Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
National Capital Region
Quezon City

JOSEPH ANDRESBUENAOBRA
AND NELLYPAMINGAO
Complainants-appellees,

-versus- NLRC CASE NO. 03-031333-14

EL PALMA DIAMOND STAR

LINES CORPORATION AND
EDUARDO PALMA
Respondents-appellants.
x---------------------------------------------------x

MOTION TO QUASH WRIT OF EXECUTION

DIAMOND STAR TRANSIT SERVICES/EDUARDO PALMA,

through the undersigned counsel and unto this Honorable NLRC most
respectfully files this MOTION TO QUASH WRIT OF EXECUTION to
the Order of the Honorable Labor Arbiter Raymund M. Celino dated
March 28, 2016 and further avers:

1. That on April 13, 2016 respondents-appellants received the

copy of the Order of the Honorable Labor Arbiter Raymund M. Celino
dated March 28, 2016. The dispositive portion is herein quoted:

“xxx WHEREFORE, you are hereby commanded to collect, in

accordance with Section 9, Rule XI of the 2011 NLRC Rules of
Procedure, as amended, the total amount of P733,63.14
inclusive of attorney’s fees, from respondents EL PAMA EA
DIAMOND STAR LINES CORPORATION/EDUARDO
PALMA, at No. 100 M. H del Pilar, Malanday, Valenzuela
City, or anywhere in the Philippines where they may be located,
representing complainant’s judgment award pursuant to the
Decision dated September 30, 2014.

Further from respondents the execution fee in the amount of P6,

836.63 and deposit fee of P3, 688.31 pursuant to Manual of
Execution.
 In case you fail to collect the said amounts above mentioned
from respondents, or the amount collected is insufficient to
satisfy the judgment award, you are hereby ordered to cause the
satisfaction of the judgment award in accordance with the order
of enforcement stated in Section 9(a), Rule XI of the 2011
NLRC Rules of Procedure, as amended, to wit: (a) Cash Bond;
(b) Bank deposits; (c) Surety bond; (d) Personal property of
respondent not exempt from execution; and (e) Real property of
respondent.

In case you fail to collect the said amount in cash, you are to
cause the satisfaction of the decision out of respondents’
movable or immovable properties not exempt from execution.

You are directed to submit a report on the status of the

enforcement of this Writ, not later than thirty (30) days from
receipt hereof and every thirty (30) days thereafter during its
lifetime of five (5) years from its issuance unless fully satisfied.

SO ORDERED. xxx”

2. That with all due respect unto the Honorable Labor Arbiter
Raymund M. Celino, the untimely issuance of the questioned Writ of
Execution against herein respondents is opportune and precipitates the
present stage of this case at hand and warrants reconsideration not only
in the interest of substantial justice but to accord judicial courtesy on the
cognizance of this case pending with highest court in the land.

3. For the kind information and knowledge of this Honorable

Office on February 22, 2016 respondents appealed this case thru a
Petition for Review dated February 19, 2016. Accordingly, is now
pending with Honorable Supreme Court for final determination on the
merits of this case.

4. With all due respect and reverence unto this Honorable

Office, the issuance of the Writ of Execution hinges on the alleged
finality on the determination of this case. Decorously, such
pronouncements lack depth and could not outweigh the Honorable
Supreme Courts power to finally determine the stature, merits and
awards of this case.

5. As the Supreme Court held in the case of PEOPLE OF THE

PHILIPPINES, ET AL v. ASCENCION P. OLART citing KABIGTING
V. ACTING DIRECTOR OF PRISONS, G.R. NO. L-15548, OCTOBER
30, 1962 that:
 “xxx The Supreme Court, being the court of last resort, is the
final arbiter of all legal questions properly brought before
it and its decision in any given case constitutes the law of
that particular case. Once its judgment becomes final it is
binding on all inferior courts, and hence beyond their power
and authority to alter or modify. xxx”

6. Worthy of consideration is that this case had yet to reach the

final pinnacle of a judgment tantamount to truly being final and
executory. To simplify, this case has could not be considered ripe for
execution on any awards as final determination on the merits thereof
including the issue of the awards are best left to the Supreme Court as
final arbiter in this cases.

7. Worth applying is the case of GEORGE PHILIP P. PALILEO

AND JOSE DE LA CRUZ v. PLANTERS DEVELOPMENT BANK G.R.
No. 193650, October 08, 2014 citing TORRES V. NATIONAL LABOR
RELATIONS COMMISSION, 386 PHIL. 513, 520 (2000) and
FLORENDO V. PARAMOUNT INSURANCE CORPORATION, G.R.
NO. 167976, JANUARY 20, 2010, 610 SCRA 377, 384 when the Supreme
Court lectured that:

“xxx “[i]n this jurisdiction, the rule is that when a judgment

becomes final and executory, it is the ministerial duty of the
court to issue a writ of execution to enforce the
judgment;” “execution will issue as a matter of right x x x
(a) when the judgment has become final and executory;
(b) when the judgment debtor has renounced or waived
his right of appeal; [or] (c) when the period for appeal has
lapsed without an appeal having been filed x x x.

8. Applying the above laid jurisprudence to the facts at hand

execution cannot be sought by the adverse party considering that:

a) Judgment had not become final and executory considering

that the this still pending final determination by the
Honorable Supreme Court;
b) Nowhere therein under the stated facts has it stated that
herein respondnent has renounced or waived his right to
appeal, in fact contrary thereto the right to appeal has been
judiciously exercised therein;
c) Lastly nowhere therein did the period for appeal lapse
without an appeal having been filed.

9. This above stated grounds taken all together coupled with

fact granting judicial courtesy on the cognizance of this case by the
Supreme Court with modest interest of substantial justice would be
enough to quash the questioned Writ of Execution.

10. In addition thereto, jurisprudence provides the grounds to

quash a Writ of Execution, as it was laid down in the case of
GUTIERREZ v. VALIENTE et al G.R. No. 166802
July 4, 2008 when the Supreme Court statedthat:

“xxx A motion to quash execution is only proper where: (a) the

writ of execution varies the judgment; (b) there has been a
change in the situation of the parties making execution
inequitable or unjust; (c) execution is sought to be enforced
against property exempt from execution; (d) it appears that the
controversy has never been submitted to the judgment of the
court; (e) the terms of the judgment are not clear enough and
there remains room for interpretation thereof; or (f) it appears
that the writ of execution has been improvidently issued
xxx”

11. In this case, the writ of execution should be quashed

considering that it was improvidently issued. Considerably the said writ
of execution was rendered without proper consideration as to the total
circumstances affecting it.

12. Furthermore Rule 39 of the Rules of Court is clear:

“xxx Section 1. Execution upon judgments or final orders. —

Execution 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. (la)
If the appeal has been duly perfected and finally resolved, the
execution may forthwith be applied for xxx”

13. From the very context of the above rule execution would be
proper when there is 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 or if the appeal has been duly perfected
and finally resolved. Worth emphasizing is that the appeal taken to the
Supreme Court thru a Petition for Review has not yet finally resolved in
order for execution to be proper.

14. That again with all due respect unto the Honorable Labor
Arbiter Raymund M. Celino, it must be borne in mind, that an Order of
Execution when issued with grave abuse of discretion amounting to lack
or excess of jurisdiction may be the subject of a petition for certiorari
under Rule 65 of the Rules of Court. (UNITED COCONUT PLANTERS
BANK VS. UNITED ALLOY PHILIPPINES CORPORATION, 449
SCRA 473).

15. This rule is an extraordinary remedy being more of the

exception rather than the rule. (Stronghold Insurance Company, Inc. vs.
Felix, 508 SCRA 357). And until such time the pending litigation and
final determination of the case between the parties is not resolved
necessarily there cannot be a valid Writ of Execution.

16. In a nutshell, the above-mentioned jurisprudence adding the

factual circumstances of this case would logically lead to the conclusion
that the Writ of Execution is prematurely and improvidently issued.

PRAYER

WHEREFORE, premises considered, it is most respectfully prayed

for unto this Honorable Office that the Writ of Execution be dismissed
for it runs counter with existing jurisprudence and contrary to law.

Respondents further pray for other reliefs and remedies which are
just and equitable under the foregoing premises.

Makati City for Quezon City, April 20, 2016

ATTY. JORICO FAVOR BAYAUA

Counsel for the Respondents
IBP No. 09572/ 01-13-11
PTR No. 5330802/ 01-08-16 Makati City
Roll No. 47842
MCLE Compliance No. IV-0009973
December 5, 2012
Tel Nos. 750-4439/8817629
3F Gonzalez Bldg., 1888 Orense St.,
Guadalupe Nuevo, Makati City
Email address: bayaualawoffice@gmail.com
COPY FURNISHED:

JOSEPH ANDES BUENAOBRA, ET.,AL.

282 M. Doliton St., Bayanan,
Muntinlupa City

EXPLANATION on the Mode of SERVICE

(Pursuant to Section 11, Rule 13 of the 1997 Rules of Civil Procedure)

This Motion to Quash is being served by registered mail, pursuant
to Section7, Rule 13 of the 1997 Rules of Civil Procedure, due to the
impracticability of personal service caused by lack of messenger,
distance, time constraints and expense.

JORICO FAVOR BAYAUA