P LAN I NSTITUCIONAL DE A RCHIVOS PINAR C.A.N IPUC

1. Difference between finality of judgment for purposes of appeal; for purposes of execution

There are two concepts of finality of a final order or judgment, one, it is considered final, with respect to the enforceability of the judgment or order and final with respect to the appealability of the judgment or order.

From the point of view of enforceability, a final order or a final judgment is one which can already be enforced because the period for an appeal has expired and no appeal was interposed.

From the point of view of appealability, this simply means whether or not the order is appeallable or not.In the case of interlocutory order, after its issuance, there is still something to be done with respect to the merits of the case. So, the order does not put an end to a case. The order is not appeallable. An order

denying the motion to dismiss is an interlocutory order, hence not appeallable. But an order granting a motion to dismiss is final hence appeallable. (Note: Rule 39 speaks of the finality of a final judgment or final order from the POINT OF VIEW OF ENFORCEABILITY)

2. When execution shall issue

Execution is a remedy provided by law for the enforcement of a final judgment. Once a decision becomes final and executory, it is removed from the power of jurisdiction of the court which rendered it to further amend, much less revoke. (Republic vs. Reyes 155 SCRA 313 (1987)

Decisions which have long become final and executory cannot be annulled by courts. (United CMC vs.

Labor Arbiter, 149 SCRA 424(1987) a. Execution as a matter of right b. Discretionary execution 3. How a judgment is executed

a. Execution by motion or by independent action

Final judgment or order may be enforced in either of two ways:- by the filing of a motion for the issuance of a writ of execution within FIVE (5) YEARS from the entry of judgment; or by an independent action (revival of judgment) after the lapse of the five (5) years period provided the action has not prescribed.

b. Issuance and contents of a writ of execution c. Execution of judgments for money

d. Execution of judgments for specific acts e. Execution of special judgments

f. Effect of levy on third persons 4. Properties exempt from execution EXECUTION (Sec 13, Rule 39)

Section 13 OF Rule 39 liberalized the statutory exemptions from execution by:

1. Increasing the exemption from 2 to 3 horses, cows and carabaos;

2. Increasing the limit for household furnitures from P1, 000.00 to P100, 000.00;

3. Extending the provisions for the family from 3 to 4 months;

4. Increasing the exemptions for professional libraries from P3, 000.00 to P300, 000.00;

5. Increasing the exemption for fishing boat from P1, 000.00 to P100, 000.00;

6. The salaries, wages or earnings of the judgment debtor for his personal services for four (4) months instead of just one (1) month preceding the levy;

7. The removal of any upper limit on all benefits or proceeds from a life insurance policy;

8. The rule prescribes a maximum amount of exemption in certain cases. The value beyond the exempt amount can be levied upon; and

9. The duty of the sheriff is to make a levy. It is up to the judgment obligor to claim exemption. If he does not, he waives the exemption. The sheriff has no authority to make the exemption.

5. Proceedings where property is claimed by third persons a. in relation to third party claim in attachment and replevin

LEVY IS NECESSARY BEFORE PROPERTY OF JUDGMENT OBLIGOR IS SOLD ON EXECUTION (Sec 9[b], Rule 39)

Levy – is the act of segregating from the rest of the judgment obligor’s properties certain properties to answer for the judgment. Levy is the act of execution itself. Once validly made, it is a lien in favor of the judgment oblige, superior to rights of third persons which arose after the levy.

THIRD-PARTY CLAIM (Sec 16, Rule 39)

A claim of third persons against the title to, or right of possession of, the levied property.

1. How made:

By affidavit showing his title to or right of possession of the levied property, served upon the officer making the levy with copy furnished to the judgment obligee. This he must do while the sheriff has possession of the property or before the sale at public auction. The moment the third-party claim is filed, the officer is no longer bound to keep holding the property levied (for there is danger that he will be made personally liable for damages just in case). To make the officer continue holding the levied property, the judgment obligee should file a bond approved by the court to protect the officer from damages.

2. Who acts on the third-party claim?

a. Although filed with the officer, it is considered filed with the court which issued the writ of execution. The court either approves or disapproves the third-party claim. If disapproved, the remedy of the third-party claimant is to:

(1) File separate action to determine title or right of possession of, the levied property;

(2) File a complaint for damages against the bond filed by the judgment creditor within one hundred twenty (120) days from the date of the filing of the bond.

b. Only one who has title or right of possession of the levied property is the proper third-party claimant.

A mortgagee of the property levied upon is not a proper third-party claimant. He has no title to, nor right of possession of, the mortgaged property.

6. Rules on Redemption

A. REDEMPTION (Secs 27 & 28, Rule 39) 1. Right of Redemption:

a. Personal property – none; sale is absolute.

b. Real property – there is right of redemption.

2. Who may redeem: only the following:

a. The judgment obligor, or his successor-in-interest, in whole or any part of the property;

or

b. A redemptioner who is a creditor having a:

(1) Lien by attachment on the property sold subsequent to the lien under which the property was sold;

(2) Lien by judgment on the property sold subsequent to the lien under which the property was sold;

(3) Lien by mortgage on the property sold subsequent to the lien under which the property was sold.

3. Time and Manner of, and amounts payable on, successive redemption, etc.

a. For the judgment debtor (or his successor-in-interest), if exercising redemption ahead of a mere redemptioner – within one (1) year from the date of the registration of the (sheriff’s) certificate of sale (with the Register of Deeds):

(1) By paying the purchaser the amount of his purchase plus 1% per month interest and amount of any assessments and taxes paid with like interest; and

(2) If judgment debtor redeems – NO further redemption by any redemptioner.

b. For a redemptioner exercising redemption ahead of the judgment debtor (or his successor-in-interest) – within one (1) year from the date of registration of the certificate of sale:

(1) By paying the purchaser the amount of his purchase plus 1% per month interest and the amount of any assessments and taxes paid with like interest;

(2) If the purchaser be also a creditor having a prior lien to that of the redemptioner, other than the judgment under which such purchase was made – the amount of such other lien, with interest;

(3) The judgment debtor may redeem from the redemptioner provider it is done within one (1) tear from the date of registration of the sale; in such case, there is NO further redemption.

c. If a redemptioner redeems from another redemptioner – within sixty (60) days after the last redemption:

(i) Upon payment of the sum paid on the last redemption with 2% thereon in addition, and the amount of any assessments or taxes paid by the last redemptioner with interest thereon and, in addition, the amount of any lien held by said last redemptioner prior to his own, with interest.

(ii) There is no limit as to the number of redemption from redemptioner by another redemptioner , even if done beyond the one (1)-year period after the registration of the sale, so long as the redemption between the redemptioners is made within sixty (60) days from last redemption.

4. If real property is sold at public auction, the purchaser is not entitled to possession during the redemption period, but the court may issue an injunction against the judgment obligor to avoid waste of the property in the possession of the judgment obligor upon motion of the purchaser or the judgment obligee. (Sec 31, Rule 39)

B. DEED AND POSSESSION AFTER EXPIRATION OF REDEMPTION PERIOD (Sec 33, Rule 39)