#2, XXXII.
EXECUTION – Rule 39
MERLINDA L. DAGOOC, complainant, vs. ROBERTO A. ERLINA, Sheriff IV, RTC,
Branch 40, Tandag, Surigao del Sur, respondent.
Facts:
Complainant alleged that she was the plaintiff in a civil case before the RTC, Diatagon,
Lianga, Surigao del Sur. The court rendered judgment by compromise agreement which
immediately became final and executory. Complainant moved for the execution of the decision
and, on February 28, 2002, a writ of execution was issued which was endorsed to respondent
deputy sheriff Erlina. The defendants, could not pay the money judgment. Instead of levying on
the properties of the defendants, sheriff Erlina asked them to execute promissory notes in favor
of complainant which he asked the latter to collect from the defendants. Complainant further
alleged that respondent sheriff indicated in his return of service that defendants were insolvent.
But upon verification with the assessor’s office of Tandag, Surigao del Sur, complainant found
that defendants owned real properties.
Respondent sheriff averred that he served a copy of the writ of execution on the defendants
but they could not pay despite repeated demands. So he went to the residence of defendants to
levy their personal properties but he found them to be exempt from execution pursuant to Section
13, Rule 39 of the RoC. He then went to the office of the provincial assessor to verify if the
defendants owned real properties which he could levy on. He alleged that he was given a
certification that there was none. So he made a return of service stating that defendants were
insolvent. He denied calling up complainant for her to collect defendant’s payment by means of
promissory notes. But he advised her to secure an alias writ of execution so he could eventually
go after defendant’s real properties in Tandag, Surigao del Sur.
Issue: WoN the sheriff is right in not levying the properties of the judgment debtor
Held:
The Office of the Court Administrator (OCA) found the complaint meritorious and
respondent sheriff guilty of misconduct and gross ignorance of the law. It recommended that
respondent be fined P5,000, with a warning that the commission of a similar act in the future
shall be dealt with more severely.
We find it strange and highly unusual, to say the least, that respondent sheriff did not know
his duties and functions under Section 9, Rule 39 of the Revised Rules of Court which clearly
states how the execution of money judgments should be made
Section 9. Execution of judgments for money, how enforced. (a) Immediate payment on demand.
The officer shall enforce an execution of a judgment for money by demanding from the
judgment obligor the immediate payment of the full amount stated in the writ of execution and
all lawful fees. The judgment obligor shall pay in cash, certified bank check payable to the
judgment obligee, or any other form of payment acceptable to the latter, the amount of the
judgment debt under proper receipt directly to the judgment obligee or his authorized
representative if present at the time of payment. The lawful fees shall be handed under proper
receipt to the executing sheriff who shall turn over the said amount within the same day to the
clerk of court of the court that issued the writ. (emphasis ours)
#2, XXXII. EXECUTION – Rule 39
The law mandates that in the execution of a money judgment, the judgment debtor shall pay
either in cash, certified bank check payable to the judgment obligee, or any other form of
payment acceptable to the latter. Nowhere does the law mention promissory notes as a form of
payment. The only exception is when such form of payment is acceptable to the judgment debtor.
If the judgment debtor cannot pay all or part of the obligation in cash, certified bank check
or other mode of payment acceptable to the judgment obligee, the money judgment shall be
satisfied by levying on the properties of the judgment debtor. Thus,
Section 9(b) Satisfaction by levy. If the judgment obligor cannot pay all or part of the obligation
in cash, certified bank check or other mode of payment acceptable to the judgment obligee, the
officer shall levy upon the properties of the judgment obligor of every kind and nature
whatsoever which may be disposed of for value and not otherwise exempt from execution giving
the latter the option to immediately choose which property or part thereof may be levied upon,
sufficient to satisfy the judgment. If the judgment obligor does not exercise the option, the
officer shall first levy on the personal properties, if any, and then on the real properties if the
personal properties are insufficient to answer for the judgment.
Levy is defined as the act or acts by which an officer of the law and court sets apart or
appropriates a part or the whole of the losers (judgment debtors) property for the purpose of
eventually conducting an execution sale to the end that the writ of execution may be satisfied,
and the judgment debt, paid. However, not all of the judgment debtors properties may be levied
upon because the law exempts some of them from execution. But the right of exemption from
execution is a personal privilege granted to the judgment debtor and, as such, it must be claimed
not by the sheriff but by the judgment debtor himself at the time of the levy or within a
reasonable period thereafter.
Respondent sheriff not only failed to levy on the properties of the judgment debtor when
they could not pay the money judgment in cash but also claimed the exemption for them. His
conduct blatantly manifested his incompetence and ineptitude in discharging his functions.
Moreover, respondent sheriff was seriously remiss in his duties when he stated in his return of
service that the defendants were insolvent without first diligently verifying such fact. As it turned
out, the defendants had real properties he could have levied on to satisfy the money judgment.
