a) The questioned judgment, order or resolution shall be set aside and rendered null and void. The nullity shall be without prejudice to the refiling of the original action in the proper court.
b) The prescriptive period to re-file shall be deemed suspended from the filing of such original action until the finality of the judgment of annulment.
COLLATERAL ATTACK OF JUDGMENTS A collateral attack is made when, in another action to obtain a different relief, an attack on the judgment is made as an incident in said action.
This is proper only when the judgment, on its face, is null and void, as where it is patent that the court which rendered said judgment has no jurisdiction.
Examples:
ð A petition for certiorari under Rule 65 is a direct attack. It is filed primarily to have an order annulled.
ð An action for annulment of a judgment is likewise a direct attack on a judgment.
ð A motion to dismiss a complaint for collection of a sum of money filed by a corporation against the defendant on the ground that the plaintiff has no legal capacity to use is a collateral attack on the corporation. A motion to dismiss is incidental to the main action for sum of money. It is not filed as an action intended to attack the legal existence of the plaintiff.
EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS (Rule 39)
ü Issuance of the writ is ministerial ü Granting of the writ is judicial
DIFFERENCE BETWEEN FINALITY OF JUDGMENT FOR PURPOSE OF APPEAL; FOR
PURPOSES OF EXECUTION
For purposes of appeal, an order is final if it disposes of the action as opposed to an interlocutory order which leaves something to be done in the trial court with respect to the merits of the case.
For purposes of execution, an order is final or executory after the lapse of the reglementary period to appeal and no such appeal has been perfected.
WHEN EXECUTION SHALL ISSUE; EXECUTION AS A MATTER OF RIGHT (SEC. 1)
Execution is a matter of right upon the expiration of the period to appeal and no appeal was perfected from a judgment or order that disposes of the action or proceeding. Once a judgment becomes final and executory, the prevailing party can have it executed as a matter of right, and the issuance of a writ of execution becomes the ministerial duty of the court compellable by mandamus except in certain cases, as when subsequent events would render execution of judgment unjust. Judgments and orders become final and executor by operation of law and not by judicial declaration. The trial court need not even pronounce the finality of the order as the same becomes final by operation of law. Its finality becomes a fact when the reglementary period for appeal lapses, and no appeal is perfected within such period. Execution is a matter or right, except in the following cases:
a) Where judgment turns out to be incomplete or conditional;
b) Judgment is novated by the parties;
c) Equitable grounds (i.e., change in the situation of the parties—supervening fact doctrine)
d) Execution is enjoined (i.e., petition for relief from judgment or annulment of judgment with TRO or writ of preliminary injunction);
e) Judgment has become dormant; or f) Execution is unjust or impossible.
DISCRETIONARY EXECUTION (SEC. 2) – execution pending appeal
It constitutes an exception to the general rule that a judgment cannot be executed before the lapse of the period for appeal or during the pendency of an appeal. Under Sec. 1, Rule 39, execution shall issue only as a matter of right upon a judgment or final order that finally
disposes of the action or proceeding upon the execution of the period to appeal therefrom if no appeal has been duly perfected.
A discretionary execution is called “discretionary” precisely because it is not a matter of right. The execution of a judgment under this concept is addressed to the discretionary power of the court and cannot be insisted upon but simply prayed and hoped for because a discretionary execution is not a matter of right.
Requisites for discretionary execution:
1) There must be a motion filed by the prevailing party with notice to the adverse party;
2) There must be a hearing of the motion for discretionary execution;
3) There must be good reasons to justify the discretionary execution; and
4) The good reasons must be stated in a special order (Sec. 2, Rule 39).
HOW A JUDGMENT IS EXECUTED (SEC. 4) Judgments in actions for injunction, receivership, accounting and support, and such other judgments as are now or may hereafter be declared to be immediately executory, shall be enforceable after their rendition and shall not be stayed by an appeal taken therefrom, unless otherwise ordered by the trial court.
On appeal, the appellate court in its discretion may make an order suspending, modifying, restoring or granting the injunction, receivership, accounting, or award of support. The stay of execution shall be upon such terms as to bond or otherwise as may be considered proper for the security or protection of the rights of the adverse party.
Judgments that may be altered or modified after becoming final and executory:
1) Facts and circumstances transpire which render its execution impossible or unjust;
2) Support;
3) Interlocutory judgment.
EXECUTION BY MOTION OR BY INDEPENDENT ACTION (SEC. 6)
a) Once revived, then you can file a motion for execution
b) Execution by MOTION may be had if the enforcement of the judgment is sought within 5 years from the date of its entry.
c) Execution by INDEPENDENT ACTION is when the 5 year period has lapsed from the entry of judgment and before it is barred by the statute of limitations. This action to revive the judgment must
be filed within 10 years from the date the judgment became final.
ISSUANCE AND CONTENTS OF A WRIT OF EXECUTION (SEC. 8)
This is only upon motion and its lifetime is 5 years; as a rule, it is issued by the court of original jurisdiction The writ of execution shall:
1) issue in the name of the Republic of the Philippines from the court which granted the motion;
2) state the name of the court, the case number and title, the dispositive part of the subject judgment or order; and
3) require the SHERIFF (should make a report every
30 days) or other proper officer to whom it is
directed to enforce the writ according to its term, in the manner hereinafter provided:
a) If the execution be against the property of the judgment obligor, to satisfy the judgment, with interest, out of the real or personal property of such judgment obligor; b) If it be against real or personal property in
the hands of personal representatives, heirs, devisees, legatees, tenants, or trustees of the judgment obligor, to satisfy the judgment, with interest, out of such property;
c) If it be for the sale of real or personal property, to sell such property, describing it, and apply the proceeds in conformity with the judgment, the material parts of which shall be recited in the writ of execution; d) If it be for the delivery of the possession of
real or personal property, to deliver the possession of the same, describing it, to the party entitled thereto, and to satisfy any costs, damages, rents, or profits covered by the judgment out of the personal property of the person against whom it was rendered, and if sufficient personal property cannot be found, then out of the real property; and e) In all cases, the writ of execution shall
specifically state the amount of the interest, costs, damages, rents, or profits due as of the date of the issuance of the writ, aside from the principal obligation under the judgment. For this purpose, the motion for execution shall specify the amounts of the foregoing reliefs sought by the movants.
EXECUTION OF JUDGMENT FOR MONEY (SEC. 9)
a) Immediate payment on demand – The officer enforcing
the writ shall demand from the judgment obligor the immediate payment of the full amount stated in the judgment including the lawful fees in cash, certified
check payable to the judgment oblige or any other form
of payment acceptable to him (Sec. 9).
ð the sheriff is required to first make a demand on the obligor for the immediate payment of the full amount stated in the writ of execution
b) Satisfaction by levy – If the judgment obligor cannot
pay all or part of the obligation in cash, certified check or other mode of payment, the officer shall levy upon the properties of the judgment obligor. ð The judgment obligor shall have the option to
choose which property or part thereof may be levied upon. Should he fail to exercise the option, the officer shall first levy on the personal properties, if any, and then on the real properties if the personal properties are insufficient to answer for the personal judgment but the sheriff shall sell only so much of the property that is sufficient to satisfy the judgment and lawful fees
c) Garnishment of debts and credits – The officer may
levy on the debts due the judgment obligor including bank deposits, financial interests, royalties, commissions and other personal property not capable of manual delivery in the possession or control of the third persons.
EXECUTION OF JUDGMENT FOR SPECIFIC ACTS (SEC. 10)
If the judgment requires a person to perform a specific act, said act must be performed but if the party fails to comply within the specified time, the court may direct the act to be done by someone at the cost of the disobedient party and the act when so done shall have the effect as if done by the party
If the judgment directs a conveyance of real or personal property, and said property is in the Philippines, the court in lieu of directing the conveyance thereof, may by an order divest the title of any party and vest it in others, which shall have the force and effect of a conveyance executed in due form of law.
EXECUTION OF SPECIAL JUDGMENTS (SEC. 11) When a judgment requires the performance of any act other, a certified copy of the judgment shall be attached to the writ of execution and shall be served by the officer upon the party against whom the same is rendered, or upon any other person required thereby, or by law, to obey the same, and such party or person may be punished for contempt if he disobeys such judgment.
EFFECT OF LEVY ON THIRD PERSONS The levy on execution shall create a lien in favor of the judgment obligee over the right, title and interest of the
judgment obligor in such property at the time of the levy, subject to liens and encumbrances then existing.
PROPERTIES EXEMPT FROM EXECUTION (SEC. 13)
EXCEPT as otherwise expressly provided by law, the following property, and no other, shall be exempt from
execution:
1) The judgment obligor‘s family home as provided by law, or the homestead in which he resides, and the land necessarily used in connection therewith; 2) Ordinary tools and implements personally used by
him in his trade, employment, or livelihood;
3) Three horses, or three cows, or three carabaos, or other beasts of burden, such as the judgment obligor may select necessarily used by him in his ordinary occupation;
4) His necessary clothing and articles for ordinary personal use, excluding jewelry;
5) Household furniture and utensils necessary for housekeeping, and used for that purpose by the judgment obligor and his family, such as the judgment obligor may select, of a value not exceeding 100,000 pesos.
6) Provisions for individual or family use sufficient for four months;
7) The professional libraries and equipment of judges, lawyers, physicians, pharmacists, dentists, engineers, surveyors, clergymen, teachers, and other professionals, not exceeding 300,000 pesos;
8) One fishing boat and accessories not exceeding the total value of 100,000 pesos owned by a fisherman and by the lawful use of which he earns his livelihood;
9) So much of the salaries, wages, or earnings of the judgment obligor for his personal services with 4 months preceding the levy as are necessary for the support of his family;
10) Lettered gravestones;
11) Monies, benefits, privileges, or annuities accruing or in any manner growing out of any life insurance; 12) The right to receive legal support, or money or
property obtained as such support, or any pension or gratuity from the government; and
13) Properties specially exempted by law (Sec. 13, Rule 39).
If the property is the subject of execution because of a judgment for the recovery of the price or upon judgment of foreclosure of a mortgage upon the property, the property is not exempt from execution.
PROCEEDINGS WHERE PROPERTY IS CLAIMED BY THIRD PERSONS (SEC. 16)
If the property levied on is claimed by any person other than the judgment obligor or his agent, the officer shall not be bound to keep the property, unless such judgment
obligee, on demand of the officer, files a bond approved by the court to indemnify the third-party claimant in a sum not less than the value of the property levied on. The officer shall not be liable for damages for the taking or keeping of the property, to any third-party claimant if such bond is filed.
Requisites for a claim by a third person: a) The property is levied;
b) The claimant is a person other than the judgment obligor or his agent;
c) Makes an affidavit of his title thereto or right to the possession thereof stating the grounds of such right or title; and
d) Serves the same upon the officer making the levy and the judgment obligee.
IN RELATION TO THIRD PARTY CLAIM IN ATTACHMENT AND REPLEVIN Remedies available to a third person not party to the action but whose property is the subject of execution: a) TERCERIA
ð By making an affidavit of his title thereto or his right to possession thereof, stating the grounds of such right or title.
ð The affidavit must be served upon the sheriff and the attaching party (Sec. 14, Rule 57).
ð Upon service of the affidavit upon him, the sheriff shall not be bound to keep the property under attachment except if the attaching party files a bond approved by the court.
ð The sheriff shall not be liable for damages for the taking or keeping of the property, if such bond shall be filed.
b) EXCLUSION OR RELEASE OF PROPERTY ð Upon application of the third person through a
motion to set aside the levy on attachment, the court shall order a summary hearing for the purpose of determining whether the sheriff has acted rightly or wrongly in the performance of his duties in the execution of the writ of attachment.
ð The court may order the sheriff to release the property from the erroneous levy and to return the same to the third person.
ð In resolving the application, the court cannot pass upon the question of title to the property with any character of finality but only insofar as may be necessary to decide if the sheriff has acted correctly or not.
c) INTERVENTION
ð This is possible because no judgment has yet been rendered and under the rules, a motion for intervention may be filed any time before the
rendition of the judgment by the trial court (Sec.
2, Rule 19).
d) ACCION REINVINDICATORIA
ð The third party claimant is not precluded by Sec.
14, Rule 57 from vindicating his claim to the
property in the same or in a separate action. ð He may file a separate action to nullify the levy
with damages resulting from the unlawful levy and seizure. This action may be a totally distinct action from the former case.
RULES ON REDEMPTION WHAT MAY BE REDEEMED?
F The right of redemption is available only to real properties. When personal properties are sold in execution their sale is absolute and no right of redemption may be exercised.
WHO MAY REDEEM?
a) Judgment obligor, or his successor in interest in the whole or any part of the property;
b) Redemptioner – a creditor having a lien by virtue of an attachment, judgment or mortgage on the property sold, or on some part thereof, subsequent to the lien under which the property was sold.
WHEN TO REDEEM?
a) By the judgment obligor - within 1 year from the date of the registration of the certificate of sale. b) By the redemptioner - within 1 year from the
date of the registration of the certificate of sale if he is the first redemptioner, or
c) Within 60 days after the last redemption if he is a subsequent redemptioner, provided that the judgment debtor has not exercised his right of redemption.
ð In all cases the judgment obligor shall have the entire period of one (1) year from the date of the registration of the sale to redeem the property. If
the judgment obligor redeems, no further redemption is allowed and he is restored to his estate.
REDEMPTION PRICE a) By the judgment obligor
1. Purchase price
2. 1% interest thereon up to the time of redemption
3. Any amount of assessments or taxes which the purchaser may have paid thereon after purchase, and interest on such last named amount at the same rate.
ð 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. b) By the redemptioner
1. Amount paid on the last redemption; 2. 2% interest thereon
3. Any amount of assessments or taxes which the last previous redemptioner paid after the redemption by him with interest on such last-named amount;
4. Amount of any liens held by the last redemptioner prior to his own, with interest. Generally in judicial foreclosure sale, there is no right of redemption, but only equity of redemption. In sale of estate property to pay off debts of the estate, there is no redemption at all. Only in extrajudicial foreclosure sale and sale on execution is there the right of redemption. If no redemption be made within one (1) year from the date of the registration of the certificate of sale, the purchaser is entitled to a conveyance and possession of the property; or, if so redeemed whenever sixty (60) days have elapsed and no other redemption has been made, and notice thereof given, and the time for redemption has expired, the last redemptioner is entitled to the conveyance and possession.
Upon the expiration of the right of redemption, the purchaser or redemptioner shall be substituted to and acquire all the rights, title, interest and claim of the judgment obligor to the property as of the time of the levy.
The possession of the property shall be given to the purchaser or last redemptioner by the same officer unless a third party is actually holding the property adversely to the judgment obligor.
EXAMINATION OF JUDGMENTS OBLIGOR WHEN JUDGMENT IS UNSATISFIED (SEC. 36) When the return of a writ of execution issued against property of a judgment obligor, or any one of several obligors in the same judgment, shows that the judgment