G.R. No. L-13153; May 30, 1960
GLICERIO ROMULO and ROQUE V. DESQUITADO, plaintiffs-appellees, vs. ESTEBAN DASALLA and ERIBERTO A. UNISON, as Provincial Sheriff and Clerk of Court, Court of First Instance of Davao, defendants-appellants.

FACTS

In Civil Case No. 564 of the Court of First Instance of Davao, the Court of Appeals rendered a judgment on August 30, 1954, declaring plaintiffs-appellants (including Esteban Dasalla) entitled to recover possession of a property from defendants-appellees (including Glicerio Romulo) “with costs.” On January 15, 1955, Dasalla petitioned the lower court for execution and attached a verified bill of costs for P387.50, asking that the three defendants be ordered to pay the costs jointly and severally. The court ordered a writ of execution on February 14, 1955, and the clerk of court issued it on February 22, 1955, ordering the sheriff to collect the sum from the defendants jointly and severally. To satisfy the costs, the provincial sheriff attached two parcels of land owned by Romulo. These were sold at public auction to Dasalla on June 16, 1955. On March 27, 1956, Romulo sold the land (including the attached parcels) to Roque V. Desquitado. After the redemption period expired, the sheriff executed an absolute deed of sale to Dasalla on June 16, 1956. On July 5, 1956, Romulo and Desquitado filed the present action (Civil Case No. 2014) seeking to declare the writ of execution, attachment, sale, and absolute deed of sale null and void. The lower court declared these acts null and void, leading to this appeal.

ISSUE

1. Whether the costs in Civil Case No. 564 had been properly taxed.
2. Whether the writ of execution, the auction sale, and the absolute sale are null and void.
3. Whether the appellees still have the right to question the validity of the execution after the certificate of absolute sale had been executed.
4. Whether the matter in litigation in Civil Case No. 564 is the same as in the present case.

RULING

1. No, the costs were not properly taxed. Under Section 8, Rule 131 of the Rules of Court, in superior courts, costs must be taxed by the clerk of court upon five days’ written notice to the adverse party, who may object in writing and appeal to the court. This procedure is mandatory. Here, the deputy clerk of court testified that the bill of costs was merely attached to the petition for execution and that the writ was issued without costs having first been taxed by the clerk. The required assessment was never made. Therefore, the execution for costs was issued in contravention of the Rules.
2. Yes, the writ of execution, auction sale, and absolute sale are null and void. This nullity arises from two grounds:
a. Improper taxation of costs: As the costs were not taxed in accordance with Rule 131, the writ of execution issued for their collection was null and void. Consequently, all proceedings based on that writ—the levy, auction sale, and absolute sale—were also null and void.
b. Variance between judgment and writ: The Court of Appeals’ judgment imposed costs on the defendants but did not specify that their liability was joint and several. The presumption under Articles 1207 and 1208 of the New Civil Code is that such an obligation is merely joint. The writ of execution, however, ordered the defendants to pay the costs “jointly and severally.” An execution order must conform to the judgment it seeks to enforce; it cannot vary the judgment’s terms. The writ’s imposition of solidary liability where the judgment provided only for joint liability rendered it null and void.
3. Yes, the appellees retain the right to question the execution. The principle of estoppel does not apply because the action was filed barely a month after the execution of the absolute deed of sale. Since the sale was null and void, Romulo’s right to annul it was not barred by his failure to redeem the properties within the redemption period. A null and void sale does not require redemption.
4. No, the matter is not the same. The subject of Civil Case No. 564 was the recovery of possession and the right to costs. The present case assails the amount of costs, the nature of the liability (joint vs. joint and several), and the manner of executing the right to costs (specifically the improper taxation and the variance in the writ). Therefore, neither res judicata nor the plea of a pending action is applicable.
The appealed decision is affirmed, with costs against the appellants.