce? Here, the judgment may
be repelled by want of jurisdiction of the American court,
etc. The judgment is presumed to be valid unless you can
attack by showing lack of jurisdiction.

What is the principle in private international law? A


judgment of divorce rendered by an American court
between 2 Filipinos is null and void. Why? The American
court never acquired jurisdiction over the status of the
parties (because they are not U.S. citizens). But judgment in
personam is honored here except when there is want of
jurisdiction, want of notice to the party, collusion, fraud, or
clear mistake of law or fact.
Q: How do you enforce a foreign judgment?
A: The usual procedure, you file a case against the same
defendant here and the cause of action is enforcement of a
foreign judgment. And then the Philippine court will render a
judgment enforcing it and then you can execute.
The SC commented on the enforcement of a foreign
judgment in the Philippines in the case of
PHILSEC vs. COURT OF APPEALS
June 19, 1997
HELD: While this court has given the effect
of res judicata to foreign judgments in several
cases, it was after the parties opposed to the
judgment had been given ample opportunity to
repel them on grounds allowed under the law. It
is not necessary for this purpose to initiate a
separate action or proceeding for enforcement of
the foreign judgment. What is essential is that
there is opportunity to challenge the foreign
judgment, in order for the court to properly
determine its efficacy. This is because in this
jurisdiction, with respect to actions in personam,
as distinguished from actions in rem, a foreign
judgment
merely
constitutes
prima
facie
evidence of the justness of the claim of a party
and, as such, is subject to proof to the contrary.
With that, we are now through with Rule 39. (Wheew!)

Lakas Atenista
Ateneo de Davao University College of Law

74

Rule 39 Execution, Satisfaction


And Effect of Judgments

1997 Rules on Civil Procedure


2001 Edition

-oOo-

Lakas Atenista
Ateneo de Davao University College of Law

75