Republic of the Philippines

NATIONAL CAPITAL JUDICIAL REGION

REGIONAL TRIAL COURT
Branch 24, Manila

SPS. WILFREDO T. MARTINEZ

and VIRGINIA A. MARTINEZ,
Plaintiffs,
-versus- Civil Case No. 97-81921

ESPERANZA CONSIGNA, ET. AL.,

Defendants.
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URGENT MOTION
TO QUASH WRIT OF EXECUTION

Defendants thru counsel unto the Honorable Court respectfully move

the Honorable Court to quash the writ of execution dated April 18, 2001
issued in the above-entitled case and in support thereof state that:

1. On July 2, 2001, defendants who are actual occupants of the

premises subject of this case with the exception of Esperanza Consigna and
Ricardo Gonzales, personally received from Vicente J. Teves, Sheriff IV, a
Notice to Vacate and surrender defendants’ respective portion of the subject
property within 5 days from receipt of the said notice in accordance with the
Order granting the issuance of a Writ of Execution issued by this Honorable
Court.

2. It appears that the said Notice to Vacate by virtue of the Writ of

Execution issued by this Honorable Court is null and void and without legal
effect for “lack of due process” and would serve injustice and inequity to
defendants herein considering that they were not properly served notice of
the Motion for Writ of Execution and the subsequent Order granting the Writ
of Execution in favor of plaintiffs. The Order dated April 18, 2001 of the
Honorable Court speaks well of this situation when it provides as follows:

“in the absence of any comment or opposition

thereto by the defendants, it appearing that the
Order of this Court directing them to comment could
not be received by their counsel as the latter is
no longer residing at the given address as per
return of the Process Server of this Court dated
March 13, 2001, the motion is hereby granted.”
(Emphasis ours.)
 2.1 The Process Server could have served the aforementioned
Order prior to the Order of April 18, 2001 as well as the Order granting
the writ of execution personally to defendants who were individually
named in the case at bar or could have availed of substituted service
or other remedy under the Rules of Court only to satisfy due process
for the validity of the questioned writ of execution.

3. The Writ of Execution therefor, was prematurely and

improvidently issued thereby making the Notice to Vacate equally void and
none existent thus, it would only be proper for the Honorable Court to recall
or quash the same, so that it will have the opportunity to rectify or put in
proper order the proceedings of the case, in line with the ruling of the
Supreme Court, in the case of Delos Santos vs. Yatco, Et. Al., L-13932 that:

“A judge may quash a writ of execution on the

ground that it was prematurely or improvidently
issued.”

For:

“ ‘Due process of law’ contemplates notice and

opportunity to be heard before judgment is rendered
affecting one’s person or property.” (Lopez vs.
Director of Lands, 47 Phil. 23; Sicat vs. Reyes, 100
Phil. 505.)

4. With the same persuasion is the fact that defendants were

already abandoned by their counsel of record who from time to time informs
them of any development in the above-entitled case which makes “material
change in the situation of the parties after rendition of judgment”.

4.1 In the case of Amor vs. Jose, 77 Phil. 703, the Supreme
Court held that the cognizant court may quash the writ of execution
where there had been a change in the situation of the parties which
makes the issuance of a writ of execution inequitable.

5. Obviously enough, the aforementioned circumstances would

render adequate, subservient to the principle of justice and equity, not only
the recall or quashal of the writ of execution already issued but also its stay
in line with the ruling laid down in the case of Laurel vs. Abalos, 30 SCRA 281
reiterated in the case of Hualam Construction Dev’t. Corp. vs. CA, 214 SCRA
612, which provides for the exceptions to the rule on execution of judgment
even in cases of summary nature like ejectment which is applicable and
squarely fits in the case at bar. Accordingly:

“Where supervening events occurring

subsequent to the judgment bring about a material
change in the situation of the parties which makes
the execution inequitable, or where there is no
compelling urgency for the execution because it is
not justified by the prevailing circumstances, the
court may stay immediate execution of the
judgment.”

6. Equally encouraging is the precept laid down in the case of Dy

vs. Court of Appeals, 195 SCRA 585, which was announced this wise:

“Nothing is more settled than the rule that in

every litigation the parties thereto are entitled
to due process and if there is a denial thereof
then the validity of the proceedings is open to
question. This principle should be observed even in
cases where the rules on summary procedure are
applied.” (Emphasis ours.)

7. DY further emphasized that any judgment or order of the trial

court which disposes of the case, even execution pending appeal, “cannot be
authorized without previous notice to the losing party of such judgment or
order.” The rationale for the observance of the said process in the language
of DY is to:

“enable the losing party to take any

appropriate steps to protect his interest when
warranted. The losing party is entitled to such
notice as an essential requirement of due
process; otherwise, the entire proceedings
leading to the execution of the judgment may
be nullified and set aside.” (Emphasis ours.)

8. Further, the execution of the Notice to Vacate would render the

executing Sheriff thereof liable for the consequences and damages which
may come considering that the Writ of Execution within which it derives its
authority is legally impermissible.

WHEREFORE, it is most respectfully prayed of the Honorable Court

that:
 a.) the Writ of Execution dated April 28, 2001 be
quashed and set aside;

b.) immediately upon filing of this motion an Order be

issued directing the executing Sheriff not to enforce the Notice to
Vacate; and

c.) an Order be issued directing Defendants herein to file

their Comment or Opposition to plaintiffs’ Motion for Execution
dated March 2, 2001.

September 21, 2006

ATTY. JOSEPH P. LOPEZ

CITY PROSECUTOR, MLA.
MANILA CITY HALL

Dear Honorable City Prosecutor Joseph P. Lopez:

May I respectfully request from your Office a written authority to

represent the undersigned's client as his private prosecutor under the direct
supervision and control of the Honorable Public Prosecutor.

The case is PP. Vs. Evelyn Echas Agito et al., docketed as Crim. Case
No. 04-231987, Br. 3, RTC- Manila.

Thank you very much!

Sincererly yours,

ATTY. CARLOS M. CARLOS

Unit 2A, C4, Greenhills Garden Sq.