GERUNDIA IBATAN, by herself and in representation of the minors, CANCIO JUANA, MARILYN, IRENEO EMMA ALEJANDRO AND VERONICA, all surnamed IBATAN, RAYMUNDO IBATAN, ESTELITA IBATAN, ERNESTO IBATAN, AND EDILBERTO IBATAN, petitioners, vs. HON. MENELEO C. MELICOR Judge of the Court of First Instance of Leyte, MARCIAL Z. SERON, Clerk of Court of the Court of First Instance of Leyte, GERTRUDES IBATAN, CLARA ARGUELLES EUGENIA ARGUELLES, AND BENIGNO ARGUELLES respondents. G.R. No. L-39125, August 20, 1990.
“x x x.
To justify the quashing of a writ of execution, there must, of course, be sufficient ground therefor. A writ may be quashed or recalled only when a) it appears that it has been improvidently issued, b) that the writ is defective in substance, or c) is issued against the wrong party, or d) that the judgment debt has been paid, or e) that the writ has been issued without authority, or f) there is a change in the situation of the parties which makes such execution inequitable, or g) the controversy was never submitted to the judgment of the court (International School, Inc. v. Minister of Labor and Employment, G.R. No. 54243, July 21, 1989). Clearly, petitioners failed herein to allege or to sufficiently show in their petition the existence of any ground to justify the setting aside of the writ. We find that the order of execution of the trial court on January 20, 1970 is valid where it merely enforces the dispositive portion of the final and executory judgment in the partition case. Consequently, the levy made on the real properties of the judgment debtor Ibatan on March 13, 1970 should also be considered valid and regular in the absence of any showing that the requisities therefor had not been complied with.
Petitioners submit that the trial court acted whimsically in refusing to set aside the alias writ of execution and levy on execution for having been issued after the death of the deceased defendant Quiterio Ibatan. Section 7, Rule 39 of the Rules of Court provides:
Execution in case of death of party. — Where a party dies after the entry of the judgment or order, execution thereon may issue, or one already issued may be enforced in the following cases:
xxx xxx xxx
c) In case of the death of the judgment debtor after execution is actually levied upon any of his property, the same may be sold for the satisfaction thereof, and the officer making the sale shall account to the corresponding executor or administrator for any surplus in his hands.
If the levy had been made before the death of the judgment debtor, the sale on execution could be carried to completion in accordance with the aforequoted rule which provides that in case the judgment debtor dies after execution is actually levied upon any of his property, the same may be sold for the satisfaction of judgment. (Py Eng Chong v. Herrera, G.R. No. L-31299, March 25, 1976, 70 SCRA 130). In the instant case, the order of execution was issued on January 20, 1970 and the levy on the properties was made on March 13, 1970, prior to the death of Quiterio Ibatan on June 6, 1971. Hence, the properties levied upon by the sheriff may be sold for the satisfaction of the money judgment. The subsequent issuance of the alias writ of execution and levy after the death of Ibatan did not affect the validity of the first writ and levy thereon. It has been held that the issuance of subsequent writ of execution does not operate as abandonment or waiver of a prior writ of execution (Government v. Echaus and Gonzales, 71 Phil. 318).
Finally, with respect to the partition of the parcels of land subject of the decision in Civil Case No. 839, We believe that the repartition made by the court on January 13, 1973 (p. 67, Rollo) approving the commissioner's report by the sheriff upon the instance of petitioners herein and without objection from private respondents has cured whatever defects or irregularities attended the execution and delivery of the parcels of land to the prevailing parties. With respect to the levy and execution sale held on June 28, 1973 for the satisfaction of the money judgment against the judgment debtor, petitioners have not clearly and sufficiently shown to this Court legal and justifiable grounds upon which the foregoing incidents should be nullified and set aside.
X x x.”
