In an ejectment case between respondent S. Herrero, as plaintiff, and herein petitioners, as defendants (civil case No. 2801), the municipal court of Manila rendered a decision on March 5, 1947, sentencing the petitoners to vacate the premises in question and to pay to respondent Herrero the monthly rental of P77 from January 1, 1947, until the premises shall have been vacated, plus the costs.

Upon appeal by the petitioners to the Court of First Instance of Manila, the respondent Judge, Hon. Felipe Natividad, rendered a decision dismissing the complaint, with costs against the plaintiffs (it appears that in the Court of First Instance the complaint was amended so as to include other parties plaintiff). The plaintiffs (herein respondents other than the respondent judge and the respondent sheriff), duly submitted their record on appeal as one of the steps for elevating the case to the Court of Appeals. In the meantime, or on May 9, 1948, the respondent Herrero and others filed a petition with teh Court of First Instance of Manila for the execution of the decision of the municipal court, on the ground that the defendants (herein petitioners) failed to pay or deposit the rentals for the months of January to May, 1948. On August 9, 1948, the respondent judge of the Court of First Instance of Manila issued an order granting the aforesaid petition and directing the issuance of a writ for the execution of the judgment of the municipal court. On the same date, or August 9, 1948, the record on appeal filed by the plaintiffs (herein respondents other than respondent judge and respondent sheriff) was approved by the respondent judge, and the case was ordered certified to the Court of Appeals.

The petitioners have instituted the present petition for certiorari, with a view to obtaining the annulment of the order directing the issuance of a writ of execution against the petitioners. There is merit in said petition. We have already held that the judgment of the municipal court is superseded by the judgment of the Court of First Instance, and the latter court cannot order the execution of said judgment of hte municipal court which has become functus oficio (De la Fuente and Teodoro, vs. Jugo and Borromeo, 76 Phil., 262). The action of the respondent judge in ordering the execution of the decision of the municipal court, in spite of the judgment of said respondent in favor of the herein petitioners, amounts to a reversal of his own judgment pending appeal by the plaintiffs (herein respondents other than respondent judge and respondent sheriff).

Moreover, it appears that the execution was ordered on the ground that herein petitioners failed to pay the rentals awarded in the decision of the municipal court. This is erroneous not only because the rental to be paid or deposited by the defendant in an ejectment case pending appeal form a judgment o fthe Court of First Instance, is that determined by the latter court (Romero vs. Pecson, 83 Phil., 308) in the case at bar the judgment of the Court of First Instance dismissed the complaint, but because the defendant in an ejectment case has to pay or deposit said rentals only in case he appeals from the judgment of the Court of First Instance, in order to stay ececution. In the case now before us, the petitioners are not bound to pay or deposit said rentals, because it is the plaintiffs (herein respondents other than respondent judge and respondent sheriff) who have appealed from the decision of the Court of First Instance. (Rule of Court No. 72, section 9.)

The petition for certiorari is hereby granted and the order of the respondent judge in civil case No. 2102, directing the issuance of a writ for the execution of the judgment of the municipal court, is set aside. The writ of preliminary injunction heretofore issued is made permanent. So ordered, with costs against the respondents other than respondent judge and respondent sheriff.

Moran, C. J., Ozaeta, Feria, Pablo, Perfecto, Bengzon, Tuason, Montemayor, and Reyes, JJ., concur.