632

SUPREME COURT REPORTS ANNOTATED

Manner and Period of Perfecting an Appeal Mandatory and Jurisdictional; Timeliness
of the Petition for Certiorari
57
MANNER AND PERIOD OF PERFECTING AN APPEAL MANDATORY AND
JURISDICTIONAL; TIMELINESS OF THE PETITION FOR CERTIORARI
By
JULIANA DE CASTRO-AZARRAGA
___________________
I.When appeal would lie, p. 633
A.Order of execution of a final and executory judgment not appealable; Exception,
p. 633
B.Judgment of acquittal, final and executory; Appeal or certiorari not an available
remedy, p. 635
C.Order of execution of a final and executory judgment not appealable; Exception,
p. 636
D.Petition for review under Rule 45 of the Rules of Courtonly questions of law may
be raised, p. 636
E.Appeals from inferior courts to the Regional Trial Court, p. 636
F.Appeals from the Court of First Instance/Regional Trial Court, p. 637
G.Appeals from the inferior courts may be elevated to the Regional Trial Court only
by ordinary appeal, p. 637
H.Motion for New Trial or Reconsideration not a pre-requisite to an appeal, petition
for review or a petition for certiorari, p. 638
I.When appeal is deemed perfected, p. 638
J.Perfection of an Appeal within the reglementary period mandatory and
jurisdictional; Effect, p. 641
II.Appeal by certiorari or petition for certiorari under Rule 65 of the Rules of Court,
p. 642
A.Timeliness of a petition for certiorari, p. 642
B.Certiorari not the remedy when appeal is available; Exceptions, p. 643
C.Proper issues in the special civil action of certiorari, p. 643
633
VOL. 197, MAY 29, 1991
633
Manner and Period of Perfecting an Appeal Mandatory and Jurisdictional; Timeliness
of the Petition for Certiorari
D.Grave abuse of discretion defined, p. 644
____________________
I. When appeal would lie.
Par. 19 of the Interim Rules of Court, provides:
Period of Appeal.
(a) All appeals, except in habeas corpus cases and in the cases referred to in
paragraph (b) hereof must be taken within fifteen (15) days from notice of the
judgment, order, resolution or award appealed from.

(b) In appeals in special proceedings in accordance with Rule 109 of the Rules of
Court and other cases wherein multiple appeals are allowed, the period of appeal
shall be thirty (30) days, a record of appeal being required.
When the lower court issued an unqualified order of dismissal, albeit on a
technicality (for lack of interest), it was no different from dismissal on the merits
and operated as a final disposition of the case from which an appeal would lie.
(Sinuhin vs. Intermediate Appellate Court, G.R. No. 71558, October 16, 1990.)
A. Order of execution of a final and executory judgment not appealable; Exception.
Ordinarily, an order of execution of a final and executory judgment is not appealable
because otherwise, there would be no end to a case, however, if in the opinion of
the defeated party, such order of execution varies the term of the judgment and
does not conform to the essence thereof, or the terms of the judgment allow room
for interpretation and the interpretation given by the trial court as contained in its
order of execution is wrong, the latter may then appeal to the order so that the
Appellate Tribunal may pass upon its legality and correctness. Private respondent in
questioning the timeliness of the petition holds the view that the present case falls
under the exceptionary clause, and therefore, the only remedy of petitioner would
634
634
SUPREME COURT REPORTS ANNOTATED
Manner and Period of Perfecting an Appeal Mandatory and Jurisdictional; Timeliness
of the Petition for Certiorari
be to appeal the questioned orders. Since petitioner received a copy of the denial of
his motion for reconsideration of the orders of execution on June 27, 1980, he had
only up to July 27, 1980 within which to appeal. His failure to appeal the said orders
consequently rendered the questioned orders final and executory.
The rule that appeal lies to question an order or writ which varies the terms of the
decision being executed is not, however, meant to constitute the appeal as the sole
and exclusive remedy in such instances. Any other proceeding appropriate and
allowable under the Rules may be pursued by the aggrieved party. Petitioner in this
case availed of the remedy of the special civil action for certiorari under Rule 65 of
the Rules of Court. He maintained that (1) the award to Rufino Alvero, one of the
plaintiffs-appellants in C.A. G.R. No. 32290-R of one half of the land of Cipriana,
modified the finding of the Court of Appeals, affirmed by this Court, that only
defendants-appellees were entitled to the land of Cipriana; and (2) the allotment to
private respondents of 4,099 square meters, an increase from 2,500 square meters,
as representing one fourth (1/4) of the land of Juan, varied the decision of the
respondent court in Civil Case No. 5005, as affirmed by the Court of Appeals in CAG.R. No. 57380-R. He claimed that in so doing, the court committed grave abuse of
discretion and acted beyond its jurisdiction. This clearly makes a proper case for
certiorari which we could pass upon. This petition is thus timely filed, only thirty-one
(31) days having lapsed from notice of the assailed orders. Par. 22 of the Interim
Rules, provides:
(a)Ordinary appeals from the regional trial court.The procedures provided for in
Rule 46 and 124 of the Rules of Court shall apply insofar as said Rules are not
inconsistent with this Resolution B.P. Blg. 129.
(b) In actions or proceedings originally filed in the metropolitan trial court, municipal
trial court and municipal circuit trial court appealed to the regional trial court, the
final judgments or orders of the latter may be appealed by petition for review to the

Intermediate Appellate Court which may give due course only when the petition
shows prima facie that the lower court has committed an error of fact or law that
will warrant a reversal or modification of the decision or
635
VOL. 197, MAY 29, 1991
635
Manner and Period of Perfecting an Appeal Mandatory and Jurisdictional; Timeliness
of the Petition for Certiorari
formal order sought to be reviewed.
The petition for review shall be governed by the Resolution of the Court of Appeals
dated August 12, 1971, as modified in the manner indicated in the preceding
paragraph hereof.
B. Judgment of acquittal, final and executory; Appeal or certiorari not an available
remedy.
In Jaime Bernardo, et al., vs. Court of Appeals, G.R. No. 82483, Sept. 26, 1990, the
Supreme Court said: However, as to an appeal by the complainant on the civil
aspect of the case, this Court has recently ruled that, subject to the rules on double
jeopardy, if a criminal case is dismissed by the trial court or if there is an acquittal,
an appeal therefrom on the criminal aspect may be undertaken only by the State
thru the Solicitor General. Only the Solicitor General may represent the People of
the Philippines on appeal. The private offended party or complainant may not take
such appeal. However, the said offended party or complainant may appeal the civil
aspect despite the acquittal of the accused.
In a special civil action for certiorari filed under Section 1, Rule 65 of the Rules of
Court wherein it is alleged that the trial court committed grave abuse of discretion
amounting to lack of jurisdiction or on other jurisdictional grounds, the rules state
that the petition may be filed by the person aggrieved.
In such a case, the aggrieved parties are the State, and the private offended party
or complainant. The complainant has an interest in the civil aspect of the case so he
may file such special civil action questioning the decision or action of the
respondent court on jurisdictional grounds. In so doing, complainant should not
bring the action in the name of the People of the Philippines. The action may be
prosecuted in the name of the said complainant.
Such an appeal dispenses with the authority and representation of both the fiscal
and the Solicitor General considering that the subject matter of the action involves
solely the interests of the offended party and hence, no longer concerns the State.
636
636
SUPREME COURT REPORTS ANNOTATED
Manner and Period of Perfecting an Appeal Mandatory and Jurisdictional; Timeliness
of the Petition for Certiorari
C. Order of execution of a final and executory judgment not appealable; Exception.
A.Interlocutory or final orders.
In the case of de Ocampo vs. Republic, L-19533, Oct. 31, 1963, 9 SCRA 440, the
Court said: The test to ascertain whether an order is interlocutory or final is: does it
leave something to be done in the court with respect to the merits of the case? If it
does, this is interlocutory; if it does not, it is final.

An order which decides an issue or issues in a complaint is final and appealable,

although the other issue or issues have not been resolved, if the latter issues are
distinct and separate from the others. Day vs. Regional Trial Court of Zamboanga,
et al., G.R. No. 86500, Nov. 21, 1990.
D. Petition for review under Rule 45 of the Rules of Courtonly questions of law may
be raised.
Salas v. Court of Appeals, et al., G.R. No. 86500, Nov. 21, 1990.
E. Appeals from inferior courts to the Regional Trial Court.
Par. 21 of the Interim Rules of Court, provides:
(a) all cases decided by the metropolitan trial court, municipal trial courts and the
municipal circuit trial courts may be appealed to the regional trial court exercising
jurisdiction over the area as to which they pertain.
(b) Within five (5) days from the perfection of the appeal, it shall be the duty of the
clerk of court to transmit the original record on appeal as the case may be, to the
appropriate regional trial court.
(c) Upon receipt of the original records, or of the record of appeal, and of the
transcripts and exhibits, the clerk of court of the regional trial court shall notify the
parties of such fact.
(d) Within fifteen (15) days from receipt of the notice referred to in the preceding
paragraph, they may submit memoranda and/or briefs, or upon the expiration of the
period to file the same, the regional trial court shall decide the case on the basis of
the entire record of the proceedings had in the court of origin and such memo637
VOL. 197, MAY 29, 1991
637
Manner and Period of Perfecting an Appeal Mandatory and Jurisdictional; Timeliness
of the Petition for Certiorari
randa and/or briefs, as may have been filed.
F. Appeals from the Court of First Instance/Regional Trial Court.
There are two modes by which cases decided by the then Court of First Instance in
their original jurisdiction may be reviewed: (a) by ordinary appeal either to the
Supreme Court or to the Court of Appeals; and (b) by appeal on certiorari directly to
the Supreme Court on sole error or question of law. (Sinuhin vs. Intermediate
Appellate Court, G.R. No. L-71558, Oct. 16, 1990.)
Par. 20 of the Interim Rules, provides:
20. Procedure for taking appeal.An appeal from the metropolitan trial court,
municipal trial courts, municipal circuit trial court to the regional trial court, and
from the regional trial court to the Intermediate Appellate Court in actions or
proceedings originally filed in the former shall be taken by filing a notice of appeal
with the court that rendered the judgment or order appealed from.
Thus, in the light of the indubitable fact that the trial court proceeded to hear the
erstwhile detainer case under its original jurisdiction, the review by ordinary appeal
was the proper recourse for the aggrieved parties and the Appellate Court erred in
dismissing the petitioners appeal. (Sinuhin vs. Intermediate Appellate Court,
supra. )
G. Appeals from the inferior courts may be elevated to the Regional Trial Court only
by ordinary appeal.
Private respondent is of the belief that the action filed before the respondent
Regional Trial Court was both an original action for certiorari and a petition for

certiorari as a mode of appeal. We disagree. Applying Sec. 22 of BP 129 (governing

law on the matter), appeals from the inferior courts may be elevated to the Regional
Trial Court only by ordinary appeal, that is, by filing a notice of appeal with the
inferior court. The said proviso does not admit of any other mode of elevating
decisions of inferior courts to the Regional Trial Court presumably to carry out the
638
638
SUPREME COURT REPORTS ANNOTATED
Manner and Period of Perfecting an Appeal Mandatory and Jurisdictional; Timeliness
of the Petition for Certiorari
purpose of BP 129 which is to simplify judicial procedure to effect speedy
administration of justice. (Day vs. Regional Trial Court of Zamboanga City, et al.,
G.R. No. 79109, Nov. 22, 1990.)
SEC. 22, BP 129, provides:
SEC. 22. Appellate jurisdiction.Regional Trial Court shall exercise appellate
jurisdiction over all cases decided by Metropolitan Trial Courts, Municipal Trial
Courts, and Municipal Circuit Trial Courts in their respective territorial jurisdictions.
Such cases shall be decided on the basis of the entire records had in the court of
origin and such memoranda and/or briefs as may be submitted by the parties or
required by the Regional Trial Courts. The decision of the Regional Trial Courts in
such cases shall be appealable by petition for review to the Intermediate Appellate
Court which may give it due course only when the petition shows prima facie that
the lower court has committed an error of fact or law that will warrant a reversal or
modification of the decision or judgment sought to be reviewed.
H. Motion for New Trial or Reconsideration not a pre-requisite to an appeal, petition
for review or a petition for certiorari.
A motion for new trial or reconsideration is not a pre-requisite to an appeal, petition
for review or a petition for review on certiorari. The reglementary period for filing
the petition for review on certiorari in the instant case was thirty (30) days from
notice of the order or judgment subject of review which period, parenthetically, is
now fifteen (15) days pursuant to Section 39 of the Judiciary Act (BP 129) of 1980.
(Director of Lands, et al. vs. Aquino, et al., G.R. No. 31688, Dec. 7, 1990.)
Sec. 39, provides:
SEC. 39. Appeals.The period for appeal from final orders, resolutions, awards,
judgments, or decisions of any court in all cases shall be fifteen (15) days counted
from the notice of the final order, resolution, award, judgment, or decision appealed
from: Provided, however, That in habeas corpus cases, the period for appeal shall be
forty-eight (48) hours from the notice of the judgment appealed from.
I. When appeal is deemed perfected.
A.Where record on appeal is not required, the filing of the
639
VOL. 197, MAY 29, 1991
639
Manner and Period of Perfecting an Appeal Mandatory and Jurisdictional; Timeliness
of the Petition for Certiorari
Notice of Appeal does not perfect the appeal.
Par. 23 of the Interim Rules, provides:

23. Perfection of Appeal.In cases where appeal is taken, the perfection of the
appeal shall be upon the expiration of the last day to appeal by any party.
In cases where a record on appeal is required, the appeal is perfected upon
approval thereof by the court which should be done within ten (10) days.
Paragraph 19 of the same Rules dispenses with the filing of the record on appeal,
thus
Elimination of record on appeal and appeal bond.
18. The filing of a record on appeal shall be dispensed with, except in the cases
referred to in sub-paragraph (b) of paragraph 19 hereof.
No appeal bond shall be required for an appeal.
Par. 19 of the Interim Rules, provides:
19. Period of Appeal.
(a) All appeals, except in habeas corpus cases and in the cases referred to in
paragraph (b) hereof, must be taken within fifteen (15) days from notice of the
judgment, order, resolution or award appealed from.
(b) In appeals in special proceedings in accordance with Rule 109 of the Rules of
Court and other cases wherein multiple appeals are allowed, the period of appeal
shall be thirty (30) days, a record of appeal being required.
Thus, in cases where a record on appeal is not required, the mere filing of a notice
of appeal does not perfect the appeal. ( Montelibano vs. Bacolod-Murcia, No. 69800,
May 7, 1985, 136 SCRA 294; Yabut vs. Intermediate Appellate Court, No. 69208, May
28, 1986, 142 SCRA 124; Belgado vs. Intermediate Appellate Court, No. 74975,
January 12, 1987, 147 SCRA 258.)
The mere fact that one party has already filed his notice of appeal does not mean
that the appeal has already been perfected because the adverse party still has the
reglementary period within which to perfect his appeal. (Magtibay vs. Court
640
640
SUPREME COURT REPORTS ANNOTATED
Manner and Period of Perfecting an Appeal Mandatory and Jurisdictional; Timeliness
of the Petition for Certiorari
of Appeals, No. 77040, Nov. 29, 1988, 108 SCRA 177, 180. ) Corollarily,
(A)s long as any of the parties may still file his, her or its appeal the court does not
lose jurisdiction over the case. x x x. It is only after all the parties respective
periods to appeal have lapsed that the court loses jurisdiction over the case. (Ass.
Bank vs. Gonong, No. 77353, July 30, 1987, 152 SCRA 478, 480.)
Illustrated case: Pamintuan vs. Intermediate Appellate Court, 186 SCRA 83.
In Civil Case No. 2525, the Court of First Instance, in a decision rendered on
December 8, 1982, ordered the Rodolfos (the private respondents herein) to return
the possession of the land in question to the petitioners, the heirs of Mariano
Borromeo, and to pay damages to them. The Rodolfos filed a notice of appeal, and
subsequently an appeal bond and record on appeal, but the Regional Trial Court
(which in the meanwhile had replaced the Court of First Instance) dismissed the
appeal on the ground that the Rodolfos had received a copy of the Decision on
January 12, 1983 but filed their notice of appeal only on February 1, after more than
fifteen (15) days as required by Sec. 39 of the new BP 129. However, on motion of
the Rodolfos, the trial court, on July 29, 1983, reconsidered its order, ordered the
status quo prior to the issuance of the writ of execution on May 12, 1983 to be
restored, and approved the record on appeal of the Rodolfos. The trial court made

its order on the basis of its findings that the decision of December 8, 1982 had been
served on Flora Rodolfo Guzman and Jaime Rodolfo personally when it would have
been served instead on their counsel as required by Rule 13, Sec. 12. The trial court
reiterated its ruling in its order of February 23, 1984, denying the motion for
reconsideration of the Borromeos.
The Borromeos then gave notice that they were in turn appeal ing the orders dated
July 29, 1983 and February 28, 1984. On July 19, 1984 however, the trial court,
acting on motion of the Rodolfos, directed the respondent Sheriff to restore
possession of the land in question to the defendants (the Rodolfos) pursuant to the
Orders of this Court (IAC) dated July 29, 1983, and February 28, 1984. Hence, this
petition. Originally filed with
641
VOL. 197, MAY 29, 1991
641
Manner and Period of Perfecting an Appeal Mandatory and Jurisdictional; Timeliness
of the Petition for Certiorari
the Supreme Court, it was later referred to this Court for appropriate determination.
The contention of the petitioners before the then Intermediate Appellate Court was
that as a consequence of their having filed, on March 5, 1984 their notice of appeal.
From the trial courts order dated July 29, 1983 and February 28, 1984, the trial
court had already lost jurisdiction over Civil Case No. 2525-O and acted without
authority in issuing the Order dated July 19, 1984. The petitioners prayed therefore
the respondent appellate court to invalidate the trial courts order of July 19, 1984
and to order the elevation of the records of Civil Case No. 2525-O.
The respondent appellate court found no merit in the petitioners contentions and
this dismissed their petition. Undaunted by the setback, the petitioners are now
before us with basically the same issue and arguments.
The petition is not meritorious.
The perfection of appeal is explicitly covered by Sec. 23 of the Interim Rules of
Court which states, to wit:
xxx
xxx
xxx
xxx
xxx
xxx
xxx
xxx
xxx
Here, it is clear that at the time private respondents filed their motion to be restored
to the possession of the contested property on March 13, 1984, the period within
which they could appeal had not yet been perfected.
J. Perfection of an Appeal within the reglementary period mandatory and
jurisdictional; Effect.
It is beyond question that the perfection of an appeal within the statutory or
reglementary period is mandatory and jurisdictional and that failure to so perfect an
appeal renders final and executory the questioned decision. The lapse of the appeal
period deprives the courts of jurisdiction to alter the final judgment and the
prevailing party becomes entitled as a matter of right to its execution and for the
court, it becomes its ministerial duty to order the execution of judgment. (Suan vs.
Unson, et al., G.R. No. L-30716, May 18, 1990. )
642
642
SUPREME COURT REPORTS ANNOTATED
Manner and Period of Perfecting an Appeal Mandatory and Jurisdictional; Timeliness
of the Petition for Certiorari

 II. Appeal by certiorari or petition for certiorari under Rule 65 of the Rules of Court.
Rule 65 provides:
Petition for certiorari.When any tribunal board or officer exercising judicial
functions, has acted without or in excess of its jurisdiction, or with grave abuse of
discretion and there is no appeal, nor any plain, speedy and adequate remedy in the
course of law, a person aggrieved thereby may file a verified petition in the proper
court alleging that the facts with certainty and praying that judgment be rendered
annulling or modifying the proceedings, as the law requires, of such tribunal, board
or officer.
xxx
xxx
xxx
xxx.
A. Timeliness of a petition for certiorari.
Private respondent questions the timeliness of this petition for certiorari, alleging
that the filing by petitioners of the petition on July 28, 1980 was clearly beyond the
thirty (30) day reglementary period within which to appeal or to appeal or to file a
petition for certiorari from such order of denial.
Certain points have to be clarified regarding the two different modes of review, that
of appeal and that of original action for certiorari, which private respondent in his
comment apparently thinks are one and the same. A petition for certiorari under
Rule 65 of the Rules of Court is required to be filed only within a reasonable period,
no time frame being provided in the Rules within which such petition has to be filed.
Moreover, a writ of certiorari is proper only when lack or excess of jurisdiction or
grave abuse of discretion amounting to lack of jurisdiction is committed by the
lower court. (Rules of Court, Rule 65, Sec. 1). On the other hand, under the Rules of
Court then in force, an appeal had to be taken by the defeated party to the Court of
Appeals (provided for in Rule 41) or to the Supreme Court (provided for in Rule 42)
within thirty (30) days from the notice of judgment or order (Rules of Court, Rule 41,
Sec. 3). As distinguished from an action for certiorari, errors of judgment and not
errors of jurisdiction, are reviewable on appeal. (Reas vs. Bonife, et al., G.R. Nos.
54348-49, Oct. 17, 1990. )
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VOL. 197, MAY 29, 1991
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Manner and Period of Perfecting an Appeal Mandatory and Jurisdictional; Timeliness
of the Petition for Certiorari
B. Certiorari not the remedy when appeal is available; Exceptions.
As a rule, errors of judgment or procedure not relating to the courts jurisdiction nor
involving grave abuse of discretion, are not reviewable by certiorari. The court had
repeatedly held that certiorari is not the remedy when appeal is available. However,
there are exceptions to the rule. For instance, certiorari is justified where the trial
judge capriciously and whimsically exercised his judgment, or where an appeal is
not adequate to protect ones rights or where there may be danger of failure of
justice, and in order to prevent irreparable damage and injury to a party. Certiorari
may be availed of where an appeal would be slow, inadequate, insufficient, and will
not promptly relieve a party from the injurious effects of the judgment complained
of, or in order to avoid further litigation. (Preso vs. Court of Appeals, et al., G.R. No.
82215, December 10, 1990.)
C. Proper issues in the special civil action of certiorari.

The Court stresses that it possesses no authority to rule upon non-jurisdictional

issues in a certiorari proceeding. x x x (T)he only question involved in certiorari is
jurisdiction, either want of or in excess thereof x x x.
As defined, certiorari is a special civil action:
a. directed against any tribunal, board or officer exercising judicial function.
b. which is alleged in a verified petition in the proper court
c. to have acted
1. without jurisdiction
2. or in excess of jurisdiction
3. or with grave abuse of discretion
d. there being no appeal, nor any plain, speedy and adequate remedy in the
ordinary course of law
e. for the purpose of annulling or modifying the proceeding. ( Planters Products, Inc.
vs. Court of Appeals, et al., G.R. No. 76591, Feb. 6, 1991. )
644
644
SUPREME COURT REPORTS ANNOTATED
Manner and Period of Perfecting an Appeal Mandatory and Jurisdictional; Timeliness
of the Petition for Certiorari
D. Grave abuse of discretion defined.
By grave abuse of discretion is meant, such capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be
grave as where the power is exercised in an arbitrary or despotic manner by reason
of passion or personal hostility and must be so patent and gross as to amount to an
invasion of positive duty or to a virtual refusal to perform the duty enjoined by or to
act at all in contemplation of law.
A mere error of judgment cannot be the power subject of a special civil action for
certiorari. Erroneous findings and conclusions do not render the appellate court
vulnerable to the corrective writ of certiorari for where the court has jurisdiction
over the case, even if its findings are not correct, they would, at most, constitute
errors of law and not an abuse of discretion correctible by certiorari. A trial judges
error in the analysis of evidence attempted to be introduced, and his rejection
thereof is an error of judgment, not such an error as may be branded a grave abuse
of discretion, i.e., such capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction, against which the writ of certiorari will lie. Where
the court has jurisdiction on the subject matter as respondent judge has in this
case, the orders, or decision upon all questions pertaining to the cause are orders or
decision within its jurisdiction, and however erroneous they may be, they cannot be
corrected by certiorari. ( Planters Products, Inc. vs. Court of Appeals, supra.)
o0o
[MANNER AND PERIOD OF PERFECTING AN APPEAL MANDATORY AND
JURISDICTIONAL; TIMELINESS OF THE PETITION FOR CERTIORARI, 197 SCRA
632(1991)]