Rule 39

RULE 39EXECUTION SATISFACTION AND EFFECT OFJUDGMENTS

Section 1 Execution upon judgments or final orders

Execution a process provided by law for the enforcement of a final judgment

Execution is the remedy afforded for the satisfaction of judgment Judgments and orders become final and executory by operation of law and

not by judicial declaration

Against whom issued execution can only be issued to an officer authorizing him to execute the judgment of the court

Writ of Execution judicial writ issued to an officer authorizing him to execute the judgment of the court

Essential requisites of a Writ of Execution(1) A writ of execution to be valid must conform strictly to the decision or

judgment which gives it life(2) It cannot vary the terms of the judgment it seeks to enforce

Writ of execution should conform to the dispositive portion of the decision to be executed and the execution is void if it is in excess of and beyond the original judgment or award

The writ may not vary the terms of the judgment to be executed If the judgment does not provide for the payment of interest the writ

cannot modify the judgment by requiring the obligor to pay interest That part of the writ imposing interest is void

That a writ must conform to the judgment which is to be executed substantially to the every essential particular thereof it is settled

After final judgment has been rendered it is the duty of the court to enforce the judgment according to its terms

Final judgment or Order ndash one which disposes of the whole subject matter or terminates the particular proceedings or action leaving nothing to be done by the court but to enforce by execution what has been determined

Test to determine whether a judgment or order is final or interlocutoryIf the judgment or order leaves nothing more for the court to do with respect to the merits of the case it is a final order Otherwise it is an interlocutory order

WHEN EXECUTION IS A MATTER OF RIGHT1 On motion2 Upon judgment or order that disposes of the action or proceeding3 Upon expiration of the period to appeal therefrom and no appeal has been

duly perfected There must be a motion to that effect and a hearing called for the purpose Motion for the issuance of a writ of execution must contain a notice to the

adverse party Execution shall be applied for in the court of origin If appeal has been duly

perfected and finally resolved execution may be applied for also in the court of origin on motion of the judgment oblige

If the court of origin refuses to issue a writ of execution the appellate court may on motion direct the court of origin to issue the writ

No appeal may be taken from an order of execution by express provisions of the Rules A party desiring to assail an order of execution may instead file an

appropriate special civil action under Rule 65

Execution of judgment

General rule it is a matter of right on the part of the winning party The court cannot refuse executionUnless (when execution be denied)

1 Where the judgment turns out to be INCOMPLETE or conditional2 Judgment NOVATED by parties3 EQUITABLE GROUNDS like a change in situation of the parties which

makes execution inequitable4 Execution is ENJOINED5 Judgment has become DORMANT EXCEPT support which can be

executed by motion6 Execution is UNJUST or impossible7 Judgment is rendered by voluntary compliance by the parties8 Execution is sought more than 5 years from its entry without the

judgment having been revived9 When the execution is sought against property exempt from execution10 When refusal to execute the judgment has become imperative in the

interest of justice

Quashal of writ of execution when proper1 When the writ varies the judgment2 When there has been a change in the situation of the parties making the

execution inequitable or unjust3 When execution is sought to be enforced against property exempt from

execution4 When it appears that the controversy has never been submitted to the

judgment of the court5 When the terms of the judgments are not clear6 If the writ has been improvidently issued7 When it appears to be defective in substance or issued against the wrong

party or judgment debt has been paid or otherwise satisfied or writs was issued without authority

JUDGMENTS FINAL ANDEXECUTORY

JUDGMENTS

Dispose of adjudicate or determine the rights of parties

Becomes final amp excecutory by operation of law

Still subject to appeal After lapse of period to appeal and no appeal was perfected no further action can be had

Execution of judgment nota matter of right

Execution of judgment a matter of right

JUDGMENTS AND FINAL ORDERS THAT MAY BE EXECUTED AS A MATTER OF RIGHT BEFORE EXPIRATION OF TIME TO APPEAL

1 Forcible entry and detainer2 Injunction receivership accounting and support3 Award judgment final order or resolution of quasi-judicial agencies ndash

appealable to CA

INTERLOCUTORY ORDER THAT MAY BE EXECUTEDSupport pendente lite

JUDGMENTS THAT ARE NOT APPEALABLE1 Sin perjuico judgments (judgment wo any stated facts in support of the

conclusion)2 Conditional judgments3 Incomplete judgments

WHEN EXECUTION OF FINAL AND EXECUTORY JUDGMENT MAY BE ENJOINED1 Upon filing of a petition for relief from judgment2 Attack against a judgment which is void for lack of jurisdiction or obtained

through fraud3 On equitable grounds4 In cases falling under the (6) exceptions above

Execution is a matter of right after expiration of period to appeal and no appeal is perfected

Discretionary execution upon good reasons stated in a special order after due hearing

Sheriff enforces writ of execution

Losing party is made to indemnify thru1 Payment with interest2 Levy and sale of personal property3 Levy and sale of real property4 Delivery of personal and real property

Judgment novated by a subsequent agreement cannot be executed eg agreement entered into by the parties other than terms of payment Judgment for support is not final in a sense that it cannot be modified Support depends not only on the varying conditions affecting the ability of

the obligor to pay but also upon the ever-changing needs of the beneficiary himself

GENERAL RULE Final and executory judgment cannot be amended or modified bull Any amendment wc substantially affects a final and executory judgment is null and void for lack of jurisdiction

EXCEPTION JUDGMENT MAY BE MODIFIED ASTO

1 clerical errors or mistakes2 to clarify ambiguity or3 to enter nunc pro tunc orders

To make a present record of an order wc the court rendered at a previous term but by inadvertence has not been entered

A final and executory judgment can no longer be amended by adding thereto relief not originally included eg award of ownership does not necessarily include possession

Clerical error Error in JudgmentErrors not the result of exercise of judicial functions

Mistake relates to something the court did not consider or pass on or considered anderroneously decided

May be modified corrected even after judgment has become final and executor

Cannot be modifiedmust be done in another casesuit

The dispositive portion of the decision is that part that becomes the subject of executionExceptions

1 Where there is ambiguity the body of the opinion may be referred to for purposes of construing the judgment because the dispositive part of a decision must find support from the decisionrsquos ratio decidendi

2 Where extensive and explicit discussion and settment of the issue is found in the body of the decision

Section 2 Discretionary executionWHEN ISSUANCE OF WRIT OF EXECUTION IS DISCRETIONARY

Execution pending appeal(a) While trial court has jurisdiction over the case and is in possession of either

the original record or record on appeal(b) When trial court has lost jurisdiction but has not transmitted records of the

case to the appellate court(c) When trial court has lost jurisdiction and has transmitted records1048774 motion

for execution pending appeal with appellate court

REQUISITES FOR EXECUTION PENDING APPEAL1 On motion by the prevailing party with notice to the adverse party2 There must be a hearing of the motion3 Good reasons for issuing execution and4 The good reasons must be stated in a special order

A discretionary execution must be strictly construed because it is an exception to the general rule

Where the execution is not in conformity with the rules the execution is null and void

Frivolous appeal as reason for discretionary execution1 Where the appeal is frivolous and dilatory execution pending appeal cannot

be justified because the authority to disprove an appeal pertains to the appellate court Mere allegation that the appeal is dilatory is not a good reason to merit discretionary execution

2 It is not within the TC to rule that the appeal is patently dilatory and rely on the same as basis for finding good reasons to grant the motion Only the appellate court can appreciate the dilatory intent of an appeal as an additional good reason in upholding an order for execution pending appeal

Posting of bond as reason for discretionary execution1 The mere filing of a bond is not itself a good reason for ordering execution

pending appeal it is just an additional factor2 If the mere posting of a bond is sufficient to justify execution pending appeal

judgments would be executed immediately once rendered if all that the prevailing party needed was to post a bond Immediate execution will then become the general rule rather than the exception

Where to file an application for discretionary execution1 Shall be filed with the TC while it has jurisdiction over the case and while2 It is in possession of either the original record or record on appeal

After the TC has lost jurisdiction the motion for execution pending appeal may be filed in the appellate court

Where the executed judgment is reversed or annulled on appeal or otherwise the TC may on motion issue such orders of restitution or reparation of damages as equity and justice may warrant under the circumstances

Execution of several separate or partial judgments

SEVERAL JUDGMENTS SEPARATEPARTIAL JUDGMENTRendered against one or more of several defendants leading the action to proceed against others

Rendered at any stage ofthe action regarding a particular claim leaving the action to proceed as to the remaining claims

Discretionary Execution Execution as a Matter of RightMay issue before the lapse of period to appeal

Issued when period to appeal has already lapsed and no appeal has been perfected

Discretionary upon the court there is inquiry on whether there is good reason for execution

Ministerial duty of the provided there are no supervening events

Examples of good reasons1) Where education of a person to be supported would unduly be delayed2) The immediate execution of an order to support is valid3) The judgment debtor is insolvent except when a co-defendant is solvent and

his liability is subsidiary Certiorari will lie against an order granting execution pending appeal

where the same is not founded upon good reasons

What are not good reasons1) the mere fact that a claim is not secured wo any allegation that the

defendant is insolvent or is about to dispose of his properties2) Where the reason given is that an appeal is frivolous or dilatory the trial

judge may not rightfully determine the same3) Mere posting of a bond Award for actual and compensatory damages may be

ordered executed pending appeal but not moral and exemplary damages

By the appellate courtIt can order the execution of judgment pending appeal for good reasons

By the Trial CourtMay also do so in the exercise of its residual jurisdiction under Rule 41 and 42

Grounds1 Insolvency of the judgment debtor2 Wastage of asset by judgment debtor

Moral and exemplary damages depends on actual result of the appeal Execution pending appeal is not applicable in land registration proceedings

Section 3 Stay of discretionary judgmentStay of execution may be allowed at the discretion of the court by filing a supersedeas bond

The party against whom an execution is directed may file a supersedeas bond to stay discretionary execution

SUPERSEDEAS BOND

It is one filed by a petitioner and approved by the court before judgment becomes final and executory and conditioned upon the performance of the judgment appealed from in case it is affirmed wholly or in part

The supersedeas bond guarantees satisfaction of the judgment in case of affirmance on appeal not other things like damage to property pending the appeal Aside from the supersedeas bond an aggrieved party may file a special civil action of certiorari under Rule 65 against the order granting execution pending appeal where the same is not founded upon good reasons

This remedy may be availed of notwithstanding the fact that1) he has appealed from the judgment or 2) has filed a supersedeas bond

Section 4 Judgments not stayed by an appealThe following judgments are immediately executory enforceable after their rendition and shall not be stayed by an appeal unless otherwise ordered by the trial court1 Injunction2 Receivership3 Accounting4 Support and5 Such other judgments declared to be immediately executory unless

otherwise ordered by the trial court

(Action for forcible entry and unlawful detainer) there must be notice and hearing

The reason for the non-stay of judgment for support is because support is immediately needed and its delay may unduly prejudice the one in need of it

The rule on immediate execution of judgment in an injunction case does not apply to a judgment in an action for prohibition

STAY OF EXECUTION OF A JUDGMENT EXCEPTIONS As a general rule an appeal perfected in due time stays the execution of a

judgmentExceptions

1 Those judgments which by express provision of the rules are immediately executor and are not stayed by an appeal

2 Those judgments that have become the object of discretionary execution

Section 5 Effect of reversal of executed judgmentThe trial court may on motion issue restitution or reparation in an event of a reversal after a petition for relief under Rule 38 or annulment of judgment underRule 47 is granted

How restitution is made Effects of reversal modification

Complete Reversal Specific RestitutionModified judgment Creditor may not be compelled to

make specific restitution He can be required to restore the excess realized upon the execution over and above the amount finally awarded

Sale by sheriff to 3rd person Sale is not affected by reversal title of 3rd person is protected except when there is want of jurisdiction over the subject matter

Sale of a creditor to himself in a public sale

He may be required to surrender the property

Sale to a creditor but subsequently sold to a 3rd party

Creditor may be required toaccount for the value received by virtue of the sale to the 3rd party title of 3rd party is protected unless writ of execution is absolutely void where- execution upon a void judgment- judgment has been paid- execution levied on wrongparty

Section 6 Execution by motion or by independent action

A final and executory judgment or order may be executed

1) On motion win 5 years from entry or2) By filing another action win 10 years from entry

Execution by independent action if the 5 year period has elapsed and before it is barred by the statute of limitations

If 5 year period has lapsed there is a need for the prevailing party to file an independent action for the revival of the judgment before the action is barred by the statute of limitation

An action to revive a judgment presupposes that the same can no longer be enforced by mere motion Action for revival of a judgment is no more than a procedural means of

securing the execution of a previous judgment which has become dormant after the passage of 5 years without it being executed upon motion of the prevailing party

An action to revive must be filed within the 10 year period from the date the judgment became final because an action to enforce a judgment prescribes in 10 years from the finality of judgment

Action to revive a judgment in Sec 6 R 39 is not the ldquo revival of judgmentrdquo referred in Sec 34

In Sec 34 the revival of judgment is not sought for by the judgment obligee or the prevailing party It is sought for the purchaser of a real property that was sold in an execution sale The purchaser is allowed to file a motion in the same action or in a separate action for the purpose of recovering from the judgment obligee the price he paid He may also file a motion to revive the judgment in his name to recover the price with interest

The judgment has actually been executed

The judgment to revive under Sec 6 must be filed within 10 years from the date the judgment became final because an action to enforce a judgment prescribes in 10 years form the finality of the judgment

When a judgment is revived such revived judgment may also be enforced by motion within 5 years from the date of its entry and thereafter by action is also before it is barred by statute of limitation

Judgment has not been executed on motion within the 5 year period set by Rule 34

A revived judgment is deemed a new judgment separate and distinct from the original judgment Hence the 10 year period to revive the revived judgment shall commence to run from the date of finality of the revived judgment and not from the date of finality of the old original judgment

An action for revival is not intended to reopen any issue affecting the merits of the judgment debtorrsquos case nor the proprietary or the correctness of the first judgment

The proper venue of an action for revival of judgments depends on the determination of whether the present action for revivial of judgment is a real or personal action

Lifespan of writ of execution ndash 5 yearsA revived judgment is again enforceable by motion within 5 years and thereafter by another action win 10 years from finality of the revived judgment not the original judgment

EXECUTION OF A JUDGMENT BY COMPROMISE WITH A TERMIf a compromise agreement w a term suspends the enforceability of a final judgment the 5 year10 year period must be counted from the end of such term not from the date of entry

REVIVAL OF A JOINT AND SEVERAL JUDGMENT A judgment rendered against several defendants jointly and severally can be revived against one of them only

WHEN 510 YEAR PERIOD SUSPENDED1 When the enforceability of a final decision is suspended by the court2 When the 5 year period is interrupted or suspended by agreement of the

parties3 When the judgment creditor institutes supplementary proceedings to the

execution4 When delays are caused by judgment obligorrsquos own initiatives and for her

advantage

A valid execution issued and levied win the 5 year period may be enforced by sale even after the lapse of the said period

The levy is the essential act by which the property is set apart for satisfaction of judgment

However the execution sale must take place win the 10 year period

WHEN 5 AND 10 YEAR PERIODS NOT APPLICABLE1) Judgment for support

- does not prescribe- may still be enforced by motion even after the 5 year period

2) Special proceedings- eg land registration proceedings

3) issuance of writs of Possession4) contempt orders in unauthorized re-entry on the land by an ejected

defendant

NOTE An action for support does not prescribe and may still be enforced by motion even after the lapse of 5 year period since the obligation is a continuing one The court never loses jurisdiction to enforce such

VENUE OF ACTION FOR ENFORCEMENT OFJUDGMENT personal action ndash where plaintiff resides or defendant resides at the election

of the plaintiff real action ndash where the property is located

DEFENSES AVAILABLE IN AN ACTION FORENFORCEMENT OF JUDGMENT prescription satisfaction of claim counterclaims

Jurisdiction to change alter modify judgment

Jurisdiction to enforce judgment

Terminates when judgment becomes final

Continues even after judgment has become final for purposes of execution and enforcement

Governed by Rule 39 Sec 1 Governed by Rule 39 Sec 6

Section 7 Execution in case of death of partyThis section applies when a party dies after rendition of judgment before or after entry A judgment of foreclosure of mortgage is enforceable by execution against the executor or administrator whether the judgment obligor died before or after entry of judgment If judgment obligee dies execution may issue upon the application of his

executor administrator or successor in interest If judgment obligor dies the execution shall issue against his executor or

administrator if the judgment be for the recovery of real or personal property or the enforcement of a lien thereon

If the death occurs after execution is actually levied upon any of his property the same may be sold for the satisfaction of the judgment obligation If there be any surplus after the sale the officer making the sale shall account to the corresponding executor or administrator

Section 8 Issuance form and contents of a writ of execution

A writ of execution is issued in the name of the Republic of the Philippines and shall state the following1 name of the court which granted the motion2 case number3 dispositive portion of the judgment or order subject of the execution4 shall require the sheriff or other proper officer to whom it is directed to

enforce the writ according to its terms

The motion for execution and the writ of execution must state specifically the amount of interest costs damages rents or profits due as of the date of issuance of the writ aside from the principal obligation

Special sheriffs for the service of writ of execution are not authorized by law The writ of execution must conform to the judgment to be executed

otherwise it is null and void

Death of the Obligee Execution will issue in any case upon application of his executor administrator or successor-in-interest

Death of the Obligor Death Before Levy1 Action for recovery of real or personal property or any lien - execution will issue2 Action for a sum of money ndash execution will NOT issue In this case the judgment obligee should file claim against the estate of the judgment obligor under Rule 86

Death After Levy execution will issue since the property is already separated from the estate of the deceased and is deemed in custodia legis Against his executor administrator or successor-in-interest

An appeal is the remedy for an order denying the issuance of a writ of execution

GROUNDS FOR QUASHING A WRIT OFEXECUTION1 writ of execution varies judgment2 change in the situation of the parties making execution inequitable and

unjust3 execution sought to be enforced against property exempt from execution4 controversy has never been submitted to the judgment of the court5 terms of judgment are not clear and there remains room for

interpretation6 writ of execution is improvidently issued defective in substance issued

against the wrong party judgment debt has been paid or writ issued without authority

Section 9 Execution of judgments for money how enforced3 WAYS TO ENFORCE A JUDGMENT FOR MONEY

1 Immediate payment on demand

judgment obligor shall pay in cash certified bank check payable to the judgment obligee or any other form of payment acceptable to the latter

payment made to the judgment obligee or his representative or if not present to the sheriff or if not practicable to a fiduciary account

2 satisfaction by levy

LEVY ndash An act by which an officer sets apart or appropriates a part or whole of the property of the judgment debtor for purposes of the execution sale

The officer shall levy upon properties of the judgment obligor not otherwise exempt from execution

Judgment obligor exercises option to chose wc property levied upon if not exercised officer shall levy 1st on personal property then on real property

The sheriff shall sell only property sufficient to satisfy the judgment and other lawful fees The on execution creates a lien in favor of the judgment obligee over the

right title and interest of the judgment obligor in such property at the time of the levy subject to liens and encumbrances then existing

3 garnishment of debts and credits

GARNISHMENT ndash An act of appropriation by the court when property of debtor is in the hands of third persons

The sheriff may levy on debts due to debtor or other credits including bank deposits financial interests royalties commissions and other personal property not capable of manual delivery in the possession or control of 3rd parties

Notice served on 3rd party (garnishee)

Garnishment shall be made by

a Serving notice upon the third person having in possession or control of the credits in favour of the judgment obligor

b The third person or garnishee shall make a written report to the court within 5 days from service of the notice of garnishment stating whether or not the judgment obligor has sufficient finds to satisfy the judgment

If sufficient the garnishee shall deliver the amount in cash or certified check shall be delivered directly to the judgment obligee within 10 working days from service of notice on said garnishee The lawful fees shall be directly paid to the court If the amount is insufficient the garnishee shall make a report as to the amount he hold for the judgment obligor

GENERAL RULE All property belonging to judgment obligor not exempt from execution may be attached

EXCEPTIONS1) Usufruct2) Ascertainable interest in real estate as mortgagor mortgagee or otherwise3) Unused balance of an overdraft account (credit not subject to garnishment) Levy on personal property may be actual or constructive

eg levy on a barge by registration w Philippine Coast Guard (constructive)

Section 10 Execution of judgments for specific act

SPECIFIC ACTS1 Conveyance delivery of deeds or other specific acts vesting title

If party fails to comply within the time specified the court may direct the act to be done at the cost of the disobedient party

Real or personal property situated win the Philippines court in lieu of conveyance may give order divesting title and may vest it in others

2 Sale of real or personal property3 Delivery or restitution of real property officer shall demand person to

peaceably vacate property win 3 working days and restore possession to judgment obligee otherwise officer shall oust such persons

4 Removal of improvements on property subject of execution officer shall not destroy demolish or remove improvements except upon special order of the court

Special order issued upon motion after judgment obligor failed to remove the same

5 Delivery of personal property officer shall take possession of the same and deliver it to the judgment obligee

Execution of a judgment for the performance of a specific act1) If the judgment requires a person to perform a specific act said act must be

performed but if the party fails to comply within the specified time the court may direct the act to be done by someone at the cost of the disobedient party and the act when so done shall have the effect as id done by the party

2) If the judgment directs a conveyance of real or personal property and said property is in the Philippines the court in lieu of directing the conveyance thereof may order divest the title of any party and vest it in others which shall have the force and effect of a conveyance executed in due form of law

Execution for a judgment for the delivery or restitution of real property1 In ejectment the officer shall demand from the judgment obligor to vacate

peaceably within 3 working days and restore possession of the property to the judgment obligee

2 Immediacy of execution does not mean instant execution When a decision is immediately executor it does not dispensing with the required 3 day notiuce

3 After the lapse of the period given and the judgment obligor refuses to vacate then the sheriff may enforce the writ by ousting the judgment obligor and all the persons claiming a right under him with the assistance If necessary of appropriate peace officers and employing such means as may be reasonably necessary to retake possession and place the judgment obligee in possession of such property

Failure to comply with specific acts under Rule 39 Sec 10 is not necessarily punishable by contempt However if a party refuses to 1 Vacate the property ndash the sheriff must oust the party A demolition

order from the court is required to effect removal of an improvement constructed by the defeated party

2 Deliver ndash the sheriff will take possession and deliver it to the winning party

3 Comply ndash the court can appoint some other person at the expense of the disobedient party and the act shall have the same effect as if the required party performed it

bull No time limit win which an order of demolition should be carried out defeated party is given reasonable period to look for another place

ORDER OF DEMOLITION COULD BE ISSUED AFTER THE 5 YEAR PERIOD but writ of execution must be served win 5 years order of demolition ancillary to writ Certiorari is available if requirements for

issuance of order of demolition are not followed

Section 11 Execution of special judgment SPECIAL JUDGMENTA special judgment is one that can be complied with only by the judgment obligor himself It requires the performance of any other act than payment of money or the sale or delivery of real or personal property Failure to comply with special judgment under Section 11 is punishable as contempt by imprisonment

Section 12 Effect of Levy on execution as to third persons

Section 13 Property exempt from execution

PROPERTIES EXEMPT FROM EXECUTION1) family home or homestead land necessarily used in connection therewith2) ordinary tools and implements used in trade employment or livelihood3) 3 horses cows carabaos or other beast of burden ndash necessarily used in his

ordinary occupation4) necessary clothing and articles for ordinary personal use except jewelry 5) household furniture and utensils necessary for housekeeping le P100K6) Provisions for individual or family use sufficient for 4 months7) Professional libraries and equipment8) One fishing boat and accessories le P100K used in livelihood9) Salaries wages or earnings as are necessary for support of family win 4

months preceding levy10) Lettered gravestones11) Monies benefits privileges or annuities accruing out of any life insurance12) Properties specially exempt from execution13) The right to receive legal support or money or property obtained as such

support or any pension or gratuity from the government

OTHER PROPERTIES SPECIALLY EXEMPT FROM EXECUTION1 Property mortgaged to DBP (Section 26 CA 458)2 Property taken over by Alien Property Administration (Section 9[f] US

Trading With the Enemy Act)3 Savings of national prisoners deposited with the Postal Savings Bank (Act

2489)4 Backpay of pre-war civilian employees (RA 304)5 Philippine Government backpay to guerrillas (RA 897)6 Produce work animals and farm implements of agricultural lessees subject

to limitations (Section21 RA 6389)7 Benefits from private retirement systems of companies and establishments

with limitations (RA 4917)8 Labor wages except for debts incurred for food shelter clothing and

medical attendance (Art 1708 NCC)9 Benefit payments from the SSS (Section 16 RA 1161 as amended by PDs 24

65 and 177)10 Copyrights and other rights in intellectual property under the former

copright law (PD 49 cf Section 2393 RA 8293)11 Bonds issued under RA 1000 (NASSCO v CIR L-17874 31 August 1963)

(Regalado F Remedial Law Compendium Vol 1 8th ed pp 447-448)

If the property is the subject of execution because of a judgment for the recovery of the price or upon a judgment of foreclosure of a mortgage upon the property the property is not exempt from execution

Section 14 Return of writ of executionWrit of execution is returnable to the court after judgment it satisfied

Sheriff shall report to the court win 30 days after receipt and every 30 days until the judgment is satisfied in full

Lifetime of writ of execution ndash 5 years from entry of judgment

The rules do not provide any lifetime for a writ of attachment unlike writ of execution

The writ shall continue in effect during the period within which the judgment may be enorced by motion

Section 15 Notice of sale of property on execution

Requisites for Notice of Sale of Personal Property

Requisites for Notice of Sale of Real Property

perishable property notice posted in 3 public places for such time as may be reasonable considering the character amp condition of the property

other personal property notice posted in 3 public places for not less than 5 days

If le 50000 notice posted in 3 public places for 20 days

If gt 50000 Publication once a week for 2 consecutive weeks and notice posted in 3 public places for 20

In all cases written notice of the sale shall be given to the judgment obligor at least 3 days before the sale except as provided in paragraph (a) hereof where notice shall be given at any time

EFFECTS OF AN EXECUTION SALE WITHOUTTHE REQUIRED NOTICE1) Sheriff and creditor are joint tortfeasors2) Liable in solidum because liability is joint and solidary

Want of notice does not invalidate the execution sale where purchaser is innocent and no collusion appears (buyer in good faith)

Section 16 Proceedings where property claimed by third persons3RD PARTY CLAIMA claim by any person other than the judgment debtor or his agent on property levied on execution

PROCEEDINGS WHEN PROPERTY LEVIED UPON I CLAIMED BY THIRD PERSONS TERCERIA RULE A person claiming a property levied upon may execute an affidavit of his title

or right of possession over the property Such affidavit must state the grounds of such right or title The affidavit shall be served upon the officer making a levy and a copy thereof must also be served upon the judgment obligee This remedy of the claiming party is also called ldquoterceriardquo

The officer served with the affidavit of the claiming third person shall not be bound to keep the property subject of the claim unless the judgment obligee on demand of the officer files a bond approved by the court to indemnify the claimant in a sum not less than the value of the property levied upon

No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action therefor is filed within 120 days from the date of the filing of the bond

The officer shall not be liable to any third-part claimant for damages for the taking or keeping of the property if such bond is filed

The aggrieved third party may also avail himself of the remedy of ldquoterceriardquo by executing an affidavit of his title or right of possession over the property levied on attachment and serving the same to the office making the levy and serving the same to the office making the levy and the adverse party

Other remedies may also be availed of by the 3rd party claimant because nothing contained in the Rules ldquoshall prevent the claiming third person from vindicating his claim to the property in a separate actionrdquo

PURPOSE OF 3RD PARTY CLAIM1) To recover property levied on by sheriff (although 3rd party can vindicate claim in a separate action)2) To hold sheriff liable for damages for the taking or keeping of such property

WHEN TO FILE A 3RD PARTY CLAIM At any time so as long as the sheriff has the possession of the property levied upon or before the property is sold under execution

WHAT IS THE PROCEDURE FOR A 3RD PARTYCLAIM

3rd party should make an affidavit of his title thereto or right of possession thereof and should serve such affidavit upon the sheriff and a copy thereof to the judgment obligeeThe sheriff may or may not require the judgment obligee to file a bond

Indemnity Bond Filed No Indemnity Bond FiledAction for damages brought against the principal and sureties on the bond

Action for damages may be brought against sheriff himself

Sheriff not liable for damages Sheriff liable for damagesSheriff bound to keep property on behalf of judgment obligee

Sheriff not bound to keepproperty under levy

REMEDY OF THE CREDITORa File a bond to indemnify 3rd party complainant

amount of bond not less than value of property sheriff not liable for damages if bond is filed

b File a claim for damages against 3rd party in the same or separate action based on the ground that 3rd party claim is frivolous or plainly spurious

REMEDY OF THE 3rd PARTY1 Vindicate his claim in a separate action

no intervention allowed since judgment final amp executory2 File a separate action for damages against the sheriff (if no bond filed)3 File a claim for damages against the bond

claim must be win 120 days from filing of bond

The sheriff is at complete liberty to suspend or not to suspend execution if the judgment creditor does not file a bondThe judgment creditor cannot be compelled to file a bond because he is at complete liberty to do so Without an indemnity bond the sheriff acts at his own risk if he keeps the property (can be liable for damages)

Section 17 Penalty for selling without notice or removing or defacing notice

PERSONS LIABLE UNDER SECTION 171 Officer selling without notice2 Any person willfully removing or defacing notice posted (eg notice

posted in 3 public places)

What is the liability1 punitive damages to any person injured thereby = P5000 2 actual damages

Section 18 No sale if judgment and costs paidIf judgment obligor paid the amount of judgment ndash NO writ of execution may be issued or implemented

Section 19 How property sold on execution who may direct manner and order of saleAll sales of property under execution must be made1 at a public auction2 to the highest bidder3 to start at the exact time fixed in the notice

Sale of real properties must be made in the province where the same are situated Purpose is to obtain the best price

PERSONS PROHIBITED FROM BUYING1 Judge who issued the writ of execution2 Officer conducting sale or his deputy

EFFECT OF SALE OF REAL PROPERTY IN MASS GENERAL RULE Valid

EXCEPTION1 when it appears that a larger sum would have been realized from a sale in parcels or2 a sale of less than whole would be sufficient to satisfy debt

Mere inadequacy of price is not material if there is a right of redemption

Shocking inadequacy of price may be ground for setting aside sale

Who has jurisdiction to set aside execution sale

Court wc rendered judgment that became final and executory has exclusive jurisdiction

After sufficient property has been sold to satisfy the execution no more sale shall be made and any excess shall be promptly delivered to the judgment obligor or his authorized representative unless otherwise directed by the judgment or order of the court

Section 20 Refusal of purchaser to pay

Section 21 Judgment obligee as purchaser1 Officer may sell again the property to the highest bidder2 refusing purchaser may be liable for amount of loss occasioned by such

refusal 3 Refusing purchaser may be punished for contempt4 Officer may reject subsequent bid of refusing purchaser

If judgment obligee is the successful bidderBID le JUDGMENT ndash Judgment obligee not required to pay bid

IF BID gt JUDGMENT ndash Judgment obligee required to pay excess

Section 22 Adjournment of Sale1048774 If both obligee and obligor agree in writing sale may be adjourned to any date and time agreed upon1048774 Without such agreement sale may be adjourned from day to day if it becomes necessary to o so for lack of time1048774 Adjournment = waiver of publication of another notice requirement

Section 23 Conveyance to purchaser of personal property capable of manual delivery1048774 After purchaser pays the purchase price the sheriff must deliver the property capable of manual delivery to the purchaser 1048774 If desired the sheriff shall execute and deliver a certificate of sale1048774 No right of redemption in sales of personal property on execution

Section 24 Conveyance to purchaser of personal property not capable of manual deliveryFor personal property not capable of manual delivery the officer must execute and deliver to purchaser certificate of sale (symbolic delivery)

Section 25 Conveyance of real property certificate thereof given to purchaser and filed with registry of deeds

CERTIFICATE OF SALE MUST CONTAIN1) Description of real property sold2) Price paid (per lot)3) Whole price paid4) Statement of right of redemption 1 year from date of registration of certificate of saleORDINARY SALE ONORDINARY SALE IN EXECUTION ndash Need not be confirmed Right of redemption Purchaser acquires title upon expiration of redemption period

EXECUTION IN JUDICIAL FORECLOSURE OFMORTGAGE ndash Needs judicial confirmation No right of redemption (except where mortgagee is a bank) Purchaser acquires title after judicial confirmation of sale

Purchaser acquires only right title interest and claim of judgment obligor

Purchaser of property registered under Torrens system acquires the same free from liens or encumbrances not noted thereon

Auction sale retroacts to date of levyEg a 3rd party claim was filed after the levy The fact that the 3rd party claim was presented 1 day before the execution sale is immaterial If the levy is valid the sale is also valid The auction sale retroacts to the date of the levy

The purchaser is not entitled to possession during the period of redemption

Section 26 Certificate of sale where property claimed by 3rd personThe certificate of sale to be issued shall make express mention of the existence of such third-party claim

Section 27 Who may redeem real property so soldRIGHT OF REDEMPTION1 Personal Property ndash None sale is absolute2 Real Property ndash there is a right of redemption

WHO MAY REDEEMJUDGMENT DEBTOR ndash Judgment obligor or his successor in interest (eg transferee assignee heirs joint debtors) When ndash Within 1 year from the date of registration of the certificate of sale

REDEMPTIONER ndash One who has a lien by virtue of another attachment judgment or mortgage on property SUBSEQUENT to the lien under which the property was sold

When ndash 1 Within 1 year from the date of registration of the certificate of sale or2 Within 60 days from the last redemption by another redemptioner

A surety is NOT a successor in interestBy paying the debt he stands in the place of the creditor not obligor

Right of redemption cannot be levied on by judgment creditorThe judgment debtor may of course legally sell his right of redemption

Section 28 Time and manner of and amounts payable on successive redemptions notice to be given and filed

PERIOD OF REDEMPTION JUDGMENT ndash Judgment Obligor has 1 year from registration of certificate of sale Once he redeems no further redemption is allowed

OBLIGOR REDEMPTIONER ndash 1st redemptioner has 1 year to redeem 2nd redemptioner has 60 to redeem after 1st redemption3rd redemptioner has 60 days after 2nd etc Further redemption allowed even after lapse of 1 year as long as each redemption is made win 60 days after the last

Payment ndash how and to whom made Tender of redemption money may be made to purchaser or sheriff If tender to sheriff ndash duty to accept

Medium of payment Cash although Sec 9 Rule 39 allows certified bank check If check is dishonored redemption invalid If check became stale for not being presented through no fault of

redemptioner redemption valid

Amounts Payable on Redemption JUDGMENT OBLIGOR REDEMPTIONER If he redeems from the

purchaser- Purchase price + 1interest + assessment or taxes

If he redeems from redemptioner- Redemption price + 2 interest + assessment or taxes

If he redeems from the purchaser

- Same as judgment obligor- Amount of lien If purchaser also creditor w prior lien If he redeems from redemptioner- Same as judgment obligor- Amount of liens held by last redemptioner prior to his own w interest

Section 29 Effect of redemption by judgment obligor and a certificate to be delivered and recorded thereupon to whom payments on redemption made

If judgment obligor redeems no further redemption is allowed The Person to whom redemption was made must execute and deliver to the judgment obligor a certificate of redemption

Payments may be made to the purchaser redemptioner or sheriff

Redemption can be paid in other forms than cash The rule is construed liberally in allowing redemption (aid rather than to defeat the right) and it has been allowed to in the case of a cashierrsquos check certified bank checks and even checks

A formal offer to redeem is not necessary where the right to redeem is exercised through the filing of a complaint to redeem in the courts within the period to redeem

Section 30 Proof required of redemptioner

PROOF REQUIREDJUDGMENT OR FINAL ORDER REDEMPTIONER

No proof required

Right of redemptionappears on record

If based on judgment or finalorder- must serve copy of judgment or final order certified by clerk of court

If based on Mortgage or other lien must serve

- memorandum of record or any assignment AND- affidavit showing amount due on lien

Failure to produce proof by redemptioner is waived by refusal on other grounds

Validity of redemption not affected by failure to present proofIf person to whom redemption was offered accepts without requiring proof ndash redemption valid

Section 31 Manner of using premises pending redemption waste restrained

During the period pending the redemption the court issues an order to restrain the commission of waste on the property by injunction

WHAT IS NOT COMMISSION OF WASTE1 Use in the same a manner previously used2 Use in the ordinary course of husbandry3 Make necessary repairs to buildings thereon

Section 32 Rents earnings and income of property pending redemptionDuring the period of redemption all rents expenses income and fruits derived still belong to the debtor

During the period of redemption the purchaser or redemptioner is not entitled to

1 possession2 receive the rents earnings and income of property sold on execution3 reimbursement for improvements

Section 33 Deed and possession to be given at expiration of redemption period by whom executed or givenUpon expiration when no redemption has been made within 1 year purchaser is entitled to conveyance and possession of property If so redeemed whenever 60 days have elapsed and no other redemption has been made and notice therof given the last redemptioner is entitled to the conveyance and possession of the property

Upon expiration of the right of redemption the purchaser or redemptioner shall be substituted to and acquire all the rights titles interest and claim of the judgment obligor to the property as of the time of the levy

Within 1 year purchaser acquires only the rights title interest and claim of judgment obligor to property

After 1 year the purchaser now has his own right and acquires right to the property It is at this time that the writ of possession is issued

Writ of possession may be enforced against judgment obligor successors-in-interest but NOT against persons whose right of possession is adverse to the latter

Section 34 Recovery of price if sale not effective revival of judgmentIf purchaser fails to recover possession evicted judgment reversed property exempt from execution or 3rd party vindicated claim purchaser may on motion or in a separate action

1 recover from creditor price paid w interest or so much wc is not returned to judgment obligor or

2 have original judgment revived for whole price w interest

Section 35 Right to contribution or reimbursement If property is executed against several persons and more than due

proportion has been satisfied ndash one who pays may compel contribution from the others

If surety pays ndash he may compel repayment from the principal

Section 36 Examination of judgment obligor when judgment unsatisfiedUpon return of writ of execution and judgment is still unsatisfied the creditor may ask the court to require the debtor to appear and his property or income be examined

PROCEEDINGS SUPPLEMENTARY TO EXECUTIONThe proceedings are to aid judgment creditors in discovery of debtorrsquos property and its application to the satisfaction of judgment It is to compel the disclosure of any property that is not exempt from execution1) Sec 36 ndash examination of judgment obligorrsquos property2) Sec 37 ndash examination of judgment obligorrsquos debtor (garnishee) 3) Sec 38 ndash enforcement of attendance and conduct of examination (punishable by contempt)4) Sec 39 ndash judgment obligorrsquos debtor may pay sheriff5) Sec 40 ndash order to apply to obligorrsquos property in the hands of another investigate income expenses earnings ndash order fix monthly payments6) Sec 41 ndash appoint receiver7) Sec 42 ndash sale of debtorrsquos interest in real estate8) Sec 43 ndash if garnishee denies debt court may order creditor to institute action against such person to pay debt

Section 37 Examination of obligor of judgment obligorAny person or corporation who has property of the debtor or is indebted to the debtor gt court may order such person to be examined gt to bind the credits due to debtor

CITATIONThe garnishee becomes a forced intervenor requiring him to pay his debt not to the judgment debtor but to the creditor (a form of involuntary novation)

Section 38 Enforcement of attendance and conduct of examinationA party or other person may be compelled by an order of subpoena to attend before the court or commissioner to testify as provided in Sections 36 amp 37Failure to obey such order or subpoena may be punished for contempt

Section 39 Obligor may pay execution against obligeePersons indebted to the debtor may pay sheriff Sheriffrsquos receipt shall mean a discharge for the amount paid and shall be credited by the obligee on execution

Section 40 Order for application of property and income to satisfaction of judgmentCourt may order property of judgment obligor or money due him in the hands of either himself or another to be applied to the satisfaction of the judgment

Investigation of income and expenses gt if it appears earnings more than necessary for support of family gt court may order that he pay judgment in fixed monthly installments gt otherwise contempt

The sheriff is not a proper person to be appointed as receiver

Section 42 Sale of ascertainable interest of judgment obligor in real estateIf Judgment obligor has interest in real estate (as mortgagor or mortgagee or otherwise) Receiver may be ordered to sell and convey real estate or interest therein

Section 43 Proceedings when indebtedness denied or another person claims propertyPerson or corporation having property of obligor or indebted to him claims an interest in property adverse to him or denies debt The Court may

1 authorize judgment obligee to institute action against person or corporation for recovery of such interest or debt

2 forbid transfer or other disposition of such interest or debt win 120 days from notice of order or

3 may punish disobedience of such order as for contempt

Court cannot make a finding that 3rd person has in his possession property belonging to judgment debtor or is indebted to him and to order said person to pay amount to judgment creditor

Execution may issue only upon an incontrovertible showing that 3rd party holds property of judgment obligor or is indebted to him

Section 44 Entry of satisfaction of judgment by clerk of court

Section 45 Entry of satisfaction with or without admissionJudgment obligee is obliged to execute and acknowledge admission of satisfaction of judgment only if judgment obligor demands

ENTRY OF SATISFACTION OF JUDGMENT-WHENMADE1) upon return of execution satisfied2) upon filing of admission of satisfaction by creditor3) upon indorsement of such admission4) upon order of the court

Creditor who compels satisfaction of judgment loses right of appeal Debtor who voluntary satisfies judgment loses right to appeal But the debtor who is compelled to pay does NOT lose right to appeal

TENDER OF PAYMENT OF JUDGMENT ndash - If tender refused not necessary to make consignation- Court may direct money to be paid to the court and order entry of satisfaction of judgment

TENDER OF PAYMENT OF CONTRACTUAL DEBT ndash If tender refused must consign payment w court

Section 46 When principal bound by judgmentagainst surety

SURETY SUED ALONE PRINCIPAL AND SURETY JOINTLY SUED

PRINCIPAL SUED ALONE

- principal also bound by judgment- surety should notify principal and request him to join in defense surety must still file separate action for reimbursement but principal can no longer set up defenses wc he could have set up in the original action- if principal not notified he may set up defenses in a subsequent action

- judgment may be rendered against them jointly amp severally- surety should filecross-claim for reimbursement

- principal has nocause of action against surety

The principal is bound by the same judgment from the time he has notice of the action or proceeding and has been given an opportunity at the suretyrsquos request to join the defense

Section 47 Effect of judgment or final orders

Paragraph (a) refers to rule on Res Judicata in judgments IN REM

JUDGMENT OR FINAL ORDER EFFECT CONCLUSIVE AS TOAgainst a specific thing the title of the thingProbate of a will or administration of the estate of a deceased person

Will or administration However only prima facie evidence of the death of the testator or intestate

In respect to the personal political or legal condition or status of a particular person

Condition status or relationship of the person

Paragraph (b) refers to as ldquobar by former judgment or

Res Judicata in judgments IN PERSONAM

RES JUDICATAIt is a matter adjudged an existing final judgment or decree rendered on the merits is conclusive upon the rights of the parties or their privies in all other actions or suits in the same or any other judicial tribunal on the points and matters in issue in the first suit It is based on the principle that parties should not litigate the same matter more than once

REQUISITES OF RES JUDICATA1) Former judgment or order must be final and executory2) Court has jurisdiction over subject matter and parties3) Former judgment or order was on merits4) Identity of parties subject matter and cause of action between first and second action

Test to determine IDENTITY OF CAUSE OF ACTIONWhether the same evidence would sustain both causes of action

NOTE Res Judicata applies only between adverse parties in a former suit NOT between co-parties

Paragraph (c) is known as ldquoconclusiveness of judgmentrdquo or preclusion of issues or rule of AUTER ACTION PENDANT

CONCLUSIVENESS OF JUDGMENTIssues are actually and directly resolved in a former suit cannot again be raised in any future case between the same parties involving a different cause of action RES JUDICATA OR BAR BY FORMER JUDGMENT

ESTOPPEL BY JUDGMENT OR CONCLUSIVENESS BY JUDGMENT

Refers to same action claim or demand

Refers to another action between same parties but involves different claim

- Absolute bar to subsequent action- there is finality as to the claim or demand in controversy not only to matters presented but as toany other admissible matter wc might have beenpresented

judgment merely anestoppel only as to thosematters in issue orcontroverted

identity of parties SM cause of action

identity of parties SM only

Section 48 Effect of foreign judgments or final orders

EFFECT OF A FOREIGN ORDER OR TRIBUNAL1) Against a specific thing ndash conclusive upon title to the thing2) Against a person ndash presumptive evidence of a right as between the parties

and their successors in interest by a subsequent title In both instances the judgment may be repelled by evidence of want of jurisdiction notice collusion fraud or clear mistake of law or fact

ENFORCEMENT OF FOREIGN JUDGMENTSBy filing an action based on said judgment foreign judgment is presumed to be valid and binding

RECOGNITION OF A FOREIGN JUDGMENTRaise the foreign judgment as res judicata in the defense (not in a separate action)MISCELLANEOUS PRINCIPLES TO BE REMEMBERED IN EXECUTION SALES

A notice of sale is required before the property levied is sold on execution All sales of property under execution must be made at public auction to the highest bidder but the execution sale must be preceded by a valid levy which is indispensable for a valid execution sale a levy is the act whereby the sheriff sets apart or appropriates a part of

the whole of the properties of the judgment obligor to satisfy the command of the writ

levy is necessary only if the obligor cannot satisfy the judgment in case certified check or any other mode of payment acceptable to the judgment creditor

a levy upon real property is made by the officer by performing two specific actsa) filing with the RD a copy of the order description of the attached

property and notice of attachment andb) leaving with the occupant of the property of the same order

description and notice Non-compliance with any of these requisites is fatal because

a special statutory provision respecting the manner of carrying out levy of attachment must be strictly complied with and departure therefrom shall invalidate the levy

After sufficient property has been sold to satisfy the execution no more shall be sold (s 19)

Any excess of the sale shall be delivered to the judgment obligor (s 19) If the purchaser at the auction refuses to pay the amount bid by him the

officer may again sell the property to the highest bidder and the court may require such purchaser to pay unto the court the amount of whatever loss with costs by his refusal o pay and if he disobeys the order may punish him for contempt Any subsequent bid by such purchaser may be refused by the officer conducting the bidding (S 20)

The judgment obligee may bid and if said party is the purchaser and there is no 3rd party claim he need not pay the amount of the bid if it does not exceed the amount of his judgment If it does he shall only pay the excess (S 21)

If the purchaser of personal property capable of manual delivery pays the purchase price the officer making the sale must deliver the property to the purchaser and shall execute a certificate of sale The sale conveys to the purchase all the rights which the judgment obligor had in such property as of the date of the levy on execution or preliminary attachment (S 23)

When the purchaser of any personal property not capable of manual delivery pays the price the officer making the sale must execute and deliver to the purchaser a certificate of sale Such certificate conveys to the purchaser all the rights which the judgment obligor had in such property as of the date of the levy on execution or preliminary attachment (S 24)

SALE AND REDEMPTION OF REAL PROPERTY

a Upon a sale of real property the officer must give to the purchaser a certificate of sale Such certificate must be registered in the registry of deeds of the place where the property is situated (S 25)

b The real property sold may redeemed from the purchaser at any time within 1 year from the date of the registration of the certificate of sale If there are other creditors having a lien on the property the property so redeemed may again be redeemed within 60 days from the last redemption The property may again and as often as a redemptioner is so disposed be redeemed from any previous redemptioner within 60 days after the last redemption (S 28)

c The property may be redeemed by the judgment obligor or his successor in interest or by a creditor having a lien by virtue of an attachment judgment or mortgage on the property sold subsequent to the lien under which the property was sold Such redeeming creditor is called a redemptioner (S 27[b])

d The right of redemption under the Rules of Court has reference only to real not personal property (S 27)

REMEDY WHEN THE JUDGMENT IS UNSATISFIED

1 The judgment obligee is entitled to an order from the court which rendered the judgment requiring the judgment obligor to appear and be examined concerning his property and income before the court or a commissioner appointed by the court This remedy has a limitation because the judgment obligor cannot be required to appear before a court or commissioner outside the province or city in which such obligor resides or is found (S 37)

2 It is not only the judgment debtor who may be examined A person corporation or other juridical entity indebted to the judgment debtor may be required to appear before the court or a commissioner appointed by it at a time and place within the province or city where such debtor resides or is found and be examined concerning the same (S 37)

EFFECT OF FINAL JUDGMENTS

1 When a court of the Philippines has rendered judgment with jurisdiction the following are the effects of its judgment or final order

a If the judgment or final order is on a specific thing the same is conclusive upon the title

b If judgment or final order is in respect to the probate of a will or the administration of the estate of a deceased person the same is conclusive upon the will or administration but the probate of the will or the granting of letters of administration shall only be prima facie evidence of the death of the testator or intestate and not a conclusive presumption of death

c If judgment or final order is in respect to the personal political or legal condition or status of a particular person or his relationship to another the judgment or final order is conclusive upon the condition status or relationship

d If the judgment be to the matter directly adjudged or as to any other matter that could have been raised in relation thereto the judgment or final order is conclusive between the parties and their successors in interest by title subsequent to the commencement of the action or special proceeding litigation for the same thing and under the same title and the same capacity relationship (bar by prior judgment)

e In any other litigation between the same parties or their successors in interest that only is deemed to be adjudged in a former judgment or final order which appears upon its face to have been adjudged or which was actually and necessarily included therein or necessary thereto (conclusiveness of judgment)

Judgment novated by a subsequent agreement cannot be executed eg agreement entered into by the parties other than terms of payment Judgment for support is not final in a sense that it cannot be modified Support depends not only on the varying conditions affecting the ability of

the obligor to pay but also upon the ever-changing needs of the beneficiary himself

GENERAL RULE Final and executory judgment cannot be amended or modified bull Any amendment wc substantially affects a final and executory judgment is null and void for lack of jurisdiction

EXCEPTION JUDGMENT MAY BE MODIFIED ASTO

1 clerical errors or mistakes2 to clarify ambiguity or3 to enter nunc pro tunc orders

To make a present record of an order wc the court rendered at a previous term but by inadvertence has not been entered

A final and executory judgment can no longer be amended by adding thereto relief not originally included eg award of ownership does not necessarily include possession

Clerical error Error in JudgmentErrors not the result of exercise of judicial functions

Mistake relates to something the court did not consider or pass on or considered anderroneously decided

May be modified corrected even after judgment has become final and executor

Cannot be modifiedmust be done in another casesuit

The dispositive portion of the decision is that part that becomes the subject of executionExceptions

1 Where there is ambiguity the body of the opinion may be referred to for purposes of construing the judgment because the dispositive part of a decision must find support from the decisionrsquos ratio decidendi

2 Where extensive and explicit discussion and settment of the issue is found in the body of the decision

Section 2 Discretionary executionWHEN ISSUANCE OF WRIT OF EXECUTION IS DISCRETIONARY

Execution pending appeal(a) While trial court has jurisdiction over the case and is in possession of either

the original record or record on appeal(b) When trial court has lost jurisdiction but has not transmitted records of the

case to the appellate court(c) When trial court has lost jurisdiction and has transmitted records1048774 motion

for execution pending appeal with appellate court

REQUISITES FOR EXECUTION PENDING APPEAL1 On motion by the prevailing party with notice to the adverse party2 There must be a hearing of the motion3 Good reasons for issuing execution and4 The good reasons must be stated in a special order

A discretionary execution must be strictly construed because it is an exception to the general rule

Where the execution is not in conformity with the rules the execution is null and void

Frivolous appeal as reason for discretionary execution1 Where the appeal is frivolous and dilatory execution pending appeal cannot

be justified because the authority to disprove an appeal pertains to the appellate court Mere allegation that the appeal is dilatory is not a good reason to merit discretionary execution

2 It is not within the TC to rule that the appeal is patently dilatory and rely on the same as basis for finding good reasons to grant the motion Only the appellate court can appreciate the dilatory intent of an appeal as an additional good reason in upholding an order for execution pending appeal

Posting of bond as reason for discretionary execution1 The mere filing of a bond is not itself a good reason for ordering execution

pending appeal it is just an additional factor2 If the mere posting of a bond is sufficient to justify execution pending appeal

judgments would be executed immediately once rendered if all that the prevailing party needed was to post a bond Immediate execution will then become the general rule rather than the exception

Where to file an application for discretionary execution1 Shall be filed with the TC while it has jurisdiction over the case and while2 It is in possession of either the original record or record on appeal

After the TC has lost jurisdiction the motion for execution pending appeal may be filed in the appellate court

Where the executed judgment is reversed or annulled on appeal or otherwise the TC may on motion issue such orders of restitution or reparation of damages as equity and justice may warrant under the circumstances

Execution of several separate or partial judgments

SEVERAL JUDGMENTS SEPARATEPARTIAL JUDGMENTRendered against one or more of several defendants leading the action to proceed against others

Rendered at any stage ofthe action regarding a particular claim leaving the action to proceed as to the remaining claims

Discretionary Execution Execution as a Matter of RightMay issue before the lapse of period to appeal

Issued when period to appeal has already lapsed and no appeal has been perfected

Discretionary upon the court there is inquiry on whether there is good reason for execution

Ministerial duty of the provided there are no supervening events

Examples of good reasons1) Where education of a person to be supported would unduly be delayed2) The immediate execution of an order to support is valid3) The judgment debtor is insolvent except when a co-defendant is solvent and

his liability is subsidiary Certiorari will lie against an order granting execution pending appeal

where the same is not founded upon good reasons

What are not good reasons1) the mere fact that a claim is not secured wo any allegation that the

defendant is insolvent or is about to dispose of his properties2) Where the reason given is that an appeal is frivolous or dilatory the trial

judge may not rightfully determine the same3) Mere posting of a bond Award for actual and compensatory damages may be

ordered executed pending appeal but not moral and exemplary damages

By the appellate courtIt can order the execution of judgment pending appeal for good reasons

By the Trial CourtMay also do so in the exercise of its residual jurisdiction under Rule 41 and 42

Grounds1 Insolvency of the judgment debtor2 Wastage of asset by judgment debtor

Moral and exemplary damages depends on actual result of the appeal Execution pending appeal is not applicable in land registration proceedings

Section 3 Stay of discretionary judgmentStay of execution may be allowed at the discretion of the court by filing a supersedeas bond

The party against whom an execution is directed may file a supersedeas bond to stay discretionary execution

SUPERSEDEAS BOND










judgmentExceptions



































advantage








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Documents

Rule 39