Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 172263

July 9, 2008

SPOUSES AUTHER G. KELLEY, JR. and DORIS A. KELLEY, Complainants,

vs.
PLANTERS PRODUCTS, INC. and JORGE A. RAGUTANA, 1 Respondents.
RESOLUTION
CORONA, J.:
Petitioner Auther G. Kelley, Jr. (Auther) acquired agricultural chemical products on consignment from
respondent Planters Products, Inc. (PPI) in 1989. Due to Authers failure to pay despite demand, PPI
filed an action for sum of money against him in the Regional Trial Court of Makati City, Branch 57
(RTC Makati City). This was docketed as Civil Case No. 91-904.
After trial on the merits, the RTC Makati City decided in favor of PPI and issued a writ of execution.
Pursuant thereto, respondent sheriff Jorge A. Ragutana sold on execution real property covered by
TCT No. 15079 located in Naga City. A certificate of sale was issued in favor of PPI as the highest
bidder.
After being belatedly informed of the said sale, petitioners Auther and his wife Doris A. Kelley (Doris)
filed a motion to dissolve or set aside the notice of levy in the RTC Makati City on the ground that the
subject property was their family home which was exempt from execution. Petitioners motion was
denied for failure to comply with the three-day notice requirement.
Subsequently, petitioners filed a complaint for declaration of nullity of levy and sale of the alleged
family home with damages against Ragutana and PPI in the Regional Trial Court of Naga City,
Branch 19 (RTC Naga City). This was docketed as Civil Case No. 2000-0188. The case was,
however, dismissed for lack of jurisdiction and lack of cause of action. The dismissal was upheld by
the CA.
Petitioners now come to us in this petition for review on certiorari contending that the CA erred in
upholding the dismissal of Civil Case No. 2000-0188 by the RTC Naga City. They claim that Doris
was a stranger2 to Civil Case No. 91-904 (in the RTC Makati City) who could not be forced to litigate
therein.
Petitioners anchor their action in Civil Case No. 2000-0188 on their contention that TCT No. 15079 is
the Kelley family home. No doubt, a family home is generally exempt from execution 3 provided it was
duly constituted as such. There must be proof that the alleged family home was constituted jointly by
the husband and wife or by an unmarried head of a family.4 It must be the house where they and
their family actually reside and the lot on which it is situated. 5 The family home must be part of the
properties of the absolute community or the conjugal partnership, or of the exclusive properties of
either spouse with the latters consent, or on the property of the unmarried head of the family.6 The

actual value of the family home shall not exceed, at the time of its constitution, the amount
of P300,000 in urban areas and P200,000 in rural areas.7
Under the Family Code, there is no need to constitute the family home judicially or extrajudicially. All
family homes constructed after the effectivity of the Family Code (August 3, 1988) are constituted as
such by operation of law. All existing family residences as of August 3, 1988 are considered family
homes and are prospectively entitled to the benefits accorded to a family home under the Family
Code.8
The exemption is effective from the time of the constitution of the family home as such and lasts as
long as any of its beneficiaries actually resides therein. 9 Moreover, the debts for which the family
home is made answerable must have been incurred after August 3, 1988. Otherwise (that is, if it was
incurred prior to August 3, 1988), the alleged family home must be shown to have been constituted
either judicially or extrajudicially pursuant to the Civil Code.
The rule, however, is not absolute. The Family Code, in fact, expressly provides for the following
exceptions:
Article 155. The family home shall be exempt from execution, forced sale or attachment except:
(1) For non-payment of taxes;
(2) For debts incurred prior to the constitution of the family home;
(3) For debts secured by a mortgage on the premises before or after such constitution; and
(4) For debts due to laborers, mechanics, architects, builders, materialmen and others who
have rendered service or furnished material for the construction of the building.
xxx

xxx

xxx

Article 160. When a creditor whose claim is not among those mentioned in Article 155 obtains a
judgment in his favor, and he has reasonable grounds to believe that the family home is actually
worth more than the maximum amount fixed in Article 157, he may apply to the court which rendered
the judgment for an order directing the sale of the property under execution. The court shall so order
if it finds that the actual value of the family home exceeds the maximum amount allowed by law as of
the time of its constitution. If the increased actual value exceeds the maximum amount allowed by
law in Article 157 and results from subsequent voluntary improvements introduced by the person or
persons constituting the family home, by the owner or owners of the property, or by any of the
beneficiaries, the same rule and procedure shall apply.
xxx

xxx

xxx

We grant the petition only to the extent of allowing petitioners to adduce evidence in the trial court
that TCT No. 15079 is in fact their family home as constituted in accordance with the requirements of
law. This is in consonance with our ruling in Gomez v. Sta. Ines10 where we held:
[The husband and children] were not parties to the Pasig RTC case and are third-party claimants
who became such only after trial in the previous case had been terminated and the judgment therein
had become final and executory. Neither were they indispensable nor necessary parties in the Pasig
RTC case, and they could not therefore intervene in said case. As strangers to the original case,

respondents cannot be compelled to present their claim with the Pasig RTC which issued the writ of
execution.xxx
In said case, the alleged family home was sold on execution by the sheriff of the Pasig RTC. The
husband and children of the judgment debtor filed a complaint for annulment of sale of the levied
property in Bayombong, Nueva Vizcaya where the alleged family home was situated. As they were
considered strangers to the action filed in the Pasig RTC, we ruled that the Nueva Vizcaya RTC had
jurisdiction over the complaint and that they could vindicate their alleged claim to the levied property
there.11
1avvphi1

WHEREFORE, Civil Case No. 2000-0188 captioned Spouses Auther G. Kelley, Jr. and Doris A.
Kelley v. Planters Products, Inc. and Jorge A. Ragutana is hereby REINSTATED and this case is
hereby REMANDED to the Regional Trial Court of Naga City, Branch 19 for determination whether
or not the property covered by TCT No. 15079 is a duly constituted family home and therefore
exempt from execution.
SO ORDERED.
RENATO C. CORONA
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
Chairperson
ANTONIO T. CARPIO
Associate Justice

ADOLFO S. AZCUNA
Associate Justice

TERESITA J. LEONARDO-DE CASTRO

Associate Justice
C E R TI F I C ATI O N
Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above
resolution had been reached in consultation before the case was assigned to the writer of the
opinion of the Courts Division.
REYNATO S. PUNO
Chief Justice

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION

G.R. No. 108532 March 9, 1999

PABLITO TANEO, JR., JOSE TANEO, NENA T. CATUBIG and HUSBAND, CILIA T. MORING and
HUSBAND,petitioners,
vs.
COURT OF APPEALS and ABDON GILIG, respondents.

KAPUNAN, J.:
The issues in this case are not novel: whether or not the conveyance made by way of the sheriff's
sale pursuant to the writ of execution issued by the trial court in Civil Case No. 590 is prohibited
under Sec. 118 of Commonwealth Act No. 141; and whether or not the family home is exempt from
execution.
As a result of a judgment in Civil Case No. 590 (for recovery of property) in favor of private
respondent, two (2) of petitioners' properties were levied to satisfy the judgment amount of about
P5,000.00: one was a parcel of land located in Barrio Igpit, Municipality of Opol, Misamis Oriental
with an area of about five (5) hectares, and the other was the family home also located at Igpit, Opol,
Misamis Oriental. The subject properties were sold at public auction on February 12, 1966 to the
private respondent as the highest bidder. Consequently, after petitioners' failure to redeem the same,
a final deed of conveyance was executed on February 9, 1968, definitely selling, transferring, and
conveying said properties to the private respondent.
To forestall such conveyance, petitioners filed an action on November 5, 1985 (docketed as Civil
Case No. 10407) to declare the deed of conveyance void and to quiet title over the land with a
prayer for a writ of preliminary injunction. In their complaint, it was alleged that petitioners are the
children and heirs of Pablo Taneo and Narcisa Valaceras who died on February 12, 1977 and
September 12, 1984, respectively. Upon their death, they left the subject property covered by OCT
No. P-12820 and Free Patent No. 548906. Considering that said property has been acquired
through free patent, such property is therefore inalienable and not subject to any encumbrance for
the payment of debt, pursuant to Commonwealth Act No. 141. Petitioners further alleged that they
were in continuous, open and peaceful possession of the land and that on February 9, 1968. Deputy
Provincial Sheriff Jose V. Yasay issued a Sheriffs Deed of Conveyance in favor of the private
respondent over the subject property including their family home which was extrajudicially

constituted in accordance with law. As a result of the alleged illegal deed of conveyance, private
respondent was able to obtain in his name Tax Declaration No. 851920 over the land, thus casting a
cloud of doubt over the title and ownership of petitioners over said property.
Private respondent refuted petitioners' contentions alleging that he lawfully acquired the subject
properties described as Lot No. 5545, Cad. 237 which was a private land, by virtue of a Sheriffs Sale
on February 12, 1996. Said sale has become final as no redemption was made within one year from
the registration of the Sheriffs Certificate of Sale. The validity of the sale in favor of Abdon Gilig was
even confirmed by the Court of Appeals in a related case (CA No. 499965-R) entitled "Arriola v.
Gilig," where one Rufino Arriola also claimed ownership over the subject property.
Private respondent averred that the subject land was originally owned by Lazaro Ba-a who sold the
land to Pablo Taneo on September 18, 1941, as evidenced by an Escritura de Venta. Despite it
being a private land, Pablo Taneo filed an application for free patent which was final only in 1979.
As counterclaim, private respondent alleged that since petitioners are still in possession of the
subject property, he has been deprived of acts of ownership and possession and therefore, prayed
for payment of rentals from February, 1968 until possession has been restored to them.
In its decision of March 27, 1989, the RTC dismissed the complaint.
The dispositive portion thereof reads as follows:
Premises considered, Judgment is hereby rendered in favor of the defendant and
against the plaintiffs, ordering the dismissal of the complaint filed by the plaintiffs;
a) Declaring OCT No. P-12820 and Free Patent No 548906 both in
the name of Pablo Taneo as null and void and directing the Register
of Deeds to cancel the same, without prejudice however on the part
of the defendant to institute legal proceedings for the transfer of the
said title in the name of defendant Abdon Gilig;
b) Declaring Abdon Gilig as the absolute and legal owner of the land
covered by OCT No. P-12820, and covered by Tax Declaration No.
851920, and hence entitled to the possession of the same and as a
necessary concomitant, admonishing the plaintiffs to refrain from
disturbing the peaceful possession of the defendant over the land in
question.
c) Likewise declaring the defendant Abdon Gilig as the true and
absolute owner of the house in question formerly declared under Tax
Declaration No. 4142 in the name of Pablo Taneo and presently
declared under Tax Declaration No 851916 in the name of Abdon
Gilig; ordering the plaintiffs or any of their representatives to vacate
and return the possession of the same to defendant Abdon Gilig;

d) Ordering the plaintiffs, except the nominal parties herein, to pay to

defendant Abdon Gilig the amount of P500.00 a month as reasonable
rental of the house in question to be reckoned from February 9, 1968
until the possession of the same is returned to the defendant.
e) To pay to defendant the amount of P5,000.00 as attorney's fees
and to pay the costs.
SO ORDERED. 1
On appeal, the Court of Appeals affirmed in toto the decision of the RTC.
Hence, this petition.
The petition is devoid of merit.
In resolving the issues, the lower court made the following findings of fact which this Court finds no
cogent reason to disturb:
1. That the land in question originally belonged to Lazaro Ba-a who
sold the same to the late Pablito (sic) Taneo father of the herein
plaintiff on September 18, 1941, by virtue of an Escritura de Venta
identified as Reg. Not. 50; pages 53, Foleo Not. V, Series of 1941 of
the Notarial Register of Ernie Pelaez (Exh. 10);
2. That on July 19, 1951 Abdon Gilig with his wife filed a Civil Case
No. 590 for recovery of property against Pablo Taneo, et al., wherein
Judgment was rendered on June 24, 1964, in favor of Abdon Gilig
and against Pablo Taneo ordering the latter to pay damages in the
amount of P5,000.00 (Exh. 2);
3. That by virtue of said decision, a writ of Execution was issued on
November 22, 1965 against the properties of Pablo Taneo and on
December 1, 1965, a Notice of Levy was executed by the Clerk of
Court Pedro Perez wherein the properties in question were among
the properties levied by the Sheriff (Exh 3);
4. That the said properties were sold at public auction wherein the
defendant Abdon Gilig came out as the highest bidder and on
February 12, 1965, a Sheriffs Certificate of Sale was executed by ExOficio Provincial Sheriff Pedro Perez (Exh. 1) ceding the said
properties in favor of Abdon Gilig and which Certificate of Sale was
registered with the Register of Deeds on March 2, 1966;
5. That for failure to redeem the said property within the reglementary
period, a Sheriffs final Deed of Conveyance was executed by same

Provincial Sheriff Jose V. Yasay on February 1968, (Exhs. 4, 4-A)

conveying the property definitely to Abdon Gilig.
6. That on April 20, 1966, after his third-party claim which he filed with
the Sheriff in Civil Case No. 590 was not given due course, Rufino
Arriola filed Civil Case No. 2667 entitledArriola vs. Abdon Gilig, et al.,
for Recovery of Property and/or annulment of Sale with Damages;
7. That Judgment was rendered by the Court thru Judge Bernardo
Teves dismissing the case with costs on February 21, 1969;
8. That said decision was appealed to the Court of Appeals which
affirmed the decision in toto on June 20, 979, declaring the alleged
Deed of Sale executed by Abdon Gilig in favor of the plaintiff as null
and void for being simulated or fictitious and executed in fraud or (sic)
creditors;
9. That on March 7, 1964, Pablo Taneo constituted the house in
question erected on the land of Plutarco Vacalares as a family home
(Exh. F) but was however, notarized only on May 2, 1965 and
registered with the Register of Deeds on June 24, 1966.
10. That in the meanwhile, unknown to the defendant, Pablo Taneo
applied for a free patent on the land in question which was approved
on October 13, 1973, (Exh. B) and the Patent and Title issued on
December 10, 1980 (Oct No. P-12820 - Exh. 12);
11. On November 3, 1985, the plaintiff filed the present action.

Petitioners contend that under Section 118 of Commonwealth Act No. 141, the subject land which
they inherited from their father under free patent cannot be alienated or encumbered in violation of
the law. Citing in particular the cases of Oliveros v. Porciongcola 3 and Gonzaga v. Court of
Appeals, 4 the execution or auction sale of the litigated land falls within the prohibited period and is.
likewise, a disavowal of the rationale of the law which is to give the homesteader or patentee every
chance to preserve for himself and his family the land which the State had gratuitously given to him as a
reward for his labor in cleaning and cultivating it. 5
We are not unmindful of the intent of the law. In fact, in Republic v. Court of Appeals, 6 the Court
elucidated, to wit:
It is well-known that the homestead laws were designed to distribute disposable
agricultural lots of the State to land-destitute citizens for their home and cultivation.
Pursuant to such benevolent intention the State prohibits the sale or encumbrance of
the homestead (Section 116) within five years after the grant of the patent. After that
five-year period the law impliedly permits alienation of the favor homestead; but in
line with the primordial purpose to favor the homesteader and his family the statute

provides that such alienation or conveyance (Section 117) shall be subject to the
right of repurchase by the homesteader, his widow of heirs within five years. This
Section 117 is undoubtedly a complement of Section 116. It aims to preserve and
keep in the family of the homesteader that portion of public land which the State had
gratuitously given to him. It would, therefore, be in keeping with this fundamental idea
to hold, as we hold, that the right to repurchase exists not only when the original
homesteader makes the conveyance, but also when it is made by his widow or heirs.
This construction is clearly deducible from the terms of the statute.
The intent of the law is undisputable but under the facts of the case, the prohibition invoked by the
petitioners under Section 118 does not apply to them.
Sec. 118 of Commonwealth Act No. 141 reads:
Except in favor of the Government or any of its branches, units or institution, or
legally constituted banking corporations, lands acquired under free patent or
homestead provisions shall not be subject to encumbrance or alienation from the
date of the approval of the application and for a term of five years from and after the
date of issuance of the patent or grant, nor shall they become liable to the
satisfaction of any debt contracted prior to the expiration of said period, but the
improvements or crops on the land may be mortgaged or pledged to qualified
persons, associations, or corporations.
xxx xxx xxx
The prohibition against alienation of lands acquired by homestead or free patent commences on the
date of the approval of the application for free patent and the five-year period is counted from the
issuance of the patent. The reckoning point is actually the date of approval of the application.
In Amper v. Presiding Judge, 7 the Court held that:
. . . The date when the prohibition against the alienation of lands acquired by
homesteads or free patents commences is "the date of the approval of the
application" and the prohibition embraces the entire five-year period "from and after
the date of issuance of the patent or, grant." As stated inBeniga v. Bugas, (35 SCRA
111), the provision would make no sense if the prohibition starting "from the date of
the approval of the application" would have no termination date.
The specific period of five years within which the alienation or encumbrance of a
homestead is restricted starts to be computed from the date of the issuance of the
patent. But the prohibition of alienation commences from the date the application is
approved which comes earlier. (Emphasis ours.)
Following this ruling, we agree with the respondent court that the conveyance made by way of the
sheriff's sale was not violative of the law. The judgment obligation of the petitioners against Abdon
Gilig arose on June 24, 1964. The properties were levied and sold at public auction with Abdon Gilig
as the highest bidder on February 12, 1966. On February 9, 1968, the final deed of conveyance

ceding the subject property to Abdon Gilig was issued after the petitioners failed to redeem the
property after the reglementary period. Pablo Taneo`s application for free parent was approved only
on October 19, 1973.
The sequence of the events leads us to the inescapable conclusion that even before the application
for homestead had been approved, Pablo Taneo was no longer the owner of the land. The deed of
conveyance issued on February 9, 1968 finally transferred the property to Abdon Gilig. As of that
date, Pablo Taneo did not actually have transferred to herein petitioners. The petitioners are not the
owners of the land and cannot claim to be such by invoking Commonwealth Act No. 141. The
prohibition does not apply since it is clear from the records that the judgment debt and the execution
sale took place prior to the approval of the application for free patent. We quote with favor the
respondent court's valid observation on the matter:
. . . the application of Pablo Taneo for a free patent was approved only on 19 October
1973 and Free Patent was issued on 10 December 1980. Under the aforecited
provision, the subject land could not be made liable for the satisfaction of any debt
contracted from the time of the application and during the 5-year period following 10
December 1980, or until 10 December 1985. However, debts contracted prior to the
approval of the application for free patent, that is prior to 18 October 1973, are not
covered by the prohibition. This is because they do not fall within the scope of the
prohibited period. In this case, the judgment debt in favor of defendant-appellee was
rendered on 24 June 1964, the writ of execution issued on 22 November 1965,
notice of levy made on 1 December 1965, the execution sale held on 12 February
1966, and the certificate of sale registered on 2 March 1966, all before Pablo Taneo's
application for free patent was approved on 19 October 1973. The execution,
therefore, was not violative of the law. 8
Anent the second issue, petitioners aver that the house which their father constituted as family home
is exempt from execution. In a last ditch effort to save their property, petitioners invoke the benefits
accorded to the family home under the Family Code.
A family home is the dwelling place of a person and his family. It is said, however, that the family
home is a real right, which is gratuitous, inalienable and free from attachment, constituted over the
dwelling place and the land on which it is situated, which confers upon a particular family the right to
enjoy such properties, which must remain with the person constituting it and his heirs. 9 It cannot be
seized by creditors except in certain specials cases.
Under the Civil Code (Articles 224 to 251), a family home may be constituted judicial and
extrajudicially, the former by the filing of the petition and with the approval of the proper court, and
the latter by the recording of a public instrument in the proper registry of property declaring the
establishment of the family home. The operative act then which created the family home
extrajudicially was the registration in the Registry of Property of the declaration prescribed by Articles
240 and 241 of the Civil Code. 10

Under the Family Code, however. registration was no longer necessary Article 153 of the Family
Code provides that the family home is deemed constituted on a house and lot from the time it is
occupied in the family. It reads:
The family home is deemed constituted on a house and lot from the time it is
occupied as family residence. From the time of its constitution and so long as its
beneficiaries actually resides therein, the family home continues to be such and is
exempt from execution, forced sale or attachment, except as hereinafter provided
and to the extent of the value allowed by law.
It is under the foregoing provision which petitioners seek refuge to avert execution of the family
home arguing that as early as 1964, Pablo Taneo had already constituted the house in question as
their family home. However, the retroactive effect of the Family Code, particularly on the provisions
on the family home has been clearly laid down by the court as explained in the case of Manacop v.
Court of Appeals 11 to wit:
Finally, the petitioner insists that the attached property is a family home, having been
occupied by him and his family since 1972, and is therefore exempt from attachment.
The contention is not well-taken.
While Article 153 of the Family Code provides that the family home is deemed
constituted on a house and lot from the time it is occupied as a family residence, it
does not mean that said article has a retroactive effect such that all existing family
residences, petitioner's included, are deemed to have been constituted as family
homes at the time of their occupation prior to the effectivity of the Family Code and
henceforth, are exempt from execution for the payment of obligations incurred before
the effectivity of the Family Code on August 3, 1988 (Mondequillo vs. Breva, 185
SCRA 766). Neither does Article 162 of said Code state that the provisions of
Chapter 2, Title V thereof have retroactive effect. It simply means that all existing
family residences at the time of the effectivity of the Family Code are considered
family homes and are prospectively entitled to the benefits accorded to a family
home under the Family Code (Modequillo vs. Breva, supra). Since petitioner's debt
was incurred as early as November 25, 1987, it preceded the effectivity of the Family
Code. His property is therefore not exempt from attachment (Annex "O," Plaintiff's
Position Paper and Memorandum of Authorities, p. 78)." (pp. 5-6, Decision; pp. 6465, Rollo) (emphasis ours)
The applicable law, therefore. in the case at bar is still the Civil Code where registration of the
declaration of a family home is a prerequisite. Nonetheless, the law provides certain instances where
the family home is not exempted from execution, forced sale or attachment.
Art. 243 reads:
The family home extrajudicially formed shall be exempt from execution, forced sale
or attachment,except:

(1) For nonpayment of taxes;

(2) For debts incurred before the declaration was recorded in the Registry of
Property;
(3) For debts secured by mortgages on the premises before or after such record of
the declaration;
(4) For debts due to laborers, mechanics, architects, builders, material-men and
others who have rendered service or furnished material for the construction of the
building. 12
The trial court found that on March 7, 1964, Pablo Taneo constituted the house in question, erected
on the land of Plutarco Vacalares, as the family home. The instrument constituting the family home
was registered only on January 24, 1966. The money judgment against Pablo Taneo was rendered
on January 24, 1964. Thus, at that time when the "debt" was incurred, the family home was not yet
constituted or even registered. Clearly, petitioners' alleged family home, as constituted by their father
is not exempt as it falls under the exception of Article 243 (2).
Moreover, the constitution of the family home by Pablo Taneo is even doubtful considering that such
constitution did not comply with the requirements of the law. The trial court found that the house was
erected not on the land which the Taneos owned but on the land of one Plutarco Vacalares. By the
very definition of the law that the "family home is the dwelling house where a person and his family
resides and the land on which it is situated," 13it is understood that the house should be constructed on
a land not belonging to another. Apparently, the constitution of a family home by Pablo Taneo in the
instant case was merely an afterthought in order to escape execution of their property but to no avail.
WHEREFORE, the petition is DENIED for lack of merit.
SO ORDERED.
Davide, Jr., C.J., Melo and Pardo, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION

G.R. No. 178288

August 15, 2012

SPOUSES CHARLIE FORTALEZA and OFELIA FORTALEZA, Petitioners,

vs.
SPOUSES RAUL LAPITAN and RONA LAPITAN, Respondents.
DECISION
DEL CASTILLO, J.:
Unless a case falls under recognized exceptions provided by law and jurisprudence, courts should
maintain the ex parte, non-adversarial, summary and ministerial nature of the issuance of a writ of
possession.
Assailed in this Petition for Review on Certiorari1 under Rule 45 of the Rules of Court is the
Decision2 of the Court of Appeals (CA) dated January 10, 2007 in CA-G.R. CV No. 86287 which
affirmed the Order3 of the Regional Trial Court (RTC) of Calamba City Branch 35, dated September
16, 2005 in SLRC Case No. 2528-2004-C granting an ex parte petition for the issuance of writ of
possession. Likewise assailed is the CA Resolution4 dated June 6, 2007 which denied the Motion for
Reconsideration5 of the said assailed Decision.
Factual Antecedents
Spouses Charlie and Ofelia Fortaleza (spouses Fortaleza) obtained a loan from spouses Rolando
and Amparo Lapitan (creditors) in the amount of P1.2 million subject to 34% interest per annum. As
security, spouses Fortaleza executed on January 28, 1998 a Deed of Real Estate Mortgage 6 over
their residential house and lot situated in Barrio Anos, Municipality of Los Baos, Laguna (subject
property) registered under Transfer Certificate of Title (TCT) No. T-412512. 7
When spouses Fortaleza failed to pay the indebtedness including the interests and penalties, the
creditors applied for extrajudicial foreclosure of the Real Estate Mortgage before the Office of the
Clerk of Court and Ex-Officio Sheriff of Calamba City. The public auction sale was set on May 9,
2001.
At the sale, the creditors son Dr. Raul Lapitan and his wife Rona (spouses Lapitan) emerged as the
highest bidders with the bid amount of P2.5 million. Then, they were issued a Certificate of
Sale8 which was registered with the Registry of Deeds of Calamba City and annotated at the back of
TCT No. T-412512 under Entry No. 615683 on November 15, 2002.9
The one-year redemption period expired without the spouses Fortaleza redeeming the mortgage.
Thus, spouses Lapitan executed an affidavit of consolidation of ownership on November 20, 2003
and caused the cancellation of TCT No. T-412512 and the registration of the subject property in their
names under TCT No. T-53594510 on February 4, 2004. Despite the foregoing, the spouses
Fortaleza refused spouses Lapitans formal demand11 to vacate and surrender possession of the
subject property.

Proceedings before the Regional Trial Court

On August 27, 2004, spouses Lapitan filed an ex parte petition for the issuance of writ of possession
with Branch 35 of the RTC of Calamba City docketed as SLRC Case No. 2528-2004-C. 12 As new
registered owners of the subject property, spouses Lapitan claimed that they were entitled to its
possession pursuant to Section 7 of Act No. 3135, 13 as amended by Act No. 4118.
In their opposition,14 spouses Fortaleza questioned the validity of the real estate mortgage and the
foreclosure sale. They argued that the mortgage was void because the creditors bloated the
principal amount by the imposition of exorbitant interest. Spouses Fortaleza added that the
foreclosure proceeding was invalid for non-compliance with the posting requirement.
Later, for repeated failure of spouses Fortaleza to appear at the scheduled hearings, the RTC
allowed spouses Lapitan to present evidence ex parte.
Eventually, on September 16, 2005, the RTC ordered the issuance of a writ of possession explaining
that it is a ministerial duty of the court especially since the redemption period had expired and a new
title had already been issued in the name of the spouses Lapitan, thus:
WHEREFORE, premises considered, the Opposition with counterclaim filed by the respondents is
denied while this instant petition is hereby granted.
Accordingly, the Branch Clerk of Court is hereby ordered to issue a Writ of Possession directing the
provincial sheriff of Laguna to place the petitioner in possession of the above described property free
from any adverse occupants thereof.
SO ORDERED.15
Spouses Fortaleza moved for reconsideration,16 claiming that the subject property is their family
home and is exempt from foreclosure sale. On October 11, 2005, however, the RTC issued an
Order17 denying their motion. Accordingly, the branch clerk of court issued the Writ of
Possession18 and the sheriff served the corresponding Notice to Vacate19 against spouses Fortaleza.
Proceedings before the Court of Appeals
Dissatisfied, spouses Fortaleza elevated the case to the CA via Rule 41 of the Rules of Court
docketed as CA-G.R. CV No. 86287. With the perfection of an appeal, the RTC held in abeyance the
implementation of the writ.20After the parties submitted their respective briefs, the CA rendered the
assailed Decision21 dated January 10, 2007 dismissing the appeal:
WHEREFORE, the appeal is hereby DISMISSED. The Order dated September 16, 2005 of the
Regional Trial Court, Branch 35, Calamba City in SLRC Case No. 2528-2004-SC, is AFFIRMED.
The court a quo is DIRECTED to enforce the Writ of Possession it issued on October 24, 2005.
SO ORDERED.22

In affirming the ruling of the RTC, the CA stressed that any question regarding the regularity and
validity of the mortgage or its foreclosure cannot be raised as a justification for opposing the
issuance of the writ of possession since the proceedings is ex parte and non-litigious. Moreover, until
the foreclosure sale is annulled, the issuance of the writ of possession is ministerial.
Issues
Unsuccesful with their quest to have the CA reconsider its Decision, 23 spouses Fortaleza filed this
petition for review on certiorari24 raising the following errors:
I
WHETHER X X X THE HONORABLE COURT OF APPEALS VIOLATED THE TWO (2)-RAFFLE
RULE PRESCRIBED BY AND LONG ESTABLISHED UNDER THE REVISED INTERNAL RULES
OF THE COURT OF APPEALS WHEN IT IMMEDIATELY RENDERED THE ASSAILED DECISION
BARELY AFTER THE SUBMISSION OF THE PARTIES BRIEFS. IN SO DOING, THE HONORABLE
COURT OF APPEALS ENGAGED IN PROCEDURAL SHORTCUTS AND ACTED WITH UNDUE
HASTE AND INDECENT SPEED, THUS RENDERING ITS DECISION AS NULL AND VOID AND
CHARACTERIZED BY MANIFEST BIAS AND PARTIALITY TO THE RESPONDENTS.
II
WHETHER X X X THE HONORABLE COURT OF APPEALS COMMITTED A SERIOUS
REVERSIBLE ERROR IN UPHOLDING THE TRIAL COURTS ISSUANCE OF A WRIT OF
POSSESSION DESPITE THE FACT THAT THE RESPONDENTS FAILED TO ESTABLISH THEIR
ENTITLEMENT TO THE ISSUANCE OF SAID WRIT, THE NON-COMPLIANCE BY THE ORIGINAL
MORTGAGORS AND THE RESPONDENTS OF THE STATUTORY REQUIREMENTS OF
EXTRAJUDICIAL FORECLOSURE OF MORTGAGE UNDER ACT NO. 3135, AND THE FATAL
DEFECTS OF THE FORECLOSURE PROCEEDINGS.
III
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN NOT HOLDING THAT THE
PETITIONERS WERE PREVENTED BY THE RESPONDENTS FROM EXERCISING THEIR RIGHT
OF REDEMPTION OVER THE FORECLOSED PROPERTY BY DEMANDING A REDEMPTION
PRICE OF A HIGHLY INEQUITABLE AND MORE THAN DOUBLE THE AMOUNT OF THE
FORECLOSED PROPERTY, ESPECIALLY THAT THE FORECLOSED MORTGAGED PROPERTY
IS THE FAMILY HOME OF PETITIONERS AND THEIR CHILDREN.25
First, spouses Fortaleza point out that the CA violated its own 2002 Internal Rules of Procedure
when it decided the case without passing the two-raffle system. They claim that the justice assigned
in the completion stage also decided the case on the merits. This procedural shortcut, according to
spouses Fortaleza, evinces the appellate courts bias and prejudgment in favor of the spouses
Lapitan.

Second, citing Barican v. Intermediate Appellate Court26 and Cometa v. Intermediate Appellate
Court,27 and reiterating the irregularities that allegedly attended the foreclosure sale, the spouses
Fortaleza insist that the issuance of writ of possession is not always ministerial and the trial court
should have accorded them opportunity to present contrary evidence.
Last, spouses Fortaleza maintain that the subject property is a family home exempt from forced sale.
Hence, in the spirit of equity and following the rulings in Tolentino v. Court of Appeals, 28 and De los
Reyes v. Intermediate Appellate Court,29 the Court should allow them to exercise the right of
redemption even after the expiration of the one-year period.
Our Ruling
On Matters of Procedure
True, under the 2002 Internal Rules of the Court of Appeals (IRCA), appealed civil cases undergo
two-raffle system. First, a preliminary raffle is held to determine the Justice to whom the case will be
assigned for completion of records. After completion, a second raffle is conducted to determine the
Justice to whom the case will be assigned for study and report. "Each stage is distinct and it may
happen that the Justice to whom the case was initially raffled for completion may not be the same
Justice who will write the decision thereon."30
Thus:
Section 2. Raffle of Cases.
(a) Assignment of cases to a Justice, whether for completion of records or for study and report, shall
be by raffle, subject to the following rules:
(1) Appealed cases for completion of records shall be raffled to individual Justices; (Sec.
5(a), Rule 3, RIRCA [a])
(1.1) Records are deemed completed upon filing of the required briefs or memoranda
or the expiration of the period for the filing thereof and resolution of all pending
incidents. Thereupon, the Division Clerk of Court shall report the case to the Justice
concerned for the issuance of a resolution declaring the case submitted for decision
and referring the same to the Raffle Committee for raffle to a Justice for study and
report; (Sec. 5(b), Rule 3, RIRCA [a]).31 (Emphasis supplied.)
However, the two-raffle system is already abandoned under the 2009 IRCA. As the rule now stands,
the Justice to whom a case is raffled shall act on it both at the completion stage and for the decision
on the merits, thus:
SEC. 2. Raffle of Cases.
(a) Cases shall be assigned to a Justice by raffle for completion of records, study and report, subject
to the following rules:

(1) Cases, whether original or appealed, shall be raffled to individual justices;

(1.1) Records are deemed completed upon filing of the required pleadings, briefs or
memoranda or the expiration of the period for the filing thereof and resolution of all
pending incidents. Upon such completion, the Division Clerk of Court shall report the
case to the Justice concerned for the issuance of a resolution declaring the case
submitted for decision.32 (Emphasis supplied.)
Corollarily, the alleged defect in the processing of this case before the CA has been effectively cured.
We stress that rules of procedure may be modified at any time and become effective at once, so
long as the change does not affect vested rights.33 Moreover, it is equally axiomatic that there are no
vested rights to rules of procedure.34Thus, unless spouses Fortaleza can establish a right by virtue of
some statute or law, the alleged violation is not an actionable wrong. 35 At any rate, the 2002 IRCA
does not provide for the effect of non-compliance with the two-raffle system on the validity of the
decision. Notably too, it does not prohibit the assignment by raffle of a case for study and report to a
Justice who handled the same during its completion stage.
We also find that personal bias and prejudgment cannot be inferred from the alleged breach of
internal rules. It is settled that clear and convincing evidence is required to prove bias and
prejudice.36 Bare allegations and mere suspicions of partiality are not enough in the absence of
evidence to overcome the presumption that a member of the court will undertake his noble role to
dispense justice according to law and evidence and without fear or favor.37 Moreover, no acts or
conduct of the division or the ponente was shown to indicate any arbitrariness against the spouses
Fortaleza. What is extant is that the opinions formed in the course of judicial proceedings are all
based on the evidence presented.
On the Issuance of Writ of Possession
Spouses Fortaleza claim that the RTC grievously erred in ignoring the apparent nullity of the
mortgage and the subsequent foreclosure sale. For them, the RTC should have heard and
considered these matters in deciding the case on its merits. They relied on the cases of
Barican38 and Cometa39 in taking exception to the ministerial duty of the trial court to grant a writ of
possession.
But the cited authorities are not on all fours with this case. In Barican, we held that the obligation of a
court to issue a writ of possession ceases to be ministerial if there is a third party holding the
property adversely to the judgment debtor. Where such third party exists, the trial court should
conduct a hearing to determine the nature of his adverse possession. And in Cometa, there was a
pending action where the validity of the levy and sale of the properties in question were directly put
in issue which this Court found pre-emptive of resolution. For if the applicant for a writ of possession
acquired no interest in the property by virtue of the levy and sale, then, he is not entitled to its
possession. Moreover, it is undisputed that the properties subject of said case were sold at an
unusually lower price than their true value. Thus, equitable considerations motivated this Court to
withhold the issuance of the writ of possession to prevent injustice on the other party.

Here, there are no third parties holding the subject property adversely to the judgment debtor. It was
spouses Fortaleza themselves as debtors-mortgagors who are occupying the subject property. They
are not even strangers to the foreclosure proceedings in which the ex parte writ of possession was
applied for. Significantly, spouses Fortaleza did not file any direct action for annulment of the
foreclosure sale of the subject property. Also, the peculiar circumstance of gross inadequacy of the
purchase price is absent.
Accordingly, unless a case falls under recognized exceptions provided by law 40 and
jurisprudence,41 we maintain the ex parte, non-adversarial, summary and ministerial nature of the
issuance of a writ of possession as outlined in Section 7 of Act No. 3135, as amended by Act No.
4118, which provides:
SECTION 7. In any sale made under the provisions of this Act, the purchaser may petition the Court
of First Instance of the province or place where the property or any part thereof is situated, to give
him possession thereof during the redemption period, furnishing bond in an amount equivalent to the
use of the property for a period of twelve months, to indemnify the debtor in case it be shown that
the sale was made without violating the mortgage or without complying with the requirements of this
Act. Such petition shall be made under oath and filed in form of an ex parte motion x x x and the
court shall, upon approval of the bond, order that a writ of possession issue, addressed to the sheriff
of the province in which the property is situated, who shall execute said order immediately.
(Emphasis supplied.)
Under the provision cited above, the purchaser in a foreclosure sale may apply for a writ of
possession during the redemption period. Notably, in this case, the one-year period for the spouses
Fortaleza to redeem the mortgaged property had already lapsed. Furthermore, ownership of the
subject property had already been consolidated and a new certificate of title had been issued under
the name of the spouses Lapitan. Hence, as the new registered owners of the subject property, they
are even more entitled to its possession and have the unmistakable right to file an ex parte motion
for the issuance of a writ of possession. As aptly explained in Edralin v. Philippine Veterans
Bank,42 the duty of the trial court to grant a writ of possession in such instances is ministerial, and the
court may not exercise discretion or judgment, thus:
Consequently, the purchaser, who has a right to possession after the expiration of the redemption
period, becomes the absolute owner of the property when no redemption is made. x x x The
purchaser can demand possession at any time following the consolidation of ownership in his name
and the issuance to him of a new TCT. After consolidation of title in the purchasers name for failure
of the mortgagor to redeem the property, the purchasers right to possession ripens into the absolute
right of a confirmed owner. At that point, the issuance of a writ of possession, upon proper
application and proof of title becomes merely a ministerial function. Effectively, the court cannot
exercise its discretion. (Emphasis in the original.)
In this case, spouses Lapitan sufficiently established their right to the writ of possession. More
specifically, they presented the following documentary exhibits: (1) the Certificate of Sale and its
annotation at the back of spouses Fortalezas TCT No. T-412512; (2) the Affidavit of Consolidation
proving that spouses Fortaleza failed to redeem the property within the one-year redemption period;

(3) TCT No. T-535945 issued in their names; and, (4) the formal demand on spouses Fortaleza to
vacate the subject property.
Lastly, we agree with the CA that any question regarding the regularity and validity of the mortgage
or its foreclosure cannot be raised as a justification for opposing the petition for the issuance of the
writ of possession.43 The said issues may be raised and determined only after the issuance of the
writ of possession.44Indeed, "[t]he judge with whom an application for writ of possession is filed need
not look into the validity of the mortgage or the manner of its foreclosure." 45 The writ issues as a
matter of course. "The rationale for the rule is to allow the purchaser to have possession of the
foreclosed property without delay, such possession being founded on the right of ownership." 46 To
underscore this mandate, Section 847 of Act No. 3135 gives the debtor-mortgagor the right to file a
petition for the setting aside of the foreclosure sale and for the cancellation of a writ of possession in
the same proceedings where the writ was issued within 30 days after the purchaser-mortgagee was
given possession. The courts decision thereon may be appealed by either party, but the order of
possession shall continue in effect during the pendency of the appeal.
"Clearly then, until the foreclosure sale of the property in question is annulled by a court of
competent jurisdiction, the issuance of a writ of possession remains the ministerial duty of the trial
court. The same is true with its implementation; otherwise, the writ will be a useless paper judgment
a result inimical to the mandate of Act No. 3135 to vest possession in the purchaser immediately." 48
On exemption of the subject property
and the exercise of right of redemption
Spouses Fortalezas argument that the subject property is exempt from forced sale because it is a
family home deserves scant consideration. As a rule, the family home is exempt from execution,
forced sale or attachment.49However, Article 155(3) of the Family Code explicitly allows the forced
sale of a family home "for debts secured by mortgages on the premises before or after such
constitution." In this case, there is no doubt that spouses Fortaleza voluntarily executed on January
28, 1998 a deed of Real Estate Mortgage over the subject property which was even notarized by
their original counsel of record. And assuming that the property is exempt from forced sale, spouses
Fortaleza did not set up and prove to the Sheriff such exemption from forced sale before it was sold
at the public auction. As elucidated in Honrado v. Court of Appeals:50
While it is true that the family home is constituted on a house and lot from the time it is occupied as a
family residence and is exempt from execution or forced sale under Article 153 of the Family Code,
such claim for exemption should be set up and proved to the Sheriff before the sale of the property
at public auction. Failure to do so would estop the party from later claiming the exemption. As this
Court ruled in Gomez v. Gealone:
Although the Rules of Court does not prescribe the period within which to claim the exemption, the
rule is, nevertheless, well-settled that the right of exemption is a personal privilege granted to the
judgment debtor and as such, it must be claimed not by the sheriff, but by the debtor himself at the
time of the levy or within a reasonable period thereafter.51 (Emphasis supplied.)

Certainly, reasonable time for purposes of the law on exemption does not mean a time after the
expiration of the one-year period for a judgment debtor to redeem the property.52
Equally without merit is spouses Fortalezas reliance on the cases of Tolentino53 and De Los
Reyes54 in praying for the exercise of the right of redemption even after the expiration of the one-year
period. In Tolentino, we held that an action to redeem filed within the period of redemption, with a
simultaneous deposit of the redemption money tendered to the sheriff, is equivalent to an offer to
redeem and has the effect of preserving the right to redemption for future enforcement even beyond
the one-year period.55 And in De Los Reyes, we allowed the mortgagor to redeem the disputed
property after finding that the tender of the redemption price to the sheriff was made within the oneyear period and for a sufficient amount.
The circumstances in the present case are far different. The spouses Fortaleza neither filed an
action nor made a formal offer to redeem the subject property accompanied by an actual and
simultaneous tender of payment. It is also undisputed that they allowed the one-year period to lapse
from the registration of the certificate of sale without redeeming the mortgage. For all intents and
purposes, spouses Fortaleza have waived or abandoned their right of redemption.
1wphi1

Although the rule on redemption is liberally interpreted in favor of the original owner of the property,
we cannot apply the privilege of liberality to accommodate the spouses Forteza due to their
negligence or omission to exercise the right of redemption within the prescribed period without
justifiable cause.
WHEREFORE, premises considered, the petition is DENIED. The Decision dated January 10, 2007
and Resolution dated June 6, 2007 of the Court of Appeals in CA-G.R. CV No. 86287
are AFFIRMED.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 172299

April 22, 2008

ALFREDO TAGLE, petitioner,

vs.
EQUITABLE PCI BANK (Formerly Philippine Commercial International Bank) and the

HONORABLE HERMINIA V. PASAMBA, Acting Presiding Judge, Regional Trial Court-Branch

82, City of Malolos, Bulacan, respondents.
DECISION
CHICO-NAZARIO, J.:
This Petition for Certiorari under Rule 65 of the Revised Rules of Court filed by petitioner Alfredo
Tagle (petitioner Alfredo) stemmed from the following Resolutions promulgated by the Court of
Appeals: (1) the 6 September 2005 Resolution1 dismissing the Petition for Certiorari filed by
petitioner Alfredo, docketed as CA-G.R. SP No. 90461, assailing the 4 April 2005 Order of the
Regional Trial Court (RTC), Branch 82, City of Malolos, Bulacan, in LRC Case No. P-71-2004 2; (2)
the 16 February 2006 Resolution3 denying petitioner Alfredos Motion for Reconsideration; and (3)
the 11 April 2006 Resolution4 denying petitioner Alfredos Second Motion for Reconsideration. 5
Petitioner Alfredo urges this Court to set aside, on the ground of grave abuse of discretion
amounting to lack or excess of jurisdiction, the 4 April 2005 Order6 of the RTC in LRC Case No. P71-2004, which denied petitioner Alfredos Motion to Stop Writ of Possession. He prays that this
Court certify "for review with prayer for preliminary injunction to stop the writ of possession [of] the
property located at Concepcion Subdivision, Baliuag, Bulacan and embraced in Transfer Certificate
of Title No. T-143715 of the Registry of Deeds for the Province of Bulacan [subject property] and
after due hearing, let judgment be rendered annulling or modifying the proceedings of the Honorable
Regional Trial Court Branch 82, [City of Malolos, Bulacan,] and the Court of Appeals as the law
requires with costs."7
According to petitioner Alfredo, the subject property is registered in his name and was constituted as
a Family Home in accordance with the provisions of the Family Code. He and his wife Arsenia
Bautista Tagle (Arsenia) never mortgaged the subject property to respondent Equitable PCI Bank
(respondent E-PCI) whether before or after the subject property was constituted as their Family
Home. It was Josefino Tagle (Josefino), who was not the owner of the subject property, who
mortgaged the same with respondent E-PCI. Josefino was religiously paying the installments on his
mortgage obligation and had paid more than half thereof. Josefino, however, passed away.
Petitioner Alfredo was then forced to assume Josefinos outstanding mortgage obligation. Even as
petitioner Alfredo was already paying Josefinos mortgage obligation in installments, respondent EPCI still foreclosed the mortgage on the subject property. 8
On the other hand, respondent E-PCI recounts that the subject property was formerly registered in
the name of petitioner Alfredo. It was mortgaged, pursuant to a Special Power of Attorney executed
by petitioner Alfredo, to secure the obligation of the spouses Josefino and Emma Tagle with
respondent E-PCI. Respondent E-PCI foreclosed the mortgage on the subject property upon default
in payment by spouses Josefino and Emma, and upon the expiration of the period of redemption,
caused the consolidation and transfer of the title to the subject property in its name. Consequently,
respondent E-PCI filed with the RTC a Petition for Issuance of Writ of Possession of the subject
property, which was docketed as LRC Case No. P-71-2004. Petitioner Alfredo, however, filed a
Motion to Stop Writ of Possession on the ground that the subject property is a Family Home which is
exempt from execution, forced sale or attachment. 9

On 4 April 2005, the RTC issued the assailed Order denying petitioner Alfredos Motion, the
dispositive part of which reads:
WHEREFORE, premises considered, the Motion to Stop Writ of Possession is hereby
DENIED.
In denying the motion, the RTC held that:
In the case at bar, the mortgage transaction happened on May 9, 1997 (Exhibit D), after the
effectivity of the Family Code.
With Article 155 in application, it is crystal clear that this instant case does not fall under the
exemptions from execution provided in the Family Code, as the case stemmed from the
mortgage transaction entered into between the [herein respondent E-PCI] and [herein
petitioner Alfredo and his spouse Arsenia] dating back in (sic) 1997. This fact will militate
against the so-called exemption by sheer force of exclusion embodied in said article. Hence,
the laws protective mantle cannot be availed of by [petitioner Tagle and his spouse
Arsenia].10
Petitioner Alfredo and his spouse Arsenia filed with the RTC a Motion for Reconsideration of its
foregoing order. However, it was likewise denied by the RTC in another Order11 dated 21 June 2005.
Thereafter, petitioner Alfredo12 elevated the case to the Court of Appeals on a Petition
for Certiorari [and Prohibition] under Rule 65 of the Revised Rules of Court, docketed as CA-G.R.
SP No. 90461, assailing and seeking the nullification and the setting aside of the denial of his Motion
to Stop Writ of Possession.
In a Resolution dated 6 September 2005, the appellate court resolved to dismiss the petition, stating
thus:
The instant petition is not accompanied by (i) the order denying petitioners motion to exempt
from foreclosure of mortgage; and (ii) a relevant and pertinent document, i.e., motion to
exempt from foreclosure of mortgage (Sec. 1, Rule 65, in relation to Sec. 3, Rule 46, 1997
Rules of Civil Procedure).
WHEREFORE, the petition is DISMISSED outright.13
In due time, petitioner Alfredo moved for the reconsideration of the afore-quoted Resolution.
On 16 February 2006, the Court of Appeals promulgated a Resolution denying petitioner Alfredos
motion for reconsideration, decreeing that:
Petitioner [Alfredo] seeks reconsideration of Our resolution dated September 6, 2005
dismissing the petition for not being accompanied by the order dated April 4, 2005 (denying
his motion to exempt from foreclosure mortgage) and motion to exempt from foreclosure of
mortgage. Instead of the aforesaid order and motion, however, petitioner submitted certified

true copies of the order dated June 21, 2005 (which was already attached to the petition)
and motion to stop writ of possession.
WHEREFORE, for lack of merit, the motion for reconsideration is DENIED. 14
Undaunted still, petitioner Alfredo once more filed a Motion for Reconsideration of the appellate
courts 16 February 2006 Resolution.
On 11 April 2006, the Court of Appeals promulgated the last of its Resolutions, denying, as expected,
petitioner Alfredos Second Motion for Reconsideration, stated in full below:
For consideration is petitioners [Alfredos] motion for reconsideration of Our February 16,
2006 resolution denying its (sic) motion for reconsideration of Our resolution dated
September 6, 2005 dismissing the petition.
Appellant has not cured the formal defects of the petition noted in Our resolution dated
September 6, 2005. And, more importantly, a second motion for reconsideration of a final
order is not allowed (Sec. 5, Rule 37, 1997 Rules of Civil Procedure; Obando vs. Court of
Appeals, 366 SCRA 673).
WHEREFORE, the subject motion for reconsideration is DENIED.15
Hence, this Petition for Certiorari with Prohibition filed under Rule 65 of the Revised Rules of Court.
Petitioner Alfredo filed the instant petition designating it in both the caption and the body as one for
"certiorari" under Rule 65 of the Revised Rules of Court. He anchors the present petition on the sole
issue of "whether or not the subject property subject of the mortgage being a family home is exempt
from foreclosure of mortgage."16 He argues:
That from the records of the mortgage, the same was not constituted before or after the
constitution of the family home by the petitioner and as such the Honorable Court of Appeals
has acted without or in excess of its or his jurisdiction or with grave abuse of discretion in the
proceedings complained of.17
He thus prays for this Court to issue a preliminary injunction to stop the implementation of the writ of
possession of the subject property, and after due hearing, render a judgment annulling or modifying
the proceedings before the RTC and the Court of Appeals, with costs. 18
On the other hand, respondent E-PCI counters that the petition at bar must be dismissed on the
following grounds:
First, petitioner Alfredos "Petition for Certiorari" with this Court failed to comply with the technical
requirements of the Rules of Court19 for petitions for certiorari in that (a) the present petition was filed
out of time considering that the 60-day period within which to file the same was reckoned from
receipt of the 11 April 2006 Resolution denying petitioner Alfredos second Motion for
Reconsideration, instead of the 16 February 2006 Resolution denying his first Motion for

Reconsideration;20 (b) petitioner Alfredo did not allege in the present petition that the Court of
Appeals "acted without or in excess of its or his jurisdiction or with grave abuse of discretion
amounting to lack or excess of jurisdiction"21 when it dismissed his petition in CA-G.R. SP No. 90461
for failure to attach thereto certified true copies of the 4 April 2005 RTC Order denying his Motion to
Stop Writ of Possession, as well as the very motion subject of the assailed order; (c) the present
petition lacks the proper verification and is considered an unsigned pleading which produces no
effect whatsoever;22 and (d) the present petition requested for the issuance of an injunction without
stating the grounds therefor.23
Second, petitioner Alfredos second Motion for Reconsideration filed with the Court of Appeals is
prohibited by law,24 as a second motion for reconsideration of a judgment or final resolution is clearly
disallowed by Sec. 2, Rule 52 of the Rules of Court, as amended.
And third, granting arguendo that the petition at bar was properly filed by petitioner Alfredo with this
Court, the Court of Appeals did not err in dismissing the Petition for Certiorari in CA-G.R. SP No.
90461 for failure of petitioner Alfredo to submit the required documents.25
Respondent E-PCI then concludes that "the present Petition for Certiorari was filed not to question
the jurisdiction of the Court of Appeals but as a vain hope of appealing the Order dated April 4, 2005
issued by the Regional Trial Court x x x."26
In reply to the foregoing counter-arguments, petitioner Alfredo contends:
1. That Rule 52 Sec. 2 of the 1997 Rules of Procedure is not applicable to the present case
because what is applicable is a Second Motion for Reconsideration in the Supreme Court;
2. That the 60 day period within which petitioner [Alfredo] may file subject Petition
for Certiorari has been reckoned from April 11, 2006 denying the petitioners [Alfredos]
Second Motion for Reconsideration and the Rules of Court does not distinguished (sic)
whether the denial is first or second;
xxxx
4. That the issue of whether or not the mortgage was executed before or after the
constitution of the Family Home is a necessary question in a Petition for Certiorari under
Rule 65; and
5. That the verification based on personal knowledge is proper because the Rules of Court
did not distinguish whether the facts is based on personal knowledge or an (sic) authentic
records;27
For its substantive as well as procedural infirmities, the instant petition must be dismissed.
Given the above-stated arguments raised by both parties, the threshold question that must be
initially resolved is whether or not the present Petition for Certiorari filed under Rule 65 of the
Revised Rules of Court is the proper remedy for petitioner Alfredo to avail of in seeking the reversal

of the three Resolutions of the Court of Appeals dated 6 September 2005, 16 February 2006 and 11
April 2006.
A petition for certiorari is governed by Rule 65 of the Revised Rules of Court, which reads:
Section 1. Petition for certiorari. When any tribunal, board or officer exercising judicial or
quasi-judicial functions has acted without or in excess of [its or his] jurisdiction, or with grave
abuse of discretion amounting to lack or excess of its or his jurisdiction, and there is no
appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person
aggrieved thereby may file a verified petition in the proper court, alleging the facts with
certainty and praying that judgment be rendered annulling or modifying the proceedings of
such tribunal, board or officer, and granting such incidental reliefs as law and justice may
require.
The petition shall be accompanied by a certified true copy of the judgment, order or
resolution subject thereof, copies of all pleadings and documents relevant and pertinent
thereto, and a sworn certification of non-forum shopping as provided in the third paragraph of
Section 3, Rule 46.
A special civil action for Certiorari, or simply a Petition for Certiorari, under Rule 65 of the Revised
Rules of Court is intended for the correction of errors of jurisdiction only or grave abuse of discretion
amounting to lack or excess of jurisdiction. Its principal office is only to keep the inferior court within
the parameters of its jurisdiction or to prevent it from committing such a grave abuse of discretion
amounting to lack or excess of jurisdiction.28
A writ of certiorari may be issued only for the correction of errors of jurisdiction or grave abuse of
discretion amounting to lack or excess of jurisdiction. Such cannot be used for any other purpose, as
its function is limited to keeping the inferior court within the bounds of its jurisdiction. 29
For a petition for certiorari to prosper, the essential requisites that have to concur are: (1) the writ is
directed against a tribunal, a board or any officer exercising judicial or quasi-judicial functions; (2)
such tribunal, board or officer has acted without or in excess of jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction; and (3) there is no appeal or any plain, speedy
and adequate remedy in the ordinary course of law.30
The phrase "without jurisdiction" means that the court acted with absolute lack of authority31 or want
of legal power, right or authority to hear and determine a cause or causes, considered either in
general or with reference to a particular matter. It means lack of power to exercise
authority.32 "Excess of jurisdiction" occurs when the court transcends its power or acts without any
statutory authority;33 or results when an act, though within the general power of a tribunal, board or
officer (to do) is not authorized, and invalid with respect to the particular proceeding, because the
conditions which alone authorize the exercise of the general power in respect of it are
wanting.34 While that of "grave abuse of discretion" implies such capricious and whimsical exercise of
judgment as to be equivalent to lack or excess of jurisdiction; simply put, power is exercised in an
arbitrary or despotic manner by reason of passion, prejudice, or personal hostility; and such exercise

is so patent or so gross as to amount to an evasion of a positive duty or to a virtual refusal either to

perform the duty enjoined or to act at all in contemplation of law.35
In the present case, there is no question that the 6 September 2005 Resolution of the Court of
Appeals dismissing petitioner Alfredos petition in CA-G.R. SP No. 90461 is already a disposition on
the merits. Therefore, said Resolution, as well as the Resolutions dated 16 February 2006 and 11
April 2006 denying reconsideration thereof, issued by the Court of Appeals, are in the nature of a
final disposition of CA-G.R. SP No. 90461 by the appellate court, and which, under Rule 45 of the
Revised Rules of Court, are appealable to this Court via a Petition for Review on Certiorari, viz:
SECTION 1. Filing of petition with Supreme Court. A party desiring to appeal
by certiorari from a judgment or final order or resolution of the Court of Appeals, the
Sandiganbayan, the Regional Trial Court or other courts whenever authorized by law, may
file with the Supreme Court a verified petition for review on certiorari. The petition shall raise
only questions of law which must be distinctly set forth. (Emphasis supplied.)
From the words of Rule 45, it is crystal that decisions (judgments), final orders or resolutions of the
Court of Appeals in any case, i.e., regardless of the nature of the action or proceedings involved,
may be appealed to this Court by filing a petition for review, which would be but a continuation of the
appellate process over the original case.36
In the case at bar, the assailed Resolutions of the Court of Appeals dismissing petitioner Alfredos
petition in CA-G.R. SP No. 90461 were final orders.37 They were not interlocutory because the
proceedings were terminated; and left nothing more to be done by the appellate court. There were
no remaining issues to be resolved in CA-G.R. SP No. 90461. Consequently, the proper remedy
available to petitioner Alfredo then was to file before this Court a Petition for Review
on Certiorari under Rule 45 of the Revised Rules of Court of the assailed Resolutionsof the Court of
Appeals, and not a special civil action for certiorari.
From the foregoing discussion, it is fairly obvious that the third requisite for a petition for certiorari is
wanting, that is, there must be no appeal or any plain, speedy, and adequate remedy in the ordinary
course of law. The availability to petitioner Alfredo of the remedy of a petition for review
on certiorari from the assailed Resolutions of the Court of Appeals effectively barred his right to
resort to a petition for certiorari.
Basic is the rule that a writ of certiorari will not issue where the remedy of appeal is available to an
aggrieved party. A remedy is considered "plain, speedy and adequate" if it will promptly relieve the
petitioner from the injurious effects of the judgment and the acts of the lower court or agency.38 In this
case, appeal was not only available but also a speedy and adequate remedy.39 Moreover, petitioner
Alfredo failed to show circumstances that would justify a deviation from the general rule as to make
available to him a petition for certiorari in lieu of making an appeal.
Petitioner Alfredo failed to show any valid reason why the issue raised in his petition
for certiorari could not have been raised on ordinary appeal by certiorari. He simply argued that the
appellate court gravely abuse its discretion which amounted to lack or excess of jurisdiction in
dismissing his petition in CA-G.R. SP No. 90461 and not finding that the subject property covered by

the Writ of Possession was a Family Home, hence, exempt from execution or forced sale. He did not
give a single explanation as to why the errors committed by the Court of Appeals cannot possibly be
cured by ordinary appeal under Rule 45 of the Revised Rules of Court.
The remedies of appeal in the ordinary course of law and that of certiorari under Rule 65 of the
Revised Rules of Court are mutually exclusive and not alternative or cumulative. 40 Time and again
this Court has reminded members of the bench and bar that the special civil action
of Certiorari cannot be used as a substitute for a lost appeal41 where the latter remedy is available;
especially if such loss or lapse was occasioned by ones own negligence or error in the choice of
remedies.42
To be sure, once again, we take this opportunity to distinguish between a Petition for Review
on Certiorari (an appeal by certiorari) and a Petition for Certiorari (a special civil action/an original
action for Certiorari), under Rules 45 and 65, respectively, of the Revised Rules of Court. Madrigal
Transport Inc. v. Lapanday Holdings Corporation,43 summarizes the distinctions between these two
remedies, to wit:
As to the Purpose. Certiorari is a remedy designed for the correction of errors of jurisdiction,
not errors of judgment. In Pure Foods Corporation v. NLRC, we explained the simple reason
for the rule in this light:
When a court exercises its jurisdiction, an error committed while so engaged does
not deprive it of the jurisdiction being exercised when the error is committed. If it did,
every error committed by a court would deprive it of its jurisdiction and every
erroneous judgment would be a void judgment. This cannot be allowed. The
administration of justice would not survive such a rule. Consequently, an error of
judgment that the court may commit in the exercise of its jurisdiction is not
correct[a]ble through the original civil action of certiorari.
The supervisory jurisdiction of a court over the issuance of a writ of certiorari cannot be
exercised for the purpose of reviewing the intrinsic correctness of a judgment of the lower
court -- on the basis either of the law or the facts of the case, or of the wisdom or legal
soundness of the decision. Even if the findings of the court are incorrect, as long as it has
jurisdiction over the case, such correction is normally beyond the province of certiorari.
Where the error is not one of jurisdiction, but of an error of law or fact -- a mistake of
judgment -- appeal is the remedy.
As to the Manner of Filing. Over an appeal, the CA exercises its appellate jurisdiction and
power of review. Over a certiorari, the higher court uses its original jurisdiction in accordance
with its power of control and supervision over the proceedings of lower courts. An appeal is
thus a continuation of the original suit, while a petition for certiorari is an original and
independent action that was not part of the trial that had resulted in the rendition of the
judgment or order complained of. The parties to an appeal are the original parties to the
action. In contrast, the parties to a petition for certiorari are the aggrieved party (who thereby
becomes the petitioner) against the lower court or quasi-judicial agency, and the prevailing
parties (the public and the private respondents, respectively).

As to the Subject Matter. Only judgments or final orders and those that the Rules of Court so
declared are appealable. Since the issue is jurisdiction, an original action for certiorari may
be directed against an interlocutory order of the lower court prior to an appeal from the
judgment; or where there is no appeal or any plain, speedy or adequate remedy.
As to the Period of Filing. Ordinary appeals should be filed within fifteen days from the notice
of judgment or final order appealed from. Where a record on appeal is required, the
appellant must file a notice of appeal and a record on appeal within thirty days from the said
notice of judgment or final order. A petition for review should be filed and served within fifteen
days from the notice of denial of the decision, or of the petitioners timely filed motion for new
trial or motion for reconsideration. In an appeal by certiorari, the petition should be filed also
within fifteen days from the notice of judgment or final order, or of the denial of the
petitioners motion for new trial or motion for reconsideration.
On the other hand, a petition for certiorari should be filed not later than sixty days from the
notice of judgment, order, or resolution. If a motion for new trial or motion for reconsideration
was timely filed, the period shall be counted from the denial of the motion.
As to the Need for a Motion for Reconsideration. A motion for reconsideration is generally
required prior to the filing of a petition for certiorari, in order to afford the tribunal an
opportunity to correct the alleged errors. Note also that this motion is a plain and adequate
remedy expressly available under the law. Such motion is not required before appealing a
judgment or final order.
Evidently, therefore, petitioner Alfredo erred in filing a Petition for Certiorari instead of an ordinary
appeal bycertiorari, already a sufficient justification for dismissing the instant petition. But even if his
present petition is given due course, we still find it bereft of merit.
When the Court of Appeals resolved to dismiss the petition in CA-G.R. SP No. 90461, it did so on the
ground that petitioner Alfredo failed to attach certified true copies of the following: (1) the 4 April
2005 Order of the RTC in LRC Case No. P-71-2004 denying petitioner Alfredos Motion to Stop Writ
of Possession; and (2) petitioner Alfredos Motion to Stop Writ of Possession submitted to the RTC.
Suitably, therefore, the proper issue which petitioner Alfredo should raise before this Court in his
instant Petition for Certiorari should be whether or not the Court of Appeals gravely abused its
discretion in dismissing his petition in CA-G.R. SP No. 90461 for failure to attach thereto the
pertinent documents.
In dismissing the petition in CA-G.R. SP No. 90461, the appellate court relied on Sec. 1, Rule 65, in
relation to Sec. 3, Rule 46, of the Revised Rules of Court. Sec. 1 of Rule 65 44 reads:
SECTION 1. Petition for certiorari. When any tribunal, board or officer exercising judicial or
quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave
abuse of discretion amounting to lack or excess of [its or his] jurisdiction, and there is no
appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person
aggrieved thereby may file a verified petition in the proper court, alleging the facts with
certainty and praying that judgment be rendered annulling or modifying the proceedings of

such tribunal, board or officer, and granting such incidental reliefs as law and justice may
require.
The petition shall be accompanied by a certified true copy of the judgment, order or
resolution subject thereof, copies of all pleadings and documents relevant and pertinent
thereto, and a sworn certification of non-forum shopping as provided in the third paragraph of
Section 3, Rule 46. (Emphasis supplied.)
And Sec. 3 of Rule 4645 provides:
SEC. 3. Contents and filing of petition; effect of non-compliance with requirements. The
petition shall contain the full names and actual addresses of all the petitioners and
respondents, a concise statement of the matters involved, the factual background of the
case, and the grounds relied upon for the relief prayed for.
In actions filed under Rule 65, the petition shall further indicate the material dates showing
when notice of the judgment or final order or resolution subject thereof was received, when a
motion for new trial or reconsideration, if any, was filed and when notice of the denial thereof
was received.
It shall be filed in seven (7) clearly legible copies together with proof of service thereof on the
respondent with the original copy intended for the court indicated as such by the petitioner
and shall be accompanied by a clearly legible duplicate original or certified true copy of the
judgment, order, resolution, or ruling subject thereof, such material portions of the record as
are referred to therein, and other documents relevant or pertinent thereto. The certification
shall be accomplished by the proper clerk of court or by his duly-authorized representative,
or by the proper officer of the court, tribunal, agency or office involved or by his duly
authorized representative. The other requisite number of copies of the petition shall be
accompanied by clearly legible plain copies of all documents attached to the original.
xxxx
The failure of the petitioner to comply with any of the foregoing requirements shall be
sufficient ground for the dismissal of the petition. (Emphasis supplied.)
The afore-quoted provisions are plain and unmistakable. Failure to comply with the requirement that
the petition be accompanied by a duplicate original or certified true copy of the judgment, order,
resolution or ruling being challenged is sufficient ground for the dismissal of said petition.
Consequently, it cannot be said that the Court of Appeals acted with grave abuse of discretion
amounting to lack or excess of jurisdiction in dismissing the petition in CA-G.R. SP No. 90461 for
non-compliance with Sec. 1, Rule 65, in relation to Sec. 3, Rule 46, of the Revised Rules of Court.
It is true that in accordance with the liberal spirit pervading the Rules of Court and in the interest of
substantial justice,46 this Court has, before,47 treated a petition for certiorari as a petition for review
on certiorari, particularly (1) if the petition for certiorari was filed within the reglementary period within

which to file a petition for review oncertiorari;48 (2) when errors of judgment are averred; 49 and (3)
when there is sufficient reason to justify the relaxation of the rules.50
But these exceptions are not applicable to the present factual milieu.
Pursuant to Sec. 2, Rule 45 of the Revised Rules of Court:
SEC. 2. Time for filing; extension. The petition shall be filed within fifteen (15) days from
notice of the judgment or final order or resolution appealed from, or of the denial of the
petitioners motion for new trial or reconsideration filed in due time after notice of the
judgment. x x x.
In the case at bar, the Court of Appeals dismissed the petition of petitioner Alfredo in CA-G.R. SP
No. 90461 by virtue of a Resolution dated 6 September 2005. Petitioner Alfredos Motion for
Reconsideration of the dismissal of his petition was denied by the appellate court in
its Resolution dated 16 February 2006. Petitioner Alfredo thus had 15 days from receipt of the 16
February 2006 Resolution of the Court of Appeals within which to file a petition for review. The
reckoning date from which the 15-day period to appeal shall be computed is the date of receipt by
petitioner Alfredo of the 16 February 2006 Resolution of the Court of Appeals, and not of its 11 April
2006 Resolution denying petitioner Alfredos second motion for reconsideration, since the second
paragraph of Sec. 5, Rule 37 of the Revised Rules of Court is explicit that a second motion for
reconsideration shall not be allowed. And since a second motion for reconsideration is not allowed,
then unavoidably, its filing did not toll the running of the period to file an appeal by certiorari.
Petitioner Alfredo made a critical mistake in waiting for the Court of Appeals to resolve his second
motion for reconsideration before pursuing an appeal.
Another elementary rule of procedure is that perfection of an appeal within the reglementary period
is not only mandatory but also jurisdictional. For this reason, petitioner Alfredos failure to file this
petition within 15 days from receipt of the 16 February 2006 Resolution of the Court of Appeals
denying his first Motion for Reconsideration, rendered the same final and executory, and deprived us
of jurisdiction to entertain an appeal thereof.
The relaxation of procedural rules may be allowed only when there are exceptional circumstances to
justify the same. Try as we might, however, we fail to find the existence of such exceptional
circumstances in this case, and neither did petitioner Alfredo endeavour to prove the existence of
any. In fact, there is total lack of effort on petitioner Alfredos part to at least explain his inability to
comply with the clear requisites of the Revised Rules of Court.
Worth noting is the observation of respondent E-PCI that, essentially, petitioner Alfredo is using the
present Petition for Certiorari, to seek the reversal and setting aside of the 4 April 2005 Order of the
RTC, and not to assail the three Resolutions of the Court of Appeals. This he cannot validly do for it
is an apparent disregard of the proper exercise of jurisdiction by the appellate court. We cannot
overlook the ruling of the Court of Appeals and proceed right away to a review of the RTC order,
absent any error of judgment or jurisdiction committed by the former.

All told, a perusal of the challenged Resolutions of the Court of Appeals fail to illustrate any
reversible error, much less, a showing of any iota of grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of the appellate court, to warrant the exercise by this Court of its
discretionary appellate jurisdiction in the case at bar. Considering the allegations, issues and
arguments adduced and our disquisition above, without need of further delving deeper into the facts
and issues raised by petitioner Alfredo in this Petition for Certiorari with prayer for preliminary
injunction, we hereby dismiss the instant petition for being the wrong remedy under the Revised
Rules of Court, as well as his failure to sufficiently show that the challenged Resolutions of the Court
of Appeals were rendered in grave abuse of discretion amounting to lack or excess of jurisdiction.
WHEREFORE, premises considered, the instant Petition for Certiorari is DISMISSED for lack of
merit. The threeResolutions of the Court of Appeals dated 6 September 2005, 16 February 2006 and
11 April 2006, respectively, in CA-G.R. SP No. 90461, are hereby AFFIRMED in toto. With costs
against petitioner Alfredo Tagle.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION
G.R. No. 180587

March 20, 2009

SIMEON CABANG, VIRGINIA CABANG and VENANCIO CABANG ALIAS

"DONDON", Petitioners,
vs.
MR. & MRS. GUILLERMO BASAY, Respondents.
DECISION
YNARES-SANTIAGO, J.:
This petition for review on certiorari under Rule 45 of the Rules of Court seeks to annul and set aside
the Decision of the Court of Appeals in CA-G.R. CV No. 767551 dated May 31, 20072 which reversed
the Order3 of the Regional Trial Court of Molave, Zamboanga Del Sur, Branch 23 in Civil Case No.
99-20-127 which denied respondents motion for execution on the ground that petitioners family
home was still subsisting. Also assailed is the Resolution dated September 21, 2007 denying the
motion for reconsideration.
The facts as summarized by the appellate court:
Deceased Felix Odong was the registered owner of Lot No. 7777, Ts- 222 located in Molave,
Zamboanga del Sur. Said lot was covered by Original Certificate of Title No. 0-2,768 pursuant to
Decree No. N-64 and issued on March 9, 1966. However, Felix Odong and his heirs never occupied
nor took possession of the lot.
On June 16, 1987, plaintiff-appellants bought said real property from the heirs of Felix Odong for
P8,000.00. Consequently, OCT No. 0-2,768 was cancelled and in its stead, Transfer Certificate of
Title No. T-22,048 was issued on August 6, 1987 in the name of plaintiff-appellants. The latter also
did not occupy the said property.
Defendant-appellees, on the other hand, had been in continuous, open, peaceful and adverse
possession of the same parcel of land since 1956 up to the present. They were the awardees in the
cadastral proceedings of Lot No. 7778 of the Molave Townsite, Ts-222. During the said cadastral
proceedings, defendant-appellees claimed Lot No. 7778 on the belief that the area they were
actually occupying was Lot No. 7778. As it turned out, however, when the Municipality of Molave
relocated the townsite lots in the area in 1992 as a big portion of Lot No. 7778 was used by the
government as a public road and as there were many discrepancies in the areas occupied, it was
then discovered that defendant-appellees were actually occupying Lot No. 7777.
On June 23, 1992, plaintiff-appellants filed a Complaint docketed as Civil Case No. 92-20-127 for
Recovery of Property against defendant-appellees.
On July 19, 1996, the trial court rendered its decision, the dispositive portion of which reads, thus:
WHEREFORE, judgment is hereby rendered in favor of the defendants and against the plaintiff
1. Holding that the rights of the plaintiffs to recover the land registered in their names, have
been effectively barred by laches; and

2. Ordering the dismissal of the above-entitled case.

No pronouncement as to cost.
SO ORDERED.
Aggrieved, plaintiff-appellants filed an appeal before the Court of Appeals assailing the abovedecision. Said appeal was docketed as CA-G.R. CV No. 55207.
On December 23, 1998, the Court of Appeals, through the then Second Division, rendered a
Decision reversing the assailed decision and decreed as follows:
WHEREFORE, the judgment herein appealed from is hereby REVERSED, and judgment is hereby
rendered declaring the plaintiffs-appellants to be entitled to the possession of Lot No. 7777 of the
Molave Townsite, subject to the rights of the defendants-appellees under Article (sic) 448, 546, 547
and 548 of the New Civil Code.
The records of this case are hereby ordered remanded to the court of origin for further proceedings
to determine the rights of the defendants-appellees under the aforesaid article (sic) of the New Civil
Code, and to render judgment thereon in accordance with the evidence and this decision.
No pronouncement as to costs.
SO ORDERED.
Defendant-appellees thereafter filed a petition for review on certiorari under Rule 45 of the Rules of
Court before the Supreme Court docketed as G.R. No. 139601. On October 18, 1999, the Supreme
Court issued a Resolution denying the petition for late filing and lack of appropriate service.
Subsequently, or on February 15, 2000, the Supreme Court Resolution had become final and
executory.
Consequently, the case was remanded to the court a quo and the latter commissioned the Municipal
Assessor of Molave, Zamboanga del Sur to determine the value of the improvements introduced by
the defendant-appellees.
The Commissioners Report determined that at the time of ocular inspection, there were three (3)
residential buildings constructed on the property in litigation. During the ocular inspection, plaintiffappellants son, Gil Basay, defendant-appellee Virginia Cabang, and one Bernardo Mendez, an
occupant of the lot, were present. In the report, the following appraised value of the improvements
were determined, thus:
lawphil.net

Owner

Lot No.

Area (sq.m.)

Improvement

Appraised Value

Virginia Cabang

7777

32.55

Building

P21,580.65

Jovencio Capuno

7777

15.75

Building

18,663.75

Amelito Mata

7777

14.00

Building

5,658.10

Toilet

1,500.00

Plants & Trees

TOTAL

2,164.00
P49,566.50

Thereafter, upon verbal request of defendant-appellees, the court a quo in its Order declared that the
tie point of the survey should be the BLLM (Bureau of Lands Location Monument) and authorized
the official surveyor of the Bureau of Lands to conduct the survey of the litigated property.
Pursuant to the above Order, the Community Environment and Natural Resources Office (CENRO)
of the Department of Environment and Natural Resources (DENR)-Region XI designated Geodetic
Engineer Diosdado L. de Guzman to [act] as the official surveyor. On March 2002, Engr. De Guzman
submitted his survey report which stated, inter alia:
1. That on September 18, 2001, the undersigned had conducted verification survey of Lot
7777, Ts-222 and the adjacent lots for reference purposes-with both parties present on the
survey;
2. That the survey was started from BLLM #34, as directed by the Order, taking sideshots of
lot corners, existing concrete fence, road and going back to BLLM #34, a point of reference;
3. Considering that there was only one BLLM existing on the ground, the undersigned
conducted astronomical observation on December 27, 2001 in order to check the carried
Azimuth of the traverse;
4. That per result of the survey conducted, it was found out and ascertained that the area
occupied by Mrs. Virginia Cabang is a portion of Lot 7777, with lot assignment to be known
as Lot 7777-A with an area of 303 square meters and portion of Lot 7778 with lot assignment
to be known as Lot 7778-A with an area of 76 square meters. On the same lot, portion of
which is also occupied by Mr. Bernardo Mendez with lot assignment to be known as Lot
7777-B with an area of 236 square meters and Lot 7778-B with an area of 243 square
meters as shown on the attached sketch for ready reference;
5. That there were three (3) houses made of light material erected inside Lot No. 7777-A,
which is owned by Mrs. Virginia Cabang and also a concrete house erected both on portion
of Lot No. 7777-B and Lot No. 7778-B, which is owned by Mr. Bernardo Mendez. x x x;
6. That the existing road had been traversing on a portion of Lot 7778 to be know (sic) as Lot
7778-CA-G.R. SP No. with an area of 116 square meters as shown on attached sketch plan.
During the hearing on May 10, 2002, plaintiff-appellants offer to pay P21,000.00 for the
improvement of the lot in question was rejected by defendant-appellees. The court a quo disclosed
its difficulty in resolving whether or not the houses may be subject of an order of execution it being a
family home.
On June 18, 2002, plaintiff-appellants filed their Manifestation and Motion for Execution alleging
therein that defendant-appellees refused to accept payment of the improvements as determined by
the court appointed Commissioner, thus, they should now be ordered to remove said improvements
at their expense or if they refused, an Order of Demolition be issued.

On September 6, 2002, the court a quo issued the herein assailed Order denying the motion for
execution.4
Respondents thereafter elevated their cause to the appellate court which reversed the trial court in
its May 31, 2007 Decision in CA-G.R. CV No. 76755. Petitioners Motion for Reconsideration was
denied by the Court of Appeals in its Resolution5 dated September 21, 2007.
Hence, this petition.
Petitioners insist that the property subject of the controversy is a duly constituted family home which
is not subject to execution, thus, they argue that the appellate tribunal erred in reversing the
judgment of the trial court.
The petition lacks merit.
It bears stressing that the purpose for which the records of the case were remanded to the court of
origin was for the enforcement of the appellate courts final and executory judgment 6 in CA-G.R. CV
No. 55207 which, among others, declared herein respondents entitled to the possession of Lot No.
7777 of the Molave Townsite subject to the provisions of Articles 448,7 546,8 5479 an 54810 of the Civil
Code. Indeed, the decision explicitly decreed that the remand of the records of the case was for the
court of origin "[t]o determine the rights of the defendants-appellees under the aforesaid article[s] of
the New Civil Code, and to render judgment thereon in accordance with the evidence and this
decision."
A final and executory judgment may no longer be modified in any respect, even if the modification is
meant to correct erroneous conclusions of fact or law and whether it will be made by the court that
rendered it or by the highest court in the land.11 The only exceptions to this rule are the correction of
(1) clerical errors; (2) the so-called nunc pro tunc entries which cause no prejudice to any party, and
(3) void judgments.12
Well-settled is the rule that there can be no execution until and unless the judgment has become
final and executory, i.e. the period of appeal has lapsed without an appeal having been taken, or,
having been taken, the appeal has been resolved and the records of the case have been returned to
the court of origin, in which event, execution shall issue as a matter of right. 13 In short, once a
judgment becomes final, the winning party is entitled to a writ of execution and the issuance thereof
becomes a courts ministerial duty.14
Furthermore, as a matter of settled legal principle, a writ of execution must adhere to every essential
particulars of the judgment sought to be executed. 15 An order of execution may not vary or go
beyond the terns of the judgment it seeks to enforce. 16 A writ of execution must conform to the
judgment and if it is different from, goes beyond or varies the tenor of the judgment which gives it
life, it is a nullity.17 Otherwise stated, when the order of execution and the corresponding writ issued
pursuant thereto is not in harmony with and exceeds the judgment which gives it life, they have pro
tanto no validity18 to maintain otherwise would be to ignore the constitutional provision against
depriving a person of his property without due process of law.19
As aptly pointed out by the appellate court, from the inception of Civil Case No. 99-20-127, it was
already of judicial notice that the improvements introduced by petitioners on the litigated property are
residential houses not family homes. Belatedly interposing such an extraneous issue at such a late
stage of the proceeding is tantamount to interfering with and varying the terms of the final and
executory judgment and a violation of respondents right to due process because

As a general rule, points of law, theories and issues not brought to the attention of the trial court
cannot be raised for the first time on appeal. For a contrary rule would be unfair to the adverse party
who would have no opportunity to present further evidence material to the new theory, which it could
have done had it been aware of if at the time of the hearing before the trial court. 20
lawphil.net

The refusal, therefore, of the trial court to enforce the execution on the ground that the
improvements introduced on the litigated property are family homes goes beyond the pale of what it
had been expressly tasked to do, i.e. its ministerial duty of executing the judgment in accordance
with its essential particulars. The foregoing factual, legal and jurisprudential scenario reduces the
raising of the issue of whether or not the improvements introduced by petitioners are family homes
into a mere afterthought.
Even squarely addressing the issue of whether or not the improvements introduced by petitioners on
the subject land are family homes will not extricate them from their predicament.
As defined, "[T]he family home is a sacred symbol of family love and is the repository of cherished
memories that last during ones lifetime.21 It is the dwelling house where the husband and wife, or an
unmarried head of a family reside, including the land on which it is situated. 22 It is constituted jointly
by the husband and the wife or by an unmarried head of a family."23 Article 153 of the Family Code
provides that
The family home is deemed constituted from the time it is occupied as a family residence. From the
time of its constitution and so long as any of its beneficiaries actually resides therein, the family
home continues to be such and is exempt from execution, forced sale or attachment except as
hereinafter provided and to the extent of the value allowed by law.
The actual value of the family home shall not exceed, at the time of its constitution, the amount of
P300,000.00 in urban areas and P200,000.00 in rural areas.24 Under the afore-quoted provision, a
family home is deemed constituted on a house and a lot from the time it is occupied as a family
residence. There is no need to constitute the same judicially or extra-judicially.25
There can be no question that a family home is generally exempt from execution, 26 provided it was
duly constituted as such. It is likewise a given that the family home must be constituted on property
owned by the persons constituting it. Indeed as pointed out in Kelley, Jr. v. Planters Products,
Inc.27 "[T]he family home must be part of the properties of the absolute community or the conjugal
partnership, or of the exclusive properties of either spouse with the latters consent, or on the
property of the unmarried head of the family."28 In other words:
The family home must be established on the properties of (a) the absolute community, or (b) the
conjugal partnership, or (c) the exclusive property of either spouse with the consent of the other. It
cannot be established on property held in co-ownership with third persons. However, it can be
established partly on community property, or conjugal property and partly on the exclusive property
of either spouse with the consent of the latter.
1avvphi1

If constituted by an unmarried head of a family, where there is no communal or conjugal property

existing, it can be constituted only on his or her own property.29 (Emphasis and italics supplied)
Therein lies the fatal flaw in the postulate of petitioners. For all their arguments to the contrary, the
stark and immutable fact is that the property on which their alleged family home stands is owned by
respondents and the question of ownership had been long laid to rest with the finality of the
appellate courts judgment in CA-G.R. CV No. 55207. Thus, petitioners continued stay on the
subject land is only by mere tolerance of respondents.

All told, it is too late in the day for petitioners to raise this issue. Without doubt, the instant case
where the family home issue has been vigorously pursued by petitioners is but a clear-cut ploy
meant to forestall the enforcement of an otherwise final and executory decision. The execution of a
final judgment is a matter of right on the part of the prevailing party whose implementation is
mandatory and ministerial on the court or tribunal issuing the judgment. 30
The most important phase of any proceeding is the execution of judgment. 31 Once a judgment
becomes final, the prevailing party should not, through some clever maneuvers devised by an
unsporting loser, be deprived of the fruits of the verdict.32 An unjustified delay in the enforcement of a
judgment sets at naught the role of courts in disposing of justiciable controversies with
finality.33 Furthermore, a judgment if not executed would just be an empty victory for the prevailing
party because execution is the fruit and end of the suit and very aptly called the life of the law.34
The issue is moreover factual and, to repeat that trite refrain, the Supreme Court is not a trier of
facts. It is not the function of the Court to review, examine and evaluate or weigh the probative value
of the evidence presented. A question of fact would arise in such event. Questions of fact cannot be
raised in an appeal via certiorari before the Supreme Court and are not proper for its
consideration.35 The rationale behind this doctrine is that a review of the findings of fact of the
appellate tribunal is not a function this Court normally undertakes. The Court will not weigh the
evidence all over again unless there is a showing that the findings of the lower court are totally
devoid of support or are clearly erroneous so as to constitute serious abuse of discretion. 36 Although
there are recognized exceptions37 to this rule, none exists in this case to justify a departure
therefrom.
WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals dated May 31, 2007 in
CA-G.R. CV No. 76755 declaring respondents entitled to the writ of execution and ordering
petitioners to vacate the subject property, as well as the Resolution dated September 21, 2007
denying the motion for reconsideration, are AFFIRMED. Costs against petitioners.
SO ORDERED.
CONSUELO YNARES-SANTIAGO
Associate Justice

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION
G.R. No. 158238

July 20, 2006

MARY GRACE M. VENERACION, representing herself and minors DAISY M. VENERACION

and RICHARD M. VENERACION, petitioners,
vs.
CHARLIE MANCILLA represented by his heirs, namely, GIAR CHENG LINDA T. MANCILLA,
CAITLIN MANCILLA, ERICA TIFFANY MANCILLA, HON. JUDGE ADORACION G. ANGELES, in
her capacity as Presiding Judge of the Regional Trial Court, Branch 121, Caloocan City;
SHERIFF JOVINAL SALAYON; and THE REGISTER OF DEEDS OF PARAAQUE
CITY, respondents.
DECISION
CALLEJO, SR., J.:
Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court of the
Resolution1 of the Court of Appeals (CA), in CA-G.R. SP No. 74005, dismissing the petition for partial
annulment of judgment filed by petitioner Mary Grace M. Veneracion under Rule 47 of the Rules of
Court.
The Antecedents
On February 14, 1995, Elizabeth B. Mendinueta, married to Geronimo
Veneracion, secured a P1,200,000.00 loan from Charlie Mancilla. She executed a promissory note
on said date in which she bound and obliged herself to pay the said amount on or before August 14,
1995 at 5% monthly interest, payable within the first five days of the month, with stipulated liquidated
damages. To secure the payment thereof, Elizabeth executed a real estate mortgage over her
residential lot located at Better Living Subdivision, Barangay Wawa, Paraaque City, Metro Manila,
covered by Transfer Certificate of Title No. 87140, including the residential house situated
thereon.2 It appears on the face of the title that Elizabeth was "single" at that time. In said deed, the
parties stipulated that in the event of Elizabeth's failure to pay the loan, the real estate mortgage may
be foreclosed, judicially or extra-judicially. The deed was annotated on the dorsal portion of the said
title on April 24, 1995.3
Due to Elizabeth's failure to pay the loan on maturity date and after demand, Mancilla filed a petition
with the Regional Trial Court (RTC) for the judicial foreclosure of the real estate mortgage on
October 11, 1993. The case was docketed as Civil Case No. C-425. 4
In the meantime, Charlie Mancilla died and was survived by his heirs, Giar Cheng Linda, Caitlin, and
Erica Tiffany, all surnamed Mancilla. In due course, they were impleaded as parties-plaintiffs in
substitution of Charlie Mancilla.
During the pre-trial on October 18, 1996, the parties stipulated on the following facts:

1. Both parties admit their capacity to sue and be sued.

2. Both parties admit that the defendant borrowed money from the plaintiff in the amount
of P1,200,000.00.
3. Both parties admit that the defendant has executed on February 14, 1995 a promissory
note relative to the obligation obtained by the defendant from the plaintiff.
4. That the obligation is secured by a Real Estate Mortgage designated as TCT No. 87140 of
the Registry of Deeds of Paraaque, Metro Manila (now a city).
5. Both parties admit that the defendant has paid an advance interest of P60,000.00 on the
date of the execution of the promissory note on February 14, 1995.
6. Both parties admit that demand both orally and written were made by plaintiff upon the
defendant to settle the obligation, the last of which was executed on December 5, 1995. 5
When she testified, Elizabeth admitted that she failed to pay her loan, which prompted Mancilla to
file the complaint against her. She claimed, however, that she was able to secure a P1,200,000.00
loan from the Banco Filipino Savings Mortgage Bank which she intended to use to pay Mancilla. She
later asked for the reduction of the monthly interest from 5% per month to 3%.
On September 25, 1997, the RTC rendered judgment in favor of the Mancillas. The fallo of the
decision reads:
WHEREFORE, premises considered and by preponderance of evidence, judgment is hereby
rendered in favor of plaintiffs Giar Cheng Linda T. Ang-Mancilla, Caitlin Mancilla and Erica
Tiffany Mancilla and against defendant Elizabeth Mendinueta who is accordingly ordered to
pay (1) the loan of P1,200,000.00, (2) interest equivalent to 5% per month commencing
March 14, 1995 until the principal obligation is paid, (3) interests on accrued interest at the
rate of 5% per month, within a period of ninety (90) days from the entry of judgment and that
in default of such payment the property shall be sold at public auction to satisfy the
judgment.
The defendant is also ordered to pay attorney's fees in the amount of 10% of the whole
amount due and demandable as well as the costs of the suit.
SO ORDERED.6
Elizabeth appealed the decision to the CA which dismissed the appeal on May 12, 1999 for failure to
file her appeal brief.7 She then filed a manifestation with the appellate court that she was no longer
filing a brief but prayed that the accrued interest she was to pay the plaintiff be reduced. 8 The CA,
nonetheless, dismissed the appeal. This prompted the filing of a petition for review with this Court
docketed as G.R. No. 139944, seeking the reversal of the CA Resolution. On October 18, 1999, the
Court denied the petition for Elizabeth's failure to sufficiently show that the CA committed any
reversible error in the challenged resolution as to warrant the exercise by this Court of its

discretionary appellate jurisdiction.9 The Resolution of the Court became final and executory, and
entry of judgment10 was made of record in due course on November 15, 1999.
After the records were remanded to the trial court, plaintiff moved for the issuance of a writ of
execution. The trial court granted the motion on October 19, 2000, and a Writ of Execution was
issued on November 7, 2000.11 The Sheriff levied on the property covered by TCT No. 8714012 and
caused its sale at public auction at 10:00 a.m. on December 20, 2000. Elizabeth did not attend the
public auction sale nor oppose the same.
During the public bidding, the Heirs of Charlie Mancilla were the winning bidders, and the Sheriff
thereafter executed a Certificate of Sale on December 21, 2000 in their favor.
On April 17, 2002, the Register of Deeds annotated the Certificate of Sale executed by the Sheriff at
the dorsal portion of TCT No. 87140.
It turned out that Elizabeth had been living with Geronimo Veneracion (a businessman from Iloilo
City) without the benefit of marriage. They had three children: Mary Grace M. Veneracion born on
November 14, 1982; Dysie M. Veneracion, born on July 16, 1985; and Richard M. Veneracion, born
on July 22, 1986. The couple and their children had been residing on the subject mortgaged
property. The couple was finally married on December 17, 1993. By then, Geronimo was already 71
years old, while Elizabeth was 41.13 On May 26, 1999, Geronimo died at the age of 74.
On November 15, 2002, petitioners Mary Grace M. Veneracion and her siblings filed a Petition in the
CA against the Heirs of Charlie Mancilla, the Presiding Judge of the RTC of Caloocan City, the
Sheriff, and the Register of Deeds of Paraaque City, for the partial annulment of the decision of the
RTC in Civil Case No. C-425. In their petition, they alleged the following: in the early 1980's,
Elizabeth and Geronimo fell in love and lived together as common-law spouses; the couple bought
the property, but title thereto was placed under the name of Elizabeth and her marital status therein
was indicated as "single"; since Elizabeth had no source of income, Geronimo paid for the monthly
installments of the property; upon full payment of its purchase price, TCT No. 87140 was issued in
her name as owner; Elizabeth could not have been expected to know that the conformity of her
husband to the real estate mortgage was necessary; and Charlie Mancilla was fully aware of the
marital status of Elizabeth, as in fact, he met Geronimo Veneracion during the negotiations for the
loan. Petitioners also alleged that the trial court committed a gross violation of Article 154 of the
Family Code when it declared the family home liable for the execution of the decision and sustained
the validity of the real estate mortgage despite the absence of Geronimo's conformity thereto as
required by Article 158 of the Family Code. Petitioners prayed that judgment be rendered in their
favor, thus:
WHEREFORE, premises considered, it is respectfully prayed that judgment be rendered:
1. Partially annulling the dispositive portion of the Decision of the Honorable Public
Respondent dated 25 September 1997 insofar as the family home is being held liable to
satisfy the judgment, as well as, the ancillary orders issued by the Honorable Public
Respondent incidental to the execution of the subject family home, more particularly the 19
October 2000 Order (granting the motion for issuance of writ of execution), the 7 November

2000 Writ of Execution, the 17 November 2000 Notice of Levy on Execution issued by Public
respondent Sheriff Salayon, the 24 November 2000 Sheriff's Notice of Auction Sale on
Execution, the 11 December 2000 Certificate of Posting of Public Respondent Salayon, and
the 20 December 2000 Minutes of Auction Sale issued by Public Respondent Sheriff
Salayon.
2. Ordering respondents to pay petitioners in solidum the amount of TWO HUNDRED
THOUSAND PESOS (P200,000.00) as and by way of moral damages;
3. Ordering respondents to pay petitioners in solidum the amount of TWO HUNDRED
THOUSAND PESOS (P200,000.00) as and by way of attorney's fees;
4. Ordering respondents to pay the costs of suit and expenses of litigation; and
5. In the meantime and in the interest of justice, let a Temporary Restraining Order and, after
notice and hearing, a Writ of Preliminary Injunction, be issued enjoining the Register of
Deeds of Paraaque City and the private respondents from canceling TCT No. 87140 and
transferring said title in the name of private respondents and further restraining private
respondents from making any acts of dispossession of petitioners in regard to the subject
property until the issues raised in the instant petition had been definitely resolved.
Other reliefs, just and equitable, are likewise prayed for.14
However, petitioners failed to append to their petition the duplicate original/certified true copy of the
complaint filed with the RTC in Civil Case No. C-425, the motion for execution filed by the
respondent in the same court and the entry of judgment in G.R. No. 139944. Petitioners likewise
failed to incorporate in their petition any explanation why service of the petition on respondents was
not done personally, and to submit an affidavit of service of said petition on the respondents on
January 7, 2003. Thus, the CA dismissed the petition outright for failure to comply with Section 4,
Rule 47 of the 1997 Rules of Civil Procedure.15 Petitioner filed a Motion for Reconsideration of the
resolution of the CA, contending that:
1. PETITIONERS COMPLIED WITH THE PROCEDURAL REQUIREMENTS IN SECTION 4
OF RULE 47 OF THE RULES OF COURT IN FILING THE INSTANT CIVIL ACTION FOR
ANNULMENT OF JUDGMENT;
2. AS THE INSTANT PETITION IS IN THE NATURE OF AN INITIATORY COMPLAINT
WHERE THE HONORABLE TRIBUNAL IS OBLIGATED TO SERVE SUMMONS TO
RESPONDENTS UPON FINDINGS OF PRIMA FACIE MERIT, THE REQUIREMENTS
MENTIONED IN SECTION[S] 11 AND 13 OF RULE 13 (ON AFFIDAVIT OF SERVICE AND
WRITTEN EXPLANATION) DO NOT APPLY; AND
3. AS THE DISMISSAL OF THE INSTANT CIVIL CASE STANDS TO FATALLY DIM THE
LIGHT ON WHAT APPEARS TO BE THE ONLY REMEDY LEFT OF THE PETITIONERS
AGAINST AN IRREPARABLE INJUSTICE OF ILLEGALLY LOSING A FAMILY HOME,
PETITIONERS BESEECH THE HONORABLE TRIBUNAL TO LOOK BEYOND THE

PROCEDURE WHICH THEY BELIEVED TO HAVE BEEN SUBSTANTIALLY COMPLIED

WITH, AND ALLOW THE HONORABLE TRIBUNAL TO SEE THE MERITS OF THE
INSTANT CASE.16
Petitioners appended to their motion a certified copy of the complaint in Civil Case No. C-425 and its
appendages.17 Petitioners also filed a Manifestation on February 11, 2003 appending thereto a
certified copy of the motion for issuance of a writ of execution in Civil Case No. 425 and Entry of
Judgment in G.R. No. 139944.18
On May 9, 2003, the CA resolved to deny petitioners' motion for reconsideration, declaring that the
Rules of Civil Procedure do not provide that Sections 11 and 13, Rule 13 need not be observed in
initiatory pleadings. A party who fails "to observe very elementary rules of procedure which are
mandatory" causes his "own predicament" and "to exculpate [him/her] from the compulsory coverage
of such rules is to undermine the stability of the judicial process, as the bench and the bar will be
confounded by such irritating uncertainties as when to obey and when to ignore the Rules."
The appellate court likewise ruled that annulment of judgment may be based only on the grounds of
extrinsic fraud and lack of jurisdiction. The action before the court a quo was for foreclosure of
mortgage on real property, which was within the exclusive and original jurisdiction of the RTC. Even
supposing that the court a quo committed acts amounting to lack or excess of jurisdiction such
judgment cannot be the proper subject of an action for annulment under Rule 47. If at all, the alleged
lack or excess of jurisdiction may be a ground for certiorari under Rule 65 of the Rules of Court.
Finally, the appellate court declared that petitioners are seeking the annulment of the court a quo's
judgment on the ground that it committed a violation of substantive law in holding a family home
subject of execution even as its mortgage was made by their mother without their father's consent.
Since it is not an appeal, the correctness of the judgment is not in issue. Accordingly, there is no
need to address each error allegedly committed by the trial court.
Petitioners forthwith filed a petition for review on certiorari with this Court for the reversal of the CA
Resolution.
Petitioners aver that, under Section 4, Rule 47 of the 1997 Rules of Civil Procedure, only copies of
decisions and final orders sought to be annulled are required to be court certified. They had
complied with the Rules and appended to their petition a certified true copy of the decision of the trial
court's decision in Civil Case No. C-425; they likewise submitted to the CA the original and/or
certified true copies of the trial court's Order granting the motion of the respondents for the issuance
of a writ of execution, the Writ of Execution, the Notice of Levy on Execution issued by the Sheriff,
the Sheriff's Notice of Public Auction Sale along with the Minutes of the December 20, 2000 Public
Auction Sale.
Petitioners contend that they could not have availed of the remedy of an appeal or a certiorari
petition under Rule 65, given that they were not parties in the original action where the assailed
decision was rendered. Petitioners point out that from the time the action for foreclosure was filed in
1995 against the mother of petitioners up to the time the trial court rendered the assailed judgment in
1997, they were all minors, and therefore could not have validly participated in the court

proceedings. Also, they came to know of the civil case and the decision therein only on September
4, 2002, when their mother first told them of her "problem" or after more than 4 years from the time
the RTC decision was issued.
Petitioners insist that the decision of the trial court prejudiced their right to their family home and their
hereditary rights that accrued when their father died in 1999; thus, the filing of a petition for
annulment of judgment under Rule 47 was the proper remedy.
Petitioners further assert that the CA erred when it failed to resolve the substantial grounds raised in
their petition, and instead opted to dismiss the case citing purported procedural errors.
The issues for resolution are the following: (1) whether the petition before the CA complied with
Section 4, Rule 47 of the Rules of Court; (2) whether a petition for partial annulment of
judgment/final order is the proper remedy of petitioners; and (3) whether the petition before the CA
states a cause of action for partial annulment of judgment under Rule 47 of the Rules of Court.
We rule to deny the petition.
Section 4, Rule 47 of the Rules of Court reads:
SEC. 4. Filing and contents of petition. The action shall be commenced by filing a verified
petition alleging therein with particularity the facts and the law relied upon for annulment, as
well as those supporting the petitioner's good and substantial cause of action or defense, as
the case may be.
The petition shall be filed in seven (7) clearly legible copies, together with sufficient copies
corresponding to the number of respondents. A certified true copy of the judgment or final
order or resolution shall be attached to the original copy of the petition intended for the court
and indicated as such by the petitioner.
The petitioner shall also submit together with the petition affidavits of witnesses or
documents supporting the cause of action or defense and a sworn certification that he has
not theretofore commenced any other action involving the same issues in the Supreme
Court, the Court of Appeals or different divisions thereof, or any other tribunal or agency; if
there is such other action or proceeding, he must state the status of the same, and if he
should thereafter learn that a similar action or proceeding has been filed or is pending before
the Supreme Court, the Court of Appeals, or different divisions thereof, or any other tribunal
or agency, he undertakes to promptly inform the aforesaid courts and other tribunal or
agency thereof within five (5) days therefrom.
We agree with petitioners' contention that, under Section 4, Rule 47 of the Rules of Court, they were
required to attach to the original copy of their petition a certified true copy of the assailed decision,
final order or resolution. Although petitioners are also required to attach the affidavits of witnesses or
documents supporting the cause of action or defense, they are not required to submit certified
copies of such documents. Petitioners may just submit plain copies thereof.

It must be stressed, however, that petitioners are required to allege with particularity in their petition
the facts and the law relied upon for annulment as well as those supporting their cause of action or
defense, as the case may be. Such requirement, as well as the requirement for petitioners to attach
to the original copy of their petition the affidavits of their witnesses and documents supporting their
cause of action or defense, are designed to convince the appellate court of the substantive merit of
their petition to avoid its outright dismissal; or for the CA to make a finding of a prima facie merit in
their petition and give due course thereto and order the service of the petition and summons on the
respondents.19 Unless petitioners append to their petition the appropriate documents, the appellate
court might dismiss the petition outright or deny due course to the petition.
After all, an action to annul a final judgment is an extraordinary remedy. Annulment of judgment is
not a relief to be granted indiscriminately by the Court. It is a recourse equitable in character allowed
only in exceptional cases. The reason for the restriction is to prevent this extraordinary action from
being used by a losing party to make a complete farce of a duly promulgated decision that has long
become final and executory.20 There would be no end to litigations if the parties who have
unsuccessfully availed of any of the appropriate remedies or lost them through their fault could still
bring an action for annulment of judgment.21 Moreover, if only plain copies of documents are
appended to the original copy of the petition, the CA may not give probative weight to such
documents and opt to dismiss the petition outright for lack of substantive or prima facie merit.
In this case, petitioners alleged in their petition before the CA that their parents, who were then living
together as husband and wife, purchased the property on installment basis, and that their father paid
all the installments of the property because their mother had no source of income. However, they
failed to append to their petition copies of the receipts for the installment payments their father
allegedly made. Their claim that their mother had no source of income is belied by the trial court's
finding that their mother was able to secure a loan from the Banco Filipino for P1,200,000.00, which
she intended to pay to Charlie Mancilla. It is quite incredible that Elizabeth would be granted
a P1,200.000.00 loan if she had no source of income, as claimed by petitioners.
Petitioners averred in their petition that the mortgaged property, their family home, was the conjugal
property of their parents, but that their father's consent to the real estate mortgage was not obtained
by their mother as mortgagor. By their claim, petitioners imply that, as beneficiaries and co-owners of
the family home, they were indispensable parties in Civil Case No. C-425; consequently, the RTC
had no jurisdiction over their persons, and as such, all the proceedings before the RTC were null
and void.22 To support this claim, petitioners should have appended to their petition parts of the
records of the RTC showing that the property is indeed their family home and part of the conjugal
property of their parents. This could have established the need for them to be impleaded as partiesdefendants. As the Court ruled in Arcelona v. Court of Appeals:23
Admittedly, in this case, the want of jurisdiction of the trial court in rendering its decision in
Civil Case No. D-7240 is not patent on the face of said judgment. However, there were
glaring documentary and testimonial pieces of evidence referred to by the trial court in its
decision which should have prompted it to inquire further whether there were other
indispensable parties who were not impleaded. These facts and circumstances should have
forewarned the trial court that it had not acquired jurisdiction over a number of indispensable
parties. In American jurisprudence, the nullity of a decision arising from lack of jurisdiction

may be determined from the record of the case, not necessarily from the face of the
judgment only. We believe that this rule should be applied to this case, considering that in
the assailed trial court's decision, referrals were made to crucial evidence which if scrutinized
would readily reveal that there were indispensable parties omitted.24
In this case, petitioners failed to append to their petition copies, if any, of the pleadings in Civil Case
No. C-425 in which their mother had alleged that the mortgaged property was the family home and
conjugal in nature; and thus, exempt from forced sale under Article 155 of the Family Code.
However, the records of the RTC do not contain such pleadings, as petitioners' mother never alleged
therein that said property was conjugal and was the family home.
Moreover, as gleaned from the Resolution of the CA in CA-G.R. CV No. 57083 dated May 12, 1999,
Elizabeth filed a Manifestation that she was no longer filing any brief, and merely prayed that the
accrued interests be reduced.25 She never claimed in the CA, and even in this Court when she
sought relief via a petition for review on certiorari, that the subject lot was conjugal property and
constituted their family home.
In sum, Elizabeth Mendinueta never alleged in the trial court, in the CA and in this Court that the
property is their family home and is conjugal in nature.
On its face, therefore, petitioners' annulment petition in the CA has no prima facie or substantive
merit.
Further, Section 2, Rule 47 of the Rules of Court provides that a judgment or final order or resolution
in civil actions of the RTC may be annuled only on grounds of extrinsic fraud and lack of jurisdiction.
Jurisdiction is the power and authority of the tribunal to hear, try and decide a case. Jurisdiction does
not depend upon the regularity of the exercise by the Court of that power or on the correctness of its
decision.26 Lack of jurisdiction refers to either lack of jurisdiction over the person of the defending
party or over the subject matter of the action. Lack of jurisdiction or absence of jurisdiction
presupposes that the court should not have taken cognizance of the complaint because the law or
the Constitution does not vest it with jurisdiction over the subject matter.
Jurisdiction over the person of the defendant or respondent is acquired by voluntary appearance or
submission by the defendant/respondent to the court, or by coercive process issued by the court to
such party through service of summons.
Jurisdiction over the subject matter of the claim is conferred by law and is determined by the
allegations of the complaint and the relief prayed for.27 Whether the plaintiff is entitled to recovery
upon all or some of the claims prayed therein is not essential. Jurisdiction over the subject matter is
conferred by the Constitution or by law and not by agreement or consent of the parties. 28 Neither
does it depend upon the defenses of the defendant in his/her answer or in a motion to dismiss.
Where the petition is grounded on lack of jurisdiction over the person of the defendant/respondent or
over the nature or subject matter of the action, petitioners need not allege in the petition that the
ordinary remedy of new trial or reconsideration of the decision or final order or resolution is no longer
available through no fault of his own. This is so because a judgment rendered or a final order or

resolution issued by the RTC without jurisdiction is null and void and may be assailed at any time
either collaterally or in a direct action or by resisting such judgment or final order or proceeding
whenever it is invoked unless barred by laches.29 A judgment rendered without jurisdiction over the
subject matter is void. If a judgment is not void on its face, or from the recitals contained in the
decision, is regular in form, the aggrieved party may file a direct action to annul the judgment and
enjoin its enforcement. If the property subject of the judgment has already been disposed of, he may
institute a suit to recover the property and collaterally attack the judgment. Whether the challenged
decision is void on its face or if the nullity of the judgment is apparent by virtue of its own recital, the
judgment may still be attacked by direct action such as certiorari or by a collateral attack. A judgment
which is void on its face and which requires only an inspection of the judgment roll to demonstrate its
want of vitality is a dead limb upon the judicial tree which should be lopped off. 30
Extrinsic fraud refers to any fraudulent act of the prevailing party in the litigation which is committed
outside of the trial of the case whereby the unsuccessful party has been prevented from exhibiting
fully his case by fraud or deception practiced on him by his opponent. The overriding
consideration when extrinsic fraud is alleged is that the fraudulent scheme of the prevailing litigant
prevented a party from having his day in court.31
In the present recourse, the assailed decision, on its face, is valid. The RTC had jurisdiction over the
person of the defendant. Petitioners do not also assail the jurisdiction of the RTC over the action of
the private respondents for the judicial foreclosure of the real estate mortgage executed by their
mother, Elizabeth Mendinueta, in favor of Charlie Mancilla. Petitioners merely alleged that the RTC
erred in ordering the sale of the property mortgaged to Mancilla, on their claim that it is the conjugal
property of their parents and constitutes their family home.
Assuming, for the nonce, that petitioners' claims are correct, despite which the trial court rendered
judgment in favor of the respondents and ordered the sale thereof at public auction, this error is but
an error in the exercise of its jurisdiction. It is merely an error of judgment which does not affect its
authority to decide the case.32 Thus the remedy of the defendant therein was to appeal the decision
to the CA,33 which, although resorted to, resulted in dismissal for failure to file brief as appellant.
Except for her plea that the accrued interest that she was ordered to pay under the trial court's
decision was inequitable, Elizabeth Mendinueta impliedly admitted the correctness of the appealed
decision.
IN LIGHT OF THE FOREGOING, the petition is DENIED. Costs against the petitioners.
SO ORDERED.
Panganiban, C.J., Ynares-Santiago, Austria-Martinez, Chico-Nazario, J.J., concur.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION
G.R. No. 141849

February 13, 2007

ISABEL JAEL MARQUEZ, CELIA M. IDEA, LUISITA M. ECLAVEA, MELVIRA M. VILLASANTE,

RUEL MARQUEZ, ZAIDA M. SARACENA, and ELOISA M. PENAMORA, Petitioners,
vs.
THE PRESIDING JUDGE (HON. ISMAEL B. SANCHEZ), RTC Br. 58, Lucena City; THE HON.
EXECUTIVE JUDGE OF RTCs of Lucena City; THE DEVELOPMENT BANK OF THE
PHILIPPINES (DBP); and THE PROVINCIAL SHERIFF OF QUEZON PROVINCE, Respondents.
DECISION
VELASCO, JR., J.:
The Case
Before us is a Petition for Review on Certiorari1 under Rule 45 of the Rules of Court, assailing the
November 5, 1998 Decision2 of the Court of Appeals (CA) in CA-G.R. SP No. 29904, which affirmed
the October 29, 1992 and December 23, 1992 Orders of the Lucena City Regional Trial Court (RTC)
Branch 58; and its January 31, 2000 Resolution3 denying Marquezs Motion for Reconsideration. It
raises the core issue of the propriety of the denial by respondent former Lucena City RTC Presiding
Judge Ludivico C. Lopez of Marquezs prayer for a writ of preliminary injunction in Civil Case No. 92150 entitled Marcial M. Marquez v. The Development Bank of the Philippines and the Provincial
Sheriff of Quezon Province for Damages, Cancellation of Mortgage and Certiorari with Prayer for
Issuance of a Writ of Preliminary Injunction and/or Restraining Order.
The Facts
Marcial M. Marquez was an incorporator and officer of Lucena Entrepreneur and Agri-Industrial
Development Corporation (LEAD), which was incorporated on November 26, 1975 primarily to
venture into and engage in commercial deep-sea or "purse seine" fishing. LEADs principals were
graduates of the Development Bank of the Philippines (DBPs) Entrepreneurship Development
Program.
To carry out its objectives, LEAD needed capital for the construction of a fishing vessel and the
procurement of the required equipment and other accessories. It applied for a loan with respondent
DBP, which, on November 9, 1977, granted LEAD an agricultural loan of PhP 2,105,000.00 that
would cover the construction and procurement of the fishing vessel and the required
equipment,4 subject to the required level of capitalization or equity ratio by LEADs principals. 5
Moreover, DBP required that the principals, including Marquez, be held jointly and severally liable
with borrower-corporation DEAL.6 To secure the loan, some of the principals of LEAD, namely, Mr.
and Mrs. Venuso Bibit and Mr. and Mrs. Eduardo Murallon, entered into a Real Estate Mortgage
(REM) of two (2) properties with DBP, particularly those covered by TCT Nos. T-136995 and T140765 with areas of 6,859 square meters and 7,222 square meters, respectively.7

To protect itself from manipulated and/or overpriced contract, the construction of the fishing vessel
and the procurement and installation of the equipment and other accessories were subjected to
DBPs local competitive bidding in consonance with its standing policies. 8 Consequently, Trigon
Engineering and Shipbuilding Corporation (Trigon), based in Cebu City, won the bid and was duly
approved by DBP.9 Thus, the corresponding Boat-building Contract10 was executed by and between
LEAD and Trigon on June 2, 1978, which stipulated, inter alia, that Trigon would complete the work
within 150 calendar days from the perfection of the contract and, as consideration, LEAD would pay
Trigon PhP 1,955,000.00.11
However, there were some problems encountered in the implementation of the loan. First, some
scheduled releases of the loan were withheld by DBP as the capitalization or equity ratio of the
principals of LEAD was not complied with. Second, there were defects in the construction of the
fishing vessel which required compliance by Trigon before any subsequent releases of the loan
could be made. These contretemps delayed the construction of the fishing vessel for over two (2)
years, yet the fishing vessel was only 77.14% complete by then. Third, the delay aggravated the
situation for the boat construction was overtaken by increases in costs of materials and machinery.
Thus, the project could not be completed at the original cost stipulated in the boat construction
contract.
After threshing out the problem through a tripartite conference between LEAD, Trigon, and DBP, it
was agreed that LEAD would get the fishing vessel at its present state and LEAD would complete
the construction and installation of the equipment and accessories, for which DBP would grant LEAD
an additional loan of PhP 714,600.00.12 The additional loan was granted on July 29, 1981 and was
consolidated with the first loan. To secure the additional loan, an additional REM, a second
mortgage, was undertaken by Marquez and his wife on their property covered by TCT No. T-24506
with an area of 3,315 square meters.13 The loan was fully released on February 8, 1982. In short, the
fishing vessel christened "F/B LEAD 1" was completed and launched; and because a chattel
mortgage was constituted on the fishing vessel, together with the machineries and equipment on it,
to secure the loan with DBP, it was insured with the GSIS Property Insurance Fund in favor of DBP
and/or LEAD.
Meanwhile, shortly after the additional loan was fully released to LEAD, on September 3, 1982, DBP
informed LEAD of the arrearage of PhP 906,887.58 of its outstanding loan and to remit PhP
363,022.01 for the loans interest. When LEAD was not able to pay, DBP formed a collection
committee; however, the conferences with LEAD principals yielded negative results.
Subsequently, on the nights of June 21-22, 1985, disaster struck F/B LEAD 1 as it sank off the coast
of Unisan, Quezon at the height of a typhoon. Upon receiving notice of such event, DBP filed an
insurance claim with the GSIS, which covered the fishing vessel for the period 1985-1986, and
collected the proceeds of PhP 1,186,145.00 which DBP applied to the loan account of LEAD on
December 9, 1986.
For having defaulted on its contractual obligations, on July 21, 1992, DBP demanded LEAD and its
principals to settle their outstanding loan obligation, with warning that non-settlement would compel
DBP to institute the necessary legal action to protect its interest, including appropriate actions to
foreclose the mortgaged properties. With the inaction of LEAD and its principals, on August 25,

1992, DBP was compelled to file with the Clerk of Court of the Quezon RTC an application for
foreclosure sale of the REMs constituted to secure its loan with DBP.
On September 3, 1992, the Ex-Officio Provincial Sheriff of Quezon issued a Notice of Extra-Judicial
Sale on October 6, 1992 of the following properties covered by TCT Nos. T-136995, T-140765, and
T-24506 to satisfy the mortgaged indebtedness of PhP 4,595,450.00. 14 The spouses Bibit and
spouses Murallon did not contest the scheduled sale.
Marquez, however, on October 5, 1992, instituted the instant action for Damages, Cancellation of
Mortgage and Certiorari with Prayer for Issuance of a Writ of Preliminary Injunction and/or
Restraining Order before the Lucena City RTC, docketed as Civil Case No. 92-150, to forestall the
extra-judicial foreclosure sale of the property covered by TCT No. T-24506. 15 In gist, Marquez alleged
that LEADs involvement in purse seine fishing was premised substantially on a "partnership" with
DBP and not that of a simple debtorcreditor relationship; that the loan contracts and REM
constituted for them were legally impaired, bereft of consideration, and did not reflect the true and
proper relationship between LEAD and DBP; that DBP was liable for breach of agreement when it
failed to deliver a seaworthy and well-equipped fishing vessel; that DBP reneged on its commitment
to render technical expertise on purse seine fishing when needed most; that LEAD was prejudiced
by DBPs bureaucracy and the controversy with its commissioned boat-builder, Trigon; that having
collected the insurance proceeds from GSIS after the sinking of the fishing vessel, it had
extinguished whatever obligations LEAD had with DBP; and that DBP refused in bad faith to render
an updated accounting or allow Marquez to scrutinize the loan account.
On October 6, 1992, the scheduled day for the extra-judicial sale, respondent Presiding Judge
issued an Order16granting a Temporary Restraining Order (TRO) to maintain the status quo pending
resolution of the prayer for the issuance of a writ of preliminary injunction, and set the hearing on
October 14, 1992 for said action.
On October 14, 1992, respondent judge heard Marquez and DBP on the propriety of issuing the
injunctive writ. Parenthetically, on October 16, 1992, DBP filed its Answer 17 with counterclaims
against Marquez. On October 29, 1992, respondent Judge issued the first assailed Order 18 denying
Marquezs prayed for injunctive writ, to which he filed his Motion for Reconsideration. 19 On December
2, 1992, Marquez filed an Urgent Motion to Restrain20the extra-judicial foreclosure sale scheduled on
December 28, 1992. Earlier, after the order of denial was issued on October 29, 1992, DBP applied
for an extra-judicial foreclosure sale of the property covered by TCT No. T-24506, which was granted
through the Notice of Extra-judicial Sale21 issued on November 24, 1992 by respondent provincial
sheriff.
Subsequently, on December 23, 1992, respondent Judge issued the second assailed
Order22 denying Marquezs Motion for Reconsideration and Urgent Motion to Restrain. Consequently,
on December 28, 1992, as scheduled, Marquezs property covered by TCT No. T-24506 was sold to
DBP as the highest bidder.23
The Ruling of the Court of Appeals

However, the certificate of sale was not issued as Marquez was granted a TRO 24 by the CA through
a Petition for Certiorari25 under Rule 65 of the Rules of Court, where he assailed the Orders denying
the issuance of a preliminary injunction. After DBP filed its Comment26 on April 23, 1993, the CA
rendered the assailed Decision27on November 5, 1998 affirming the RTC Orders. Marquezs Motion
for Reconsideration28 of said Decision was however denied on January 31, 2000.29
The appellate court held that P.D. 385 applied in the instant case and found neither manifest abuse
committed by the trial court nor any grave abuse of discretion amounting to lack or excess of
jurisdiction in denying the issuance of the injunctive writ.
Unfortunately, Marcial M. Marquez died on January 24, 1995.30 He was then substituted by his heirs
on January 20, 1999.31
The Issues
In the instant petition for review filed by the heirs of Marcial M. Marquez, the crucial issue to be dealt
with in this petition is whether the trial court's refusal to grant an injunction against the threatened
extra-judicial foreclosure sale by DBP constitutes grave abuse of judicial discretion amounting to lack
or excess of jurisdiction.
In support of the instant petition, petitioners raise the issues of applicability of P.D. 385, denial of due
process, and the extent of the loan covered by the REM constituted on petitioners realty under TCT
No. T-24506.
However, the petition lacks merit.
Requisites for issuance of injunctive writ
The writ of preliminary injunction is issued to
prevent threatened or continuous irremediable injury to some of the parties before their claims can
be thoroughly studied and adjudicated. Its sole aim is to preserve the status quo until the merits of
the case can be heard fully. Thus, it will be issued only upon a showing of a clear and unmistakable
right that is violated. Moreover, an urgent necessity for its issuance must be shown by the
applicant.32
Under Section 3, Rule 58 of the 1997 Revised Rules of Civil Procedure, the issuance of a writ of
preliminary injunction may be granted if the following grounds are established, thus:
(a) That the applicant is entitled to the relief demanded, and the whole or part of such relief
consists in restraining the commission or continuance of the act or acts complained of, or in
requiring the performance of an act or acts, either for a limited period or perpetually;
(b) That the commission, continuance or non-performance of the act or acts complained of
during the litigation would probably work injustice to the applicant; or

(c) That a party, court, agency or a person is doing, threatening, or is attempting to do, or is
procuring or suffering to be done, some act or acts probably in violation of the rights of the
applicant respecting the subject of the action or proceeding, and tending to render the
judgment ineffectual.
Prescinding from the provisions mentioned above, we have consistently held that the requisites of
preliminary injunction whether mandatory or prohibitory are the following:
(1) the applicant must have a clear and unmistakable right, that is a right in esse;
(2) there is a material and substantial invasion of such right;
(3) there is an urgent need for the writ to prevent irreparable injury to the applicant; and
(4) no other ordinary, speedy, and adequate remedy exists to prevent the infliction of
irreparable injury.33
Requisites for injunctive writ not present
We have reviewed the records and the pleadings of the parties and found that, as contended by
respondent DBP, Marquez and petitioners failed to establish the essential requisites for the issuance
of a writ of preliminary injunction. Hence, the trial court did not commit any manifest abuse nor
gravely abused its discretion amounting to excess or lack of jurisdiction in denying the writ of
preliminary injunction as well as Marquezs Motion for Reconsideration.
Issuance of injunctive writ on sound discretion of the trial court
It is basic that the issuance of a writ of preliminary injunction is addressed to the sound discretion of
the trial court, conditioned on the existence of a clear and positive right of the applicant which should
be protected. It is an extraordinary, peremptory remedy available only on the grounds expressly
provided by law, specifically Section 3, Rule 58 of the Rules of Court.34 Moreover, extreme caution
must be observed in the exercise of such discretion.35 It should be granted only when the court is
fully satisfied that the law permits it and the emergency demands it. 36 The very foundation of the
jurisdiction to issue a writ of injunction rests in the existence of a cause of action and in the
probability of irreparable injury, inadequacy of pecuniary compensation, and the prevention of
multiplicity of suits. Where facts are not shown to bring the case within these conditions, the relief of
injunction should be refused.37
In the instant case, both the trial court and the appellate court found that Marquez was not entitled to
the injunctive writ. Verily, the trial court has exercised its sound discretion in denying the writ. The
exercise of sound judicial discretion by the lower court in injunctive matters should not be interfered
with except in cases of manifest abuse.38 Indeed, a scrutiny of the records fails to show any manifest
abuse committed by respondent Presiding Judge.
Main Issue: Applicability of P.D. 385

P.D. 385 is clearly applicable in the instant case. The trial and appellate courts primary basis for
denying the injunction sought by Marquez was P.D. 385, which makes it mandatory for government
financial institutions x x x to foreclose the collaterals and/or securities for any loan, credit,
accommodation and/or guarantees granted by them whenever their arrearages on such account,
including accrued interest and other charges, amount to at least twenty percent (20%) of the total
outstanding obligations, including interests and other charges, as appearing in the books of account
and/or related records of the financial institution concerned. 39
Pursuant to the aforesaid law:
Sec. 2. No restraining order, temporary or permanent injunction shall be issued by the court against
any government financial institution in any action taken by such institution in compliance with the
mandatory foreclosure provided in Section 1 hereof whether such restraining order, temporary or
permanent injunction is sought by the borrower(s) or any third party or parties, except after due
hearing in which it is established by the borrower and admitted by the government financial
institution concerned that twenty percent (20%) of the outstanding arrearages had been paid after
the filing of foreclosure proceedings x x x (emphasis supplied).
A close examination of the attendant factual milieu of the instant case shows that it is an undisputed
fact that LEAD loaned from DBP PhP 2.105 million and PhP 714,600.00. It is also undisputed that
the spouses Marquez were constituted jointly and severally liable in their personal capacity with
LEAD as regards the loan obligation. And, for the additional loan of PhP 714,600.00, the Marquez
spouses entered into a second mortgage (REM) of their property covered by TCT No. T-24506. As of
September 3, 1992, the loan balance with the arrearages amounted to PhP 4,595,450.00 despite the
previous application of PhP 1,186,145.00 insurance proceeds from the GSIS. The account clearly
reveals that LEAD was in arrears in the payment of the loans. As a consequence, the agreed 14%
per annum interest had to be imposed. Absent any showing by petitioners that LEAD had complied
with the required 20% payment of the arrearages, P.D. 385 must be obeyed.
Petitioners rely on Filipinas Marble Corporation (FMC) v. Court of Appeals40 to bolster their position
that the trial court committed manifest abuse and gravely abused its discretion in denying the
issuance of the prayed for injunctive writ.
We are not convinced.
The FMC case is not on all fours with the instant case. FMC had a $5 million loan with DBP
conditioned on its entering into a three (3)-year management contract with Bancom Systems
Control, Inc. (Bancom), whose key officers shall be appointed only with DBP's approval and made
directly responsible to DBP. In a complaint for annulment of the deeds of mortgage and deed of
assignment in favor of DBP, FMC averred failure of consideration as regards the execution of the
deeds and that DBP and Bancom mismanaged and misspent the loan.
We ruled that we cannot make any conclusions on whether DBP and Bancom actually
misappropriated and misspent the $5 Million loan as this should properly be litigated in the main
action; thus, pending the outcome of such litigation, P.D. 396 cannot automatically be applied for if it
is really proven that respondent DBP was responsible for the misappropriation of the loan, even if

only in part, then the foreclosure of the petitioners' properties under the provisions of P.D. 385 to
satisfy the whole amount of the loan would be a gross mistake and would unduly prejudice FMC. It is
only after trial on the merits can the true amount of the loan which was applied wisely or not, for the
benefit of the petitioner, be determined. And consequently, the foreclosure proceedings under P.D.
385 will have to await the determination of the trial on the merits. Thus, since the issue of
misappropriation of the proceeds of the loan was still being litigated, the liability of FMC for the loan
which was the basis of the mortgage being foreclosed was not yet settled; hence, the Court granted
an injunction against the foreclosure sale.
In the instant case, the factual antecedents of FMC could hardly find parallelism with the factual
milieu of LEAD. While it is true that DBP released most of the 2.105 million loan to Trigon,
nonetheless, it was LEAD which dealt and entered the contract with Trigon and the boat-building
contract duly signed by LEAD principal, Bibit. Moreover, while petitioners questioned the outstanding
amount of the mortgage loan, nevertheless, given the undisputed loans extended to LEAD and the
14% per annum interest stipulated in the loan contracts, the outstanding amount could hardly be
contested given the undisputed delinquency of LEAD. Besides, unlike in FMC, the instant case does
not involve the issues of a management contract and misappropriation of the proceeds of the loan.
It is our ruling in FMC that:
P.D. 385 was never meant to protect officials of government lending institutions who take over the
management of a borrower corporation, lead that corporation to bankruptcy through
mismanagement or misappropriation of its funds, and who, after ruining it, use the mandatory
provisions of the decree to avoid the consequences of their misdeeds.
The designated officers of the government financing institution cannot simply walk away and then
state that since the loans were obtained in the corporations name, then P.D. 385 must be
peremptorily applied and that there is no way the borrower corporation can prevent the automatic
foreclosure of the mortgage on its properties once the arrearages reach twenty percent (20%) of the
total obligation no matter who was responsible.41
This ruling could hardly find application in the instant case. Thus, we now hold that P.D. 385,
proscribing the issuance of an injunctive writ, applies. More so, during the hearing for the issuance of
the injunctive writ, Marquez and petitioners had not shown that 20% of the arrearages of the
mortgage loan had been duly paid.
Petitioners failed to show a right in esse to be protected
We uphold the trial court and CA in their finding that Marquez had not shown a right in esse to be
protected. Indeed, the applicants right must be clear or unmistakable, that is, that the right is actual,
clear and positive especially calling for judicial protection. 42 Thus, an injunction will not issue to
protect a right not in esse and which may never arise or to restrain an act which does not give rise to
a cause of action.
While not preempting the disposition of the main case, a close review of the records at hand would
show that the loan and the REM seem to be above scrutiny. Respondent DBP had shown

documentary evidence of how the assailed transactions transpired, and how and why Marquez and
other LEAD principals signed and agreed to be solidarily liable for LEADs loans as well as their
voluntary mortgage of their properties to secure said loans.
We need to stress that the original loan was granted in 1977 while the additional loan was granted in
1981. Marquez signed as solidarily liable for both loans but constituted a REM of his property (TCT
No. T-24506), on second mortgage, only for the additional loan. It cannot be gainsaid by the
foregoing facts that there was bad faith or malice in DBPs part in granting the loan, much less were
there circumstances shown that Marquez and the other LEAD principals were compelled to enter
into said contracts. Indeed, the acknowledgements in front of a notary public of the loan and REM
contracts show the dealings between the parties to be apparently at arms length. Be that as it may, if
indeed there were defects and lack of consideration in the contracts, Marquez was in delay in
pursuing an action to defend his rights until the time that the foreclosure sale was already well nigh
imminent.
1awphi1.net

Application for injunctive relief construed strictly

The allegations in Marquezs complaint did not clearly make out his entitlement to the injunctive relief
prayed for. The rule requires that in order for a writ of preliminary injunction to issue, the application
should clearly allege facts and circumstances showing the existence of the requisites. 43 It must be
emphasized that an application for injunctive relief is construed strictly against the pleader.44 As
previously discussed, the trial court and the CA were not convinced, based on the pleadings and the
evidence presented in the hearing for the issuance of the injunctive writ, that petitioners
demonstrated a strong basis for the grant of the injunctive writ. The allegations of the complaint on
the defense that the agreement was that of a partnership is at war with the loan and mortgage
documents they signed. Apparently, in resolving the prayer for injunction, the courts a quo relied
more on these documents than the bare averments of petitioners on the alleged partnership.
Second Issue: No Denial of Due Process
We find no denial of due process as alleged by petitioners. They contend that Marquez was denied
his day in court as regards the hearing for the issuance of the injunctive writ on October 14, 1992. A
close scrutiny of the records, specifically the excerpt of the transcript 45 of the October 14, 1992
hearing, shows otherwise. In that hearing, the trial court properly ruled to dispense with the
testimony of Marquez as it already involved the merit of the case. Besides, the points that Marquez
wanted to testify on were included in the verified complaint to prove that the relationship between
LEAD and DBP was not that of a mere debtorcreditor but a form of partnership. This issue has
already been tackled, but we will resolve the main case which cannot be done in a hearing for the
issuance of a writ of preliminary injunction that is a mere ancillary remedy.
Due process is served when the parties are given the opportunity to be heard for the court to
consider every piece of evidence presented in their favor.46 In the instant case, Marquez was present
at the October 14, 1992 hearing and was able to argue his case for the issuance of the injunctive
writ. Thus, he cannot claim that respondent judge denied him due process. Verily, the trial court must
not delve into the primary issues raised in the main action in the hearing for the issuance of an
injunctive writ. The grant of an injunctive writ, being an ancillary remedy, which could result in a

premature resolution of the caseor will grant the principal objectives of the partiesbefore the
merits can be passed upon, is proscribed, and the prayer for the relief will be properly denied, 47 as in
the instant case. Indeed, the evidence required for the trial court to consider during the hearing was
only a sample and intended merely to give it an idea of the justification for the injunctive writ pending
decision of the case on the merits, which must rest on solid grounds.48 As it is, Marquez had been
given ample opportunity to present evidence to support his prayer for the injunctive writ and was
therefore not denied due process.
Third Issue: Mortgage of Family Home
The issue of the property being a family home and not a corporate property veers away from the
clear contractual agreement of the REM. Undeniably, the subject REM was a second mortgage as
Marquez already mortgaged his property (TCT No. T-24506) to another bank. Besides, it bears
stressing that the Marquez spouses were solidarily liable with LEAD for the loans. Thus, respondent
DBP could have even gone after the other properties of the Marquez couple given such solidary
liability for the outstanding loan with DBP. DBP has reasonably and properly exercised its right to
have the property covered by TCT No. T-24506 subjected to an extra-judicial foreclosure sale.
WHEREFORE, we DENY this petition for lack of merit and AFFIRM the assailed CA Decision and
Resolution.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION

G.R. No. 104875 November 13, 1992

FLORANTE F. MANACOP, petitioner,
vs.
COURT OF APPEALS and F.F. CRUZ & CO., INC., respondents.

MELO, J.:
Following the dismissal of his petition for certiorari in C.A.-G.R. SP No. 23651 by the Thirteenth
Division of respondent Court (Justice Buena (P), Gonzaga-Reyes and Abad Santos, Jr., JJ.; Page
60, Rollo), petitioner airs his concern over the propriety thereof by claiming in the petition at hand
that the disposition, in practical effect, allows a writ of preliminary attachment issued by the court of
origin against his corporation to be implemented on his family home which is ordinarily exempt from
the mesne process.
Owing to the failure to pay the sub-contract cost pursuant to a deed of assignment signed between
petitioner's corporation and private respondent herein, the latter filed on July 3, 1989, a complaint for
a sum of money, with a prayer for preliminary attachment, against the former. As a consequence of
the order on July 28, 1989, the corresponding writ for the provisional remedy was issued on August
11, 1989 which triggered the attachment of a parcel of land in Quezon City owned by Manacop
Construction President Florante F. Manacop, herein petitioner.
In lieu of the original complaint, private respondent submitted an amended complaint on August 18,
1989 intended to substitute Manacop Construction with Florante F. Manacop as defendant who is
"doing business under the name and style of F.F. Manacop Construction Co., Inc.". After the motion
for issuance of summons to the substituted defendant below was granted, petitioner filed his answer
to the amended complaint on November 20, 1989.
Petitioner's Omnibus Motion filed on September 5, 1990 grounded on (1) irregularity that attended
the issuance of the disputed writ inspite the absence of an affidavit therefor; (2) the feasibility of
utilizing the writ prior to his submission as party-defendant, and (3) exemption from attachment of his
family home (page 3, Petition; page 8,Rollo), did not merit the serious consideration of the court of
origin. This nonchalant response constrained petitioner to elevate the matter to respondent court
which, as aforesaid, agreed with the trial court on the strength of the ensuing observations:
Anent the petitioner's claim that the writ of attachment was issued without jurisdiction
because of the lack of supporting affidavit, We subscribe to the recent ruling of the
Highest Tribunal that a verified statement incorporated in the complaint without a
separate affidavit is sufficient and valid to obtain the attachment (Nasser vs. Court of
Appeals, 191 SCRA 783). In the case at bar, the original as well as the amended
complaint filed by herein private respondent were verified, in substantial compliance
with the requirements of the law.

Finally, the petitioner insists that the attached property is a family home, having been
occupied by him and his family since 1972, and is therefore exempt from attachment.
The contention is not well-taken.
While Article 153 of the Family Code provides that the family home is deemed
constituted on a house and lot from the time it is occupied as a family residence, it
does not mean that said article has a retroactive effect such that all existing family
residences, petitioner's included, are deemed to have been constituted as family
homes at the time of their occupation prior to the effectivity of the Family Code and
henceforth, are exempt from execution for the payment of obligations incurred before
the effectivity of the Family Code on August 3, 1988 (Mondequillo vs. Breva, 185
SCRA 766). Neither does Article 162 of said Code state that the provisions of
Chapter 2, Title V thereof have retroactive effect. It simply means that all existing
family residences at the time of the effectivity of the Family Code are considered
family homes and are prospectively entitled to the benefits accorded to a family
home under the Family Code (Mondequillo vs. Breva, supra). Since petitioner's debt
was incurred as early as November 25, 1987, it preceded the effectivity of the Family
Code. His property is therefore not exempt from attachment (Annex "O", Plaintiff's
Position Paper and Memorandum of Authorities, p. 78). (pp. 5-6, Decision; pp. 6465, Rollo).
The attempt to reconsider respondent court's stance was to no avail (page 75, Rollo); hence, the
petition at bar.
Did respondent court err in dismissing the challenge posed by petitioner against the denial of his
omnibus motion?
We are not ready to accept the negative aspersions put forward by petitioner against respondent
court in the petition before Us.
Petitioner harps on the supposition that the appellate court should not have pierced the veil of
corporate fiction because he is distinct from the personality of his corporation and, therefore, the writ
of attachment issued against the corporation cannot be used to place his own family home
in custodia legis. This puerile argument must suffer rejection since the doctrine in commercial law
adverted to and employed in exculpation by petitioner, during the pendency of his petition
for certiorari in the appellate court and even at this stage, may not be permitted to simply sprout from
nowhere for such subtle experiment is prescribed by the omnibus motion rule under Section 8, Rule
15 of the Revised Rules of Court, thus:
A motion attacking a pleading or a proceeding shall include all objections then
available, and all objections not so included shall be deemed waived.
The spirit that surrounds the foregoing statutory norm is to require the movant to raise all available
exceptions for relief during a single opportunity so that multiple and piece-meal objections may be

avoided (Rafanan, et al. vs. Rafanan, 98 Phil. 162 [1955]; 1 Martin, Rules of Court with Notes and
Comments, 1989 Rev. Edition, p. 492; Savit vs. Rodas, 73 Phil. 310 [1941]).
Another mistaken notion entertained by petitioner concerns the impropriety of issuing the writ of
attachment on August 11, 1989 when he "was not yet a defendant in this case." This erroneous
perception seems to suggest that jurisdiction over the person of petitioner, as defendant below, must
initially attach before the provisional remedy involved herein can be requested by a plaintiff.
A contrario, Chief Justice Narvasa obliterated this unfounded assertion in Davao Light and Power
Co., Inc. vs. Court of Appeals (204 SCRA [1991]) whose dissertation on the subject as related and
applied to the present inquiry is quite enlightening:
It is incorrect to theorize that after an action or proceeding has been commenced and
jurisdiction over the person of the plaintiff has been vested in the court, but before
the acquisition of jurisdiction over the person of the defendant (either by service of
summons or his voluntary submission to the court's authority), nothing can be validly
done by the plaintiff or the court. It is wrong to assume that the validity of acts done
during this period should be dependent on, or held in suspension until, the actual
obtention of jurisdiction over the defendant's person. The obtention by the court of
jurisdiction over the person of the defendant is one thing; quite another is the
acquisition of jurisdiction over the person of the plaintiff or over the subject-matter or
nature of the action, or the res or object thereof.
An action or proceeding is commenced by the filing of the complaint or other initiatory
pleading. By that act, the jurisdiction of the court over the subject matter or nature of
the action or proceeding is invoked or called into activity, and it thus that the court
acquires over said subject matter or nature of the action. And it is by that self-same
act of the plaintiff (or petitioner) of filing the complaint (or other appropriate pleading)
by which he signifies his submission to the court's power and authority that
jurisdiction is acquired by the court over his person. On the other hand, jurisdiction
over the person of the defendant is obtained, as above stated, by the service of
summons or other coercive process upon him or by his voluntary submission to the
authority of the court.
The events that follow the filing of the complaint as a matter of routine are well
known. After the complaint is filed, summons issues to the defendant, the summons
is then transmitted to the sheriff, and finally, service of the summons is effected on
the defendant in any of the ways authorized by the Rules of Court. There is thus
ordinarily some appreciable interval of time between the day of filing of the complaint
and the day of service of summons of the defendant. During this period, different acts
may be done by the plaintiff or by the Court, which are of unquestionable validity and
propriety. Among these, for example, are the appointment of a guardian ad litem, the
grant of authority to the plaintiff to prosecute the suit as a pauper litigant, the
amendment of the complaint by the plaintiff as a matter of right without leave of court,
authorization by the Court of service of summons by publication, the dismissal of the
action by the plaintiff on mere notice.

This, too, is true with regard to the provisional remedies of preliminary attachment,
preliminary injunction, receivership or replevin. They may be validly and properly
applied for and granted even before the defendant is summoned or heard from.
A preliminary attachment may be defined, paraphrasing the Rules of Court, as the
provisional remedy in virtue of which a plaintiff or other proper party may, at the
commencement of the action or at any time thereafter, have the property of the
adverse party taken into the custody of the court as security for the satisfaction of
any judgment that may be recovered. It is a remedy which is purely statutory in
respect of which the law requires a strict construction of the provisions granting it.
Withal no principle, statutory or jurisprudential, prohibits its issuance by any court
before acquisition of jurisdiction over the person of the defendant.
Rule in fact speaks of the grant of the remedy "at the commencement of the action or
at any time thereafter," The phrase, "at the commencement of the action," obviously
refers to the date of the filing of the complaint which, as above pointed out, is the
date that marks "the commencement of the action; and the reference plainly is to a
time before summons is served on the defendant, or even before summons issues.
What the rule is saying quite clearly is that after an action is properly commenced
by the filing of the complaint and the payment of all requisite docket and other fees
the plaintiff may apply for and obtain a writ of preliminary attachment upon
fulfillment of the pertinent requisites laid down by law, and that he may do so at any
time, either before or after service of summons on the defendant. And this indeed,
has been the immemorial practice sanctioned by the courts: for the plaintiff or other
proper party to incorporate the application for attachment in the complaint or other
appropriate pleading (counterclaim, cross-claim, third-party claim) and for the Trial
Court to issue the writ ex-parte at the commencement application otherwise sufficient
in form and substance. (at pp. 347-350.)
Petitioner seeks to capitalize on the legal repercussion that ipso facto took place when the complaint
against him was amended. He proffers the idea that the extinction of a complaint via a superseding
one carries with it the cessation of the ancilliary writ of preliminary attachment. We could have
agreed with petitioner along this line had he expounded the adverse aftermath of an amended
complaint in his omnibus motion. But the four corners of his motion in this respect filed on
September 5, 1990 are circumscribed by other salient points set forth by Us relative to the propriety
of the assailed writ itself. This being so, petitioner's eleventh hour effort in pressing a crucial factor
for exculpation must be rendered ineffective and barred by the omnibus motion rule.
Lastly, petitioner is one of the belief that his abode at Quezon City since 1972 is a family home within
the purview of the Family Code and therefore should not have been subjected to the vexatious writ.
Yet, petitioner must concede that respondent court properly applied the discussion conveyed by
Justice Gancayco in this regard when he spoke for the First Division of this Court in Modequillo vs.
Breva (185 SCRA 766 [1990]) that:
Article 155 of the Family Code also provides as follows:

Art. 155. The family home shall be exempt from execution, forced
sale or attachment except:
(1) For non-payment of taxes;
(2) For debts incurred prior to the constitution of the family home;
(3) For debts secured by mortgages on the premises before or after
such constitution; and
(4) For debts due to laborers, mechanics, architects, builders,
materialmen and others who have rendered service for the
construction of the building.
The exemption provided as aforestated is effective from the time of the constitution of
the family home as such, and lasts so long as any of its beneficiaries actually resides
therein.
In the present case, the residential house and lot of petitioner was constituted as a
family home whether judicially or extrajudicially under the Civil Code. It became a
family home by operation of law under Article 153 of the Family Code. It is deemed
constituted as a family home upon the effectivity of the Family Code on August 3,
1988 not August 4, one year after its publication in the Manila Chronicle on August 4,
1987 (1988 being a leap year).
The contention of petitioner that it should be considered a family home from the time
it was occupied by petitioner and his family in 1969 is not well-taken. Under Article
162 of the Family Code, it is provided that "the provisions of this Chapter shall also
govern existing family residences insofar as said provisions are applicable." It does
not mean that Articles 152 and 153 of said Code have a retroactive effect such that
all existing family residences are deemed to have been constituted as family homes
at the time of their occupation prior to the effectivity of the Family Code and are
exempt from execution for the payment of obligations incurred before the effectivity
of the Family Code. Article 162 simply means that all existing family residences at the
time of the effectivity of the Family Code, are considered family homes and are
prospectively entitled to the benefits accorded to a family home under the Family
Code. Article 162 does not state that the provisions of Chapter 2, Title V have a
retroactive effect.
Is the family home of petitioner exempt from execution of the money judgment
aforecited? No. The debt or liability which was the basis of the judgment arose or
was incurred at the time of the vehicular accident on March 16, 1976 and the money
judgment arising therefrom was rendered by the appellate court on January 29,
1988. Both preceded the effectivity of the Family Code on August 3, 1988. This case
does not fall under the exemptions from execution provided in the Family Code. (at
pp. 771-772).

Verily, according to petitioner, his debt was incurred in 1987 or prior to the effectivity on August 3,
1988 of the Family Code (page 17, petition; page 22, Rollo). This fact alone will militate heavily
against the so-called exemption by sheer force of exclusion embodied under paragraph 2, Article
155 of the Family Code cited inModequillo.
WHEREFORE, the petition is hereby DISMISSED, with costs against petitioner.
SO ORDERED.
Bidin, Davide and Romero, JJ., concur.