Anwar Luke Rule39

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    RULE 39EXECUTION

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    WHEN EXECUTION SHALL ISSUE;

    Execution is a matter of right upon 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 become final and executory, the

    prevailing party can have it executed as a matter of right,

    and the issuance of a writ of execution becomes

    ministerial duty of the court

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    HOW EXECUTION SHALL ISSUE;

    It was ruled that even in judgments which are

    immediately executory, there must be a motion to that

    effect and a hearing called for the purpose.

    Likewise a writ of execution must contain a notice to

    the adverse party.

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    WHEREAPPLICATION FOR

    EXECUTON IS MAD

    E.Execution shall be applied for in the court of

    origin. If an appeal has been made duly perfected and

    finally resolved, the writ may also be applied for in the

    court of origin on motion of the obligee.If for whatever reasons execution cannot be had

    with dispatch with the court of origin, the new rules

    likewise afford the judgment obligee a remedy. He may

    file a motion with the appellate court to direct the courtof origin in the interest of justice, to issue the writ of

    execution.

    No appeal may be taken from an order of execution.

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    CLASSES OF EXECUTION

    1. AS TO THEIRNATURE;

    A. COMPULSORYEXECUTION: known as

    execution as a matter of right.

    B. DISCRETIONARYEXECUTION: known asexecution pending appeal.

    2. AS TO HOW IT IS ENFORCED (sec 6)

    A. EXECUTION BY MOTIONB. EXECUTION BYINDEPENDENT

    ACTION

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    Q: WHAT ARE THE CONDITIONS FORCOMPULSORY EXECUTION ?

    A: THE FF: ARE THE CONDITIONS

    1. First condition: If a judgmenthas disposed already of the action or proceeding

    then it can be executed.

    2. Second condition: The period to

    appeal has expired and no appeal has been filed ortaken from the judgment.

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    Q: May the court refuse to execute judgment on the

    ground that judgment is wrong or erroneous?

    A: No matter how erroneous judgment may be, as

    long as the court has jurisdiction over the parties

    and the subject matter of the litigation. The said

    judgment is enforceable by execution once itbecomes final and executory.

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    GEN.RULE: Judgment is enforceable by execution

    once it becomes final and executory.

    EXCEPTIONS:

    1. When there has been a changed in the situation of

    the parties, which makes the execution inequitable.2. When it appears that the controversy has never

    been submitted to the judgment of the court.

    3. When the judgment was novated by subsequent

    agreement by the parties4. When it appears that the writ of execution has been

    improvidently issued

    5. When the writ of execution is defective.

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    GENERAL RULE: If there is an appeal, the

    judgment will be stayed.

    EXEPTIONS: Judgments in actions for injunction,

    receivership ,accounting ,support, judgment

    declared to be immediately executory.

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    Q: Give an example which declares a judgment to be

    immediately executory?

    A: Under rules of summary procedure- where adecision of the MTC in a civil case is appealed to the

    RTC, the decision of the RTC is immediately

    executory even if we go to the CA

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    Q: What are the requisites of discretionary execution?

    A: The following are;

    1. There must be a motion filed by the

    prevailing party2. There must be an notice of a motion

    given to the adverse party

    3. There must be a good reason to

    executed to be stated in a special order after duehearing.

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    Q: Give example of good reasons which would

    justify execution pending appeal.

    A: Following are example of good reasons

    1. When there is danger of the judgment

    becoming ineffectual.2. Old age

    3. Where the appeal is for the purpose of delay.

    We might say that the posting of a bond would be anadditional reason but it is not by itself a good reason.

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    Q: Where can you file your motion for executionpending appeal?

    A: It depends

    1. Trial Court while it has jurisdiction

    over the case and the court is still in

    possession of the records of the case.

    2. Appellate Court After the trial court

    has already lost jurisdiction, the motion forexecution pending appeal may already be

    filed in the Appellate Court.

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    Q: Assuming that there is an execution pendingappeal in favor of the plaintiff under sec 2

    (What is the remedy in order the stop the

    execution pending appeal)

    A: The remedy is to apply ruled 39 sec 3. Thedefendant will now ask the court to fix a

    supersedeas bond to stop the execution pending

    appeal. The bond will answer for any damages that

    the plaintiff may suffer if the defendant appeal is

    not meritorious.

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    General Rule: When a defendant puts up a

    supersedeas bond, the court shall recall the execution

    pending appeal because discretionary execution is

    the exception rather than the general rule.

    Exception: Notwithstanding the filling of the

    supersedeas bond by the appellant, executionpending appeal may still be granted by the court. If

    there are special and compelling reasons justifying

    the same outweighing the security offend by the

    supersedeas bond.Ex. Judgment for Support

    Rule 39 Sec 6

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    Q: How is the execution enforced?

    A: There are two modes under Sec 6:

    1. Execution by motion within 5 yrs.

    Form the date of its entry

    2. Execution by independent action

    within 5yrs. to 10yrs.

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    Q: What is a dormant judgment?A: A dormant judgment is one that was not

    executed within 5 yrs.

    Q: How can that (dormant) judgment be awaken?

    A: The procedure is to file another civil action. A

    civil action for revival of judgment. That is what

    you call execution by Independent Action which

    must be filed before it is barred by the statute of

    limitations.

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    Q: Discuss briefly the nature of the Action forenforcement of a dormant judgment.

    A: The action for enforcement of a dormant

    judgment is an ordinary civil action the object ofwhich is two-fold, namely:

    1. To revive the dormant judgment

    2. To execute the judgment reviving it, if it grants

    the plaintiff any relief.

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    Q: Suppose the judgment was executed and theproperty of the defendant was levied on the 4 th year,

    and the next stage is the auction sale?

    A: The SC said the auction sale must also bewithin 10yrs. So, even if the property was levied,

    the auction sale must be within 10yrs. Not only

    the levy of the property must be done within 10

    yrs. but also the including the auction sale, anyauction sale done beyond 10 yrs. is null and void.

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    Q: What is the effect of a death of a party on the

    execution of a judgmentA: The following:

    1. If it is the obligee [the creditor] will die after he wins the

    case, his executor or administration, his legal representative or

    his heirs and successor in interest can enforce the judgment.They will be the one to collect (Par[A])

    2. If it is the defendant (obligor) who dies and there is final

    judgment which is recovery of real or personal property, the

    judgment is executed against the administrator or executor

    because this is an action which survives. (Par[B])

    3. Under (Par[C]) it is the death of the obligor in a money

    claim. This is related to Rule 3 Sec 20.

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    Q: What kind of property can be levied?A: Any-real, personal, tangible, intangible-

    except those properties exempt from execution.

    Q: Does the debtor has the right to tell the sheriff

    what property he should levy?

    A: Yes, The law gives the debtor or defendant the

    option to immediately choose which property or part

    thereof may be levied upon sufficient to satisfy the

    judgment.

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    Q: When you oust the defendant in regard of apossession case, is a writ of execution a sufficient basis

    for the removal of improvements of the property?

    A: No: Under (Par[D]) the plaintiff or judgmentobligee still have to get a special order from the court

    by filing a petition to authorize the destruction or

    removal of the improvements of the property after the

    defendant is given reasonable time to remove hishouse voluntarily.

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    Q: What properties exempt from execution?

    A: The following are:1. The judgment obligors family home as provided by

    law, or the homestead in which he resides, and land

    necessarily used in connection therewith;

    2. Ordinary tools and implements personally used byhim in his trade, employment, or livelihood;

    3. Three horse, or three cows, or three carabaos, or

    other beasts of burden, such as the judgment obligor

    may select necessarily used by him in his ordinaryoccupation;

    4. His necessary clothing and articles for ordinary

    personal use, excluding jewelry;

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    5. Household furniture and utensils necessary for

    housekeeping, and used for that purpose by the

    judgment obligor and his family, such as thejudgment obligor may select, of a value not

    exceeding 100,000 pesos;

    6. Provisions for individual or family use sufficient for 4

    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 in value;8. One fishing boat and accessories not exceeding the

    total value of100,000 pesos owned by a fisherman

    and by the lawful use of which he earns his

    livelihood;

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    9. So much of the salaries, wages, or earnings of the

    judgment obligor for his personal services withinthe 4mons preceding the levy as are necessary for

    the support of his family;

    10. Lettered gravestones;

    11. Monies, benefits, privileges, or annuitiesaccruing or in any manner growing out of any

    life insurance;

    12. The right to receive legal support, of money or

    property obtained as such support, or any pensionor gratuity from the government;

    13. Properties specially exempted by law.

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    BUT no article or species of property mentioned in

    this section shall be exempt from execution issued

    upon a judgment recovered for its price or upon ajudgment of foreclosure of a mortgage hereon.

    Q: What are the remedies of a third person whose

    property was seized by the sheriff to answer for

    the obligation of a judgment obligor?A: The remedies are ff:

    1. Involve the supervisory power of the court which

    authorized such execution.

    2. TERCERIA- 3rd party claim

    3. Any proper action to vindicate his claim to the

    property, meaning a separate CIVIL ACTION.

    (Rule 39 Sec 16)

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    Q: Suppose there are many properties levied?

    What is the process?

    A: You sell the property one by one, after sufficientproperty has been sold and that is enough to satisfy

    debt, after that then do not sell anymore.

    Q: What is the main difference between a sale of

    personal property under sec 23 and sale of realproperty under sec 25?

    A: When the property sold at public auction is real

    property, the debtor has one year to redeem the

    property. Thats what you call the right of redemption

    from the purchaser but if the property sold at public

    auction is personal property, like cars of appliances,

    there is no right of redemption.

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    Q: If you are the highest bidder, when do you acquire

    ownership of the property solid in an auction sale?

    A: It depends whether the property sold is personal or real;1. If it is personal property, the title is transferred after

    payment of the purchase price and delivery upon the

    purchaser. Delivery is either Physical or Symbolic.

    2. If it is real property, the title is transferred, not after theauction sale but after the expiration of the right to

    redeem.

    Q: Can you attack the validity of an auction sale?

    A: General Rule: No, you cannot attack the auction sale on

    the presumption that every sale is final. There is a

    presumption of regular performance of duty by the

    sheriff.

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    Exception:1. When it is shown from the nature of the

    irregularity or from intrinsic facts injury resulted

    therefrom. Meaning, if there were serious

    irregularities committed by the officer in conductingthe sale like no publication, no notice, no prior levy.

    2. When the price obtained at the execution sale is

    shockingly inadequate and it is shown that a better

    price can be obtained at a resale.

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    Exception to the exception

    -The rule that you can question the validity of the

    auction sale if the price obtained is shockingly

    inadequate applies only when the property sold ispersonal property. Because real property sold in

    public auction is subject to right of redemption

    within 1 yr. from the date of registration of sale.

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    Q: A property was sold on execution in your favor

    and the property earns income. There were tenants

    paying rent, during 1yr. period who will get the

    rentals? The purchaser or the debtor?A: The debtor. He continues to receive all the

    earnings. For defensive purposes, he is still the

    owner. The purchaser should wait for the 1yr

    redemption period to expire to get the income.

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    Q: What are the two documents which thesheriff execute in case of real propertyA: The following

    1. Certificate of sale after the auction sale, he will

    execute in your favor the certificate of sale under

    section 25, by the time you register that, you start

    counting the 1yr.

    2. Deed of Conveyance. If after1yr there is no

    redemption, a deed of conveyance is executed.

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    Q: Which of the two documents transfers the

    ownership to the purchaser?A: Only the deed of conveyance transfer title to the

    property

    Q: How can the sheriff give to the purchaser?

    Suppose the debtor refuse to vacate, is there a needto file another action of unlawful detainer or forcible

    entry?

    A: There is no more need of filing another action to

    eject the former owner. The procedure is thepurchaser can ask the court to issue a writ of

    possession.

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    Q: Supposing the Property is exempt from execution

    within what period is he (the owner can claim

    exemption)

    A: Although the rules of court does not prescribe the

    period within which to claim the exemption.

    -The proper time to raise, it is during at the time of

    levy but not later that the auction sale. (sec 44 to sec

    45)