To: LMS

From: CBA
22 November 2018

FACTS: The parties filed a Motion for Consolidation of Titles in the name of the bank.
A decision was rendered consolidating the titles. Since no redemption was exercised,
the property was foreclosed, and the decision consolidating the titles were executed. A
Petition for Review was filed with the SC questioning the execution and decision of the
judge. Execution is being questioned because the subject property is a family home, not
even a collateral to the loan, and the owner thereof is not even the one who obtained the
loan.

QUESTION: What remedy is available to stop the execution of the judgment, while
there is a pending petition for review before the SC.

BRIEF ANSWER:
1. File for the issuance of a temporary restraining order or the writ of preliminary
injunction with the Court where the Petition for Review on Certiorari is pending
2. Question the elements of a “discretionary execution” of judgment under Rule 39,
Section 2; or stay the discretionary execution by the filing of a supersedeas bond.
3. Question the timing of execution. (i.e., dormant judgment)

DISCUSSION

1. TEMPORARY RESTRAINING ORDER. Stated below are the instances wherein

the Court may refuse to enforce a final and executory judgment:

a) When subsequent facts occur which render execution impossible, unjust, or

inequitable;
b) Where the judgment has been novated by the parties;
c) Where the judgment obligor had already complied with the judgment; and
d) Where temporary restraining order or preliminary injunction is issued by the proper
court in a petition for relief from judgment under Rule 38, petition for annulment of
judgment under Rule 47, or petition for certiorari, prohibition, and mandamus under
Rule 65.

2. DISCRETIONARY EXECUTION. Since there is a pending Pet Rev before the SC, a
“discretionary execution” is contemplated. This is the execution ordered by the court
in its discretion of a judgement or final order during the pendency of an appeal.
(Section 2, Rule 39)

Discretionary execution may only issue IF the following are present. The absence of one
renders the discretionary execution improper:
 a. Motion of the prevailing party with notice to the adverse party; and
b. Upon good reasons to be stated in the special order after due hearing.

“Good reasons are those which constitute superior circumstances demanding urgency
which will outweigh the injury or damages should the losing party secure the reversal
of the judgment. The Rules of Court did not intend that execution pending appeal
shall issue as a matter of right. (Ong v. CA, 203 SCRA, 1991)

The ground that the appeal is dilatory and that a bond was posted by the prevailing
party are by themselves not sufficient to constitute good grounds for the issuance of
discretionary execution.

Likewise the mere posting of a bond is not a good ground for the issuance of
discretionary execution. Otherwise execution pending appeal would issue as a matter of
course. (Ong v. CA, 203 SCRA, 1991)

SUPERSEDEAS BOND. The discretionary execution may be stayed upon the approval
by the proper court of a sufficient supersedeas bond filed by the party against whom it
is directed, conditioned upon the performance of the judgment or order allowed to be
executed in case it shall be finally sustained in whole or in part. The supersedeas bond
may be proceeded against on motion with notice to the surety.

The court which issued the order for execution pending appeal shall approve the
supersedeas bond (Jose Feria, 1997 Rules of Civil Procedure at page 117). However,
once the original record or the record on appeal is transmitted to the appellate court, it
is only that court which can approve the supersedeas bond.

DORMANT JUDGMENT. If what is involved is a dormant judgment in a foreclosure

proceeding, execution cannot be made by a simple motion.

A final and executory judgment may be executed by a mere motion within 5 years from
the date of its entry. (Section 6, Rule 9). If a writ of execution was issued and levy made
within the 5 year period, the auction sale of the property thereafter will be valid
provided it is made within the ten-year period. If no levy was made within the 5-year
period, the writ of execution may no longer be enforced by motion.

After the lapse of 5 years from the entry of a final judgment, the same may be enforced
only by an independent action. The prevailing party should have filed an action for the
revival of the judgment after 5 years but within 10 years from the date of entry (Article
1144, Civil Code)

FAMILY HOME
On the execution of the family home, normally the exemptions under Section 13 Rule 29
must be claimed at the time the sheriff is effecting the levy and garnishment otherwise
these are deemed waived. (Herrera v. McMicking, 14Phil641) Note, however, that in the
cases of exemption of the family home, the same may be raised before the sale of the
property. (Spouses Versola v. CA, 31 July 2006)