G.R. No. L-23554 November 25, 1967
HONORIA LAO and PRIMITIVO LAO, petitioners, vs. HON. JUDGE EULOGIO MENCIAS, of the Court of First Instance of Rizal, and LINO VICTORINO, LETICIA PIKE, FRANCISCA VDA. DE PIKE, NORMA PIKE, AGATONA NATIVIDAD and FELISA LAKAMBAKAL, respondents.

FACTS

Petitioners Honoria Lao and Primitivo Lao were defendants in a complaint for rescission of contract and damages with attachment filed by the other respondents (plaintiffs) before respondent Judge Eulogio Mencias. A decision was rendered against the petitioners on March 5, 1964. Petitioners filed a motion to set aside the decision and for a new trial. On July 21, 1964, the other respondents (plaintiffs) filed an unverified motion for the issuance of a writ of execution before the decision became final and executory, alleging that the petitioners’ property was encumbered, that petitioners were using subdivision installment payments for personal use and not for required improvements, that petitioners appeared to have no other assets to satisfy the judgment obligations, and that the plaintiffs would be deprived of collection if the case dragged on due to an appeal. The motion was not opposed by petitioners’ counsel. Respondent Judge granted the motion and issued the writ of execution pending appeal. Petitioners filed this petition for certiorari, seeking to quash the writ primarily on the ground that the motion for execution was not sworn to and no affidavit was attached to substantiate its factual allegations, and that respondent Judge acted with grave abuse of discretion.

ISSUE

Whether the respondent Judge committed grave abuse of discretion in granting the motion for execution pending appeal despite the motion being unverified and unsupported by an affidavit.

RULING

No. The petition is denied. The Supreme Court held that the Rules of Court do not require a motion for execution pending appeal to be under oath or supported by an affidavit. Under Section 2, Rule 39, a court may order execution before the expiration of the time to appeal upon good reasons stated in a special order, based on a motion by the prevailing party with notice to the adverse party. All requisites were present: there was a motion with notice, good reasons were stated (petitioners’ alleged insolvency and risk of asset dissipation), and these reasons were stated in a special order. The respondent Judge’s action was in accordance with procedural principles and supported by the record, as petitioners did not oppose the motion, file a motion for reconsideration, or refute the allegations therein. The Court found no grave abuse of discretion and declined to disturb the lower court’s ruling. The preliminary injunction was dissolved.