590 SUPREMECOURTREPORTSANNOTATED

FarEastBankandTrustCo.vs.Toh,Sr.
*
G.R.No.144018.June23,2003.

FAR EAST BANK AND TRUST CO. (now BANK OF THE

PHILIPPINE ISLANDS), petitioner, vs. TOMAS TOH, SR., AND
REGIONALTRIALCOURT,MANDALUYONGCITY,BRANCH
214,respondents.

Civil Procedure Actions Pleadings and Practice Certiorari

ExceptionsThe appellate courts action is not wanting in precedents as a
specialcivilactionforcertiorarimaybegivenduecourse,notwithstanding
that no motion for reconsideration has been filed.The appellate courts
actionisnotwantinginprecedentsasaspecialcivilactionforcertiorarimay
begivenduecourse,notwithstandingthatnomotionforreconsiderationhas
been filed before the lower court under certain exceptional circumstances.
Theseexceptionsincludeinstanceswhere:(1)theissueraisedispurelyone
of law (2) public interest is involved (3) the matter is one of urgency (4)
the question of jurisdiction was squarely raised, submitted to, met and
decidedbythelowercourtand(5)wheretheorderisapatentnullity.

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*SECONDDIVISION.

591

VOL.404,JUNE23,2003 591

FarEastBankandTrustCo.vs.Toh,Sr.

Same Same Same Discretionary Execution Good Reasons,

DefinedDiscretionaryexecutionispermissibileonlywhengoodreasons
exist for immediately executing the judgment before finality or pending
appeal.Discretionary execution is permissible only when good reasons
exist for immediately executing the judgment before finality or pending
appeal or even before the expiration of the time to appeal. Good reasons
are compelling circumstances justifying the immediate execution lest
judgment becomes illusory, or the prevailing party may, after the lapse of
time,becomeunabletoenjoyit,consideringthetacticsoftheadverseparty
whomayapparentlyhavenocaseexcepttodelay.
SameSameSameSameSameOldageisagoodreasontoallow
execution pending appeal.Old age is a good reason to allow execution
pendingappealasanydelayinthefinaldispositionofthepresentcasemay
deny private respondent of his right to enjoy fully the money he has with
defendantbank.TheCourtofAppealsfoundsaidrulinginconformitywith
sound logical precepts, inspired as it is by the probability that the lapse of
time would render the ultimate judgment ineffective. It further stressed that
the trial court was in the vantage position to determine whether private
respondents advanced age and state of health would merit the execution
privaterespondentprayedfor.
SameSameSameEvidenceCertiorariReexaminationisimproper
in a petition for review on certiorari.Needless to stress, such
reexamination is improper in a petition for review on certiorari. Here, only
questions of law should be raised. Factual findings of the trial court, when
affirmed by the appellate court, bind this Court and are entitled to utmost
respect.

PETITIONforreviewoncertiorariofthedecisionoftheCourtof
Appeals.

ThefactsarestatedintheresolutionoftheCourt.
Burkley&Associatesforpetitioner.
JoseMiguelT.Arroyoforrespondent.

RESOLUTION

QUISUMBING,J.:
1
Assailed in this petition for review on certiorari is the Resolution
datedJune26,2000oftheCourtofAppealsinCAG.R.SP

_______________

1Rollo,pp.1822.

592

592 SUPREMECOURTREPORTSANNOTATED
FarEastBankandTrustCo.vs.Toh,Sr.

No. 59234,
2
which dismissed petitioners petition and affirmed the
Order dated May 26, 2000 of the Regional Trial Court (RTC) of
Mandaluyong City, Branch 214 in Civil Case No. MC99643
granting private respondents motion for discretionary execution
becauseofprivaterespondentsadvancedage.Likewisechallenged
3
is the appellate courts Resolution dated July 10, 2000, denying
petitionersmotionforreconsiderationinCAG.R.SPNo.59234.
The factualantecedents of this case, as culled from the records,
areasfollows:
On March 17, 1999, Tomas Toh, Sr., private respondent herein,
filedCivilCaseNo.MC99643againstpetitionerFarEastBank&
TrustCo.(FEBTCOnowmergedinBankofthePhilippineIslands),
seekingrecoveryofhisbankdepositswithpetitionerintheamount
ofP2,560,644.68plusdamages.Inhiscomplaint,Tohclaimedthat
petitioner had debited, without Tohs knowledge and consent, said
amount from his savings and current accounts with petitioner bank
and then applied the money as payment for the Letters of Credit
availed of by Catmon Sales International Corporation (CASICO)
from petitioner. Thus, when Toh issued two checks to Anton
Construction Supply, Inc., they were dishonored by FEBTCO
allegedlyforhavingbeendrawnagainstinsufficientfunds,although
Toh alleged as of February 4, 1999, he had an outstanding
withdrawablebalanceofP2,560,644.68.
It appears that earlier on August 29, 1997, private respondent
Tomas Toh, Sr., together with his sons, Tomas Tan Toh, Jr., and
Antonio Tan Toh, had executed a Comprehensive Security
Agreement in favor of petitioner, wherein the Tohs jointly and
severally bound themselves as sureties for the P22 million credit
facilities, denominated as Omnibus Line and Bills Purchased Line,
earliergrantedbypetitionertoCASICO.Saidcreditlineexpiredon
June 30, 1998, but the parties renewed the same for another year,
subject to the following amendments: (1) a reduction in the credit
linefromP22milliontoP7.5millionand(2)thereliefofToh,Sr.,
asoneofthesuretiesofCASICO.
In its answer to private respondents complaint, petitioner bank
averredthatthedebitingofTohsbankaccountswasjustifieddueto
hissuretyundertakingintheeventofthedefaultofCASICOin

_______________

2Id.,atpp.2930.

3Id.,atp.23.

593

VOL.404,JUNE23,2003 593
FarEastBankandTrustCo.vs.Toh,Sr.

its payments. Petitioner further claimed that the reduction of credit

linedoesnotrelieveToh,Sr.fromhiscontinuingsuretyobligation,
citingtheabsenceofanewsuretyundertakingoranyprovisionsin
the renewal agreement releasing Toh, Sr., from his personal
obligation. It pointed out that CASICOs default in its obligations
becameinevitableafterCASICOfiledaPetitionforDeclarationina
StateofSuspensionofPaymentsbeforetheSecuritiesandExchange
Commission(SEC).
On July 30, 1999, private respondent filed a Motion for
Judgment on the Pleadings, which petitioner opposed. On October
15,1999,thelowercourtgrantedtheaforesaidmotion.InitsOrder
datedMarch10,2000,thelowercourtrenderedadecisioninfavor
ofToh,Sr.,thedispositiveportionofwhichreads:

WHEREFORE, judgment is hereby rendered ordering the defendant to

restore immediately to plaintiff s savings/current accounts the amount of
P2,560,644.68 plus the stipulated interest thereon from February 17, 1999,
untilfullyrestoredandtopaytotheplaintifftheamountofP100,000.00,as
moraldamagesandtheamountofP50,000.00,asandbywayofattorneys
4
fees.Withcostsagainstthedefendant.

On March 29, 2000, Toh, Sr., filed

5
a Motion for Discretionary
ExecutionbyinvokingSection2, Rule39oftheRevisedRulesof
Court.Heprayedthatexecutionpendingappealbegrantedonthe

_______________

4Rollo,p.28.

5SEC.2.Discretionaryexecution.

(a) Executionofajudgmentorafinalorderpendingappeal.Onmotionofthe
prevailingpartywithnoticetotheadversepartyfiledinthetrialcourtwhile
it has jurisdiction over the case and is in possession of either the original
recordortherecordonappeal,asthecasemaybe,atthetimeofthefilingof
suchmotion,saidcourtmay,initsdiscretion,orderexecutionofajudgment
orfinalorderevenbeforetheexpirationoftheperiodtoappeal.
After the trial court has lost jurisdiction, the motion for execution pending
appealmaybefiledintheappellatecourt.
Discretionaryexecutionmayonlyissueupongoodreasonstobestatedina
specialorderafterduehearing.
(b) Executionofseveral,separate,orpartialjudgments.Aseveral,separateor
partial judgment may be executed under the same terms and conditions as
executionofajudgmentorfinalorderpendingappeal.

594

594 SUPREMECOURTREPORTSANNOTATED
FarEastBankandTrustCo.vs.Toh,Sr.

ground of old age and the probability that he may not be able to
enjoy his money deposited in petitioners bank. Petitioner duly
opposedsaidmotion.
On March 31, 2000, while private respondents motion was
pending before the RTC, petitioner filed a notice of appeal of the
trialcourtsorderofMarch10,2000.
On May 26, 2000, the RTC issued its order granting private
respondentsMotionforDiscretionaryExecution,thus:

WHEREFORE,themotionfordiscretionaryexecutionisGRANTED.The
issuance of the corresponding writ of execution for the enforcement and
satisfaction
6
of the aforesaid decision against the defendant is hereby
ordered.

OnMay30,2000,petitionersappealwasgivenduecourse.
In granting Tohs motion, the trial court held that discretionary
execution
7
may be issued upon good reasons by virtue of Section
2(a), Rule
8
39 of the Revised Rules of Court. Citing De Leon v.
Soriano, where we held that the approach of the end of ones life
span is9 a compelling cause for discretionary execution pending
appeal, thetrialcourtusedthecircumstanceofTohsadvancedage
asagoodreasontoallowexecutionpendingappeal.
OnJune16,2000,petitionerdecidedtoforegofilingamotionfor
reconsiderationofthetrialcourtsorderofMay26,2000.Instead,it
broughtthemattertotheCourtofAppealsinaspecialcivilaction
forcertiorari,docketedasCAG.R.SPNo.59234.
On June 26, 2000, the appellate court decided CAG.R. SP No.
59234asfollows:

WHEREFORE, premises
10
considered, the instant petition for certiorari is
herebyDISMISSED.

TheCourtofAppealspointedoutthatpetitionerfileditspetitionfor
certiorariwithoutfilingamotionforreconsideration.Itheldthatthe
factthatthelowercourtalreadyorderedtheexecu

_______________

6Supra,note4atp.30.

7Supra,note5.

895Phil.806,815(1954).

9Id.,atpp.815816.

10Rollo,p.22.

595

VOL.404,JUNE23,2003 595
FarEastBankandTrustCo.vs.Toh,Sr.

tionofitsjudgmentdidnotconstituteasituationofextremeurgency
as to justify petitioners bypassing the remedy of reconsideration.
Theappellatecourtdeclareditfoundnograveabuseofdiscretionon
thepartofthetrialcourtingrantingdiscretionaryexecution.Forthe
trialcourthaddeterminedthatToh,Sr.wasalready79yearsoldand
given his advanced age, might not be able to enjoy the fruits of a
judgment favorable to him if he were to wait for the eventual
resolutionoftheappealfiledbypetitioner.
Petitioner filed its Motion for Reconsideration but the Court of
AppealsdenieditonJuly10,2000.
Hence,thispetitionwherepetitionersubmitsthefollowingissues
forourresolution:

1) WHETHERORNOTTHEFILINGOFAMOTIONFOR
RECONSIDERATION IS NECESSARY BEFORE
PETITIONER BANK CAN ASSAIL THE LOWER
COURTS ORDER DATED MAY 26, 2000 IN A
SPECIAL CIVIL ACTION FOR CERTIORARI BEFORE
THEHONORABLECOURTOFAPPEALS.
2) WHETHER OR NOT THE HONORABLE COURT OF
APPEALS GRIEVOUSLY ERRED IN RULING THAT
THE LOWER COURT COMMITTED NO GRAVE
ABUSEOFDISCRETIONINISSUINGTHEORDEROF
11
MAY26,2000.

Attheoutset,itbearsstressingthatthefirstissueisnowmoot.We
findthattheappellatecourtdidnotepetitionersproceduralbypass
oroversight.Nonethelessitproceededtoruleonthepetitiononits
merits.Theappellatecourtsactionisnotwantinginprecedentsasa
special civil action for certiorari may be given due course,
notwithstanding that no motion for reconsideration has been filed 12
before the lower court under certain exceptional circumstances.
These exceptions include instances where: (1) the issue raised is
purely one of law (2) public interest is involved (3) the matter is
oneofurgency(4)thequestionofjurisdictionwassquarelyraised,
submittedto,metanddecidedbythelowercourtand(5)wherethe
13
orderisapatentnullity.

_______________

11Id.,atpp.78.

12 See Abraham v. National Labor Relations Commission, G.R. No. 143823, 6

March2001,353SCRA739,744745.
13 FERIA AND NOCHE, II CIVIL PROCEDURE ANNOTATED (1st Ed. 2001)

473.

596

596 SUPREMECOURTREPORTSANNOTATED
FarEastBankandTrustCo.vs.Toh,Sr.
Hence,theonlyrelevantissueforourresolutionnowiswhetherthe
CourtofAppealserredinaffirmingthelowercourtsOrdergranting
executionpendingappealonthegroundofadvancedageofprivate
respondentTomasToh,Sr.
PetitionercontendsthattheCourtofAppealserredinfindingno
grave abuse of discretion on the part of the lower court when it
granted the motion for discretionary execution based on private
respondentsbareallegationthathewasalready79yearsold.
Private respondent avers that Section 2, Rule 49 of the 1997
RulesofCivilProcedurestatestherequisitesforagrantofamotion
pending appeal. All these requirements and conditions were
complied with as evidenced by respondents motion for
discretionaryexecution,petitionersoppositiontothemotionandthe
special order issued by the Regional Trial Court stating the good
reasonforthegrantofthemotion.Hence,theRegionalTrialCourt
14
couldnothavecommittedanygraveabuseofdiscretion.
Inourview,theCourtofAppealscommittednoreversibleerror
insustainingthelowercourt.Discretionaryexecutionispermissible
only when good reasons exist for immediately executing the
judgment before finality or pending appeal or even before the
expiration of the time to appeal. Good reasons are compelling
circumstances justifying the immediate execution lest judgment
becomesillusory,ortheprevailingpartymay,afterthelapseoftime,
become unable to enjoy it, considering the tactics of15 the adverse
partywhomayapparentlyhavenocaseexcepttodelay.
TheRulesofCourtdoesnotstate,enumerate,orgiveexamples
ofgoodreasonstojustifyexecution.Thedeterminationofwhatis
agoodreasonmust,necessarily,beaddressedtothesounddiscretion
of the trial court. In other words, the issuance of the writ of
execution must necessarily be controlled by the judgment of the
judge in accordance with his own conscience and by a sense of
justice and equity, free from the control of anothers judgment or
conscience.Itmustbesofordiscretionimpliestheabsenceofahard
16
andfastrule.

_______________

14Rollo,pp.8082.

15Philippine Bank of Communications v. Court of Appeals,G.R. No. 126158, 23

September1997,279SCRA364,372.
16CityofManilav.CourtofAppeals,G.R.No.L35253,26July1976,72 SCRA

98,103104.

597

VOL.404,JUNE23,2003 597
FarEastBankandTrustCo.vs.Toh,Sr.
In this case, the trial court granted private respondents motion for
discretionaryexecutionduetohisadvancedage,citingourrulingin
17
DeLeonv.Soriano. Itconcludedthatoldageisagoodreasonto
allowexecutionpendingappealasanydelayinthefinaldisposition
ofthepresentcasemaydenyprivaterespondentofhisrighttoenjoy
18
fullythemoneyhehaswithdefendantbank. TheCourtofAppeals
foundsaidrulinginconformitywithsoundlogicalprecepts,inspired
as it is by the probability that the lapse of time would render the
ultimatejudgmentineffective.Itfurtherstressedthatthetrialcourt
was in the vantage position to determine whether private
respondents advanced age and state of health would merit the
executionprivaterespondentprayedfor.
InDeLeon,weupheldimmediateexecutionofjudgmentinfavor
of a 75yearold woman. We ruled that her need of and right to
immediateexecutionofthedecisioninherfavoramplysatisfiedthe
requirement of a paramount and compelling reason of urgency and19
justice,outweighingthesecurityofferedbythesupersedeasbond.
20
In the subsequent case of Borja v. Court of Appeals, we likewise
allowedexecutionpendingappealinfavorofa76yearoldmanon
thegroundthattheappealwilltakeyearstodecidewithfinality,and
he might very well be facing a different judgment from a Court
higher than any earthly tribunal and the decision on his complaint,
evenifitbeinhisfavor,wouldhavebecomemeaninglessasfaras
21
hehimselfwasconcerned.
In the present case, private respondent Toh is already 79 years
old. It cannot, by any stretch of imagination, be denied that he is
already of advanced age. Not a few might be fortunate to live
beyond79years.Butnoonecouldclaimwithcertaintythathistribe
wouldbealwaysblessedwithlonglife.
Private respondent obtained a favorable judgment in the trial
court. But that judgment in Civil Case No. MC99643 is still on
appeal before the Court of Appeals. It might even reach this Court
beforethecontroversyisfinallyresolvedwithfinality.Aswellsaid
inBorja,whilewemaynotagreethatamanofhisyearsispracti

_______________

1795Phil.806(1954).

18Rollo,p.30.

19Id.,atpp.814815.

20G.R.No.95667,8May1991,196SCRA847.

21Id.,atp.850.

598

598 SUPREMECOURTREPORTSANNOTATED
FarEastBankandTrustCo.vs.Toh,Sr.
 cally moribund, the Court can appreciate his apprehension that he
will not be long for this world and may
22
not enjoy the fruit of the
judgmentbeforehefinallypassesaway.
Petitioner avers that private respondents claim of old age was
unsubstantiated by clear and convincing evidence. In essence,
petitioner wants us to reevaluate this factual issue. Needless to
stress, such reexamination is improper in a petition for review
23
on
certiorari. Here, only questions of law should be raised. Factual
findingsofthetrialcourt,whenaffirmedbytheappellatecourt,bind
24
this Court and are entitled to utmost respect. No cogent reason
havingbeengivenforustodeparttherefromweshallstandbythis
salutaryrule.
WHEREFORE, the petition is DENIED for lack of merit. The
assailed resolutions of the Court of Appeals in CAG.R. SP No.
59234areAFFIRMED.Costsagainstpetitioner.
SOORDERED.

Bellosillo(Chairman)andCallejo,Sr.,JJ.,concur.
AustriaMartinez,J.,Onofficialleave.

Petitiondenied,judgmentsaffirmed.

Note.Discretionary execution is thus barred when the trial

courtlosesjurisdictionandthisoccurswhenallofthepartieshave
filedtheirrespectiveappealsorwhentheperiodtoappealhaslapsed
for those who did not file their appeals and when the court is no
longer in possession of the records of the case. (Zacate vs.
CommissiononElections,353SCRA441[2001])

o0o

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22Ibid.

23MilestoneRealtyandCo.,Inc.v.CourtofAppeals,G.R. No. 135999, 19 April

2002,381SCRA406.
24Sarmingv.Dy,G.R.No.133643,6June2002,383SCRA131.

599

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