445 Phil. 465
PANGANIBAN, J.:
“WHEREFORE, the petition at bench is GRANTED. The assailed order is hereby VACATED and SET ASIDE. The surety bond filed by the private respondent is ordered CANCELLED, and the Notice of Garnishment upon the petitioner-insurer’s bank is likewise VOIDED.”[2]The assailed Resolution denied reconsideration.[3]
“Docketed as Civil Case No. 63445 entitled Philippine Nails and Wires Corporation v. Malayan Insurance Company, Incorporated before the RTC of Pasig City, Branch 163, the [herein petitioner] filed on July 28, 1993 a complaint for recovery of the contractual liability of [herein respondent] under its Marine Cargo Policy No. LP-0001-08287 and its Endorsement No. LP-0001-91399. Sought to be recovered therein was the sum of P2,698,637.00, representing the insured value of the lost or undelivered 377.168 metric tons of Prime Newly Hot Rolled Steel Billets, including attorney’s fees and costs.
“Against the complaint, [respondent] filed a motion to dismiss dated August 10, 1993, on grounds of failure to state a cause of action and improper venue. On August 16, 1993, [petitioner] filed its opposition to the said motion, to which [respondent] rejoined on August 26, 1993.
“On September 8, 1993, [petitioner] filed a motion to admit its amended complaint, attaching therewith a copy of the pleading itself, which x x x the respondent court granted in an order dated September 17, 1993. Meanwhile, in an order dated October 1, 1993, the respondent court, presided over by the Honorable Aurelio Trampe, denied [respondent’s] motion to dismiss. On October 18, 1993 [respondent] filed a motion for extension of time to file an answer purportedly on account of a pending motion to dismiss. In its October 21, 1993 order, the respondent court granted the motion for extension, and gave [respondent] a non-extendible period of ten (10) days from receipt of said order within which to file its answer. On the theory that [respondent’s] period to file a responsive pleading had expired, [petitioner] sought to have [respondent] declared in default. Respondent court agreed, and declared [respondent] in default in an order dated November 5, 1993. Whereupon reception of [petitioner’s] evidence ex parte followed on November 9, 1993.
“[Respondent] filed its answer to the complaint on November 10, 1993. A week later, [respondent] instituted with this Court a petition for prohibition, docketed as CA-G.R. SP No. 32614, entreating the Court to dismiss [petitioner’s] complaint on the ground of improper venue. However, in our resolution of November 19, 1993, we denied petition for failure to attach an affidavit of non-forum shopping. A timely motion for reconsideration, was, by us likewise thumbed down in our Resolution of February 28, 1994.
“In the meantime, [petitioner] filed before respondent court an ex-parte motion to expunge from the records [respondent’s] answer with compulsory counterclaim dated November 11, 1993; this was by the respondent court granted the next day, November 12, 1993.
“On December 10, 1993, respondent court gave judgment for [petitioner]. On January 10, 1994, [respondent] filed a notice of appeal against said verdict. But on January 6, 1994, [petitioner] moved for execution of the judgment pending appeal, which [respondent] opposed on January 11, 1994. Disposing of said motion, the public respondent issued the now assailed order dated February 4, 1994, as well as the writ of execution pending appeal on February 22, 1994. Upon the filing on February 21, 1994 of the surety bond by [petitioner], as required in the respondent court’s February 4, 1994 order, the respondent Branch Sheriff served on [respondent]-insurer’s bank a notice of garnishment on February 22, 1994.
“On February 23, 1994, [respondent] filed the instant petition [for certiorari]. On March 2, 1994, it filed with respondent court motion to stay the execution, and to approve the supersedeas bond, which was still pending thereat.
“On March 7, 1994, this court issued a temporary restraining order enjoining [petitioner and the RTC] from implementing the impugned February 4, 1994 order.”[4] (Citations omitted)
Simply put, the issues are as follows: (1) the propriety of the February 4, 1994 RTC Order allowing an execution pending appeal, (2) the validity of the Order declaring respondent in default, and (3) the effect of respondent’s failure to attach a certificate of non-forum shopping and a statement showing the material dates.“A
Whether or not the Honorable Court of Appeals plainly erred and acted contrary to existing laws and jurisprudence in annulling the trial court’s Special Order dated February 4, 1994, allowing execution pending appeal. This, despite the existence of ‘good reasons’ therefore coupled with the filing of the bond.“B
Whether or not the Honorable Court of Appeals plainly erred and acted contrary to existing laws and jurisprudence in ruling that the ‘trial court improvidently declared the respondent in default’, considering the fact that:
(1) the said issue was already raised and squarely resolved by the same appellate court, seventh division, in respondent’s main appeal in CA-G.R. CV No. 45547 which ruled that ‘the trial court properly declared the respondent in default’.(2) the said ruling in CA-G.R. CV No. 45547 that the respondent was properly declared in default has become final since this issue was no longer raised by the respondent in its appeal in G.R. No. 138084; and(3) this issue was actually not raised by either party, much less by the respondent, in CA-G.R. SP No. 33387.
“C
Whether or not the Honorable Court of Appeals plainly erred and acted contrary to law and jurisprudence in not dismissing the respondent’s Petition in CA-G.R. SP No. 33387, considering the failure of respondent as petitioner therein to attach an affidavit on non-forum shopping and lack of statements of material dates showing that said Petition was timely filed as required by relevant SC Circulars.”[9]
“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.”The present Rules also grant the trial court the discretion to order the execution of a judgment or a final order even before the expiration of the period to appeal, also upon good reasons stated in a special order after due hearing. Such discretion, however, is allowed only while the trial court still 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.” Section 2(a), Rule 39 of the 1997 Rules on Civil Procedure, states:
“SEC 2. Discretionary execution. –Petitioner avers that respondent’s appeal, being purely dilatory, satisfies the requirement of good reasons prescribed by the above-quoted Section. We disagree. Jurisprudence teaches that the trial court cannot pass upon the question of whether an appeal is frivolous or dilatory. That prerogative belongs to the appellate tribunal.
“(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.”
“x x x. Even the danger of extinction of the corporation will not per se justify a discretionary execution unless there are showings of other good reasons, such as for instance, impending insolvency of the adverse party or the appeal being patently dilatory. But even as to the latter reason, it was noted in Aquino vs. Santiago (161 SCRA 570 [1988]), that it is not for the trial judge to determine the merit of a decision he rendered as this is the role of the appellate court. Hence, it is not within the competence of the trial court, in resolving a motion for execution pending appeal, to rule that the appeal is patently dilatory and rely on the same as its basis for finding good reason to grant the motion. Only an appellate court can appreciate the dilatory intent of an appeal as an additional good reason in upholding an order for execution pending appeal which may have been issued by the trial court for other good reasons, or in cases where the motion for execution pending appeal is filed with the appellate court in accordance with Section 2, paragraph (a), Rule 39 of the 1997 Rules of Court.”[11] (Italics supplied)This rule was reiterated in BF Corporation v. EDSA Shangri-la Hotel.[12] The Motion for Execution pending appeal, filed by petitioner, was denied even if it had been placed in actual and imminent danger of insolvency[13] by respondent’s appeal and refusal to pay the amount justly due the former.
“x x x [T]he execution of a judgment before its finality must be founded on good reasons. The yardstick remains the presence or the absence of good reasons consisting of exceptional circumstances of such urgency as to outweigh the injury or damage that the losing party may suffer, should the appealed judgment be reversed later. Good reason imports a superior circumstance that will outweigh injury or damage to the adverse party.Thus, the CA committed no reversible error in annulling the February 4, 1994 RTC Order allowing an execution pending appeal.
“x x x [I]t is very clear from the records that defendant only had until either October 28, because the defendant received the summons on the Amended Complaint on October 13, 1993, or October 31, 1993, because of the Order of the lower court dated October 21, 1993 giving defendant ten (10) days to file its answer, within which to file its Answer to the Amended Complaint. Defendant filed its Answer only on November 11, 1993, way beyond the prescribed period. Counsel for defendant should have filed a motion for extension to file Answer before the said deadline or a Motion for leave to admit Answer since he should have known that the period to file the same has already lapsed. Failing to do either, defendant’s counsel should have filed a motion to set aside the order of default. For its failure to do so, the lower court did not have the chance to set aside the declaration of default and defendant failed to regain its standing in Court.Doctrinally settled is the rule that issues not raised below cannot be pleaded for the first time on appeal.[20] “Points of law, theories, issues and arguments not adequately brought to the attention of the lower court need not be, and ordinarily will not be, considered by a reviewing court as they cannot be raised for the first time on appeal. Basic considerations of due process impel this rule.”[21]
“Prior to the 1997 Rules on Civil Procedure, Rule 18, Sec. 2 of the Revised Rules of Court, which applies to the case at bench, provides that a party in default shall not be entitled to notice of subsequent proceedings or to take part in the proceedings (Manlayaon vs. Sunga, 208 SCRA 436). The lower court, therefore, neither gravely abused its discretion nor committed an error when the belatedly filed Answer was expunged from the records.”[19]
“Forum-shopping is present when in the two or more cases pending there is identity of parties, rights or causes of action and reliefs sought. While there is an identity of parties in the appeal and in the petition for review on certiorari filed before this Court, it is clear that the causes of action and reliefs sought are unidentical, although petitioner ISM may have mentioned in its appeal the impropriety of the writ of execution pending appeal under the circumstances obtaining in the case at bar. Clearly, there can be no forum–shopping where in one petition a party questions the order granting the motion for execution pending appeal, as in the case at bar, and, in a regular appeal before the appellate court, the party questions the decision on the merits which finds the party guilty of negligence and holds the same liable for damages therefor. After all, the merits of the main case are not to be determined in a petition questioning execution pending appeal and vice versa. Hence, reliance on the principle of forum-shopping is misplaced.”[25]There is indeed an identity of parties in the appeal of the December 10, 1993 Judgment of the RTC as well as in the Petition for Certiorari -- both filed by respondent before the CA on January 10, 1994 and February 23, 1994, respectively. However, the causes of action and reliefs sought are different.