Republic of the Philippines

REGIONAL TRIAL COURT

11th Judicial Region
Branch _____________________
_____________________ City

______________________
Plaintiffs,
CIVIL _____________________
-versus-

_____________________.,
Defendants.
x----------------------------------------x
COMMENT TO MOTION FOR RECONSIDERATION
WITH URGENT MOTION TO DEFER WRIT OF
EXECUTION
COMES NOW, the Plaintiffs, through the undersigned counsel
and unto this Honorable Court, most respectfully states that:

1. Through an Order1 dated _____________________, this Honorable

Court dismissed the present case brought on appeal by the
Defendants for the latter’s failure of to file their Memorandum on
Appeal;

2. Thereafter, the Defendants filed a Motion for Reconsideration

with Urgent Motion to Defer Writ of Execution (Defendants’
Motion for brevity) dated _______________which was received by
the Plaintiffs on _______________;

3. The Defendants’ Motion prayed for the reinstatement of the

Defendants’ appeal and the deferment of the writ of execution 2 in
favor of the Plaintiffs;

4. The Plaintiff vehemently objects the contentions of the

Defendants for being palpably contrary to both law and equity;

5. Section 7(b), Rule 40 of the Rules of Court clearly provides

the rule when an appellant fails to file a Memorandum on
Appeal:

Section 7. Procedure in the Regional Trial Court. —

XXX XXX XXX

1
Please refer to Annex “A” of the Defendants’ MOTION FOR
RECONSIDERATION WITH URGENT MOTION TO DEFER WRIT OF
EXECUTION, dated _______________.
2
Please refer to Annex “B” of the Defendants’ MOTION FOR
RECONSIDERATION WITH URGENT MOTION TO DEFER WRIT OF
EXECUTION, dated _______________.

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 (b) Within fifteen (15) days from such notice, it shall be
the duty of the appellant to submit a memorandum
which shall briefly discuss the errors imputed to the
lower court, a copy of which shall be furnished by him to
the adverse party. Within fifteen (15) days from receipt of
the appellant's memorandum, the appellee may file his
memorandum. Failure of the appellant to file a
memorandum shall be a ground for dismissal of the
appeal. (Emphases and underscoring added)

6. Second, mere apologies should not be sufficient to defeat the

express provision of the law and prejudice vested rights;

7. In paragraph _______________of the Defendants’ Motion the case

of Philippine Bank of Communications vs CA 3 was cited by
the Defendants. Although the aforementioned said case opines
liberal application of procedural rules, the said jurisprudence
also provides that:

“In those rare cases where we did not stringently apply

the procedural rules, there always existed a clear need
to prevent the commission of a grave injustice.”
(Emphases and underscoring added);

8. Verily, the defendant never cited any “clear need” what would
serve as a ground for relaxation of the procedural rules. Further,
the liberal application of procedural rules should be the rare
exception and not the general practice;

9. Finally, in relation the defendant’s prayer regarding to defer the

writ of execution the case of Sarmiento vs Zaratan4, is
illustrative in this present case, to wit:

“The applicable provision is Section 19, Rule 70 of

the Rules of Court, which reads:

SEC. 19. Immediate Execution of judgment; how to stay

the same.- If judgment is rendered against the defendant,
execution shall issue immediately upon motion,
unless an appeal has been perfected and the defendant to
stay execution files a sufficient supersedeas bond,
approved by the Municipal Trial Court and executed in
favor of the plaintiff to pay the rents, damages, and costs
accruing down to the time of the judgment appealed
from, and unless, during the pendency of the appeal, he
deposits with the appellate court the amount of rent due
from time to time under the contract, if any, as

3
G.R. No. 218901, February 15, 2017.
4
G.R. No. 167471, February 5, 2007.

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 determined by the judgment of the Municipal Trial Court.
x x x.

To stay the immediate execution of judgment in ejectment

proceedings, Section 19 requires that the defendant-
appellant must (a) perfect his appeal, (b) file a
supersedeas bond, and (c) periodically deposit the
rentals falling due during the pendency of the appeal.”
(Emphases and underscoring supplied)

10. It is beyond cavil that none of the aforementioned

requirements were accomplished by the Defendant in this
case, there was no appeal perfected, no supersedes bond, nor
deposit of rentals;

PRAYER
WHEREFORE, PREMISES CONSIDERED, it is most
respectfully prayed of this Honorable Court that the Motion of the
Defendant be denied.

Other reliefs just and equitable under the premises are

likewise prayed for.

RESPECTFULLY SUBMITTED.

Davao City, Philippines, _______________.

LAW OFFICE
Counsel for the Plaintiffs
_______________
_______________
_______________

By:

ATTY. _______________
IBP No. _______________
PTR No. _______________
Roll No. _______________
MCLE Compliance _______________

Copy Furnished:

ATTY. _______________ Received By.: ______________

_______________
Counsel for the Defendants Date Received: _____________
_______________
_______________

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