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[ GR No. L-13932, Dec 24, 1959 ]



106 Phil. 745

[ G. R. No. L-13932, December 24, 1959 ]




Petition for certiorari to revoke  the  order of the respondent judge cancelling his previous order of execution. For the reasons stated hereinafter, it should be denied.

It appears that in Civil Case No. Q-2664 of Quezon City Court of First Instance, the parties submitted on December 9, 1957, a compromise  agreement whereby, referring  to the sale by installment of a  parcel of land made  by plaintiffs  Pacita  V. de los Santos and Jose V.  de los Santos to defendant Francisco Mendonez, they asked the court to render a judgment subject to the following conditions:
"a. On or before December  26, 1957,  defendant  shall  pay  to plaintiffs the amount of P1,000.00;
b. Defendant shall pay P300.00 monthly installment within the first  five days  of every month beginning January, 1958, until the balance shall have been paid in  full;
c. The  balance  shall bear  interest at 10% per annum;
d. That failure of defendant to pay P1,000.00 on or before December 26, 1957 and/or any two (2) successive monthly installments shall be cause for plaintiffs to demand  of defendant to immediately vacate the premises  with  forfeiture  in plaintiffs  favor  of all previous payments made; that if defendant will refuse to voluntarily vacate, plaintiffs can ask for execution of judgment against the  defendant;
e. That plaintiffs  shall  execute the  necessary absolute deed  of sale of the lot,  Lot No. 4, Block No.  13  C of T.C.T.  No.  25094, Quezon City Registry, in favor of defendant upon  payment in full of the balance."
Wherefore, the court issued on December 10, 1957, a decision approving the agreement, and saying "judgment is hereby rendered in accordance with the terms and conditions set forth therein, for the parties to comply therewith * * *."

On  March 10,  1958,  plaintiffs in the same  case filed a motion for execution, because defendant had  allegedly neglected to  pay monthly installments since January 1958. Plaintiffs set the  motion for hearing on March  15, 1958. However, on March 14, 1958, defendants moved (with the conformity  of  plaintiffs'  counsel)  for  postponement. to March  22,  1958 "to give the  parties sufficient time to come to a more  just, fair and equitable agreement."  (Annex "E")  And the  judge postponed, as requested.

It is not clear what happened at the hearing on March 22, 1958.   According to plaintiffs, Mendoñez admitted he violated the  agreement,  asked  for,  and was granted, two days to settle  with  plaintiffs, but' he  failed to  do  so.
According to defendant  there was a misunderstanding at that hearing. The fact  is, the court issued on March 25, 1958, an  order  of execution.  However, defendant Mendoñez filed on April 17,  1958, an urgent motion  to quash the writ of execution, asserting under oath that "immediately  after the execution of  the compromise agreement *  *  *  plaintiff  Pacita V.  de  los Santos  and defendant Francisco  Mendoñez entered  into  a verbal  agreement whereby the  former assured  and led defendant to believe that provided he could pay  in  full  and at one  time  the balance of his indebtedness to her through a GSIS  (Government Service Insurance System) loan which she is willing to facilitate for defendant, she would execute the necessary deed of absolute sale in favor of the defendant for Lot No.  4,  Block No.  13-C, Pcs-3312-AMD  of T.C.T. No. 25094 of Quezon City and would consider  the terms and conditions favorable to her in their compromise agreement unenforceable against defendant. *  * *."

Defendant further alleged, also under oath, among other things, that he  applied for and secured the necessary loan from  the GSIS;  that plaintiffs had been so  advised  on March 28, 1958;  but plaintiff  Pacita V. de  los  Santos "arbitrarily and illegally demands and continuous demanding of defendant that before she complies with the content of said  (verbal)  agreement,  defendant  should pay  her Pl,000.00 by way of attorney's fees plus the balance of defendant's indebtedness computed by her in the amount of P14,363.00, excluding  interest yet, all to be taken from defendant's GSIS loan as approved, and that the P1,000.00 already paid by defendant to her as stated in paragraph 4, supra, is considered by her forfeited in her favor. * *  *.'

This  urgent  motion was taken up on April 19, 1958. After listening to the parties,  the judge in  open court ordered;  "In view of the statement of counsel for plaintiffs that they are still open to an amicable settlement, action on the  motion to  quash writ  of  execution of the defendant  is held in  abeyance for  two (2) weeks during which period they can settle the case amicably and report to the Court whatever agreement they may have reached."

On April  28,  1958, defendant  manifested in writing that  he conferred with plaintiff Pacita V. de  los Santos on  April 22, 1958, that he made known to her "that he is ready to pay and is  offering  her the sum of P13,563,  his balance indebtedness to her, in  accordance with their verbal  agreement on   December  9,   1957 * * *.  Plaintiff Pacita  V. de los  Santos  brushed  aside  defendant's offer of  payment, and  instead,  stated  that she will abide by their said agreement only  if  she  will  be paid P14,500.00. She added that she is demanding now, P14,500.00 after she has forfeited the Pl,000.00 already paid by  defendant to her,  and that she can not allow the P1,000.00 be deducted from the remaining balance  of P14,563.00."

The  judge called the parties to a pre-trial or conference on June 2, 1958.  Noting  defendant's insistance on  non-violation of the  compromise agreement, he  set the  case for hearing on June 3, 1958.  On said date according to the  Judge, Atty.  Bernardo  (for plaintiffs)  refused  to attend the hearing, and  defendant  proved the material allegations of his urgent motion as herein-above set forth.

Wherefore,  convinced  that  there  was  no  justification for the issuance of the writ of execution, the Hon. Nicasio Yatco, Judge, quashed it by his order of June 4, 1958.

Hence this petition  for certiorari to revoke  that particular order,  which  petition  must  necessarily be based on  lack  of jurisdiction or  abuse  of discretion.[1]

There is no question in this country that a  judge has jurisdiction to quash a writ  of  execution issued  by him, particularly where  it was improvidently issued.   (Dimayuga vs. Raymundo, 76 Phil., 143, 42 Off. Gaz., 2121). See also Garcia vs. Muñoz, 103 Phil., 628.

Was there abuse of discretion?  We think not.  In the first place, there being opposition on the part  of  the defendant, who alleged and proved a subsequent verbal agreement amending the  compromise, execution could not validly be  decreed without a hearing.  As we said  in Co.  vs. Lucero, 100 Phil., 160, 52 Off. Gaz.,  (17), 7255,  when under similar circumstances  a  breach of the compromise agreement is  alleged, "there arises a  cause of action  which must be  passed upon by  the court requiring  a hearing to determine whether such breach had really taken, place." [2]

In the second  place, the allegations proved by Mendoñez about their verbal  agreement, his having  secured a loan from the  GSIS and his consequent ability to discharge his  obligation seemingly justified the  court's  refusal to eject defendant from the premises (on  execution) with the consequent forfeiture in favor of the plaintiffs of more than P12,000.00 already paid by defendant as previous instalments of the purchase price,[3] not to mention the loss of defendant's use of the  house and theatre erected  on that parcel of land.  Upon the other hand, the respondent judge's action  caused no  irreparable or undue harm  to plaintiffs, because the latter still have  the judgment that may  be enforced upon any further default of defendant Mendoñez.  Note  particularly  that their  unpaid  credit continuous to earn 10%  interest.

Wherefore, as the  court  had jurisdiction and has committed no  grave abuse of discretion, the writ of certiorari may  not be issued.

Petition denied, with  costs against petitioners.

Paras, C. J., Padilla, Montemayor, Bautista Angelo, Labrador, Endencia, Barrera, and Gutierrez David, JJ., concur.

[1] The corollary request for mandamus to compel execution depends upon the petition for certiorari.

A further issue might possibly be tendered concerning the effect of plaintiffs' repeated  readiness "to  come  to a more just, fair and equitable agreement" (Annex  E)  or  an  "amicable settlement" (Annex X). Did this amount to  a  waiver of the right to demand execution as a condonation of the default? Cf. Dimayuga vs. Raymundo, supra.

[3] "With forfeiture in plaintiffs' favor of all previous