G.R. No. L-8164 October 27, 1955
RAMON HERRERA, ET AL., petitioners, vs. HON. FRANCISCO ARELLANO, ET AL., respondents.

FACTS

Petitioners Ramon Herrera, et al., seek certiorari to annul orders of the Court of First Instance of Negros Occidental. The case originates from Civil Case No. 8181, a suit for accounting and to set aside an extrajudicial foreclosure of mortgages. The mortgaged properties secured loans obtained by Ramon Herrera as guardian of his minor children and by him and his wife Rosa Gallo from Siuliong & Co., Inc., later assigned to Francisco Cu Unjieng. The trial court initially dismissed the complaint but, upon reconsideration, rendered a judgment on March 30, 1949, ordering the petitioners to pay specified sums and, if unpaid within 90 days, for the sale of the mortgaged properties. On appeal, the Court of Appeals affirmed the indebtedness amounts but reversed the portion ordering payment within 90 days and decreeing sale, declaring that no action to enforce the indebtedness lay until the moratorium ( Republic Act No. 342 ) expired or was lifted. After the Supreme Court in Rutter vs. Esteban declared the moratorium law inoperative, the mortgagee moved for execution. The respondent judge granted the motion and issued a writ of execution, leading to the sale of the mortgaged properties at public auction and the confirmation of the sale. Petitioners filed motions for reconsideration, which were denied.

ISSUE

Whether the orders of the respondent judge (June 19, 1953, granting execution, and October 9, 1953, confirming the sale) are null and void for failure to give petitioners the 90-day period to pay their mortgage obligations as required under Sections 2 and 3 of Rule 70 of the Rules of Court.

RULING

The petition is granted. The orders in question are set aside. The Supreme Court ruled that the orders directing the sale of the mortgaged property and denying reconsideration are null and void. The Court of Appeals’ decision, which reversed the trial court’s order for payment within 90 days and sale, meant the judgment contained no order requiring the mortgagors to pay or granting them a period to pay. The 90-day period prescribed in Rule 70 should be counted from the date of service of an order directing payment. Since no such order was issued, the execution and sale were premature and invalid. The Court cited the doctrine in De Leon vs. Salvador, which held that a writ of execution issued without first ordering the mortgagor to pay within 90 days is null and void.