Rule 38

Title:
G.R. No. 77353
July 30, 1987
ASSOCIATED BANK, petitioner, vs. HON. ARSENIO M. GONONG, in his capacity as Presiding Judge of the Regional
Trial Court of Manila, Branch VIII; ROLE, INC. and ROMEO R. ECHAUZ, respondents.
Facts:
The petition was filed on February 17, 1987. Private respondents Role, Inc. and Romeo R. Echauz filed their
Comments on March 24 and March 27, 1987 respectively. The petitioner filed its Reply on June 16, 1987. We
treat the Comments as the respondents' Answers and decide the petition on its merits.
This case has its origins in a complaint for the recovery of a sum of money filed by petitioner Associated Bank
against respondent ROLE, Incorporated and Romeo R. Echauz before the then Court of First Instance of Manila,
Branch 37.
On November 3, 1986, the trial court rendered its decision in favor of the petitioner. On November 6, 1986,
respondent ROLE filed its notice of appeal. On November 24, 1986, respondent Echauz followed suit.
Meanwhile, on November 19, 1986, the petitioner filed a motion for execution pending appeal.
On December 16, 1986, the respondent court issued the questioned order denying the petitioner's motion for
execution on the ground that the notices of appeal seasonably filed by private respondents had already been
given due course when he issued his previous orders. According to the court, the filing of the respondents'
notices of appeal and its approval of those notices deprived the trial court of jurisdiction to entertain the
motion for execution pending appeal.
Issue:
WON trial court loses its jurisdiction to decide on a motion for execution of judgment pending appeal when a
notice of appeal had already been perfected by respondent?
Held:
No, as long as the 15 day reglamentary period had not yet elapsed the trial court still has jurisdiction.
Ratio:
As long as any of the parties may still file his, her, or its appeal, the court does not lose jurisdiction over the
case.
The plaintiff or plaintiffs may not deprive the defendants or co-plaintiffs and neither may the defendant or
defendants deprive the plaintiff or co-defendants of the right to file a motion for reconsideration or to move for a
new trial or an execution pending appeal by immediately filing a notice of appeal. The filing of an appeal by a losing
party does not automatically divest the party favored by a decision of the right to move for a more favorable
decision or to ask for execution pending appeal. It is only after all the parties' respective periods to appeal have
lapsed that the court loses its jurisdiction over the case. As pointed out in Universal Far East Corporation v. Court of

Appeals (131 SCRA 642) the period when a court considers and acts upon a motion for execution may take some
time. As a matter of fact, the resolution of a motion may take place long after the expiration of the reglementary
fifteen-day period for appeal.
As early as 1934, this Court in People v. Ursua (60 Phil. 252) stressed this mode of determining when an appeal is
perfected.An appeal by the defendant in a criminal case does not result in the court's losing its jurisdiction to
entertain a motion for reconsideration filed by the offended party, insofar as civil liability is concerned, within the 15day period. Thus we held in Ursua:
... If the accused has the right within fifteen days to appeal from the judgment of conviction, the offended party
should have the right within the same period to appeal from so much of the judgment as is prejudicial to him, and
his appeal should not be made dependent on that of the accused. If upon appeal by the accused the court
altogether loses its jurisdiction over the cause, the offended party would be deprived of his right to appeal, although
fifteen days have not yet elapsed from the date of the judgment, if the accused files his appeal before the expiration
of said period. Therefore, if the court, independently of the appeal of the accused, has jurisdiction, within fifteen
days from the date of the judgment, to allow the appeal of the offended party, it also has jurisdiction to pass upon
the motion for reconsideration filed by the private prosecution in connection with the civil liability of the accused. (at
pp. 254-255).
The above ruling was reiterated in Simsim v. Belmonte (34 SCRA 536) where we stated:
Timoteo Simsim balked at the order to amend the record on appeal. contending that it was beyond the power of the
Court to issue once his appeal had been perfected by the approval of the record. ...
... Furthermore, such a view would place it within the power of one of the parties, by the simple expedient of
immediately perfecting his appeal, to deprive the other party of the right to ask for a reconsideration of the decision,
let alone to have the court approve his own appeal if such a motion is denied. These consequences find no
justification in the Rules. (at pp. 538 & 539).

Rule 38
Title:
TOMAS HILARIO, VICENTE BAGUIO, J. N. BELTRAN and MARIANO FUENTECILLA, Plaintiffs-Appellees, v. W. E. HICKS,
KUENZLE & STREIFF, ALHAMBRA CIGAR FACTORY, PACIFIC COMMERCIAL COMPANY, MANILA WINE MERCHANTS & CO.
(FORMERLY SULLIVAN & FRANCIS), SAN MIGUEL BREWERY and DIONISIO VIDAL, as deputy sheriff, DefendantsAppellants.
Facts:
This action was instituted by the plaintiffs to recover damages supposed to have been incurred by them in
consequence of the alleged wrongful sale of certain land under an execution issued upon a judgment of the
Court of First Instance of the Province of Lanao.
On May 13, 1913, W. E. Hicks, Kuenzle & Streiff, Alhambra Cigar Factory, Pacific Commercial Company, Manila
Wine Merchants, Anderson & Company, and the San Miguel Brewery hereafter collectively referred to as the
creditors obtained a judgment in case No. 292 in the Court of First Instance of the Province of Lanao for the
sum of P30,827.40 against one A. E. Kramer, as administrator of the estate of Frank Shephard, deceased. In
this action there were joined as codefendants with Kramer numerous other individuals who had become
solidarily bound with Kramer on his bonds as administrator, and judgment was rendered in the same action
against these sureties to the extent of the liabilities respectively assumed- by them. The plaintiffs herein, to
wit, Tomas Hilario, Vicente Baguio, J. M. Beltran, and Mariano Fuentecilla, were four of the bondsmen of
Kramer against whom judgment was rendered in said proceeding.
From the judgment thus rendered an appeal was taken to the Supreme Court by the defendants; and on
August 17, 1916, this court rendered judgment in case No. 292, 1 reversing the judgment of the Court of First
Instance and reducing the amount of the recovery to P2,673.18. Soon after the original judgment had been
rendered for P30,827.40, as above stated, in the Court of First Instance against the numerous parties who
were defendants in that action, the creditors procured an order for the immediate execution of the judgment.
An execution was accordingly issued and 48 parcels of real property were levied upon and sold on April 25,
1914, as property of one or the other of the numerous defendants, in addition to certain personal property
pertaining to Kramer and other personal property belonging to C. L. Molo, one of the sureties.
In considering the rights of the parties to this litigation, as affected by the reduction of the recovery in case
No. 292 by the Supreme Court, it must be borne in mind that, though the execution of the judgment of the
Court of First Instance in that case was premature, the sale of the properties belonging to the execution
debtors in that action was lawful. Said sale was effected under a lawful order of the Court of First Instance;

and when the property was levied upon and sold at public auction, the levy was not excessive. In fact the
property sold brought much less than the amount of the judgment as it then stood. Admitting, however, that
the sale was in itself legal, it is evident that, when the Supreme Court reduced the amount of the recovery, it
immediately became the duty of the creditors to make restitution, and, so far as practicable, to restore the
parties to the position which they would have occupied if the original judgment had been for the amount
finally awarded by the appellate court.
Now, in order to discover the true scope and extent of the duty of the execution creditor in a case of this kind,
it is important to consider the exact nature of the judgment finally rendered in the appellate court, that is, to
discover whether that judgment was really a reversal or a mere modification of the original judgment; for by
this distinction must the question be determined whether the creditor can be compelled to make specific
restitution of the properties bid in by him or can only be required to restore the excess actually realized by the
sheriffs sale. The authorities are practically harmonious upon the proposition that specific restitution can be
enforced in case of a complete reversal, but it is generally accepted that if the judgment is merely modified in
its amount and affirmed in other respects, the creditor cannot be compelled to make specific restitution,
though he can be required to restore the excess realized upon the execution over and above the amount
finally awarded.
In the case before us the judgment of this court was in terms a reversal, and a new judgment was rendered
for the amount found to be actually due; and we are of the opinion that, for the purposes of this litigation,
such an order must be taken to operate with all the effect of a complete reversal. It is undoubtedly true, as is
observed by the author of the annotation to Cowdery v. London and San Francisco Bank, in volume 96 of the
American State Reports, at page 126, that appellate courts sometimes, and perhaps often enter orders of
reversal without having in mind the questions which may afterwards be presented because of proceedings
taken under a judgment while it remained in force, and when, in view of those questions a modification rather
than a reversal should have been directed, nevertheless when the order is made and free from ambiguity, it
must be given effect in the form in which it is framed. "If an order declares that a judgment is reversed, it
must be treated as at an end." (Id., p. 126.)

Issue:
WON the buyers at the auction sale should restitute the properties they bought to the respective owners?
Held/Ratio:
Now, in order to discover the true scope and extent of the duty of the execution creditor in a case of this kind,
it is important to consider the exact nature of the judgment finally rendered in the appellate court, that is, to
discover whether that judgment was really a reversal or a mere modification of the original judgment; for by this
distinction must the question be determined whether the creditor can be compelled to make specific restitution of
the properties bid in by him or can only be required to restore the excess actually realized by the sheriffs sale. The
authorities are practically harmonious upon the proposition that specific restitution can be enforced in case of a
complete reversal, but it is generally accepted that if the judgment is merely modified in its amount and affirmed in

other respects, the creditor cannot be compelled to make specific restitution, though he can be required to restore
the excess realized upon the execution over and above the amount finally awarded.
In the case before us the judgment of this court was in terms a reversal, and a new judgment was rendered for the
amount found to be actually due; and we are of the opinion that, for the purposes of this litigation, such an order
must be taken to operate with all the effect of a complete reversal. It is undoubtedly true, as is observed by the
author of the annotation to Cowdery v. London and San Francisco Bank, in volume 96 of the American State Reports,
at page 126, that appellate courts sometimes, and perhaps often enter orders of reversal without having in mind the
questions which may afterwards be presented because of proceedings taken under a judgment while it remained in
force, and when, in view of those questions a modification rather than a reversal should have been directed,
nevertheless when the order is made and free from ambiguity, it must be given effect in the form in which it is
framed. "If an order declares that a judgment is reversed, it must be treated as at an end." (Id., p. 126.)
In the case referred to (Cowdery v. London and San Francisco Bank, 139 Cal., 298-[96 Am. St. Rep., 115]), it
appeared that the Supreme Court of California had made an order reversing a judgment of an inferior court and
remanding the cause with directions to the trial court to enter judgment for a smaller amount. This was held to
constitute a reversal and to justify the setting aside of a sale that had been made pursuant to the original decree of
the lower court in which the plaintiff had become purchaser. In discussing the point now under consideration, the
Supreme Court of California said:jgc:chanrobles.com.ph
"The legal effect of the order of the supreme court was to reverse and vacate the judgment, and not merely to
modify it. Upon a decision of the Supreme Court that there was material error in the action of the court below, that
court may direct the character of the subsequent proceedings in the lower court, and its mandate will vary according
to its views as to the proper course to be pursued. It may conclude not to reverse the judgment, but to modify it, by
eliminating some portion, or by adding something to it, leaving the remaining part of the judgment below to stand
affirmed and in full force and effect from the date of its original entry or rendition; or it may reverse the judgment,
which means to entirely vacate it, and may remand the cause for new trial; or if a new trial is not necessary, it may
upon the reversal remand it, with directions to the lower court to enter a particular judgment. To reverse is to
overthrow; set aside; make void; annul; repeal; revoke; as, to reverse a judgment, sentence, or decree. (Century
Dictionary), or, to change to the contrary, or to a former condition. (Standard Dictionary). . . . The distinction
between a reversal of a judgment and an affirmance with a modification is too marked and radical to justify us in
disregarding it. . . . We are bound to assume that this court in this case acted advisedly and deliberately, and had
good reason for ordering a reversal rather than a modification and affirmance. The part of the order directing the
entry of a new judgment related solely to the proceedings after the reversal and the return of the case to the court
below, and was not intended to, nor could it, change the reversal to a mere modification. Neither can the fact that it

may now appear to us that the same result could have been reached by a modification justify this court in now
changing the effect of the mandate."cralaw virtua1aw library
In view of the foregoing, the final judgment entered upon appeal in case No. 292 must be considered to have been a
reversal rather than a mere modification of the original judgment and upon this hypothesis we proceed to consider
the effect of this reversal upon rights of the respective parties.
Upon one proposition all authorities concur, which is, that as to those properties which were sold by the sheriff to
third parties, the sale is in no wise affected by the subsequent reversal of the judgment by the Supreme Court. The
doctrine is everywhere accepted that the title of one who buys at a sheriffs sale, being a stranger to the
proceedings, will not be affected by the subsequent reversal of the judgment, unless of course for want of
jurisdiction over the subject matter or over the party whose title was sought to be divested. (10 R. C. L., 1233; 17
Cyc., 1309.) Therefore, as to those properties which were sold to third parties, the obligation of the creditors is
limited to the duty to account for the amount realized at the sheriffs sale in excess of the amount of the final
judgment, together with interest upon such excess from the date of the sale.
The position of a creditor with respect to property bid in by him is different; and it is held with practical unanimity
that the creditor buying at his own sale takes subject to the eventuality of the lawsuit and may be required, if the
execution debtor so elects, to surrender the property and account for mesne profits when the judgment is finally
reversed. (See cases cited in note to Cowdery v. London and San Francisco Bank, 96 Am. St. Rep., 137-139; 17 Cyc.,
1310; 10 R. C. L., 1233). The same rule is applicable where the attorney of the plaintiff in the execution becomes the
purchaser. (Galpin v. Page, 18 Wall. [U. S. ], 350 [21 L. ed., 9591])
As was said by the Supreme Court of California in Reynolds v. Harris (14 Cal., 681 [76 Am. Dec., 459]), "a party
obtaining through a judgment, before reversal, any advantage or benefit, must restore what he got to the other
party, after the reversal;" and in a later case the same court observed "The true condition of the sale as valid or
invalid we consider to be this: The sale was valid at the time it was made; but the plaintiff in the execution having
become the purchaser, it was liable to be set aside upon the reversal or modification of the judgment by this court,
or by the court below upon the return of the case, upon motion." (Johnson v. Lamping, 34 Cal., 301.)
The right to obtain specific restitution of the properties bought in by the creditors carries with it as a necessary
incident the right to require an accounting as to the rents and profits. (Delano v. Wilds, 11 Gray [Mass. ], 17 [71 Am.
Dec., 687].)
Rule38
Title:

A.M. No. 1065

January 31, 1978
ANDRES M. AQUINO, Complainant, vs. MELECIO N. AFICIAL, Deputy Sheriff, Court of First Instance, Dagupan City,
Respondent.
Facts:
In his sworn letter-complaint dated August 21, 1975 Andres M. Aquino charged the respondent Melecio N.
official, Deputy Sheriff of the Court of First Instance at Dagupan City, with "misconduct, inefficiency,
incompetence in the performance of official duties and conduct prejudical to the best interest of the service"
in the implementation of a writ issued by the City Court of Dagupan, Branch II, pursuant to a judgment in
favor of the herein complainant in an ejectment case, Civil Case No. 1411-75 entitled "Antonio M. Aquino vs.
Pancho M. Patungan".
The charges are based on the respondent's alleged failure to levy on the goods and chattels of the judgment
debtor Pancho M. Patungan when said writ of execution was served on May 12, 1975. The pertinent
allegations of the letter-complaint are:
That the defendant is a lessee of a portion of the store space No. 376 located at Avenida Torres Bugallon,
Dagupan City, he being a shoemaker and dealer of made to order and high quality shoes; that he owns a
grinding machine worth P1,000.00 more or less; Electric fan worth P200.00; Refrigerator worth P1,500.00
more or less; gas range North P200.00 more or less and 100 pairs of high quality and made to order shoes
worth more or less P1,500.00; That these personal properties were all in the store of the defendant when the
Writ of Execution was actually served on the 12th of May 1975. That before the Writ of Execution was served,
Deputy Sheriff Melecio N. Aficial advised me to hire a jeep to haul the personal properties of the defendant to
which I readily complied by hiring a Ford Fiera for P11.00; That out of respect, courtesy and gratitude to the
good advice of Sheriff Melecio N. Aficial and his promise to seize the personal properties of' the defendant, I
treated said Deputy Sheriff Melecio N. official together with his companions namely, Mr. Juanito C. Salcedo and
Pat. Pablo de Asis at the Dagupan City Panciteria by serving them food and cigarettes at around 9:00 A.M., on
May 12, 1975. A friend of mine, Mr. Federico Maramba joined us in this happy-happy affairs; Nevertheless I am
very sorry to file this letter-complaint because Deputy Sheriff Melecio N. Aficial surprisingly failed to make
good his promise and legal obligation to seize the above-enumerated personal properties of the defendant
which were in his store after Atty. Victor Llamas whom the defendant requested to intercede for him nave a
talk with the said sheriff;
That instead Deputy Sheriff acceded to the promise of the defendant to settle the total obligation with the
Sheriffs Office on or before May 19, 1975.
Attached to the letter-complaint is a copy of respondent's return dated August 11, 1975 wherein it is stated
that the writ of execution had been "duly served but not satisfied", with this explanation:
Upon investigation of his personal or real properties said judgment-debtor has no properties not exempt from
execution. However said judgment-debtor is willing to settle the judgment obligation some other days.

On September 2, 1975, this Court's Executive Officer, Atty. Arturo B. Buena, referred the letter-complaint
through the Executive Judge of the Court of First Instance, Dagupan City, to respondent for his comment
within ten (10) days from receipt thereof.
In his answer dated September 17, 1975, the respondent explained that he failed to levy on the goods and
chattel of the judgment debtor because:
That on said date, May 12, 1975, together with Pat. Pablo de Asis of the Dagupan City Police Department, we
proceeded to the portion of the store space at No. 376, Torres Bugallon Avenue, Dagupan City, where the
judgment-debtor Pancho Patungan is and served the said writ but refused to sign or acknowledge the same
and witnessed by Pat. Pablo de Asis and Mr. Juanito C. Salcedo, as evidenced by their signatures at the back of
the original writ. After explaining to him the contents of the Execution, he went out and brought his copy to
his counsel and after a few minutes he came back with Atty. Victor T. Llamas, Jr. (Affidavit of Atty. Victor T.
Llamas, Jr. is hereto attached.) His counsel interceded and promised the undersigned to settle the total
obligation on or before May 19, 1975 which I have agreed and with the consent of the plaintiff-complainant.
But I instructed said defendant to move out or vacate the premises. Before this, the plaintiff-complainant told
and requested me that even though we could not collect the obligation stated therein provided, you instruct
him to vacate the premises at the earliest possible time because he always makes disturbance inside the
store having a drinking spree with his friends almost daily of which said defendant has complied with on the
next day. virtual law library
After that period, May 19, 1975, said defendant has not fulfilled or settled the total obligation but, instead he
requested again to settle it between June 16, to 20, 1975, as he alleged to me that he has an application for a
loan with the PCI Bank to be released soon. After that number of days when he has not complied again, I went
to his residence at Malued Dist., Dagupan City, but informed me that his loan was not yet approved.
With respect to the allegations of the plaintiff-complainant that the defendant- lessee owns a grinding
machine, electric fan refrigerator, gas range and 100 pairs of shoes, the truth of the fact is that, there were
only five pairs of shoes inside the shelf (display), which were ordered by and owned by his customers and
there are no other shoes as alleged by the complainant; the electric fan and refrigerator are not yet owned by
the defendant as they have a prior lien with the Radiowealth Finance Company; the tools and implements and
cooking utensils inside the premises cannot be levied upon as they are exempt from execution. A certification
of the Radiowealth Finance Co., and affidavits of Pat. Pablo de Asis and Mr. Juanito C. Salcedo are hereto
enclosed herewith.
The certification of the Radiowealth Finance Company attached to the answer attested that the refrigerator of
the judgment debtor Pancho M. Patungan was pay out" by the said company on May 31, 1975. 4 The affidavits
of Victor T. Jr., Pablo de Asis and Juanito Salcedo 5 corroborated respondent's report on the service of the writ
of execution.

Upon being furnished with a copy of respondents answer, the complaint wrote a letter dated November 4,
1975 6 to executive Officer Arturo B. Buena reiterating his plea that the complaint be formally investigated.
There is no need to conduct a formal investigation of the charges. The facts of record insufficient provide a
basis for determination of respondent's liability. There is no question that the respondent failed to levy on the
refrigirator, gas range, electric fan and the pairs of shoes found at the store of the judgment debtor, Pancho
M. Patungan when the writ of execution was served on him on May 12, 1975.

Issue:
WON the Sheriff entered into a valid compromise agreement with judgment debtor?
Held:
No!
Ratio:
Section 15, Rule 39 of the Rule of Court explicitly makes it the duty of the sheriff to levy on all the property or
on a insufficient amount of such property of the judgment debtor not exempt from execution, as will satisfy the
amount of the judgment and costs included in the writ of execution. While the respondent was justified in not on the
cooking utensils and the tools and implements used by the judgment debtor in shoemaking , his trade, for these are
exempt from execution, it was incumbent upon said respondent to levy on the other properties found within the
premises occupied by the judgment debtor.
Respondent's claim that these other properties were subject to a prior Hen in favor of the Radiowealth Finance
Corporation is no excuse for respondent to shrink from his duty to implement the writ of execution. The judgment
debtor had a tangible and definable interest in these properties which was of value and not exempt from execution.
It was respondent's duly to make the levy. The said Radiowealth Finance Corporation could properly protect its
interest by filing a third party claim with respondent in accordance with Section 17 of Rule
39.chanroblesvirtualawlibrarychanrobles virtual law library
Respondent's contention that he acceded to the judgment debtor's promise to pay at a later date because of an
alleged with complaint is not tenable. His authority under the writ of execution does not embrace the power to
compromise with the judgment debtor. Any extra judicial agreement should be between complainant and the
judgment debtor.
Respondent's unwarranted failure to levy on execution the Properties of the judgment debtor not exempt from
execution constitutes negligence in the performance of official duties. His negligence not only had caused damage
to complaint, but more importantly had impaired public faith and confidence in the administration of justice by our
court. As held by this Court in Recto vs. Racelis:

... The image of a court of justice is necessarily mirrored in the conduct, official or otherwise, of the men and women
who work thereat, from the judge to the least and lowest of its personnel hence, it becomes the imperative sacred
duty of each and everyone in the court to maintain its good name and standing as a true temple of justice.
Negligence in the performance of official duties is one of the grounds for diciplinary action against public officials
and employees under Presidential Decree No. 6. It falls under the classification of a leas grave offense in accordance
with Civil Service Commission Memorandum Circular No. 8, Series of 1970. 8Considering the lances of the case and
in fine with Our decisions in Recto vs. Racelis 9 and Estioko, Sr. vs. Cantos, 10 the appropriate imposable penalty for
respondent's negligence is suspension from office for six (6) months without pay.
WHEREFORE, the respondent Melecio N. Aficial, is declared of gross negligence in the performance of his duties as
Deputy Sheriff of the Court of First Instance of Dagupan City, and he is hereby suspended from office for a period of
six (6) months without pay to commence immediately after the final entry of judgment in this case, with the
seaming that a repetition of the same or similar act wig be dealt with more severely.