The  plaintiffs  commenced In the  justice  of the peace court  of Hermosa,  Bataan,  an action  of forcible entry and detainer against  the defendants,  covering a parcel of  land situated in the barrio  of Saba, Municipality of Hermosa, Province of Bataan. After  trial,  the justice of  the peace  court rendered a decision  dated May  11, 1940, in favor of the plaintiffs, from  which the defendants appealed to the Court of First Instance of Bataan which after the trial, rendered a decision dated October 8,  1941, sentencing  the defendants to vacate the land in  question and deliver the same  to the plaintiffs and to pay jointly and severally to the latter the sum of P455, plus the costs. On  December 2, 1941,  the  defendants  filed  a record on appeal with  notice of  appeal,  stating  that,  being  poor litigants, they might not  file the  appeal  bond  in  pursuance of  section 22  of Rule 3  of  the Rules  of Court whereupon  the clerk  of court served a notice upon  the parties that said record  on appeal would be heard  for approval  on December  10,  1941.  On December 5, 1941 the court, acting upon  the  motion filed by the plaintiffs on November 19, 1941,  ordered the issuance of a writ of execution Nothing appears to have subsequently been done  in the case until April 23, 1947 when the plaintiffs filed a petition for the reconstitution of the records, which was granted by the court in its order of  June 16,  1947, allowing said reconstitution by copies filed by the plaintiffs and  attached to  the record.   On July  5, 1952,  the plaintiffs  filed a petition praying that the appeal interposed  by  the defendants be dismissed for lack of  prosecution and  that  the judgment be  ordered executed.  On August 4, 1952,  the court issued  an  order requiring  attorney for  the plaintiffs to  notify the defendants of  the hearing  of said  motion. On  September  30, 1952,  the court  issued an order  dismissing  the  appeal taken  by the defendants and ordering the execution of the  judgment dated October 8, 1941.  On January 30, 1953,  Atty. Eliseo M. Tensa, in representation  of the defendants, filed a  petition praying that  the  order of September 30,  1952, be reconsidered  and the  writ of  execution immediately lifted and that the defendants, through their new counsel, be heard  in connection with their  appeal.  Notwithstanding the  opposition filed by the  plaintiffs  on March  2, 1953,  the court  issued  an  order  dated March  4,  1953, setting aside the order of September 30, 1952, and  allowing the defendants to perfect their appeal within the reglemenary period.  On  March 30,  1953,  the defendants filed a motion for  new  trial  under Act No. 3110, alleging that the appeal could  not be  prosecuted because the transcript was not available.  On October 30,  1953, the court  issued an order denying the motion for reconsideration of March 30, 1953 filed by the plaintiffs, and granting motion  for new trial filed by the defendants.  From  this order  the present appeal was taken by the plaintiffs.

The appellants  contend  that the lower  court  should have  motu  propio dismissed  the appeal  taken by  the defendants for having failed to take any steps to perfect it during more than 11 years; that the petition filed on January 30, 1953,  by Atty. Tensa  was not accompanied by affidavits of merits; that the appeal  interposed by the defendants should  at any rate have  been dismissed for their failure to file an appeal bond;  and that the lower court should not have ordered a  new  trial especially because  the defendants  failed  to  institute  reconstitution proceedings within the period of one year fixed in Republic Act No. 441.

These contentions are untenable.  The lower court could not of course dismiss the appeal taken by  the defendants from the decision of October 8, 1941, without  in the first  place the records  having been  duly reconstituted. After the reconstitution  of the  records in pursuance of the  order of June 16, 1947, it was not at all clear  that the  defendants had not  taken  the  necessary steps to perfect their appeal.  Upon the other hand,  it appears that the hearing for the approval of the record  on  appeal was set for December 10, 1941, and this was not  held due to the outbreak  of the last war.   The alleged  failure of the defendants to file an appeal bond cannot be invoked against  them  since  the  record  does  not  show that the court had ruled on the notice of  appeal, stating that they could not file  an appeal  bond for being paupers; and much less  is  there  any  indication in the  reconstituted records that  the  defendants in  fact failed  to  file an appeal bond.

That  the petition filed by  the new counsel for  the defendants  on January 30, 1953,  was not accompanied by affidavits of merits is of no moment,  since it was granted on  the  premise that the plaintiffs had failed  to  comply with  the order requiring them  to send  notice of their ex parte motion  of July 5,  1952 to the defendants, and this was a  matter  that could be  seen  from the  records under the control of the court.

In  view of  the loss  or destruction  of the  transcript, it necessarily follows that the defendants could not have prosecuted their  appeal in the  Court of  Appeals, even if duly perfected.

That no reconstitution proceedings  were initiated by the defendants is not a ground for the dismissal of their appeal, since the remedy of reconstitution was  also available to the plaintiffs who, in view  of the judgment in their  favor,  were more called upon to reconstitute, as they did, the records.   The one  year period fixed in Republic Act No. 441 cannot be invoked against the defendants,  since the latter were not the ones who sought the reconstitution of this case.

Wherefore, the appealed order is affirmed with costs against the appellants.

Padilla, Montemayor, Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L., Endencia, and Felix, JJ., concur.