Nature of Discretionary Execution
Under Section 2, Rule 39 of the Rules of Court, a judgment which is not yet final and executory may be executed if there is good reason therefor. Such discretionary execution is called "discretionary" because it is not a matter of right on the part of the prevailing party but is addressed to the sound discretion of the court. Thus, Section 2, Rule 39, states:
Section 2. Discretionary execution. — (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.
(b) Execution of several, separate or partial judgments. — A several, separate or partial judgment may be executed under the same terms and conditions as execution of a judgment or final order pending appeal. (2a)
Discretionary execution of judgment constitutes an exception to the general rule that a judgment cannot be executed before the lapse of the period to appeal or during the pendency of an appeal, as provided for under Section 1 of said Rule 39 which states that "[e]xecution shall issue as a matter of right, or motion, upon a judgment or order that disposes of the action or proceeding upon the expiration of the period to appeal therefrom if no appeal has been duly perfected."
As such, discretionary execution must be strictly construed. It is not meant to be availed of routinely because it applies only in extraordinary circumstances (Corona International, Inc., 343 SCRA 512).
It should be interpreted only insofar as the language thereof fairly warrants, and doubts should be resolved in favor of the general rule (Planters Products, Inc. versus Court of Appeals, G.R. No. 106052, 20 Oct. 1999)
Requisites for Discretionary Execution
For the court to allow an execution even before the expiration of the period for appeal, or pending appeal, the following requisites must be complied: (Bangkok Bank versus Lee, G.R. No. 159806, 20 Jan. 2006)
Rule 42 of the Rules of Court governs the appeal of a decision of the RTC rendered in the exercise of its appellate jurisdiction; the appeal is made by filing a petition for review with the CA. Despite the filing of a petition with the CA, however, Rule 42 grants the RTC residual jurisdiction to order execution pending appeal, so long as (1) the CA has not yet given due course to the petition, and (2) the requirements of Section 2, Rule 39 are observed. The relevant portion of Section 8, Rule 42 of the Rules of Court states:
Section 8. Perfection of appeal; effect thereof — (a) x x x
However, before the Court of Appeals gives due course to the petition, the Regional Trial Court may issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal, approve compromises, permit appeals of indigent litigants, order execution pending appeal in accordance with Section 2 of Rule 39, and allow withdrawal of the appeal.
x x x x
Under Section 6, Rule 42 of the Rules of Court, the CA can give due course to a petition for review when it finds prima facie that the lower court has committed an error of fact or law that will warrant a reversal or modification of the appealed decision. This initial determination by the CA can take place only when the proper pleadings have actually been filed before the CA, enabling it to study the facts of the case and the alleged errors of the assailed ruling. In other words, the CA can give due course to an appeal of the RTC decision only (1) after the filing of a petition for review, and (2) upon the filing of the comment or other pleading required by the CA, or the expiration of the period for the filing thereof without such comment or pleading having been submitted (ALPA-PCM INC., VS. VINCENT BULASAO, ET AL., G.R. NO. 197124, MARCH 19, 2012, BRION, J.).
Rule is Applicable Only in Ordinary Civil Actions
It ought to be mentioned that Section 2, Rule 39 of the Rules of Court, applies to execution pending appeal in ordinary civil actions. This rule requires good reasons before a writ of execution can be issued in favor of the prevailing party. Its issuance is subject to the sound discretion of the court and is usually not favored because it affects the rights of the parties which are yet to be ascertained on appeal. (San Manuel Wood Products versus Judge Tupas) Note: Decision was promulgaed in 1995, or before the 1997 Rules.
Section 21 of Rule 70, When Applicable
Sec. 21. Immediate execution on appeal to Court of Appeals or Supreme Court.- The judgment of the Regional Trial Court against the defendant shall be immediately executory, without prejudice to a further appeal that may be taken therefrom.
to justify the issuance of the writ of execution pending appeal in this case is misplaced.
A closer examination of the above-quoted provision reveals that said provision applies to decision of the RTC rendered in its appellate jurisdiction, affirming the decision of the MeTC. In the case at bar, the RTC order was an order dismissing respondent’s appeal based on technicality. It did not resolve substantive matters delving on the merits of the parties’ claim in the ejectment case. Thus, the case brought to the Court of Appeals was the dismissal of the appeal for failure to file the required memorandum within the period provided by law, and not on the merits of the ejectment case. (Read Case)
