SECOND DIVISION
[G.R. No. L-3749. June 23, 1950. ]
P. M. SILVA, Petitioner, v. COURT OF APPEALS and ESTANISLAO DE OCAMPO, Respondents.
Fidel J. Silva for the petitioner.
Yuseco, Abdon & Yuseco for the respondents.
SYLLABUS
1. FORCIBLE ENTRY AND DETAINER; DEPOSIT OF MONTHLY RENTALS PENDING APPEAL. — The issuance of the writ of execution for failure to pay or to deposit the rent on time, in accordance with sections 8 and 9 of Rule 72, is mandatory upon the court and the latter is powerless to grant any extension of time within which to make such payment or deposit.
2. ID.; ID.; TOLERATION OF BELATED DEPOSITS. — The law does not require the plaintiff-appellee in a desahucio case to ask for a writ of execution immediately upon defendant-appellant’s default on pain of forfeiture of his right to ask for it later. The law requires the said appellant to make the deposit on or before a specified date, but it fixes no date or period on or within which the appellee should file the motion for execution for failure of the appellant to make the deposit. The fact that the appellee asked for conditional withdrawal of the deposited rents, that he then discovered the belated deposits, and that it was only then when he filed a motion for immediate execution, — does not constitute estoppel by ratification of the appellant’s belated deposits.
2. ID.; ID.; TOLERATION OF BELATED DEPOSITS. — The law does not require the plaintiff-appellee in a desahucio case to ask for a writ of execution immediately upon defendant-appellant’s default on pain of forfeiture of his right to ask for it later. The law requires the said appellant to make the deposit on or before a specified date, but it fixes no date or period on or within which the appellee should file the motion for execution for failure of the appellant to make the deposit. The fact that the appellee asked for conditional withdrawal of the deposited rents, that he then discovered the belated deposits, and that it was only then when he filed a motion for immediate execution, — does not constitute estoppel by ratification of the appellant’s belated deposits.
D E C I S I O N
OZAETA, J.:
During the pendency before the Court of Appeals of a case of unlawful detainer, in which P. M. Silva is the defendant-appellant and Estanislao de Ocampo, the plaintiff-appellee, the appellant Silva made the following tardy deposits of the rents adjudged by the trial court: .
For the month of November, 1949, on December 13, 1949; For the month of December, 1949, on January 12, 1950; For the month of January, 1950, on February 13, 1950. .
On February 17, 1950, Estanislao de Ocampo filed a motion before the Court of Appeals praying that, upon the filing of a bond in the sum of P3,000, he be allowed to withdraw the deposits for rents made by the appellant Silva. .
On February 20, 1950, long before said motion to withdraw was acted upon by the Court, Estanislao de Ocampo, having discovered that the deposits of the rents had not been made on the 10th day of the month as required by section 8 of Rule 72, filed a petition for immediate execution of the appealed judgment, which was objected to by Silva on the ground that execution did not lie because he had already complied with the law by depositing the rents corresponding to the months in question. On March 7, 1950, the Court of Appeals granted the petition and ordered the issuance of a writ of execution as prayed for. .
To annul that order of the Court of Appeals and to prohibit the execution of the judgment, Silva filed the present petition for certiorari and prohibition in this Court against the Court of Appeals and Estanislao de Ocampo. .
After considering the petition and the answer as well as the arguments adduced by counsel during the hearing, we find said petition to be totally devoid of merit. Sections 8 and 9 of Rule 72 provide that the appellant in a desahucio case shall pay to the plaintiff or into the court, "on or before the 10th day of each calendar month, the reasonable value of the use and occupation of the premises for the preceding month at the rate determined by the judgment" ; and that should the defendant fail to make the payments above-prescribed from time to time during the pendency of the appeal, the court, upon motion of the plaintiff, of which the defendant shall have notice, and upon proof of such failure, "shall order the execution of the judgment appealed from." We have repeatedly held that the issuance of the writ of execution for failure to pay or to deposit the rent on time, is mandatory upon the court and that the latter is powerless to grant any extension of time within which to make such payment or deposit. .
The contention of the petitioner that the respondent De Ocampo had tolerated petitioner’s belated deposits by not asking for a writ of execution immediately upon petitioner’s default, is not meritorious. The law does not require the plaintiff-appellee in a case like the present to ask for a writ of execution immediately upon defendant-appellant’s default on pain of forfeiture of his right to ask for it later. The law requires the defendant to make the deposit on or before a specified date, but it fixes no date or period on or within which the plaintiff should file the motion for execution for failure of the defendant to make the deposit on time. .
The other contention of the petitioner - that "said respondent was in estoppel by ratification to question petitioner’s belated deposits, because on February 17, 1950, precisely after said petitioner had deposited his last rents then due on February 13, 1950, said respondent prayed for the withdrawal upon a bond of all of petitioner’s deposits for rent" - is likewise untenable. By asking for the conditional withdrawal of the deposited rents (subject to the approval of a bond to respond for same), the petitioner cannot be held to have expressly consented to the tardiness of the deposit. At the time he filed the petition for withdrawal he had not yet discovered that the petitioner had not made the deposits on time. Immediately after discovering that fact and without waiting for the resolution of the court on his petition for withdrawal, the respondent De Ocampo filed a petition for execution of the judgment. The petition for withdrawal of the deposits, having been objected to by Silva, was denied by the court. Had the petition for withdrawal been consented to by the petitioner and granted by the court, and had the respondent De Ocampo received the rents before filing a motion for execution, a different situation would have arisen wherein the petition for execution might be successfully resisted. .
The petition is denied, and the writ of preliminary injunction heretofore issued by this Court is dissolved, with costs against the petitioner. .
Paras, Bengzon, Tuason, Montemayor, and Reyes, JJ., concur. .
PABLO, M., disidente: .
Disiento. .
El demandado depositó las rentas en 13 de Diciembre de 1949, 12 de Enero y 13 de Febrero de 1950. El demandante podria haber pedido la ejecución de la sentencia en 11 ó 12 de Diciembre y en 11 ó 12 de Febrero o en 11 de Enero. Pero no lo ha hecho. El articulo 8, Regla 72 dispone que "should the defendant fail to make the payments above prescribed from time to time during the pendency of the appeal, the Court of First Instance, upon motion of the plaintiff, of which the defendant shall have notice, and upon proof of such failure, shall order the execution of the judgment appealed from, but such execution shall not be a bar to the appeal taking its course until the final disposition thereof on its merits." Este articulo expresamente dispone que si se prueba la falta de pago (en este caso, depósito), entonces se ordenara la ejecución. Como el demandante no presentó su moción de ejecución a tiempo; esto es, cuando no se habia hecho a
For the month of November, 1949, on December 13, 1949; For the month of December, 1949, on January 12, 1950; For the month of January, 1950, on February 13, 1950. .
On February 17, 1950, Estanislao de Ocampo filed a motion before the Court of Appeals praying that, upon the filing of a bond in the sum of P3,000, he be allowed to withdraw the deposits for rents made by the appellant Silva. .
On February 20, 1950, long before said motion to withdraw was acted upon by the Court, Estanislao de Ocampo, having discovered that the deposits of the rents had not been made on the 10th day of the month as required by section 8 of Rule 72, filed a petition for immediate execution of the appealed judgment, which was objected to by Silva on the ground that execution did not lie because he had already complied with the law by depositing the rents corresponding to the months in question. On March 7, 1950, the Court of Appeals granted the petition and ordered the issuance of a writ of execution as prayed for. .
To annul that order of the Court of Appeals and to prohibit the execution of the judgment, Silva filed the present petition for certiorari and prohibition in this Court against the Court of Appeals and Estanislao de Ocampo. .
After considering the petition and the answer as well as the arguments adduced by counsel during the hearing, we find said petition to be totally devoid of merit. Sections 8 and 9 of Rule 72 provide that the appellant in a desahucio case shall pay to the plaintiff or into the court, "on or before the 10th day of each calendar month, the reasonable value of the use and occupation of the premises for the preceding month at the rate determined by the judgment" ; and that should the defendant fail to make the payments above-prescribed from time to time during the pendency of the appeal, the court, upon motion of the plaintiff, of which the defendant shall have notice, and upon proof of such failure, "shall order the execution of the judgment appealed from." We have repeatedly held that the issuance of the writ of execution for failure to pay or to deposit the rent on time, is mandatory upon the court and that the latter is powerless to grant any extension of time within which to make such payment or deposit. .
The contention of the petitioner that the respondent De Ocampo had tolerated petitioner’s belated deposits by not asking for a writ of execution immediately upon petitioner’s default, is not meritorious. The law does not require the plaintiff-appellee in a case like the present to ask for a writ of execution immediately upon defendant-appellant’s default on pain of forfeiture of his right to ask for it later. The law requires the defendant to make the deposit on or before a specified date, but it fixes no date or period on or within which the plaintiff should file the motion for execution for failure of the defendant to make the deposit on time. .
The other contention of the petitioner - that "said respondent was in estoppel by ratification to question petitioner’s belated deposits, because on February 17, 1950, precisely after said petitioner had deposited his last rents then due on February 13, 1950, said respondent prayed for the withdrawal upon a bond of all of petitioner’s deposits for rent" - is likewise untenable. By asking for the conditional withdrawal of the deposited rents (subject to the approval of a bond to respond for same), the petitioner cannot be held to have expressly consented to the tardiness of the deposit. At the time he filed the petition for withdrawal he had not yet discovered that the petitioner had not made the deposits on time. Immediately after discovering that fact and without waiting for the resolution of the court on his petition for withdrawal, the respondent De Ocampo filed a petition for execution of the judgment. The petition for withdrawal of the deposits, having been objected to by Silva, was denied by the court. Had the petition for withdrawal been consented to by the petitioner and granted by the court, and had the respondent De Ocampo received the rents before filing a motion for execution, a different situation would have arisen wherein the petition for execution might be successfully resisted. .
The petition is denied, and the writ of preliminary injunction heretofore issued by this Court is dissolved, with costs against the petitioner. .
Paras, Bengzon, Tuason, Montemayor, and Reyes, JJ., concur. .
PABLO, M., disidente: .
Disiento. .
El demandado depositó las rentas en 13 de Diciembre de 1949, 12 de Enero y 13 de Febrero de 1950. El demandante podria haber pedido la ejecución de la sentencia en 11 ó 12 de Diciembre y en 11 ó 12 de Febrero o en 11 de Enero. Pero no lo ha hecho. El articulo 8, Regla 72 dispone que "should the defendant fail to make the payments above prescribed from time to time during the pendency of the appeal, the Court of First Instance, upon motion of the plaintiff, of which the defendant shall have notice, and upon proof of such failure, shall order the execution of the judgment appealed from, but such execution shall not be a bar to the appeal taking its course until the final disposition thereof on its merits." Este articulo expresamente dispone que si se prueba la falta de pago (en este caso, depósito), entonces se ordenara la ejecución. Como el demandante no presentó su moción de ejecución a tiempo; esto es, cuando no se habia hecho a
