Now again comes Ong Su Han in an effort to delay the carrying out of the judgment of the Manila Court of First Instance, ordering him to vacate the premises belonging to respondent Tan Eng Gee. Writ of execution of that decision had been issued last December but it had not yet been executed, when on January 18, 1946, he filed in that court a motion for suspension under Commonwealth Act No. 689. The court refused to suspend. Hence, this application for certiorari and allied remedies.

The material facts are not disputed: On April 2, 1945, Tan Eng Gee sued herein petitioner, in the Municipal Court of Manila, for unlawful detainer of the premises in question. On April 16, 1945, judgment was rendered for plaintiff, and defendant appealed to the Court of First Instance. On July 11, 1945, pursuant to a compromise agreement submitted by the parties' attorneys, that court entered judgment of ouster, with the understanding "that provided the defendant pays the monthly rents, there shall be no writ of execution issued before November 30, 1945, and provided further that with this agreement the defendant waives his right to appeal." During the following months of August and October, defendant herein petitioner attempted to have the decision vacated, asserting he had not authorized his counsel to make the covenant, but he failed, and the court issued a writ of execution on December 20, 1945. On January 5, 1946, he instituted certiorari proceedings here, but the same was dismissed by resolution of January 9, 1946. Then on January 18, 1946, Ong Su Han submitted to the court below an amended petition for suspension of execution, invoking sections 4, 5, 6 and 7 of Commonwealth Act No. 689. Tan Eng Gee having made opposition, the Hon. Jose Gutierrez David, Judge, declined to suspend, for the reasons that "From a review of the records of this case, it appears that the defendant has been given the opportunities accorded by law on the matter and he has exhausted all legal resources to delay the execution of the judgment in question. Furthermore, it appears that the judgment rendered in this case is by virtue of an agreement entered into by the parties in open session, the defendant being then assisted by counsellor of law."

For the purposes of this opinion, it is convenient fully to set out sections 4 and 5 of Commonwealth Act No. 689:

"When a final and executory order or judgment in a suit for the recovery of rentals or for ejection from a building or part thereof used as dwelling establishes the fact that the lessee has retained the possession of the buildings leased to him after the expiration of the contract, the Court that issued such order or judgment may, at its discretion, on the petition of the lessee and subject to the conditions prescribed in this Act, suspend the execution of said order or judgment for a period which it considers convenient but not exceeding three months. (Section 4.)

"When there is a petition for the suspension of execution of an order or judgment, the Court shall hear both parties, and if during the trial it shall be found that the building or buildings mentioned in the petition are destined solely for dwelling; that the petitioner cannot secure another dwelling house for himself and his family; that he had used due diligence to find another building; that he had filed his petition in good faith, and is willing to obey and comply with the requirements and orders of the Court, said Court shall grant the suspension as provided in this Act, on the condition that the requirements laid down for said suspension shall be complied with." (Section 5.)

Petitioner's first contention is that His Honor was duty bound to direct the suspension, in view of the allegations in his petition that the house was used solely as dwelling and,

"That defendant, in view of the housing problem in Manila caused by the wanton destruction and burning of many houses by the enemy, cannot secure another dwelling house for him and his family;

"That defendant, since the rendition of said decision against him had been exerting all efforts to look for another dwelling to which he and his family could transfer, but notwithstanding all diligence to find and look for another place or house to live in, all said efforts were of no avail;

"That defendant has filed this petition for suspension of the writ of execution in good faith, and is willing to obey and comply with all the requirements and order of this Honorable Court;"

He emphasizes that under section 5 the court "shall grant the suspension as provided in this Act," the phrase being mandatory and obligatory. Considering that the previous section declares that the court "may, at its discretion," suspend the execution; and remembering that "shall," when used in statutes, often means "may,"^[1] we opine that the granting of suspensions of execution under Act No. 689 is discretionary, as the provisions of both sections should be construed together, their effect being the specification of the conditions for the granting of the relief. In other words, if the conditions in sections 4 and 5 are not present, the court can not grant postponement. If they are, the court may still, in its discretion, reject the postponement, whenever valid reasons are shown. Any abuse in the use of that discretion is reviewable by certiorari.

Petitioner's other contention poses the issue whether the trial judge has committed abuse. We think not. Our reason is that the judgment of dispossession was entered on July 11, 1945, more than six months before the request for suspension under Commonwealth Act No. 689. In the similar case of Tiangco vs. Liboro and Judge of First Instance of Manila (75 Phil., 559), we declined to reverse the judge's order denying suspension of execution because "the purpose of the law (689) in authorizing the suspension of the execution is to give the petitioner time to 'secure another dwelling house for himself and his family," and "the petitioner has had nearly six months within which to look for another dwelling house."

Petitioner strives to take advantage of a minor incident: After the first petition for certiorari had been quashed here, plaintiff hastened to execute the judgment in the court below. To block the move, defendant submitted on January 16, 1946, an urgent request for stay alleging mainly that his motion for reconsideration in the certiorari case here, was still pending. On January 16, 1946, the Hon. Buenaventura Ocampo, Judge, believing from other allegations of the pleading that defendant desired to invoke Commonwealth Act No. 689, suspended the execution and summoned the parties to a hearing set for January 19, 1946. On that date, however, through a new distribution between the Manila Judges, the expediente corresponded to the respondent judge, to whom herein petitioner later, submitted his amended petition, making representations under Commonwealth Act No. 689. Without a formal hearing, Judge Gutierrez David denied the suspension, as hereinabove stated. Petitioner's theme, eagerly advanced, is that, after Judge Ocampo had ordered suspension of the execution and had called the parties to a hearing, it was legal abuse of discretion for respondent to cancel the order and refuse the suspension, without previously listening to the litigants. We can not fully indorse that view. It has been held that a judge of first instance is not legally prevented from revoking the interlocutory order of another judge in the very litigation subsequently assigned to him for judicial action.^[2] And Judge Gutierrez David was not required to hear the parties, if and when a reading of the record convinced him, as it did, that the suspension should be revoked because improperly granted or that it should be disapproved.^[3]

It is doubtful whether the ouster judgment of July 11, 1945, rendered by agreement of the parties may now be suspended, over plaintiff's objection, by operation of a law passed after the agreement, October 15, 1945 (Commonwealth Act No. 689); said plaintiff being in a position to argue that to suspend will be to amend the agreement whereby Ong Su Han undertook to leave about November 30, 1945. Yet we do not deem, it necessary to pass on this question now. Neither do we decide the situation where the compromise agreement and therefore the judgment is entered after the promulgation of Commonwealth Act No. 689. Enough to rule that, as defendant Ong Su Han has had sufficient time, there was no abuse in the denial. Anyway, when this, our decision, is promulgated the writ of execution issued December 20, 1945, will have been in abeyance for more than three months.

Wherefore, the petition is denied, and the writ of preliminary injunction heretofore issued is dissolved. Respondent Tan Eng Gee may forthwith have his execution. With costs against petitioner.

Moran, C. J., Ozaeta, Jaranilla, Feria, De Joya, and Hilado, JJ., concur.

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^[1] See footnote 29 at page 554, Vol. 57, Corpus Juris.

^[2] Roxas vs. Zandueta (57 Phil., 14).

^[3] Tiangco vs. Liboro and Judge of First Instance of Manila (supra).

 

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