In a motion for the issuance of a writ of execution, should notice be given to the adverse party?
Execution as a matter of right
Section 1, Rule 39 of the Rules of Court, which refers to execution of a final and executory judgment, reads as follows:
“Section 1. Execution upon judgments or final orders. – Execution shall issue as a matter of right, on motion, upon a judgment or order that disposes of the action or proceeding upon the expiration of the period to appeal therefrom if no appeal has been duly perfected.
“If the appeal has been duly perfected and finally resolved, the execution may forthwith be applied for in the court of origin, on motion of the judgment obligee, submitting therewith certified true copies of the judgment or judgments or final order or orders sought to be enforced and of the entry thereof, with notice to the adverse party.
“The appellate court may, on motion in the same case, when the interest of justice so requires, direct the court of origin to issue the writ of execution.”
In a 2012 case, the Supreme Court held, citing the above provision, that notice should be given to the adverse party only in the situation mentioned in the second paragraph, that is, where there has been an appeal from the trial court’s judgment and such appeal was finally resolved. The Court held that in the situation covered by the first paragraph, that is, where no appeal was perfected, notice is not required since the first paragraph does not mention it (Anama v. Court of Appeals, G.R. No. 187021, 25 January 2012).
The question is whether the Anama ruling would still apply in view of the 2019 amendments to the Rules of Civil Procedure.
My view is that the Anama ruling should be deemed superseded by the 2019 amendments. Hence, a motion for the issuance of a writ of execution of a judgment even where there was no appeal must now be served upon the adverse party.
Section 5(b), Rule 15 of the Rules of Court provides that “all motions shall be served … so as to ensure their receipt by the other party” (italics supplied). While Section 5 is captioned “litigious motions,” the use of the word “all” indicates that Section 5(b) applies to non-litigious motions as well. Additionally, Section 7 of Rule 15 states that no written motion shall be acted upon by the court without proof of service thereof pursuant to Section 5(b) of Rule 15, while Section 4 of Rule 13 requires that every written motion shall be filed with the court and served upon the parties affected.
A motion for execution of a final and executory judgment should not be set for hearing because it is a non-litigious motion (Section 4[d], Rule 15, Rules of Court). The motion shall be resolved by the court within 5 days from receipt of the motion (Section 4, Rule 15, Rules of Court).
Discretionary execution
A motion for execution pending appeal is expressly mentioned in Section 5(5), Rule 15 of the Rules of Court as a litigious motion. Not only should notice of the motion be given to the adverse party but the motion must be set for hearing. Section 2(a) of Rule 39 provides that discretionary execution may issue only upon good reasons to be stated in a special order after due hearing.
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