Separate Opinions
ESCOLIN, J., concurring:chanrob1es virtual 1aw library
I agree. Paragraph 1, Section 23 of the Interim Rules provides:jgc:chanrobles.com.ph
"In cases where appeal is taken, perfection of the appeal shall be upon the expiration of the last day to appeal by any party." [Emphasis for emphasis].
Under this section, the mere filing of the appellant’s notice of appeal does not divest the trial court of its jurisdiction over the case. The court may still take cognizance of the other party’s motion for new trial under Rule 37, if he should opt to file one, or, as in the instant case, a motion for execution pending appeal, provided such motions are filed within 15 days from said party’s notice of the decision. Upon this premise, respondent Ching may not foreclose the petitioner’s right to ask for immediate execution by the simple expedient of immediately filing a notice of appeal. This consequence finds no justification in the Interim Rules.chanrobles lawlibrary : rednad
In the case at bar, petitioner filed the motion for immediate execution within the reglementary period. The fact that the motion was resolved after the said period is of no moment. As pointed out by Justice Aquino in his ponencia, to require the trial court to dispose of such motion within the reglementary period for appeal "would be difficult, if not impossible, to follow."cralaw virtua1aw library
CUEVAS, J., dissenting:chanrob1es virtual 1aw library
The issue involved in this Certiorari case is whether or not execution pending appeal may be issued even after the perfection of the appeal.
Respondent Emilio Ching, defendant in the collection case before the trial court, was served with a copy of the judgment which is sought to be executed, on January 12, 1983. On January 17, 1983, Petitioner, plaintiff in the said collection case and who was served with copy of the decision on January 14, 1983, filed a motion for execution pending appeal. On January 27, 1983, Ching filed a notice of appeal. Petitioner’s motion for execution pending appeal was granted but only on May 30, 1983, or four (4) months after the appeal has been perfected.
Rule 41, Sec. 9 of the Rules of Court provides:jgc:chanrobles.com.ph
"Sec. 9. When appeal deemed perfected; effect thereof. — If the notice of appeal, the appeal bond and the record on appeal have been filed in due time, the appeal is deemed perfected upon the approval of the record on appeal and of the appeal bond other than a cash bond, and thereafter the trial court loses its jurisdiction over the case, except to issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal, to approve compromises offered by the parties prior to the transmittal of the record on appeal to the appellate court, and to permit the prosecution of pauper’s appeals."cralaw virtua1aw library
Under the old procedure as laid down in the aforequoted provision, mere filing of the notice of appeal, record on appeal and appeal bond does not suffice for the perfection of an appeal. It is the filing within the reglementary period, and approval by the Court of the record on appeal and appeal bond which perfect the appeal.chanrobles.com : virtual law library
Under the present procedure for appeal, as spelled out by the Ad Interim Rules and Guidelines promulgated by this Court, the filing of a record on appeal, except in cases of multiple appeals, (Sub-Par. B, Par. 19) is dispensed with (Par. 18). Likewise there is no more necessity for the filing of an appeal bond. The appeal is perfected upon the expiration of the last day to appeal (Par. 23, Ad Interim Rules and Guidelines) and the filing and/or pendency of a motion for execution pending appeal does not suspend nor interrupt the period for the perfection of the appeal.
Once the appeal is perfected, whether under the Rules of Court or under the present procedure and guidelines, the trial court loses jurisdiction over the case except (1) to issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal; (2) to approve compromises submitted by the parties; and (3) to permit the prosecution of pauper’s appeal. (Gosiengfiao v. Yatco, 1 SCRA 358; Cabilao v. Judge of the CFI of Zamboanga, 17 SCRA 992, August 29, 1966). The trial court also loses jurisdiction to issue an order of execution pending appeal. (Basco v. CA, 81 SCRA 726, February 28, 1978).
Thus what is decisive is the time when the appeal is perfected and not when the motion for execution pending appeal was filed. For an execution pending appeal to be valid, not only must the motion for that purpose be filed within the period for appeal but the grant thereof must also be made within the time for the perfection of the appeal since the authority to act thereon by way of approving it is lost the moment the appeal is perfected. Aware of the foregoing consequences, movant must now act earlier in order to give the Court enough opportunity to resolve his motion before the period of appeal expires. For if he dilly-dally the filing of said motion and the Court fails to act thereon for lack of sufficient time, then he has nobody to blame and must therefore be made to suffer the consequences of his inaction.
It is true, under the old procedure where the motion for execution of judgment pending appeal was filed before the final approval of the Record on Appeal, the trial court still retains jurisdiction to resolve and grant the motion. (Laurelia v. Uichangco, 104 Phil. 17) Under the present Rules and Guidelines, however that ruling no longer applies since there is no more Record on Appeal that will have to be approved in order that the appeal maybe perfected. The mere lapse of the fifteen day period to appeal perfects the appeal. But even under the old procedure if the approval of the record on appeal is final and not provisional, the trial court can no longer issue even partial execution of its judgment. (Alcober v. Garciano, 23 SCRA 676, May 23, 1968)chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph
The fact that the trial court has but only fifteen (15) days or even lesser in certain cases, which it may be argued is not enough to act upon the motion, is no excuse for allowing issuance of execution pending appeal even after the perfection of the appeal. For while the rule requires that the reasons in support of execution pending appeal should be stated in a special order, this is not to be strictly construed if it would defeat the interest of justice. That such reasons are not expressed in a special order will not nullify immediate execution, provided these reasons may be found somewhere in the record. (Borromeo Bros. Estate, Inc. v. Court of Appeals, 105 Phil. 466; Alcasid v. Samson, 102 Phil. 735; Del Rosario v. Sandico, 97 Phil. 172; People’s Bank & Trust Co. v. San Jose, 96 Phil. 895; Joven v. Boncan, 67 Phil. 252). It is sufficient that good reasons are stated in the motion for execution to which the order of execution makes reference. (De la Rosa v. City of Baguio, 90 Phil. 720; Joven v. Boncan, 67 Phil. 252; Lusk v. Stevens, 64 Phil. 154). In fact the Supreme Court has affirmed execution pending appeal in a case where the trial judge merely wrote the words "motion granted" at the foot of the second page of the motion for execution. (Buenaventura v. Peña, 78 Phil. 795)
If the rule is otherwise, the trial court may just sit on the motion and act thereon only when it pleases, thus delaying the transmission of the entire record of the case to the appellate court thereby forestalling earlier disposition of the appeal which is far from the intent and purpose of the new appeal procedure.
IN VIEW OF THE FOREGOING CONSIDERATIONS, I vote to affirm the decision of the Intermediate Appellate Court.