[ G.R. Nos. L-1400, L-1406 and L-1407. July 30, 1947 ] 78 Phil. 800
[ G.R. Nos. L-1400, L-1406 and L-1407. July 30, 1947 ]
FRANCISCO CUNAAN, DEOGRACIAS ATIENZA AND FELIX ESPINO, PETITIONERS, VS. SOTERO RODAS, JUDGE OF FIRST INSTANCE OF MANILA, PILAR FARAON, AND THE SHERIFF OF CITY OF MANILA, RESPONDENTS. D E C I S I O N
PARAS, J.:
The three petitioners herein, Francisco Cunaan, Deogracias Atienza and Felix Espino, are the defendants in three separate actions for ejectment instituted by the herein respondent, Pilar Faraon, in the Municipal Court of the City of Manila. The petitioners were sentenced to vacate the premises respectively occupied by them and each to pay the monthly rental of thirty pesos from November 1, 1946. The petitioners appealed to the Court of First Instance of Manila which, on March 25, 1947, entered an order directing the issuance of writs of execution, on the ground that the petitioners had failed to deposit with said court the rental fixed by the municipal court within the period specified in section 8 of Rule of Court No. 72. Said order was, of course, issued after the herein respondent Pilar Faraon had filed the corresponding motion for execution. The petitioners have now come before us for relief, through an original petition for prohibition.
We have already held that section 8 of Rule of Court No. 72, authorizing immediate execution when the defendant in an ejectment case appealed to the Court of First Instance fails to pay to the plaintiff or to the court the rents due from time to time on or before the tenth day of each calendar month, is mandatory, leaving the court without any discretion in the matter. (Zamora vs. Dinglasan and Hilario, 77 Phil., 46; Caluag Domingo vs. Court of First Instance of Nueva Ecija and Roman Vda. de Moreno, 77 Phil., 170.)
In view of petitioners’ admission that they deposited the rent in question beyond the reglementary ten-day period, the question that arises is whether the petitioners may be considered as falling under the exception recognized in Zamora vs. Dinglasan and Hilario, supra, namely, that the delay in effecting the deposit was due to fraud, accident, mistake or excusable negligence. But said defense cannot herein be inquired into, since it was not raised and properly made the subject of proof before the respondent judge.
Neither may the petitioners invoke the Rental Law (Commonwealth Act No. 689) allowing suspension of executions, for the simple reason that said law refers to execution of final and executory judgments, and not to execution pending appeal. The respondent Pilar Faraon needs the premises in dispute for her own use. Hence Republic Act No. 66 has also no application in this case.
The petitioners are likewise not entitled to the benefit of the doctrine laid down in Manotok vs. Legaspi and Legaspi (77 Phil., 523), to the effect that “although under sections 8 and 9 of Rule 72, the landlord, in whose favor a decision for ejectment has been rendered by the lower court, is entitled to ask for the execution of the lower court’s judgment if the tenant fails to pay or deposit, on or before the 10th day of each calendar month, the rent for the preceding month, there is nothing to preclude him from waiving his right,” because in that case, unlike the ones at bar, “it unmistakably appears that appellee had waived the right by allowing appellants to pay the rents out of time and by accepting the belated payments for the purpose of staying the execution of the judgment.”
The petition is hereby dismissed, with costs against the petitioners. So ordered.
Hilado, Hontiveros, Padilla, and Tuason, JJ., concur.