[ G.R. No. 26321. August 19, 1975 ] 160 Phil. 869; 72 OG 1069 (February, 1976)
EN BANC
[ G.R. No. 26321. August 19, 1975 ]
THE CITY OF CEBU, CITY COUNCIL OF THE CITY OF CEBU, CEBU CITY TREASURER, CEBU CITY AUDITOR AND MARIO D. ORTIZ, PETITIONERS, VS. HON. JOSE M. MENDOZA, JUDGE OF THE COURT OF FIRST INSTANCE OF CEBU, BRANCH VI, AND EFREN M. ARNEJO, RESPONDENTS. R E S O L U T I O N
AQUINO, J.:
In the resolution promulgated on February 25, 1975 five Justices voted for the dismissal of the petition in this case for certiorari and mandamus, which was intended to compel the lower court to give due course to the petitioners’ appeal to the Court of Appeals. Four Justices voted for giving due course to the appeal. As the Court was divided, the petition was denied (Sec. 11, Rule 56, Rules of Court). The petitioners herein, filed motions for reconsideration of the “judgment” of this Court. Respondent Efren M. Arnejo prayed that the motions be denied (petitioner Mario D. Ortiz did not furnish Arnejo with a copy of his motion for reconsideration). Inasmuch as the said resolution embodies the opinion of only five Justices, it cannot be regarded as the Court’s decision en banc. It cannot be the object of a motion for reconsideration or re-hearing. Such a motion is addressed to the Court’s “final order or judgment.” In this case, the petition was denied because the necessary majority could not be obtained for a decision. Petitioner’s motions could at most be treated as pleadings asking the court to deliberate anew so that a consensus might be reached. The arguments adduced in the two motions are the same contentions previously deliberated upon by this Court. Petitioner Ortiz filed an alternative motion for clarification. He asked this Court to hold that respondent Efren M. Arnejo “is not entitled to reinstatement” to the position of Assistant Chief of Police of Cebu City and to the payment of back salaries and damages. The other petitioners in their motion for reconsideration argue that the supervening facts adverted to in the resolution constitute a waiver or abandonment on Arnejo’s part of his claim for the position. They observe that the lower court’s judgment, requiring Arnejo’s reinstatement to the position of Assistant Chief of Police of Cebu City, cannot be executed because the position is lawfully occupied by another person (not a party in the main case and in this case) and, hence, Arnejo is not entitled to collect the salaries for that position. The Court is of the opinion that the question of whether the judgment in Arnejo’s favor can be executed in view of the supervening facts has to be resolved in the execution proceeding in the original case, from which this incident stemmed and which is Civil Case No. R-8612 of the Court of First Instance of Cebu, Branch VI, “Efren Arnejo vs. Sergio Osmeña, Jr. et al.” The mere fact that the petition for certiorari and mandamus in this case was dismissed and that the appeal of respondents in Civil Case No. R-8612 was not allowed does not imply that this Court sanctions the execution of the judgment in Arnejo’s favor. While generally a final and executory judgment may be executed as a matter of right, nevertheless, when “facts and circumstances transpire which render its execution impossible or unjust, the interested party may ask a competent court to stay its execution or prevent its enforcement” (2 Moran’s Comments on the Rules of Court, 1970 Ed., p. 260, citing Ocampo vs. Sanchez, 97 Phil. 472 and City of Butuan vs. Hon. Ortiz, 113 Phil. 636) or “may ask the court to modify or alter the judgment to harmonize the same with justice and the facts” (De la Costa vs. Cleofas, 67 Phil. 686, 692). “After a judgment has become final, if there is evidence of an event or circumstance which would affect or change the rights of the parties thereto, the court should be allowed to admit evidence of such new facts and circumstances, and thereafter suspend its execution and grant relief as the new facts and circumstances warrant” (Per Makalintal, J. in Abellana vs. Dosdos, L-19498, February 26, 1965, 13 SCRA 244, 248 citing Candelario vs. Canizares, 114 Phil. 672, 679 citing in turn the City of Butuan case, supra. See Penuela and Pedregosa vs. Hornada, 111 Phil. 618). Hence, the issues raised in petitioners’ motions as to the enforceability of the judgment in Arnejo’s favor should be ventilated in the lower court when he files a motion for execution. WHEREFORE, the motions for reconsideration are denied. SO ORDEREDS. Makalintal, C.J., Esguerra, Muñoz Palma, Concepcion, Jr., and Martin, JJ., concur. Castro, J., concurs in the result. Teehankee, J., concurs in a separate opinion. Barredo, J., concurs on the express understanding that the issue that respondent Arnejo is not entitled to either reinstatement or back salaries is still open. Fernando, Makasiar, and Antonio, JJ., did not take part.