397 Phil. 197
PURISIMA, J.:
xxx complainants are the defendants in Civil Case No. 962, an action for Unlawful Detainer filed by Josefina Baraclan before the MTC, Guinobatan, Albay. On September 9, 1996, Judge Designate Aurora Binamira-Parcia rendered judgment ordering the defendants to vacate Lot Nos. 991 and 997 situated at San Rafael, Guinobatan, Albay and to pay plaintiff damages and cost of suit. Defendants moved to reconsider the decision but the court denied the motion for lack of merit. Defendants appealed therefrom to the RTC, Ligao, Albay which was raffled to Branch 4 presided by Judge Salvador A. Silerio. On July 16, 1997, Judge Silerio affirmed the lower court's decision. On August 11, 1997, complainants appealed the adverse decision to the Court of Appeals.Against respondent judge, complainants averred that:
Meantime, on August 7, 1997, plaintiff filed a motion for execution pending appeal with notice to defendants' counsel setting the motion for hearing on August 15, 1997.
On said date, Judge Silerio granted the motion and order (sic) the issuance of the corresponding writ of execution. On August 29, 1997, defendants' counsel, Atty. Rodolfo Paulino, filed an Opposition to the writ of execution contending, among others, that they received a copy of the motion only on August 18, i.e. 3 days after the hearing and granting of said motion.
On August 28, 1997, Branch Clerk of Court Jesus Quinones of Branch 14 issued the writ of execution. A motion to lift the writ was filed by the defendants which was denied by Judge Silerio on September 4, 1997.
On September 6, 1997, co-respondent Deputy Sheriff Angel Conejero served the writ of execution to the defendants thru herein complainant Morta, Sr., and gave the defendants a grace period of 20 days to vacate the premises. He also demanded the amount stated in the judgment. It appears that on lots 991 and 997 are built the residential houses owned by Morta Sr., and his son, respectively. The two refused to vacate the premises. Hence, on November 18, 1997 plaintiff filed a motion for issuance of writ of demolition setting the hearing of said motion on December 19, 1997. Defendants opposed the motion reasoning that the houses subject of the demolition are family homes, therefore, exempt from execution, forced sale or attachment under Article 153 of the Family Code and that the writ of demolition was issued without notice and hearing.
On January 22, 1998, the motion was granted by herein respondent Judge Jose Sañez. Accordingly, a writ of demolition was issued. Defendants filed a motion for reconsideration on February 23, 1998 but the same was denied by respondent Judge Sañez.[1]
1. The writ of execution and writ of demolition were issued in violation of Sections 4 and 6 of Rule 15, which requires prior notice and hearing of the motion;Against the respondent sheriff, it is alleged that:
2. The writ of demolition was effected without a special order from the court in violation of the provisions of Section 10 (d), Rule 39;
3. The subject of the writ of demolition are family homes which are exempt from execution, attachment or even demolition under Art. 155 of the Family Code.[2]
1. Respondent sheriff effected the demolition knowing fully well that the subject homes are exempt from execution;On August 7 and 10, 1998, respectively, OCA required the respondents to comment.
2. He failed to make an inventory of the demolished materials and to issue official receipts therefor to the complainants;
3. He failed to submit to the court for approval the costs or rough estimates of the demolition and possession;
4. He hastily implemented the demolition without special order from the court and without serving the writ of demolition; and
5. He has not made a return of the alleged demolition.[3]
"Sheriff and other persons serving processes. --In the present case, respondent sheriff admitted to the OCA that he gave the original copy of the rough estimate of the cost to the lawyer of plaintiff but not to the court, although he had a duplicate copy of the same, which he could have submitted for the approval of the court. In Miro vs. Tan,[7] the Court held:xxx xxx xxx
(g) For executing a writ or process to place a party in possession of real estate, one hundred (P100.00) pesos.xxx xxx xxx
In addition to the fees hereinabove fixed, the party requesting the process of any court, preliminary, incidental, or final, shall pay the sheriff's expenses in serving or executing the process, or safeguarding the property levied upon, attached or seized, including kilometrage for each kilometer of travel, guards' fees, warehousing and similar charges, in an amount estimated by the sheriff, subject to the approval of the court. Upon approval of said estimated expenses, the interested party shall deposit such amount with the clerk of court and ex-oficio sheriff, who shall disburse the same to the deputy sheriff assigned to effect the process, subject to liquidation within the same period for rendering a return on the process. Any unspent amount shall be refunded to the party making the deposit. A full report shall be submitted by the deputy sheriff assigned with his return, and the sheriff's expenses shall be taxed as costs against the judgment debtor."
"... it is very clear that respondent has failed to comply with the said requirements. As Sheriff he is duty bound to know at least the very basic rules relative to the implementation of writs of execution and/or demolition. It is very elementary, that cost or rough estimates or implementation of the writ of demolition and possession must be submitted to the Court for approval. It is either he forgot to comply or deliberately failed to do the same to advance his personal interest."As regards the penalties recommended by OCA, the Court believes that it is reasonable to impose a fine of P5,000.00 on the respondent judge. For the respondent sheriff, a suspension of one month without pay, as recommended by OCA, is in order.