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349 Phil. 857; 95 OG No. 19, 3047 (May 10, 1999)
EN BANC
[ G.R. No. 130831, February 10, 1998 ]
ROBERTO D. RAMAS, FRANCISCO
N. ORAIZ, JR., BENERANDO F. MIRANDA, GEORGE V. BATERNA, TOMAS R. LACIERDA, SR.,
AND PEDRO T. CALIMOT, JR., PETITIONERS, VS. COMMISSION ON ELECTIONS,
RAUL F. FAMOR, PONCIANO P. CAJETA, MERLYN U. RABE, CRESENCIA C. BOISER, EDGAR
S. REVELO, AND JULIETO B. MABASCOG, RESPONDENTS.
D E C I S I O N
DAVIDE, JR., J.:
The petitioners
urge us in this special civil action for certiorari[1] under Rule 65 of the Rules of Court
to set aside the 23 September 1997 Resolution[2] of public respondent Commission on
Elections (hereafter COMELEC) in SPR No. 14-96,[3] which denied herein petitioners’
petition for certiorari and prohibition to set aside and annul the order
of Branch 29 of the Regional Trial Court (RTC) of Pagadian City in Election
Protest Cases Nos. 07-95 to 12-95, inclusive, granting execution pending appeal
of the judgment therein.
The petitioners
and the private respondents were the official candidates of the Nationalist
People’s Coalition (NPC) and the Lakas-NUCD, respectively, for the elective
municipal positions of Guipos, Zamboanga del Sur, in the elections of 8 May
1995. After the canvass of the election
returns, the Municipal Board of Canvassers of Guipos declared and proclaimed
the petitioners as the duly elected municipal officials, to wit:
Petitioner Roberto D. Ramas -- as Mayor
Petitioner Francisco N. Oraiz -- as Vice Mayor
Petitioner Benerando F. Miranda -- as fifth Member of the Sangguniang Bayan (SB)
Petitioner George V. Baterna -- as sixth Member of the SB
Petitioner Tomas R. Lacierda -- as seventh Member of the SB
Petitioner Pedro T. Calimot, Jr. -- as eighth Member of the SB
Private
respondents Raul F. Famor and Ponciano P. Cajeta, the losing candidates for
mayor and vice mayor, respectively, as well as Merlyn U. Rabe, Crescencia C.
Boiser, Edgar S. Revelo, and Julieto B. Mabascog, the 9th, 10th, 11th, and 12th placers, respectively, for members
of the SB, seasonably filed separate election protests with the RTC of Pagadian
City. The cases were docketed as
Election Protest Cases Nos. 07-95, 08-95, 09-95, 10-95, 11-95, and 12-95 and
thereafter consolidated and jointly tried.
On 16 May 1996,
the trial court rendered a 103-page decision[4] declaring petitioner Miranda and
all the private respondents except Mabascog as winners in the 8 May 1995
elections. The dispositive portion
thereof reads as follows:
WHEREFORE, judgment is hereby rendered declaring:
1. For
Mayor, RAUL F. FAMOR, as winner with the margin of Two hundred Ninety Eight
(298) votes over protestee Roberto Ramas, and as a consequence, the
proclamation and oath taking of Protestee Roberto Ramas as Municipal Mayor of Guipos,
Zamboanga del Sur, as null and void and of no force and effect;
2. For
Vice-Mayor, PONCIANO CAJETA, as winner, with a majority of Three Hundred Forty
One (341) votes over that of protestee Francisco Oraiz, Jr., and as a
consequence, his proclamation as Vice-Mayor of Guipos, Zamboanga del Sur, as
null and void and of no force and effect;
3. For
Members of the Sangguniang Bayan of Guipos, Zamboanga del Sur, the following
are declared duly qualified and elected, as follows:
3.a Merlyn U. Rabe with 2,403 votes garnered;
3.b Benerando Miranda with 2,361 votes garnered;
3.c Edgar Revelo with 2,249 votes garnered;
3.d Cresencia C. Boiser with 2,238 votes garnered;
and as a
consequence, the proclamation and taking of oath of George Baterna, Tomas Lacierda,
Sr., and Pedro Calimot, Jr., are declared null and void and of no force and
effect.
With cost de officio.
SO ORDERED.
On 22 May 1996,
private respondents Famor, Cajeta, Rabe, Revelo, and Boiser filed a Motion for
Immediate Execution of Decision Pending Appeal[5] alleging as follows:
2. That pursuant to Section 2, Rule 39 of the Rules of Court, and the Supreme Court ruling in the case of Tomas Tobon Uy vs. COMELEC and Jose C. Neyre, G.R. No. 97108-09, March 4, 1992, and Daniel Garcia & Teodoro O’hara vs. Ernesto De Jesus & Cecilia David & Comelec, G.R. No. 88158, March 4, 1992 (SCRA Vol. 206, pages 779-801), Regional Trial Courts can order execution pending appeal.
3. That there are good reasons in granting the execution of the decision pending appeal; firstly, the appeal is merely dilatory, and it takes several years to terminate the appeal; that in most cases, the term of office will already expire before the appeal is finally decided. To construe otherwise would be to bring back the ghost of the “grab-the-proclamation-prolong-the-protest” techniques so often resorted to by devious politicians in the past in their efforts to perpetuate their hold to an elective office. This would, as a consequence, lay to waste the will of the electorate. (See Estrada vs. Sto. Domingo, G.R. No. L-30570, 29 July 1969; Lagumbay vs. Comelec, G.R. No. L-25444, 31 January 1966, 16 SCRA 175); secondly, on the ground of public interest. It must be noted that the term of office of the contested positions is nearing expirations, hence, there is a need, then, for this joint decision to be immediately executory. (See Tomas Tobon Uy vs. Commission on Elections & Jose C. Neyra, 206 SCRA 779, G.R. No. L-97108-09, March 4, 1992)
4. That protestants [are] willing to put up bond in the amount ofP500,000.00, to answer for any damages protestees may suffer in the event protestants [are] not entitled to the immediate execution.
On 28 May 1996,
the petitioners filed their Opposition to the Motion for Immediate Execution of
the Consolidated Decision.[6] On that same day, they filed their
respective Notices of Appeal.[7]
The next day, or
on 29 May 1996, the trial court issued an order[8] granting the motion for execution
pending appeal. The order reads as
follows:
Acting upon the Motion for Execution of the decision pending appeal with the opposition thereto, the Court finds the Motion to be well taken and there being a good reason to grant the same, taking into consideration this involves the public interest and the near expiration of the term of office of two (2) years and the pendency of the protest which lasted for one (1) year.
WHEREFORE, the Motion is granted, let a writ of execution be issued to enforce the decision of the Court pending appeal for the reason aforecited.
SO ORDERED.
On even date, a
Writ of Execution[9] was issued. Petitioners’ urgent motion to reconsider the
order of execution was denied.[10]
On 4 June 1996,
the petitioners assailed the trial court’s order granting execution pending
appeal in a Petition for Certiorari and Prohibition with Prayer for
Preliminary Injunction and/or Temporary Restraining Order[11] filed with the COMELEC. The case was docketed as SPR[12] No. 14-96.
On 6 June 1996,
the COMELEC issued an Order[13] requiring the respondents to answer
the petition within ten days; setting for hearing the application for a writ of
preliminary injunction on 2 July 1996; and ordering the issuance of a temporary
restraining order directing private respondents Famor, Cajeta, Rabe, Boiser, and Revelo to cease and desist from
assuming the positions of mayor, vice mayor, and councilors of Guipos,
Zamboanga del Sur, respectively, until further orders from the Commission. A
Temporary Restraining Order[14] was forthwith issued.
Thereafter, on
various dates, the following were filed by the parties before the COMELEC: a) private respondents’ Motion to
Dissolve/Recall Temporary Restraining Order,[15] b) petitioners’ Opposition to the
Motion to Dissolve/Recall Temporary Restraining Order,[16] c) petitioners’ Urgent Motion to
Cite Private Respondents for Contempt.[17] The above motions were heard by the
COMELEC on 9 July 1996; after which the parties submitted their respective
memoranda.[18]
On 23 September
1997, respondent COMELEC promulgated a Resolution[19] denying the petition in SPR No.
14-96. It ratiocinated thus:
The Court has find [sic] public interest and the pendency of the protest for one (1) year sufficient to grant execution pending appeal. In election cases, over and above the claims of the respective contestants is the deep public interest involved, the need to imperatively determine the correct expression of the will of the electorate. So much so that laws governing election protest must be literally interpreted to the end that the popular will expressed in the election of public officers will not, by reason of purely technical objections, be defeated. [Calabig vs. Villanueva, 135 SCRA 300]. Our earlier pronouncements in “Dictado vs. Cosico, SPR No. 2-93, July 29, 1993 and Aragdon vs. Balongo, et al., SPR No. 56-96, January 7, 1997,” may provide some enlightenment. We held:
“For while it is true that when an
election protest is filed the protestee is only considered a presumptive winner
until the protest is resolved in the same way, when protestant is adjudged the
winner by a court of law but the case is on appeal with Commission, such appeal
likewise makes the protestant a presumptive winner….”
Under the said Dictado and Aragdon doctrines, private respondents can be adjudged presumptive winners of the contested election, during the pendency of the appeal. The proclamation rendered by the board of canvassers suffices as basis for the right to assume, notwithstanding election protest. The proclaimed winners are simply presumptive winners pending the resolution of the election protest, and they still are able to assume office. A judgment favorable to the protestant renders the latter presumptive winner, notwithstanding the appeal therefrom.
It has already cost the private respondents and the people of Guipos, Zamboanga del Sur, more than a year before the protest was resolved in the lower court. Depriving the private respondents the assumption of the duties and functions ... will only resurrect the evils that the Court has long sought to contain – the “grab-the proclamation-prolong-the-protest” technique. [Cf Gahol vs. Riodique, 64 SCRA 494, Estrada vs. Sto. Domingo, 28 SCRA 890, Lagumbay vs. COMELEC 16 SCRA 175].
We fail to find any abuse of discretion, grave or otherwise. In fact, the position of the Honorable Judge granting execution pending appeal by reason of public interest and more than a year pendency of the election protest appears to be even justified by the Court, as it found in Garcia vs. De Jesus [206 SCRA 779]: “In retrospect, good reasons did in fact exist which justified the RTC Order… granting execution pending appeal. Among others mentioned by the RTC are the combined considerations of the near expiration of the term of office, public interest, the pendency of the election contest for more than 3 years….”
Unsatisfied with
the Resolution, the petitioners came to us via this petition wherein they
allege that
A RESPONDENT COMMISSION SERIOUSLY ERRED IN HOLDING THAT PETITIONERS FAILED TO ESTABLISH A CASE OF GRAVE ABUSE OF DISCRETION ON THE PART OF THE TRIAL COURT.
1. The
questioned order itself of the trial court granting execution pending appeal
which cited insufficient reasons is proof of such grave abuse of discretion.
B RESPONDENT COMMISSION ACTED ARBITRARILY AND IN EXCESS OF JURISDICTION WHEN, CONTRARY TO LAW AND THE COMMISSION’S OWN CASE PRECEDENTS, IT AFFIRMED AS GOOD REASONS NEAR EXPIRATION OF THE TERM AND A YEAR PENDENCY OF THE PROTEST.
1. The Dissenting Opinion enunciates the correct state of law on executions
pending appeal.
In the
resolution of 11 November 1997, we ordered the parties to maintain the status
quo prevailing at the time of the filing of the petition.
In its Comment
for public respondent COMELEC, the Office of the Solicitor General opines that
the trial court was evidently guided by the decisions of this Court in Garcia
v. De Jesus[20] and Gahol v. Riodique[21] in holding that the combined grounds of (a) public
interest, (b) the near expiration of the term of office, and (c) the pendency
of the protest for one year constituted good reasons to grant private
respondents’ motion for execution
pending appeal.
In their
Comment, the private respondents maintain that the COMELEC acted in accordance
with law and existing jurisprudence in denying petitioners’ petition for certiorari
and prohibition. They also allege that the petitioners are even guilty of forum
shopping in filing the instant petition.
The Omnibus
Election Code of the Philippines (B.P. Blg. 881) and the other election laws[22] do not specifically provide for
execution pending appeal of judgment in election cases, unlike the Election
Code of 1971 whose Section 218 made express reference to the Rules of Court on
execution pending appeal; thus:
SEC. 218. Assumption of office notwithstanding an election contest. - Every candidate for a provincial, city, municipal or municipal district office duly proclaimed elected by the corresponding board of canvassers shall assume office, notwithstanding the pendency in the courts of any contest against his election, without prejudice to the final decision thereon and applicable provisions of the Rules of Court regarding execution of judgment pending appeal.
In Gahol v. Riodique,[23] we explicitly ruled that the
assumption of office provided for in the aforementioned section “is that of the
protestant, which is made possible by the provisions of the Rules of Court
regarding execution pending appeal, which is none other than Section 2 of Rule
39.”
The failure of
the extant election laws to reproduce Section 218 of the Election Code of 1971
does not mean that execution of judgment pending appeal is no longer available
in election cases. In election contests
involving elective municipal officials, which are cognizable by courts of
general jurisdiction; and those involving elective barangay officials, which are
cognizable by courts of limited jurisdiction,[24] execution of judgment pending
appeal under Section 2 of Rule 39 of the Rules of Court are permissible
pursuant to Rule 143 of the Rules of Court, which is now Section 4, Rule 1 of the
1997 Rules of Civil Procedure. This
Section 4 provides:
SEC. 4. In what cases not applicable. -- These Rules shall not apply to election cases, land registration, cadastral, naturalization and insolvency proceedings, and other cases not herein provided for, except by analogy or in a suppletory character and whenever practicable and convenient. (R143a).
As to election
cases involving regional, provincial, and city officials, which fall within the
exclusive original jurisdiction of the COMELEC,[25] Section 3 of Article IX-C of the
Constitution vests the COMELEC with the authority to promulgate its rules of
procedure in order to expedite disposition of election cases, including
pre-proclamation controversies. Additionally, Section 52(c), Article VII of the Omnibus Election Code
empowers the COMELEC to promulgate rules and regulations implementing the
provisions of the Code or other laws which it is required to enforce and
administer. Accordingly, the COMELEC
promulgated the COMELEC Rules of Procedure. Section 1 of Rule 41 thereof
expressly provides that “[i]n the absence of any applicable provision in [said]
Rules, the pertinent provisions of the Rules of Court in the Philippines shall
be applicable by analogy or in a suppletory character and effect.”
This Court has
explicitly recognized and given approval to execution of judgments pending
appeal in election cases[26] filed under existing election
laws. In those cases, the immediate
execution was made in accordance with Section 2 of Rule 39 of the Rules of
Court[27] reading as follows:
SEC. 2. Execution pending appeal. -- On motion of the prevailing party with notice to the adverse party the court may, in its discretion, order execution to issue even before the expiration of the time to appeal, upon good reasons to be stated in a special order. If a record on appeal is filed thereafter, the motion and the special order shall be included therein.
All that was
required for a valid exercise of the discretion to allow execution pending
appeal was that the immediate execution should be based “upon good reasons to
be stated in a special order.” The
rationale why such execution is allowed in election cases is, as stated in Gahol
v. Riodique,[28] “to give as much recognition to the
worth of a trial judge’s decision as that which is initially ascribed by the
law to the proclamation by the board of canvassers.” Thus:
Why should the proclamation by the board of canvassers suffice as basis of the right to assume office, subject to future contingencies attendant to a protest, and not the decision of a court of justice? Indeed, when it is considered that the board of canvassers is composed of persons who are less technically prepared to make an accurate appreciation of the ballots, apart from their being more apt to yield to extraneous considerations, and that the board must act summarily, practically raising [sic] against time, while, on the other hand, the judge has benefit of all the evidence the parties can offer and of admittedly better technical preparation and background, apart from his being allowed ample time for conscientious study and mature deliberation before rendering judgment, one cannot but perceive the wisdom of allowing the immediate execution of decisions in election cases adverse to the protestees, notwithstanding the perfection and pendency of appeals therefrom, as long as there are, in the sound discretion of the court, good reasons therefor.
To deprive trial
courts of their discretion to grant execution pending appeal would, in the words
of Tobon Uy v. COMELEC,
bring back the ghost of the “grab-the-proclamation-prolong the protest” techniques so often resorted to by devious politicians in the past in their efforts to perpetuate their hold to an elective office. This would, as a consequence, lay to waste the will of the electorate.
What are the
recognized reasons for execution pending appeal in election cases?
In Gahol v.
Riodique, the motion for execution pending appeal recited the following
reasons:
(a) The full term for municipal officials elected in the November 1971 elections expires at the end of December 1975, thereby leaving protestant no more than ten (10) months of the four-year-term to which she is rightfully entitled, within which she may be able to seat [sic] and represent her constituency;
(b) In view of the results of the referendum which was held on February 27, 1975, President Ferdinand E. Marcos was granted the right to appoint local officials in lieu of the elective [sic] ones and it is possible that protestant’s opportunity to occupy the seat may even be effectively reduced;
(c) Considering the fully-substantiated finding of massive fraud in the preparation of ballots cast in favor of the protestee consisting, among others, of ballots written by one and the same hand, any appeal that the protestee may interpose would be frivolous and definitely dilatory in character; and
(d) Any further delay in protestant’s assumption of office would prejudice the electorate.
In Tobon Uy
v. COMELEC, where protestant Tobon Uy was credited with a slim margin of
only five votes, this Court stated:
In retrospect good reasons did, in fact, exist which justified the RTC Order, dated 10 January 1991, granting execution pending appeal. Among others mentioned by the RTC are the combined considerations of the near expiration of the term of office, public interest, the pendency of the election contest for more than three (3) years, and that TOBON UY had filed a bond in the amount ofP300,000.00 (Rollo, p. 46).
In Malaluan v.
COMELEC,[29] this Court declared:
Without evaluating the merits of the trial court’s actual appreciation of the ballots contested in the election protest, we note on the face of its decision that the trial court relied on the findings of the National Bureau of Investigation (NBI) handwriting experts which findings private respondent did not even bother to rebut. We thus see no reason to disregard the presumption of regularity in the performance of official duty on the part of the trial court judge. Capping this combination of circumstances which impelled the grant of immediate execution is the undeniable urgency involved in the political situation in the Municipality of Kidapawan, North Cotabato. The appeal before the COMELEC would undoubtedly cause the political vacuum in said municipality to persist, and so the trial court reasonably perceived execution pending appeal to be warranted and justified.
In Gutierrez
v. COMELEC,[30] this Court sustained the trial
court’s finding of good reasons; thus:
[T]he protestee died on April 6, 1996 and it [was] the Vice-Mayor who acted as Mayor after the protestee died and during the pendency of this case before this Court; the protestant have been found to be the true winner in the mayoralty race for Tiwi, Albay and should have been sitting as such from July 1, 1995 to the present but was not able to sit; that as of today, one-third of the term has already expired; that public interest will be better served and it would be giving true meaning to the electoral will of Tiwi, Albay that their chosen Mayor, the protestant herein, should immediately sit as the Mayor and govern them instead of the Vice-Mayor.
In Lindo v.
COMELEC,[31] where the protestant obtained a
margin of 200 votes as adjudged by the trial court, this Court affirmed as good
reasons those relied upon by the trial court in granting execution pending
appeal; thus:
In its Order of execution, respondent RTC Judge Dilag cited two reasons to justify execution of his decision pending appeal, viz.: (1) the grant of execution would give substance and meaning to the people’s mandate, especially since the RTC has established private respondent’s right to the office; and (2) barely 18 months is left on the tenure of the Ternate mayor and the people have the right to be governed by their chosen official. In the recent case of Gutierrez v. COMELEC [G.R. No. 126298, March 25, 1997], the same grounds for execution pending appeal of the decision in the protest case were relied upon by the trial court and we found them to be valid reasons for execution.
In a nutshell,
the following constitute “good reasons,” and a combination of two or more of
them will suffice to grant execution pending appeal: (1) the public interest involved or the will of
the electorate; (2) the shortness of the remaining portion of the term of the
contested office; and (3) the length of time that the election contest has been
pending. The filing of a bond, which
was mentioned in Tobon Uy, does not constitute a good reason.[32] Nevertheless, the trial court may
require the filing of a bond as a condition for the issuance of a corresponding
writ of execution to answer for the payment of damages which the aggrieved
party may suffer by reason of the execution pending appeal.
In the instant
case, the trial court relied on the following as “good reasons” for its grant
of execution pending appeal: (1) public interest, (2) near expiration of the
term of office involved, and (3) pendency of the election protest for one
year. The trial court cannot,
therefore, be said to have acted with grave abuse of discretion. Hence, the COMELEC acted correctly when it
denied SPR No. 14-96.
If any error was
committed by the COMELEC, it was in the failure to resolve private respondents’
Motion To Dissolve/Recall Temporary Restraining Order and the petitioners’
opposition thereto, as well as the Urgent Motion to Cite for Contempt, although
the motions were heard on 9 July 1996.
Because of
COMELEC’s inaction on the first motion, the temporary restraining order issued
on 6 June 1996 was taken full advantage of by the petitioners, who then refused
to surrender to the prevailing private respondents their offices. This created an unwholesome spectacle: two
sets of officials exercising the functions of the elective local positions of
Guipos, Zamboanga del Sur. Such a
situation was inimical to public interest and was a potential source of trouble
and even bloodshed between the contending partisan forces. The COMELEC should
have taken a more drastic and positive action to prevent such a situation by
complying strictly with the rule on restraining orders. Under Section 5, Rule 30 of the COMELEC
Rules of Procedure and Section 5, Rule
58 of the Rules of Court, the lifetime of a restraining order is only
twenty days. This period is nonextendible.[33] If the COMELEC wanted to restrain
further the implementation of the trial court’s order granting execution
pending appeal and the writ of execution, it should have, if warranted, issued
a writ of preliminary injunction; but it did not.
WHEREFORE, the instant civil action is
DISMISSED for failure of the petitioners to show that respondent Commission on
Elections had acted with grave abuse of discretion in rendering the challenged
resolution of 23 September 1997 in SPR No. 14-96, which is hereby
AFFIRMED. The status quo order
of 11 November 1997 is LIFTED and the Commission on Elections is
DIRECTED to forthwith cause the full implementation of the execution pending
appeal, unless it shall have been rendered academic by a decision adverse to
private respondents in the regular appeals filed by the petitioners with said
Commission.
Costs against
petitioners.
SO ORDERED.
[1] The remedy contemplated in Section 7, subdivision A
of Article IX of the Constitution. See
Rivera v. Commission on Elections, 199 SCRA 178 [1991].
[2] Annex “A of Petition, Rollo, 32-41.
[3] Entitled
Roberto D. Ramas v. Hon. Fausto H. Imbing.
[4] Annex “D” of Petition; Rollo, 83-184. Per Judge Fausto H. Imbing.
[5] Annex “F” of Petition; Rollo, 187-190.
[6] Annex “G” of Petition; Rollo, 191-194.
[7] Page 12, Petition; Rollo, 14. These appeals were docketed by the
Commission on Elections as EAC Nos. 21-96 to 26-96, inclusive.
[8] Annex “H” of Petition; Rollo, 195.
[9] Annex “I” of Petition; Rollo, 196-198.
[10] Annex “J” of Petition; Rollo, 199-200.
[11] Annex “L” of Petition; Rollo, 203-220. This remedy may be granted by the COMELEC
per Relampagos v. Cumba, 243 SCRA 690, 703-704 [1995].
[12] A prefix for Special Reliefs Cases in the COMELEC
(Sec. 4, Rule 7 in relation to Sec. 5, Rule 1 and Rule 28, Revised COMELEC
Rules of Procedure).
[13] Annex “M” of Petition; Rollo, 222-223.
[14] Annex “M-1” of Petition, Rollo, 224-225.
[15] Annex “N” of Petition; Rollo, 226-229.
[16] Annex “O” off Petition, Rollo, 230-234.
[17] Annex “P” of Petition; Rollo, 236-243.
[18] Page 15, Petition; Rollo, 17.
[19] Annex “A” of Petition; Rollo, 32-41.
[20] 206 SCRA 779 [1992].
[21] 64 SCRA 494 [1975].
[22] The Congressional Elections Law of 1987 (Executive
Order No. 134); The Local Elections Law of 1988 (R.A. No. 6636); The Electoral
Reforms Law of 1987 (R.A. No. 6646); and The Synchronized Elections and
Electoral Reforms Law of 1991 (R.A. No. 7166).
[23] Supra note
21 at 513-514.
[24] Section 2(2) of Article IX-C of the Constitution.
[25] Id.
[26] For example, Tobon Uy v. COMELEC, 206 SCRA 779
[1992]; Abeja v. Tañada, 236 SCRA 60 [1994]; Edding v. COMELEC,
246 SCRA 502 [1995]; Malaluan v. COMELEC, 254 SCRA 397 [1996]; Gutierrez v.
COMELEC, G.R. No. 126298, 25 March 1997; Lindo v. COMELEC, G.R. No.
127311, 19 June 1997; and Nazareno v. COMELEC, G.R. No. 126977, 12
September 1997.
[27] This provision has been amended by the 1997 Rules of
Civil Procedure; thus:
SEC. 2. Discretionary execution.
(a) Execution of a judgment or final order
pending appeal. -- On motion of the
prevailing party with notice to the adverse party filed in the trial court while
it has jurisdiction over the case and is in possession of either the original
record or the record on appeal, as the case may be, at the time of the filing
of such motion, said court may, in its discretion, order execution of a
judgment or final order even before the expiration of the period to appeal.
After the trial court has
lost jurisdiction, the motion for execution pending appeal may be filed in the
appellate court.
Discretionary execution may
only issue upon good reasons to be stated in a special order after due hearing.
(b) Execution
of several, separate or partial judgments. -- A several, separate or
partial judgment may be executed under the same terms and conditions as
execution of a judgment or final order pending appeal.
[28] Supra note
21 at 514-515. See also Tobon Uy
v. COMELEC, supra note 26.
[29] Supra note
26 at 413.
[30] Supra note
26.
[31] Supra note
26.
[32] Roxas v. Court of Appeals, 157 SCRA 370, 378
[1988].
[33] Dionisio v. CFI of South Cotabato, 124 SCRA
222 [1983]; Board of Transportation v. Castro, 125 SCRA 410 [1983];
Aquino v. Luntok, 184 SCRA 177 [1990]; Prado v. Veridiano II, 204
SCRA 654 [1991].