Civil Procedure R39-44 2014 - Atty. Suarez (Cutie)

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RULES OF CIVIL PROCEDURE (SY 2014-‐2015) ©

Based on the Lectures of Atty. Melissa Romana Suarez
Rules 39, 40, 41 and 44 of the Rules of Court

Compulsory execution or execution as a
Rule 39: EXECUTION, SATISFACTION o
matter of right (Section 1) – normally
AND EFFECT OF JUDGMENTS applicable to final and executory judgments
o Discretionary execution pending appeal
(Section 2) – even if a case has not yet
Execution – the remedy provided by law for the enforcement reached finality because there is still an
of a judgment. It’s one thing to have a piece of paper saying appeal but execution can be allowed but it is
that you win. That is not enough. You need to execute the discretionary
judgment especially if the defendant does not want to § As to how enforced (Section 6)
comply. If it’s difficult to go through the whole process of o Execution by motion
litigation, execution is the same. It’s not a walk in the park. o Execution by independent action
Rule 39 is the longest Rule in Civil Procedure.
Section 1. Execution upon judgments or final orders. —
Execution is the fruit and the end of the suit and is very aptly Execution shall issue as a matter of right, or motion, upon a
called the life of the law. If there is no execution, the judgment or order that disposes of the action or proceeding
judgment in one’s favor has no maning. upon the expiration of the period to appeal therefrom if no
appeal has been duly perfected. (1a)
Shortcut for the terms under this rule: If the appeal has been duly perfected and finally
§ Judgment obligor / debtor – JD resolved, the execution may forthwith be applied for in the
§ Judgment obligee / creditor – JC court of origin, on motion of the judgment obligee,
§ SII – Successor in interest submitting therewith certified true copies of the judgment
§ FO – Final order or judgments or final order or orders sought to be enforced
§ EJF – Extra-‐judicial foreclosure and of the entry thereof, with notice to the adverse party.
§ R – Redemptioner The appellate court may, on motion in the same
§ P -‐ Purchaser case, when the interest of justice so requires, direct the
court of origin to issue the writ of execution. (n)
What is the general picture when it comes to execution?
§ We have a judgment that becomes final and Execution upon judgments or final orders – Section 1 is
executory execution as a matter of right. You have to file a motion. The
§ JC files a motion for execution with the court that court will not issue motu proprio judgment.
rendered judgment
§ The court will issue the writ of execution If the appeal has been duly perfected and finally resolved, the
§ The sheriff will enforce the writ execution may forthwith be applied for in the court of origin,
o The sheriff has 2 very important functions: on motion of the JC, submitting therewith certified true
§ Service of summons copies of the judgment or judgments or final order or orders
§ Enforcement of the writ of sought to be enforced and of the entry thereof, with notice
execution to the adverse party.

How can a court issue a writ of execution when it has already 2 kinds of execution as a matter of right:
lost jurisdiction over the case? A case can perform acts for the 1. The judgment or order disposes of the action or
purpose of enforcing its own judgment. We have what we proceeding (the period to appeal has expired and no
call “residual powers” of the court. appeal has been duly perfected)
2. An appeal has been duly perfected and finally
Again whom shall the execution issue? Generally, execution resolved
can issue only against the losing party to the case (JD) or SII
(those who derive their rights from him. A judgment can How do you distinguish the two? In the first one, you can only
never be enforced against a complete stranger who never file your appeal in one case. In the second circumstance, may
had his day in court. The writ of execution is addressed options – you can file it in the court which rendered the
generally to the JD and his agents, assigns, SII, etc. but never judgment or with the appellate court.
directed to the stranger.
Procedure if the appeal has been duly perfected and finally
Classes: resolved:
§ As to their nature:

2 RULES OF CIVIL PROCEDURE (SY 2014-‐2015)

§ The motion for execution may be filed by the JC in executory, not when the case is still
the court of the origin pending.
§ A CTC of the judgment or FO sough to be enforced § Another exception: Post-‐decision
must be attached to the motion settlement – the judgment will be
§ The date of entry of the judgment or FO must be vacated by the supervening
stated in the motion – you have to put there when agreement of the party. The said
the judgment was entered judgment can no longer be
§ There must be notice to the adverse party executed.
o When it appears that the controversy has
Take note that a motion for execution under Section 1 is a never been submitted to the judgment of
matter of right. This means that the court has to issue the the court
writ. There is no discretion on the part of the court. BUT it is o When the judgment was novated by
not ex-‐parte. There must be notice to the party. subsequent agreement of the parties
o When it appears that the writ of execution
Even if you file with the appellate court the motion for has been improvidently issued
execution, the appellate court will order the court of origin to o When the writ of execution is defective in
issue the writ. It will not issue the writ ha. substance
o When the writ of execution is issued against
Can the RTC refuse to execute a writ? No, it is ministerial. the wrong party
o When the judgment debt has been paid or
Can the court refuse to issue a writ of execution on the otherwise justified
ground that its judgment was wrong or erroneous? No, (Note: Only the first exception was
because execution is a matter of right and the issuance of the thoroughly discussed by Atty. S.)
writ upon a final and executory judgment is a ministerial duty
of the court to execute which can be compelled by Can a court, by injunction or restraining order, stop the
mandamus. execution of judgment by another court? Let’s say RTC 10
rendered judgment and then it’s already final and executory.
Rule when a judgment becomes final and executory: JC files a motion for execution. Can JD go to RTC 11 and ask
§ General rule: It is enforceable by execution for injunction? No, this is violative of the doctrine of xxx.
§ Exceptions: There are instances when xxx.
o When there has been a change in the
situation of the parties which makes the Instances when the enforcement of a final judgment may be
execution inequitable (Supervening effect stopped by way of injunction:
doctrine) § Upon the filing of a petition for relief from judgment,
§ Example: P filed an accion the court may grant preliminary injunction to
publiciana against D. D lost. The preserve the rights of the parties
court rendered judgment ordering § When there is an action for annulment of the
D to vacate property of D. While the judgment of the RTC filed in the CA
case was pending, P mortgaged the § In certiorari, or prohibition cases where the CA will
property to the bank. P failed to issue a writ of PI to stop the RTC from enforcing its
pay the loan. The bank foreclosed judgment pending the resolution of whether its
the property and it was sold in judgment was rendered in excess or without
public auction. D was the one who jurisdiction.
bought it. Can the judgment be
executed here? No, because of the CASES:
supervening fact. While the case
was pending, D became already the & Ban Hua Florez v. UBS1 (2007): Was she included in
true owner when he bought it in the judgment? Yes. The writ must conform with the
public auction. judgment. Otherwise, if it does not conform with the
§ For this to apply, the supervening judgment, it is incomplete. If a person is not stated in
event shall happen after the a writ, in this case to render accounting, even though
decision became final and

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Gr. No. 1699747, July 27, 2007

3 RULES OF CIVIL PROCEDURE (SY 2014-‐2015) ©

she is included in the judgment, she cannot be § The prevailing party may file a motion for execution
compelled to do so. The SC here emphasized that pending appeal with the:
point. o Trial court – while it has jurisdiction over the
case and is in the possession of either the
& Lucio Collado v. Heirs of Triunfante2 (2007): Here, original record or the record on appeal
the plaintiff was Triunfante and the defendant was o Appellate court – after the trial court has
Telan. During the pendency of the case, the property lost jurisdiction
was transferred to Collado. When the court issued a § There must be notice to the adverse party
writ of execution, it was addressed to Collado. § The court may, in its discretion, order the execution
Collado said that he was not a party to the forcible of a judgment or FO even before the expiration of
entry case and therefore, he is not bound by the the period to appeal
writ. The SC said that successors in interest are § Discretionary execution may only issue upon good
bound even though they are not parties to the case. reasons to be stated in a special order after due
hearing
& Anama v. CA3 (2012): Take note that when you talk
about motion being pro forma, there are instances The second instance: execution of several, separate or
when a motion is pro forma in one instance and not partial judgments. We talked about this under Rule 36. Let us
pro forma in another instance… And this holds true say there is this case na may complaint, complaint in
with execution. Section 1, paragraph 1 talks about intervention, crossclaim and counterclaim. If may judgment
execution as a matter of right – there is no appeal. na on the main complaint, the party winner can file a motion
Therefore, there is no need to inform the losing for execution but it is discretionary. He has to present good
aprty. But if the other party is still hopeful that it will reason to allow execution pending appeal. Kasi ang na-‐
still be reversed, like he filed an appeal, he still needs resolve ang main complaint pa but not with the crossclaims,
to be informed. etc.

Section 2. Discretionary execution. — Can a motion for execution be filed within the period to
(a) Execution of a judgment or final order pending appeal? As a general rule, no because the judgment is not yet
appeal. — On motion of the prevailing party with notice to final. Exception: Section 2 allows discretionary execution
the adverse party filed in the trial court while it has upon good reason xxx.
jurisdiction over the case and is in possession of either the
original record or the record on appeal, as the case may be, What will happen if there are no good reasons? The writ of
at the time of the filing of such motion, said court may, in its execution already issued is void because it does not state
discretion, order execution of a judgment or final order even why one is executing judgment.
before the expiration of the period to appeal.
After the trial court has lost jurisdiction the motion Take note that Section 2 is not the general rule, it is the
for execution pending appeal may be filed in the appellate exception. There is always the possibility that the judgment
court. will be reversed on appeal.
Discretionary execution may only issue upon good
reasons to be stated in a special order after due hearing. Examples of good reasons:
(b) Execution of several, separate or partial § P sued a foreign corporation doing business in the
judgments. — A several, separate or partial judgment may PH for sum of money. There was a judgment
be executed under the same terms and conditions as rendered in favor of P. But foreign corporation
execution of a judgment or final order pending appeal. (2a) appealed the judgment. P learned that the
corporation is going back to its country and closing
Section 2 – execution is not a matter of right. its shop in the PH. So the judgment can become
ineffectual if he waits until the resolution of an
The first instance: Execution of a judgment or final order appeal. So example to of a good reason.
pending appeal. Can you ask for execution while the other § P, an old woman, filed an action against D for accion
party appeals the case? Yes, of course. You can file. publiciana. P won the case. She was already 80 years
old. D appealed. P filed a petition for execution
saying that “I have been deprived by my property for
how many years and if there’s an appeal, it may take
2
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Gr. No. 162874, November 23, 2007 another decade and when the appeal is resolved, I
Gr. No. 187021, January 25, 2012


may be dead by that time.” So that is a good reason writ? No. According to PTA, the order of the court
as ruled by the SC. dismissing the action in favor of PTA is immediately
§ Good reason – if the appeal is interposed only for executory because it is an injunction, how did the
delay. court rule on it? Judgment with urgent matters are
o But in the later case, the SC said that it is not those that must be immediately executory. If the
a ground because if that is the reason, the judgment or order is for injunction, receivership,
trial court is already acting as an appellate accounting or support, it is immediately executory
court. The RTC has no authority to delve into under Section 4. However, Section 4 is not applicable
the issues if the appeal is interposed for in this case because the final order of the court was
delay or not. granting the motion to dismiss – hindi yung
o In the latest case, the SC said naman na it is injunction. So the motion to dismiss the injunction
a good reason but there must be other good case was granted.
reasons together with it. So interposed for So now, PTA wants to recover the property.
delay as good reason + other good reasons. Therefore, it is not covered by Section 4. Aside from
§ In one case, the JC was a juridical entity. According injunction, there was a prayer asking for possession.
to the SC, even assuming that it was at the verge of That was what PTC wanted to execute – that they be
xxx, the effect of the execution of its judgment placed in possession of the tennis court. ITC
pending appeal cannot be likened to that xxx to a appealed the dismissal. So now, the applicable
natural person. The entity do not get old, etc. provision is Section 2.
Is a full-‐blown hearing required? Take note
Note: Good reason is really based on the different facts and that under Section 2, when one files a motion for
circumstances of the case. (Check LA Tsn for the examples) execution pending appeal, he must set the motion
for hearing and that is the time that the court will
What if the movant, the prevailing party, puts up a bond to determine the good reasons. In this case, the motion
cover for any damages that may be suffered by the one who for execution pending appeal was filed with the CA.
appealed in case the judgment is reversed. Is that a good Therefore, PTC could no longer filed with the RTC
reason? The SC said no (in the later case). The mere filing of a because the records were already transferred to CA.
bond will not entitle a party for the execution of judgment The appellate court will just order the trial
pending appeal. Maging routinary na if magfile ka ng bond court to issue the writ if the former find good
tapos good reason na. But posting a bond may be an reason. In the appellate court, there are no hearings.
additional good reason but not if it is the only thing that the So, in this case, the SC said that the CA did not abuse
party will do. its discretion on ruling on the motion for execution
pending appeal without a full-‐blown trial. The
From PPT: Steps for execution pending appeal: hearing is only required if the motion for execution
§ A motion for execution is filed by the prevailing party pending appeal is filed before the RTC – the court
with the trial court while it: that rendered the judgment.
o Has jurisdiction over the case at the time of
filing, and & Rufino Valencia v. CA5 (2001):If you want the court to
o Is in the possession of either the original grant your motion based on your good reason, you
record or the record on appeal must show your proof – proof of damage or
§ Notice is served on the adverse party prejudice. Do not just allege and allege. Execution
§ There must be a hearing to show the good reasons pending appeal is not really something that should
of the movant be done because of the possibility that the judgment
§ The trial court shall order execution of a judgment or will be reversed is always there. One must prove the
final order even before the expiration of the period good reason during the hearing.
to appeal
& Flexo v. Columbus6 (2005): The SC said that ““Good
CASES: reasons” has been held to consist of compelling
circumstances justifying the immediate execution
& ITC v. PTA4 (2000): Why is Section 4 not applicable? lest judgment becomes illusory. Such reasons must
What did ITC file? A writ on injunction. Can one file a

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Gr. No. 119118, February 19, 2001
Gr. No. 135630, September 26, 2000 Gr. No. 164857, April 11, 2005


constitute superior circumstances demanding judgment. It cannot be used to satisfy the order to vacate –
urgency which will outweigh the injury or damages that is different. If the order of the court is to do certain act,
should the losing party secure a reversal of the then that is to be done.
judgment. The rules do not specify the “good
reasons” to justify execution pending appeal, thus, it Before the bond can stay (stop or hold in abeyance) the
is the discretion of the court to determine what may execution appeal, it must be approved by the court. Filing a
be considered as such.” supersedeas bond to stay execution pending appeal is not a
Note: Filing of a bond is sometimes used to matter of right. It is still discretionary on the part of the court.
bolster one’s claim for execution of appeal.
But the filing of the bond is one for who How then can the winning party whose judgment in its favor
wants to stop the execution pending appeal was affirmed proceed against the bond? Diba that bond will
– yung supersedeas bond. be used to satisfy the money judgment? According to Section
3, he can file a motion with the court to have the amount of
& ALPA-‐PCM v. Bulasao7 (2012): This is under Section 4. the bond released to him. He must notify the surety. You
You don’t have to present reasons pending appeal. already know under CrimPro that there are many kinds of
Here, the RTC already rendered a decision. There is bond (surety, property, money). If there is a surety, inform
no need for presentation of good reasons citing him. So that is how you proceed against the bond.
Section 4.
Don’t forget the language of the provision: Discretionary
Section 3. Stay of discretionary execution. — Discretionary execution may be stayed upon approval by the proper court
execution issued under the preceding section may be stayed of a sufficient supersedeas bond. “May” ha, hindi “shall.”
upon approval by the proper court of a sufficient
supersedeas bond filed by the party against whom it is General rule: When a losing party who appeals puts up a
directed, conditioned upon the performance of the supersedeas bond, the court shall recall the execution
judgment or order allowed to be executed in case it shall be pending appeal. (General rule is that the court will approve. If
finally sustained in whole or in part. The bond thus given the bond is put up, there is no reason for the court to
may be proceeded against on motion with notice to the disapprove the bond because it is provided under Section 3
surety. (3a ) that it is a way to stop execution pending appeal. Even if it is
still discretionary, the law allows it.)
What is the situation here? A motion for execution pending
appeal was filed and the movant was able to produce good Exception: Notwithstanding the filing of the supersedeas
reasons for the court to issue the writ of execution. Or maybe bond by the appellant, execution pending appeal may still be
the court has not yet issued the writ, there’s still a motion… granted by the court if there are special and compelling
and you know very well that when there is a motion, there is reasons justifying the same outweighing the security offered
a hearing. So what can the other party do? The one who by the supersedeas bond. (The court can set aside the bond if
wants to stop the execution pending appeal? there are special and compelling reasons.)

If you are the party who lost the case and you appealed it Is this the only way to stay the execution pending appeal? No,
then the winning party files an execution pending appeal, you this is only the most popular way. There is also certiorari
can stop that if you file a supersedeas bond. That bond is under Rule 65. When you take up Rule 65, you will know
conditioned upon the performance of the judgment or order when you can avail of certiorari. It is an option pero hindi siya
allowed to be executed in case it shall be finally sustained in automatic.
whole or in part.
Section 4. Judgments not stayed by appeal. — Judgments in
If on appeal, the appellate court affirms the ruling of the RTC, actions for injunction, receivership, accounting and support,
meaning the one who appealed lost… What if it is a money and such other judgments as are now or may hereafter be
judgment? Di na mahirapan si winning party if the judgment declared to be immediately executory, shall be enforceable
of the RTC is affirmed because there is already money or after their rendition and shall not, be stayed by an appeal
bond there filed by the party who appeals. If the appellate taken therefrom, unless otherwise ordered by the trial
court affirms the trial court’s judgment, that amount put up court. On appeal therefrom, the appellate court in its
by the party who appealed will be used to satisfy the money discretion may make an order suspending, modifying,
restoring or granting the injunction, receivership,

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accounting, or award of support.
Gr. No. 197124, March 19, 2012


The stay of execution shall be upon such terms as to therefrom, in the RTC, the D, while appealing his case, can ask
bond or otherwise as may be considered proper for the the RTC to suspend the accounting or modify the acconting
security or protection of the rights of the adverse party. (4a) order, etc.

What is the effect of a final and executory judgment? The Meaning, it is immediately executory in the MTC and the P
winning party has the right to execution. can ask for execution BUT the appellate court has its own
mind and own rights – even though it is immediately
What is the effect if the losing party files an appeal? The executory, the appellate court may suspend, modify, grant,
general rule is that the execution of the judgment will be etc. What if the MTC does not grant support? The RTC can
stayed. The exception is execution pending appeal if there grant it.
are good reasons.
The stay of execution shall be upon such terms as to bond or
According to Section 4, we have immediately executory otherwise as may be considered proper for the security or
judgments. Even if you appeal, the judgment is not stayed. protection of the rights of the adverse party. Take note of
what Section 4 is saying – immediately executory BUT the
General rule: If there is an appeal, the judgment will be appellate court still has the power to SMRG.
stayed. (Not executed)
Section 5. Effect of reversal of executed judgment. — Where
Exceptions (Section 4): The following shall be enforceable the executed judgment is reversed totally or partially, or
after their rendition and shall not be stayed by an appeal annulled, on appeal or otherwise, the trial court may, on
taken therefrom, unless otherwise ordered by the trial court. motion, issue such orders of restitution or reparation of
§ Judgments in actions for: damages as equity and justice may warrant under the
o injunction, circumstances. (5a)
o receivership,
o accounting and The danger of allowing execution pending appeal – that’s
o support; and why you need good reason – is that there is always a
§ Other judgments declared to be immediately possibility that the judgment will be reversed. That is what
executory Section 5 is talking about.
o Forcible entry cases AND unlawful detainer
cases – once appealed to the RTC, the RTC Effect of reversal of judgment on appeal:
decision is immediately executory whether § The winning party must file the proper motion
the RTC affirms or reverses the judgment of § The trial court may issue such orders of restitution or
the RTC. Even though there is an appeal reparation of damages as equity and justice may
made to the CA. warrant under the circumstances
o Sum of money under the Summary Rule
(Section 21): All cases decided by the MTC This means that if the judgment is reversed, you have to
under the Summary Rule appealed with the return everything you received while the judgment was
RTC, the RTC decision is immediately executed pending appeal. Okay lang if order to vacate kasi
executory. madali lang magbalik but if it’s money, mahirap na. So it’s
better not to execute pending appeal.
What the appellate court may do: On appeal therefrom, the
appellate court in its discretion may make an order: Section 6. Execution by motion or by independent action. —
§ Suspending A final and executory judgment or order may be executed
§ Modifying on motion within five (5) years from the date of its entry.
§ Restoring or granting After the lapse of such time, and before it is barred
The injunction, receivership, accounting or award of support. by the statute of limitations, a judgment may be enforced by
action.
There’s an accounting cases decided by the MTC ordering the The revived judgment may also be enforced by
D to conduct accounting. The D appeals to the RTC, ayaw niya motion within five (5) years from the date of its entry and
mag-‐render ng accounting. Under Section 4, that is thereafter by action before it is barred by the statute of
immediately executory. So the D has to render accounting. limitations. (6a)
The plaintiff can ask the MTC to issue a writ of execution
ordering the D to render accounting. However, on appeal


How do you execute a judgment? There are two ways under What is the nature of the action for enforcement of a
Section 6: dormant judgment? It is an ordinary civil action the object of
§ Execution by motion -‐ within 5 years from the date which is two-‐fold:
of entry; file a motion for execution with the court § Revive the dormant judgment
that renders the judgment § Execute the judgment reviving it, if it grants the P
§ Execution by independent action – within 5 to 10 any relief
years; this is when the party forgets to file or when
he doesn’t know that he still has to do certain acts in What do you mean by this: “The revived judgment may also
order for the judgment to be executed be enforced by motion within five (5) years from the date of
its entry and thereafter by action before it is barred by the
After the lapse of such time, and before it is barred by the statute of limitations.” It’s not enough to have the judgment
statute of limitations, a judgment may be enforced by action. revived. Hindi automatic ang effect.
Barred by 10 years, yung under Article 1144.
This is implying that if you revive a judgment, it is tantamount
From what date will you count the period? From the date of to having it executed but why is this here? Because the court
entry. Date of entry – the date wherein the clerk of court will will not issue a writ of execution if you don’t file a motion for
enter the judgment to the records of the court. That is the execution. If you revive the judgment, bubuhayin lang ng
actual date of entry. But if the date of entry is way beyond court ang dormant judgment but you still need to file a
the date of judgment, it will be deemed to be the date of motion for execution to execute the revived judgment. If
notice; meaning: the date that the parties knew of the your judgment has already been revived and you don’t file a
judgment (date of service of the judgment). motion of execution within 5 years from the revival of your
judgment, magiging dormat na naman siya. In order to revive
I have a client who went to me with a judgment rendered in it again, you have to revive it before it will prescribe.
2001. Sabi niya, “Atty., what will I do? Nanalo man ako sa kaso
ba pero hindi pa man nag-‐vacate ang occupant ng property.” Example: RTC rendered judgment in favor of P in 1990. In
Sabi ko “Hindi niyo pina-‐execute?” So when was the 1999, P filed an action to revive the judgment. RTC rendered
judgment rendered? 2001. After 12 year siya lumapit sa akin. I judgment reviving the original judgment in 2000.
told her to go to the court that rendered the judgment and § How much longer does P have to execute the
look at the record if the judgment was already entered. When revived judgment?
she went there, wala pang entry. So sabi ko na that period o Under Section 6, he has until 20005 to
did not commence to run pa. Wala mang entry, so the period execute
is counted from date of entry, then how can the period start o He has xxx
to run? I told her that we can try the execution. But she never
came back so I don’t know what happened. What is the exception tot eh rule on dormant judgment? The
only exception is: the judgment for support which does not
What should be filed under execution by independent action? become dormant, nor does it prescribe. (Canonizado case). It
One must file an action for revival of the judgment because does not prescribe. Just take note of that.
that particular judgment that became final and executory
became dormant after judgment. If it is dormant, you can no In one old case: A judgment for support may be executed any
longer file a motion to execute judgment but you can time even beyond the 5-‐year period. No need to file a revival
resurrect by filing a motion for revival of judgment. So you because it does not become dormant.
have to file new action. You do not need to go back to square
one. You just have to show your judgment that became Example: Even if the judgment is more than 5 years old and
dormant and have it revived. the JD defaulted on the 7th year, the JC can file a motion to
collect judgment. He can also ask for increase of support.
Does the JC have to file the case all over again, practically
repeating what happened 5 years ago? No, because the What if the judgment is a money judgment and the JD does
judgment in the independent action is a judgment reviving not have any money? What the sheriff will do is levy his
the first judgment. This means that the JD can no longer property. Kunyari yung kotse niya na-‐levy, the car will be sold
question the correctness of the first judgment because it is at a public auction. The proceeds of the sale will be used to
already res judicata. He cannot delve into the merits of the pay JC.
case na.


Illustration: Judgment was executed on the 4th year and the & RP v. Nillas 10 (2007): Here, we have a judgment
property of JD was levied. When should the auction shall be rendered in 1941 in a land registration case. The
conducted? Within 10 years. It doesn’t siya from what so just judgment was not executed – the land which was
take note of that. granted to her xxx she filed a petition for revival
after 56 years. The OSG said na under Rule 39,
As long as the revived judgment does not prescribe, you can Section 1, 5 years and 10 years at the most. Not only
keep on reviving. Just take note of this. prescription but only laches.
The SC said: “Rule 39, as invoked by the
CASES: Republic, applies only to ordinary civil actions, not to
other or extraordinary proceedings not expressly
& Enriquez v. CA 8 (2001): Was there a motion for governed by the Rules of Civil Procedure but by
execution filed after the judgment? No. They filed an some other specific law or legal modality such as
action for the revival of the judgment pursuant to land registration cases.”
Section 6 of Rule 39. Can an action to revive be
enforced against the successors in interest without & Central Surety v. Planters11 (2007): What should be
proving the enforceability of the said decision as to done within 5 year from the date of entry? The filing
original parties? The SC said yes. It doesn’t matter if of the motion or the execution itself? So as long as
the original parties are no longer existing. As long as the motion is filed within the 5 years, the execution
there is a judgment that can be executed, it can be can be made later? Yes. In the case of Francisco,
executed by the SII of the winning party against the there was a motion for execution of judgment filed
SII of the losing party. No need to prove any more if right away but there was no execution by some
the judgment is enforceable between the original reasons. It is not the motion that should be filed
parties. The judgment is already final. within the 5 year period, it must be the execution (?).
Just understand that it is the execution.
& Francisco Motors v. CA9 (2006): If execuytion is a
matter of right, it cannot be stayed. It is the & Spouses Cheng v. Spouses Javier 12 (2009): Let’s
ministerial duty of the court to issue a writ of pretend that Cheng filed an MR did not receive the
execution. There are times that the court will stay order denying his MR. The 15-‐year period never
the execution which is what happened here. The started to run so the judgment never attained
execution here was stayed for a period of time and finality. After 15 years, nagsend sila sabi ng SC na
the motion to enforce the motion to execute was “ngeh.” Here, it was the fault of the JD alone. The D
filed more than 5 years from the time the judgment has nothing to do with the delay.
became final and executory.
The SC said that: “In computing the time & Villeza v. German Management13 (2010): A 10th of a
limited for suing out of an execution, although there century is 10 years so why sleep on your rights for 10
is authority to the contrary, the general rule is that years? That is not only negligence but not
there should not be included the time when understandable. How can you, diba? In this case, it
execution is stayed, either by agreement of the was the party who kept on filing this and that. If it is
parties for a definite time, by injunction, by the the JC who causes the delay, there will be no
taking of an appeal or writ of error so as to operate extension of time under Section 6.
as a supersedeas, by the death of a party or
otherwise. Any interruption or delay occasioned by & Spouses Topacio v. Banco Filipino14 (2010): You have
the debtor will extend the time within which the writ to understand the nature of an extra-‐judicial
may be issued without scire facias (citation proceeding foreclosure. The name itself tells us that
omitted).” there is no proceeding before the court. It is already
Here execution by motion was still possible. included in the Real Estate Mortgage. So, upon non-‐
Note: Atty. S keeps on citing this case in her payment, i-‐foreclosure na ang property and it will be
discussions of the other cases. sold in an auction sale wherein the proceeds will be

10
Gr. No. 159595, January 23, 2007
11
Gr. No. 149053, March 7, 2007
12
Gr. No. 147977, March 26, 2008
8 13
Gr. No. 137391, December 14, 2001 Gr. No. 182937, August 8, 2010
9 14
Gr. No. 117622, October 23, 2006 Gr. No. 157644, November 17, 2010


used to pay the debt of the mortgagor. However, § The officer making the sale shall
when it comes to real properties, under the Rules on account to the corresponding
Mortgage, there is a one year redemption period executor or administrator for any
wherein the mortgagor is allowed to occupy or surplus in his hands
possess the property during the period. When he
fails to redeem after the 1 year, the bank can register Note: Check LA TSN for Illustrations
the property under its name. Who is in possession?
The mortgagor pa rin. How can the bank drive out This is very, very important because this is the favorite
the mortgagor? The bank must ask the court to issue question of Atty. Europa: P filed an action against D to collect
a writ of possession so that the bank can possess the an unpaid loan. D dies.
property already registered in its name. Writ of § If D dies before entry of final judgment – there will
possession is a special proceeding – for that purpose be a substitution of party and the case will continue
only – to take possession of the property. until the entry of final judgment (substitute: heirs or
The motion was filed on this particular date. administrator or executor)
The bank now files an alias writ. Is Section 6 § If D died after the entry of final judgment
applicable? No. Because Section 6 applies to o Before the property is levied: The judgment
judgments. There is no judgment here because the shall be enforced in the manner provided for
foreclosure was extra-‐judicially made. by the Rules on claims against the estate of
the deceased under Rule 66
Section 7. Execution in case of death of party. — In case of o After the property is levied: The property
the death of a party, execution may issue or be enforced in may be sold for the satisfaction of the
the following manner: judgment obligation under Section 7
(a) In case of the death of the judgment obligee, § Meaning, the auction sale or the
upon the application of his executor or administrator, or execution sale shall proceed as
successor in interest; scheduled. No more substitution.
(b) In case of the death of the judgment obligor,
against his executor or administrator or successor in Section 8. Issuance, form and contents of a writ of
interest, if the judgment be for the recovery of real or execution. — The writ of execution shall:
personal property, or the enforcement of a lien thereon; (1) issue in the name of the Republic of the
(c) In case of the death of the judgment obligor, Philippines from the court which granted the motion;
after execution is actually levied upon any of his property, (2) state the name of the court, the case number
the same may be sold for the satisfaction of the judgment and title, the dispositive part of the subject judgment or
obligation, and the officer making the sale shall account to order; and
the corresponding executor or administrator for any surplus (3) require the sheriff or other proper officer to
in his hands. (7a) whom it is directed to enforce the writ according to its
terms, in the manner hereinafter provided:
What if a party dies? How do you execute? (a) If the execution be against the property of the
& If JC dies judgment obligor, to satisfy the judgment, with interest, out
o Upon the application of his executor or of the real or personal property of such judgment obligor;
administrator or SII (the E,A or SII can (b) If it be against real or personal property in the
enforce the judgment) hands of personal representatives, heirs, devisees, legatees,
& If JD dies tenants, or trustees of the judgment obligor, to satisfy the
o Against his executor or administrator or SII – judgment, with interest, out of such property;
if the judgment be for the: (c) If it be for the sale of real or personal property
§ Recovery of real or personal to sell such property describing it, and apply the proceeds in
property conformity with the judgment, the material parts of which
§ Enforcement of a lien thereon shall be recited in the writ of execution;
o After execution is actually levied upon any (d) If it be for the delivery of the possession of real
of his property (in money claims) or personal property, to deliver the possession of the same,
§ The same may be sold for the describing it, to the party entitled thereto, and to satisfy any
satisfaction of the judgment costs, damages, rents, or profits covered by the judgment
obligation, and 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 in the nearest government depository bank of the Regional
(e) In all cases, the writ of execution shall Trial Court of the locality.
specifically state the amount of the interest, costs, damages, The clerk of said court shall thereafter arrange for
rents, or profits due as of the date of the issuance of the the remittance of the deposit to the account of the court
writ, aside from the principal obligation under the that issued the writ whose clerk of court shall then deliver
judgment. For this purpose, the motion for execution shall said payment to the judgment obligee in satisfaction of the
specify the amounts of the foregoing reliefs sought by the judgment. The excess, if any, shall be delivered to the
movant.(8a) judgment obligor while the lawful fees shall be retained by
the clerk of court for disposition as provided by law. In no
Section 8 is very academic – what the writ of execution case shall the executing sheriff demand that any payment by
should state. check be made payable to him.
(b) Satisfaction by levy. — If the judgment obligor
Issuance of the writ of execution: cannot pay all or part of the obligation in cash, certified
§ Issued in the name of the RP bank check or other mode of payment acceptable to the
§ From the court which granted the motion for judgment obligee, the officer shall levy upon the properties
execution (there are times that the appellate court of the judgment obligor of every kind and nature
will be the one to grant the motion and it will order whatsoever which may be disposed, of for value and not
the trial court to issue the writ) otherwise exempt from execution giving the latter the
option to immediately choose which property or part
Therefore: The motion for execution shall specify the thereof may be levied upon, sufficient to satisfy the
amounts of the relief sought by the movant. The sheriff judgment. If the judgment obligor does not exercise the
cannot execute anything that is not there in the writ. option, the officer shall first levy on the personal properties,
if any, and then on the real properties if the personal
Just take note of the contents of a writ of execution. properties are insufficient to answer for the judgment.
The sheriff shall sell only a sufficient portion of the
Note: The writ of execution must state the exact amount to personal or real property of the judgment obligor which has
be collected. That is why according to the last sentence of been levied upon.
paragraph e: For this purpose, the motion for execution shall When there is more property of the judgment
specify the amounts of the foregoing reliefs sought by the obligor than is sufficient to satisfy the judgment and lawful
movant. fees, he must sell only so much of the personal or real
property as is sufficient to satisfy the judgment and lawful
Section 9. Execution of judgments for money, how enforced. fees.
— Real property, stocks, shares, debts, credits, and
(a) Immediate payment on demand. — The officer other personal property, or any interest in either real or
shall enforce an execution of a judgment for money by personal property, may be levied upon in like manner and
demanding from the judgment obligor the immediate with like effect as under a writ of attachment.
payment of the full amount stated in the writ of execution (c) Garnishment of debts and credits. — The officer
and all lawful fees. The judgment obligor shall pay in cash, may levy on debts due the judgment obligor and other
certified bank check payable to the judgment obligee, or any credits, including bank deposits, financial interests,
other form of payment acceptable to the latter, the amount royalties, commissions and other personal property not
of the judgment debt under proper receipt directly to the capable of manual delivery in the possession or control of
judgment obligee or his authorized representative if present third parties. Levy shall be made by serving notice upon the
at the time of payment. The lawful fees shall be handed person owing such debts or having in his possession or
under proper receipt to the executing sheriff who shall turn control such credits to which the judgment obligor is
over the said amount within the same day to the clerk of entitled. The garnishment shall cover only such amount as
court of the court that issued the writ. will satisfy the judgment and all lawful fees.
If the judgment obligee or his authorized The garnishee shall make a written report to the
representative is not present to receive payment, the court within five (5) days from service of the notice of
judgment obligor shall deliver the aforesaid payment to the garnishment stating whether or not the judgment obligor
executing sheriff. The latter shall turn over all the amounts has sufficient funds or credits to satisfy the amount of the
coming into his possession within the same day to the clerk judgment. If not, the report shall state how much funds or
of court of the court that issued the writ, or if the same is credits the garnishee holds for the judgment obligor. The
not practicable, deposit said amounts to a fiduciary account garnished amount in cash, or certified bank check issued in


the name of the judgment obligee, shall be delivered to look for the JC. He can give it to the court. He is not
directly to the judgment obligee within ten (10) working allowed to hold the money – he must surrender or deposit it.
days from service of notice on said garnishee requiring such That is the procedure for money judgment: immediate
delivery, except the lawful fees which shall be paid directly demand.
to the court.
In the event there are two or more garnishees Example: Decision of RTC of Davao was enforced in Cotabato
holding deposits or credits sufficient to satisfy the where the JD. The sheriff in Cotabato will go to the JD and if
judgment, the judgment obligor, if available, shall have the the JD pays, he will surrender the money to the clerk of court
right to indicate the garnishee or garnishees who shall be to Cotabato and the latter will forward it to the clerk of court
required to deliver the amount due, otherwise, the choice in Davao. Then the clerk of court in Davao will give it to the
shall be made by the judgment obligee. JC.
The executing sheriff shall observe the same
procedure under paragraph (a) with respect to delivery of What happens kung sobra yung nabayad ni JD? The excess
payment to the judgment obligee. (8a, 15a) will be delivered to the JD. While the lawful fees shall be
retained by the clerk of court for disposition as provided by
Sections 1, 2, 3, 4, 5, 6 and 9 are important. Section 9 talks law. In no case shall the executing sheriff demand that any
about the procedure. Don’t forget that Section 9 only applies payment by check be made payable to him. Not in the name
to money judgments. It does not apply to judgments ordering of the sheriff ang check ha for lawful fees. Never.
to vacate or whatever. Section 9 refers to money judgments.
2nd: Satisfaction by levy:
The first way to execute money judgment is to demand This will apply if JD does not have money or properties. And
payment immediately. The sheriff will go to the debtor (his he cannot give something to satisfy the judgment. This is now
SII or administrator) and bring the writ with him and demand a force levy – this is not voluntary on the part of the JD.
the payment of the amount, interest, fees, cost, etc. If
bayaran, then okay na. Situation: JD cannot pay all or part of the obligation in cash,
certified bank check or other mode of payment acceptable to
1st: Immediate payment on demand: the JC.
§ Sheriff shall demand payment from JD
§ The JD can pay in: Procedure: officer shall levy upon the properties of the
o Cash judgment obligor of every kind and nature whatsoever which:
o Certified bank check payable to the JC or § May be disposed, of for value and
o Any other form of payment acceptable to § Are not otherwise exempt from execution
the JC
§ Note: These are the 3 ways of Who has the option to immediately choose which the
complying with the immediate property or part thereof may be levied upon, sufficient to
payment. satisfy the judgment? JD.
§ The judgment debt shall go to JC – the cash or check
will go to the JC, not to the sheriff ha What if the JD does not exercise the option?
§ The lawful fees shall be paid to the sheriff who shall The officer shall first levy on the personal properties, if any,
turn over the said amount within the same day to and then on the real properties if the personal properties are
the clerk of court of the court that issued the writ – insufficient to answer for the judgment.
lawful fees are those that have to be paid to the
sheriff; the sheriff shall turn over the amount to the It’s very easy to levy because you can easily pick up the
clerk of the court; lawful fees payable to the court properties. So sa levy, start with the personal properties.
Pwede niya ring i-‐levy yung inside sa safe and makita niya na
If the JC or his authorized representative is not present to may titulo pala.
receive payment, the JD shall deliver the aforesaid payment
to the executing sheriff. The sheriff shall turn over all the Continuation on procedure:
amounts coming into his possession within the same day to § The sheriff shall sell only a sufficient portion of the
the clerk of court of the court that issued the writ, or if the personal or real property of the judgment obligor
same is not practicable, deposit said amounts to a fiduciary which has been levied upon.
account in the nearest government depository bank of the § When there is more property of the judgment
Regional Trial Court of the locality. The sheriff is not required obligor than is sufficient to satisfy the judgment and


lawful fees, he must sell only so much of the § The garnishment shall cover only such amount as will
personal or real property as is sufficient to satisfy the satisfy the judgment and all lawful fees
judgment and lawful fees. Note: Just read the provision. Atty. S only made an
o As much as possible, don’t sell more than outline of the provision.
the value of the judgment.
§ Real property, stocks, shares, debts, credits, and & PAL v. Sheriff Balubar16 (2004): The sheriff served
other personal property, or any interest in either real the writ of execution to the legal office of PAL. On
or personal property, may be levied upon in like the same day, he proceeded to the banks of PAL and
manner and with like effect as under a writ of served garnishment order. Is this the proper
attachment. procedure? No. The first is immediate payment on
o Ito yung mga intangibles. Pwede sila i-‐levy. demand. You allow the JD first to pay in cash, check
or other forms. If you cannot do A, then go to B and
Note: Check LA TSN for definition of Levy then if you cannot do B, do C. So saka ka na mag-‐
garnishment.
When the sheriff levies the property of the JD, it is not really Allied Bank, after informing the court of the
used to satisfy the debts of JD. You cannot sell a property ha availability of the bank, should have after 10 days pay
if wala nimo na-‐levy. The properties levied will be sold in a the JC. There was no violation here of not lifting the
public auction. garnishment order. The SC found out that there are
some maneuvers on the part of PAL. The point of a
Importance of levy: It is a pre-‐requisite to the auction sale. In garnishment order is that once it is served, the bank
order that an execution sale may be valid, there must be a cannot released the money anymore to the
previous valid levy. A sale not preceded by a valid levy is void depositor. So the SC smelled something fishy here so
and the purchaser acquires no title. (Valenzuela vs. De it did not hold the sheriff for the garnishment order.
Aguilar)15 He is only liable for not complying with the
procedure under Section 9.
What kind of property can be levied? Any (real, personal,
tangible or intangible). Take note of the exception. Check LA & Equitable PCI v. Sheriff Bellones 17 (2005): The
TSN. assistant sheriff went to Equitable and served the
writ. He was the one who received the letter where
3rd: Garnishment of debts and credits Equitable said that the execution came to soon, that
Garnishment – a process in which money or goods of JD, in they have no property and that they are willing to,
the hands of a 3rd person, are allowed. Take note that instead, offer their property. What should be done
garnishment is from a third party, not the JD himself. here? If there is an offer, one has to refer this offer
Otherwise, levy na yan. to the JC if okay ba ang offer. That procedure should
be completed first before garnishing. But the thing
Garnishment of debts and credits – procedure: is, nag-‐split sila.
§ The officer may levy on debts due the judgment Why is there a hierarchy of method?
obligor and other credits, including: Because the first method is voluntary – allow the JD
o bank deposits, to make the offer (money, check or other method
o financial interests, that the JC will agree to). The other two methods are
o royalties, commissions and involuntary. They shall not be resorted to unless
o other personal property Section 9A has already been exhausted. It has to be
§ Such properties are: a step by step thing. It is only after the JD declares
o not capable of manual delivery and that he has no property to pay that the sheriff will
o in the possession or control of third parties resort to the other methods.
§ Levy shall be made by serving notice upon the The SC said: “If this determination is given
person: to the sheriff, then the right of the judgment obligor
o owing such debts or to exercise its option to choose can be negated by
o having in his possession or control such the former if the latter insists that the judgment
credits to which the judgment obligor is obligor can immediately pay through cash, certified
entitled.

15
16
17
AM P-‐04-‐1767, August 12, 2004
G.R. Nos. L-‐18083-‐84, May 31, 1963 AM P-‐05-‐1973, March 18, 2005


bank check or any other mode of payment The value of the property is the amount on
acceptable to the judgment obligee.” which it was sold in the auction sale. So if the
purchaser bids this amount and no one else, then
& Mangubat v. Camino18 (2006): If you compare this that is the value of the property. The sheriff has no
case with Equitable, what was the violation of the authority.
sheriff upon Mangubat? Sabi ni Mangubat, come The HLURB, that rendered judgment for PR
back tomorrow kay I will try to sell my carabao baka Builders to pay the P5M, tried to set aside the levy so
magka-‐pera ako. He came back the next day and the that the auction sale would not take place. Does the
money was given to him. The sheriff delivered the HLURB has the authority to do so? No, there was
money to JC. Did he act accordingly? The SC said no. grave abuse of discretion. Once a writ of execution
The SC said that everything should be done on the has been issued and the sheriff has issued, the body
same day. The moment Mangubat said that he could that issued the writ cannot stop it anymore. Why did
not pay, dapat nag-‐levy na agad si sheriff. Why did the HLURB set aside the levy? Because it is a body
the SC rule in this manner? We are talking about a which deals with real properties. It is aware of the
natural person and a carabao which may easily value of the property.
disappear. That was the ruling of the court because
The SC said: “a sheriff is not required to give inadequacy of price is not a ground to set aside
the judgment debtor some time to raise cash. auction sale. Why? Because of the right of
Otherwise, the property may be placed in danger of redemption of PR Builders.
being lost or absconded. After Mangubat refused to
receive Camino’s letter of demand and to pay the & Obieta v. Cheok20 (2009): Take note that this is a
amount stated in the writ, he should have levied on money judgment. The court, in its writ of execution,
whatever personal properties he found in her house will just order the sheriff to execute the judgment.
and in default thereof, her real properties. By What are the ways? Immediate payment on demand,
coming back to her house twice, he risked the levy or garnishment. Can the court dictate upon the
possibility that the judgment may not be satisfied.” JD? No. The court here decided what property to
If you look at the Equitable case, there was a deliver. It seemed like that the sheriff was able to
letter from the officers of the corporation. There jump from 9A to 9B. Here, the RTC really erred in
was no risk there. In Camino, there was no offer issuing the writ of execution. The judgment was for
made. Sana sinabi nalang ni Camino na ang carabao money and it did not follow the procedure laid down
nalang baka pumayag si Plaza. Again, instead of by the rules. But on MR, the SC reversed itself. The
coming back to the JD, he should have levied court cannot order the sheriff to levy right away. The
immediately. choice belongs to the JD. Okay?
The SC said: “Section 9(b), Rule 39 of the
& Hulst v. PR Builders19 (2007): The judgment debt is Rules of Court did not require the judgment obligor
P5.313M. According to JD, the value of the properties to surrender levied property to the sheriff. The RTC
levied was P83.6M. So did the sheriff violate Section therefore had no legal basis for ordering him to
9 when he levied all of those properties for a 5.3M surrender his stock certificate. Consequently, it
judgment debt? According to the SC, when you levy committed grave abuse of discretion in citing him for
property, you don’t have time to have it appraised. contempt.”
You are there already, so you levy whatever you can.
The sheriff is given discretion to determine whether & Viscal v. Buendia21 (2012): There was absolute refusal
or not the properties levied are sufficient. on the part of the JD to pay. He said that the
Unfortunately, for the JUD, the sheriff was in execution was premature. That was a delay tactic
cahoots with the bidder. Imagine, the 15 properties the SC saw through. By doing so, it can now hide its
were only sold for P5.55M. So that can happen. The property, withdraw the money from the bank and all
auction sale does not take place right after the next these things.
day of the levy. There is a notice so the sheriff has Unlike in the case of Equitable, there was a
time to hatch a plan to make money. P86M is too far letter offer. The properties offered were specified so
from P5M. walang mawawala if you wait. In the case of Viscal,
the SC said that one can go through 9C if there is

18 20
AM P-‐06-‐2115, February 23, 2006 Gr. No. 170072, September 3, 2009
19 21
Gr. No. 156364, February 23, 2006 AM P-‐12-‐3097 November 26, 2012


patent refusal. Levy is sometimes difficult. To levy a entitled thereto and satisfy any judgment for money as
property, one has to do research first. Maybe the therein provided. (8a)
sheriff already has an idea where the properties of
the JD are so it proceeded with the garnishment Not all judgments are about money. There are other
right away. judgments wherein the JD is required to perform specific acts
like deliver something or do something. Look at the heading
Note: Look at the cases one by one. Check the facts and of Section 10: execution of judgments for specific act.
circumstances.
Situation: The JD fails to comply within the time specified, a
Section 10. Execution of judgments for specific act. — judgment which directs him to either:
(a) Conveyance, delivery of deeds, or other specific § Execute a conveyance of land or personal property
acts; vesting title. — If a judgment directs a party to execute or
a conveyance of land or personal property, or to deliver § Deliver deeds or other documents or
deeds or other documents, or to perform, any other specific § Perform any other specific act in connection
act in connection therewith, and the party fails to comply therewith
within the time specified, the court may direct the act to be
done at the cost of the disobedient party by some other Dito, nag-‐mamatigas si JD. Ayaw niya mag-‐comply sa order.
person appointed by the court and the act when so done Included here are replevin cases filed by financing companies
shall have like effect as if done by the party. If real or wherein the JD cannot pay the installments for the car.
personal property is situated within the Philippines, the
court in lieu of directing a conveyance thereof may by an Section 10A Procedure:
order divest the title of any party and vest it in others, which § The court may direct the act to be done at the cost
shall have the force and effect of a conveyance executed in of the disobedient party by some other person
due form of law. (10a) appointed by the court
(b) Sale of real or personal property. — If the o Example: The JD is ordered to return the
judgment be for the sale of real or personal property, to sell property. The sheriff can get the car for the
such property, describing it, and apply the proceeds in financing company.
conformity with the judgment. (8[c]a) § The act when so done shall have like effect as if done
(c) Delivery or restitution of real property. — The by the party
officer shall demand of the person against whom the
judgment for the delivery or restitution of real property is Note: If real or personal property is situated within the RP,
rendered and all persons claiming rights under him to the court:
peaceably vacate the property within three (3) working § In lieu of directing a conveyance thereof
days, and restore possession thereof to the judgment § May by an order:
obligee, otherwise, the officer shall oust all such persons o Divest the title of any party and
therefrom with the assistance, if necessary, of appropriate o Vest in others
peace officers, and employing such means as may be § Which shall have the force and effect if a conveyance
reasonably necessary to retake possession, and place the executed in due form of law
judgment obligee in possession of such property. Any costs,
damages, rents or profits awarded by the judgment shall be Just to clarify, Section 10A talks about execution of deeds
satisfied in the same manner as a judgment for money. (13a) from the delivery of real or personal property. Here, the JD is
(d) Removal of improvements on property subject supposed to execute a document for the delivery of
of execution. — When the property subject of the execution property.
contains improvements constructed or planted by the
judgment obligor or his agent, the officer shall not destroy, How is the execution done if the JD refuses or fails to
demolish or remove said improvements except upon special comply? The sheriff will do it himself as if it was done by the
order of the court, issued upon motion of the judgment JD.
obligee after the hearing and after the former has failed to
remove the same within a reasonable time fixed by the Section 10B:
court. (14a) Situation: The judgment be for the sale of real or personal
(e) Delivery of personal property. — In judgment property.
for the delivery of personal property, the officer shall take
possession of the same and forthwith deliver it to the party Procedure:


§ Sell such property § Except upon special order of the court
§ Describing it and § Issued upon motion of the JC
§ Apply the proceeds in conformity with the judgment § After due hearing and
§ After JD has failed to remove the same within a
Example: Termination of co-‐ownership. One parcel of land reasonable time fixed by the court
owned by 10 co-‐owners so nagkakagulo sila. They cannot o Then the court can issue the writ of
decide which portion will go to this co-‐owner and to the demolition. So there is already forcible
other. So they go to court. The court orders them to sell the removal or demolition of the improvements
property and divide the money after. improved.

What will the sheriff do? If ayaw ng co-‐owner ibenta? Then he Before writ is issued, the JDs must be given an opportunity to
can sell it himself. He can get the title of the property, sell it remove their improvements within the reasonable period.
and divide the proceeds among the co-‐owners. This section talks about demolition of improvements on real
property.
Situation 10C:
What if the order is to vacate? Maybe Section 10A, to deliver Section 10E:
the property – maybe the JD is not in possession and in This talks about delivery of personal property.
control lang. Here, in Section 10C, the JD is in possession and
it only applies to real properties. Situation: The judgment orders JD to deliver personal
property.
Situation: The judgment orders the JD to deliver or return the
real property. Procedure: The officer shall:
§ take possession of the same
Procedure: The sheriff shall: § forthwith deliver it to the party entitled thereto
§ Demand of the JD for the delivery or restitution of § satisfy any judgment for money as therein provided
real property is rendered and all persons claiming
rights under him to peaceably vacate the property CASE in LA TSN: There was an unlawful detainer case. While
within three (3) working days and the case was pending, the parties executed a compromise
§ Restore possession thereof to the JC agreement and the court rendered judgment upon the
compromise. D and P agreed that D will pay a certain amount
If the JD refuses to vacate: to P on certain dates. According to the agreement, failure on
§ The officer shall oust all such persons therefrom with the part of D to pay three consecutive payments, P will be
the assistance entitled to a writ of execution. D failed to pay so P filed a
§ If necessary, of appropriate peace officers motion for execution. It was granted and D was ordered to
§ Employing such means as may be reasonably vacate the premises. D attacked the validity of the writ of
necessary to retake possession execution with notice to vacate. According to him, it was a
§ Place the JC in possession of such property. money judgment because it was based on a compromise.
According to P, the action he filed was an ejectment case and
This section talks about physical delivery of real property. he merely agreed on the payment of money. What provision
will apply to prosecute? The original action could have been
Section 10D: one for unlawful detainer under Section 10C. However, when
Situation: The property subject of the execution contains the parties entered into a compromise, it doesn’t matter
improvements constructed or planted by the JD or his agent what the first agreement was. If they entered into a
compromise for money judgment, then the execution should
Rules: be based on Section 9 and not Section 10.
§ The officer shall not destroy, demolish or remove
said improvements & Spouses Abaga v. Spouses Panes22 (2007): Why did
o There must be a motion for writ of the court deny the motion to order the clerk of court
demolition. Here, for judgments, you only to execute the deed of assignment? May counter-‐
need motion for execution to vacate. To offer dito. They don’t want to execute the deed of
remove, you have to file a motion for writ of assignment and they will only pay nalang daw. Was
demolition which is not ex parte so there
must be a hearing.
22
Gr. No. 147044, August 24, 2007


that proper? The court should have immediately municipality. The mayor cannot demolish without
granted the motion because we are already in the the special order from the court, even if there was an
execution stage. Besides, Panes rejected the offer so order. It should file an unlawful detainer case, get
the court should have denied that order. The court the proper judgment and go through the procedure
should issue an execution of the order based on the under Rule 39.
rule.
Section 11. Execution of special judgments. — When a
& Guariño v. Ragsac 23 (2009): When there is a judgment requires the performance of any act other than
judgment ordering the defendant to vacate, the writ those mentioned in the two preceding sections, a certified
of execution based on the judgment only applies to copy of the judgment shall be attached to the writ of
the physical presence of the JD. He should vacate. execution and shall be served by the officer upon the party
That is what the writ of execution can authorize the against whom the same is rendered, or upon any other
sheriff to do. If there is something to be demolished, person required thereby, or by law, to obey the same, and
one must comply with Section 10D. There must be a such party or person may be punished for contempt if he
motion, a hearing and an opportunity to remove the disobeys such judgment. (9a)
improvements. Only when such opportunity was
given and no compliance that the court can issue the Situation: The judgment requires the performance of any act
order. That’s the only time that the sheriff can other than those mentioned in Sections 9 and 10.
demolish.
Procedure:
& Tumibay v. Spouses Soro24 (2010): There are times § A CTC of the judgment shall be:
when the court renders judgment ordering the D to o Attached to the writ of execution, and
vacate. There is nothing there for the D to remove o Served by the officer
any improvements. The SC said that even though § Upon:
there is no mention of improvements, that is already o The party against whom the same is
deemed incorporated in the decision. To vacate does rendered or,
not only mean removal of the person but also the o Any other person required thereby, or by
improvements introduced by him. Does the law, to obey the same, and
procedure have to be vacate first and once the JD § Such party or person may be punished for contempt
vacated, then the JC will file a motion for a writ of if he disobeys such judgment
demolition? The SC said no. You don’t have to go
step by step. The JC can file a motion for execution Two types of judgments:
and demolition at the same time. But this time, he § Ordinary – the judgment orders JD to pay money,
has to set it for hearing because the issue on like a collection case (Section 9) or to deliver a real
demolition will be tacked during the hearing. During or personal property (Section 10)
the hearing, the court will asked the JD how long it § Special – a judgment that requires JD to perform an
will take him to vacate and remove the act other than payment of money or delivery of
improvements. If the JD says 15 days, then yun na property. It refers to a specific act which JD must
yun. If after the 15 days, the improvements have not personally do because his personal qualifications and
been removed, then that is the time that the court circumstances have been taken into consideration.
will issue the writ of demolition. Again, hindi step by o Example: X was appointed as a public
step. You can do everything at the same time. It’s officer. He was ordered to vacate the office.
just that the order for demolition will only be issued So the sheriff needs to present the CTC of
after the JD is given the opportunity to remove the the judgment. If he does not comply, he will
improvements. be charged in contempt. (Vital-‐Gozon vs.
CA)
& Asilo v. People25 (2011): The mayor and the SB took o Example: Vacate and office or reinstate
the law on their hands. It is an unlawful detainer officer Remove a fence (Marquez vs.
which should have been filed because the lease Marquez)
contract was no longer being honored by the

23
AM P-‐08-‐2571, August 27, 2009
24
Gr. No. 152016, April 13, 2010
25
Gr. No. 159017, March 9, 2011


& NEA v. Danilo Morales26 (2007): Before execution for four months;
should be carried out, one must determine what kind (g) The professional libraries and equipment of
of judgment was rendered. In this case, Morales and judges, lawyers, physicians, pharmacists, dentists,
other employees filed an action for NEA. The engineers, surveyors, clergymen, teachers, and other
judgment was for the NEA to settle the claims of the professionals, not exceeding three hundred thousand pesos
employees and extend to them the benefits which in value;
they have been deprived of. Is this a money (h) One fishing boat and accessories not exceeding
judgment? No. A money judgment is exact (ie pay P the total value of one hundred thousand pesos owned by a
P100,000 with interest of 6% per annum). The special fisherman and by the lawful use of which he earns his
judgment here is to perform a specific act ordered by livelihood;
the court. Therefore, the procedure followed by the (i) So much of the salaries, wages, or earnings of
sheriff, in garnishing the account of NEA, is not the judgment obligor for his personal services within the
proper. four months preceding the levy as are necessary for the
support of his family;
& NHMFC v. Abayari27 (2009): Same case with NEA, just (j) Lettered gravestones;
different characters. Same ruling. (k) Monies, benefits, privileges, or annuities
accruing or in any manner growing out of any life insurance;
Section 12. Effect of levy on execution as to third person. — (l) The right to receive legal support, or money or
The levy on execution shall create a lien in favor of the property obtained as such support, or any pension or
judgment obligee over the right, title and interest of the gratuity from the Government;
judgment obligor in such property at the time of the levy, (m) Properties specially exempted by law.
subject to liens and encumbrances then existing. (16a) But no article or species of property mentioned in
this section shall be exempt from execution issued upon a
What if the JD has no personal property? Or let’s say he has a judgment recovered for its price or upon a judgment of
parcel of land and that’s the only property that he has. That foreclosure of a mortgage thereon. (12a)
parcel of land is the only property that can be levied but it
was mortgaged with the bank. What is the effect if the These are the properties exempt from execution.
property is levied? The lien or encumbrance shall be
respected. It doesn’t mean that the mortgage will be (a) The judgment obligor's family home as provided by law,
extinguished. or the homestead in which he resides, and land necessarily
used in connection therewith
Section 13. Property exempt from execution. — Except as
otherwise expressly provided by law, the following What is a family home? Article 152. If a family has so
property, and no other, shall be exempt from execution: many family homes, only one is exempt. Maximum
(a) The judgment obligor's family home as provided amount is P300,000.
by law, or the homestead in which he resides, and land
necessarily used in connection therewith; (b) Ordinary tools and implements personally used by him in
(b) Ordinary tools and implements personally used his trade, employment, or livelihood
by him in his trade, employment, or livelihood;
(c) Three horses, or three cows, or three carabaos, Example: Machines owned by dermatologists – the
or other beasts of burden, such as the judgment obligor may machines are exempt from execution. Machines
select necessarily used by him in his ordinary occupation; owned by Vicky Belo – exempt from execution
(d) His necessary clothing and articles for ordinary because the dermatologists are merely employees of
personal use, excluding jewelry; VB.
(e) Household furniture and utensils necessary for
housekeeping, and used for that purpose by the judgment The case of Pentagon was reiterated in the case of D’
obligor and his family, such as the judgment obligor may Armoured vs. Orpia (2005).
select, of a value not exceeding one hundred thousand
pesos; (c) Three horses, or three cows, or three carabaos, or other
(f) Provisions for individual or family use sufficient beasts of burden, such as the judgment obligor may select
necessarily used by him in his ordinary occupation

26
Gr. No. 154200, July 4, 2007
27
Gr. No. 166508, October 2, 2009


The choice belongs to the JD. Can the horses of Atty. (i) So much of the salaries, wages, or earnings of the
X, a cowboy, be levied? No. They must be beasts of judgment obligor for his personal services within the four
burden. Kung meron kang piggery, alangan naman months preceding the levy as are necessary for the support
ipa-‐exempt mo ang mga baboy? The beasts must be of his family
necessarily used in JD’s ordinary occupation.
For Section 13, there is no limit. What if the JD has
(d) His necessary clothing and articles for ordinary personal four children and all of them are studying abroad?
use, excluding jewelry Then he earns 1M a month? That is still vague if it is
still covered under paragraph i.
Fake jewelries? Not exempt. Moisturizer? Are they
exempt? (j) Lettered gravestones

(e) Household furniture and utensils necessary for Regardless of the value of the gravestone, it cannot
housekeeping, and used for that purpose by the judgment be executed. There is this student of mine. She’s very
obligor and his family, such as the judgment obligor may rich. Sabi ko, bakit ka pa nag-‐lalaw? Pang-‐lapida. So
select, of a value not exceeding one hundred thousand pesos the title “Atty.” will be there. So the lapida will be
more valuable.
Anything that is considered as luxurious is not
exempt. Example: Sala set. Microwave is not (k) Monies, benefits, privileges, or annuities accruing or in
exempt. Refrigerator, perhaps, is not exempt. The any manner growing out of any life insurance
value must not exceed P100,000.
Kaya some people put their money in insurance so
(f) Provisions for individual or family use sufficient for four that the proceeds can be inherited by the heir or
months beneficiaries without paying taxes or without it
being subject to execution.
Just because we have brown rice, red rice or white
rice, if that is a basic -‐-‐-‐ of the person, exempt siya. If (l) The right to receive legal support, or money or property
the pantry is full of imported canned goods, as long obtained as such support, or any pension or gratuity from the
as it is 4 months worth of food, they are exempt. Government
Take note, under this provision, there is no required
amount. Like for example, si General Napenas. There were
cases filed against him. If he retires, he. What if civil
(g) The professional libraries and equipment of judges, cases are filed against him and he is made to pay
lawyers, physicians, pharmacists, dentists, engineers, damages then he cannot pay? His retirement
surveyors, clergymen, teachers, and other professionals, not benefits cannot be executed. But if he is
exceeding three hundred thousand pesos in value administratively charged and found liable therefor,
he can be deprived of the retirement benefits. He
Example: SCRA of judges and lawyers. But it must will not be able to get them. Once the benefits have
not exceed P300,000 in order to be exempt. been given to him, they cannot be the subject of the
execution. But he can be deprived of the benefits if
CF: Section A and last paragraph of Section 13 he is charged administratively and found guilty.

(h) One fishing boat and accessories not exceeding the total (m) Properties specially exempted by law
value of one hundred thousand pesos owned by a fisherman
and by the lawful use of which he earns his livelihood But no article or species of property mentioned in this section
shall be exempt from execution issued upon a judgment
Example: Very ordinary fishing boats used by recovered for its price or upon a judgment of foreclosure of a
ordinary fishermen. Those owned by large mortgage thereon.
companies are not included in the exemption. If it is
a fishing boat owned by a person who loves to fish Even if the family home exempt from execution, why are
for leisure (not for occupation), it is also not there family homes being foreclosed by PAG-‐IBIG? Because if
exempted. you use the family home as collateral to borrow from PAG-‐


IBIG and you cannot pay the installments, then PAG-‐IBIG can § The returns or periodic reports shall:
have the family home foreclosed. o Set forth the whole of the proceedings
taken
If Mr. X, a lawyer, buys P250,000 worth (nag-‐utang siya) of o Be filed with the court and copies thereof
SCRA and he was not able to pay, so the bookstore filed a promptly furnished the parties
collection case. When the bookstore won, it was found out
that the SCRA is his only property. Can the SCRA be levied? & Dagooc v. Erlina28 (2005): There was a violation of
Yes. Section 9. When he was informed by the JD that he
had nothing, he only had properties exempt from
What is the purpose of Section 13? Public policy. execution, the sheriff said na mag-‐execute nalang ng
promissory note. That is a violation. The sheriff made
If you are the JD and the sheriff goes to your hand, when do his own rules. When the sheriff checked with the
you say na exempt ang properties mo? You say it right away. ROD, he found out that there were properties listed
You invoke exemption at the time of levy or within a under the JD. He advised the JC to file a motion to
reasonable period thereafter. So your right is waivable. If you file an alias writ. Again, the SC said that it is not
do not invoke it, you are deem to have waived your right. required because the writ has a 5 year lifetime
What period is reasonable? We have cases that will answer period. The writ of execution is effective. He was
this question when we go to auction sale cases. (Condrado remiss in his duties when he stated in his return
vs. CA) order that the JD is insolvent without diligently
checking the properties.
Section 14. Return of writ of execution. — The writ of
execution shall be returnable to the court issuing it & KATIHAN v. Judge Maceren29 (2007): It is not for the
immediately after the judgment has been satisfied in part or sheriff to give the squatters to remove the
in full. If the judgment cannot be satisfied in full within improvements. That’s not the procedure. It is the
thirty (30) days after his receipt of the writ, the officer shall court that will order it. The squatters will be given an
report to the court and state the reason therefor. Such writ opportunity to vacate. The sheriff did not follow the
shall continue in effect during the period within which the requirements of Section 10D and he did not make the
judgment may be enforced by motion. The officer shall periodic reports required of him.
make a report to the court every thirty (30) days on the
proceedings taken thereon until the judgment is satisfied in Section 15. Notice of sale of property on execution. —
full, or its effectivity expires. The returns or periodic reports Before the sale of property on execution, notice thereof
shall set forth the whole of the proceedings taken, and shall must be given as follows:
be filed with the court and copies thereof promptly (a) In case of perishable property, by posting
furnished the parties. (11a) written notice of the time and place of the sale in three (3)
public places, preferably in conspicuous areas of the
What should the sheriff do after the judgment has been municipal or city hall, post office and public market in the
satisfied? What do you mean by satisfaction of judgment? municipality or city where the sale is to take place, for such
Meaning, the JC was happy – because he received the money time as may be reasonable, considering the character and
or maybe because the JD was able to vacate and remove the condition of the property;
improvements. But Section 14 says “in part or in full, xxx, the (b) In case of other personal property, by posting a
sheriff must make a return.” similar notice in the three (3) public places above-‐mentioned
for not less than five (5) days;
How long is the effectivity of a writ of execution? Five years, (c) In case of real property, by posting for twenty
because it shall continue in effect during the period within (20) days in the three (3) public places abovementioned a
which the judgment may be enforced by motion. (Based on similar notice particularly describing the property and
Section 6). stating where the property is to be sold, and if the assessed
value of the property exceeds fifty thousand (P50,000.00)
Duties of the officer after the he reports to the court that the pesos, by publishing a copy of the notice once a week for
judgment has not been satisfied: two (2) consecutive weeks in one newspaper selected by
§ He shall make a report to the court every 30 days on raffle, whether in English, Filipino, or any major regional
the proceedings taken thereon until:
o The judgment is satisfied in full or
o Its effectivity expires 28
29
AM P-‐04-‐1857, March 16, 2005
AM MTJ-‐071680, August 17, 2007


language published, edited and circulated or, in the absence In ALL cases:
thereof, having general circulation in the province or city; § Written notice of the sale shall be given to the JD –
(d) In all cases, written notice of the sale shall be at least 3 days before the sale
given to the judgment obligor, at least three (3) days before § Except when the property is perishable – notice shall
the sale, except as provided in paragraph (a) hereof where be given at any time before the sale, in the same
notice shall be given the same manner as personal service of manner as personal service of pleadings and other
pleadings and other papers as provided by section 6 of Rule papers as provided under Rule 13, Section 6
13.
The notice shall specify the place, date and exact Place of the Sale
time of the sale which should not be earlier than nine § Not necessarily in the court
o'clock in the morning and not later than two o'clock in the § May be agreed upon by parties
afternoon. The place of the sale may be agreed upon by the § In the absence of such agreement, the sale of:
parties. In the absence of such agreement, the sale of the o Real property or personal property not
property or personal property not capable of manual capable of manual delivery – shall be held in
delivery shall be held in the office of the clerk of court of the the office of the clerk of court of RTC or
Regional Trial Court or the Municipal Trial Court which MTC which issued the writ or which was
issued the writ of or which was designated by the appellate designated by the appellate court
court. In the case of personal property capable of manual o Personal property – where the property is
delivery, the sale shall be held in the place where the located
property is located. (18a)
& Villa Vicencio v. Mojares 30 (2003): Who has the
Notice of sale of property on execution: Must be made burden of proving that there was no written notice
before the sale of property on execution. of sale? Here the sheriff said “Even if I did not report
it in my return that there was notice to the JD, it
How? does not mean that there was none.” There was a
POSTING written notice of the time and place of the sale in testimony here that the sheriff indeed served the
three (3) public places, preferably in conspicuous areas of the notice to the JD and in fact, made the publication.
municipal or city hall, post office and public market in the Just because that there was no mention does not
municipality or city where the sale is to take place, for such mean that there was none. If you are the one
time as may be reasonable, considering the character and alleging that there was no notice, then you prove.
condition of the property.
& Spouses Tagle v. CA 31 (2009): Some people are
Notice of Execution Sale: confused because there is word “personal” so they
think of Rule 14 which is for summons. But it is
Kind of property Notice Period specifically stated under Rule 39 Section 15 that the
requirement procedure provided is under Rule 13. So service can
Perishable Posting Reasonable time be made on the office or residence of the person
Personal Posting Not less than 50 involved.
days
Real Posting, 20 days Section 16. Proceedings where property claimed by third
particularly person. — If the property levied on is claimed by any person
describing the other than the judgment obligor or his agent, and such
property and person makes an affidavit of his title thereto or right to the
stating where the possession thereof, stating the grounds of such right or title,
property is to be and serves the same upon the officer making the levy and
sold copy thereof, stating the grounds of such right or tittle, and
Real with assessed Publication of a Once a week for 2 a serves the same upon the officer making the levy and a
value exceeding copy of the notice consecutive copy thereof upon the judgment obligee, the officer shall
P50,000 in one newspaper, weeks not be bound to keep the property, unless such judgment
selected by raffle, obligee, on demand of the officer, files a bond approved by
whether English,
Filipino xxx
30
Gr. No. 142648, February 27, 2003
31
Gr. No. 162738, July 9, 2009


the court to indemnity the third-‐party claimant in a sum not
less than the value of the property levied on. In case of Effect when valid 3rd party claim made:
disagreement as to such value, the same shall be determined § The officer shall not be bound to keep the property –
by the court issuing the writ of execution. No claim for so he does not have to proceed with the auction
damages for the taking or keeping of the property may be shall (sheriff cannot sell something which does not
enforced against the bond unless the action therefor is filed belong to the JD)
within one hundred twenty (120) days from the date of the § The officer can demand that JC file a bond – if the JC
filing of the bond. wants the auction sale to proceed (the bond will
The officer shall not be liable for damages for the cover the -‐-‐-‐ in case the property really belongs to JD;
taking or keeping of the property, to any third-‐party the bond must be approved by the court)
claimant if such bond is filed. Nothing herein contained shall
prevent such claimant or any third person from vindicating What JC can do if the terceria is filed? File a bond approved by
his claim to the property in a separate action, or prevent the the court to indemnity the third-‐party claimant in a sum not
judgment obligee from claiming damages in the same or a less than the value of the property levied on.
separate action against a third-‐party claimant who filed a
frivolous or plainly spurious claim. What if there is a disagreement as to the value of the
When the writ of execution is issued in favor of the property? The court issuing the writ will determine the value.
Republic of the Philippines, or any officer duly representing
it, the filing of such bond shall not be required, and in case When the auction sale proceeds because of bond filed by JC:
the sheriff or levying officer is sued for damages as a result § TPC may file a claim for damages against the bond
of the levy, he shall be represented by the Solicitor General for the taking or keeping of the property
and if held liable therefor, the actual damages adjudged by § BUT the action must be filed within 120 days from
the court shall be paid by the National Treasurer out of such the date of filing the bond
funds as may be appropriated for the purpose. (17a) § Otherwise his claim cannot be enforced against the
bond
This is another important provision under Rule 39.
What if the auction sale happened after 130 days after the
Situation: The property levied on is claimed by any person bond was filed? He can no longer claim damages against the
(third party) other than the JD or his agent. bond. Will he, the TPC, lose his P1.5? No. He has another
option under Section 16. He can vindicate his claim in a
Illustration: The sheriff goes into your house and demand for different action which is very tedious.
the immediate payment. You, the JD, cannot pay and the
sheriff sees a Fortuner on the garage. The sheriff will say na i-‐ Can the TPC hold the officer liable for damages for keeping
levy niya nalang ang Fortuner. JD said that the Fortuner is not the property? No, provided such bond is validly filed by the
his but when the sheriff checks the registration of the car, it JC.
was registered to the JD. True enough the Fortuner really
belonged to a 3rd person because it was already sold to him. When is the JC not obliged to file a bond despite a 3rd party
claim? When the writ of execution is issued in favor of the RP
What can the 3rd party do? File a Terceria. (Terceria is an or any officer duly representing it. The Republic does not
affidavit asserting that affiant is the owner of the property need to file a bond.
levied.)
What if the sheriff or levying officer is sued for damages as a
You have to distinguish this from a 3rd party complaint. result of the levy? He shall be represented by the SolGen.

How TPC can make a 3rd party claim or Terceria: What if the sheriff is held liable therefore? The actual
§ Execute an affidavit damages adjudged by the court shall be paid by the National
o Of his title thereto or right to the possession Treasurer out of such funds as may be appropriated for the
thereof purpose. So that should be included in the General
o Stating the grounds of such right or title, Appropriation Fund – funds for the liability of the sheriff who
and proceeds with the auction sale and there is a TPC.
§ Serving the same upon:
o The officer making the levy, and Illustration: TPC decided to go on a world tour and entrusted
o The JC his Lexus SUV to K, his neighbor. TPC instructed K to start his


car every morning to ensure that the battery does not go flat. said parcels of land. When Trans American failed to
However, K used xxx. pay the loan installments, under the REM there was
a right to foreclose so that is what China Bank did. So
Procedure: there is auction sale and the highest bidder was
TPC may file a 3rd party claim or Terceria China Bank.
§ Furnish a copy thereof to sheriff and G The court only becomes involved if the bank
§ Sheriff is not placed on guard as he may be held files a writ of possession so it can enter the property
liable if he proceeds with the auction sale that is still being occupied by Trans American. Now
§ Sheriff now, need not proceed with the action sale the Ordinario spouses went to the court saying na
§ xxx wag nalang isali yung sa kanila. So they are 3rd party
§ Check LA TSN for the complete procedure claimants. So the SC said, what are the options of the
Ordinario spouses? File a Terceria. Or file a separate
Note: 3rd party complaint is different from 3rd party claim. action to vindicate his right. They cannot file a
motion for reconsideration. What the Ordinarios
No intervention in 3rd party claim. Intervention is only were trying do was to follow the procedure in the
possible while a case is pending. case of Sy. But anyway, mali sila.

Remedies of a 3rd person whose property was seized by the & Lincoln Yao v. Judge Perello35 (2003): The motion for
sheriff to answer for the obligation of the JD: intervention is not proper if there is already a
§ Invoke the supervisory power of the court which judgment. It can only be filed when there is still a
authorized the execution (Sy vs. Discaya32) pending case.
§ Terceria – 3rd party claim (rule 39, Section 16) Did the court stay the execution after
§ Any proper action to vindicate his calim to the Villarin filed a petition for prohibition and prayer for
property, meaning a separate civil action. (Section TRO? Yes, the property was found to be exempt
16, Rule 39) from execution. Who owned the property? Villarin.
What are the two options of a 3rd party claimant, the
Where is the Terceria filed? It said here that with the sheriff one who owns the property that was levied? File a
but I do not really agreed. You serve the Terceria to the Terciara (3rd party claim) or a separate action. So this
sheriff. You do not file with the sheriff. Obviously, it must be case falls under the Sy vs. Discaya ruling.
filed with the court. The copy of the Terceria will be served
on the sheriff and the JC. & Nelda Apostol v. Sheriff Ipac36 (2005): There is some
kind of controversy as to the dates here. Why is it
& Air France v. CA33 (1995): Can a sheriff go to a 3rd that the sheriff took possession of the property in
party to look on the property of the JD? Yes, under the first place despite the fact that it was being
garnishment. But the property must be the property claimed by Apostol? Apostol, the 3rd party claimant,
of the JD. In this case, Dionisio already bought that is a former employee of CWB (JD). The transfer of
house and lot from Multinational Food. The thing is ownership from CWB to Apostol came after the
Dionisio was not holding the property for service of the writ of execution to CWB. CWB was
Multinational because he already bought it. The given the opportunity to transfer the registration of
sheriff cannot levy the property belonging to a 3rd the car to Apostol so there was a fraudulent transfer
party. You can only garnish the property of the JD in fraud of the JCs. Despite that, the sheriff
held by a 3rd party. proceeded accordingly. He requested the JC to put
up a bond. Since the JC put up a bond, he was
& China Bank v. Ordinario 34 (2003): Are the parties authorized to proceed with the auction sale.
here JDs and JCs? No. What happened was that
there was an extrajudicial foreclosure. Is Rule 39, & Cobarrubias v. Apostol37 (2006): It is suggested by
Section 16 applicable to extrajudicial foreclosure? Justice Carpio that if the 3rd party claimant wants to
Yes. In this case, we have Trans American which stop the auction sale, she can file a counter-‐bond.
borrowed money from China Bank and presented That is not provided under the Rules. It is just a
several parcels of land. Ordinario bought one of the suggestion. Ano ang gagawin ni JC if may counter-‐

32 35
Gr. No. 86301, January 23, 1990 Gr. No. 153828, October 24, 2003
33 36
Gr. No. 104234, June 30, 1995 AM P-‐04-‐1865, July 28, 2005
34 37
Gr. No. 121943, March 24, 2003 AM P-‐02-‐1612, January 23, 2006


bond si JD? Magfile siya ng counter-‐counter-‐bond? So & Idefonso Jacinto v. Sheriff Castro39 (2007): Here, the
mag-‐sige nalang sila ug counter bond? Well, it should sheriff did not follow the procedure under Section 16
stop here. The auction sale has to proceed, and released the properties to 3rd parties after
otherwise, there will be no auction sale. What is the receiving the money. He appropriated the money for
point of Section 16, diba? In any case, because the JC himself. You know very well under Rule 39 that
filed an indemnity bond, that is already enough. If sheriffs are not allowed to handle money. The Rules
the sheriff is to be held liable for his actions in do not provide that the 3rd party who claims to be
conducting his auction sale, the State, in the form of the owner of the property can pay the sheriff.
SolGen, will defend him. In other words, the sheriff
has no discretion. Once the bond of the JC is & Sta. Lucia East v. Lamano40 (2007): First issue was
approved, it is the ministerial duty of the sheriff to the garnishment – can the sheriff garnish from the
proceed with the auction sale. The point is the JD bank the money of an entity who is not the JD? The
cannot file a counter-‐bond. JD was Sta. Lucia Realty and Development
Corporation (SLDRC) which is a developer of
& Capa v. CA 38 (2006): The motion to approve the subdivisions and malls. What was garnished was the
indemnity bond filed by the JC Capa was not money of Sta. Lucia East – a mall in one of the
approved. It was denied. What should the sheriff do developments of Sta. Lucia Realty – a totally and
since the motion to approve the bond was denied? distinct entity. When you garnish, you have to make
Can he go on with the auction sale or should he stop? sure that you are garnishing the money of the JD and
He should not. Remember, there was a terceria filed not something else.
by a 3rd party claimant. The indemnity bond by the JC The SC said that Section 16 can apply to
was denied. What did the spouses Capa do after the wrong garnishment if the real owner files a 3rd party
indemnity bond was denied? They filed a motion to claim. The JC has to file a bond in order to stop the
deny the 3rd party claim with motion to admit the payment (walang auction sale dito sa case kasi
claim for damages. They changed their strategy but money to). If a 3rd party claim is made by the real
is this a correct procedure? Did they have a legal owner, there is no auction sale, so if we suppletorily
basis? What procedure should the JCs Capa have apply Section 16, what will happen?
taken? They should have raised such invalidity in the Sta. Lucia filed a terceria claiming that it is
RTC which could have ruled on the same issue since the owner of the garnished funds. What did the
the 3rd party claim was filed in the RTC. sheriff do after? The sheriff still proceeded with the
A terceria is an affidavit filed a 3rd party garnishment. What was filed first was a notice of
claimant. The remedy of the JC, if the terceria is filed, garnishment, then Sta. Lucia filed a terceria and the
is to put up a bond. But if the bond is not approved, sheriff proceeded with the garnishment. Here, there
there’s a way of letting the auction sale to proceed – was a notice of garnishment filed with the bank
to file a defect on the terceria. In this case, the specifically on the account of Sta. Lucia East (SLE).
terceria was defective because it was not signed by Then SLE filed a terceria. That should have alerted
the person claiming the fact. Only the lawyer who the sheriff that the money in the bank does not
has no SPA signed the terceria. The suggestion here belong to SLRDC but SLE. The SC said that the sheriff
is for Capa to move to quash the terceria. However, should not proceed with the garnishment of the
Capa did not do so while the case was still with the money in the bank which belongs to SLE. He can only
RTC. This is execution pending appeal. So the proceed with the garnishment if the JC files an
records of the case were transferred to the CA. This indemnity bond which should be approved by the
is when Capa filed a claim for damages. The SC said court.
that it is a wrong remedy. Capa should have filed a Section 16 is not directly applicable to
separate action. The JC, aside from filing a bond, is garnishment. But the SC said that you can use it to
given the option to file a separate claim (which was stop the garnishment of the funds.
done by Capa after the bond was disapproved)
because the terceria was invalid but this must be & Imani v. MBTC41 (2010): The 3rd party claimant must
filed with the RTC, not with the CA. have an interest adverse to that of the JD. In this
case, husband and wife sila and interested over the

39
Gr. No. AM P-‐04-‐1907, July 3, 2007

38
40
41
AM P-‐04-‐1907, September 19, 2007
Gr. No. 160082, January 23, 2006 Gr. No. 187023, November 17, 2010


same property. A 3rd party claim is applicable is or his authorized representative, unless otherwise directed
saying na “That’s mine. That’s not the JDs.” Dito by the judgment or order of the court. When the sale is of
kasi, the husband is saying “That is not hers. That is real property, consisting of several known lots, they must be
ours.” sold separately; or, when a portion of such real property is
claimed by a third person, he may require it to be sold
Section 17. Penalty for selling without notice, or removing or separately. When the sale is of personal property capable of
defacing notice. — An officer selling without the notice manual delivery, it must be sold within view of those
prescribed by section 15 of this Rule shall be liable to pay attending the same and in such parcels as are likely to bring
punitive damages in the amount of five thousand the highest price. The judgment obligor, if present at the
(P5,000.00) pesos to any person injured thereby, in addition sale, may direct the order in which property, real or
to his actual damages, both to be recovered by motion in the personal shall be sold, when such property consists of
same action; and a person willfully removing or defacing the several known lots or parcels which can be sold to
notice posted, if done before the sale, or before the advantage separately. Neither the officer conducting the
satisfaction of the judgment if it be satisfied before the sale, execution sale, nor his deputies, can become a purchaser,
shall be liable to pay five thousand (P5,000.00) pesos to any nor be interested directly or indirectly in any purchase at
person injured by reason thereof, in addition to his actual such sale. (21a)
damages, to be recovered by motion in the same action.
(19a) Procedure:
§ All sales of property under execution must be made
Execution: at public auction:
Situation Penalty Payable to o to the highest bidder,
An officer sells Punitive damages Any person injured o to start at the exact time fixed in the notice
without the notice of P5,000 + actual thereby § After sufficient property has been sold to satisfy the
prescribed by damages execution, no more shall be sold and
Section 15 § Any excess property or proceeds of the sale shall be
A person willfully Actual damages + Any person injured promptly delivered to the judgment obligor or his
removes or P5,000 thereby by reason authorized representative, unless otherwise directed
defaces the notice thereof by the judgment or order of the court.
posted
Real property
How can the injured party collect? File a motion in the same § When the sale is of real property consisting of
action. several known lots – they must be sold
separately
Section 18. No sale if judgment and costs paid. — At any time § When a portion of such real property is claimed
before the sale of property on execution, the judgment by a third person – he may require it to be sold
obligor may prevent the sale by paying the amount required separately.
by the execution and the costs that have been incurred
therein. (20a) Personal property:
When the sale is of personal property capable of
What if the JD’s property (which is sentimental to him) have manual delivery, it must be sold:
been levied and he borrows money to get it, is that allowed? § Within view of those attending the same and
Yes. At any time before the sale of property on execution, the § In such parcels as are likely to bring the highest price
judgment obligor may prevent the sale by paying the amount
required by the execution. This is a way of preventing the When the JD is present during the sale, pwede siya mag-‐sabi
auction sale. na “unahin mo tong property na ‘to, ito tapos ito.”

Section 19. How property sold on execution; who may direct Prohibition on the sheriff or his deputies
manner and order of sale. — All sales of property under § They cannot become purchasers
execution must be made at public auction, to the highest § They cannot become interested directly or indirectly
bidder, to start at the exact time fixed in the notice. After in any purchase at such sale
sufficient property has been sold to satisfy the execution, no
more shall be sold and any excess property or proceeds of Section 20. Refusal of purchaser to pay. — If a purchaser
the sale shall be promptly delivered to the judgment obligor refuses to pay the amount bid by him for property struck off


to him at a sale under execution, the officer may again sell & Villa Vicencio v. Mojares42 (2003): Mojares is the JD.
the property to the highest bidder and shall not be He does not have to shell out the money. The one
responsible for any loss occasioned thereby; but the court who is going to pay in cash is P.
may order the refusing purchaser to pay into the court the
amount of such loss, with costs, and may punish him for Section 22. Adjournment of sale. — By written consent of
contempt if he disobeys the order. The amount of such the judgment obligor and obligee, or their duly authorized
payment shall be for the benefit of the person entitled to representatives, the officer may adjourn the sale to any date
the proceeds of the execution, unless the execution has and time agreed upon by them. Without such agreement, he
been fully satisfied, in which event such proceeds shall be may adjourn the sale from day to day if it becomes
for the benefit of the judgment obligor. The officer may necessary to do so for lack of time to complete the sale on
thereafter reject any subsequent bid of such purchaser who the day fixed in the notice or the day to which it was
refuses to pay. (22a) adjourned. (24a)

Effect of refusal of purchaser to pay the amount bid by him at Situation: The purchaser or any personal property, capable of
the execution sale: manual delivery, pays the purchase price.
§ The officer may again sell the property to the highest
bidder and shall not be responsible for any loss Duties of the officer making the sale:
occasioned thereby. § Deliver the property to the purchaser, and
§ But the court may: § Execute and deliver to him a certificate of sale – if
o Order the refusing purchaser to pay into the desired
court the amount of such loss, with costs,
and What does the sale convey to the purchaser?
o May punish him for contempt if he disobeys It conveys all the rights which the JD had in such property as
the order of the date of the levy on execution or preliminary
§ The amount of such payment: attachment.
o Shall be for the benefit of the person
entitled to the proceeds of the execution What right does the purchaser get upon paying the purchase
o Unless the execution has been fully price. Does he acquire the ownership of the car? No, only the
satisfied, in which event such proceeds shall rights of the JD (the former owner). That’s why purchasers in
be for the benefit of the JD an auction sale must be very careful. Again, the spring must
§ The officer may thereafter reject any subsequent bid not rise higher than the source. Mahirap na if the property
of such purchaser who refuses to pay. does not really belong to the JD. But of course, he can
acquire possession.
Section 21. Judgment obligee as purchaser. — When the
purchaser is the judgment obligee, and no third-‐party claim Section 23. Conveyance to purchaser of personal property
has been filed, he need not pay the amount of the bid if it capable of manual delivery. — When the purchaser of any
does not exceed the amount of his judgment. If it does, he personal property, capable of manual delivery, pays the
shall pay only the excess. (23a) purchase price, the officer making the sale must deliver the
property to the purchaser and, if desired, execute and
Can the JD purchase the property in an auction sale? Does he deliver to him a certificate of sale. The sale conveys to the
have to pay? Well obvisously, he is the one entitled to the purchaser all the rights which the judgment obligor had in
proceeds. Can he bid? Yes. For example, if the Fortuner is such property as of the date of the levy on execution or
valued at P1.5 and the debt is also P1.5, so he can bid. What if preliminary attachment. (25a)
his bid is P1M and no other bidder? It will sold to him. The
P500,000 will still be collected from the JD. This is when Section 24. Conveyance to purchaser of personal property
there is no 3rd party claim filed. not capable of manual delivery. — When the purchaser of
any personal property, not capable of manual delivery, pays
Effect when the purchaser is the JC and no 3rd part claim has the purchase price, the officer making the sale must execute
been filed: and deliver to the purchaser a certificate of sale. Such
§ JC need not pay the amount of the bid – if it does not certificate conveys to the purchaser all the rights which the
exceed the amount of his judgment judgment obligor had in such property as of the date of the
§ If he does, he shall only pay the excess

42
Gr. No. 142648, February 27, 2003


levy on execution or preliminary attachment. (26a) interest in the whole or any part of the property;
(b) A creditor having a lien by virtue of an
Situation: The purchaser of any personal property, NOT attachment, judgment or mortgage on the property sold, or
capable of manual delivery, pays the purchase price. on some part thereof, subsequent to the lien under which
the property was sold. Such redeeming creditor is termed a
Duty of the officer making the sale: Execute and deliver to redemptioner. (29a)
him a certificate of sale.
We are now in a situation where real property belonging to
Section 25. Conveyance of real property; certificate thereof the JD was levied and was sold in an auction sale. We have P
given to purchaser and filed with registry of deeds. — Upon who is the purchaser. P has to respect Section 27 because it
a sale of real property, the officer must give to the tells us who can redeem the property sold to P within the 1
purchaser a certificate of sale containing: year redemption period.
(a) A particular description of the real property
sold; Who are entitled to redeem:
(b) The price paid for each distinct lot or parcel; § JD or his SII in the whole or any part of the property
(c) The whole price paid by him; o Can the JD sell his right to redeem? Yes. That
(d) A statement that the right of redemption person is called the SII who can redeem
expires one (1) year from the date of the registration of the within the 1 year redemption period.
certificate of sale. o Priority ang first set compared to the
Such certificate must be registered in the registry of second set.
deeds of the place where the property is situated. (27 a) § A creditor having a lien by virtue of an attachment,
judgment or mortgage on the property sold, or on
Upon sale of real property, the officer must give the some part thereof, subsequent to the lien under
purchaser a certificate of sale containing: which the property was sold [redemptioners]
§ A particular description of the real property sold; o Maybe a mortgagee or a JC
§ The price paid for each distinct lot or parcel;
§ The whole price paid by him; Example: X owes A, B, C and D P2M each. He wasn’t able to
§ A statement that the right of redemption expires pay. So they all filed a sum of money against X. They all won
one (1) year from the date of the registration of the the case against him. It’s just that the judgments did to come
certificate of sale. at the same time:
• Judgment for A – 10 Feb. 2012 (exec. April 10)
Note: You have to register the Certificate of Sale with the • Judgment for B – 10 May 2012 (exec. Jun 10)
ROD and that is the time that the 1 year redemption period • Judgment for C – 10 July 2012 (exec. August 10)
will start to run. • Judgment for D -‐ 10 Sept. 2012 (exec. October 10)
When the judgment against X (JD) became final and
When ownership is acquired by the highest bidder: If it is executory, they all filed their respective motions for
personal property – title is transferred after payment of the execution (See exec *month*).
purchase price and delivery upon the purchaser.
§ If it is real property – the title is transferred upon Under Section 28: What is the period of redemption? 1 year
expiration of the redemption period from the date of registration of the certificate of sale. The
COS will be registered by the highest bidder.
Section 26. Certificate of sale where property claimed by
third person. — When a property sold by virtue of a writ of Rules on redemption:
execution has been claimed by a third person, the certificate § JD (his SII) or R, may redeem the property from the
of sale to be issued by the sheriff pursuant to sections 23, 24 purchaser, at any time within 1 year from the date of
and 25 of this Rule shall make express mention of the the registration
existence of such third-‐party claim. (28a) § By paying the purchaser:
o The amount of his purchase +1% interest per
Section 27. Who may redeem real property so sold. — Real month up to the time of redemption
property sold as provided in the last preceding section, or o The amount of any assessments or taxes
any part thereof sold separately, may be redeemed in the which the purchaser may have paid thereon
manner hereinafter provided, by the following persons: after purchase
(a) The judgment obligor; or his successor in


o Interest on such last named amount at the mangyayari niyan is that the property that he has
same rate redeemed will be levied again.
o The amount of such other lien, with interest § Let’s change the facts. Can B redeem before the JD?
(if the purchaser is also the creditor having a Yes, because the JD or the redemptioner may
prior lien to that of R) redeem the property anytime. He has to pay the P2M
§ Property so redeemed may again be redeemed + 1% interest.
within 60 days after the last redemption upon § Now, on July 2012, C went to B and said “I want to
payment of: redeem the property from you.” Can he do so? Yes,
o The sum paid on the last redemption + 2% but he has to pay the sum paid (P2M) + 2% interest
interest and P2M lien in favor of B. So C must pay P4M + 2% of
o The amount of any assessments or taxes 2M.
which the last redemptioner may have paid § D wants to redeem from C. He can redeem within
thereon after redemption by him + interest the 60 days. How much does he have to pay? D will
o The amount of any liens held by said last pay P2M (sum paid) + interest + 4M (lien of B and C)
redemptioner prior to his own, with interest so total of P6M. Lugi ba si D? Hindi kasi ang property
§ The property may be again, and as often as a is P10M.
redemptioner is so disposed, redeemed from any § Can JD redeem from D? Yes. Up to when? He has
previous redemptioner within sixty (60) days after until May 10, 2013. He has to pay 2M + interest + 6M
the last redemption, on paying: paid so he has to pay P8M.
o The sum paid on the last previous § Change the date: Let’s say D redeemed not on
redemption + 2% interest August 2012 but April 10, 2013. What is the last day
o The amounts of any assessments or taxes for JD to redeem from D? Only up to May 10, 2013.
which the last previous redemptioner paid § Note: in the illustration above, walang hierarchy sa
after the redemption thereon + interest redemptioners. Any of them can redeem.
o The amount of any liens held by the last
redemptioner prior to his own + interest Take note of “subsequent to the lien under which the
property was sold.”
So A, B, C and D are called redemptioners. They have the right
to redeem the property within the redemption period. They Comment of Atty. S: Section 28, on “redemptioner”, applies
are creditors by virtue of the judgment or attachment only to the same property. In our example, it is the same and
subsequent to the lien. Let’s say the auction sale was on May only property of the JD that was levied for four times. In our
10, 2012. example, we have one parcel of land owned by the JD worth
P10M and there are 4 P2M mortgage, so total of P8M.
P purchased the property for P2M during the auction sale. On
the same day, he went to the ROD to register the property. Note:
§ X has the right to redeem the property from May 10, § Written notice of any redemption must be given to
2012 – May 10, 2013. the officer who made the sale and a duplicate filed
§ If he (X) sells his right to somebody else, the SII has with the ROD of the place
the same period in which to redeem the property. If you want to redeem the property (you are
§ Is A considered as a redemptioner? No, wala na B, C, D) or the JD or SII, you have to give
siyang right kasi bayad na siya. The redemptioners notice to the sheriff. The duplicate of the
are only B, C and D. notice of redemption shall be filed with the
§ After the redemption period, who has the right to ROD.
redeem (cf: Section 28, first sentence)? All of them § If any assessments or taxes are paid by the
can redeem. Anyone of them. redemptioner or if he has or acquires any lien other
§ Can B redeem the property from JD on June 10, 2012? than that upon which the redemption was made,
Meron pang 11 months. Yes, he can still redeem. How notice thereof must in like manner be given to the
much should he paid? officer and filed with the ROD
§ If you look at the provision, may nakalagay ba diyan § If such notice be not filed, the property may be
na JD? Because if he is the JD who redeems, nobody redeemed without paying such assessments, taxes,
can redeem from him anymore. The first redeemer or liens
can be any of them. But if the first redeemer is the
JD, nobody can redeem from him anymore. Ang


& Torres v. Alamag 43 (2010): Torres is a JC in the out that still, Section 28 is still being applied in extra-‐
ejectment case. Why is it that he was allowed to judicial forecelsoure proceedings. The period of 1
redeem? Why was he considered as a redemptioner? year can be extended by the agreement of the
Was this property that was levied by MTC after its parties.
decision became final and executory the same
property sold to Chua? Yes. We are talking about & Cayton v. Zeonnix 46 (2009): The subject property
here priority in redemption. What is the reason why here is a house and lot. Under Section 27, the lien of
the SC said that Torres has priority in redemption the R is subsequent to the lien under which the
over Alamag? Take note that whoever tenders the property was sold. In this case, the judgment in favor
redemption price first is the one who is given the of Zeonnix came before the extra-‐jduciail forecsloure
right to redeem. The certificate of redemption will made by Family Savings Bank. So, hindi siya under sa
be given to that person. Section 28 but under Act No. 3135. Take note that if
Legally speaking, it the end of the world you compare this case with Torres vs. Alamag, Torres
here for Alamag? Is there no way for Alamag to get was a JD with a lien subsequent to the lien under
his property back? A JD can redeem from the which the property was sold because the EJF
redemptioner by paying the amount paid by the happened first and he was able to get a levy under
redemptioner + taxes + interest + judgment debt. the same property. So he is a R under Rule 39,
However, if you really read the case, you will see that Section 28.
the certificate of sale was registered by Chau on In this case, nauna yung decision against
January 8, 1998. When did Torres give the amount Zeonnix. The EJF sale came first. Naunahan yung
for the taxes? January 8, 1999. Even if it is within the auction sale ng judgment. Cayton, the SII of
60 days, the JD can only redeem within the 1 year Manoscas (the owner), wanted to redeem claiming
period from the registration of the certificate of sale. that he is the SII of the JD. Here, Cayton avers that
Chua registered the sale on January 8, 1998. Even he is the SII of Manosca. However, the SC said that
though he still has the right under the Rules, the even if he is the SII, his right over the property is
judgment debtor can redeem, provided it is within 1 unregistered. The sale between Cayton and
year from registration. [Read this case J] Manosca, the deed of sale was unregistered so
Cayton cannot be recognized as the SII of the JD,
& DBP v. West Negros College44 (2002): Why is it that neither can he be recognized as R under Section 27D.
the DBP Charter prevails over the Rules of Court? We But the SC said that we have Act. No. 3135 which
are talking about Rule 39 – execution of a judgment. allows him to redeem. In other words, if you notice,
There are times that the SC will say that the Rules these provisions are used and not used in EJD
may apply, like terceria… If there is no special law. proceedings. So, to be able to determine, you have
Here, what happened was that there was an extra-‐ to know the cases – the specific circumstances of the
judicial foreclosure and there is a specific law which case.
governs it. So, do not apply the Rules.
In the case of PNB vs. CA, the SC applied & Tolentino v. Shenton47 (2009): When he filed the
Rule 39. But it was repealed in the 1998 case of Sy action for judicial redemption, he was trying to
and affirmed in the 2002 case of DBP vs. West suspend the period for redemption. The SC said that
Negros College. if you want to file an action for judicial redemption,
go ahead but you have to consign the amount.
& Spouses Landrito v. CA45 (2005): In the case of DBP, Tolentino should have consigned the amount. Here,
the SC did not apply Rule 39. In this case, did the SC he merely filed the action and never consigned even
apply the Rules? With respect to Rule 39, Section 28 a single centavo. If you want to redeem, you have to
vis a vis extra-‐judicial foreclosure, what is applicable pay the purchase price plus this and that. Okay?
is the 1 year redemption period. But as to how much
will be paid by the R or JD to redeem the property, Section 28. Time and manner of, and amounts payable on,
Rule 39 no longer applies. Whatever special rule or successive redemptions; notice to be given and filed. — The
law is available will be applied. It’s just that in this judgment obligor, or redemptioner, may redeem the
case, there was no charter xxx. I just want to point property from the purchaser, at any time within one (1) year

43
Gr. No. 169569, August 3, 2010
44 46
Gr. No. 152359, October 28, 2002 Gr. No. 169541, October 9, 2009
45 47
Gr. No. 133079, August 9, 2009 Gr. No. 162103, June 19, 2009


from the date of the registration of the certificate of sale, by margin of the record of the certificate of sale. The payments
paying the purchaser the amount of his purchase, with the mentioned in this and the last preceding sections may be
per centum per month interest thereon in addition, up to made to the purchaser or redemptioner, or for him to the
the time of redemption, together with the amount of any officer who made the sale. (31a)
assessments or taxes which the purchaser may have paid
thereon after purchase, and interest on such last named Effects if the JD redeems:
amount at the same rate; and if the purchaser be also a § JD must make the same payments as are required to
creditor having a prior lien to that of the redemptioner, effect a redemption by a R
other than the judgment under which such purchase was § No further redemption shall be allowed and he is
made, the amount of such other lien, with interest. restored to his estate
Property so redeemed may again be redeemed § The person to whom the redemption payment is
within sixty (60) days after the last redemption upon made must execute and deliver to him a certificate
payment of the sum paid on the last redemption, with two of redemption acknowledged before a notary public
per centum thereon in addition and the amount of any or other officer authorized to take
assessments or taxes which the last redemptioner may have acknowledgments of conveyances of real property
paid thereon after redemption by him, with interest on such § Such certificate must be filed and recorded in the
last named amount, and in addition, the amount of any liens ROD of the place in which the property is situated
held by said last redemptioner prior to his own, with and the registrar of deeds must note the record
interest. The property may be again, and as often as a thereof on the margin of the record of the certificate
redemptioner is so disposed, redeemed from any previous of sale
redemptioner within sixty (60) days after the last § The payments mentioned in this and the last
redemption, on paying the sum paid on the last previous preceding sections may be made to the P or R or for
redemption, with two per centum thereon in addition, and him to the officer who made the sale
the amounts of any assessments or taxes which the last
previous redemptioner paid after the redemption thereon, “xxx whereupon, no further redemption shall be allowed and
with interest thereon, and the amount of any liens held by he is restored to his estate” – If it is the JD who redeems, the
the last redemptioner prior to his own, with interest. other redemptioners cannot redeem from him. The
Written notice of any redemption must be given to redemptioners (now the JCs) can ask the sheriff to have the
the officer who made the sale and a duplicate filed with the property levied sold in an execution sale.
registry of deeds of the place, and if any assessments or
taxes are paid by the redemptioner or if he has or acquires Section 30. Proof required of redemptioner. — A
any lien other than that upon which the redemption was redemptioner must produce to the officer, or person from
made, notice thereof must in like manner be given to the whom he seeks to redeem, and serve with his notice to the
officer and filed with the registry of deeds; if such notice be officer a copy of the judgment or final order under which he
not filed, the property may be redeemed without paying claims the right to redeem, certified by the clerk of the court
such assessments, taxes, or liens. (30a) wherein the judgment or final order is entered, or, if he
redeems upon a mortgage or other lien, a memorandum of
Check the discussion under Section 27. the record thereof, certified by the registrar of deeds, or an
original or certified copy of any assignment necessary to
Section 29. Effect of redemption by judgment obligor, and a establish his claim; and an affidavit executed by him or his
certificate to be delivered and recorded thereupon; to agent, showing the amount then actually due on the lien.
whom payments on redemption made. — If the judgment (32a)
obligor redeems he must make the same payments as are
required to effect a redemption by a redemptioner, The redemptioner here needs to prove.
whereupon, no further redemption shall be allowed and he
is restored to his estate. The person to whom the Proof required as redemptioner:
redemption payment is made must execute and deliver to § R must produce to the officer, or person from whom
him a certificate of redemption acknowledged before a he seeks to redeem, and serve with his notice to the
notary public or other officer authorized to take officer:
acknowledgments of conveyances of real property. Such o A copy of the judgment or final order under
certificate must be filed and recorded in the registry of which he claims the right to redeem
deeds of the place in which the property is situated and the o Certified by the clerk of the court wherein
registrar of deeds must note the record thereof on the the judgment or final order is entered


§ If R redeems upon a mortgage or other lien: obligor until the expiration of his period of redemption.
o A memorandum of the record thereof, (34a)
certified by the ROD, or an original or
certified copy of any assignment necessary Section 33. Deed and possession to be given at expiration of
to establish his claim redemption period; by whom executed or given. — If no
o An affidavit executed by him or his agent, redemption be made within one (1) year from the date of
showing the amount then actually due on the registration of the certificate of sale, the purchaser is
the lien entitled to a conveyance and possession of the property; or,
if so redeemed whenever sixty (60) days have elapsed and
Section 31. Manner of using premises pending redemption; no other redemption has been made, and notice thereof
waste restrained. — Until the expiration of the time allowed given, and the time for redemption has expired, the last
for redemption, the court may, as in other proper cases, redemptioner is entitled to the conveyance and possession;
restrain the commission of waste on the property by but in all cases the judgment obligor shall have the entire
injunction, on the application of the purchaser or the period of one (1) year from the date of the registration of
judgment obligee, with or without notice; but it is not waste the sale to redeem the property. The deed shall be executed
for a person in possession of the property at the time of the by the officer making the sale or by his successor in office,
sale, or entitled to possession afterwards, during the period and in the latter case shall have the same validity as though
allowed for redemption, to continue to use it in the same the officer making the sale had continued in office and
manner in which it was previously used, or to use it in the executed it.
ordinary course of husbandry; or to make the necessary Upon the expiration of the right of redemption, the
repairs to buildings thereon while he occupies the property. purchaser or redemptioner shall be substituted to and
(33a) acquire all the rights, title, interest and claim of the
judgment obligor to the property as of the time of the levy.
Situation: The JD knows he has no money to redeem the The possession of the property shall be given to the
property so sirain niya nalang ang property. purchaser or last redemptioner by the same officer unless a
third party adversely to the judgment obligor. (35a)
Until the expiration of the time allowed for redemption:
§ The court may restrain the commission of waste on This is a very important provision. This is a very short
the property by injunction provision in the sense that the cases are focused on a very,
§ On the application of the purchaser or the JE, with or very small part of this section. This is a procedure where the
without notice JD or R does not redeem within the redemption period. So,
what happens from the lapse of the 1-‐year redemption period
Motion for preliminary injunction ex parte is allowed here. from the time of registration of certificate of sale? The
Kasi if iinform mo si JD, baka unahan niya yung purchaser. So highest bidder can now have the right to possess.
masira na ang property.
Persons entitled to conveyance and possession of property:
What is not considered waste: § Purchaser – if no redemption is made within 1 year
If person in possession of the property at the time of the sale, from registration of COS (certificate of sale)
or entitled to possession afterwards, during the period § Last redemptioner – whenever 60 days have elapsed
allowed for redemption, to continues to: and no other redemption has been made and notice
§ Use it in the same manner in which it was previously thereof given, and the time for redemption has
used, or expired
§ Use it in the ordinary course of husbandry
§ Make the necessary repairs to buildings thereon In all cases, JD shall have the entire period of 1 year from the
while he occupies the property date of the registration of the COS to redeem the property.

Section 32. Rents, earnings and income of property pending Who shall execute the deed of conveyance?
redemption. — The purchaser or a redemptioner shall not § The officer making the sale, or
be entitled to receive the rents, earnings and income of the § His SII in office – it shall have the same validity as
property sold on execution, or the value of the use and though the officer making the sale had continued in
occupation thereof when such property is in the possession office and executed it
of a tenant. All rents, earnings and income derived from the
property pending redemption shall belong to the judgment


Retroactive effect: Upon the expiration of the right of 1.
Upon filing of the bond and before the
redemption, the purchaser or redemptioner shall be expiration of the 1 year redemption
substituted to and acquire all the rights, title, interest and period
claim of the judgment obligor to the property as of the time 2. After the expiration of the 1 year period
of the levy. and upon application for the writ of
possession – ministerial duty on the part
VVIP Note: The possession of the property shall be given to of the court
the purchaser or last R by the same officer unless a 3rd party Because PBCom did not return the surplus in
is: the auction sale to the JD, is this a ground for
§ Actually holding the property stopping the issuance of the writ? Does it become
§ Adversely to the JD discretionary on the part of the court? No, it is clear
under Act No. 3k135.
What if at the end of the redemption period, hindi pala yung PBCom here unilaterally applied the surplus
JD ang nasa property pero yung SII. Should the sheriff to the other unsecured loans of the JD. This is not
transfer possession to R or P? Yes, a SII has not interest allowed. Even if the mortgagor has other unsecured
adverse to the JD. Only if there is a 3rd party claimant who obligations in the bank, the surplus has to be
claims to be the real claimant in the property, the sheriff returned to the JD.
cannot automatically transfer possession to R or P.
& Top Art v. Metrobank 50 (2009): What if it was
What are the two documents to be executed by the sheriff Santillan who filed the motion to quash the writ of
after the execution sale? possession claiming that he is in possession of the
§ Certificate of sale -‐ once this is registered the 1-‐year property? Can’t he do it? Dapat terceria lang? Will
redemption period will start to run (Section 25) that motion to quash be granted? Here, Santillas is
§ Deed of conveyance – if there is no redemption invoking the exception. What is the purpose of
within 1 year, this is issued by the sheriff (Section 33) Section 33? We are already at the stage of filing for
the writ of possession, can you still file a terceria?
Which of the two documents transfers the ownership to the Applying the rule, what if Santillan was the
purchaser? Only the deed of conveyance transfers title to the one who filed the opposition or motion to quash the
property. writ of possession? Do you think the motion will be
granted? No. The lessee does not have an adverse
& Zaballero v. CA 48 (1994): This is a very simple interest with the JD (owner of the property). They
example of how Section 33 is carried out. Again, this have a lease contract. But the think is, terceria can
is EJF but Section 33 is applicable in the sense that only be filed before the auction sale. Tapos na nga
after the expiration of the redemption period, the P ang auction sale. So this is the solution if you are the
has the right to conveyance where the sheriff will 3rd person holding the property.
execute a deed of conveyance so that the title of the
property will be transferred to his name. Well, this is & BPI v. Icot 51 (2009): This case was decided on
just easy because the sheriff can do it himself. The October 12, 1999 while the case of Top Art vs.
difficult part is asking the JD to leave. That is the Metrobank was decided on August 4, 2009. Same
time when the writ of possession will come it. Take division. In the first case, it was the 3rd party who
note that the issuance of this writ is a ministerial should question the writ of possession. But in the
duty on the part of the court. case of Icot, Justice Carpio is saying that there only
needs a showing... In this case, Icot filed an action
& Spouses Saguan v. PBCom 49 (2007): Again, this for quieting of title. Once the court finds out that the
involves EJF. Under Rule 39, there is the 1 year property sought to be possessed by R or P is being
redemption period. The R or P can only acquire possessed by somebody adverse to the JD, that is
possession of the property after the lapse of the already enough. It doesn’t matter whether Icot is an
redemption period. That is for judgments. But this owner or not. The important thing only here is the
case is about EJF. Under Act No. 3135, there are two actual possession of the third party and it must be
ways of acquiring possession of the property. adverse from the JD. This is an application of the
exception of the rule.

48 50
Gr. NO. 106958, February 9, 1994 Gr. No. 184005, August 4, 2009
49 51
Gr. No. 189882, November 23, 2007 Gr. No. 168061, October 12, 2009


have the original judgment revived in his name for the
& Villanueva v. Cherdan 52 (2010): Section 33 is not whole price with interest, or so much thereof as has been
really clear. Is the provision saying that the court delivered to the judgment obligor. The judgment so revived
should not issue the writ? Or the court has the shall have the same force and effect as an original judgment
discretion to issue or not? Jurisprudence tells us that would have as of the date of the revival and no more. (36a)
it becomes discretionary on the part of the writ. If
the court does not issue the writ, does it mean that P Situation: The purchaser or his SII:
will forever be in possession? No. What the court can § Fails to recover the possession of the property, or
do is to wait for the result or outcome of the case. § Is evicted therefrom
Just like in the case of BPI vs. Icot, if Icot is found or
adjudged to be the owner, then the court cannot Reasons for his eviction:
issue the writ of possession. § Irregularities in the proceedings concerning the sale,
Same case here in Villanueva. He filed a or
motion to set aside the case and claimed that there § Judgment has been reversed or set aside, or
is this particular case involving it. So what the court § The property sold was exempt from execution
can do is to hold in abeyance the issuance of the writ § A 3rd person has vindicated his claim to the property
and wait for the outcome in the other case. Here, it
was not the ministerial duty of the court. The SC What P may do:
never said that the court will not issue the writ. What § File a motion to recover from JC in:
it is saying is that the duty becomes ministerial on o The same action or
the part of the court. o A separate action recover from the JC the:
§ Price paid,
& BPI Savings v. Golden Power (2011): Take note that § With interest, or
under Section 33, there is no laid down procedure on § So much thereof as has not been
how to apply for the writ of possession. But delivered to the judgment obligor
jurisprudence tells us that the application for this § File a motion to have the original judgment revived
writ is ex-‐parte. You do not have to inform the other in his name for the whole price with interest
party. But because of the presence of a 3rd party § The judgment so revived shall have the same force
who is actually holding the property, that ex-‐parte and effect as an original judgment would have as of
motion filed no longer becomes ex-‐parte but litigious the date of the revival and no more
motion… According to the Court here, the
procedure is for the court to order a hearing to Section 35. Right to contribution or reimbursement. —
determine the nature of the adverse possession. But When property liable to an execution against several
during the hearing, the court will not determine who persons is sold thereon, and more than a due proportion of
is really the owner but whether or not the the judgment is satisfied out of the proceeds of the sale of
possession is really adverse. The resolution is the property of one of them, or one of them pays, without a
whether or not the possession is adverse, no sale, more than his proportion, he may compel a
determination of ownership. contribution from the others; and when a judgment is upon
an obligation of one of them, as security for another, and
Section 34. Recovery of price if sale not effective; revival of the surety pays the amount, or any part thereof, either by
judgment. — If the purchaser of real property sold on sale of his property or before sale, he may compel
execution, or his successor in interest, fails to recover the repayment from the principal. (37a)
possession thereof, or is evicted therefrom, in consequence
of irregularities in the proceedings concerning the sale, or Remedies in Aid of Execution
because the judgment has been reversed or set aside, or
because the property sold was exempt from execution, or Is it easy to execute? Of course hindi. It’s very difficult to look
because a third person has vindicated his claim to the for properties to levy. There are also some JDs who keep on
property, he may on motion in the same action or in a transferring the registration of their properties under
separate action recover from the judgment obligee the price different names. Mahirap talaga so we have remedies in aid
paid, with interest, or so much thereof as has not been of execution.
delivered to the judgment obligor, or he may, on motion,
Section 36. Examination of judgment obligor when

52 judgment unsatisfied. — When the return of a writ of
Gr. No. 177881, October 13, 2010


execution issued against property of a judgment obligor, or service of the order shall bind all credits due the judgment
any one of several obligors in the same judgment, shows obligor and all money and property of the judgment obligor
that the judgment remains unsatisfied, in whole or in part, in the possession or in the control of such person
the judgment obligee, at any time after such return is made, corporation, or juridical entity from the time of service; and
shall be entitled to an order from the court which rendered the court may also require notice of such proceedings to be
the said judgment, requiring such judgment obligor to given to any party to the action in such manner as it may
appear and be examined concerning his property and deem proper. (39a)
income before such court or before a commissioner
appointed by it at a specified time and place; and Situation: The return of a writ of execution issued against
proceedings may thereupon be had for the application of property of a JD shows that the judgment remains
the property and income of the judgment obligor towards unsatisfied, in whole or in part.
the satisfaction of the judgment. But no judgment obligor
shall be so required to appear before a court or Remedy: Just read the provision.
commissioner outside the province or city in which such
obligor resides or is found. (38a) Section 38. Enforcement of attendance and conduct of
examination. — A party or other person may be compelled,
Situation: The return of a writ of execution issued against by an order or subpoena, to attend before the court or
property of a JD shows that the judgment remains commissioner to testify as provided in the two preceding
unsatisfied, in whole or in part. sections, and upon failure to obey such order or subpoena or
to be sworn, or to answer as a witness or to subscribe his
Remedy of JC: deposition, may be punished for contempt as in other cases.
§ At any time after such return is made – JC shall be Examinations shall not be unduly prolonged, but the
entitled to an order from the court which rendered proceedings may be adjourned from time to time, until they
the said judgment, are completed. If the examination is before a commissioner,
§ Requiring such JD to appear and be examined he must take it in writing and certify it to the court. All
concerning his property and income before such examinations and answers before a court commissioner
court or before a commissioner appointed by it, must be under oath, and when a corporation or other
§ At a specified time and place; and juridical entity answers, it must be on the oath of an
§ Proceedings may thereupon be had for the authorized officer or agent thereof. (40a)
application of the property and income of the JD
towards the satisfaction of the judgment This is just procedural. Just read that.

Note: No JD shall be so required to appear before a court or Section 39. Obligor may pay execution against obligee. —
commissioner outside the province or city in which such JD After a writ of execution against property has been issued, a
resides or found. person indebted to the judgment obligor may pay to the
sheriff holding the writ of execution the amount of his debt
So kailangan pa talaga magpunta doon noh? So gagasto pa si or so much thereof as may be necessary to satisfy the
JC. Spoiled si JD dito. judgment, in the manner prescribed in section 9 of this Rule,
and the sheriff's receipt shall be a sufficient discharge for
If there is really nothing, try to look for the debtor/s of the JD. the amount so paid or directed to be credited by the
judgment obligee on the execution. (41a)
Section 37. Examination of obligor of judgment obligor. —
When the return of a writ of execution against the property Procedure when the writ of execution against property has
of a judgment obligor shows that the judgment remain been issued:
unsatisfied, in whole or in part, and upon proof to the § A person indebted to the JD may pay to the sheriff
satisfaction of the court which issued the writ, that a person, holding the writ of execution the amount of his debt
corporation, or other juridical entity has property of such or so much thereof as may be necessary to satisfy
judgment obligor or is indebted to him, the court may, by an the judgment, in the manner prescribed in section 9
order, require such person, corporation, or other juridical § The sheriff's receipt shall be a sufficient discharge for
entity, or any officer, or member thereof, to appear before the amount so paid or directed to be credited by JC
the court or a commissioner appointed by it, at a time and on the execution
place within the province or city where such debtor resides
or is found, and be examined concerning the same. The Section 40. Order for application of property and income to


satisfaction of judgment. — The court may order any the judgment obligee to institute an action against such
property of the judgment obligor, or money due him, not person or corporation for the recovery of such interest or
exempt from execution, in the hands of either himself or debt, forbid a transfer or other disposition of such interest
another person, or of a corporation or other juridical entity, or debt within one hundred twenty (120) days from notice of
to be applied to the satisfaction of the judgment, subject to the order, and may punish disobedience of such order as for
any prior rights over such property. contempt. Such order may be modified or vacated at any
If, upon investigation of his current income and time by the court which issued it, or by the court in which
expenses, it appears that the earnings of the judgment the action is brought, upon such terms as may be just. (45a)
obligor for his personal services are more than necessary for
the support of his family, the court may order that he pay Situation: It appears that a person or corporation, alleged to
the judgment in fixed monthly installments, and upon his have property of the JD or to be indebted to him:
failure to pay any such installment when due without good § Claims an interest in the property adverse to him, or
excuse, may punish him for indirect contempt. (42a) § Denies the debt

Property or income of the JD to satisfy judgment: Remedy:
§ The court may order any property of the judgment § Authorize, by an order made to that effect, the JC to
obligor, or money due him, not exempt from institute an action against such person or
execution, in the hands of either: corporation for the recovery of such interest
o Himself or § Forbid a transfer or other disposition of such interest
o Another person, or or debt within 120 days from the notice of the order,
o A corporation or and
o Other juridical entity § Punish disobedience of such order as for contempt
§ Limitation: to the satisfaction of the judgment,
subject to any prior rights over such property. Cases under Sections 35-‐45:

Section 41. Appointment of receiver. — The court may & Ramon Montenegro v. Teresa Montenegro53 (2004):
appoint a receiver of the property of the judgment obligor; The JD did not attend all these xxx orders from the
and it may also forbid a transfer or other disposition of, or court, even if a subpoena was already issued. He was
any interference with, the property of the judgment obligor eventually examined as the JD after 9 months.
not exempt from execution. (43a) Whether he was able to xxx, that is no longer stated
in the case.
Here, the court may appoint a receiver.
& Annie Fermin v. Judge Estevez 54 (2008): Why is
Section 42. Sale of ascertainable interest of judgment Section 43 not applicable? What kind of judgment
obligor in real estate. — If it appears that the judgment does it refer? Here, Fermin etc. claim to be also
obligor has an interest in real estate in the place in which possessors of the property. Kasali daw yung
proceedings are had, as mortgagor or mortgagee or other-‐ property nila sa writ of demolition. What does
wise, and his interest therein can be ascertained without Section 43 have to do with it? File a separate action
controversy the receiver may be ordered to sell and convey and remedy dito. Hindi rin applicable ang Section 16.
such real estate or the interest of the obligor therein; and
such sale shall be conducted in all respects in the same Satisfaction of Judgment
manner as is provided for the sale of real state upon
execution, and the proceedings thereon shall be approved Section 44. Entry of satisfaction of judgment by clerk of
by the court before the execution of the deed. (34a) court. — Satisfaction of a judgment shall be entered by the
clerk of court in the court docket, and in the execution book,
Just read this. upon the return of a writ of execution showing the full
satisfaction of the judgment, or upon the filing of an
Section 43. Proceedings when indebtedness denied or admission to the satisfaction of the judgment executed and
another person claims the property. — If it appears that a acknowledged in the same manner as a conveyance of real
person or corporation, alleged to have property of the property by the judgment obligee or by his counsel unless a
judgment obligor or to be indebted to him, claims an
interest in the property adverse to him or denied the debt,
53
Gr. No. 156829, June 8, 2004
the court may authorize, by an order made to that effect, 54
Gr. No. 147977, March 28, 2008


revocation of his authority is filed, or upon the endorsement of a judgment or final order rendered by a court of the
of such admission by the judgment obligee or his counsel, on Philippines, having jurisdiction to pronounce the judgment
the face of the record of the judgment. (46a) or final order, may be as follows:
(a) In case of a judgment or final order against a
If the judgment has been satisfied, then the judgment is specific thing, or in respect to the probate of a will, or the
satisfied. What is the next step? There must be entry. administration of the estate of a deceased person, or in
respect to the personal, political, or legal condition or status
Entry of satisfaction of judgment by the clerk of court: of a particular person or his relationship to another, the
• How entered – by the clerk of court in the: judgment or final order is conclusive upon the title to the
o Court docket, and thing, the will or administration or the condition, status or
o Execution book, relationship of the person, however, the probate of a will or
• When entered – upon the granting of letters of administration shall only be prima
o Return of the writ of execution showing the facie evidence of the death of the testator or intestate;
full satisfaction of the judgment, or (b) In other cases, the judgment or final order is,
o Filing of an admission to the satisfaction of with respect to the matter directly adjudged or as to any
the judgment executed and acknowledged other matter that could have been missed in relation
in the same manner as a conveyance of real thereto, conclusive between the parties and their successors
property by the judgment obligee or by his in interest, by title subsequent to the commencement of the
counsel action or special proceeding, litigating for the same thing
and under the same title and in the same capacity; and
Section 45. Entry of satisfaction with or without admission. (c) In any other litigation between the same parties
— Whenever a judgment is satisfied in fact, or otherwise or their successors in interest, that only is deemed to have
than upon an execution on demand of the judgment obligor, been adjudged in a former judgment or final order which
the judgment obligee or his counsel must execute and appears upon its face to have been so adjudged, or which
acknowledge, or indorse an admission of the satisfaction as was actually and necessarily included therein or necessary
provided in the last preceding section, and after notice and thereto. (49a)
upon motion the court may order either the judgment
obligee or his counsel to do so, or may order the entry of This is the provision on res judicata. What is the effect? We
satisfaction to be made without such admission. (47a) are not talking of execution or satisfaction anymore. We are
talking of the effect of final judgment or order. Res judicata.
Situation:
§ A judgment is satisfied in fact, or otherwise than Effect of judgment or FO rendered by a court having
upon an execution, and jurisdiction to pronounce it:
§ JD demands that the JC or his counsel execute and
acknowledge, or indorse, an admission of the Circumstance The judgment or FO is:
satisfaction as provided in Section 44, and 1 In case a judgment tor FO Conclusive upon the title to
against a specific thing the thing
Remedy: JD must file a motion to that effect with notice to 2 In respect to the: The judgment or FO is
the JC • Probate of a will, conclusive upon the will or
or administration
Effect: The court may order: • The
§ Either JC or his counsel to do so administration of
§ The entry of satisfaction to be made without such the estate of a
admission deceased person
3 In respect to the The judgment or FO is
Section 46. When principal bound by judgment against personal, political or legal conclusive upon the
surety. — When a judgment is rendered against a party who condition or status of a condition, status or
stands as surety for another, the latter is also bound from particular person or his relationship of the person
the time that he has notice of the action or proceeding, and relationship to another
an opportunity at the surety's request to join in the defense.
(48a) Note: The (a) probate of a will or (b) granting of letters of
administration shall be prima facie evidence of the death of
Section 47. Effect of judgments or final orders. — The effect the testate or intestate.


o First action is for accounting of funds. There
(Discussion above refers to: actions In rem or quasi in rem) was a judgment na. The same party filed an
action against the same treasurer for the
Requisites of res judicata: partition of the same funds that is still the
§ The judgment order invoked as res judicata must be same subject matter.
final o First case is accion publiciana. The P was not
o Final ha, Not interlocutory able to recover. Then P filed a second case
o Does not refer to “Final but appellable” for the value of the property. Here, same
§ The court rendering the same must have jurisdiction subject matter pa rin.
over the subject matter and of the parties
o Jurisdiction over SM conferred by law When is there identity of cause of action?
o Jurisdiction over SM is determined upon the When the 2 actions are based on the same delict or wrong
material allegations in the complaint committed by the D, even if the remedies be different.
o Jurisdiction acquired over the person of D: (Quiogue vs. Bautista, 1962)
upon proper service of summons or Note: Difference between cause of action and action
voluntary surrender
o Jurisdiction acquired over the person of P: Here, you have to look at the violation committed by D.
upon filing of the case
§ The judgment or order must be upon the merits How do you determine identity of causes of action? We have
o “Upon the merits” – when it finally settles two tests:
the issues raised in the pleadings § Same evidence test – if the same evidence presented
o Even if you have a judgment or order of in case 1 is sufficient to prove case 2; if you have to
dismissal which became final and executory present different evidence in the two cases, there is
because it was not appealed but the no identity in the causes of action
judgment or order was just dismissal by § Inconsistency test – whether or not the judgment
reason of wrong venue, then there is no case sought in the 1st case is inconsistent with the
judgment or order upon the merits so no res judgment in the 2nd case
judicata
o Exception: Rule 17, Section 13 There are also instances when even if all the requisites are
§ There must, between the two cases, identity of present, the SC still refuses the doctrine of res judicata. What
parties, identity of subject matter and indemnity of is the ground for that? Justice and equity. Take note that res
cause of action judicata is a technicality. It does not have something to do
o This is the most controversial with substantive issue. You cannot put premium on
technicality. Take note that we are not only courts of law but
Landmark case: Republic vs. Molina also courts of equity.

When is there identity of parties for the purpose of res Read: Suarez vs. CA
judicata:
§ When the parties in the 2nd action are the same as Aspects of res judicata:
the parties in the 1st action § Section 47 (b) Bar by a former judgment
§ When the parties in the 2nd action are SII of the o Traditionally known as merger or bar
parties in the 1st action, such as heirs or purchasers o In modern terminology it is called claim
who acquired tittle after the commencement of the preclusion
first action § You cannot claim it again
§ Your entire claim is barred if there is
When is there identity of subject matter? a former judgment
If the second case, the same thing is involved or included in § Section 47 (c) Conclusiveness of judgment
the first case. o Traditionally known as collateral estoppel
§ Examples: o In modern terminology, it is called issue
o First case is accion publiana for 100 has. May preclusion
judgment na wherein natalo si P. He filed § You are only precluded from raising
another action for accion publiciana over that particular issue that was
the 10has of the 100 has property. adjudged


but not the issue that was already resolved in the
Take note: B is broader because the whole case is barred. first case. So there is already conclusiveness of
Under C, it is only a certain issue that is precluded or barred. judgment, although not barred by prior judgment. So
there is only issue preclusion. [Res judicata vs.
As to: Bar by Former Conclusiveness of conclusiveness of judgment]
Judgment Judgment
Effect The 1 judgment The 1st judgment is
st
& PNB v. Sia56 (2009): When there is res judicata, the
constitutes an a conclusive only effects that we took up from the beginning, one is
absolute bar to all on matters dismissal under Rule 16, Section 1. But when it is
matters directly actually litigated merely conclusiveness of judgment, it is not a ground
adjudged as well and adjudged In for dismissal. It is just a prohibition to raise the same
as matters that the first action issues involving the same parties and maybe the
might have been same subject matter. In this case, the SC said that
adjudged there is res judicata under Section 47c but again, it is
Requisites There must be There must be not the simple res judicata. You have to know the
identity of parties, identity of parties difference between Sections 47b and 47c. It is only
subject matter or subject matter, Section 47b that is a ground for dismissal of the
and cause of but not action. In this case, we only have conclusiveness of
action necessarily of judgment.
causes of action
Section 48. Effect of foreign judgments or final orders. —
Distinctions: The effect of a judgment or final order of a tribunal of a
Res Judicata Stare Decisis foreign country, having jurisdiction to render the judgment
1 Operates between 2 Refers to cases with or final order is as follows:
actions involving the different parties but the (a) In case of a judgment or final order upon a
same parties and the ruling in the earlier case is specific thing, the judgment or final order, is conclusive
same cause of action invoked in the latter upon the title to the thing, and
2 Applies to all cases Refers only to decisions of (b) In case of a judgment or final order against a
decided by all courts or the SC person, the judgment or final order is presumptive evidence
bodies of a right as between the parties and their successors in
Law of the Case Stare Decisis interest by a subsequent title.
1 Refers only to one case May refer to various caases In either case, the judgment or final order may be
which may or may not be which are usually invoked in repelled by evidence of a want of jurisdiction, want of notice
invoked in subsequent subsequent cases to the party, collusion, fraud, or clear mistake of law or fact.
cases (50a)

Tobacco Case: Can a case be reopened if the law of the case We already know the effect of a final and executory
has been changed? No. The governing law is the law which judgment – res judicata. What then is the effect of a foreign
was effective at the time of the decision was rendered. judgment? Is it still res judicata? No.

Note: Take note of the requisites. Effects of a foreign judgment or order:
§ In case of a J or FO upon a specific thing, the J or FO,
& Cayana v. CA55 (2004): What do you mean by that the is conclusive upon the title to the thing
second case was barred by res judicata? It means § In case of a J or FO against a person, the judgment or
that the second case should be dismissed. Res final order is presumptive evidence of a right as
judicata – barred by prior judgment. We have between the parties and their SII by a subsequent
conclusiveness of judgment. That was issue title
determined in the first case, which involved the § In case of J or FO upon a specific thing and against a
same issue and the same subject matter, should no person, the J or FO may be repelled by evidence of a
longer be touched in the second case. You can touch want of jurisdiction, want of notice to the party,
other causes of action or issues in the second case collusion, fraud, or clear mistake of law or fact

55

56
Gr. No. 125607, March 18, 2004 Gr. No. 165836, February 18, 2009


& Quasha v. CA58 (2009): What do you mean by foreign
For example, A is a Filipina who went to the US and married judgment? It must be a judgment of a foreign court.
B, an American. B divorced A. A came home to the Philippines In this case, there was just an appointment of a
and she wants to marry C, a Filipino. Now, in order to validly liquidator of a particular company that is going
marry the Filipino, she has to prove that she has already been bankrupt. That is not the foreign judgment that
divorced (Article 26 of the Family Code – Filipino spouse was Section 48 is talking about.
divorced by the foreign spouse). A has to file an action for
recognition of foreign judgment. & Corpus v. Sto. Tomas59 (2010): How will you prove a
foreign judgment? That is not something that is
What is the effect of that foreign judgment of divorce against discussed here in CivPro. In this case, there’s a
a person? It is a presumptive evidence of a right as between foreign judgment of divorce rendered by a foreign
the parties and their SII by a subsequent title. If A files an court. What is the purpose of bringing a foreign
action for recognition of a foreign judgment, the court will judgment to the Philippines and seeking to make it
recognize her status that she was already divorced by her effective? When J filed the petition for the
American spouse. Therefore, under Article 26.2 of the FC, she recognition of foreign judgment, he filed under
can now marry C. Article 26.2 of the FC which is supposed to be filed by
the Filipino spouse. According to the SC, he is not the
A foreign judgment, just like any other case rendered here in proper party to file the petition for recognition of
the PH, is immutable. You cannot plea a foreign judgment the foreign judgment under Article 26.2. What is
here that is not yet final and executory – yung mga pending required? If you remember in your Persons, the
pa. For example, yung sa divorce, you cannot ask whether or foreigner only needs to present a certificate of legal
not it was valid. You cannot go into the validity of the divorce capacity to contract marriage under Article 21 of the
decided by a foreign court. FC.
Since J (the party) is a foreigner, he
But what can you do if you do not want the foreign judgment doesn’t need to ask for the foreign judgment to be
to be recognized here in the Philippines? You can repel it. I-‐ recognized here in the PH. But can he file a petition
football mo pabalik sa pinanggalingan niya. for recognition of the FJ for any other purpose? Yes.
Can J just go to the LCR and present his certificate of
These are the grounds to repel a foreign judgment: legal capacity kasi ang naka-‐record dun is he is
§ Lack of jurisdiction – prove that the foreign court married to this particular Filipina? No. Remember the
that rendered the judgment did not have jurisdiction effects of a foreign judgment, it is conclusive upon
over the subject matter the title or thing and it is a presumptive evidence of a
§ Want of notice to the party right between the parties. Therefore, he must still
§ Collusion between the parties file a petition for the recognition of a foreign
§ Fraud – extrinsic fraud judgment for the purpose of amending the details in
§ Mistakes of law and fact his birth certificate or whatever documents he has
with the LCR and NSO. A foreign judgment does not
There are cases on these which you will take up when you have that much power that you can just present it
reach Conflict of Laws. anywhere. You have to undergo a recognition case.
[very popular case discussed in Persons & Family
& Mijares v. Judge Ranada57 (2005): What is the cause Relations, Evidence, Civil Procedure and Conflict of
of action for the recognition of a foreign judgment? Laws]
The judgment itself. Unlike when you file a complaint
before the trial court, you have to show your right,
obligation, violation and damage (elements of cause
of action). But for the petition for recognition of
foreign judgment, there is no need to go back to
those elements because the cause of action is the
judgment itself.

57
58
59
Gr. No. 182013, December 4, 2009
Gr. NO. 139325, April 12, 2005 Gr. No. 186571, August 11, 2010


about what may be executed – a final judgment or order.
Rule 40: APPEAL FROM MUNICIPAL Does it mean that may choice ka between execution and
TRIAL COURTS TO REGIONAL TRIAL appeal? No. The one who asks for the execution is the
winning party while for appeal, it is the losing party. When
COURTS have a judgment here that has become final and executory,
what do you do? Ask for execution. Remember that a final
and executory judgment is one which was not appealed.
Rule 41: APPEAL FROM THE
Final and executory – this is for Rule 39. The judgment can
REGIONAL TRIAL COURTS already be executed. What we are talking about here in
appeal is an order is final not interlocutory. Can a judgment
be appealed? Yes, for as long as it does not become final and
When we talk about appeal, we will look at Rule 40 (appeal executory. Meaning, the 15 days has not yet lapsed. Can order
from the RTC to the MTC). We will also discuss Rule 41 be appealed? Yes, if it is a final order and not interlocutory.
(appeal from the RTC to whatever). These Rules are amicable Example: Motion to dismiss if granted – this is already final,
to the decisions of the trial court in the exercise of their not interlocutory so it can be appealed. If it is denied, it
original jurisdiction. cannot be appealed since the order denying it is merely
interlocutory. There is something yet that can be done.
As a general rule, MTC decisions are appealable to the RTC.
RTC decisions are appealable to the CA. What we will do is we Section 1 of Rule 41 also provides what cannot be appealed.
will discuss Rule 40, 41 and 44 at the same time so that we These are the matters that cannot be appealed.
can save time. § An order denying a motion for new trial or
reconsideration (already removed from the list)
What can be appealed? o Removed by AM 07-‐7-‐12-‐SC 60 . Let’s say we
have a case for accion publiciana. Before the
RULE 41: Section 1. Subject of appeal. — An appeal may be 15-‐day period lapsed, the losing party D filed a
taken from a judgment or final order that completely motion for reconsideration. If the MR is
disposes of the case, or of a particular matter therein when denied, according to the old R41 S1a, you
declared by these Rules to be appealable. cannot appeal the denial. What you can
No appeal may be taken from: appeal is the judgment na mismo on the case.
(a) An order denying a motion for new trial or That was before. But now… This is removed
reconsideration; so that the issues regarding the denial of the
(b) An order denying a petition for relief or any MR or MNT could still be included in the
similar motion seeking relief from judgment; appeal of the judgment itself.
(c) An interlocutory order; § An order denying a petition for relief or any similar
(d) An order disallowing or dismissing an appeal; motion seeking relief from judgment
(e) An order denying a motion to set aside a o Why does one file a petition for relief?
judgment by consent, confession or compromise on the Because he was not able to appeal or was
ground of fraud, mistake or duress, or any other ground not able to avail of the remedies available
vitiating consent; because of FAME. Here, the losing party file
(f) An order of execution; a petition for relief and it was denied. Can he
(g) A judgment or final order for or against one or appeal the denial? No. Can he appeal the
more of several parties or in separate claims, counterclaims, original judgment? No kasi lumampas na ang
cross-‐claims and third-‐party complaints, while the main case 15-‐day period to appeal.
is pending, unless the court allows an appeal therefrom; and o Example: D was declared in default. Can he
(h) An order dismissing an action without prejudice. appeal the judgment of default? Yes, as long
In all the above instances where the judgment or as it is filed within the 15-‐day period. Let’s
final order is not appealable, the aggrieved party may file an say he was able to file a motion to set aside
appropriate special civil action under Rule 65. (n) the order of default before the judgment?

Section 1 of Rule 41 tells us what may be appealed. What may 60
Amendment to Rules 41, 45, 58 and 65 of the Rules of Court, December 27, 2007
be appealed is a judgment or a final order that completely (Removes Section 1A and amended the last paragraph to: In any of the foregoing
circumstances, the aggrieved party may file an appropriate special civil action as
disposes of the case. Under Section 39, we were talking provided in Rule 65)


Can the denial of the motion to set aside the motion for execution pending appeal? No,
order of default be appealed? No. What can under Section 1f.
he appeal? The judgment by default. § A judgment or final order for or against one or more
§ An interlocutory order of several parties or in separate claims,
§ An order disallowing or dismissing an appeal counterclaims, cross-‐claims and third-‐party
o Rule 38, Section 2. Yung mga filed out of complaints, while the main case is pending, unless
time. Let’s say we have D who lost in the the court allows an appeal therefrom
RTC. Then, he was not able to appeal within o Example: RTC rendered a partial summary
the 15-‐day period. Let’s say two days late judgment. It falls under Section 2 of Rule 39.
ang appeal niya. I already mentioned to you The D claims that the said judgment is
that the first appeal is a matter of right. The appealable because of Rule 36 where the
RTC has the power to dismiss the appeal court allows an appeal therefrom. The issue
that the appeal was filed out of time. Can is: WON it is appealable. According to the
the order of the RTC dismissing or denying SC, no. It is not covered by Rule 36 but by
the appeal be appealed? No under Rule 41, Rule 35 (summary judgment). There is no
Section 1d. But one can file a petition for appeal because it is merely interlocutory. If
relief from denial of appeal under Rule 38, the judgment is partial, it is not covered by
Section 2. Rule 36 but by Rule 35. Therefore, it cannot
§ An order denying a motion to set aside a judgment be appealed. (Province of Pangasinan case)
by consent, confession or compromise on the § An order dismissing an action without prejudice
ground of fraud, mistake or duress, or any other o Remember Rule 17, Section 2 – that is
ground vitiating consent without prejudice. Even when you file a
o These kinds of judgments were entered motion to dismiss, and the court will
because of the fact that the parties agreed dismiss, normally, without prejudice yan.
to settle. There is really no discussion into Can you appeal that? If you are the P, let’s
the merits of the case. So what do you say na-‐dismiss yung complaint mo for
question? When you appeal, you are saying improper venue, can you appeal that? No. Of
that the court erred, etc. So how can you course, what you need to do is to file a new
say that the court erred if it is the parties case and go to the proper venue. You have
which entered into an agreement. So the to re-‐file. Don’t appeal that – you are just
said judgments cannot be appealed. But disturbing the CA for bringing the legal
they can be set aside on the ground of question.
fraud, mistake, duress or other ground
vitiating consent. What is the general remedy if you cannot appeal a certain
o If the court denies the motion to set aside matter? According to the last sentence:
the judgments by consent, confession or “In all the above instances where the judgment or final order
compromise, can that denial be appealed? is not appealable, the aggrieved party may file an appropriate
Again, the answer is no. What can be filed if special civil action under Rule 65.”
the court refuses to set aside such
judgments? One can file a petition for The most popular is certiorari on the ground of grave abuse
annulment of judgment under Rule 47 which of discretion amounting to lack or excess of jurisdiction on
we will take up. the part of the court which renders the judgment.
§ An order of execution
o The winning party files a motion for the RULE 40: Section 9. Applicability of Rule 41. — The other
issuance of the writ of execution. A writ of provisions of Rule 41 shall apply to appeals provided for
execution was issued by the court. Can you herein insofar as they are not inconsistent with or may serve
appeal that? Of course no. There is already a to supplement the provisions of this Rule. (n)
final and executory judgment.
o What about execution pending appeal? In other words, it’s the same procedure. You appeal from the
Where one files a motion for execution for MTC to the RTC. Or if you appeal from the RTC to the CA. In
good reasons? And it was granted. Can you the exercise of their original jurisdictions.
appeal that order of the court granting the
Let’s now go to the comparisons.


taken within fifteen (15) days after notice to the appellant of
RULE 40: Section 1. Where to appeal. — An appeal from a the judgment or final order appealed from. Where a record
judgment or final order of a Municipal Trial Court may be on appeal is required, the appellant shall file a notice of
taken to the Regional Trial Court exercising jurisdiction over appeal and a record on appeal within thirty (30) days after
the area to which the former pertains. The title of the case notice of the judgment or final order.
shall remain as it was in the court of origin, but the party The period of appeal shall be interrupted by a
appealing the case shall be further referred to as the timely motion for new trial or reconsideration. No motion
appellant and the adverse party as the appellee. (a) for extension of time to file a motion for new trial or
reconsideration shall be allowed. (n)
RULE 41: Section 2. Modes of appeal. —
(a) Ordinary appeal. — The appeal to the Court of RULE 41: Section 3. Period of ordinary appeal. — The appeal
Appeals in cases decided by the Regional Trial Court in the shall be taken within fifteen (15) days from notice of the
exercise of its original jurisdiction shall be taken by filing a judgment or final order appealed from. Where a record on
notice of appeal with the court which rendered the appeal is required, the appellant shall file a notice of appeal
judgment or final order appealed from and serving a copy and a record on appeal within thirty (30) days from notice of
thereof upon the adverse party. No record on appeal shall the judgment or final order.
be required except in special proceedings and other cases of The period of appeal shall be interrupted by a
multiple or separate appeals where law on these Rules so timely motion for new trial or reconsideration. No motion
require. In such cases, the record on appeal shall be filed and for extension of time to file a motion for new trial or
served in like manner. reconsideration shall be allowed. (n)
(b) Petition for review. — The appeal to the Court
of Appeals in cases decided by the Regional Trial Court in the What is the period to appeal? 15 days from the notice of the
exercise of its appellate jurisdiction shall be by petition for judgment. If you look at the provision, it is taken from BP 129,
review in accordance with Rule 42. Section 39.
(c) Appeal by certiorari. — In all cases where only BP 129: Section 39. Appeals. – The period for appeal
questions of law are raised or involved, the appeal shall be from final orders, resolutions, awards, judgments, or
to the Supreme Court by petition for review on certiorari in decisions of any court in all cases shall be fifteen (15)
accordance with the Rule 45. (n) days counted from the notice of the final order,
resolution, award, judgment, or decision appealed
AS TO WHERE TO APPEAL: from: Provided however, That in habeas corpus
cases, the period for appeal shall be forty-‐eight (48)
Under Rule 40, Section 1, if the MTC renders judgment, where hours from the notice of the judgment appealed
do you appeal? To the RTC. That “where to appeal” is from.
different from “where you file the notice of appeal.” No record on appeal shall be required to
take an appeal. In lieu thereof, the entire record shall
Under Rule 41, Section 2, if the RTC renders judgment in the be transmitted with all the pages prominently
exercise of its original jurisdiction, the appellate court is the numbered consecutively, together with an index of
CA. the contents thereof.
This section shall not apply in appeals in
AS TO THE TITLE OF THE CASE: special proceedings and in other cases wherein
multiple appeals are allowed under applicable
Under Rule 40, Section 1, the title of the case is the same. For provisions of the Rules of Court.
example, if it is X vs. Y in the MTC, when it reaches the RTC on
appeal, it is still X vs. Y. If it is a special proceeding, 30 days because you are required
to file not only a notice of appeal but also a record of appeal
Under Rule 41, Section 2, Same with RTC. If it is X vs. Y in the which is more difficult to make. In habeas corpus
RTC and when you go to the CA, the parties are still X vs. Y. proceedings, the period to appeal is 48 hours.
The title of the case is still the same. However, the
designation of the parties is already different. The appealing This is the provision that tells us what RTC to appeal to. RTCs
party is the appellant and the adverse party is one who is not shall exercise appellate jurisdiction over all cases decided by
appealing. So same for both sections. the MTCs in their respective territorial jurisdictions.
BP 129: Section 22. Appellate jurisdiction. – Regional
RULE 40: Section 2. When to appeal. — An appeal may be Trial Courts shall exercise appellate jurisdiction over


all cases decided by Metropolitan Trial Courts,
Municipal Trial Courts, and Municipal Circuit Trial RULE 40: Section 3. How to appeal. — The appeal is taken by
Courts in their respective territorial jurisdictions. filing a notice of appeal with the court that rendered the
Such cases shall be decided on the basis of the entire judgment or final order appealed from. The notice of appeal
record of the proceedings had in the court of origin shall indicate the parties to the appeal, the judgment or final
and such memoranda and/or briefs as may be order or part thereof appealed from, and state the material
submitted by the parties or required by the Regional dates showing the timeliness of the appeal.
Trial Courts. The decision of the Regional Trial Courts A record on appeal shall be required only in special
in such cases shall be appealable by petition for proceedings and in other cases of multiple or separate
review to the Court of Appeals which may give it due appeals.
course only when the petition shows prima facie that The form and contents of the record on appeal shall
the lower court has committed an error of fact or be as provided in section 6, Rule 41.Copies of the notice of
law that will warrant a reversal or modification of the appeal, and the record on appeal where required, shall be
decision or judgment sought to be reviewed. served on the adverse party. (n)

AS TO WHEN TO APPEAL: Check Rule 41, Section 2 in the previous page.

When to appeal, the same pa rin. AS TO WHAT TO INDICATE INTO THE NOTICE OF APPEAL:

Under Rule 40, Section 2, 15 days and 30 days. Under Rule 41, The same for both rules.
Section 3, the same. It’s just that in Rule 41, they included the
48 hours. That’s also applicable to MTC and RTC. What is the RULE 41: Section 5. Notice of appeal. — The notice of appeal
reckoning period to count the 15 days? After notice to the shall indicate the parties to the appeal, specify the judgment
appellant of the judgment or final order appealed from. or final order or part thereof appealed from, specify the
court to which the appeal is being taken, and state the
Is the period to appeal interrupted by the filing of the MR or material dates showing the timeliness of the appeal. (4a)
MNT? According to the provisions, yes. The balance will
remain. But we already know that under the fresh period Check Rule 40, Section 3 paragraph `1 in the left column of
rule, there is a fresh 15 years from the receipt of the denial of this page.
the MR or MNT.
Notice of appeal is really very simple. If you can see the
Can you file a motion for extension of time to file a notice of illustrations in your TSN, you can understand them better.
appeal? The provisions say: No motion for extension of time
to file a motion for new trial or reconsideration shall be *Reads text from the LA TSN* (Please check)
allowed (last paragraph of R40 S2 and R41 S3). In other
words, if you want to file MR of MNT, you have to file it What is this “material dates”? Why do you have to have to
within the 15 day period. There is no motion for extension of put the material dates? That is what you call the material data
time. rule. You have to put the material dates – when did you
receive the judgment of final order. The period to appeal will
AS TO MODE OF APPEAL: be counted from there. If you file your notice of appeal
beyond the period, then makita ng RTC na lapas na, it will be
Under Rule 40, notice of appeal, the same with Rule 41. dismissed for the reason that it was filed out of time. So you
Because again, as I already mentioned, the first appeal is a should always put the material days.
matter of right. You are informing or notifying the court that
you are appealing its judgment to an appellate court. Can you lie that you did not receive the judgment or order?
No. When the service is personal, you have to sign and put
AS TO WHERE TO FILE THE NOTICE OF APPEAL: the date. If by registered mail, may signature pa rin there
diba. It will be recorded in the post office.
Under Rule 40, Section 3, to the court which rendered the
judgment or final order appealed from. Same with Rule 41, AS TO RECORD ON APPEAL:
Section 2. So if the RTC is the one that rendered the
judgment, you file the notice of appeal there. If MTC, then sa What is a record on appeal? It is required in other cases of
MTC. multiple or separate appeals. Yung may mga partial


judgments, etc., there are still some issues that are to be appealed from the full amount of the appellate court docket
threshed out in the RTC. If you want to appeal a partial and other lawful fees.
judgment, you can appeal under Rule 36. The problem is the
records of the case cannot be transmitted to the appellate What must be transmitted to the appellate court? Present
court. There is no more trial in the appellate court, it will only proof of payment. Otherwise, the CA will not accept it.
look into the records and determine whether or not the
decision of the RTC will be reversed, set aside, affirmed or The issue in the case of Santos is: Does the failure to pay the
modify. Now if you are going to appeal a partial judgment appellate fee automatically cause the dismissal of the appeal
and the rest of the issues are being tackled in the RTC, then filed to the RTC? According to the SC, the payment of
what will the appellate court read, diba? So you have to appellate fees is found in Section 8, Rule 141 but that only
submit or file a record on appeal. Meaning, you have to requirement is xxx. According to the court:
summarize for the appellate court what you are appealing “Section 21 of the Interim Rules and Guidelines also
(the particular judgment that you are appealing). That is the provides for the procedure to be followed after the
record why when the record of appeal is required, the perfection of the appeal to the regional trial courts.
appellant is given 30 days to prepare the record on appeal. Nothing is stated therein about the payment of
Not the 15-‐days for notice of appeal. appellate docket fees.

If you file a notice of appeal and the record on appeal, you Under the Interim Rules and Guidelines, the payment
have to serve on the adverse party. You have to inform the of the appeal fee is not a prerequisite for the
other party that you are appealing. perfection of an appeal. On the other hand, while
Section 8, Rule 141 of the Revised Rules of Court
AS TO PAYMENT OF DOCKET FEES: imposes an appeal fee in cases of appeals from the
municipal trial courts and specifies the persons to
Do you have to pay docket fees? You have to pay the docket whom the appeal fee shall be paid, said provision
fees dun sa trial court which rendered the appeal within the does not specify when said payment shall be made.”
period to appeal. Bayad ka right away. Hindi pwede na to-‐
follow. How do you reconcile the ruling with Rule 40? It does not
automatically result in the dismissal of the appeal, unless it
RULE 40: Section 5. Appellate court docket and other lawful affects the jurisdiction. In other words, you can make
fees. — Within the period for taking an appeal, the appellant pahabol your appellate docket fees even after the period for
shall pay to the clerk of the court which rendered the taking for appeal (15 day). That is the doctrine in Santos vs.
judgment or final order appealed from the full amount of CA. According to the comment, this ruling is still applicable.
the appellate court docket and other lawful fees. Proof of Even if there is a provision under Section 5 of Rule 40, the
payment thereof shall be transmitted to the appellate court failure to pay the fees do not ipso facto cause the dismissal of
together with the original record or the record on appeal, as the appeal.
the case may be. (n)
What is the effect if you do not pay your appellate docket
RULE 41: Section 4. Appellate court docket and other lawful fees? The clerk of court of the MTC may refuse to transmit
fees. — Within the period for taking an appeal, the appellant the record to the RTC. There is no dismissal, only refusal to
shall pay to the clerk of the court which rendered the transmit.
judgment or final order appealed from, the full amount of
the appellate court docket and other lawful fees. Proof of What about Rule 41, Section 4? If you look at this section, it is
payment of said fees shall be transmitted to the appellate exactly the same with Rule 40, Section 5. BUT the effect is
court together with the original record or the record on different. Under Rule 41, if you do not pay the appellate
appeal. (n) docket fees provided within the 15-‐day period, it will be a
ground to dismiss. In other words, sa MTC, if you file your
Unfortunately, there is an issue with respect to those two notice of appeal there, the MTC only has one ground to
conditions because of the doctrine in Santos vs. CA61 (1996). dismiss and that is “failure to file an appeal on time.”
Section 5 of Rule 40 clearly provides that within the period However, sa RTC, there are two grounds: “filed out of time”
for taking an appeal, the appellant shall pay to the clerk of and “no payment of appellate docket fees.”
the court which rendered the judgment or final order
What is the reason why the rule is different under Rule 41?

61
Because of Rule 50, Section 1 which says:
G.R. No. 114726, February 14, 1996


Section 1. Grounds for dismissal of appeal. — An
appeal may be dismissed by the Court of Appeals, on What else? The transcripts and the exhibits. The clerk of court
its own motion or on that of the appellee, on the will also certify that they are complete. The clerk of court will
following grounds: inform the parties that the records have already been
x x x transmitted to the CA.
(c) Failure of the appellant to pay the docket
and other lawful fees as provided in section 5, Rule RULE 41: Section 10. Duty of clerk of court of the lower court
40 and section 4 of Rule 41; (Bar Matter No. 803, 17 upon perfection of appeal. — Within thirty (30) days after
February 1998) perfection of all the appeals in accordance with the
preceding section, it shall be the duty of the clerk of court of
But according to Rule 50, it is the CA which can dismiss. Read the lower court:
LA TSN for the reason according to Dean. (a) To verify the correctness of the original record
or the record on appeal, as the case may be aid to make
Definitely, if you read the cases, in the 2005 case of Enriquez certification of its correctness;
vs. Enriquez62, the SC said that payment of the docket fee (b) To verify the completeness of the records that
within the period provided is a condition sine qua non to the will be, transmitted to the appellate court;
perfection of an appeal. It is not a mere technicality. It is an (c) If found to be incomplete, to take such measures
essential requirement. as may be required to complete the records, availing of the
authority that he or the court may exercise for this purpose;
However, in the case of Camposagrado vs. Camposagrado63 and(d) To transmit the records to the appellate court.
(2005), the SC said that: “A party’s failure to pay the If the efforts to complete the records fail, he shall
appellate court docket fee within the reglementary period indicate in his letter of transmittal the exhibits or transcripts
confers only a discretionary and not a mandatory power to not included in the records being transmitted to the
dismiss the proposed appeal.” appellate court, the reasons for their non-‐transmittal, and
the steps taken or that could be taken to have them
So, in other words, it can be this (Enriquez case) or it can be available.
that (Camposgrado case). Just take note of the difference of The clerk of court shall furnish the parties with
the treatment of the two provisions. copies of his letter of transmittal of the records to the
appellate court. (10a)
RULE 40: Section 4. Perfection of appeal; effect thereof. —
The perfection of the appeal and the effect thereof shall be Within 30 days after perfection of all the appeals, it shall be
governed by the provisions of section 9, Rule 41. (n) the duty of the clerk of court of RTC to:
(a) To verify the correctness of the original record or
AS TO WHAT HAPPENS AFTER PERFECTION OF APPEAL: the record on appeal and make certification of correctness
(b) To verify the completeness of the records that
RULE 40: Section 6. Duty of the clerk of court. — Within will be, transmitted to the appellate court
fifteen (15) days from the perfection of the appeal, the clerk So not only the correctness but also its completeness
of court or the branch clerk of court of the lower court shall
transmit the original record or the record on appeal, What if records are incomplete? If found to be incomplete, to
together with the transcripts and exhibits, which he shall take such measures as may be required to complete the
certify as complete, to the proper Regional Trial Court. A records, availing of the authority that he or the court may
copy of his letter of transmittal of the records to the exercise for this purpose.
appellate court shall be furnished the parties. (n)
What will happen after? Transmit na the records to the
Upon perfection of the appeal, what happens? The clerk of appellate court (CA).
court within 15 days shall transmit the original record or the
record on appeal. Take note that the record on appeal is filed For the details, we have (basahin niyo nalang but we don’t
on the court which rendered the judgment and it is the clerk have to dwell on these):
of that court which will transmit it to the RTC.
RULE 41: Section 11. Transcript. — Upon the perfection of the
appeal, the clerk shall immediately direct the stenographers
concerned to attach to the record of the case five (5) copies
62
G.R. No. 139303, August 25, 2005 of the transcripts of the testimonial evidence referred to in
63
G.R. No. 143195, September 13, 2005


the record on appeal. The stenographers concerned shall court of the RTC shall notify the parties that it already
transcribe such testimonial evidence and shall prepare and received the record.
affix to their transcripts an index containing the names of
the witnesses and the pages wherein their testimonies are Take note that under Section 7, the appellant, within 15 days
found, and a list of the exhibits and the pages wherein each from such notice, shall submit a memorandum which shall
of them appears to have been offered and admitted or briefly discuss the errors imputed to the MTC. When you file
rejected by the trial court. The transcripts shall be an appeal, you are saying that the MTC erred in ruling in such
transmitted to the clerk of the trial court who shall way. Should you wait for the court to issue for an order to
thereupon arrange the same in the order in which the make the memorandum? No. You have 15 days from notice
witnesses testified at the trial, and shall cause the pages to that the RTC already received your record.
be numbered consecutively. (12a)
How about the appellee? It is optional as to him. The duty of
RULE 41: Section 12. Transmittal. — The clerk of the trial the appellant is to file the memorandum. Sa appellee, he can
court shall transmit to the appellate court the original file or he can opt not to file. The appellee there ahs the
record or the approved record on appeal within thirty (30) judgment of the MTC so yun na yung hawak hawak niya. If
days from the perfection of the appeal, together with the ako ang appellee, why would I bother to file diba? Eh anjan
proof of payment of the appellate court docket and other naman ang judgment.
lawful fees, a certified true copy of the minutes of the
proceedings, the order of approval, the certificate of What if the appellant fails to file a memorandum? That is a
correctness, the original documentary evidence referred to ground for dismissal of the appeal. We are now on the RTC
therein, and the original and three (3) copies of the kasi na-‐transmit na ang records. The RTC can dismiss on the
transcripts. Copies of the transcripts and certified true ground of failure to file the memorandum.
copies of the documentary evidence shall remain in the
lower court for the examination of the parties. (11a) When is an appeal deemed submitted for decision? Upon the
filing of the memorandum of the appellee, or the expiration
PROVISIONS THAT WERE NOT YET DISCUSSED: of the period to do so. The RTC judge is no longer acting as a
trial judge but as an appellate judge so it will just review the
The most controversial provision under Rule 40 is Section 8. records of the case, the record on appeal, as the case may be
Section 7 refers to the procedure. and the memorandum of the appellant or of the appellee if
he files.
RULE 40: Section 7. Procedure in the Regional Trial Court. —
(a) Upon receipt of the complete record or the What shall be the basis? The entire record of the proceedings
record on appeal, the clerk of court of the Regional Trial and such memoranda.
Court shall notify the parties of such fact.
(b) Within fifteen (15) days from such notice, it shall REVIEW: Rule 41 provides for the rules that govern appeals
be the duty of the appellant to submit a memorandum from the MTC, in the exercise of their original discretion, to
which shall briefly discuss the errors imputed to the lower the RTC. The appeal is a matter of right so that is why only a
court, a copy of which shall be furnished by him to the notice of appeal is required when you file an appeal. We also
adverse party. Within fifteen (15) days from receipt of the looked at record on appeal which is required in some cases
appellant's memorandum, the appellee may file his and in special proceedings. Most of the time, it’s just a notice
memorandum. Failure of the appellant to file a of appeal which must be filed within 15 days. For record on
memorandum shall be a ground for dismissal of the appeal. appeal, 30 days.
(c) Upon the filing of the memorandum of the
appellee, or the expiration of the period to do so, the case RULE 40: Section 8. Appeal from orders dismissing case
shall be considered submitted for decision. The Regional without trial; lack of jurisdiction. — If an appeal is taken
Trial Court shall decide the case on the basis of the entire from an order of the lower court dismissing the case
record of the proceedings had in the court of original and without a trial on the merits, the Regional Trial Court may
such memoranda as are filed. (n) affirm or reverse it, as the case may be. In case of affirmance
and the ground of dismissal is lack of jurisdiction over the
Upon receipt of the complete record or the record on appeal, subject matter, the Regional Trial Court, if it has jurisdiction
what should the clerk of the RTC do? Take note that the MTC thereover, shall try the case on the merits as if the case was
clerk of court will be the one who will transmit. The clerk of originally filed with it. In case of reversal, the case shall be
remanded for further proceedings.


If the case was tried on the merits by the lower § To determine whether the MTC has
court without jurisdiction over the subject matter, the jurisdiction
Regional Trial Court on appeal shall not dismiss the case if it § It will study the records again and
has original jurisdiction thereof, but shall decide the case in the memoranda and decide based
accordance with the preceding section, without prejudice to on it (Reason: There is already trial
the admission of amended pleadings and additional in the RTC. There is no need to go
evidence in the interest of justice. (n) to a new trial.)
o But if the RTC is not satisfied, it can allow
This section is only found in Rule 40. What is the situation in the amendment of the pleading and
section 8? We have the MTC rendering the decision. The submission of additional evidence in the
decision is appealed to the RTC: interest of justice
§ The MTC dismissed the case without trial on the
merits. Such dismissal is appealed with the MTC. RULE 40: Section 9. Applicability of Rule 41. — The other
(This is the general situation) provisions of Rule 41 shall apply to appeals provided for
o There is absolutely no trial on the merits. It herein insofar as they are not inconsistent with or may serve
was outrightly dismissed for lack of to supplement the provisions of this Rule. (n)
jurisdiction.
o Of course, the appellate court does not have Take note that Rule 41 is applicable to appeals from the MTC
to reverse or modify the MTC decision. It to the RTC.
has the option to affirm or reverse.
§ What does it mean if the case is dismissed without RULE 41: Section 2. Modes of appeal. —
trial on the merits? It means that nothing happened (a) Ordinary appeal. — The appeal to the Court of
in the MTC. Appeals in cases decided by the Regional Trial Court in the
o If the appeal is made with the RTC and it exercise of its original jurisdiction shall be taken by filing a
reverses the MTC decision, then there will notice of appeal with the court which rendered the
be trial in the MTC. It has the duty to judgment or final order appealed from and serving a copy
proceed with the trial. thereof upon the adverse party. No record on appeal shall
o If the RTC affirms the MTC ruling, then the be required except in special proceedings and other cases of
case is finished insofar as the MTC and RTC multiple or separate appeals where law on these Rules so
are concerned. Can that RTC decision be require. In such cases, the record on appeal shall be filed and
appealed with the CA? Yes, it is a final order. served in like manner.
§ There was trial on the merits and the MTC renders a (b) Petition for review. — The appeal to the Court
decision. The losing party appealed with the RTC on of Appeals in cases decided by the Regional Trial Court in the
the ground of lack of jurisdiction over the subject exercise of its appellate jurisdiction shall be by petition for
matter. review in accordance with Rule 42.
o If the RTC affirms the decision of the MTC, (c) Appeal by certiorari. — In all cases where only
then the MTC’s decision stands. This is when questions of law are raised or involved, the appeal shall be
the RTC affirms the jurisdiction of the MTC. to the Supreme Court by petition for review on certiorari in
There is nothing to discuss on the merits of accordance with the Rule 45. (n)
the case.
o Note: The whole process of the appeal must Ordinary appeal: Section 2 is only an enumeration of the
be complied with (section 7). modes of appeal from the RTC. What are the ways of
o On appeal, if the RTC reverses the decision appealing the RTC decision? According to Section 2, file a
of the MTC… like if it says na the action was notice of appeal with the RTC.
not a forcible entry case but an accion
publiciana so the jurisdiction is with the RTC. Petition for review: If the case is with the RTC in the exercise
Under section 8, if the jurisdiction belongs of its appellate decision and the decision of RTC is appealed,
to the RTC, it shall not dismiss but it will you do not file a notice of appeal because the decision was
decide the case based on the records. So rendered by the RTC not in the exercise of its original
meaning, as an appellate court. Remember, jurisdiction. The notice of appeal is no longer required. What
what was appealed was lack of jurisdiction is filed is a petition for review (to be discussed under Rule
of MTC. 42). The CA can dismiss that outright.
o The RTC will study the records twice:


The record of appeal requires that you attach the judgment
Appeal by certiorari: There are also times that RTC decisions or order that you are appealing from. You also include, in
can be appealed directly to the SC. Under letter C, this is what chronological order, copies of only such pleadings, petitions,
we call an appeal by certiorari which is different from petition motions and all interlocutory orders as are related to the
for certiorari. appealed judgment or final order for the proper
understanding of the issue involved. Dapat related ha to the
In all cases where only questions of law are raised or judgment that you are appealing from.You must also include
involved, the appeal shall be to the Supreme Court by the material dates: “together with such data as will show that
petition for review on certiorari in accordance with the Rule the appeal was perfected on time.”
45. The mode of appeal is petition for review on certiorari.
Rule 65 is petition for certiorari. “If an issue of fact is to be raised on appeal, the record on
appeal shall include by reference all the evidence, testimonial
What is the keyword on appeals? “Review.” An appeal is and documentary, taken upon the issue involved.”
when you are asking the higher or appellate court to review
the decision of the lower court, alleging that the said court You have to include the transcript of stenographic notes and
committed some errors in appreciating the facts or applying the evidence that you offered. You photocopy it and include
the law. But when we talk about Rule 65, this is not review. It it in the record of appeal.’
is an original action to determine whether or not the court
committed grave abuse of discretion amounting to lack or “The reference shall specify the documentary evidence by
excess of jurisdiction. the exhibit numbers or letters by which it was identified
when admitted or offered at the hearing and the testimonial
The procedure, we already looked at this. File and serve. evidence by the names of the corresponding witnesses.”

The fresh period rule applies on all appeals – Rules 40, 41, 42, You get the transcription from the trial court and attach it to
43, 44 and 45. your record of appeal.

RULE 41: Section 6. Record on appeal; form and contents “If the whole testimonial and documentary evidence in the
thereof. — The full names of all the parties to the case is to be included, a statement to that effect will be
proceedings shall be stated in the caption of the record on sufficient without mentioning the names of the witnesses or
appeal and it shall include the judgment or final order from the numbers or letters of exhibits.”
which the appeal is taken and, in chronological order, copies
of only such pleadings, petitions, motions and all You include everything. You do not have to specify that this is
interlocutory orders as are related to the appealed the testimony of witness A or B.
judgment or final order for the proper understanding of the
issue involved, together with such data as will show that the RULE 41: Section 7. Approval of record on appeal. — Upon
appeal was perfected on time. If an issue of fact is to be the filing of the record on appeal for approval and if no
raised on appeal, the record on appeal shall include by objection is filed by the appellee within five (5) days from
reference all the evidence, testimonial and documentary, receipt of a copy thereof, the trial court may approve it as
taken upon the issue involved. The reference shall specify presented or upon its own motion or at the instance of the
the documentary evidence by the exhibit numbers or letters appellee, may direct its amendment by the inclusion of any
by which it was identified when admitted or offered at the omitted matters which are deemed essential to the
hearing, and the testimonial evidence by the names of the determination of the issue of law or fact involved in the
corresponding witnesses. If the whole testimonial and appeal. If the trial court orders the amendment of the
documentary evidence in the case is to be included, a record, the appellant, within the time limited in the order, or
statement to that effect will be sufficient without such extension thereof as may be granted, or if no time is
mentioning the names of the witnesses or the numbers or fixed by the order within ten (10) days from receipt thereof,
letters of exhibits. Every record on appeal exceeding twenty shall redraft the record by including therein, in their proper
(20) pages must contain a subject index. (6a) chronological sequence, such additional matters as the court
may have directed him to incorporate, and shall thereupon
This applies to both MTC to RTC and RTC to CA. When is a submit the redrafted record for approval, upon notice to the
record on appeal required? What should the record on appeal appellee, in like manner as the original draft. (7a)
contain? What should you attach?
This is important.


o If the judgment was rendered in June 1 and
Let us say you already filed a record on appeal with all the the appellant files his notice of appeal in
attachments, what is the procedure? Where do you file the June 10, we do not need to wait for June 15
record of appeal? With the RTC. You must also furnish a before the appeal is deemed perfected.
record with the appellee. And the appellee will have a chance Even if he filed 10 days after the date, it is
to file his objection. Section 7 is what the RTC can do. also perfected as to him.
o But does the court automatically lose
*Only reads the provision* (Please refer with the LA TSN) jurisdiction over the case by the appeal of
the appellant? No. The court only loses
RULE 41: Section 8. Joint record on appeal. — Where both jurisdiction of the case upon:
parties are appellants, they may file a joint record on appeal § Perfection of the appeal
within the time fixed by section 3 of this Rule, or that fixed § Expiration of the period to appeal
by the court. (8a) o The appellee may appeal. If he does not file
a notice of appeal within the 15 day period
There are times when both the plaintiff and defendant are and it expires, that is the time that the court
not not happy with the decision rendered by the RTC. Both of will lose jurisdiction over the case.
them can appeal. They can file a joint record on appeal. o But I already told you that the 15 days period
for the appellant and appellee is not the
The record on appeal has to be approved by the trial court. It same. The day for which it will be counted
is the trial court who knows that it is sufficient in form and depends on when the party receives the
substance. order or judgment. (reckoned on the date
the party’s receipt of the J or FO).
RULE 41: Section 9. Perfection of appeal; effect thereof. — A § If what is required is a record on appeal, the appeal
party's appeal by notice of appeal is deemed perfected as to is deemed perfected upon the approval of the record
him upon the filing of the notice of appeal in due time. of the time to appeal.
A party's appeal by record on appeal is deemed o The court will lose jurisdiction thereof upon
perfected as to him with respect to the subject matter the approval of the records on appeal filed
thereof upon the approval of the record on appeal filed in in due time and the expiration of the appeal
due time. of the other parties.
In appeals by notice of appeal, the court loses o This time, baka nauna na ang expiration of
jurisdiction over the case upon the perfection of the appeals the time of the appellee because of the
filed in due time and the expiration of the time to appeal of amendment and re-‐drafting of the record on
the other parties. appeal.
In appeals by record on appeal, the court loses
jurisdiction only over the subject matter thereof upon the General rule: Once an appeal is deemed perfected from the
approval of the records on appeal filed in due time and the viewpoint of both sides, the RTC loses jurisdiction over the
expiration of the appeal of the other parties. case.
In either case, prior to the transmittal of the original
record or the record on appeal, the court may issue orders Jurisdiction is automatically transferred to the CA. Since RTC
for the protection and preservation of the rights of the loses jurisdiction, it has no right to do anything anymore. It is
parties which do not involve any matter litigated by the now the CA who has the right to decide or do whatever it is
appeal, approve compromises, permit appeals of indigent related to the case.
litigants, order execution pending appeal in accordance with
2 of Rule 39, and allow withdrawal of the appeal. (9a) Appeal is perfected upon the approval or filing. Perfected na
yan so meaning, it could happen that the appeal has already
N0te: This also applies to Rule 40. been perfected but the record is still there (with the RTC).
File muna, then perfection, then re-‐draft muna then approve
Let us say that the record on appeal was already approved. then transmission. So there is a gap between perfection and
When is the appeal deemed perfected? the transmission. During that time or gap, the RTC no longer
§ If what is only required is a notice of appeal, the has jurisdiction kasi na-‐perfect na yung appeal. But is there
appeal is deemed perfected as to the appellant upon still something that the RTC can do? Yes, this is what we call
the filing of the notice of appeal in due time. as the residual power of the court.


Exception: Residual powers of the RTC:
1. To issue orders for the protection and preservation
of the rights of the parties which do not involve in
any matter litigated in the appeal
2. To approve compromises between the parties
3. To permit appeals to indigent litigants
4. To order executions pending appeal in accordance
with Section 2 or Rule 39
There’s an appeal filed to the CA but there’s
a process pa so the records were not yet
transmitted to the CA. Where do you file
your motion for execution pending appeal?
With the RTC, before the transmission of the
records. The RTC still has the power to grant
the motion for execution pending appeal if
there are good reasons.
5. To allow withdrawal of the appeal
What if you want to review? You can file it
with the RTC kasi andun pa yung records.
6. The court can order the dismissal of an appeal under
Section 13, Rule 41.

N0w, what happens if the decision of the RTC is reversed and
there are more than one appellants but not all of them
appeal? According to one case, reversal of a decision
benefits only the party who appealed. Except when the
rights of the parties are so interwoven and dependent with
each other, such that it is inseparable, then the non-‐
appealing party may be benefited thereby. So this is similar
to criminal cases.

RULE 41: Section 13. Dismissal of appeal. — Prior to the
transmittal of the original record or the record on appeal to
the appellate court, the trial court may motu propio or on
motion dismiss the appeal for having been taken out of
time. (14a)

The trial court ha, may motu proprio or on motion, dismiss
the appeal. This is the ground for dismissal by the RTC.


Rule 44: ORDINARY APPEALED CASES documents and exhibits transmitted by the lower court, as
well as the proof of payment of the docket and other lawful

fees, the clerk of court of the Court of Appeals shall docket

the case and notify the parties thereof. (4a, R46)
Here, we are now in the CA.
Within ten (10) days from receipt of said notice, the

appellant, in appeals by record on appeal, shall file with the
Section 1. Title of cases. — In all cases appealed to the Court clerk of court seven (7) clearly legible copies of the
of Appeals under Rule 41, the title of the case shall remain as approved record on appeal, together with the proof of
it was in the court of origin, but the party appealing the case service of two (2) copies thereof upon the appellee.
shall be further referred to as the appellant and the adverse Any unauthorized alteration, omission or addition in
party as the appellee. (1a, R46) the approved record on appeal shall be a ground for
dismissal of the appeal. (n)
The title of the case is the same. But the parties are referred

to as appellee and appellant.
The transmittal is with the CA. The CA clerk of court has the
duty to inform the parties that the records have already been
Section 2. Counsel and guardians. — The counsel and transmitted to it. The CA will inform the parties – both the
guardians ad litem of the parties in the court of origin shall appellee and the appellant.
be respectively considered as their counsel and guardians ad
litem in the Court of Appeals. When others appear or are The appellant who filed the record on appeal has the copy of
appointed, notice thereof shall be served immediately on the order of transmittal issued by the CA…Count 10 days
the adverse party and filed with the court. (2a, R46) from that date, he must file the record on appeal. Remember,
the RTC already transmitted the record on appeal to the CA.
The lawyer in the RTC, he is automatically considered as the But he must also file the same record on appeal with the CA.
lawyer in the CA. File one original and two copies.

What if there is a new laywer or guardian? Notice thereof Ang nakalagay sa provision is 7 but we have AM 11-‐9-‐4-‐SC64
shall be served immediately on the adverse party and filed (November 2012) which is the efficient use of paper rule.
with the court. So you have to inform the court that you have
a new lawyer. You also need to inform the adverse party. Why does the appellant need to file a record of appeal? Para
ma-‐compare with one which is transmitted by the RTC. Any
Section 3. Order of transmittal of record. — If the original unauthorized alteration, omission or addition in the approved
record or the record on appeal is not transmitted to the record on appeal shall be a ground for dismissal of the
Court of Appeals within thirty (30) days after the perfection appeal. If the CA finds alteration, omission or addition, it will
of the appeal, either party may file a motion with the trial be a ground of the dismissal of the appeal.
court, with notice to the other, for the transmittal of such
record or record on appeal. (3a, R46) Section 5. Completion of record. — Where the record of the
docketed case is incomplete, the clerk of court of the Court
How long should the RTC wait before transmitting the of Appeals shall so inform said court and recommend to it
original record of the record on appeal? 30 days from measures necessary to complete the record. It shall be the
perfection. Upon perfection, the RTC only has 30 days to duty of said court to take appropriate action towards the
transmit the records to the CA. In other words, the record on completion of the record within the shortest possible time.
appeal filed with the RTC will also be filed with the CA. (n)

If it is not a record on appeal but only a notice of appeal, then What if the record in the appellate case, it was incomplete?
the entire records will be transmitted to the CA. How many What if the transcript of stenographic note was not
days are required for the transmittal for the appeals from the transmitted? The clerk of court shall inform the RTC. So the
MTC to the RTC? 15 days only. For RTC to CA, it’s 30 days. RTC must take the appropriate action.

Kung walang transmittal, the appellant or the appellee may Section 6. Dispensing with complete record. — Where the
file a motion for transmittal. completion of the record could not be accomplished within
a sufficient period allotted for said purpose due to
Section 4. Docketing of case. — Upon receiving the original
record or the record on appeal and the accompanying
64
Re: Proposed Rule for the Efficient Use of Paper, November 13, 2012


insuperable or extremely difficult causes, the court, on its
own motion or on motion of any of the parties, may declare Section 8. Appellee's brief. — Within forty-‐five (45) days
that the record and its accompanying transcripts and from receipt of the appellant's brief, the appellee shall file
exhibits so far available are sufficient to decide the issues with the court seven (7) copies of his legibly typewritten,
raised in the appeal, and shall issue an order explaining the mimeographed or printed brief, with proof of service of two
reasons for such declaration. (n) (2) copies thereof upon the appellant. (11a, R46)

What if the stenographer has already resigned and hindi na If you look at Section 8, it says “within 45 days from the
makita ang stenographic notes? That’s why we have Section receipt of the appellant's brief, the appellee shall file xxx”…
6. The situation is completion of the record could not be Although the provision says “shall,” most of the time, if the
accomplished due to insuperable or extremely difficult appeal is really hopeless in the sense that the appellant is
causes. appealing only for the sake of appealing so that the
execution of the judgment will be delayed, the appellee
What is the remedy? The CA may, motu proprio or on motion, needs to file an appellee’s brief.
declare that the record and its accompanying transcripts and
exhibits so far available are sufficient to decide the issues Section 9. Appellant's reply brief. — Within twenty (20) days
raised in the appeal. So sige nalang, they will just work on from receipt of the appellee's brief, the appellant may file a
what they have. The CA shall also issue an order explaining reply brief answering points in the appellee's brief not
the reasons for such declaration. covered in his main brief. (12a, R46)

Section 7. Appellant's brief. — It shall be the duty of the Dito, 20 days from the receipt of the appellee’s brief, optional
appellant to file with the court, within forty-‐five (45) days ang pag-‐file ni appellant ng appellant’s reply brief.
from receipt of the notice of the clerk that all the evidence,
oral and documentary, are attached to the record, seven (7) Section 10. Time of filing memoranda in special cases. — In
copies of his legibly typewritten, mimeographed or printed certiorari, prohibition, mandamus, quo warranto and habeas
brief, with proof of service of two (2) copies thereof upon corpus cases, the parties shall file in lieu of briefs, their
the appellee. (10a, R46) respective memoranda within a non-‐extendible period of
thirty (30) days from receipt of the notice issued by the clerk
Under Section 4, upon the receipt of the notice, the appellant that all the evidence, oral and documentary, is already
needs to file a record of appeal. So 10 days from the receipt, attached to the record. (13a, R46)
file a record of appeal. The appellant also needs to file an The failure of the appellant to file his memorandum
appellant’s brief. within the period therefor may be a ground for dismissal of
the appeal. (n)
Under Section 4, 10 days from notice. Under Section 7, 45
days from the same notice. Now, why is it 10 days to file a After that is done, look at Section 10. Why on earth it is here, I
record on appeal? Bakit 45 days sa appellant’s brief? have no idea.
*Discussion inaudible*
In certiorari, prohibition, mandamus, quo warranto and
Again, the requirement for 7 copies has already been habeas corpus cases (covered under Rule 65), file the
amended. memorandum with the CA within 30 days from the receipt of
the notice.
Yung requirements, dapat hindi hand-‐written. Also, you have
to present proof of service. Sometimes, the court is strikto so If you do not file within the period, it is a ground for dismissal.
they will require an affidavit of service.
Section 11. Several appellants or appellees or several counsel
Take note that this is one of the differences under Rule 40 for each party. — Where there are several appellants or
and Rule 41. Under Rule 40, memorandum ang requirement. appellees, each counsel representing one or more but not all
Under 41, it’s an appellant’s brief. If you notice, a of them shall be served with only one copy of the briefs.
memorandum does not have a specific form. Tama na ang When several counsel represent one appellant or appellee,
memorandum kasi RTC judge lang yan. Now here, you are copies of the brief may be served upon any of them. (14a,
dealing with the justices so you follow a certain form. This is R46)
the duty of the appellant. He must serve a copy on the
appellee. Section 12. Extension of time for filing briefs. — Extension of


time for the filing of briefs will not be allowed, except for following:
good and sufficient cause, and only if the motion for (a) A subject index of the matter in the brief with a
extension is filed before the expiration of the time sought to digest of the arguments and page references, and a table of
be extended. (15, R46) cases alphabetically arranged, textbooks and statutes cited
with references to the pages where they are cited;
Can you file a motion for the extension of time to file an (b) Under the heading "Statement of Facts," the
appellee’s brief or appellant’s brief? As a general rule, no. But appellee shall state that he accepts the statement of facts in
the actual practice is that yes. Lawyers usually file a motion the appellant's brief, or under the heading "Counter-‐
kasi mahirap mag-‐draft ng briefs talaga. Exception is when Statement of Facts," he shall point out such insufficiencies
you have good and sufficient cause. or inaccuracies as he believes exist in the appellant's
statement of facts with references to the pages of the
However, remember that the motion for extension to file record in support thereof, but without repetition of matters
must be filed before the expiration of period. For example sa in the appellant's statement of facts; and
appellant, file the motion on the 40th day or before the 45 (c) Under the heading "Argument," the appellee
days and not on the 47th day. shall set forth his arguments in the case on each assignment
of error with page references to the record. The authorities
Section 13. Contents of appellant's brief. — The appellant's relied on shall be cited by the page of the report at which
brief shall contain, in the order herein indicated, the the case begins and the page of the report on which the
following: citation is found. (17a, R46)
(a) A subject index of the matter in the brief with a
digest of the arguments and page references, and a table of Contents of an appellant’s brief:
cases alphabetically arranged, textbooks and statutes cited § Subject index: A subject index of the matter in the
with references to the pages where they are cited; brief with a digest of the arguments and page
(b) An assignment of errors intended to be urged, references, and a table of cases alphabetically
which errors shall be separately, distinctly and concisely arranged, textbooks and statutes cited with
stated without repetition and numbered consecutively; references to the pages where they are cited
(c) Under the heading "Statement of the Case," a o So yung may table of contents. Yung mga i-‐
clear and concise statement of the nature of the action, a cite mo in your favor.
summary of the proceedings, the appealed rulings and § Assignment of errors: An assignment of errors
orders of the court, the nature of the judgment and any intended to be urged, which errors shall be
other matters necessary to an understanding of the nature separately, distinctly and concisely stated without
of the controversy with page references to the record; repetition and numbered consecutively
(d) Under the heading "Statement of Facts," a clear o What are the errors of the trial court? That’s
and concise statement in a narrative form of the facts why if you notice in your SC cases, the errors
admitted by both parties and of those in controversy, are specific and well-‐numbered.
together with the substance of the proof relating thereto in § Statement of the case: a clear and concise statement
sufficient detail to make it clearly intelligible, with page of the nature of the action, a summary of the
references to the record; proceedings, the appealed rulings and orders of the
(e) A clear and concise statement of the issues of court, the nature of the judgment and any other
fact or law to be submitted, to the court for its judgment; matters necessary to an understanding of the nature
(f) Under the heading "Argument," the appellant's of the controversy with page references to the
arguments on each assignment of error with page record
references to the record. The authorities relied upon shall be o This is not talking about the facts ha but of
cited by the page of the report at which the case begins and the case. So you tell the court that you file
the page of the report on which the citation is found; this case and then the RTC ruled this way,
(g) Under the heading "Relief," a specification of that you know the RTC erred, etc.
the order or judgment which the appellant seeks; and § Statement of facts: a clear and concise statement in
(h) In cases not brought up by record on appeal, the a narrative form of the facts admitted by both
appellant's brief shall contain, as an appendix, a copy of the parties and of those in controversy, together with
judgment or final order appealed from. (16a, R46) the substance of the proof relating thereto in
sufficient detail to make it clearly intelligible, with
Section 14. Contents of appellee's brief. — The appellee's page references to the record
brief shall contain, in the order herein indicated the o Here, you will tell the story in a narrative


form all the facts of the parties. You also shall set forth his arguments in the case on each assignment
include proof to support your story. of error with page references to the record. The authorities
§ Issues: A clear and concise statement of the issues of relied on shall be cited by the page of the report at which
fact or law to be submitted, to the court for its the case begins and the page of the report on which the
judgment citation is found. (17a, R46)
o Then, you have statement of the issues. So
what do you want the court to decide on? If you are an appellee, these are what you need to include in
o Issues: WON the RTC erred in rendering your appellee’s brief:
judgment in favor of the defendant. WON § Subject index
the RTC erred in awarding damages in favor § Statement of the facts
of defendant. WON RTC erred in awarding § Arguments (Counter-‐statement of the facts)
attorney’s fees.
§ Argument/s: the appellant's arguments on each Section 15. Questions that may be raised on appeal.
assignment of error with page references to the Whether or not the appellant has filed a motion for new trial
record. The authorities relied upon shall be cited by in the court below he may include in his assignment of
the page of the report at which the case begins and errors any question of law or fact that has been raised in the
the page of the report on which the citation is found court below and which is within the issues framed by the
o So you refer to your issues and argue one by parties. (18, R46)
one. Yung argument, specific for one issue.
§ Relief: a specification of the order or judgment What are the questions that may be raised on appeal? Any
which the appellant seek question of law or fact that has been raised in the court
o State what you are asking from the court. below and which is within the issues framed by the parties.
Like you say that you pray for the reversal of
the judgment of the RTC and the award of Do not include an issue which was not raised in the RTC. This
damages in the form of this and that, etc. is whether or not the appellant has filed a motion for new
trial in the court.
In cases not brought up by record on appeal, the appellant's
brief shall contain, as an appendix, a copy of the judgment or RULE 40 CASES
final order appealed from.
& Spouses Badillo vs. Judge Tayag65 (2003): This case
In other words, even if you file your record on appeal, you affirmed the ruling in the case of Santos vs. CA66 and
still need to file your brief. But if you file a record on appeal, Fontanar vs. Bonsubre 67 . It is required that the
you no longer need to attach the copy of the judgment or docket fees must be paid within the reglementary
final order appealed from. But if you file a notice on appeal, period. However, it is not a ground for dismissal. The
you attach a copy of the judgment or final order that you are SC said here: “It holds that in appeals from the MTC
appealing, to your appellant’s brief. to the RTC, failure to pay the appellate docket fee
within the fifteen-‐day reglementary period bestows
Section 14. Contents of appellee's brief. — The appellee's on the appellate court a directory, not a mandatory,
brief shall contain, in the order herein indicated the power to dismiss an appeal."
following: The court also said: “On the other hand, the
(a) A subject index of the matter in the brief with a cases cited by spouses Badillo involve appeals -‐-‐ not
digest of the arguments and page references, and a table of from the MTC to the RTC -‐-‐ but from the RTC to the
cases alphabetically arranged, textbooks and statutes cited CA and from the CA to the SC, for which the payment
with references to the pages where they are cited; of appellate fees is indeed mandatory according to
(b) Under the heading "Statement of Facts," the the Rules.”
appellee shall state that he accepts the statement of facts in
the appellant's brief, or under the heading "Counter-‐ & Uy vs. Atty. Tansinsin68 (2009): Remember, this is
Statement of Facts," he shall point out such insufficiencies already in the RTC – the appellate court. If the
or inaccuracies as he believes exist in the appellant's appellant does not file his memorandum on appeal
statement of facts with references to the pages of the
record in support thereof, but without repetition of matters
65
Gr. No. 143976, April 3, 2003
in the appellant's statement of facts; and 66
G.R. No. 114726, February 14, 1996
(c) Under the heading "Argument," the appellee 67
68
145 SCRA 663, November 25, 1986
AC 8252, July 21, 2009


within the 15-‐day period, the RTC can dismiss is a final order; hence, the same may be appealed,
outright. The basis for deciding the appealed case is for the said matter is clearly declared by the rules as
the entire record under Section 5. You don’t have to appealable and the proscription does not apply.
wait for the RTC order to file your memorandum. The A final order is one that disposes of the
provision says “within 15 days from the receipt of the subject matter in its entirety or terminates a
notice”, it is the duty of the appellant. particular proceeding or action, leaving nothing else
to be done but to enforce by execution what has
& Estate of Macadangdang vs. Gaviola 69 (2009): been determined by the court, while an interlocutory
Imagine, if the case would be dismissed, who shall order is one which does not dispose of the case
suffer? Is it the lawyer? Of course, the appellant – the completely but leaves something to be decided
one who lost the case in the MTC. But the SC said upon. [Taken from the full text of the case]
that failure to file an appellant’s brief, or a
memorandum in this case, would qualify as simple & Reterta vs. Mores 73 (2011): An order granting a
negligence and not a gross negligence. It could have motion to dismiss is definitely a final order. The court
been prevented by respondents’ counsel if he only is saying na i-‐dismiss na ang case. So the appeal is a
acted with ordinary diligence and prudence in proper remedy.
handling the case. The negligence here of the lawyer
binds his client. & Ko vs. PNB74 (2006): Look at Section 2C of Rule 41,
you can file the petition for review on certiorari
RULE 41 CASES directly with the Supreme Court. You can only go
straight to the SC, under Rule 45, if you are rasising
& Tolentino vs. Natanauan70 (2003): Why is the order pure questions of law’ not factual issues. If factual
denying the motion to dismiss not appealable? It’s an issues, you apply ordinary appeal.
interlocutory order. You cannot appeal it because
there is still something left for the court to do. Why & Municipality of Pateros vs. CA75 (2009): This is an
is certiorari not the proper remedy here? You will example of a pure question of law. It is not factual at
learn that under Rule 65. What should he do? Finish all and therefore, it is required under Section 2 of
the case. Allow the RTC to render a judgment. If the Rule 41 that the appeal be made directly with the SC
judgment is against him, he will file an appeal of the via petition for review for certiorari under Rule 45. Sa
RTC decision and not the order denying his motion to CA, pwede question of fact and law.
dismiss.
& Vios vs. Patangco 76 (2009): Before you file the
& Trust International vs. Pelaez71 (2006): Is a petition petition for certiorari, mandamus, judicial partition,
for review on certiorari an appeal? Yes, you are etc… everything you file in court is decided by the
asking the court to review the decision of another court. When the court decides on what you filed,
court. Here, the party is seeking for the review of the that is a judgment or order. The petition for
decision of the RTC denying his petition for review certiorari in this case was decided by the lower court.
on certiorari. Why is not the correct remedy? The Such denial, which is a final order, may be appealed
motion that was filed by the party here is one that of.
falls “an order denying a petition for relief or any
similar motion seeking relief from judgment” which & Atty. Sarsaba vs. Vda. De Te77 (2009): How do you
is not appealable under Rule 1, Section 1. Here, what distinguish a question of law from a question of fact.
he is appealing is not appealable. In this case, the questions raised were questions of
law. The SC said: “There is a “question of law” when
& Silverio vs. CA72 (2009): To our mind, the court a the doubt or difference arises as to what the law is
quo’s ruling clearly constitutes a final determination on certain state of facts, and which does not call for
of the rights of the petitioner as the appealing party. an examination of the probative value of the
As such, the Omnibus Order, dated May 31, 2002 (the evidence presented by the parties-‐litigants. On the
predecessor of the Order dated December 12, 2002)

69
73
74
Gr. No. 159941, August 17, 2011
Gr. No. 156809, March 4, 2009 Gr. No. 169131, January 20, 2006
70 75
Gr. No. 135441, November 20, 2003 Gr. No. 157714, June 16, 2009
71 76
Gr. No. 164871, August 22, 2006 Gr. NO. 163103, February 6, 2009
72 77
Gr. No. 178933, September 16, 2009 Gr. No. 175910, July 30, 2009


other hand, there is a “question of fact” when the is the CA that can dismiss. But jurisprudence is telling
doubt or controversy arises as to the truth or falsity us that RTC can dismiss. (?)
of the alleged facts. Simply put, when there is no
dispute as to fact, the question of whether or not & Ayala Land vs. Carpo81 (2000): If you relate this to
the conclusion drawn therefrom is correct, is a the cases of Sun Insurance and Manchester, non-‐
question of law.” Here, questions of law were raised payment of docket fees is punishable in the sense
before the SC via a petition for certiorari. But still, that there is no protection on the appeal etc. Except
even if pure questions of law are brought before the when the non-‐payment is deliberate or there was
SC, there must be a final order. In this case, there gross negligence on the part of the lawyer binding
was only an interlocutory order because it was a the client. Here, the SC said that the party made the
denial of the motion to dismiss. This is a very payment in good faith.
instructive
& PNB-‐RB vs. Spouses Cordova 82 (2008): Take note
that under Section 9, there are two periods. The first
& Barangay Sangalang vs. Barangay Maguihan 78
period is when the appeal is deemed perfected by
(2009): Remember that even though we have our
rules, we have also special rules. Here we have the the appellant. Upon the notice of appeal is filed, the
Local Government Code, Section 119 which provides appeal is perfected. Even if the other party filed an
that if a controversy is brought before the MR and the decision was modified in a way, it
Sanggunian and the party does not agree with the doesn’t change the fact that the appeal was
decision of the Sanggunian, this can be appealed perfected. Why is there a need to file a 2nd notice of
appeal? A notice of appeal doesn’t discuss the merits
with the RTC. This is what the party did. So there was
of whatever it is appealing. It merely informs the
already an exercise of the RTC as an appellate court.
Therefore, the party can no longer file a notice of court. Therefore, if you file another one would be
appeal under Rule 40. Dapat petition for review with superfluous unless the party withdraw his notice of
the CA. Only the mode of appeal is wrong. The notice appeal. So the perfection stands. So the second
of appeal is only for decisions of the MTC to the RTC. appeal was not filed out of time.

79 & Cochingyan vs. CA83 (2000): The RTC only receives
& Lazaro vs. CA (2000): So a notice of appeal was
the notice of appeal, the payment of the appellate
filed but it was dismissed on the ground that the
proper docket fees were not paid within the docket fees and proof of service upon the other
prescribed period. There is a strict application here. party. After that, the RTC has to transmit the records
Remember that the CA has the power to dismiss for to the CA. There’s no need to xxx anything anymore.
the failure to pay the docket fees. According to the Of course, if there’s a record on appeal, it’s a
SC: “The 1997 Rules of Civil Procedure, particularly different story.

Sec 1, par. (c), provides that an appeal may be
& Oro v. Judge Diaz84 (2001): When there is an MR or
dismissed by the Court of Appeals on its own
MNT is pro-‐forme, there is no such thing as a fresh
motion, or of that of the appellee, on the ground
among others of failure of the appellant to pay the period rule. You count from the receipt of the
docket and other lawful fees as provided in Sec. 4 judgment. A pro-‐forma motion does not suspend or
Rule 41. Far from committing any reversible error, toll the running the period to appeal.
the trial court in fact correctly issued the assailed
RULE 44 CASES
order denying the appeal of private respondents as

well as their motion to reconsider the denial.”
& Kingdom of Belgium v. CA 85 (2008): It really

& William Chan vs. CA80 (2000): Here, it was the RTC depends on the circumstances for the court to apply
which dismissed the appeal for non-‐payment of the strict or liberal construction. Here, the court was
docket fees. There was no legal basis for doing such strict. The 57 days was not 12 days after the
for it has no authority. Rule 50, Section 1 says that it expiration. That is not reasonable. The delay in the

81
Gr. No. 140162, November 22, 2000
82
Gr. No. 169314, March 14, 2008
78 83
Gr. No. 159792, December 23, 2009 Gr. No. 116902, June 29, 2000
79 84
Gr. No. 138758, April 6, 2000 Gr. No. 140974, July 11, 2001
80 85
Gr. No. 138758, July 6, 2000 Gr. No. 164150, April 14, 2008


filing thereof, 57 days after the expiration of the & Juaban vs. Espina90 (2008): There’s always an issue
period to file the same on 1 September 2003, was, as to whether or not the issue is a question of law or
indeed, unreasonably long. question of fact. If a party feels that he is only asking
for a question of law, he must go straight to the
& Lumbre vs. CA86 (2008): The SC here again applied Supreme Court on petition for review on certiorari
the strict construction. When it comes to the period under Rule 45. If he has a question of fact, he must
to file an appellants brief, most of the time, the SC is go with the CA under Rule 41. Who determines
strict. whether it is a question of fact and law? The Court of
Petitioners seek liberality in the application Appeals. If the CA sees that there is merely a
of the rules. They conveniently forget that such question of law, it can dismiss your appeal. In case of
liberality was, at the outset, accorded to them by the doubt, the determination of the appellate court will
CA when the appellate court granted them an be affirmed.
extension of thirty (30) days, giving their counsel a The distinction between questions of law
total of seventy-‐five (75) days to prepare said brief. and questions of fact is settled. A question of law
Despite such leniency, counsel allowed the extended exists when the doubt or difference centers on what
period to lapse without even filing another motion the law is on a certain state of facts. A question of
for extension. It took nearly a month from the lapse fact exists if the doubt centers on the truth or falsity
of the extended period before counsel filed an of the alleged facts. Though this delineation seems
unverified Motion to Admit Herein Attached simple, determining the true nature and extent of
Appellants’ Brief together with the said Brief, and the distinction is sometime problematic.
only after Florante had already filed a Motion to For example, it is incorrect to presume that
Dismiss petitioners’ appeal. [Taken from the full text all cases where the facts are not in dispute
of the case] automatically involve purely questions of law. There
is a question of law if the issue raised is capable of
& Heirs of Victoriana vs. Equitable87 (2008): Here, the being resolved without need of reviewing the
court relaxed the rules. This involves a case of a bank probative value of the evidence. The resolution of
so there are lots of records to study so I think the the issue must rest solely on what the law provides
Court find it necessary to relax the rules so that the on a given set of circumstances. Once it is clear that
rights of the parties can be threshed out in an the issue invites a review of the evidence presented,
appeal. the question posed is one of fact. If the query
requires a re-‐evaluation of the credibility of
& Mercury Drug vs. De Leon88 (2008): If you look at witnesses, or the existence or relevance of
section 13, how many time “with reference to the surrounding circumstances and their relation to each
records” mentioned? Many times. Yung statement of other, the issue in that query is factual.
facts, the argument… you have to make references
to the records. How it is done, I have no idea. If the
brief is so messy and it’s difficult to find the point,
then maybe the SC will say that it’s not acceptable.
Here, the lawyers made sure that the brief is
understandable so the lack of the reference to the
records was not fatal.

& Rizal vs. Naredo89 (2012): The same violation here –
requirement of reference to the records. The SC said
that the violation was fatal, it was a wanton “Once in a while, amidst all your bad days,
disregard of the rules. you’ll have a good day. A great day even.
Make sure you remember those days.
Keep them safely in your pockets,
maybe even a jar on your desk because
you need to know that there are and will be better days.

86
Gr. No. 160717, July 23, 2008
87
Gr. No. 136972, March 28, 2008
88
Gr. No. 165622, October 17, 2008
89
Gr. No. 151898, March 12, 2012 90
Gr. No. 170049, March 14, 2008


You need to remember how on those days you felt warm
inside, like you’ve just drunk a hot cup of tea;
like a small fire was ignited inside of you.
Hold on to that warmth.
And never let it go.”

cutie <3

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