613 Phil. 597; 106 OG No. 23, 3210 (June 7, 2010)
CARPIO MORALES, J.:
Before the removal of an improvement must take place, there must be a special order, hearing and reasonable notice to remove. Section 10(d), Rule 39 of the Rules of Court provides:(d) Removal of improvements on property subject of execution. - When the property subject of execution contains improvements constructed or planted by the judgment obligor or his agent, the officer shall not destroy, demolish or remove said improvements except upon special order of the court, issued upon motion of the judgment obligee after due hearing and after the former has failed to remove the same within a reasonable time fixed by the court.
The above-stated rule is clear and needs no interpretation. If demolition is necessary, there must be a hearing on the motion filed and with due notices to the parties for the issuance of a special order of demolition.
Respondent [Sheriff's] ignorance of the foregoing rule as to his functions is inexcusable. The requirement of a special order of demolition is based on the rudiments of justice and fair play. It frowns upon arbitrariness and oppressive conduct in the execution of an otherwise legitimate act. It is an amplification of the provision of the Civil Code that every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith.
In the present administrative complaint, respondent sheriff immediately caused the demolition of the complainants' property and destroyed their plants without an order of demolition from the court. Clearly his actuations amounted to grave abuse of authority. x x x
x x x x
Anent the charge against the respondent clerk of court Teotimo D. Cruz, we find the instant administrative complaint unmeritorious. Complainants failed to present substantial evidence to support their charge against him. On the other hand, the respondent clerk of court was able to show that he issued the subject writ pursuant to the Order of the Court dated January 23, 2004 in compliance with his duties as such.
The manner in which the respondent acted with dispatch in complying with his duty of issuing the subject writ precluded a notion that he is guilty of grave abuse of authority.[2] (Emphasis and underscoring supplied)
WHEREFORE, premises considered, judgment is hereby rendered in favor of plaintiff ANITA T. DIAZ, and against defendants Simeon Guarino, Resty Guarino, Felizardo Sarmiento and Arnold Caraguian ordering:
- The defendants or any other persons acting in their behalf, to vacate the premises in question identified as Lot 3054-A now covered by TCT No. 129103 registered in the name of the herein plaintiff;
- The defendants to surrender its possession to plaintiff;
- Defendants to pay the sum of P200.00 per month as reasonable compensation for the use of property respectively occupied by them, commencing from the year of 1993 until they finally vacate the same;
- Defendants to pay P50,000 as attorney's fees;
- Defendants to pay the cost,[5]
SEC. 10. Execution of judgments for specific act.
x x x x
(d) Removal of improvements on property subject of execution. - When the property subject of the execution contains improvements constructed or planted by the judgment obligor or his agent, the officer shall not destroy, demolish or remove said improvements except upon special order of the court, issued upon motion of the judgment obligee after due hearing and after the former has failed to remove the same within a reasonable time fixed by the court, (Emphasis and underscoring supplied)