[ G.R. No. L-1268. September 30, 1947 ] 79 Phil. 319
[ G.R. No. L-1268. September 30, 1947 ]
RUFINO KABILING, PETITIONER, VS. EMILIO PEÑA, JUDGE OF THE COURT OF FIRST INSTANCE OF MANILA, THE SHERIFF OF MANILA, AND ROSA NITORREDA, RESPONDENTS. D E C I S I O N
HILADO, J.:
Asserting a better right to occupy stalls Nos. 250 to 253 of the Quinta Market, than respondent Rosa Nitorreda, petitioner Rufino Kabiling, as plaintiff in civil case No. 312 of the Court of First Instance of Manila, filed an injunction suit (pet., paragraph 2) against said respondent, as defendant therein, and against the Mayor of Manila and other city officials therein named, concerning said stalls. He prayed for and obtained a writ of preliminary injunction restraining the defendants therein from ejecting him from the said stalls.
After hearing the evidence of both parties, said court, the Honorable Emilio Peña presiding, rendered its decision (Annex A) wherein it adjudged that the therein defendant Rosa Nitorreda was the lawful occupant of the above-mentioned stalls of the Quinta Market and sentenced the therein plaintiff (now petitioner) to pay to said Nitorreda as damages the sum of P5 daily from August 10, 1946, “up to the date he vacates said stalls,” with costs. The preliminary injunction theretofore issued was set aside. Although the dispositive part of said decision employed the phrase “lawful occupant” in referring to Nitorreda, and to the stalls above mentioned, it is clear from the context that the court’s meaning is that Nitorreda was lawfully entitled to occupy them.
That decision was dated December 11, 1946. Thirteen days thereafter, Nitorreda, through counsel, filed an urgent motion for execution of said judgment (Annex B), to which motion the therein plaintiff, now petitioner, filed his written opposition (Annex C). Judge Peña, by an order dated January 3, 1947, (Annex D) granted the motion and decreed that execution issue in the case.
In his present petition petitioner asks us to annul the order for the issuance of the writ of execution as well as the orders of Judge Peña denying his petition to dismiss the “injunction case” (said case No. 312 of the Court of First Instance of Manila), and for general relief.
Petitioner contends that there was no special reason justifying the immediate execution of the judgment of the Court of First Instance pending the appeal to the Court of Appeals, and in view of the fact that he was willing to post a bond “to answer for whatever damages the respondent, Rosa E. Nitorreda may suffer by reason of the appeal” (Petition, paragraph 5), and in view of Republic Act No. 37 having been enacted and supplemented by Department Order No. 32 of the Department of Finance, petitioner asserts (petition, paragraphs 6-9) that said case No. 312 should have been dismissed, and that the respondent judge Honorable Emilio Peña acted “without and in excess of jurisdiction and with grave abuse of discretion” in denying his petition to dismiss said “injunction case” and in issuing the aforesaid writ of execution.
Petitioner himself calls civil case No. 312 of the Court of First Instance an “injunction case” (petition, paragraph 7 and prayer), and his own evidence tended not to establish a legal and permanent adjudication of the stalls to him, but merely actual occupancy based upon a sort of provisional or conventional permission of the market master, in which occupancy he wished to be protected through the special remedy of injunction. Consequently, Rule 39, section 4, should be applied. By virtue of this provision, “unless otherwise ordered by the court”—which is not the case here—“a judgment in an action for injunction * * * shall not be stayed after its rendition and before an appeal is taken or during the pendency of appeal.”
As for Republic Act No. 37 and Department Order No. 32 of the Department of Finance, as already stated in our decision in Co Chiong and Lim Chiu Guan vs. Dinglasan (p. 122, ante), the Secretary of Finance has suspended motu propio the operation of said Department Order, and without it or some other similar order or regulation, Republic Act No. 37 is not susceptible of execution.
For all the foregoing, the petition is hereby dismissed, with costs. So ordered.
Moran, C.J., Paras, Feria, Pablo, Bengzon, Briones, Padilla, and Tuason, JJ., concur.