THIRD DIVISION

[G.R. No. L-43236. December 20, 1989.]

OLYMPIA INTERNATIONAL, INC., petitioner, vs. THE HONORABLE COURT OF
APPEALS, ALPHA INSURANCE & SURETY CO., INC., and JUDGE JOSE C.
CAMPOS, JR., respondents.
Gonzales & Chua Law Offices for petitioner.
L.L. Reyes for respondents.
SYLLABUS
1.
REMEDIAL LAW; CIVIL PROCEDURE; DISMISSAL OF ACTION WITHOUT
PREJUDICE; DOES NOT HAVE THE EFFECT OF AN ADJUDICATION ON THE MERITS.
It has been held that the dismissal of a case on motion of both parties as in the case
at bar is a dismissal contemplated under Section 2, Rule 30 (now Rule 17) of the
Rules of Court, which is a dismissal without prejudice and not a dismissal governed
by Section 4 thereof, which operates as an adjudication on the merits. Similarly, it
has been ruled that under certain attendant facts and circumstances, and the added
fact that the trial on the merits had not as yet commenced, dismissal of the
complaint is without prejudice and does not have the effect of adjudication on the
merits. Precisely, the previous dismissal without prejudice was removed from the
general rule that it should have the effect of an adjudication on the merits,
since the lower court had provided otherwise and declared the dismissal
to be without prejudice.
2.
ID.; ID.; ID.; IF COMPLETE IN DETAILS, HAS THE EFFECT OF A FINAL
DISPOSITION OF THE COMPLAINT. The dismissal without prejudice of a complaint
does not however mean that said dismissal order was any less final. Such Order of
dismissal is complete in all details, and though without prejudice, nonetheless
finally disposed of the matter. It was not merely an interlocutory order but a final
disposition of the complaint.
3.
ID.; ID.; ID.; JURISDICTION OF THE TRIAL COURT LOST AFTER DISMISSAL
ORDER HAS BECOME FINAL AND EXECUTORY. Upon the dismissal order attaining
finality for failure of either party to appeal therefrom, the jurisdiction which the
court had acquired thereon was finally discharged and terminated, and any
subsequent action filed in accordance with the reservation cannot be considered a
continuation of the first action which was dismissed. From the foregoing, it becomes
apparent that the lower court -acted in excess of its jurisdiction when it granted the
motion to revive the case filed by petitioner as plaintiff therein. By then (December
7, 1973), the dismissal order of December 15, 1972 had long become final and
executory, thereby beyond the power of the court to amend, modify,
reverse or set aside. And certainly, for the court to entertain and grant
said motion to revive the case would result in the setting aside of the
subject dismissal order.
4.
ID.; ID.; JUDGMENTS; MAY BE EXECUTED ON MOTION WITHIN FIVE (5) YEARS
FROM THE DEATH OF ITS ENTRY OR DATE IT BECOMES FINAL AND EXECUTORY.
That the lower court retained jurisdiction to carry into effect its final and executory
order of December 15, 1972 is beyond cavil for while Alpha's motion was
filed three (3) years after the issuance of said dismissal order, the same
may still be taken cognizance of by the lower court in accordance with
Section 6, Rule 39 of the Rules of Court which states: Sec. 6. Execution by
motion or by independent action. A judgment may be executed on
motion within five (5) years from the date of its entry or from the date it

becomes final and executory. After the lapse of such time, and before it is
barred by the statute of limitations, a judgment may be enforced by
action.
5.
ID.; ID.; ID.; WRIT OF REPLEVIN; PROVISIONAL IN CHARACTER ITS EXISTENCE
DEPENDS ON THE OUTCOME OF THE MAIN ACTION. Logic and equity demand that
the writ of replevin be cancelled. Being provisional and ancillary in
character, its existence and efficacy depended on the outcome of the case.
The case having been dismissed, so must the writ's existence and efficacy
be dissolved. To let the writ stand even after the dismissal of the case
would be adjudging Olympia as the prevailing party, when precisely, no
decision on the merits had been rendered. The case having been
dismissed, it is as if no case was filed at all and the parties must revert to
their status before the litigation.
6.
CIVIL LAW; PRESCRIPTION OF ACTIONS; PERIOD BEGINS TO RUN FROM THE
DISMISSAL OF ACTION OR VOLUNTARY ABANDONMENT BY THE PLAINTIFF. It is
important to note that the right to file a new action in this case has long prescribed,
for while the commencement of a civil action stops the running of the statute of
prescription or limitations, its dismissal or voluntary abandonment by the plaintiff
leaves the parties in exactly the same position as though no action had been
commenced at all. The commencement of an action, by reason of its dismissal or
abandonment, takes no time out of the period of prescription.
DECISION
FERNAN, C.J p:
Petitioner Olympia International, Inc. seeks a review of the Resolution dated January
22, 1976 of the Court of Appeals 1 dismissing its petition for certiorari as well as the
Resolution dated February 19, 1976 denying its motion for reconsideration. prcd
The antecedent facts are undisputed:
On various dates from November 1965 to March 1966, petitioner Olympia
International, Inc. (hereinafter Olympia) sold several typewriters to private
respondent Alpha Insurance & Surety, Co., Inc. (Alpha, for brevity). For alleged nonpayment of the purchase price, Olympia instituted on July 7, 1966 two (2) actions
against Alpha: Civil Case No. 15053 of the City Court of Manila and Civil Case No.
2757-P of the Court of First Instance of Pasay City, both replevin with damages
but referring to different typewriters. LLphil
In Civil Case No. 2757-P, which is the root case of the petition at bar, Olympia
alleged that of the total purchase price of P24,430.80 of the typewriters
involved therein, only P5,500.00 had been paid by Alpha. It therefore
prayed that the court issue an order for the seizure of the typewriters and
their delivery to Olympia to protect its interest thereon and to confirm its
ownership over said personal properties; that should delivery thereof be
unavailing, that Alpha be ordered to pay Olympia the typewriters' actual
value in the sum of P18,930.80; that the amounts deposited by Alpha be
forfeited and considered as rents for the typewriters; and that Alpha be
ordered to pay 12% interest per annum commencing from the date of
payment indicated on each invoice until the unpaid amount is fully paid,
plus attorney's fees of P4,425.20 and damages of P4,000.00.
After Olympia had posted a bond in an amount twice the value of the typewriters
involved and its assistant manager for credit and collection had filed an affidavit
showing that Olympia was entitled to the ownership of the said typewriters, the

lower court ordered on July 15, 1966 the issuance of a writ of replevin and
directed the deputy sheriff of Pasay City to seize the personal properties
involved and to retain the same in his custody "to be dealt with as
prescribed in Rule 60 of the Rules of Court until further orders" from the
court. 2 Consequently, the typewriters enumerated in said order were
seized from Alpha and delivered to Olympia.
In its answer to the complaint, Alpha alleged that since the invoices presented by
Olympia in its application for a writ of replevin had not been signed by its
authorized corporate officers, they were not reflective of the real terms
and conditions of the sales. It prayed for the redelivery of the 24
typewriters seized and in addition, asked for the delivery of six (6) more
units which Olympia had allegedly failed to deliver to it pursuant to the
sale agreement embodied in its confirmatory letter dated October 29,
1965. As counterclaim, Alpha prayed for moral damages of P75,000.00,
actual damages of P10,000.00 and attorney's fees of P5,000.00. Olympia
thereafter filed its reply to said answer and its answer to the
counterclaim. cdll
Upon failure of the parties to reach an amicable settlement, the lower court set the
case for trial on the merits. Olympia began presenting its evidence, and on May 17,
1971, it moved for the consolidation of Civil Case No. 2757-P with Civil Case No.
15053 of the City Court of Manila. The record is not clear as to whether the
consolidation of said cases materialized.
It appears on record, however, that on December 15, 1972, the lower court issued
the following order:
"On joint motion of both parties in the above-entitled case, that they will settle the
case amicably out of court, this case is hereby dismissed without prejudice." 3
As negotiations for an amicable settlement again failed, Olympia filed a motion to
revive the case for trial on the merits, acting upon which, the lower court in its order
of December 7, 1973 provided:
"On December 1, 1973, plaintiff through counsel filed a 'Motion to Revive Case.' It
appearing from the records that the case was dismissed without prejudice on
December 15, 1972 (almost a year ago) on joint motion of the parties and that the
defendant has failed to comply with its commitment to arrive at an amicable
settlement of the case, the motion is granted.
"Let the case be set for hearing on January 11, 1974 at 8:30 o'clock in the morning.
"SO ORDERED." 4
However, on January 16, 1974, the lower court issued another order stating:
"On January 14, 1974, counsel for the defendant filed a 'Manifestation and Motion
Ex-Parte' asking that this Court reconsider its previous order, dated December 7,
1973 reopening this case on the ground that the parties have previously filed a joint
motion to dismiss the case and that the subject matter of this case is presently
before the military authorities. It appearing that the plaintiff, in filing its motion for
reopening the case, failed to mention this fact and that at the hearing in chambers
on January 7, counsel for the plaintiff admitted the allegations of the defendant that
the matter is now in the hands of the military.
"Wherefore, the previous Order, dated December 7, 1973 is lifted and set aside and
that the Order of December 15, 1972 which dismissed the case is hereby reinstated

and reiterated. As far as this Court is concerned, this case is dismissed with
prejudice.
"SO ORDERED." 5
For more than one and a half years thereafter, neither of the parties filed a motion
for reconsideration nor questioned the legality of said order in a higher court.
Sometime in October, 1975, Alpha filed a motion in the lower court praying, on
equitable grounds, for the cancellation of the "preliminary provisional writs of
replevin" previously issued by the court "inasmuch as no judgment was
even rendered in this case affirming plaintiffs right to its possession of the
typewriters involved in this suit conformably to the provisions of Sec. 9,
Rule 60 of the Rules of Court." It averred that the return of the typewriters
was necessary "to afford the military administration of a freer hand in
settling the controversy between the parties." 6
On November 7, 1975, the lower court issued an order reading:
"At today's hearing, both parties were represented by counsel, who requested that
the case be discussed in chambers. It appearing that there is no opposition to the
motion and finding the reason for the motion to be well taken, the motion is
granted.
"Wherefore, the preliminary provisional writs of replevin previously issued by
this Court to enable plaintiff to obtain possession of defendant's personal
property, subject matter of this suit, is (sic) hereby cancelled and set
aside in view of the dismissal of this case, as per Order of January 16,
1974 which dismissal is with prejudice. The plaintiff is further ordered to
return the aforesaid personal property belonging to the defendant, to the
Military Management of Alpha Insurance & Surety Co.
"SO ORDERED." 7
Olympia moved for a reconsideration of said order on the grounds that the lower
court had lost jurisdiction over the case and that the return of the typewriters to
Alpha was tantamount to tolerance of its wrong-doing which the writ of replevin
sought precisely to avoid. This was denied in an order dated December 5,
1975.
Consequently, Olympia filed a petition for certiorari with the Court of Appeals,
charging the lower court with lack of jurisdiction and abuse of discretion in issuing
the order of November 7, 1975. In its resolution of January 22, 1976, the Court of
Appeals dismissed the petition on the ground that manual delivery of personal
property or replevin under Rule 60 being a provisional or ancillary remedy
to the main action of recovery of personal property, the writ issued
against Alpha was provisional and temporary. The appellate court opined
that since Olympia allowed the dismissal with prejudice of the case, "its
right to replevin died with the dismissal." And, as said dismissal was
allowed by Olympia to become final, the trial judge could do no less than
to order the redelivery of the typewriters otherwise he could be accused
of "inconsistency and extralimitation of authority." 8
Its motion for reconsideration of said resolution having been denied, Olympia
filed the instant petition for review on certiorari, alleging that:
RESPONDENT JUDGE OF THE COURT OF FIRST INSTANCE OF RIZAL, SEVENTH
JUDICIAL DISTRICT, PASAY CITY, BRANCH . . ., COMMITTED GRAVE ERROR OF
JURISDICTION IN DISMISSING ON JANUARY 16, 1974 THE CIVIL SUITS FOR
REPLEVIN WITH DAMAGES FILED BY PETITIONER AGAINST PRIVATE

RESPONDENT, AND
NOVEMBER 7, 1975.

IN

ISSUING

THE

SUBSEQUENT

ORDER

DATED

RESPONDENT COURT OF APPEALS ERRED IN DENYING THE ORIGINAL PETITION FOR

CERTIORARI FILED BY PETITIONER THRU COUNSEL ON JANUARY 15, 1976.
BOTH THE RESPONDENT JUDGE AND THE RESPONDENT COURT OF APPEALS
COMMITTED GRAVE ERROR IN OVERESPOUSING LEGAL TECHNICALITIES TO THE
PREJUDICE AND IMPAIRMENT OF SUBSTANTIAL JUSTICE AND EQUITY. 9
Undoubtedly, this impasse is the result of the unorthodox proceedings in this case.
The management by the military of the Fernando Jacinto group of companies,
including Alpha, during the martial law years, deterred the lower court from
judicially determining which of the contending companies was entitled to the
ownership or possession of the typewriters. It allowed the military to take over the
task of helping the parties settle their controversy extrajudicially. However,
belatedly realizing that its military manager could not facilitate the
redelivery of the typewriters seized from it through the writ of replevin,
Alpha went back to court which issued the orders in question. Cdpr
The decisive factor in this controversy is the effect of the first dismissal of Civil Case
No. 2757-P on December 15, 1972.
Aside from the fact that the aforesaid dismissal was expressly reserved by the trial
court to be without prejudice, it has been held that the dismissal of a case on
motion of both parties as in the case at bar is a dismissal contemplated under
Section 2, Rule 30 (now Rule 17) of the Rules of Court, which is a dismissal without
prejudice and not a dismissal governed by Section 4 thereof, which operates as an
adjudication on the merits. 10 Similarly, it has been ruled that under certain
attendant facts and circumstances, and the added fact that the trial on the merits
had not as yet commenced, dismissal of the complaint is without prejudice and does
not have the effect of adjudication on the merits. 11 Precisely, the previous
dismissal without prejudice was removed from the general rule that it should have
the effect of an adjudication on the merits, since the lower court had provided
otherwise and declared the dismissal to be without prejudice. 12
The dismissal without prejudice of a complaint does not however mean that said
dismissal order was any less final. Such Order of dismissal is complete in all details,
and though without prejudice, nonetheless finally disposed of the matter. 13 It
was not merely an interlocutory order but a final disposition of the
complaint. 14
Thus, upon said dismissal order attaining finality for failure of either party to appeal
therefrom, the jurisdiction which the court had acquired thereon was finally
discharged and terminated, and any subsequent action filed in accordance with the
reservation cannot be considered a continuation of the first action which was
dismissed. 15
From the foregoing, it becomes apparent that the lower court -acted in excess of its
jurisdiction when it granted the motion to revive the case filed by petitioner as
plaintiff therein. By then (December 7, 1973), the dismissal order of December 15,
1972 had long become final and executory, thereby beyond the power of the
court to amend, modify, reverse or set aside. And certainly, for the court
to entertain and grant said motion to revive the case would result in the
setting aside of the subject dismissal order.
Under the circumstances, the step available to petitioner as plaintiff therein if it
wanted to pursue its claim against Alpha was to institute a new action in

accordance with the reservation contained in the order of dismissal. It could not
revive the dismissed case by motion or otherwise, as said dismissal, although
without prejudice, had attained finality.
By the same token did the lower court act in excess of its jurisdiction when it issued
the Order of January 16, 1974 dismissing Civil Case No. 2757-P anew, but this time,
with prejudice. The Order of January 16, 1974 had the same effect of reversing and
setting aside the dismissal order of December 15, 1972, which as above-stated
could no longer be done in view of its having become final and executory.
But while the Order of December 7, 1973 which granted petitioner's motion to
revive case and that of January 16, 1974 dismissing the case with prejudice are null
and void for having been issued in excess of jurisdiction, the same cannot be said of
the order dated January 22, 1976 which granted Alpha's motion to cancel the writ of
replevin. The crucial difference lies on the fact that while the first two
orders of December 7, 1973 and January 16, 1974 had the effect of
reversing and setting aside the long final dismissal order of December 15,
1972, the Order of January 22, 1976 enforced and implemented it.
In other words, the motion of Alpha to cancel the writ of replevin was in the
nature and character of a motion for execution of the dismissal order of
December 15, 1972. That the lower court retained jurisdiction to carry into
effect its final and executory order of December 15, 1972 is beyond cavil
for while Alpha's motion was filed three (3) years after the issuance of
said dismissal order, the same may still be taken cognizance of by the
lower court in accordance with Section 6, Rule 39 of the Rules of Court
which states:
Sec. 6.
Execution by motion or by independent action. A judgment
may be executed on motion within five (5) years from the date of its entry
or from the date it becomes final and executory. After the lapse of such
time, and before it is barred by the statute of limitations, a judgment may
be enforced by action.
Indeed, logic and equity demand that the writ of replevin be cancelled. Being
provisional and ancillary in character, its existence and efficacy depended
on the outcome of the case. The case having been dismissed, so must the
writ's existence and efficacy be dissolved. To let the writ stand even after
the dismissal of the case would be adjudging Olympia as the prevailing
party, when precisely, no decision on the merits had been rendered. The
case having been dismissed, it is as if no case was filed at all and the
parties must revert to their status before the litigation. llcd
The allegation of Olympia that to cancel the writ of replevin would result in
Alpha's unjust enrichment does not persuade. Alpha has consistently
denied liability to Olympia, and even assuming Alpha to be liable to
Olympia, the latter, having failed to properly exercise its right of action
against Alpha, must suffer the consequences thereof.
It is equally important to note that the right to file a new action in this case has long
prescribed, for while the commencement of a civil action stops the running of the
statute of prescription or limitations, its dismissal or voluntary abandonment by the
plaintiff leaves the parties in exactly the same position as though no action had
been commenced at all. The commencement of an action, by reason of its dismissal
or abandonment, takes no time out of the period of prescription. 16
WHEREFORE, the instant petition is hereby DENIED. Costs against petitioner.

SO ORDERED.
Gutierrez, Jr., Bidin and Corts, JJ., concur.
Feliciano, J., is on leave. SECOND DIVISION
[G.R. No. 106895. September 10, 1993.]
ELVIRA F. VALENZONA, petitioner, vs. HON. COURT OF APPEALS, TWELFTH
DIVISION, HON. TEOFILO R. REDUBLA, IN HIS CAPACITY AS THE PRESIDING
JUDGE, BRANCH 14, REGIONAL TRIAL COURT, 8TH JUDICIAL DISTRICT,
BAYBAY, LEYTE, AND HEIRS OF JOSEFA DIPAY, NAMELY, VICENTE TRIPOLI,
DULCISIMA TRIPOLI PILAPIL IN THEIR BEHALF, AND IN BEHALF OF
BONIFACIA TRIPOLI BASCO, PRESENTACION TRIPOLI MONTERDE, CORNELIO
TRIPOLI, ELIZABETH TRIPOLI LOPEZ, JULITA TRIPOLI CASUGAY, LEONORA
TRIPOLI, RICARDO TRIPOLI, JR., AND RUNICO TRIPOLI, respondents.
Ira Carlota F. Chiong for petitioner.
Zosimo Cablitas for private respondents.
SYLLABUS
1.
REMEDIAL LAW; CIVIL PROCEDURE; JUDGMENT; WHEN PREVAILING PARTY
ENTITLED TO WRIT OF EXECUTION AS A MATTER OF RIGHT; EXCEPTION. The rule
is settled that once a judgment has become final and executory, the prevailing
party is entitled as a matter of right to a writ of execution, and the issuance thereof
is the court's ministerial duty, compellable by mandamus. This rule, however, is
subject to exceptions, as for instance, where there has been a change in the
situation of the parties making execution inequitable or unjust.
2.
ID.; ID.; ID.; STAY OF EXECUTION OF FINAL JUDGMENT BY REASON OF CHANGE
IN THE CIRCUMSTANCES OF THE PARTIES; WHEN SUPPOSED CHANGE SHOULD TAKE
PLACE. The petitioner now argues that the private respondents' act of forcibly
taking possession of the land in question is a fact or circumstance that has changed
the situation of the parties thereby making the execution of the judgment
inequitable or unjust because she would be deprived of her legal share in the
harvest of coprax and lumber during the time that the private respondents have
been in possession of the land. We are not impressed with the petitioner's
argument. While the rule is that a stay of execution of a final judgment may be
authorized if necessary to accomplish the ends of justice, as for instance, where
there has been a change in the situation of the parties which makes such execution
inequitable, nevertheless the said rule cannot be invoked when the supposed
change in the circumstances of the parties took place while the case was pending,
for the reason that there was then no excuse for not bringing to the attention of the
court the fact or circumstance that affects the outcome of the case. In the present
case, the supposed change in the situation of the parties took place while Civil Case
No. B-778 was still pending in the court below. Thus, as claimed by petitioner, the
private respondents took possession of the property in question on 15 May 1987.
The court a quo rendered its decision only on 30 June 1988. The petitioner,
however, did not bring up the matter to the attention of the court.
3.
ID.; ID.; ID.; JUDGMENT OR ORDER DIRECTING ACCOUNTING NOT STAYED;
EXCEPTION. Section 4, Rule 39 of the Rules of Court provides, among others, that
"Unless otherwise ordered by the court . . . a judgment or order directing an
accounting in an action, shall not be stayed after its rendition and before an appeal
is taken or during the pendency of an appeal." If a judgment or order directing an
accounting is not stayed after its rendition and before an appeal is taken or during
the pendency of the appeal, with more reason the judgment of the court in the

present case directing an accounting cannot be stayed since it has already become
final and executory.
DECISION
PADILLA, J p:
This is a petition for review on certiorari of the decision ** of the Court of Appeals in
CA-G.R. SP No. 25747 dated 9 June 1992 as well as its resolution dated 21 August
1992.
The antecedents are as follows:
The private respondents filed with the RTC of Baybay, Leyte, Branch 14, a complaint
for recovery of inheritance, real property with damages against Alexander Flores,
Alicia Flores Chiong, Pedrito Valenzona and petitioner herein Elvira Flores Valenzona,
docketed therein as Civil Case No. B-778.
After trial on the merits, the court a quo rendered on 30 June 1988 a decision 1 in
favor of the private respondents, the dispositive part of which reads as follows:
"WHEREFORE, upon finding of a preponderance of evidence in favor of the plaintiffs,
this Court renders judgment in their favor, to wit:
'1)
Declaring Lots 11070 and 11071 of the Baybay Cadastre, Province of Leyte,
belonging to the conjugal partnership of the spouses Ricardo Tripoli and Josefa
Dipay which, upon the latter's demise in 1963, became a co-ownership of Ricardo
Tripoli and his ten (10) children, herein plaintiffs, namely: Vicente Tripoli, Dulcisima
Tripoli Pilapil, Bonifacia Tripoli Basco, Presentacion Tripoli Monterde, Cornelio Tripoli,
Elizabeth Tripoli Lopez, Julita Tripoli Casugay, Leonora Tripoli, Ricardo Tripoli, Jr., and
Runico Tripoli;
'2)
Declaring Ricardo Tripoli's Deed of Sale of Two Parcels of Land to defendants
Alexander Flores married to Dulcisima Flores and Alicia Flores married to Dominador
L. Chiong executed on July 14, 1966 (Exhibit "1"), and thence to defendant Elvira
Flores married to Pedrito Valenzona by Alexander Flores and Alicia Flores on
September 6, 1978 (Exhibit "10"), valid and binding only as regards the ideal
share(s) of Ricardo Tripoli which is 4.5222 hectares, more or less, in area;
'3)
Ordering the partition of Lots 11070 and 11071 which adjoin each other
between the plaintiffs and the defendants at the rate of ten over twenty-two (10/22)
to the plaintiffs, which in area is some 3.7689 hectares, more or less; and twelve
over twenty-two (12/22) to the defendants-spouses Pedrito Valenzona and Elvira
Flores, which is some 4.5222 hectares, more or less, with the costs and/or expenses
of relocating the two (2) lots and the consequent division thereof payable fifty
percent (50%) by the plaintiffs and fifty percent (50%) by the defendants, as (sic)
commanding the latter to deliver to the plaintiffs their area/share upon the
termination of the survey-partition;
'4)
Cancelling Transfer Certification of Title Nos. T-4225 and T-4266 in the name
of Ricardo Tripoli, and ordering the Register of Deeds of the Province of Leyte upon
the finality of the decision, to issue Transfer Certificates of Title to the plaintiffs and
to the defendants covering their respective areas as above-ordered;
'5)
Ordering the defendants to render to the plaintiffs an accounting of the
pecuniary value of the produce of the area herein adjudicated to the plaintiffs from
January, 1979, the date of the filing of this case, up to the ultimate delivery of the
plaintiffs' share as (sic) giving to the plaintiffs 60% thereof.'
No pronouncement as to costs.

SO ORDERED." 2
The aforesaid judgment having become final and executory, the trial court, upon
motion of the private respondents, issued on 9 January 1989 a writ of execution. 3
Thereafter, the petitioner filed with the court a quo a "Motion for Approval of
Defendants' Accounting And Proposal of Partition." The private respondents
objected and filed a "Motion And Opposition To Accounting." Hence, the court in its
order 4 dated 7 March 1989 appointed a Commissioner on Accounting.
On 5 July 1989, the Court-appointed commissioner submitted his Report. 5 In view
of the private respondents' opposition to the approval of the commissioner's Report,
the trial court in an order dated 20 September 1989 required the petitioner's
counsel to comment thereon within three (3) days from receipt thereof, and
thereafter, the incident would be deemed submitted for resolution with or without
the said comment. 6
On 30 March 1990, the trial court issued an order 7 the pertinent part of which
reads:
". . . the Court Commissioner's Report on the accounting of the produce of the land
as . . . decreed in the decision has been subject to vehement objections. In this
regard the September 20, 1989 Order of this Court directing the defendants'
counsel to file comment on the order considering the plaintiffs' opposition to the
approval of the Commissioner's Report has not been complied with.
WHEREFORE, opposing counsels are invited to the amended Commissioner's
Summary of Annual Sharing of Plaintiffs And Defendants whereat concludingly from
the years 1979 to 1987, inclusive, plaintiffs are entitled to P79,409.41 to the
defendants' share of P52,941.61. This incident is hereby considered closed."
On 4 May 1990, the court a quo issued an order granting the private respondents'
Ex-parte Motion for The Issuance of an Alias Writ of Execution. 8 On 7 June 1990, it
issued the Alias Writ of Execution. 9
On 3 July 1990, the petitioner filed with the trial court a Petition for Relief 10 from
the orders dated 30 March 1990 and 4 May 1990, docketed therein as Civil Case No.
B-1139. The court, however, dismissed the petition on 11 January 1991. 11
In the meantime, the Alias Writ of Execution dated 7 June 1990 was implemented by
the Sheriff by "levying (on) the parcels of land of the defendants with the Register of
Deeds, Government Center, Candahug, Palo, Leyte last July 19, 1990." The writ was
returned "partially satisfied." 12
Hence, the private respondents filed another motion for the issuance of a Second
Alias Writ of Execution, which the court a quo granted in its order 13 dated 7
December 1990, and issued the writ on 19 December 1990. 14
The petitioner moved to set aside the second alias writ of execution. The trial court
in an order dated 11 February 1991 denied the said motion and directed the
issuance of a third alias writ of execution, 15 and issued the writ on 21 February
1991. 16 The writ, however, was returned unsatisfied. 17
Again, the petitioner moved to quash the third alias writ of execution with a prayer
to stay the order of 11 February 1991,18 on the grounds that the writ of execution
varies the terms of the judgment and that there has been a change in the situation
of the parties which renders the execution inequitable. On 12 July 1991, the court a
quo issued an order 19 denying the motion and again directed the issuance of a
third alias writ of execution.

The petitioner filed a motion to stay the order dated 12 July 1991 20 but the motion
was denied by the court in its order 21 dated 2 August 1991.
Whereupon, the petitioner filed with the Court of Appeals, a petition for certiorari
with prayer for preliminary injunction and/or temporary restraining order against
Judge Teofilo R. Redubla and the private respondents herein, to annul and set aside
the order dated 12 July 1991 denying the petitioner's motion to quash the third alias
writ of execution, the order dated 2 August 1991 denying petitioner's motion to stay
execution of the order of 12 July 1991 and other orders prior thereto, alleging that
the said orders were issued with grave abuse of discretion, docketed therein as CAG.R. SP NO. 25747.
On 9 June 1992, the Court of Appeals, as earlier stated, promulgated a decision 22
dismissing the petition, the dispositive part of which reads as follows:
"WHEREFORE, petitioner having failed to prove that the orders complained of are
tainted with grave abuse of discretion, petition for certiorari is hereby DISMISSED."
The petitioner's motion for reconsideration 23 having been denied 24 the petitioner
filed the present petition.
As already stated, the Court of Appeals dismissed the petition for certiorari because
the petitioner failed to prove that the orders complained of were tainted with grave
abuse of discretion. Corollarily, the issue to be resolved in this petition for review on
certiorari is whether or not the Court of Appeals correctly held that the respondent
Judge did not act with grave abuse of discretion in issuing the disputed orders.
The rule is settled that once a judgment has become final and executory, the
prevailing party is entitled as a matter of right to a writ of execution, and the
issuance thereof is the court's ministerial duty, compellable by mandamus. 25 This
rule, however, is subject to exceptions, as for instance, where there has been a
change in the situation of the parties making execution inequitable or unjust. 26
The petitioner claims that the present case falls within the exception to the general
rule governing the execution of judgments. Hence, she contends that the Court of
Appeals erred in not holding that the respondent Judge acted with grave abuse of
discretion in denying her motion to quash the third alias writ of execution.
Paragraph 5 of the dispositive part of the decision of the trial court in Civil Case No.
B-778 dated 30 June 1988 reads as follows:
"5)
Ordering the defendants to render to the plaintiffs an accounting of the
pecuniary value of the produce of the area herein adjudicated to the plaintiffs from
January, 1979, the date of the filing of this case, up to the ultimate delivery of the
plaintiffs' share as (sic) giving to the plaintiffs 60% thereof."
For the implementation of the aforequoted decretal part of the decision, the trial
court in its order of 7 March 1989 appointed a commissioner on accounting. On 5
July 1989, the commissioner on accounting submitted his Report, attaching thereto,
the accounting of the produce of the lots in question, and made the following
findings of fact, to wit:
"Elvira Valenzona possessed the land in question in 1979 till 1987, when even the
court has not issued the writ of execution after the case over the land has been
terminated, Vicente Tripoli wrested the possession of the land from defendants and
forcibly occupied the same on May 15, 1987, cultivating and tilling the land until the
present."

The commissioner's Summary of Annual Sharing of plaintiffs (private respondents)

and defendants (petitioner herein) shows that from the years 1979 to 1987,
inclusive, plaintiffs are entitled to P79,409.41 in relation to the defendants' share of
P52,941.61.
The petitioner now argues that the private respondents' act of forcibly taking
possession of the land in question is a fact or circumstance that has changed the
situation of the parties thereby making the execution of the judgment inequitable or
unjust because she would be deprived of her legal share in the harvest of coprax
and lumber during the time that the private respondents have been in possession of
the land.
We are not impressed with the petitioner's argument. While the rule is that a stay of
execution of a final judgment may be authorized if necessary to accomplish the
ends of justice, as for instance, where there has been a change in the situation of
the parties which makes such execution inequitable, 27 nevertheless the said rule
cannot be invoked when the supposed change in the circumstances of the parties
took place while the case was pending, for the reason that there was then no
excuse for not bringing to the attention of the court the fact or circumstance that
affects the outcome of the case. 28 In the present case, the supposed change in the
situation of the parties took place while Civil Case No. B-778 was still pending in the
court below. Thus, as claimed by petitioner, the private respondents took possession
of the property in question on 15 May 1987. The court a quo rendered its decision
only on 30 June 1988. The petitioner, however, did not bring up the matter to the
attention of the court.
Moreover, Section 4, Rule 39 of the Rules of Court provides, among others, that
"Unless otherwise ordered by the court . . . a judgment or order directing an
accounting in an action, shall not be stayed after its rendition and before an appeal
is taken or during the pendency of an appeal." If a judgment or order directing an
accounting is not stayed after its rendition and before an appeal is taken or during
the pendency of the appeal, with more reason the judgment of the court in the
present case directing an accounting cannot be stayed since it has already become
final and executory.
In the light of the foregoing, we hold that the Court of Appeals did not err in ruling
that the respondent Judge did not commit grave abuse of discretion in issuing the
questioned orders.
WHEREFORE, the decision appealed from is AFFIRMED. The petition is DENIED with
costs against the petitioner.
SO ORDERED