G.R. No. A.M. No. P-93-990 and A.M. No. P-94-1042; September 8, 2000
Teresito D. Francisco, complainant, vs. Fernando Cruz, Deputy Sheriff, Branch 171, Regional Trial Court, Valenzuela, respondent.

FACTS

Complainant Teresito D. Francisco, a judgment debtor in a civil case for a sum of money, filed two administrative complaints against respondent Deputy Sheriff Fernando Cruz. The complaints alleged that in executing the money judgment, respondent violated Sections 8 and 18, Rule 39 of the Rules of Court and the Anti-Graft and Corrupt Practices Act. Specifically, complainant charged that respondent immediately levied on their house and lot despite the availability of sufficient personal properties, and conducted the auction sale without proper posting of the required notices. Complainant further alleged conspiracy with the judgment creditors.
In his defense, respondent sheriff maintained that for a money judgment, he could levy on any property, real or personal, under Section 15, Rule 39. He claimed to have personally served the notice of sale, caused its posting and publication, and conducted the auction regularly. He admitted, however, that through inadvertence, he failed to prepare the corresponding sheriff’s report or return regarding the posting of notices. Respondent also moved to dismiss the administrative cases, arguing they were premature due to pending civil actions between the parties concerning the validity of the auction sale.

ISSUE

Whether respondent Deputy Sheriff Fernando Cruz is administratively liable for the alleged irregularities in the execution of the money judgment.

RULING

The Court found respondent administratively liable only for neglect of duty in failing to submit the required sheriff’s return, but dismissed the more serious charges. On the charge of improper levy, the Court explained that Section 9(a), Rule 39 (formerly Section 15) grants the sheriff discretion to levy on any property of the judgment debtor, whether real or personal, sufficient to satisfy the judgment. The sheriff is not obligated to first exhaust personal properties before levying on real property. The complainant, as debtor, could have prevented the levy on his realty by voluntarily offering his personal property or tendering payment, which he did not do.
Regarding the alleged lack of posting of the notice of sale, the Court ruled that the mere absence of a certificate of posting in the records is insufficient to prove non-compliance. In the absence of clear contrary evidence, the presumption of regularity in the performance of official duty prevails. The complainant failed to discharge his burden of proof on this matter. However, the Court found respondent remiss for failing to prepare and submit the sheriff’s return on the posting, a ministerial duty. Considering this lapse did not cause grave prejudice and that the complaints appeared to be part of a litigation strategy, the Court imposed a lighter penalty. Respondent was ADMONISHED to be more diligent and WARNED that future infractions would be dealt with severely.