Bañez v.

Bañez
G.R. No. 132592, January 23, 2002

Facts:

The RTC of Cebu decreed legal separation between Aida and Respondent Gabriel
on the ground of Sexual Infedelity. Dissolution of conjugal property and division of net
conjugal assets forfeiture of Gabriel’s half share in the net assets in favor of common
children; payment of 100,000 as attorney’s fees and surrender of a Mazda car and small
residential house to petitioner and common children 15 days from receipt of decision was
also decreed by the same court. Respondent appealed.

Aida filed a motion for execution pending appeal. The RTC gave due course to
execution pending appeal and issued a writ of execution commanding the sheriff to order
the respondent to vacate the house and surrender the Mazda car. It also ordered the
petitioner to post bond to answer for all damages that respondents may suffer.

The CA set aside the judgment.

Upon motion, Aida prayed that she and her children be allowed to occupy the
house for she did not have the chance to occupy it and besides, she posted a bond for
damages that respondent may suffer. Respondent on the other hand argued that Aida
chose not to live in the house for she owned two houses in the United States where she
resides.

Issue:

Whether the execution pending appeal is justified.

Held:

Execution pending appeal is allowed when superior circumstances demanding

urgency outweigh the damages that may result from issuance of writ. Otherwise, the writ
may become a tool of oppression and inequity.

In this case, considering the reason cited of Aida, there is no superior or urgent
circumstances that outweigh the damages which the respondent would suffer if he were
ordered to vacate the house. She did not refute the respondent’s allegations that she did
not intend to use the house for she owned two houses in the US where she resides.
Merely, putting up a bond is not sufficient to justify her plea for execution pending
appeal.