NICDAO VS. ESGUERRA. A CIVIL PROCEDURE CASE. BY C Y.

SEVERINO NICDAO, petitioner,
vs.
SILVESTRE J. ESGUERRA, Sheriff IV, respondent.

AUSTRIA-MARTINEZ, J.:
FACTS.
1. Petitioner Nicdao filed an administrative case against respondent Esguera before the RTC of Bulacanfor implementing the writ of demolition issued by
the MTC of Paombong Bulacan while the petitioner is absent.
2. He allege that even without a brake open order from the MTC, respondent force him self in to the house, demolished the same and confiscated there personal
property but was able to list only three properties of the petitioner which include an aquarium,a refregirator and a generator but failed to account for
several others including there jewelries.
3. In his comment, respondent Esguera claim that when he receive the copy of the writ of execution issued by the MTC for the implementation of the execution
of the decision issued in a civil case against the petitioner, he serve a notice to vacate the subject premises to the latter but petitioner refuse to
comply so he submitted a preliminary report informing the MTC of the complainant’s refusal to vacate the premises.
4. Two years later, a writ of demolition was sent by the MTC to the respondent giving him 30 days to implement the same.
5. He serve the writ together with a notice to vacate to the petitioner and inform him several times of the impending implementation of the writ of demolition
and on December 27 2002, while petitioner and his family was in Manila, respondent implemented the order of the MTC to demolish the subject premises.
6. The RTC dismissed the case against respondent Esguera and order the return of the property of the petitioner Nicdao.
7. So petitioner filed a petition to the supreme court.
ISSUE.
Whether or not, the respondent sherriff implemented the writ with in the scope of his authority.
According to the supreme court, petitioner was inform several times of the implementation of the writ of execution and demolition but instead, he and his
family left for Manila on the day of the implementation of the writ because of the holiday season so it is obvious that petitioner left the subject premises
to avoid the said demolition.
The supreme court further stated that, the cases of forcible entry and detainer are summary in nature for they involved perturbation of social order which
must be restored as much as possible, hense, if an officer is duly qualified to act under an ejectment case, he has the right to employ force if necessary
to enter the house to enforce the judgment even if the owner is not present.
And on the issue of the absence of brake open order, the supreme court said that
The name of the process commonly resorted to by the successful party in an action of ejectment, for the purpose of being placed by the sheriff in the actual
possession of the land recovered is called a habere facias possessionem. . . . No need for sheriffs and respondent lawyer to secure a break open order
where the character of the writ in their hands authorized them if necessary to break open the apartment, if they could not otherwise execute its command.
WHEREFORE, the complaint filed against respondent Sheriff Silvestre J. Esguerra, Sheriff IV, MTC of Paombong, Bulacan is DISMISSED for lack of merit. The
"Request for Recovery of Personal Properties/Belongings Alleged to be Ready to be Returned to Defendant/Complainant" filed by complainant Severino Nicdao
before the Executive Judge of the Regional Trial Court of Malolos, Bulacan may be granted by the Municipal Trial Court of Paombong, Bulacan in Civil Case
No. 711, subject to the condition that only those listed in the inventory made by the demolition team and witnessed by the barangay officials may be ordered
returned to complainant Severino Nicdao.

SO ORDERED.