1. REPLEVIN; WHEN PREVAILING PARTY MAY REFUSE TO TAKE THE LITIGATED PROPERTY; DEFENDANT’S OBLIGATION TO TAKE PROPERTY BACK. — Where judgment is rendered for the articles or their value and they cannot be returned in substantially the same condition, it is settled that the prevailing party may refuse to take them and instead sue on the redelivery bond or, as in this case, execute on the judgment for value. (Kunz v. Nelson, 76 P2d 577 [1938]). If the prevailing party has this right after judgment, it is at once obvious that he must also have the same right when, asking for the delivery pendente lite of the same property, he afterwards find them in a substantially depreciated condition. This right to reject is assured in the first instance by the provision that the judgment in a suit for replevin must be in the alternative so as to afford a measure of relief where the property cannot be returned (Rule 60, sec. 9); in the second case it is implied from the requirement that "if for any reason the property is not delivered to the plaintiff, the officer must return it to the defendant." (Rule 60, sec. 6.) It then becomes the defendant’s obligation to take them back upon tender of the sheriff.

2. ID.; LIABILITY OF DEFENDANT FOR DETENTION OF. — If it was petitioner’s obligation to accept redelivery of the machines after their rejection by the respondents, then it is clear that whether he took them back or not, he was liable for their detention. An action for replevin has for its object the recovery of some personal property; it is obvious that if the plaintiff in that action refuses to take delivery of the very property he sought to recover, it must be for very good reasons which defeat his object. Not so in the case of the defendant in such an action as to whom this presumption cannot be applied.

3. JUDGMENTS; POWER OF COURT TO STAY EXECUTION OF FINAL JUDGMENT. — The case of Chua A. H . Lee v. Mapa, 51 Phil. 624 (1928) and other cases cited by petitioner in support of his contention that even after a judgment has become final the court may stay or even quash the execution, refer to circumstances that have "arisen subsequent to the remanding of the record from the Supreme Court to the trial court" and those cases are justified by the primordial necessity of doing justice in each case. But those cases, as Amor v. Jugo, 77 Phil. 703 (1946), subsequently explained cannot be invoked when the supposed change in the circumstances of the parties took place while the case was pending. The reason is that there is then no excuse for not bringing the matter to the attention of the court the fact or circumstance that affects the outcome of the case. Such was the supposed change in the situation of the parties in this case when, so it is claimed, the petitioner lost possession of the machines for the detention of which he was ordered by final judgment to pay damages.

This is a petition for certiorari to review the decision of the Court of Appeals. So far as relevant, the facts as found by the appellate court are as follows:chanrob1es virtual 1aw library

In 1955, Venancio Castañeda and Niceta Henson, respondents in this case, brought an action for replevin in the Manila Court of First Instance to recover from petitioner Pastor D. Ago a Caterpillar tractor, a Jaeger hoist and a cargo truck which the former had delivered to the latter for use in their logging business in Agusan. At the same time, respondents asked for the immediate delivery of the machines to them and, for this purpose, posted a bond. The trial court approved the bond and ordered the seizure of the property, but petitioner filed a counterbond for P60,000 for which reason he was allowed to retain possession of the machinery.chanroblesvirtuallawlibrary

On May 30, 1957, the court rendered judgment for respondents, ordering petitioner to return the machinery or, in the alternative, to pay the sum of P30,000 and to pay to respondents the sum of P1,750 for the period August 3 to September 3, 1954; P1,312.50 a month from September 4, 1954 until the machines were returned or their value paid and P2,000 for attorney’s fee. However, petitioner was given credit for P3,000 which he had earlier paid to the respondents.

Petitioner subsequently appealed the decision to this Court. While the appeal was thus pending, it was found that petitioner’s surety, the Globe Assurance Co., had become bankrupt. Hence, on motion of the respondents, the trial court ordered petitioner to file a new and sufficient counterbond and, when he failed to file one, it issued a writ of replevin. Petitioner challenged the authority of the trial court to issue the writ both in the Court of Appeals and in this Court but in both cases his petition was dismissed. Accordingly, the trial court issued a writ of seizure on November 10, 1958.

On January 5, 1959, the sheriff served the writ on petitioner’s assistant manager, then took possession of the tractor and hoist as required by law, and five days after offered to deliver these machines to the respondent’s representative but the latter refused to accept them on the ground that the tractor and hoist were unserviceable while the truck could not be produced. Indeed, as the Court of Appeals said in the decision appealed, "with respect to the tractor, the three most important and indispensable parts thereof were broken and unusable. The Jaeger hoist had also become useless."cralaw virtua1aw library

On January 22, 1959, the sheriff made a report to the court, stating that, because of respondents’ refusal to take possession of the machines, "there is no other recourse but to return (them) to defendant Pastor D. Ago." The following day, January 23, 1959, respondents also informed the court that they "could not receive the D-8 Caterpillar tractor or the Jaeger hoist with power engine because they are in a dilapidated condition while the GMC truck could not be produced by the defendants. These three (3) machines were complete and in good condition when plaintiff turned them over to defendants."cralaw virtua1aw library

Meanwhile this Court affirmed the decision of the lower court in Ago v. Castañeda, G.R. No. L-14066, June 30, 1961 and thereafter remanded the case to the court of origin. On August 25, 1961, a writ of execution for P172,923.87 was issued. However, petitioner asked for a stay of execution on the ground that since January 5, 1959, there had been "a change in the situation of the parties" which made it inequitable to enforce the decision as affirmed by this Court. According to petitioner, after their seizure by the sheriff, the tractor and the hoist were never returned to him. Therefore, he should not be made to pay damages which he estimated to be P99,877.09 for their detention after January 5, 1959. With respect to the cargo truck, petitioner contended that no rental value could be assigned to it because on January 5, 1959, it was already a junk.

In its order of October 13, 1961, the court denied petitioner’s motion on the ground that the matter should have been raised before the decision became final. As a result, petitioner’s house and lot in Quezon City were levied upon by the Sheriff and advertised for sale on October 25, 1961. Petitioner tried to prevent enforcement of the writ of execution by filing a motion to stop the sale but this was denied on October 14, 1961. His motion for reconsideration was likewise denied on October 18. He therefore filed a petition for certiorari in the Court of Appeals to annul the orders of October 13, 14 and 18, 1961, but after due consideration, the petition was dismissed. Hence this appeal.

On November 23, 1962, we granted injunction in this case upon the filing of a bond in the sum of P110,000 to restrain execution of the judgment so far as P99,877.08 was concerned "without prejudice to the enforcement of the judgment with respect to the undisputed balance of P73,046.28 as of August 25, 1961." But as no bond was filed by petitioner and no writ of injunction was issued, respondent sheriff proceeded with the sale of petitioner’s house and lot. In the public auction held on March 8, 1963, respondents won as highest bidders for P141,750.

It was then that petitioner, without informing us of the sale, filed a bond and secured from us on March 9, 1964, a writ of preliminary injunction. When our attention was therefore called to this fact, we cancelled the injunction. However, on motion of the petitioner and upon his posting a new bond in the amount of P50,000, we issued an injunction restraining execution of the judgment for the deficiency of P48,918.61.

Petitioner makes seven assignments of error all of which can be reduced to the following propositions: (1) whether the respondents had a right to reject the machinery and the petitioner a corresponding obligation to take them back; (2) whether the sheriff actually returned the machinery after respondents refused to take them; and (3) whether execution should have been suspended.

To begin with, where judgment is rendered for the articles or their value and they cannot be returned in substantially the same condition, it is settled that the prevailing party may refuse to take them and instead sue on the redelivery bond or, as in this case, execute on the judgment for value (Kunz v. Nelson, 76 P2d 577 [1938]). If the prevailing party has this right after judgment, it is at once obvious that he must also have the same right when, asking for the delivery pendente lite of the same property, he afterwards finds them in a substantially depreciated condition. Here, the Court of Appeals found "beyond dispute" that the tractor and the hoist had so deteriorated that they had become unserviceable. This right to reject is assured in the first instance by the provision that the judgment in a suit for replevin must be in the alternative so as to afford a measure of relief where the property cannot be returned (Rule 60, sec. 9); in the second case it is implied from the requirement that "if for any reason the property is not delivered to the plaintiff, the officer must return it to the defendant." (Rule 60, sec. 6). It then becomes the defendant’s obligation to take them back upon tender of the sheriff.

Now, did the sheriff return the machinery to the petitioner, as defendant in the replevin suit? Despite the affirmative finding of the Court of Appeals, petitioner denies that they were ever returned to him. For this purpose, he relies on the affidavits of P.C. Villanueva, Felimon Pacot and Narciso Lansang — affidavits which he presented to the trial court in support of his motion to stay execution. Villanueva was the same sheriff who, in his report dated January 22, 1959, stated that, in view of respondents’ refusal to accept the machines, "there is no other recourse but to return (them) to the defendant Pastor D. Ago," but who now in his affidavit executed on September 27, 1961, or two years and eight months after making the report, states that he was not able to return the machines because petitioner refused to take them back. Lansang was petitioner’s assistant manager on whom the writ of seizure was served on January 5, 1959, while Pacot was petitioner’s guard to whom the machines were entrusted for safekeeping for five days as required by law, who now in their affidavits of September 27, 1961, state that the machines remained in the custody of Pacot because petitioner did not take them back when the sheriff offered to return them.

But if, as explained, it was petitioner’s obligation to accept redelivery of the machines after their rejection by respondents, then it is clear that whether he took them back or not, he was liable for their detention. An action for replevin has for its object the recovery of some personal property; it is obvious that if the plaintiff in that action refuses to take delivery of the very property he sought to recover, it must be for very good reasons which defeat his object. Not so in the case of the defendant in such an action as to whom this presumption cannot be applied.

Then, too, as both the trial and the appellate courts observed, petitioner did not contest respondents’ manifestation made the day after the sheriff reported to the court that he was going to return the machines to petitioner. In that manifestation, respondents averred:chanrob1es virtual 1aw library

8. In view of the dilapidated state of the machineries which are no longer in a serviceable, usable, or working condition and the important and indispensable parts thereon missing or scattered, while the GMC truck could not even be located, plaintiffs’ representative could not receive the machineries from the Sheriff of Agusan who in turn returned the remaining machines and whatever parts that still remained, to defendant Pastor D. Ago, thru his representative.

Why petitioner did not dispute this assertion shortly after it was made has not been explained. On the other hand, his tardy denial of it when the judgment for recovery was to be executed fosters in the mind a conviction that the affidavits were secured merely to frustrate efforts at execution.chanrobles virtual lawlibrary

But there is an even more fundamental reason why we think the lower court correctly ordered execution to proceed. As Moran aptly states:jgc:chanrobles.com.ph

" [A] court cannot refuse to issue a writ of execution upon a final and executory judgment, or quash it, or order its stay, for, as a general rule, the parties will not be allowed, after final judgment, to object to the execution by raising new issues of fact or of law, nor can it refuse — and the reason is more compelling — to issue such writ, or quash it or order its stay, when the judgment had been reviewed and affirmed by an appellate court, for it cannot review or interfere with any matter decided on appeal, or give other or further relief, or assume supervisory jurisdiction to interpret or reverse the judgment of the higher court." (2 Comments on the Rules of Court 257 [1963])

Chua A. H. Lee v. Mapa, 51 Phil. 624 (1928) and other cases, which are cited by petitioner in support of his contention that even after a judgment has become final the court may stay or even quash the execution, refer to circumstances that have "arisen subsequent to the remanding of the record from the Supreme Court to the trial court" (at 628) and those cases are justified by the primordial necessity of doing justice in each case. But those cases, as Amor v. Jugo, 77 Phil. 703 (1946) subsequently explained, cannot be invoked when the supposed change in the circumstances of the parties took place while the case was pending. The reason is that there is then no excuse for not bringing the matter to the attention of the court the fact or circumstance that affects the outcome of the case. Such was the supposed change in the situation of the parties in this case when, so it is claimed, the petitioner lost possession of the machines for the detention of which he was ordered by final judgment to pay damages.

Finally, with respect to the cargo truck which petitioner says was already a junk on January 5, 1959 when the sheriff served the writ of seizure and for which reason he should not be made to pay rental, suffice it to say that the finding of the Court of Appeals is that it was missing and could not be produced and not that it was a junk. We take this finding to be final, especially considering that it was based on the official report of the sheriff.chanrobles virtual lawlibrary

WHEREFORE, the decision appealed from is affirmed, with costs against petitioner.

Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Dizon, Bengzon, J.P., and Zaldivar, JJ., concur.

Makalintal, J., took no part.