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[ GR No. L-9174, Jan 25, 1956 ]



98 Phil. 232

[ G.R. No. L-9174, January 25, 1956 ]




This is a petition for  certiorari  and mandamus with preliminary injunction interposed by Joaquin Ledesma, in his capacity as Mayor of Cadiz, Negros Occidental, seeking to set aside the order of respondent judge dated May 24 1955 directing the execution of the judgment rendered in the main case as w his order of May 23, 1955 denying the  offer of petitioner to put up a supersedeas bond to forestall  said execution.

Jose Agapuyan instituted an action in the Court of First Instance of Negros Occidental against Joaquin Ledesma, in his capacity  as Mayor of Cadiz, Negros Occidental, seeking his reinstatement as chief of police of said mun (Civil Case No. 3132).  He  claimed that he was removed  as chief of police defendant without cause on July 1, 1946 and that notwithstanding the effort made to secure his reinstatement immediately thereafter no action was taken thereon by the Undersecretary of Interior. But with the change of  administration in  January, 1954,  he revived his fight and on June 3, 1954 the then Governor of Negros Occidental ordered defendant to reinstate him to his position as of police.  This order was ignored by , defendant, hence the action he has taken.

On August 16, 1954, defendant filed a motion to dismiss on two grounds: (1) the action  has already  prescribed,, and  (2)  plaintiff had abandoned his claim by accepting another position in the government  service. This motion having been denied, defendant put in an answer setting up the same defenses he had alleged in his,motion to dismiss. Thereupon the par concluded a stipulation of facts and  on its strength submitted case for decision.

On April 15,  1955,  the court rendered decision, which was later amended, ordering defendant to reinstate plaintiff to his position as chief  of police directing the municipality of  Cadiz to  pay him his back salaries from Jul 1946 to July 1, 1948, without pronouncement as to costs. Defendant filed motion for reconsideration, and when this was denied, he gave notice of his intention to appeal.

On May 14, 1955, plaintiff filed a motion for execution invoking section 2, of the Rules of Court, which was vigorously objected to  by  defendant who invoked weighty reasons showing why said motion should be denied, but the court, ignoring the  plea, granted the motion for execution on  the  main ground  that  the appeal  which defendant was interposing was suspicious an was taken merely  for  purposes of delay.  Notified  of  the adverse resolution defendant, as an alternative, gave notice of his desire  to put  up a supersedeas bond in an effort to stay the execution  but this move was also denied the court. These  two orders  gave  rise  to  the present  petition certiorari.

Under section 2,  Rule 39, the court may, in the exercise of its discretion order of execution,  on  motion of the  prevailing party, with notice to  the adverse  party, "upon  good reasons  to  be  stated  in  a  special order," However,  if the execution  is  issued before  the expiration of the time t appeal, it "may be stayed upon the approval by the court of a sufficient supersedeas bond filed by the appellant, conditioned for the performance of the judgment or order appealed from  hi case it be affirmed wholly or in pa Are there  good  reasons justifying the issuance of an order of execution d the pendency of the appeal in the  present  case? In  the affirmative  case there sufficient justification, for denying  the supersedeas  bond offered appellant?

"The requirement as to special reasons is  one the importance of  which trial courts must not overlook.   If the judgment is executed and, on appeal, the same  is reversed, although there  are provisions for restitution,  oftentimes damages may  arise which cannot be fully compensated. Accordingly, execution should be granted, only  when these considerations are clearly outweighed b superior circumstances demanding urgency,  and the above provision requires statement of those circumstances as a  security for their existence" (Aguilos vs. Barrios, et al., 72  Phil., 285).

A careful perusal of the order of respondent judge which grants the execution of the decision rendered in the main case would show that the reasons which served to justify the issuance of said execution do not outweigh the import of those  considerations we have  above adverted to for  they are  not founded on  sound factual basis.  The order seems to be predicated on the impression that the appeal being interposed by appellant was merely for purposes of delay and not because of an honest desire  to get a review of the decision based on sound .legal grounds. There is an intimation that the appeal was merely prompted by a desire to cause prejudice to  the plaintiff

While as a rule the power to grant or deny a motion for execution is address to  the sound discretion of the court, and generally  the appellate  courts should not interfere to modify,  control or  inquire  into the exercise  of discretion, however,  the  intervention becomes necessary when it is shown there has been  an abuse thereof.[1] Such is the  situation obtaining  herein Petitioner has charged respondent judge with  such an abuse and the facts o record seem  to  support it.  This can  be clearly seen by considering the special  defenses set up by the defendant in his answer,  to wit, that the of plaintiff has  already prescribed and  that he had abandoned his former office by accepting another  position in the government service.   These defenses cannot  easily be brushed aside for they  are borne out by the stipulation of facts. There it appears that plaintiff was removed from office on July 1, 1946 and that his efforts to obtain reinstatement administratively since September 19,  1946 and yet he  took action in court  only  on  August 1954.  Considering that  the  proper action  opened to him was  quo waranto, and not mandamus, it would appear that such action has already prescribed under section  16, Rule 68 (Tumulak  vs. Egay, 82  Phil., 828, F 24,  1949; Martines vs. Ozaeta, et al.,  G. R.  No.  L-2430, May 30, 1949).

It likewise appears that on July 1, 1948, plaintiff was appointed, as tempo ranger in the Bureau of Forestry with an annual  salary of P1,140 and was l promoted to senior forest guard as permanent employee in the same Bureau, and on June 21, 1954 he addressed a letter to defendant stating  therein that he was no longer interested in his reinstatement.  The acceptance of these positions bars plaintiff  from pressing  his claim for reinstatement.[2]

Another noteworthy circumstance is the  offer made by defendant to put  up a supersedeas bond to forestall the plea for execution but  even this  relief denied for no  apparent reason when under  the rule this right  is express acknowledged when there are reasons justifying it (section 2, Rule 39).

It appearing  that respondent  Jose Agapuyan  was  already reinstated to his former position when the writ of preliminary injunction was issued  by this on June 3, 1956, the motion for contempt  filed by  petitioners on September 1955 has now become moot.  Accordingly, we are  dissolving  said writ of preliminary injunction.

Wherefore,  the  orders  of  respondent  judge dated May 23 and  May 24, 1955  are hereby set aside, without pronouncement as to.  costs.

As a consequence, the  Court hereby orders respondent Agapuyan  to  vacate the  position of  chief  of police  and restore  it to Manuel R. Solivio whom had replaced by virtue of an improper writ of execution subject  to  the outcome of the main, case which is pending appeal in this Court.

The writ  of preliminary injunction is  hereby dissolved.

ParĂ¡s, C,  J., Padilla, Montemayor, Reyes, A., Labrador, Concepcion,  Reyes, J. B. L,, and Endencia,, JJ., concur.

[1] Federal Films, Inc. vs. Ocampo, 78 Phil., 479, 44 Off. Gaz. (No. 10) 8819 vs. Gutierrez, 4 Phil., 203;  Case vs. Metropole Hotel & Restaurant, 5 Phil Camay vs. Gutierrez David, 48 Phil., 768; Buenaventura vs. Pena, 78 Phil., Off.  Gaz. (No. 12) 4923; Ong Sit vs. Piccio, 44 Off. Gaz.,  (No. 12)  4915 Naredo vs. Yatco, 80 Phil., 220, 45 Off. Gaz., (No.  8)  3390.

[2] Floresca vs. Getulio, 82 Phil., 128; Madumba vs. Ozaeta, 82 Phil., 345; Potot vs. Bagano, et al., 82 Phil., 679; Argos vs. Veloso, et al., 83 Phil., 929.