Saturday, February 18, 2017

Execution pending appeal

Normally, execution may only be allowed when the case has become final and executory. But a party may move for execution pending appeal, even before final judgment, under the following circumstances laid down by Section 2, Rule 39 of the Revised Rules of Court:

a. by motion by the prevailing party with notice to the adverse party;

b. with good reasons for issuing execution; and

c. that the good reasons should be stated in a Special Order

One of the "good reasons" that may be accepted is when the appeal is clearly and obviously frivolous and dilatory in nature, where the appellant has failed to adduce substantial valid and meritorious defenses against the appellee. But the same reason cannot be used by the trial court where the case is already within the purview of the appellate court. The authority to disapprove an appeal rightfully pertains to the appellate court. (Heirs of Gavino Sabenal v. Hon. Benjamin Gorospe, G.R. No. 50168, September 30, 1988, 166 SCRA 145)

Filing of a bond required by the court also constitutes special ground authorizing the court to issue writ of execution pending appeal. The decision to grant a writ of execution pending appeal rests upon the sound discretion of the court based on the sufficiency or insufficiency of the special reasons cited in the motion.

Another good reason considered by courts is when the appellee is already old and of frail health. Because of this fact, appellee  may not be able to live long enough or survive to enjoy the reliefs and rights granted to her under the decision sought to be executed pending appeal (De Leon, et al. vs. Soriano, L-7648, September 17, 1954; PBC vs. CA, 279 SCRA 364; and Ma-ao Sugar Central vs. Canete, 19 SCRA 646).

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