G.R. No. L-12202; April 28, 1958
FILOMENO DIZON, petitioner, vs. NICASIO YATCO, Judge of the Court of First Instance of Rizal, Branch V, SHERIFF OF RIZAL PROVINCE and SAMSON YUTAN, respondents.

FACTS

1. In Civil Case No. Q-2000 of the Court of First Instance of Rizal, petitioner Filomeno Dizon was declared in default for failure to file an answer. After ex parte proceedings, a judgment for a sum of money was rendered against him on November 13, 1956.
2. On January 4, 1957, Dizon filed a timely petition for relief under Rule 38, asking that the order of default be lifted, the judgment set aside, and that he be allowed to file his attached answer and counterclaim.
3. The trial court denied the petition for relief on the ground that “up to the present such order of default has not as yet been lifted and therefore defendant has no personality in this case as yet.” An amended petition for relief was likewise denied.
4. During the pendency of the amended petition for relief, the plaintiff (respondent Samson Yutan) filed a motion for execution without notice to Dizon, which the court granted.
5. Dizon perfected an appeal from the order denying his petition for relief, but the appeal was disallowed for unspecified reasons. A motion for reconsideration was intended, but the provincial sheriff began executing the judgment.
6. Dizon then filed the present petition for certiorari with the Supreme Court, seeking to set aside the order of execution and for a preliminary injunction, which was granted.

ISSUE

Whether the trial court acted with grave abuse of discretion or in excess of jurisdiction in granting the motion for execution of the judgment by default without notice to the defendant, and in denying the petition for relief on the erroneous ground that the defendant had no standing in court because the order of default had not been lifted.

RULING

The Supreme Court GRANTED the petition for certiorari and ANNULLED and SET ASIDE the order of execution.
1. On the Denial of the Petition for Relief: The trial court’s denial of the petition for relief on the sole ground that the defendant had no standing in court because the order of default was not yet lifted was erroneous. The Court held that such reasoning would render the relief provided under Rule 38 of the Rules of Court “a mockery and a delusion,” as the very purpose of the petition is to seek the lifting of the default order. A party declared in default retains the right to apply for relief from that default under Rule 38 and to appeal from an order denying such application.
2. On the Grant of Execution Without Notice: The Supreme Court ruled that once a party declared in default files a petition for relief under Rule 38, that party is entitled to notice of all further proceedings. Citing Monteverde vs. Jaranilla (60 Phil. 297), the Court held that ordering the execution of a default judgment during the pendency of an appeal from the denial of a petition to annul that judgment constitutes an act in excess of jurisdiction. Furthermore, granting execution without prior notice to the adverse party, absent special grounds, constitutes an abuse of discretion. These principles were applied to the present case, where execution was granted without notice during the pendency of Dizon’s petition for relief and subsequent appeal.
DISPOSITIVE:
The order of execution is annulled and set aside. Costs are adjudged against respondent Samson Yutan.