SECTION 4.

RULE 41
G.R. No. 174193
SAMUEL JULIAN, represented by his
Attorney-in-Fact, ROBERTO DELA
CRUZ,
Petitioner,

Promulgated:
December 7, 2011

- versus
DEVELOPMENT BANK OF THE
PHILIPPINES and THE CITY SHERIFF,
Respondents.
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FACTS:
Thelma Julian (Thelma), mother of the petitioner Samuel Julian executed a Real Estate Mortgage
of a property in Fuentes Subdivision, Roxas City in favor of the Development Bank of the Philippines (DBP),
herein respondent, to secure her housing loan. She executed a Special Power of Attorney (SPA) appointing
the respondent and its personnel to sell the property in the event of extrajudicial foreclosure.
Subsequently, Thelma died on January 8, 1982. Respondent foreclosed the mortgaged property
because of arrearages in amortizations and sold it at public auction with respondent as the highest bidder.
The property was consolidated a new title was issued in its name.
Actual occupants of the mortgaged property, spouses Ramon de la Cruz and Ruth Julian de la
Cruz, offered to purchase the property. Respondent accepted the offer and executed a Deed of Conditional
Sale. However, spouses De la Cruz failed to pay monthly amortizations, which rescinded the contract.
Before the Writ of Execution could be carried out, petitioner filed a civil case before the Regional
Trial Court (RTC) of Roxas City, for the cancellation of respondents TCT No. T-19303. He contended that
the SPA, which was used to sell the mortgaged property at public auction in 1983, was no longer effective in
view of Thelmas death in 1982. Consequently, the public auction, the resulting Deed of Sale, Affidavit of
Consolidation and TCT No. T-19303 are null and void.
The parties were able to reach a settlement. The RTC directed them to submit a joint motion to
dismiss the case, which they failed to comply after two years. Thus, RTC dismissed the case; however, its
decision was set aside when the petitioner paid ten percent (10%) of respondents claim. The parties were
directed to submit their compromise agreement; however, they again failed to file it in court.
The Regional Trial Court dismissed the case for failure to prosecute. Petitioner, through his new
counsel, filed a Notice of Appeal but failed to pay the docket and other lawful fees.
The CA dismissed the appeal for non-payment of the required docket and other lawful fees
pursuant to Section 1(c), Rule 50 of the Rules of Court. Seeking consideration for his oversight and for
failure of his counsel to advise him, petitioner paid P3, 020.00 as docket fees. He asserted the case of
Yambao, wherein the appellate Court extended the time for the payment of docket fees. The CA denies his
motion for reconsideration.
ISSUE
Whether the court of appeals erred in applying strictly the rules on docket fees.
HELD
The petition lacks merit. Payment of full docket fees within the prescribed period for taking an
appeal is mandatory. The right to appeal is a statutory privilege and must be exercised only in the manner
and in accordance with the provisions of the law. Thus, one who seeks to avail of the right to appeal must
strictly comply with the requirements of the rules, and failure to do so leads to the loss of the right to appeal.
The applicable rule for appeals from judgments issued by the RTC in the exercise of its original
jurisdiction is Rule 41 of the Rules of Court, Section 4 of which provides:
Section 4. Appellate court docket and other lawful fees. - Within the period
for taking an appeal, the appellant shall pay to the clerk of the court, which rendered the

judgment or final order appealed from, the full amount of the appellate court docket and
other lawful fees. Proof of payment of said fees shall be transmitted to the appellate court
together with the original record or the record on appeal.
The Rules provide that failure of the appellant to pay the docket and other lawful fees is a ground
for dismissal of the appeal. The payment of the full amount of docket fees within the prescribed period is
both mandatory and jurisdictional. It is a condition sine qua non for the appeal to be perfected and only then
can a court acquire jurisdiction over the case. The requirement of an appeal fee is not a mere technicality of
law or procedure and should not be undermined except for the most persuasive of reasons. Nonobservance would be tantamount to no appeal being filed thereby rendering the challenged decision,
resolution or order final and executory.
The Court has declared that in appealed cases, failure to pay the appellate court docket fee within
the prescribed period warrants only discretionary as opposed to automatic dismissal of the appeal, and that
the court shall exercise its power to dismiss in accordance with the tenets of justice and fair play and with
great deal of circumspection considering all attendant circumstances.
The reasons presented by petitioner are neither convincing nor adequate to merit leniency.
Petitioners reliance on the policy espoused in the case of Yambao is likewise unavailing. It applies to a
situation where payment of the docket fees was made albeit incomplete. In the instant case, petitioner made
no payment at all. Assuming that Yambao is applicable to petitioners case, still, the Court sees no justifiable
reason to allow this Court to relax the strict application of the Rules. Rules may be relaxed to spare a litigant
of an injustice not commensurate with his failure to comply with the prescribed procedure. The Court finds
that petitioner is under no threat of suffering an injustice. On the contrary, it will be the height of injustice if
the Court accords petitioner leniency and reinstates his appeal, as this would mean further waiting on the
part of the respondent that has long been deprived of its right to possess the property it owns.