civil procedure presentation
TRANSCRIPT
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Enforcement of Judgment
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Upon judgment or Final Order
Rule 39, Section 1
Execution shall issue as a matter of right, on motion, upon ajudgment or order that disposes of the action or proceeding uponthe expiration of the period to appeal therefrom if no appeal hasbeen duly perfected.
If the appeal has been duly perfected and finally resolved, theexecution may forthwith be applied for in the court of origin, onmotion of the judgment obligee, submitting therewith certified truecopies of the judgment or judgments or final order or orders soughtto be enforced and of the entry thereof, with notice to the adverseparty.
The appellate court may, on motion in the same case, when theinterest of justice so requires, direct the court of origin to issue thewrit.
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The general rule is that execution is a matter of right.
Issuance of a writ of execution becomes a ministerial duty of
the court once a decision becomes final and executory.
Judgments and orders become final and executory by operation
of law in to aspects:
A) For purposes ofbinding effect, finality arises when the
reglementary period for appeal lapses , and no appeal is
perfected within such period.
B) For purposes ofappeal, an order is final if it disposes ofthe action, when nothing is left to be done in the trial
court with respect to the merits of the case.
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There is therefore a need to file a motion for the issuance of a writof execution.
Even in judgments which are immediately executory, there must be amotion to that effect and a hearing called for the purpose.
Once an appeal has been duly perfected and resolved, theprevailing party can do the following:
1. secure certified true copies of the judgment or final order of theappellate court;
2. and the entry thereof, and
3. submit the same to the court of origin with and to justify hismotion for a writ of execution.
The prevailing party need not wait anymore for the records of thecase to be remanded to the court of origin.
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That motion must contain a notice to the adverse party.
A motion which does not contain a notice of hearingof the time and place for the hearing of the motion isa worthless piece of paper which the court has no
right to receive and which the court has no authorityto act upon.
The Appellate Court also has the power to requireexecution and can direct the issuance of the writ of
execution. But this is only in cases when the interest of justice so
requires.
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Effect of Judgment
Section 46, Rule 39:
Judgment rendered against a SURETY PRINCIPAL ISALSO BOUND from the time that he has (a) notice ofthe action or proceeding and (b) an opportunity at thesuretys request to join in the defense.
Judgment rendered against a PRINCIPAL SURETY CAN
BE BOUND ONLY IF HE IS IMPLEADED in the action orgiven the opportunity to be heard. Otherwise, the writof execution will be void against the surety.
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Section 47, Rule 39
(A) Rule on RES JUDICATA in judgments in rem - CONCLUSIVE:
If the judgment or final order is on a specific thing, the same isconclusive upon the title to the thing.
If the judgment or final order is in respect to the probate of a will,or the administration of the estate of a deceased person, the sameis conclusive upon the will or administration (but not a conclusivepresumption of death).
If the judgment or final order is in respect to the personal, politicalor legal condition or status of a particular person or his relationshipto another, the judgment or final order is conclusive upon thecondition, status or relationship.
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(B) Rule of res judicata in judgments in personam (bar by priorjudgment):
In other cases, if the judgment be with respect to the matter directlyadjudged or as to any other matter that could have been raised inrelation thereto, the judgment or final order is conclusive between
the parties and their successors in interest by title subsequent tothe commencement of the action or special proceeding, litigatingfor the same thing and under the same title and in the samecapacity.
(C) Rule of conclusiveness of judgment:
In any other litigation between the same parties or their successorsin interest, that only is deemed to be adjudged in a former judgmentor final order which appears upon its face to have been so adjudged,or which was actually and necessarily included therein or necessarythereto.
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Section 48, Rule 39
Rule on foreign judgments:
Foreign judgments are conclusive if in rem and presumptive if inpersonam.
The judgment of a foreign tribunal cannot be enforced by execution in thePhilippines.
It is necessary that a civil action be filed in our courts, primarily to allow the losingparty an opportunity to challenge the judgment on any of the following groundsprovided by the rules which includes: want of jurisdiction,
want of notice to the party,
collusion,
fraud, and
clear mistake of law or fact.
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Discretionary Execution Pending
Appeal
Sec. 2 of Rule 39
The court may allow an execution even before theexpiration of the period for appeal or pending appealwhen there is compliance of the following requisites:
1. There must be a motion filed by the prevailing partywith notice to the adverse party;
2. There must be a hearing of the motion for discretionaryexecution.
3. There must be good reasons to justify the discretionaryexecution.
4. The good reasons must be stated in a special order.
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The good reasons are what confer discretionary powerupon the court to issue a writ of execution pending appeal.
Examples of what constitutes good reasons fromjurisprudence include:
a) proven insolvency of the judgment debtor,b) prevention of irreparable injury,
c) the fact that goods subject of the judgment will perish ordeteriorate during the pendency of the appeal, a fact whichwould render the judgment in favour of the prevailing partyineffective
d) Section 19, Rule 70 (1) failure in an unlawful detainer caseto make the required periodic deposits to cover the amountof rentals due under the contract or for payment of thereasonable value of the use and occupation of the premises orthe (2) failure to post a supersedeas bond
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Ong v CA
In Ong v CA, the Supreme Court did not consider as goodreasons that a) that the appeal was frivolous and dilatory,and that b) sufficient bond required by the court had beenposted.
A) Deprivation of the right to appeal. The authority todisapprove an appeal rightfully pertains to the appellatecourt.
B) . . . to consider the mere posting of a bond a "goodreason" would precisely make immediate execution of a
judgment pending appeal routinary, the rule rather than theexception. not intended by law (it should bediscretionary)
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A motion for discretionary execution must be filed in
the trial court while it has jurisdiction over the case
and is in possession of either the original record or
the record on appeal as the case may be.
After the trial court has lost jurisdiction, the motion
for execution pending appeal may be filed in the
appellate court.
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Universal Far East v CA
Trial court had jurisdiction to issue the order of execution pendingappeal because the motion for execution was filed before Chinghad perfected his appealand it was resolved before the trial courtwhich on Ching's appeal elevated the record to the Appellate Court.
The Court reasoned that while it may be argued that the trial courtshould dispose of the motion for execution within the reglementaryfifteen-day period, such a rule would be difficult, if not impossible,to follow. The motion for execution has to be set for hearing.
The judgment debtor has to be heard.
The good reasons for execution pending appeal have to be scrutinized.
These things cannot be done within the short period of fifteen days.
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Where Discretionary Exectuion is
Reserved or Annulled
Section 5, Rule 39
Trial court, may on motion, issue such order ofrestitution or reparation for the damages as equityand justice may warrant under the circumstances.
1. RESTITUTION - the property itself must be returned tothe judgment debtor, if the same is still in thepossession of the judgment creditor, pluscompensation to the former for the deprivation anduse of the property.
2. REPARATION
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If RESTITUTION not possible REPARATION by the JUDGMENTCREDITOR :
If purchaser at the public auction is thejudgment creditor,
- Pay the value of the property at the time of its seizure, plus
interest thereon;
If the purchaser at the public auction was a third person,
- Pay the judgment debtor the amount realized from the sale ofsaid property at the sheriffs sale, with interest thereon;
If thejudgment award was reduced on appeal,
- Return the excess which he received over and above what he wasentitled to with interest thereon.
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Stay of Execution
Section 4, Rule 39:
General rule : An appeal perfected in due time stays the execution ofjudgment.
Exceptions:
Those judgments which by express provision of the rules are immediatelyexecutory and not stayed by an appeal as provided for in Section 4, Rule39 which include a) judgment for injunction, b) judgment for receivership,c) judgment for accounting, and d) judgment for support.
NOT AN ABSOLUTE RULE because the court is authorized to order
otherwise. The stay of the execution of the above judgments, if ordered bythe trial court, shall be upon such terms as to bond or otherwise as maybe considered proper for the security of the protection of the rights of theadverse party.
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And those judgments that have become the object ofdiscretionary execution.
Section 3, Rule 39:Discretionary execution may also be stayed but only uponapproval by the proper court of a sufficient supersedeasbond 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 finallysustained in whole or in part. The bond thus given may beproceeded against on motion with notice to the surety.
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Modes of Execution
Rule 39, Section 6
By motion - within five (5) years after the date
of entry of the final judgment or order
By independent action or action for revival of
judgment after the lapse of the 5-year
period, but within ten (10) years after date of
entry of final judgment or order
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By Motion
When is the 5-year period interrupted?
Delay caused by the judgment obligor or for
his benefit
When the execution is stayed by:
- by the parties agreement for a definite time
- by injunction- by taking an appeal
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Venue for action for revival of
judgment (Rule 39, Sec. 6)
Is it a real or personal action? (Infante vs. Aran
Builders, Inc., 2007)
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When the 5 and 10-year period do
not apply
Special proceedings
Judgment for supports which do not become
dormant because it is a continuing obligation
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Revival of Judgment
Section 6 vs. Section 34
- sought by judgment - sought by the
obligee purchaser of real
property that was
sold in an execution
sale
- Judgment not executed - Judgment actually
on motion executed
- independent action - motion
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Execution in case of death of a party
Rule 39, Section 8
Death of judgment obligee: Execution NOT prevented
application by executor, administrator or successor ininterest
Death of judgment obligor: Execution NOT preventeda. before levy: issued against executor or administrator
or enforcement of a lien
b. after levy: property may be sold for the satisfaction
of the judgment obligation- any surplus is returned to the executor or
administrator
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Forms and Contents of Writ
1. Issued in the name of the Republic of the
Philippines from the court which granted the
motion
2. State the name of the court, case number andtitle, the dispositive part of the subject
judgment or order; and
3. Require the sheriff or other proper officer towhom it is directed to enforce the writ according
to its terms, in the manner provided below.
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a. Against the property of the judgment obligor: to satisfy thejudgment out of the real or personal property of such judgmentobligor, with interest;
b. Against real or personal property in the hands of personalrepresentatives, heirs, devisees, legatees, tenants, or trustees ofthe judgment obligor: to satisfy the judgment out of suchproperty, with interest;
c. For the sale of real or personal property: to sell such property,
describing it, and apply the proceeds in conformity with thejudgment, the material parts of which shall be recited in the writof execution;
d. For the delivery of the possession of real or personal property: todeliver the possession of the same, describing it, to the partyentitled thereto, and to satisfy any costs, damages, rents, or
profits covered by the judgment out of the personal property ofthe person against whom it was rendered, and if sufficientpersonal property cannot be found, then out of the real property.
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The writ of execution shall specifically state:
a. the amount of the interest,
b. costs,
c. damages,
d. rents, ore. profits due as of the date of the issuance of the
writ, aside from the principal obligation under thejudgment.
Thus, the motion for execution shall specify the amountsof the foregoing reliefs sought by the movant.
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Form 17. Order of Execution.
To the Sheriff (or his deputy)
Province of _____________
You are hereby commanded that, of the goodsand chattels of ____________ (defendant), you causeto be made the sum of __________ pesos fordamages, together with interest thereon from thedate of this execution until the date of payment, at therate of sixper centum per annum; and the further sum
of ___________ pesos for costs of suit, together withyour lawful fees for the service of this execution, all inthe Philippine currency, which ____________(plaintiff) recovered in our Regional Trial Court of
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________ on the____ day of _______, 20__, against_________ (defendant) for damages, interest, and costs,and that you render the same to the said _________(plaintiff) aside from your own fees on this execution, anddo you likewise return this writ into court within _____days from date, with your proceedings endorsed thereon.But, if sufficient personal property cannot be found
whereof to satisfy this execution and lawful fees thereon,then you are commanded that the lands and buildings ofthe said defendant you make the said sums of money inthe manner required by the Rules of Court, and makereturn of your proceedings with this writ within ______
days from date.
Witness the Honorable ________ Judge of saidcourt, this __ day of ______, 20__.
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3 Types of Awards depending on the
Relief Sought
Execution for judgments of money (Rule 39,
Section 9)
Execution of Judgments from Specific Act
(Rule 39, Section 10)
Execution of Special Judgments (Rule 39,
Section 11)
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A. Execution for judgments of money
(Rule 39, Section 9)
a. immediate payment on demand, Section 9 (a)
b. satisfaction by levy, Section 9 (b)
c. garnishment of debts and credits, Section 9 (c)
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a. Immediate Payment on DemandSection 9 (a)
Sheriff demands from the judgment obligor
the immediate payment of the full amount
stated in the judgment and all lawful fees in:
a. cash
b. certified check payable to the judgment
obligee or
c. any other form of payment acceptable
to such judgment obligee.
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Judgment debt and lawful fees
At the time of payment, judgment obligee or his
duly authorized representative may either be:
- present
- Not present
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b. Satisfaction by Levy
Section 9 (b)
Levy on execution is the writ issued by the court
after judgment by which the property of the
judgment obligor is taken into custody of the
court before the sale of the property on
execution for the satisfaction of a final
judgment.
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b. Satisfaction by Levy
Section 9 (b)
What properties may be levied upon?
Real property
Stocks
Shares Debts
Credits
And other personal property, or any interesttherein, which may be disposed of for valueand not otherwise exempt from execution
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b. Satisfaction by Levy
Section 9 (b)
Judgment obligor: chooses which of his
properties would be levied
Otherwise, sheriff shall first levy on his:
a. Personal propertiesb. If (a) is insufficient, then, real properties
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c. Garnishment of Debts and Credits
Section 9 (c)
Garnishment is a kind of attachment in which
the plaintiff seeks to subject either the
property of the defendant in the hands of a
third person called the garnishee, to his claim
or the money which said third person owes
the defendant.
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c. Garnishment of Debts and Credits
Section 9 (c)
How made?
by serving notice upon the third person having inpossession or control of the credits in favor of the
judgment obligor
written report within 5 days from service ofnotice stating WON amount held is sufficient
a. Sufficient: deliver cash or certified check tojudgment obligee within 10 working daysfrom service of notice; lawful fees directlypaid to court
b. Insufficient: report the amount held
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B. Execution of Judgments from
Specific Act, Rule 39, Section 10
1. Conveyance, delivery of deeds, or other
specific acts; vesting title
2. Sale of real or personal property
3. Delivery or restitution of real property
4. Removal of improvements on property
subject of execution
5. Delivery of personal property
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Execution of special judgments (Rule
39, Sec. 11)
Judgment requires performance of any act other
than those in Sec. 9 (money judgments) and Sec.
10 (sale or delivery of property)
A certified copy of the judgment is attached tothe writ of execution and served upon the party
against whom the judgment is rendered, or upon
any other person required to obey the same The party may be punished for contempt for
disobeying the judgment
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Return of writ of execution (Rule 39,
Sec. 14)
Judgment has been satisfied in part or in full
- The writ is returnable to the court issuing it
immediately
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Return of writ of execution (Rule 39,
Sec. 14)
Judgment cannot be satisfied in full within 30
days from receipt by the officer
- The officer shall report to the court and state
the reason for failure to satisfy the judgment
- The officer shall make a report to the court
every 30 days on the proceedings taken until
the judgment is satisfied in full, or until itseffectivity expires
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Return of writ of execution (Rule 39,
Sec. 14)
Returns or periodic reports
- Shall set forth the whole of the proceedings
taken
- Shall be filed with the court
- Copies shall be promptly furnished the parties
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Property exempt from execution
(Rule 39, Sec. 13)
Except as otherwise expressly provided by law,
the properties enumerated, and no other,
shall be exempt from execution
The properties enumerated are not exempt
from execution if the judgment is for the
recovery of the price of said properties or
upon a foreclosure of mortgage thereon
f
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Property exempt from execution
(Rule 39, Sec. 13)
Family home or homestead in which thejudgment obligor resides, and land necessarilyused in connection therewith
- The family home is the dwelling house wherethe family reside, and the land on which it issituated (Art. 152, FC)
- It is exempt from execution except as providedby the Family Code and to the extent of thevalue allowed by law (Art. 153, FC)
f
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Property exempt from execution
(Rule 39, Sec. 13)
Family home or homestead in which thejudgment obligor resides, and land necessarilyused in connection therewith
- The family home is exempt from execution,except: (1) for non-payment of taxes; (2) for debtsincurred prior to the constitution of the familyhome; (3) for debts secured by mortgages on the
premises before or after its constitution; and (4)for debts arising from the construction of thebuilding (Art. 155, FC)
f i
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Property exempt from execution
(Rule 39, Sec. 13)
Family home or homestead in which thejudgment obligor resides, and land necessarilyused in connection therewith
- The actual value of the family home shall not
exceed P300,000 in urban areas, and P200,000 inrural areas, or such amounts as may be fixed bylaw
- If the value of currency changes after the
adoption of the FC, the value most favorable forthe constitution of a family home shall be thebasis of evaluation (Art. 157, FC)
P f i
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Property exempt from execution
(Rule 39, Sec. 13)
Family home or homestead in which thejudgment obligor resides, and land necessarilyused in connection therewith
- If the claim is not among those mentioned in Art.
155, FC, and the creditor has reasonable groundsto believe that the actual value of the familyhome is more than the maximum amount fixed,the creditor may apply to the court for an order
directing the sale of the property under execution- The minimum amount of bid to be considered is
the value allowed for a family home (Art. 160, FC)
P f i
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Property exempt from execution
(Rule 39, Sec. 13)
Ordinary tools and implements personally used in
trade, employment or livelihood
3 horses, or cows, or carabaos, or other beasts of
burden, such as the judgment obligor may selectnecessarily used in ordinary occupation
Necessary clothing and articles for ordinary
personal use, excluding jewelry Household furniture and utensils necessary for
housekeeping, of a value not exceeding P100,000
P f i
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Property exempt from execution
(Rule 39, Sec. 13)
Provisions for individual or family use sufficientfor 4 months
Professional libraries and equipment of
professionals, value not exceeding P300,000 1 fishing boat and accessories owned by a
fisherman, used for livelihood, value notexceeding P100,000
Salaries, wages, earnings for personal serviceswithin 4 months preceding the levy as arenecessary of the support of his/her family
P t t f ti
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Property exempt from execution
(Rule 39, Sec. 13)
Lettered gravestones
Monies, benefits, privileges, annuities
accruing or growing out of any life insurance
Right to receive legal support, or money or
property obtained as support, or any pension
or gratuity from the Government
P t t f ti
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Property exempt from execution
(Rule 39, Sec. 13)
Properties specially exempted by law
- RA 4917 Retirement benefits received by
officials and employees of private firms in
accordance with a reasonable private benefit
plan, subject to the conditions provided
Eff t f l ti (R l 39
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Effect of levy on execution (Rule 39,
Sec. 12)
Levy on execution shall create on the property
a lien in favor of the judgment obligee over
the right, title and interest of the judgment
obligor in such property
The lien in favor of the judgment obligee is
subject to liens and encumbrances existing at
the time of levy
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THIRD PARTY CLAIMS
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When Available
Sheriff erroneously levies on and seizes
property
of a third person in which said defendant holds no right or
interest
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Remedies Availableto a 3rd Party Claimant or any 3rd Person
1. Terceria
In same court where execution judgment had
2. Filing of a separate action (by 3rd-Party
Claimant)
distinct and separate from that in which
judgment is being enforced
3. Filing of claim for damages (by a judgmentobligee)
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Proceedings to be undertaken
(Terceria)Third party claimant to execute an Affidavit
stating grounds of such title or right of
possession over property levied
copy must be served upon
1) officer making levy
2) judgement obligee
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EFFECT of FILING (Terceria)
a) (Levying) Officer shall not be bound to keepthe property, unless
judgment obligee
upon demand of the officer files a bond (indemnity bond)
approved by the Court
to indemnify 3rd party claimant
in sum not less than value of property levied on
but Sheriff has discretion to dispense withindemnity bond
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EFFECT of FILING (Terceria)
b. No claim for damages for the taking or
keeping of the property may be enforced
against the bond unless action therefor is filed
within 120 days from date of filing of the bond
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EFFECT of FILING (Terceria)
c. Officer not liable for damages for the taking
or keeping of the property, to the 3rd party
claimant, if such bond is filed.
Wh FILING f S t A ti
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When FILING of Separate ActionAvailable by 3P Claimant
Purposes :
a) to recover possession of property seized by Sheriff
b) damages resulting from wrongful seizure and
detention thereof despite 3rd-party claim
c) may be brought against Sheriff and such other parties
who may have colluded with him in wrongful execution
proceedings (i.e., judgment creditor himself)
When FILING by a Judgment Obligee
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When FILING by a Judgment Obligee
Available
Frivolous and plainly spurious claim was filed bya 3rd-Party Claimant
filed in
a) same court where 3rd
-party claim ispending; or
b) in a separate action for damages
Purpose: in order for Court to require filing ofproper pleadings and hold trial, so as to giveparties to submit their respective evidence
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EXECUTION SALE
f l f d
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Notice of sale of property on execution required
(a) Perishable Property posting of written notice of time & place of sale
in 3 public places
preferably conspicuous areas of- municipal/city hall
- post office
- public market
of municipality/city where sale to take place for such reasonable time considering character and
condition of property
N ti f l f t ti
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Notice of sale of property on execution
required
(b) Personal property posting of written notice of time & place of sale
in 3 public places
preferably conspicuous areas of- municipal/city hall
- post office
- public market
of municipality/city where sale to take place
for not less than 5 days
Notice of sale of propert on e ec tion
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Notice of sale of property on execution
required
(c) Real Property posting of written notice of time & place of sale
- particularly describing property
- stating where property is to be sold
- if assessed value exceeds P50K, publish copy of notice once a week for 2 consecutive weeks
in newspaper of general circulation in city/municipality
selected by raffle
in 3 public places
preferably conspicuous areas of
- municipal/city hall
- post office- public market
of municipality/city where sale to take place
for 20 days
Notice of sale of property on execution
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Notice of sale of property on execution
required
In all cases,
1) written notice to be given to judgment
obligor
at least 3 days before the sale
except, in case of (a) perishable property
in same manner as personal service of pleadings
and other papers as provided by Sec 6, Rule 13
Notice of sale of property on execution
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Notice of sale of property on execution
required
2) place, date and exact time of sale, w/c should
be between 9 A.M.-2 P.M. must be specified
a. real property not capable of manual delivery
parties may agree on place of sale
absent which, sale shall be held in OCC, RTC/MTC
which issued writ or designated by appellate court
b. personal property capable of manual delivery
sale shall be held in place where property located
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Penalty for Sale without Notice
Recoverable by motion in the same action
P5,000.00 punitive damages due to any
person injured thereby
actual damages
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Penalty for Defacing Notice
What is penalized
willfully removing or defacing notice posted
if done before the sale or before satisfaction of
judgment if it be satisfied before the sale
Recoverable by motion in the same action
P5,000.00 punitive damages due to any personinjured thereby
actual damages
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Execution Sale, how prevented
at any time before sale of property on
execution
judgment obligor may prevent sale
by paying amount required by execution plus
costs incurred
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Execution Sale: Proceedings
All sales of property under execution must
1. be made at public auction
2. to highest bidder
3. to start at exact time fixed in the notice
4. after sufficient property has been sold tosatisfy the execution
no more shall be sold Any excess property/sale proceeds to be promptly
delivered to judgment obligor/authorized rep
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Execution Sale: Order of Sale
1. Real Property consisting of several known
lots
a) must be sold separately
b) when portion claimed by a 3rd person,
he may require it to be sold separately
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Execution Sale: Order of Sale
1. Personal Property consisting capable of
manual delivery
a) must be sold within view of those
attending sale
b) in such parcels as are likely to bring highest
price
he may require it to be sold separately
Execution Sale: Who May Direct Manner and
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Execution Sale: Who May Direct Manner and
Order of Sale
Judgment obligor, if present at sale, may direct
order of sale of real or personal property
when such property consists of several know lots
or parcels which can be sold to advantage separately
Execution Sale: Who are Prohibited to
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Execution Sale: Who are Prohibited to
Purchase
Neither the
1.Officer conducting the execution sale or
2.his deputies
can
become purchaser
nor be interested directly or indirectly in anypurchase at such sale
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Execution Sale: Refusal of Purchaser to Pay
If purchaser refuses to pay amount bid by him, Officer may again sell property to highest bidder
shall not be responsible for any loss occasionedthereby
may thereafter reject any subsequent bid of suchrefusing purchaser
but court may
order refusing purchaser to pay into the court
amount of such loss and punish him for contempt of court if he disobeys order
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Execution Sale: Refusal of Purchaser to Pay
To whom amount of such payment due
1. person entitled to proceeds of execution
unless execution has been fully satisfied,
otherwise, to
2. judgment obligor
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Execution Sale
when judgment obligee is purchaser
and no 3rd party claim has been filed
he need not pay amount of bid
- provided, it does not exceed amount of
his judgment
- if it exceeds, need pay only the excess
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Execution Sale: Adjournment
1. by agreement of judgment obligor andobligee
written consent
to any date and time agreed upon
2. may adjourn from day to day
if it becomes necessary to do so
for lack of time to complete sale on day fixed innotice or day to which it was adjourned
Execution Sale:
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Execution Sale:
Conveyance to Purchaser
1. Purchaser of Personal Property capable ofmanual delivery
Officer making sale must deliver property and
if desired, execute and deliver to him a Certificate ofSale
Sale conveys to purchaser all rights whichjudgment obligor had in such property as of dateof levy on execution.
Execution Sale:
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Execution Sale:
Conveyance to Purchaser
2. Purchaser of Personal Property not capable ofmanual delivery
Officer making sale must execute anddeliver a Certificate of Sale
Sale conveys to purchaser all rights whichjudgment obligor had in such property as ofdate of levy on execution.
Execution Sale:
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Execution Sale:
Conveyance to Purchaser
3. Purchaser of Real Property
Officer making sale must give to purchaser a Certificateof Sale containing:
particular description of real propertyprice paid for each distinct lot/parcel
whole price paid
statement that right of redemption expires 1 yr from dateof registration of certificate of sale
Certificate must be registered in registry of property ofdeeds of place where property situated.
Execution Sale: Recovery of Price
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Execution Sale: Recovery of Price
If purchaser of real property sold on execution orhis successor-in-interest
1. fails to recover possession thereof
2. or is evicted therefrom
in consequence of
1. irregularities in sale proceedings
2. judgment has been reversed/set aside3. property sold exempt from execution
4. a 3rd person has vindicated his claim to the property
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Execution Sale: Recovery of Price
he may,1. on motion in same action, or
2. in separate action,
recover from judgment obligee
price he paid w/ interestor so much thereof as has not been delivered to
judgment obligor
3. or have original judgment revived in his name
for the whole price w/ interest
or so much thereof as has not been delivered tojudgment obligor
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Execution Sale: Recovery of Price
Judgment so revived shall have same force and
effect as an original judgment would have as of
the date of revival and no more.
(Rule 39, Sec. 34)
Execution Sale:
h b
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Right to contribution
When property liable to an execution againstseveral persons is sold thereon
and more than a due proportion of judgment issatisfied
out of proceeds of sale of the property of one ofthem
or one of them pays, without a sale, more than
his proportionhe may compel a contribution from the others
(Rule 39, Sec. 35)
Execution Sale:
Ri h i b
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Right to reimbursement
When a judgment is upon an obligation of oneof them
as security for another
And the surety pays the amount, or any partthereof
Either by sale of his property or before sale
he may compel repayment from the principal(Rule 39, Sec. 35)
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Rule 39
Section 27. Who may redeem real property so sold.
Real property sold, or any part thereof sold separately, may beredeemed by the following:
(a) Judgment obligor or his successor in interest
successor in interest include:
Person to whom he has transferred his right of redemption
One to whom he has conveyed his interests in the property for purposes of redemption
One who succeeds to his property by operation of law
Person with joint interest in the property
Spouse or heirs
(b) Redemptioner creditor having a lien by virtue of an attachment,
judgment or mortgage on the property sold or any part thereof,subsequent to the lien under which the property was sold.
If lien of a creditor is prior to the judgment under which the property was
sold, not a redemptioner.
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Rule 39
Section 28. Time and manner of, and amounts payable on, successiveredemptions; notice to be given and filed.
Time:
Redemption of property from the purchaser at any time within one(1) year from the date of the registration of the certificate of sale
Amounts Payable:
Amount of purchase
Additional one per centum per month interest up to the time ofredemption
Amount of any assessment or taxes paid after purchase and interestat same rate
If purchaser is also a creditor having a prior lien, amount of suchother lien with interest
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Rule 39
Section 28. Time and manner of, and amounts payable on,
successive redemptions; notice to be given and filed.
Successive Redemption:
Property so redeemed may again be redeemed within 60 days
after the last redemption
Amounts Payable:
Sum paid on last redemption with additional two per centum thereon
Amount of any assessment or taxes paid after purchase and interest
Amount of any liens held by last redemptioner prior to his own with
interest
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p
Rule 39
Section 28. Time and manner of, and amounts payable on,successive redemptions; notice to be given and filed.
Notice:
Notice of the following to be given to the officer who made thesale and duplicate filed with the registry of deeds of the place:
any redemption
payment of any assessments or taxes by the redemptioner
any lien acquired other than that upon which the redemption was
made
If no notice filed, property may be redeemed without payingsuch assessments, taxes or liens
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p
Rule 39
Section 29. Effect of redemption by judgment obligor, and a certificate to be
delivered and recorded thereupon; to whom payment on redemption made.
If judgment obligor redeems: must make same payments as required toeffect a redemption by a redemptioner
No further redemption allowed and he is restored to his estate.
Person to whom redemption payment is made: must execute and deliver acertificate of redemption acknowledged before a notary public orauthorized officer
Certificate must be filed and recorded in the registry of deeds of place where theproperty is situated
Registrar of deeds must note the record thereof on the margin of the record of the
certificate of sale.
Redemption payments may be made to the following:
Purchaser
Redemptioner
Officer who made the sale (for the purchaser/redemptioner)
Redemption from Execution SaleRule 39
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Rule 39
Section 30. Proof required of redemptioner.
A redemptioner must produce to the officer, or person from
whom he seeks to redeem, and serve notice to the officer, the
following:
Copy of judgment of final order under which he claims the right to redeem,
certified by the clerk of court wherein the judgment or final order isentered; or,
If redeems upon a mortgage or other lien, a memorandum of record
thereof, certified by the registrar of deed; or,
Original or certified copy of any assignment necessary to establish his
claim;
and
Affidavit executed by him or his agent showing the amount actually due on
the lien.
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Rule 39
Section 31. Manner of using pending redemption; waste
restrained.
Manner of Using pending redemption:
Until the expiration of the time allowed for redemption, court may restrainthe commission of waste on the property by injunction, on the application
of the purchaser or the judgment obligee
Not waste for a person in possession of property at time of sale,or entitled to possession afterwards, during the period allowedfor redemption to undertake the following:
to continue to use it in the same manner in which it was previously used;
to use it in the ordinary course of husbandry; or
to make the necessary repairs to buildings thereon while he occupies theproperty
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Redemption from Execution Sale
Rule 39Section 32. Rents, earnings and income of property pending
redemption.
Purchaser or redemptioner: not entitled to rents, earnings andincome of property sold on execution, or value of the use and
occupation thereof when property is in possession of a tenant.
Judgment obligor: entitled to all rents, earnings and income
derived from the property until expiration of period of
redemption
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Rule 39
Section 33. Deed and possession to be given at expiration of redemption period; by whom
executed or given.
Judgment obligor has entire period of 1 year from date of registration of the certificate of
sale to redeem the property.
If no redemption made within 1 year from date of registration of certificate of sale:
purchaser entitled to conveyance and possession of property.
If redeemed whenever 60 days have elapsed and no other redemption made at expiration of
redemption period: last redemptioner entitled to conveyance and possession.
Upon expiration of right of redemption, purchaser or redemptioner substituted to and
acquire all rights, title, interest and claim of judgment obligor to the property as of the time
of the levy.
Officer making the sale or his successor in office to execute the deed of conveyance and
possession.
Possession to be given to purchaser or last redemptioner unless a third party is actually
holding the property adversely to the judgment obligor.
Redemption from Execution SaleCase 1:
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Josefina B. Cenas and The Provincial Sheriff of Rizal, petitioners, vs.
Spouses Antonio P. Santos and Dra. Rosario M. Santos and Hon. Pedro C. Navarro, Presiding Judge,
CFI-Rizal, Branch III, respondents
(G.R. No. L-49576, 21 November 1991)
Facts:
In May 1976, spouses Pulido mortgaged to Pasay City Savings and Loan Association their land to secure a
loan of P10,000.00. Mortgage was registered with the Registry of Deeds and annotated in the title of the
property.
City Sheriff levied on the mortgaged land pursuant to a writ of execution issued by CFI-QC in a civil case
involving Pulido (wife). Land was sold to petitioner Cenas who was the highest bidder in the execution
sale.
Loan Association assigned to petitioner Cenas all its rights, interests and participation to the said
mortgage for the sum of P8,110.00 representing the unpaid obligation of Pulidos.
In July 1977, private respondent Dra. Santos redeemed the property, paying a sum of P15,718.00. The
City Sheriff issued a Certificate of Redemption.
In April 1978, petitioner Cenas filed with the Office of the Provincial Sheriff of Rizal a verified petition for
extra-judicial foreclosure of mortgage. Property was advertised for auction sale.
Apprised of the impending auction sale, private respondents Santoses filed an affidavit of adverse claim
with the Provincial Sheriff and a verified Petition for Prohibition with Preliminary Injunction with the
respondent court to enjoin the Provincial Sheriff from proceeding with the auction sale.
CFI rendered judgment in favor of private respondents, holding that the redemption of property by the
private respondents wiped-out and extinguished the mortgage in favor of the loan association.
Redemption from Execution Sale
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Case 1:
Josefina B. Cenas and The Provincial Sheriff of Rizal, petitioners, vs.
Spouses Antonio P. Santos and Dra. Rosario M. Santos and Hon. Pedro C. Navarro, Presiding Judge,
CFI-Rizal, Branch III, respondents(G.R. No. L-49576, 21 November 1991)
Issue:
Whether or not the redemption of the subject property by the private respondents wiped-out and
extinguished the pre-existing mortgage obligation of the judgment debtor.
Held: NO.
Under Section 30, Rule 39 of the Rules of Court, if the purchaser is also a creditor having a prior
lien to that of the redemptioner, other than the judgment under which such a purchase was
made, the redemptioner has to pay, in addition to the prescribed amounts, such other prior lien of
the creditor-purchaser with interest.
Petitioner Cenas, as assignee of the mortgage constituted over the subject property, is also a
creditor having a prior lien to that of Dra. Santos. The acceptance of the redemption amount bythe petitioner, without demanding payment of her prior lien cannot wipe out and extinguish said
mortgage obligation.
The mortgage directly and immediately subjects the property upon which it is imposed, whoever
the possessor may be, to the fulfillment of the obligation for whose security it was constituted
(Article 2126, Civil Code). A mortgage creates a real right which is enforceable against a whole
world.
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Case 1:
Josefina B. Cenas and The Provincial Sheriff of Rizal, petitioners, vs.
Spouses Antonio P. Santos and Dra. Rosario M. Santos and Hon. Pedro C. Navarro,Presiding Judge, CFI-Rizal, Branch III, respondents
(G.R. No. L-49576, 21 November 1991)
Issue:
Whether or not the redemption of the subject property by the private respondentswiped-out and extinguished the pre-existing mortgage obligation of the judgment
debtor.
Held: NO.
Private respondents redeemed the property in question as successor in interest of
the judgment debtor. They are deemed subrogated to the rights and obligations of thejudgment debtor and bound by exactly the same condition that bound the judgment
debtor.
Considering the lapse of time and erroneous belief of the private respondents that the
property was freed from any lien after redemption, equity dictates that the foreclosure
be allowed after they be given the chance to settle the mortgage obligation
Redemption from Execution SaleCase 2:
i i ld l
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Hi-Yield Realty, Inc. petitioner, vs.
Court of Appeals, Honorable Mauricio Rivera as Presiding Judge of RTC-Antipolo City, Branch 73,
and Noli Francico, respondents
(G.R. No. 138978, 12 September 2002)
Facts:
In August 1987, private respondent Francisco, as attorney-in-fact of spouses Carawatan , mortaged a
property owned by the spouses in Cainta to petitioner Hi-Yield Realty to secure a loan of P100,000.00
from the realty.
Private respondent failed to pay despite repeated demands by petitioner.
Petitioner extrajudicially foreclosed the property. The property was sold for P285,000.00 with petitioneras the highest bidder. A Certificate of Sale was issued to the petitioner which was registered on 13
August 1992.
On 13 August 1993, private respondent filed a petition with RTCAntipolo praying that the petitioner be
ordered to have the property be redeemed by private respondent after paying the amount of
P285,000.00 plus 1% interest per month. Private respondent claimed that he offered to redeem the
property twice prior to expiration of redemption period but petitioner refused to accept the offer but
instead demanded more than P1.5 million redemption price. On 15 March 1994, RTC ordered the petitioner to submit an updated statement of account as basis for
the payment of the redemption price and for private respondent to pay the redemption price within 15
days from receipt of the order.
Petitioner submitted a detailed computation. Private respondent received his copy on 24 March 1994
and had until 8 April 1994 to pay the redemption price. Private respondent failed to pay on said date.
Instead, he filed an Urgent Motion for Extension of Time asking for a 45-day extension because he did
not have sufficient money to tender.
Redemption from Execution SaleCase 2:
Hi Yi ld R l I i i
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Hi-Yield Realty, Inc. petitioner, vs.
Court of Appeals, Honorable Mauricio Rivera as Presiding Judge of RTC-Antipolo City, Branch 73,
and Noli Francico, respondents
(G.R. No. 138978, 12 September 2002)
Facts:
RTC denied the motion and recognized the right of petitioner to consolidate the title to the property in
its name.
Private respondent moved to reconsider, offering to pay the amount of P510,000.00 (managers check)
and P38,872.93 (personal check).
RTC issued an order contradicting its previous order. It ordered the private respondent to pay petitionerthe redemption price of P548,872.93 plus 1% interest per month within 5 days from receipt of the order.
Petitioner was ordered to accept the payment.
When petitioner refused to accept the tender of payment, private respondent filed a motion to consign
the redemption price.
Petitioner moved to reconsider arguing that the period of redemption could not be extended as it is fixed
by law. Trial court denied the motion for reconsideration but granted the motion to consign the
redemption price. Petitioner filed a petition for certiorari with the CA. CA denied the petition ratiocinating that the one-
year redemption period should be reckoned from 13 August 1992. The filing of the action within the
redemption period is equivalent to a formal offer to redeem. Francisco was able to effectively exercise
his right of redemption on 13 August 1993.
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Case 2:
Hi-Yield Realty, Inc. petitioner, vs.
Court of Appeals, Honorable Mauricio Rivera as Presiding Judge of RTC-Antipolo City, Branch 73,
and Noli Francico, respondents
(G.R. No. 138978, 12 September 2002)
Issue:
Whether or not the extension of the redemptive period by the trial court was well within private
respondents preserved right to redeem.
Held: NO.
Pursuant to Section 28, Rule 39 of the Rules of Court, the right of redemption should be exercised
within the specific time limit, which is one year from the date of registration of the certificate of
sale. Moreover, the redemptioner should make an actual tender in good faith of the full amount
of the purchase price (auction price of property plus legitimate expenses such as taxes,
registration fees, etc.)
In case of disagreement on the redemption price between the parties, the redemptioner maypreserve his right of redemption through judicial action which must be filed within the one year
period of redemption.
The filling of action, being equivalent to a formal offer to redeem, would have the effect of
preserving his redemptive rights and freezing the expiration of the one year period. This is a fair
interpretation provided the action is filed on time and in good faith, the redemption price is finally
determined and paid within a reasonable time, and the rights of the parties are respected.
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Case 2:
Hi-Yield Realty, Inc. petitioner, vs.
Court of Appeals, Honorable Mauricio Rivera as Presiding Judge of RTC-Antipolo City,Branch 73, and Noli Francico, respondents
(G.R. No. 138978, 12 September 2002)
Issue:
Whether or not the extension of the redemptive period by the trial court was well
within private respondents preserved right to redeem.
Held: NO.
Had private respondents act of filing a suit for redemption really been in good faith,
private respondent could have at least consigned or deposited what he thought to be
the correct amount simultaneously with the filing of the action to redeem on 13
August 1993 to show not only good faith but also his intention and capability of paying
in full what he believed to be the reasonable price.
For failure of private respondent to redeem the property within the period set by the
trial court in its order dated 15 March 1994, the petitioner is allowed to consolidate the
title to the property in its name.
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g pp y
Rule 39
Section 36. Examination of judgment obligor when judgment unsatisfied.
When return of a writ of execution against property of a judgment obligor or
any one of several obligors shows that judgment remains unsatisfied:
Judgment obligee entitled to an order from court that rendered judgment
requiring judgment obligor to appear and be examined concerning hisproperty and income
Examination of judgment obligor made by the court or an appointed
commissioner at a specified time and place
Judgment obligor cannot be required to appear before a court or commissioneroutside the province or city in which he resides or is found.
Proceedings may thereupon be had for the application of the property and
income of the judgment obligor
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g pp y
Rule 39
Section 37. Examination of obligor of judgment obligor.
When return of a writ of execution against property of a judgment
remains unsatisfied in whole or in part:
Upon proof to the satisfaction of the court that issued the writ, mayrequire a person, corporation, or other juridical entity that has
property of the judgment obligor or is indebted to him to be
examined regarding the same
Examination made before a court or commissioner at a time andplace within the province or city where the debtor resides or is
found
Order binds all credits, money, property due the judgment obligor
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Rule 39
Section 38. Enforcement of attendance and conduct of examination.
Court may compel, by an order or subpoena, a party or other personto attend and testify as provided in Sections 36 and 37.
Failure to obey order or subpoena, to answer as witness, or to
subscribe his deposition is punishable with contempt.
Examination shall not be unduly prolonged but may be adjournedfrom time to time until completed.
Examination before a commissioner in writing and certified to thecourt.
Examination under oath and corporation/juridical entity representedby an authorized officer or agent.
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g pp y
Rule 39Section 39. Obligor may pay execution against obligee.
After a writ of execution against property has been issued, a
person indebted to judgment obligor may pay to the sheriffholding the writ the amount of debt or so much to satisfy the
judgment (following Section 9 of Rule 39).
Sheriffs receipt sufficient discharge for the amount paid by
the judgment obligee on the execution
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Rule 39Section 40. Order for application of property and income to satisfaction
of judgment.
Court, may order any property/money of judgment obligor, not
exempt from execution, in his hands or another person, corporationor juridical entity, to be applied to the satisfaction of the judgment,
subject to any prior rights over the property.
Upon investigation and it appears that judgment obligors earnings
are more than necessary for family support, court may order
judgment obligor to pay in fixed monthly installments. Failure to pay installment without good excuse punishable by indirect
contempt.
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Rule 39Section 41. Appointment of receiver.
Court may appoint a receiver of the property of the judgment
obligor Court may also forbid transfer or other disposition or any
interference with property not exempt from execution.
Jurisprudence: Rule 59 (Receivership) applicable to this
Section.
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Rule 39Section 42. Sale of ascertainable interest of judgment obligor in
real estate.
If interest of judgment obligor in a real estate (as mortgagor ormortgagee or otherwise) in the place of proceedings can be
ascertained, receiver may be ordered to sell and convey real
estate or interest therein.
Proceedings for sale subject to approval by the court beforethe execution of the deed.
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Rule 39
Section 43. Proceedings when indebtedness denied or anotherperson claims the property.
A person or corporation alleged to have property of thejudgment obligor or indebted to him, claims an interest in the
property adverse to him or denies the debt:
By court order,- judgment obligee may be authorized to institute an action against such
person or corporation for the recovery of such interest or debt- forbid transfer or other disposition within 120 days from notice of order
- punish disobedience of order as for contempt.
Order may be modified or vacated by court that issued it orcourt which action is brought
Proceedings Supplementary to ExecutionCase:
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The Economic Insurance Company, Inc., petitioner, vs.
Judge Guillermo E. Torres of CFI-Rizal; Visayan Marketing Corporation; and the Sheriff of
the Province of Rizal, respondents(G.R. No. L-28488, 02 October 1977)
Facts:
Private respondent Visayan Marketing filed a motion for examination of petitioner The Economic
Insurance to determine whether it had property or money belonging to I-Feng Enamelling Co.
(Phil.), Inc, who was adjudged in a civil case filed with CFI-Rizal to owe private respondent a sum ofmoney. Judgment in said case was only partially satisfied.
The President of petitioner company was examined and denied that any sum of money was due to
I-Feng.
The record discloses that petitioner insurance company was the second mortgagee under a chattel
mortgage executed by I-Feng over its personal properties as security of an obligation of
P300,000.00.
The Philippine Bank of Communication (PBC) was the first chattel mortgagee of I-Feng to secure an
obligation of P202,512.57. When PBC sought to foreclose the first mortgage, Economic Insurance
paid off the bank in the sum of P202,512.57 becoming the sole chattel-mortgagee.
Petitioner Economic Insurance executed an assignment of mortgage in favor of Atlas Glass &
Enamelling Co. for a total consideration of P523,000.00. Subsequently, Atlas Glass foreclosed the
chattel mortgages and took possession of the properties.
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Case:
The Economic Insurance Company, Inc., petitioner, vs.Judge Guillermo E. Torres of CFI-Rizal; Visayan Marketing Corporation; and the Sheriff of
the Province of Rizal, respondents
(G.R. No. L-28488, 02 October 1977)
Facts:
Respondent Visayan is contending that since petitioner Economic Insurance realized an
amount of P52,987.43 in excess of its mortgage credit against I-Feng, Economic
Insurance is bound under the chattel mortgage law to turn over the excess to
mortgagor I-Feng.
Respondent Judge ordered the Economic Insurance to deliver to Visayan Marketing the
amount of P52,987.43 as partial satisfaction of the unsatisfied judgment-credit with
legal interest from date of filling of action and P1,000 attorneys fees and costs.
Petitioner is contending that there was grave abuse of discretion since no action was
filed against it by respondent Visayan as required by Section 45 of Rule 39 , that the
amount due from it was arbitrarily fixed, and that it did not foreclose the chattel
mortgage.
Proceedings Supplementary to ExecutionCase:
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The Economic Insurance Company, Inc., petitioner, vs.
Judge Guillermo E. Torres of CFI-Rizal; Visayan Marketing Corporation; and the Sheriff of
the Province of Rizal, respondents(G.R. No. L-28488, 02 October 1977)
Issue:
Whether or not the petitioner is liable to deliver the alleged property of the judgment
debtor.
Held: NO.
It is clear from Section 45, Rule 39 that if a person is alleged to have a property of the
judgment debtor or to be indebted to him claims in interest in the property adverse to
him or denies the debt, the court may only authorize the judgment creditor to institute
an action against such person for the recovery of such interest or debt. Said section does not authorize the court to make a finding that the third person has in
his possession property belonging to the judgment debtor or is indebted to him and to
order said third person to pay judgment creditor.
Contention that profit made by petitioner in assigning its chattel mortgage rights to
Atlas Glass belongs to judgment debtor has no merit. Chattel mortgage was foreclosed
by Atlas Glass not by the petitioner.
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Rule 39Section 44. Entry of satisfaction of judgment by clerk of court.
Entry of satisfaction of judgment shall be entered by the clerk
of court in the court docket and execution book on the basesof the following:- Upon return of writ showing full satisfaction of judgment; or
- Upon filing of an admission to the satisfaction of judgment executed
and acknowledged in the same manner as a conveyance of real
property by judgment obligee or his counsel; or
- Upon endorsement of admission by judgment obligee or counsel on the
face of the record of judgment
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Rule 39Section 44. Entry of satisfaction with or without admission.
Whenever a judgment is satisfied in fact:
- Judgment obligee or counsel must execute and acknowledge or indorse
an admission of the satisfaction (Section 43), and after notice and upon
motion, the court may order either the judgment obligee or counsel to
do so; or,
- Court may order the entry of satisfaction even without such admission.