Civil Procedure | Atty. Catherine M.
Guerzo-Barrion (2016-2017)
CIVIL PROCEDURE
4TH EXAM CASES
RULE 39
RULE 39
EXECUTION, SATISFACTION AND EFFECT OF JUDGMENT
Section 1. Execution upon judgments or final
orders. Execution shall issue as a matter of right, or
motion, upon a judgment or order that disposes of the
action or proceeding upon the expiration of the period to
appeal therefrom if no appeal has been duly perfected.
(1a)
If the appeal has been duly perfected and finally
resolved, the execution may forthwith be applied for in the
court of origin, on motion of the judgment obligee,
submitting therewith certified true copies of the judgment
or judgments or final order or orders sought to be enforced
and of the entry thereof, with notice to the adverse party.
The appellate court may, on motion in the same
case, when the interest of justice so requires, direct the
court of origin to issue the writ of execution. (n)
BAN HUA FLOREZ VS. UBS
July 27, 2007
As a matter of settled legal principle, a writ of
execution must adhere to every essential particulars of the
judgment sought to be executed. It may not alter, or go
beyond the terms of the judgment it seeks to enforce.19An
order of execution not warranted by, or that varies the
tenor of the judgment which gives it life is a nullity.20
Applying the foregoing principle to the concrete,
the execution of the Courts May 31, 2000 Decision ought
to correspond to what it dispositively ordered. Elsewise
stated, the July 17, 2002 execution order of the SEC en
banc must conform to the dispositive part of the Courts
May 31, 2000 Decision in G.R. No. 130328.
It may be that what can be the subject of execution
is that which is ordained only in the dispositive
portion.23 Still, the body of the decision could provide
guidance to determine the ratio decidendi or the reasons
or conclusions of the court.
It may be that what can be the subject of execution
is that which is ordained only in the dispositive
portion.23 Still, the body of the decision could provide
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guidance to determine the ratio decidendi or the reasons
or conclusions of the court.
LUCIO COLLADO VS. HEIRS OF TRIUNFANTE
November 23, 2007
WHETHER OR NOT A SEPARATE AND INDEPENDENT
ACTION FOR DAMAGES ARISING OUT OF THE
IMPLEMENTATION OF A WRIT OF EXECUTION IN AN
EJECTMENT CASE IS NOT COGNIZABLE BY THE REGIONAL
TRIAL COURT.21
The petition is bereft of merit. An independent
action for damages based on the implementation of a writ
of execution cannot be sustained.
The court which rendered the judgment has
control over the processes of execution. The power carries
with it the right to determine every question of fact and
law which may be involved in the execution.22 Thus, the
MTC which issued the Decision in the forcible entry case
retains general jurisdiction over matters arising from the
execution of the said Decision. If the officers who executed
the writ of execution committed any irregularity or
exceeded their authority in the enforcement of the writ,
the proper recourse of Collado would have been to file a
motion with or an application for relief from the same
court which issued the Decision, not from any other court.
It should also be borne in mind that the action for
damages arose from a lawful order of a competent court
which had become final and executory. The writ of
execution and the writ of demolitions issued by the MTC to
enforce its Decision in the forcible entry case are proper in
the ordinary course of law. Collado cannot claim that, not
being a party to the action in the forcible entry case, his
rights should not be prejudiced by the Decision therein. As
adjudged by the RTC and sustained by the CA, Collado
bought the property while it was still under litigation. He is
the successor-in-interest of one of the real parties in the
ejectment case. He acquired only the interest and stepped
into the shoes of his predecessor who was a party. As such,
he is bound by the ruling therein.
The damages sustained by Collado as a result of
the enforcement of the writ of execution should have been
raised as a claim in an appeal from the Decision of the
MTC. However, due to inadvertence, his predecessor-in-
interest filed a belated appeal which was properly denied.
A perusal of the allegations of Collado in the complaint for
damages with the RTC reveals that what he wanted was for
the RTC to nullify the Decision of the MTC and declare him
as the owner of the property. Since his aim is to recover
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possession and ultimately ownership of the property,
Collado should have filed the appropriate remedy under
the law for the recovery of ownership of real property. The
MTC ruled only on the issue of ownership in order to
ascertain the issue of possession and its ruling is only
provisional as to the issue of ownership. Collados action
for damages is inappropriate, because the basis for the suit
is his alleged ownership of the property. That issue should
first be resolved before a claim for damages can be
sustained.
ANAMA VS. CA
January 25, 2012
Elementary is the rule that every motion must
contain the mandatory requirements of notice and hearing
and that there must be proof of service thereof. The Court
has consistently held that a motion that fails to comply
with the above requirements is considered a worthless
piece of paper which should not be acted upon. The rule,
however, is not absolute. There are motions that can be
acted upon by the court ex parte if these would not cause
prejudice to the other party. They are not strictly covered
by the rigid requirement of the rules on notice and hearing
of motions.
The motion for execution of the Spouses Co is such
kind of motion. It cannot be denied that the judgment
sought to be executed in this case had already become
final and executory. As such, the Spouses Co have every
right to the issuance of a writ of execution and the RTC has
the ministerial duty to enforce the same. This right on the
part of the Spouses Co and duty on the part of the RTC are
based on Section 1 and Section 2 of Rule 39 of the 1997
Revised Rules of Civil Procedure provides, as follows:
Section 1. Execution upon judgments or
final orders. Execution shall issue as a matter of
right, on motion, upon a judgment or order that
disposes of the action or proceeding upon the
expiration of the period to appeal therefrom if no
appeal has been duly perfected.
If the appeal has been duly perfected and finally
resolved, the execution may forthwith be applied for in the
court of origin, on motion of the judgment obligee,
submitting therewith certified true copies of the judgment
or judgments or final order or orders sought to be enforced
and of the entry thereof, with notice to the adverse party.
The appellate court may, on motion in the same case,
when the interest of justice so requires, direct the court of
origin to issue the writ of execution.
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SEC. 2. Discretionary execution.
(a) Execution of a judgment or final order pending
appeal. On motion of the prevailing party with
notice to the adverse party filed in the trial court
while it has jurisdiction over the case and is in
possession of either the original record or the
record on appeal, as the case may be, at the time
of the filing of such motion, said court may, in its
discretion, order execution of a judgment or final
order even before the expiration of the period to
appeal.
After the trial court has lost jurisdiction,
the motion for execution pending appeal may be
filed in the appellate court.
Discretionary execution may only issue
upon good reasons to be stated in a special order
after due hearing.
(b) Execution of several, separate or partial
judgments.A several, separate or partial
judgment may be executed under the same terms
and conditions as execution of a judgment or final
order pending appeal. (2a) [Emphases and
underscoring supplied]
As can be gleaned therefrom, under Paragraph 1 of
Section 1 of Rule 39 of the 1997 Revised Rules of Civil
Procedure, the Spouses Co can have their motion for
execution executed as a matter of right without the
needed notice and hearing requirement to petitioner. This
is in contrast to the provision of Paragraph 2 of Section 1
and Section 2 where there must be notice to the adverse
party. In the case of Far Eastern Surety and Insurance
Company, Inc. v. Virginia D. Vda. De Hernandez,5 it was
written:
It is evident that Section 1 of Rule 39 of
the Revised Rules of Court does not prescribe that
a copy of the motion for the execution of a final
and executory judgment be served on the
defeated party, like litigated motions such as a
motion to dismiss (Section 3, Rule 16), or motion
for new trial (Section 2, Rule 37), or a motion for
execution of judgment pending appeal (Section 2,
Rule 39), in all of which instances a written notice
thereof is required to be served by the movant on
the adverse party in order to afford the latter an
opportunity to resist the application.
It is not disputed that the judgment sought
to be executed in the case at bar had already
become final and executory. It is fundamental that
the prevailing party in a litigation may, at any time
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within five (5) years after the entry thereof, have a
writ of execution issued for its enforcement and
the court not only has the power and authority to
order its execution but it is its ministerial duty to
do so. It has also been held that the court cannot
refuse to issue a writ of execution upon a final and
executory judgment, or quash it, or order its stay,
for, as a general rule, the parties will not be
allowed, after final judgment, to object to the
execution by raising new issues of fact or of law,
except when there had been a change in the
situation of the parties which makes such
execution inequitable or when it appears that the
controversy has ever been submitted to the
judgment of the court; or when it appears that the
writ of execution has been improvidently issued, or
that it is defective in substance, or is issued against
the wrong party, or that judgment debt has been
paid or otherwise satisfied; or when the writ has
been issued without authority. Defendant-
appellant has not shown that she falls in any of the
situations afore-mentioned. Ordinarily, an order of
execution of a final judgment is not appealable.
Otherwise, as was said by this Court in Molina v. de
la Riva, a case could never end. Once a court
renders a final judgment, all the issues between or
among the parties before it are deemed resolved
and its judicial function as regards any matter
related to the controversy litigated comes to an
end. The execution of its judgment is purely a
ministerial phase of adjudication. The nature of its
duty to see to it that the claim of the prevailing
party is fully satisfied from the properties of the
loser is generally ministerial.
In Pamintuan v. Muoz, We ruled that
once a judgment becomes final and executory, the
prevailing party can have it executed as a matter
of right, and the judgment debtor need not be
given advance notice of the application for
execution.
Also of the same stature is the rule that
once a judgment becomes final and executory, the
prevailing party can have it executed as a matter of
right and the granting of execution becomes
a ministerial duty of the court. Otherwise stated,
once sought by the prevailing party, execution of a
final judgment will just follow as a matter of
course. Hence, the judgment debtor need not be
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given advance notice of the application for
execution nor he afforded prior hearing.
Absence of such advance notice to the
judgment debtor does not constitute an
infringement of the constitutional guarantee of
due process.
However, the established rules of our
system of jurisprudence do not require that a
defendant who has been granted an opportunity to
be heard and has had his day in court should, after
a judgment has been rendered against him, have a
further notice and hearing before supplemental
proceedings are taken to reach his property in
satisfaction of the judgment. Thus, in the absence
of a statutory requirement, it is not essential that
he be given notice before the issuance of an
execution against his tangible property; after the
rendition of the judgment he must take "notice of
what will follow," no further notice being
"necessary to advance justice." [Emphases and
underscoring supplied]
Likewise, in the case of Leonardo Lim De Mesa v.
Hon. Court of Appeals,6 it was stated:
In the present case, the decision ordering
partition and the rendition of accounting had
already become final and executory. The execution
thereof thus became a matter of right on the part
of the plaintiffs, herein private respondents, and is
a mandatory and ministerial duty on the part of the
court. Once a judgment becomes final and
executory, the prevailing party can have it
executed as a matter of right, and the judgment
debtor need not be given advance notice of the
application for execution nor be afforded prior
hearings thereon.
On the bases of the foregoing
considerations, therefore, the Court of Appeals
acted correctly in holding that the failure to serve a
copy of the motion for execution on petitioner is
not a fatal defect. In fact, there was no necessity
for such service. [Emphases and underscoring
supplied]
At any rate, it is not true that the petitioner was
not notified of the motion for execution of the Spouses Co.
The records clearly show that the motion for execution was
duly served upon, and received by, petitioners counsel-of-
record, the Quasha Ancheta Pena Nolasco Law Offices, as
evidenced by a "signed stamped received mark" appearing
on said pleading.7 The records are bereft of proof showing
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any written denial from petitioners counsel of its valid
receipt on behalf of its client. Neither is there proof that
the Quasha Ancheta Pena Nolasco Law Offices has formally
withdrawn its appearance as petitioners counsel-of-
record. Considering that there is enough proof shown on
record of personal delivery in serving the subject motion
for execution, there was a valid compliance with the Rules,
thus, no persuasive reason to stay the execution of the
subject final and executory judgment.
Section 2. Discretionary execution.
(a) Execution of a judgment or final order pending
appeal. On motion of the prevailing party with notice to
the adverse party filed in the trial court while it has
jurisdiction over the case and is in possession of either the
original record or the record on appeal, as the case may be,
at the time of the filing of such motion, said court may, in
its discretion, order execution of a judgment or final order
even before the expiration of the period to appeal.
After the trial court has lost jurisdiction the motion
for execution pending appeal may be filed in the appellate
court.
Discretionary execution may only issue upon good
reasons to be stated in a special order after due
hearing.
(b) Execution of several, separate or partial
judgments. A several, separate or partial judgment may
be executed under the same terms and conditions as
execution of a judgment or final order pending appeal. (2a)
ITC VS. PTA
September 26, 2000
Preliminarily, we find that the petition was not
rendered moot or illusory by the fact that execution was
effected and possession of the tennis courts restored to
private respondents. The resolution of the instant petition
requires a determination of whether respondent Court of
Appeals gravely abused its discretionary power to order
execution pending appeal as prescribed in Section 2, Rule
39 of the 1997 Revised Rules of Court, and where such
grave abuse of discretion is established the execution
pending appeal pursuant to the resolutions of respondent
court may be voided. Thus, the Court finds that the petition
presents a live and justiciable controversy.
Section 2, Rule 39 of the Revised Rules of Court
reads ---
Discretionary execution. ---
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(a) Execution of a judgment or final order
pending appeal. --- On motion of the prevailing
party with notice to the adverse party filed in the
trial court while it has jurisdiction over the case
and is in possession of either the original record or
the record on appeal, as the case may be, at the
time of the filing of such motion, said court may, in
its discretion, order execution of a judgment or
final order even before the expiration of the period
to appeal.
After the trial court has lost jurisdiction,
the motion for execution pending appeal may be
filed in the appellate court.
Discretionary execution may only issue
upon good reasons to be stated in a special order
after due hearing.
Based on the foregoing provisions, respondent
court may order execution pending appeal subject to the
following conditions: (1) there must be a judgment or final
order; (2) the trial court must have lost jurisdiction over
the case; (3) there must be "good reasons" to allow
execution; and (4) such good reasons must be stated in a
special order after due hearing.
Undoubtedly, the RTC order dated August 5, 1997
which granted private respondents motion to dismiss and
lifted the writ of preliminary injunction is a "final order"
within the contemplation of Section 2, Rule 39 of the
Revised Rules of Court. Petitioners maintain that the said
RTC order could not be the proper subject of execution
because it was still appealed to respondent court, but this
merely confuses the concept of a "final" judgment or order
from one which has "become final" (or to use the more
established term, "final and executory") --- a distinction
that is definite and settled.
A "final" judgment or order is one that finally
disposes of a case, leaving nothing more for the court to do
in respect thereto --- such as an adjudication on the merits
which, on the basis of the evidence presented at the trial,
declares categorically what the rights and obligations of
the parties are and which party is in the right, or a
judgment or order that dismisses an action on the ground
of res judicata or prescription, for instance.24 It is to be
distinguished from an order that is "interlocutory", or one
that does not finally dispose of the case, such as an order
denying a motion to dismiss under Rule 16 of the Rules of
Court, or granting a motion for extension of time to file a
pleading. As such, only final judgments or orders (as
opposed to interlocutory orders) are appealable. Now, a
"final" judgment or order in the sense just described
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becomes "final and executory" upon expiration of the
period to appeal therefrom where no appeal has been duly
perfected or, an appeal therefrom having been taken, the
judgment of the appellant court in turn becomes final. It is
called a "final and executory" judgment because execution
at such point issues as a matter of right.25
By its provisional nature, the remedy of execution
pending appeal requires only a "final" judgment or order
(as distinguished from an "interlocutory" order) and not a
"final and executory" judgment or order. In the instant
case, the RTC order dated August 5, 1997 which granted
private respondents motion to dismiss, lifted the writ of
preliminary injunction and held private respondents
entitled to possess the Victoria Tennis Courts is a final
order within the contemplation of Section 2, Rule 39 of the
Revised Rules of Court, inasmuch as it makes an
adjudication on the merits of the case and dismisses
petitioners action. Petitioners, in fact, impliedly recognized
the finality of this RTC order when they filed an ordinary
appeal (and not a petition for certiorari) therefrom with
respondent court.
RUFINO VALENCIA VS. CA
February 19, 2001
Finally, should a writ of execution pending appeal
be allowed? Section 2, Rule 39 of the Rules of Court,
provides that upon motion, the court may, in its discretion,
order execution to issue even before the expiration of the
time to appeal, upon good reasons to be stated in a special
order. Petitioner, citing Echauz vs. CA, et al., 199 SCRA 381,
386 (1991), states that generally, execution is allowed
when superior circumstances demanding urgency
outweigh the damages that may result from the issuance
of the writ. Consequently, petitioner says that a writ of
execution should be issued in his favor not only because he
is entitled, under the law, to the possession of the
fishpond, such that he can take possession of the same
without a writ of execution, but also because the issuance
of such writ will prevent a bloody confrontation between
the parties.
Private respondents respond that the trial court
did not abuse its discretion since appreciation of the
reasons for execution pending appeal lies within its sound
discretion.
We agree with private respondents. Other than his
self-serving claim that he would suffer damage with private
respondents' continued possession of the fishpond,
petitioner offered no convincing proof. His insistence that
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the trial court's decision upholding the lease agreement
between him and RCBM already entitled him to possession
of the fishponds even without a writ and despite appeal
is premature. It is not enough for him to claim he needed a
writ of execution without detailing cogent and good
reasons therefor. The trial court was within its bounds
when it considered his imagined fears of a bloody
confrontation not enough reason to issue the writ.
FLEXO VS. COLUMBUS
April 11, 2005
As a general rule, the execution of a judgment
should not be had 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 appeal
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." Execution pending appeal in accordance with
Section 2 of Rule 39 of the Rules of Court is, therefore, the
exception.13
Execution pending appeal requires the observance
of the following requisites: (a) there must be a motion
therefor by the prevailing party; (b) there must be a good
reason for issuing the writ of execution; and (c) the good
reason must be stated in a special order.14
Since the execution of a judgment pending appeal
is an exception to the general rule, the existence of "good
reasons" is essential.15 "Good reasons" has been held to
consist of compelling circumstances justifying the
immediate execution lest judgment becomes illusory. Such
reasons must constitute superior circumstances
demanding urgency which will outweigh the injury or
damages should the losing party secure a reversal of the
judgment.16 The rules do not specify the "good reasons" to
justify execution pending appeal, thus, it is the discretion
of the court to determine what may be considered as such.
In the instant case, the first demand letter for the
undelivered goods was sent on June 6, 2000. Therefore, it
can be assumed that the foil pouches have been processed
prior to this date. Since the lifetime of the product is one
year after which they start to deteriorate,17 the foil
pouches had deteriorated when Flexo filed the complaint
on February 6, 2002. When the trial court promulgated its
decision on December 11, 2002, two and a half years had
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already elapsed. As such, the foil pouches were over and
beyond its shelf life and unfit to be utilized.
In Yasuda v. Court of Appeals,18 we discussed cases
where the court granted execution pending appeal on the
ground of deteriorating goods, to wit:
In Federation of United Namarco Distributors, Inc.
v. National Marketing Corp., this Court sustained the good
reasons stated by the trial court in its order, namely: that
the goods subject matter of the judgment will deteriorate
during the pendency of the appeal; and that a slight
deterioration of said goods will be sufficient to impair their
market value as first-hand goods; hence, keeping them in
storage pending petitioners appeal will render the
judgment in favor of respondents ineffectual, as
respondents interest in the goods is not that of
consuming, but of marketing, them.
In the case of Bell Carpets International Trading
Corp. v. Court of Appeals, a writ of execution pending
appeal was likewise allowed on the ground that "the
finished goods [yarn] that were attached easily deteriorate
and go out of fashion insofar as the shades and colors are
concerned, thus making them unsaleable, and their
continued storage will only make them dirty and further
depreciate their value.
In the present case, petitioner, in his Motion for
Execution Pending Appeal, cites as a ground for its
allowance, the deteriorating condition of the vessel, M/V
"Valiant". He claims that the vessel has been left to rot at
the pier and without a crew to guard it. It is in grave danger
of losing its value. The vessel, practically abandoned, is
exposed to the varied elements of nature, such as rains and
storms, not to mention human elements such as invasion
or robbery. The defendants, in their Opposition to
petitioners Motion for Execution Pending Appeal, failed to
controvert these allegations. In our view the grounds
raised by petitioner are good reasons to allow execution
pending appeal.
The aforementioned cases involved compelling
circumstances where the party had an urgent need for
execution pending appeal. On the other hand, the case at
bar does not demonstrate superior circumstances
demanding urgency. In fact, the time for urgency had
already lapsed even before the case was filed.
ALPA-PCM VS. BULASAO
March 19, 2012
Execution pending appeal of decisions in ejectment cases
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Rule 42 of the Rules of Court governs the appeal of
a decision of the RTC rendered in the exercise of its
appellate jurisdiction; the appeal is made by filing a
petition for review with the CA.10 Despite the filing of a
petition with the CA, however, Rule 42 grants the RTC
residual jurisdiction to order execution pending appeal, so
long as (1) the CA has not yet given due course to the
petition, and (2) the requirements of Section 2, Rule 39 are
observed. The relevant portion of Section 8, Rule 42 of the
Rules of Court states:
Section 8. Perfection of appeal; effect thereof
(a) x x x
However, before the Court of Appeals gives due
course to the petition, the Regional Trial Court may
issue orders for the protection and preservation of
the rights of the parties which do not involve any
matter litigated by the appeal, approve
compromises, permit appeals of indigent litigants,
order execution pending appeal in accordance with
Section 2 of Rule 39, and allow withdrawal of the
appeal.
xxxx
Under Section 6, Rule 42 of the Rules of Court, the CA can
give due course to a petition for review when it finds prima
facie that the lower court has committed an error of fact or
law that will warrant a reversal or modification of the
appealed decision.11 This initial determination by the CA
can take place only when the proper pleadings have
actually been filed before the CA, enabling it to study the
facts of the case and the alleged errors of the assailed
ruling. In other words, the CA can give due course to an
appeal of the RTC decision only (1) after the filing of a
petition for review, and (2) upon the filing of the comment
or other pleading required by the CA, or the expiration of
the period for the filing thereof without such comment or
pleading having been submitted.
When the RTC granted the Bulasaos motion for
execution pending appeal on November 21, 2007, ALPA-
PCM has not yet filed its petition for review with the CA;
what ALPA-PCM filed on November 13, 2007 was only a
motion for extension of time to file its petition. In the
absence of any petition for review actually filed with the
CA, the CA could clearly not have given due course to
ALPA-PCMs appeal. The RTC, thus, retained its residual
jurisdiction over the case to authorize execution of the
decision.
The Court also fails to find anything irregular in the
filing by the Bulasaos of a motion for execution ahead of
the filing by ALPA-PCM of its motion for reconsideration of
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the RTC decision. ALPA-PCM misconstrues our ruling in JP cases governed by it. This objective provides the "good
Latex Technology, Inc. v. Ballons Granger Balloons, reason" that justifies immediate execution of the decision,
Inc.12 The ruling does not prevent the prevailing party from if the standards of Section 2, Rule 39 of the Rules of Court
filing a motion for execution until after the adverse party on execution pending appeal, as what ALPA-PCM insists,
has filed a motion for reconsideration of the judgment. The are considered.
RTC, however, is precluded from acting on the motion for
execution until it has resolved the motion for Section 6. Execution by motion or by independent
reconsideration. In the present case, the RTC heeded this action. A final and executory judgment or order may be
rule, as it granted the Bulasaos motion for execution only executed on motion within five (5) years from the date of
after it has resolved to deny ALPA-PCMs motion for its entry. After the lapse of such time, and before it is
reconsideration of its decision. barred by the statute of limitations, a judgment may be
enforced by action. The revived judgment may also be
Immediate execution of the RTC decision on appeal to CA enforced by motion within five (5) years from the date of
or SC its entry and thereafter by action before it is barred by the
After affirming the RTCs power to allow execution, statute of limitations. (6a)
we now consider ALPA-PCMs claim that the RTC must
nonetheless cite good reasons justifying execution, citing ENRIQUEZ VS. CA
as basis Section 2, Rule 39 of the Rules of Court. December 14, 2001
The Court reminds ALPA-PCM, particularly its
counsel, Atty. Guillermo R. Bandonil, Jr., that this case The core issue is on the requisites for an action to
originated from the complaint for unlawful detainer filed revive judgment. Did private respondents have to prove
by the Bulasaos against it. Actions for unlawful detainer are the enforceability of the judgment?
governed primarily by the Revised Rules on Summary Sec. 6 Rule 39 of the Rules of Court states that an
Procedure13 and suppletorily by the Rules of action to revive judgment only requires proof of a final
Court.14Section 21 of the Revised Rules on Summary judgment which has not prescribed and has remained
Procedure states that: unexecuted after the lapse of five (5) years but not more
Sec. 21. Appeal. The judgment or final than ten (10) years from its finality.6 Nowhere does the
order shall be appealable to the appropriate rule require proof that the judgment is still enforceable by
regional trial court which shall decide the same in and against the original parties who have died. While the
accordance with Section 22 of Batas Pambansa Blg. action is still subject to defenses and counterclaims which
129. The decision of the regional trial court in civil arose after the judgment became effective, proof of the
cases governed by this Rule, including forcible death of some of the parties is not required because the
entry and unlawful detainer, shall be immediately judgment call still be enforced by the executor,
executory, without prejudice to a further appeal administrator or successor-in-interest of the judgment
that may be taken therefrom. Section 10 of Rule 70 creditor against the judgment debtor.7
shall be deemed repealed. [emphasis and further alleged that respondents are not the
underscoring ours]1wphi1 owners of the subject premises, hence the action must fail.
The above rule, without any qualification An action to revive judgment is not meant to retry the case
whatsoever, has decreed the immediately executory all over again.8 Its cause of action is the judgment itself and
nature of decisions of the RTC rendered in the exercise of not the merits of the original action.9 The non-ownership
its appellate jurisdiction, involving cases falling under the by private respondents refer to the merits of the first civil
Revised Rules on Summary Procedure. It requires no case which has long been decided with finality and thus
further justification or even "good reasons" for the RTC to become conclusive between the parties.
authorize execution, even if an appeal has already been
filed before the CA. Indeed, the provision does not even FRANCISCO MOTORS VS. CA
require a bond to be filed by the prevailing party to allow October 23, 2006
execution to proceed.15 The rationale for this is the
objective of the Revised Rules on Summary Procedure to There is no dispute that the judgment sought to be
achieve an expeditious and inexpensive determination of enforced by private respondent was the January 17, 1980

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 Civil Procedure | Atty. Catherine M. Guerzo-Barrion (2016-2017)
Decision of the CA which became final on July 13, 1981.
Petitioner asserts, however, that judgments can be
enforced by mere motion within five years from finality
and since private respondents Motion to Enforce the
Motion to Execute was filed only on June 10, 1987, said
Motion had already prescribed.
Section 6, Rule 39 of the Revised Rules of Court
states:
SEC. 6. Execution by motion or by
independent action A final and executory
judgment or order may be executed on motion
within five (5) years from the date of its entry.
After the lapse of such time, and before it is barred
by the statute of limitations, a judgment may be
enforced by action. The revived judgment may also
be enforced by motion within five (5) years from
the date of its entry and thereafter by action
before it is barred by the statute of limitations.
In Lancita v. Magbanua, we held that:
In computing the time limited for suing out
of an execution, although there is authority to the
contrary, the general rule is that there should not
be included the time when execution is stayed,
either by agreement of the parties for a definite
time, by injunction, by the taking of an appeal or
writ of error so as to operate as a supersedeas, by
the death of a party or otherwise. Any interruption
or delay occasioned by the debtor will extend the
time within which the writ may be issued
without scire facias (citation omitted).53
As pointed above, in computing the time limited
for suing out an execution, the time during which
execution is stayed should be excluded, and the said time
will be extended by any delay occasioned by the debtor.
In Blouse Potenciano v. Mariano, we held that the motion
for examination of the judgment debtor, which is a
proceeding supplementary to execution, and the action for
mandamus amounted to a stay of execution which
effectively interrupted or suspended the five (5)-year
period for enforcing the judgment by motion.54 In Camacho
v. Court of Appeals, et. al., where after a final judgment,
the petitioner (obligor) moved to defer the execution,
elevated the matter to the CA and the Supreme Court,
transferred the property to her daughter, in addition to the
issues regarding counsel and subsequent vacancies in the
courts, we ruled that:
Under the peculiar circumstances of the
present case where the delays were occasioned by
petitioners own initiatives and for her advantage
Ateneo de Davao University College of Law
as well as beyond the respondents control, we hold
that the five [5]-year period allowed for the
enforcement of the judgment by motion was
deemed to have been effectively interrupted or
suspended. Once again we rely upon basic notions
of equity and justice in so ruling. (Emphasis
supplied.)
The purpose of the law in prescribing time
limitations for enforcing judgment or actions is to
prevent obligors from sleeping on their rights. Far
from sleeping on their rights, respondents
persistently pursued their rights of action. It is
revolting to the conscience to allow petitioner to
further avert the satisfaction of her obligation
because of sheer literal adherence to technicality
(citation omitted).55
We also subtracted from the five (5)-year period
the time when the judgment could not be enforced due to
the restraining order issued by this Court,56 and when the
records of the case were lost or misplaced through no fault
of the petitioner.57 In Provincial Government of Sorsogon v.
Vda. de Villaroya, we likewise excluded the delays caused
by the auditors requirements which were not the fault of
the parties who sought execution, and ruled that "[i]n the
eight years that elapsed from the time the judgment
became final until the filing of the restraining motion by
the private respondents, the judgment never became
dormant. Section 6, Rule 39 of the Revised Rules of Court
does not apply."58 In Jacinto v. Intermediate Appellate
Court, this Court further held:
Granting for the sake of argument that the
motion for an alias writ of execution was beyond
the five [5]-year limitation within which a judgment
may be executed by mere motion, still under the
circumstances prevailing wherein all the delay in
the execution of the judgment lasting for more
than eight [8]-years was beneficial to private
respondents, this Court[,] for reasons of equity[,] is
constrained to treat the motion for execution as
having been filed within the reglementary period
required by law.59 (Emphasis supplied.)
Republic v. Court of Appeals summed it up as follows:
To be sure, there had been many instances where
this Court allowed execution by motion even after
the lapse of five years, upon meritorious grounds.
These exceptions have one common denominator,
and that is: the delay is caused or occasioned by
actions of the judgment debtor and/or is incurred
for his benefit or advantage (emphasis supplied).60
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 Civil Procedure | Atty. Catherine M. Guerzo-Barrion (2016-2017)
In the case at bar, since the judgment of the CA
became final on July 13, 1981, private respondent had filed
several motions for and in support of its execution. After
the dismissal of the appeal of Trans-Resource Management
Corporation in 1985, private respondent moved for the
inclusion of the Las Pias property in the order of
execution. He reasoned that the February 10, 1982 Writ of
Execution could not be enforced against the Las Pias
property because the title number was already changed
and could not be traced or found in the Register of
Deeds.61
Nevertheless, during the five (5) year period from
the finality of judgment, private respondent filed several
motions for and in support of execution. His persistence is
manifest in the number of motions, manifestations,
oppositions, and memoranda he had filed since the
judgment became final on July 13, 1981. He obtained three
writs of execution (February 10, 1982; February 5, 1986
and June 6, 1986) and two orders in aid of execution
(October 8, 1982 and February 18, 1986) but the alleged
loss of the title, incorrect orders, and the subsequent
refusal of petitioner FMC to surrender its title prevented
the satisfaction of judgment. While the delay was not
wholly attributable to FMC, it nevertheless worked to
FMCs advantage. FMCs motion for reconsideration of the
order of execution prevented the implementation of said
order, especially considering that it was filed on July 8,
1986. Said motion effectively suspended the five (5) year
prescriptive period which was supposed to expire on July
13, 1986.
Subsequently, an order quashing the writ of
execution was issued by the court a quo on September 23,
1986 which private respondent questioned in a motion for
reconsideration. Before the lower court released its
Decision, on private respondents motion for
reconsideration, Raquiza filed the assailed Motion to
Enforce the Motion to Execute. In view of the foregoing
circumstances and for reasons of equity, we are
constrained to treat the Motion to Enforce the Motion to
Execute as having been filed within the reglementary
period. The purpose of the law in prescribing time
limitations for enforcing judgments or actions is to prevent
obligors from sleeping on their rights.62 Private respondent,
on the contrary, persistently sought the execution of the
judgment in his favor.
RP VS. NILLAS
January 23, 2007
Ateneo de Davao University College of Law
Rule 39, as invoked by the Republic, applies only to
ordinary civil actions, not to other or extraordinary
proceedings not expressly governed by the Rules of Civil
Procedure but by some other specific law or legal modality
such as land registration cases. Unlike in ordinary civil
actions governed by the Rules of Civil Procedure, the intent
of land registration proceedings is to establish ownership
by a person of a parcel of land, consistent with the purpose
of such extraordinary proceedings to declare by judicial fiat
a status, condition or fact. Hence, upon the finality of a
decision adjudicating such ownership, no further step is
required to effectuate the decision and a ministerial duty
exists alike on the part of the land registration court to
order the issuance of, and the LRA to issue, the decree of
registration.
The Republic observes that the Property
Registration Decree (PD No. 1529) does not contain any
provision on execution of final judgments; hence, the
application of Rule 39 of the 1997 Rules of Civil Procedure
in suppletory fashion. Quite the contrary, it is precisely
because PD No. 1529 does not specifically provide for
execution of judgments in the sense ordinarily understood
and applied in civil cases, the reason being there is no need
for the prevailing party to apply for a writ of execution in
order to obtain the title, that Rule 39 of the 1997 Rules of
Civil Procedure is not applicable to land registration cases
in the first place. Section 39 of PD No. 1529 reads:
SEC. 39. Preparation of Decree and
Certificate of Title. - After the judgment directing
the registration of title to land has become final,
the court shall, within fifteen days from entry of
judgment, issue an order directing the
Commissioner to issue the corresponding decree of
registration and certificate of title. The clerk of
court shall send, within fifteen days from entry of
judgment, certified copies of the judgment and of
the order of the court directing the Commissioner
to issue the corresponding decree of registration
and certificate of title, and a certificate stating that
the decision has not been amended, reconsidered,
nor appealed, and has become final. Thereupon,
the Commissioner shall cause to be prepared the
decree of registration as well as the original and
duplicate of the corresponding original certificate
of title. The original certificate of title shall be a
true copy of the decree of registration. The decree
of registration shall be signed by the
Commissioner, entered and filed in the Land
Registration Commission. The original of the
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original certificate of title shall also be signed by
the Commissioner and shall be sent, together with
the owners duplicate certificate, to the Register of
Deeds of the city or province where the property is
situated for entry in his registration book.
The provision lays down the procedure that
interposes between the rendition of the judgment and the
issuance of the certificate of title. No obligation
whatsoever is imposed by Section 39 on the prevailing
applicant or oppositor even as a precondition to the
issuance of the title. The obligations provided in the
Section are levied on the land court (that is to issue an
order directing the Land Registration Commissioner to
issue in turn the corresponding decree of registration), its
clerk of court (that is to transmit copies of the judgment
and the order to the Commissioner), and the Land
Registration Commissioner (that is to cause the
preparation of the decree of registration and the
transmittal thereof to the Register of Deeds). All these
obligations are ministerial on the officers charged with
their performance and thus generally beyond discretion of
amendment or review.
The failure on the part of the administrative
authorities to do their part in the issuance of the decree of
registration cannot oust the prevailing party from
ownership of the land. Neither the failure of such applicant
to follow up with said authorities can. The ultimate goal of
our land registration system is geared towards the final and
definitive determination of real property ownership in the
country, and the imposition of an additional burden on the
owner after the judgment in the land registration case had
attained finality would simply frustrate such goal.
Clearly, the peculiar procedure provided in the
Property Registration Law from the time decisions in land
registration cases become final is complete in itself and
does not need to be filled in. From another perspective,
the judgment does not have to be executed by motion or
enforced by action within the purview of Rule 39 of the
1997 Rules of Civil Procedure.
CENTRAL SURETY VS. PLANTERS
March 7, 2007
Under Rule 39, Section 6,15 the rule is that a final
judgment may be executed by mere motion within five
years from the date of entry of judgment. However, the
rule is not absolute and admits one notable exception and
that is when the delay in enforcing the judgment is caused
by the party assailing the filing of the motion.
Ateneo de Davao University College of Law
In Republic v. Court of Appeals,16 we declared that,
on meritorious grounds, execution of final judgment by
mere motion may be allowed even after the lapse of five
years when delay in the execution is caused or occasioned
by the actions of the judgment debtor and/or is incurred
for his benefit.
Similarly, in Camacho v. Court of Appeals,17 we
ruled that the five-year period allowed for enforcement of
judgment by mere action is deemed effectively interrupted
or suspended when the delay in the execution is
occasioned by the oppositors own initiatives in order to
gain an undue advantage.
Based on the attendant facts, the present case falls
within the exception. Petitioner triggered the series of
delays in the execution of the RTCs final decision by filing
numerous motions and appeals in the appellate courts,
even causing the CAs issuance of the TRO enjoining the
enforcement of said decision. It cannot now debunk the
filing of the motion just so it can delay once more the
payment of its obligation to respondent. It is obvious that
petitioner is merely resorting to dilatory maneuvers to skirt
its legal obligation.
Lastly, in Republic and Camacho, we ruled that the
purpose of the law in prescribing time limitations for
enforcing a judgment or action is to prevent a party from
sleeping on his rights. Far from sleeping on its rights,
respondent pursued its claim by persistently seeking the
execution of the RTCs final judgment of November 6,
1991. It would be unjust to frustrate respondents effort to
collect payment from petitioner on sheer technicality.
While strict compliance to the rules of procedure is
desired, liberal interpretation is warranted in cases where
a strict enforcement of the rules will not serve the ends of
justice.
ANNIE FERMIN VS. JUDGE ESTEVEZ
March 26, 2008
The Court of Appeals also ruled that petitioners
could have availed themselves of the remedy under
Section 43, Rule 39 of the 1997 Rules of Civil Procedure,
thus:
Sec. 43. Proceedings when indebtedness
denied or another person claims the property. - If it
appears that a person or corporation, alleged to
have property of the judgment obligor or to be
indebted to him, claims an interest in the property
adverse to him or denies the debt, the court may
authorize, by an order made to that effect, the
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judgment obligee to institute an action against
such person or corporation for the recovery of such
interest or debt, forbid a transfer or other
disposition of such interest or debt within one
hundred twenty (120) days from notice of the
order, and may punish disobedience of such order
as for contempt. Such order may be modified or
vacated at any time by the court which issued it, or
by the court in which the action is brought, upon
such terms as may be just.
In this case, Arizo, et al. are not judgment obligors
as contemplated in Section 43, Rule 39 of the 1997 Rules of
Civil Procedure. Neither are petitioners indebted to Arizo,
et al. It was not even established that petitioners are in
possession of the property of Arizo, et al. In fact,
petitioners alleged that it was not established that their
residential structures are within the area subject of Civil
Case No. 925-R. In other words, Section 43, Rule 39 of the
1997 Rules of Civil Procedure, which would allow the
judgment obligee to recover indebtedness due to the
judgment obligor, does not apply in this case.1avvphi1
When the Court of Appeals referred to the remedy
of terceria, it must be referring to Section 16, Rule 39, not
Section 43, Rule 39 of the 1997 Rules of Civil
Procedure,12 which provides:
Sec. 16. Proceedings where property
claimed by third person. - If the property levied on
is claimed by any person other than the judgment
obligor or his agent, and such person makes an
affidavit of his title thereto or right to the
possession thereof, stating the grounds of such
right or title, and serves the same upon the officer
making the levy and a copy thereof upon the
judgment obligee, the officer shall not be bound to
keep the property, unless such judgment obligee,
on demand of the officer, files a bond approved by
the court to indemnify the third-party claimant in a
sum not less than the value of the property levied
on. In case of disagreement as to such value, the
same shall be determined by the court issuing the
writ of execution. No claim for damages for the
taking or keeping of the property may be enforced
against the bond unless the action therefor is filed
within one hundred twenty (120) days from the
date of the filing of the bond.
The officer shall not be liable for damages for the
taking or keeping of the property, to any third-party
claimant if such bond is filed. Nothing herein contained
shall prevent such claimant or any third person from
Ateneo de Davao University College of Law
vindicating his claim to the property in a separate action, or
prevent the judgment obligee from claiming damages in
the same or separate action against a third-party claimant
who filed a frivolous or plainly spurious claim.
xxxx
The remedy of terceria is available to a third
person other than the judgment obligor or his agent who
claims a property levied on. In this case, the property was
not levied on and put on auction. The implementation of
the Special Order of Demolition would result in the
destruction of petitioners property. Further, terceria is not
a speedy and adequate remedy insofar as petitioners are
concerned considering that the Special Order of Demolition
ordered the Deputy Sheriff to cause the demolition of all
the improvements immediately after the expiration of the
15-day period granted upon the defendants, their agents,
assigns, representatives, or successors-in-interest to
remove their improvements on the premises.
The Court recognizes the finality of the trial courts
Decision in Civil Case No. 925-R. However, petitioners are
contesting whether their residential structures are within
the area subject of Civil Case No. 925-R. Since petitioners
are not parties to Civil Case No. 925-R, respondent has to
file the proper action against petitioners to enforce his
property rights within the bounds of the law and our
rules.13 Petitioners right to possession, if any, should be
threshed out in a proper court proceeding.
SPOUSES CHENG VS. SPOUSES JAVIER
July 3, 2009
Once a judgment becomes final, it is basic that the
prevailing party is entitled as a matter of right to a writ of
execution the issuance of which is the trial courts
ministerial duty, compellable by mandamus.27 However,
the prevailing party must comply with the time limitations
in enforcing judgments. Section 6, Rule 39 of the Revised
Rules of Court states that:
A final and executory judgment or order
may be executed on motion within five (5) years
from the date of its entry. After the lapse of such
time, and before it is barred by the statute of
limitations, a judgment may be enforced by action.
The revived judgment may also be enforced by
motion within five (5) years from the date of its
entry and thereafter by action before it is barred
by the statute of limitations.
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The purpose of the law in prescribing time
limitations for enforcing judgments by action is to prevent
obligors from sleeping on their rights.28
In the instant case, the October 29, 1987 Decision
became final and executory in 1989. However, respondents
moved for its execution only on January 24, 2003. Having
slept on their right to enforce the judgment for more than
13 years, respondents are now barred by the statute of
limitations from asking for its execution. Mere
presumption that petitioners filed an appeal is not a valid
excuse in failing to verify the status of the case and assert
their right to enforce judgment for more than a decade.
Respondents blind reliance on their lawyer and inaction
for 13 years constitute unreasonable delay in exercising
their right to have the October 29, 1987 Decision be
executed.1avvphi1
Litigants represented by counsel should not expect
that all they need to do is sit back and relax, and await the
outcome of their case. They should give the necessary
assistance to their counsel, for at stake is their interest in
the case. While lawyers are expected to exercise a
reasonable degree of diligence and competence in
handling cases for their clients, the realities of law practice
as well as certain fortuitous events sometimes make it
almost physically impossible for lawyers to be immediately
updated on a particular client's case. 29
Had respondents been persistent in following up
the status of their case with their former lawyer, they
would have discovered that he was already a judge thus
necessitating the hiring of another lawyer. Their
indifference, if not negligence, is indicative of lack of
interest in executing the decision rendered in their favor.
Obviously, respondents capitalized on their alleged
discovery that petitioners were not furnished a copy of the
October 16, 1989 Order as a convenient excuse for tarrying
on the motion for execution and non-compliance with Rule
39, Sections 1 and 6 of the Rules of Court.
VILLEZA VS. GERMAN MANAGEMENT
August 8, 2010
An action for revival of judgment is governed by
Article 1144 (3), Article 1152 of the Civil Code and Section
6, Rule 39 of the Rules of Court. Thus,
Art. 1144. The following actions must be
brought within ten years from the time the right of
action accrues:
xxxx
(3) Upon a judgment
Ateneo de Davao University College of Law
Article 1152 of the Civil Code states:
Art. 1152. The period for prescription of
actions to demand the fulfillment of obligations
declared by a judgment commences from the time
the judgment became final.
Apropos, Section 6, Rule 39 of the Rules of Court reads:
Sec. 6. Execution by motion or by
independent action. A final and executory
judgment or order may be executed on motion
within five (5) years from the date of its entry.
After the lapse of such time, and before it is barred
by the statute of limitations, a judgment may be
enforced by action. The revived judgment may also
be enforced by motion within five (5) years from
the date of its entry and thereafter by action
before it is barred by the statute of limitations.
(emphasis supplied)
The rules are clear. Once a judgment becomes final
and executory, the prevailing party can have it executed as
a matter of right by mere motion within five years from the
date of entry of judgment. If the prevailing party fails to
have the decision enforced by a motion after the lapse of
five years, the said judgment is reduced to a right of action
which must be enforced by the institution of a complaint in
a regular court within ten years from the time the
judgment becomes final.
When petitioner Villeza filed the complaint for
revival of judgment on October 3, 2000, it had already
been eleven (11) years from the finality of the judgment he
sought to revive. Clearly, the statute of limitations had set
in.
Petitioner Villeza, however, wants this Court to
agree with him that the abeyance granted to him by the
lower court tolled the running of the prescriptive period.
He even cited cases allowing exceptions to the general
rule. The Court, nevertheless, is not persuaded. The cited
cases are, in fact, not applicable to him, despite his
endeavor to tailor them to fit in to his position. The same
cases lamentably betray him.
Republic v. Court of Appeals9 deals with the stay of
the period due to the acts of the losing party. It was
impossible for the winning party to have sought the
execution of the judgment because of the dilatory schemes
and maneuvers resorted to by the other party.10
In Torralba v. delos Angeles,11 the running of the
period was interrupted when the winning party filed a
motion for the issuance of the writ of execution. The order
of ejectment was not carried out, however, due to the
judgment debtors begging to withhold the execution of
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judgment because of financial difficulties.12 The agreement
of the parties to defer or suspend the enforcement of the
judgment interrupted the period of prescription.131avvphi1
In Casela v. Court of Appeals,14 it was the judgment obligor
who moved to suspend the writ of execution. The
judgment obligee was not in delay because he exhausted
all legal means within his power to eject the obligor from
his land. The writs of execution issued by the lower court
were not complied with and/or were suspended by reason
of acts or causes not of obligees own making and against
his objections.15
Unlike the cases cited above, the records reveal
that it was petitioner Villeza, the prevailing party himself,
who moved to defer the execution of judgment. The losing
party never had any hand in the delay of its execution.
Neither did the parties have any agreement on that matter.
After the lapse of five years (5) from the finality of
judgment, petitioner Villeza should have instead filed a
complaint for its revival in accordance with Section 6, Rule
39 of the Rules of Court. He, however, filed a motion to
execute the same which was a wrong course of action. On
the 11th year, he finally sought its revival but he requested
the aid of the courts too late.
SPOUSES TOPACIO VS. BANCO FILIPINO
November 17, 2010
The petitioners finally submit that the writ of
possession, issued by the RTC on February 16, 1984, may
no longer be enforced by a mere motion, but by a separate
action, considering that more than five years had elapsed
from its issuance, pursuant to Section 6, Rule 39 of the
Rules of Court, which states:
Sec. 6. Execution by motion or by
independent action. A final and executory
judgment or order may be executed on motion
within five (5) years from the date of its entry.
After the lapse of such time, and before it is barred
by the statute of limitations, a judgment may be
enforced by action. The revived judgment may also
be enforced by motion within five (5) years from
the date of its entry and thereafter by action
before it is barred by the statute of limitations.
Section 6, Rule 39 of the Rules of Court only applies to
civil actions
rejecting a similar argument, the Court held in
Paderes v. Court of Appeals51 that Section 6, Rule 39 of the
Rules of Court finds application only to civil actions and not
Ateneo de Davao University College of Law
to special proceedings. Citing Sta. Ana v. Menla,52which
extensively discussed the rationale behind the rule, the
Court held:
In a later case [Sta. Ana v. Menla, 111 Phil.
947 (1961)], the Court also ruled that the provision
in the Rules of Court to the effect that judgment
may be enforced within five years by motion, and
after five years but within ten years by an action
(Section 6, Rule 39) refers to civil actions and is
not applicable to special proceedings, such as land
registration cases. x x x x
We fail to understand the arguments of the
appellant in support of the above assignment, except in so
far as it supports his theory that after a decision in a land
registration case has become final, it may not be enforced
after the lapse of a period of 10 years, except by another
proceeding to enforce the judgment or decision. Authority
for this theory is the provision in the Rules of Court to the
effect that judgment may be enforced within 5 years by
motion, and after five years but within 10 years, by an
action (Sec. 6, Rule 39). This provision of the Rules refers
to civil actions and is not applicable to special
proceedings, such as a land registration case. This is so
because a party in a civil action must immediately enforce
a judgment that is secured as against the adverse party,
and his failure to act to enforce the same within a
reasonable time as provided in the Rules makes the
decision unenforceable against the losing party. In special
proceedings the purpose is to establish a status, condition
or fact; in land registration proceedings, the ownership by
a person of a parcel of land is sought to be
established. After the ownership has been proved and
confirmed by judicial declaration, no further proceeding
to enforce said ownership is necessary, except when the
adverse or losing party had been in possession of the land
and the winning party desires to oust him therefrom.
Subsequently, the Court, in Republic v.
Nillas,53 affirmed the dictum in Sta. Ana and clarified that
"Rule 39 x x x applies only to ordinary civil actions, not to
other or extraordinary proceedings not expressly governed
by the Rules of Civil Procedure but by some other specific
law or legal modality," viz:
Rule 39, as invoked by the Republic,
applies only to ordinary civil actions, not to other
or extraordinary proceedings not expressly
governed by the Rules of Civil Procedure but by
some other specific law or legal modality such as
land registration cases. Unlike in ordinary civil
actions governed by the Rules of Civil Procedure,
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the intent of land registration proceedings is to
establish ownership by a person of a parcel of land,
consistent with the purpose of such extraordinary
proceedings to declare by judicial fiat a status,
condition or fact. Hence, upon the finality of a
decision adjudicating such ownership, no further
step is required to effectuate the decision and a
ministerial duty exists alike on the part of the land
registration court to order the issuance of, and the
LRA to issue, the decree of registration.1avvphi1
In the present case, Section 6, Rule 39 of the Rules
of Court is not applicable to an ex parte petition for the
issuance of the writ of possession as it is not in the nature
of a civil action54 governed by the Rules of Civil Procedure
but a judicial proceeding governed separately by Section 7
of Act No. 3135 which regulates the methods of effecting
an extrajudicial foreclosure of mortgage.
Clearly, the exacting procedure provided in Act No.
3135, from the moment of the issuance of the writ of
possession, leaves no room for the application of Section 6,
Rule 39 of the Rules of Court which we consistently ruled,
as early as 1961 in Sta. Ana, to be applicable only to civil
actions. From another perspective, the judgment or the
order does not have to be executed by motion or enforced
by action within the purview of Rule 39 of the Rules of
Court.
Section 9. Execution of judgments for money, how
enforced.
(a) Immediate payment on demand. The officer
shall enforce an execution of a judgment for money by
demanding from the judgment obligor the immediate
payment of the full amount stated in the writ of execution
and all lawful fees. The judgment obligor shall pay in cash,
certified bank check payable to the judgment obligee, or
any other form of payment acceptable to the latter, the
amount of the judgment debt under proper receipt directly
to the judgment obligee or his authorized representative if
present at the time of payment. The lawful fees shall be
handed under proper receipt to the executing sheriff who
shall turn over the said amount within the same day to the
clerk of court of the court that issued the writ.
If the judgment obligee or his authorized
representative is not present to receive payment, the
judgment obligor shall deliver the aforesaid payment to the
executing sheriff. The latter shall turn over all the amounts
coming into his possession within the same day to the clerk
of court of the court that issued the writ, or if the same is
not practicable, deposit said amounts to a fiduciary
Ateneo de Davao University College of Law
account in the nearest government depository bank of the
Regional Trial Court of the locality.
The clerk of said court shall thereafter arrange for
the remittance of the deposit to the account of the court
that issued the writ whose clerk of court shall then deliver
said payment to the judgment obligee in satisfaction of the
judgment. The excess, if any, shall be delivered to the
judgment obligor while the lawful fees shall be retained by
the clerk of court for disposition as provided by law. In no
case shall the executing sheriff demand that any payment
by check be made payable to him.
(b) Satisfaction by levy. If the judgment obligor
cannot pay all or part of the obligation in cash, certified
bank check or other mode of payment acceptable to the
judgment obligee, the officer shall levy upon the properties
of the judgment obligor of every kind and nature
whatsoever which may be disposed, of for value and not
otherwise exempt from execution giving the latter the
option to immediately choose which property or part
thereof may be levied upon, sufficient to satisfy the
judgment. If the judgment obligor does not exercise the
option, the officer shall first levy on the personal
properties, if any, and then on the real properties if the
personal properties are insufficient to answer for the
judgment.
The sheriff shall sell only a sufficient portion of the
personal or real property of the judgment obligor which
has been levied upon.
When there is more property of the judgment obligor than
is sufficient to satisfy the judgment and lawful fees, he
must sell only so much of the personal or real property as
is sufficient to satisfy the judgment and lawful fees.
Real property, stocks, shares, debts, credits, and
other personal property, or any interest in either real or
personal property, may be levied upon in like manner and
with like effect as under a writ of attachment.
(c) Garnishment of debts and credits. The officer
may levy on debts due the judgment obligor and other
credits, including bank deposits, financial interests,
royalties, commissions and other personal property not
capable of manual delivery in the possession or control of
third parties. Levy shall be made by serving notice upon the
person owing such debts or having in his possession or
control such credits to which the judgment obligor is
entitled. The garnishment shall cover only such amount as
will satisfy the judgment and all lawful fees.
The garnishee shall make a written report to the
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court within five (5) days from service of the notice of
garnishment stating whether or not the judgment obligor
has sufficient funds or credits to satisfy the amount of the
judgment. If not, the report shall state how much funds or
credits the garnishee holds for the judgment obligor. The
garnished amount in cash, or certified bank check issued in
the name of the judgment obligee, shall be delivered
directly to the judgment obligee within ten (10) working
days from service of notice on said garnishee requiring
such delivery, except the lawful fees which shall be paid
directly to the court.
In the event there are two or more garnishees
holding deposits or credits sufficient to satisfy the
judgment, the judgment obligor, if available, shall have the
right to indicate the garnishee or garnishees who shall be
required to deliver the amount due, otherwise, the choice
shall be made by the judgment obligee.
The executing sheriff shall observe the same procedure
under paragraph (a) with respect to delivery of payment to
the judgment obligee. (8a, 15a)
PAL VS. SHERIFF BALUBAR
August 12, 2004
We agree with OCA that there is no substantial
evidence to warrant a finding of a violation of R.A. No.
3019 (Anti-Graft and Corrupt Practices Act) by the
respondent.
This notwithstanding, respondent is guilty of
simple neglect.
When the writ is placed in the hands of the
respondent, it is his mandated ministerial duty, in the
absence of any instructions to the contrary, to proceed
with reasonable celerity and promptness to implement the
writ according to his mandate. Only by doing so could he
ensure that the order is executed without undue delay.
However, he must observe the procedure laid down under
Section 9, Rule 39 of the Rules of Court, on execution of
money judgment.
Based on the foregoing, the sheriff is required to
first make a demand of the obligor the immediate payment
of the full amount stated in the writ of execution before a
levy can be made. In the instant case, respondent had
shown that he caused the service of the writ of execution
pending appeal upon PAL thru its legal department on
December 11, 2002 at 3:25 p.m. Records will show that
while PAL received the copy of the writ on December 11,
2002, its depository banks received copies of the writ as
well as notices of garnishment on the same day at an
Ateneo de Davao University College of Law
earlier time than PAL received the writ of execution as
shown by the stamped receipt17 thereon, thus, China Bank
at 2:32 p.m., JPMorgan Chase Bank at 2:48 p.m., Hongkong
and Shanghai Bank at 2:54 p.m., and Allied Banking
Corporation at 3:20 p.m. Notably, respondent did not
observe the procedure mandated under the Rules of Court
that he should first make a demand of the obligor the
immediate payment of the full amount stated in the writ of
execution. In fact, the evidence of the respondent showing
the time when PAL's depository banks received copies of
writ and notices of garnishment indubitably shows that he
did not give any of the officers of PAL, impleaded as
defendants, the opportunity to pay the judgment debt.
Thus, he is remiss in his duty in the manner of executing
the money judgment for which he should be
administratively liable. Commendable is the expeditious
execution of the writ; however, it should not be done at
the expense of depriving the obligor the chance to pay the
judgment debt.
EQUITABLE PCI VS. SHERIFF BELLONES
March 18, 2005
Section 9, Rule 39 of the Rules of Court provides
for the procedure as to how execution of judgments for
money is enforced.
From the foregoing provisions, it is clear that the
officer executing the writ of execution shall demand from
the judgment obligor the immediate payment of the full
amount stated in the writ of execution and all legal fees.
The payment shall be in cash, certified bank check payable
to the judgment obligee, or in any form acceptable to the
latter. If the judgment obligor cannot pay all or part of the
obligation in cash, certified bank check or other mode
acceptable to the judgment obligee, he is given the option
to immediately choose which of his property or part
thereof, not otherwise exempt from execution, may be
levied upon sufficient to satisfy the judgment. If the
judgment obligor does not exercise the option
immediately, it is only then that the sheriff/officer
enforcing the judgment for money can garnish debts due
the judgment obligor and other credits, or levy on the
personal or real property of the latter.
In the case at bar, Sheriff Regalado failed to comply
with the procedure outlined in Section 9, Rule 39 of the
Rules of Court.
It is evident from the comment of Sheriff Regalado
that when the demand to pay was served on EPCIB by
Sheriff Bellones, he was not there because he was serving
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the Notice of Garnishment on Citibank, N.A. Thus, he
served a Notice of Garnishment even before he has
knowledge as to how EPCIB will pay the judgment debt. As
the lead sheriff tasked to enforce the writ of execution, he
should have waited for EPCIB to inform him of the mode of
payment it will employ in satisfying the money judgment.
Despite having no knowledge thereof, he immediately
served a Notice of Garnishment to Citibank, N.A., which is a
clear violation of Section 9. There being no choice yet on
the part of EPCIB as to how to pay, whether it be in cash,
certified bank check or any other form acceptable to the
judgment obligee, or through levy of property and sale
thereof, or through garnishment of debts and credits,
Sheriff Regalado should have waited before making any
move. This, he did not do.
By serving notices of garnishment on Citibank,
N.A., HSBC and PNB, Sheriff Regalado violated EPCIBs right
to choose which property may be levied upon to be sold at
auction for the satisfaction of the judgment debt. It is clear
from paragraph (a) of Section 9, Rule 39 of the Rules of
Court, that the sheriff shall first demand the immediate
payment of the full amount stated in the writ of execution
and all lawful fees. If the judgment obligor cannot pay all or
part of the obligation in cash, certified bank check or any
other mode of payment acceptable to the judgment
obligee, the former is given, under paragraph (b) of the
same section, the option to immediately choose which of
his property, real or personal, can be levied by the sheriff.
In the case before us, EPCIB, after being served with the
demand to pay, immediately exercised its option to choose
which of its properties will be levied for the satisfaction of
the money judgment. As admitted by Sheriff Bellones, he
was informed by Atty. Yusi that EPCIB was offering certain
real properties, all located in Bacolod City, to be levied
upon. Thus, it is clear that when EPCIB offered its real
properties, it exercised its option because it cannot
immediately pay the full amount stated in the writ of
execution and all lawful fees in cash, certified bank check
or any other mode of payment acceptable to the judgment
obligee.
The insistence of Sheriff Regalado in pursuing the
garnishment of the bank deposits of EPCIB in HSBC, as
shown by his letter to the latter dated 06 April 2004,
despite the letter of EPCIBs lawyer dated 24 March 2004
stating that it has exercised the option to choose and
reiterated its offer of real properties sufficient to satisfy
the judgment debt, is a clear violation of Section 9, Rule 39
of the Rules of Court.
Ateneo de Davao University College of Law
What is clear under paragraph (a) of Section 9, Rule
39 of the Rules of Court, is that the sheriff shall demand
from the judgment obligor the immediate payment in cash,
certified bank check or any other mode of payment
acceptable to the judgment obligee. If the judgment
obligor cannot pay by these methods immediately or at
once, he can exercise his option to choose which of his
property can be levied upon. If he does not exercise this
option immediately or when he is absent or cannot be
located,14 he waives such right, and the sheriff can now
first levy his personal properties, if any, and then the real
properties if the personal properties are insufficient to
answer for the judgment. In the case at bar, EPCIB
exercised its option because it cannot immediately pay by
Managers Check the amount demanded because of the
"deliberate swiftness with which the decision was
executed."
Respondent Regalado failed to properly enforce
the execution of a money judgment. He did not observe
the procedure provided for in Section 9, Rule 39 of the
Rules of Court. His failure to strictly comply with the Rules
has effectively deprived the judgment obligor of his right to
exercise his option to choose which of his properties shall
be levied upon. In so doing, he has breached the trust
reposed in him by the people and has left a blot not only
on himself, but more importantly in the office he holds
which may eventually diminish the peoples faith and
confidence in the judicial system.
MANGUBAT VS. CAMINO
February 23, 2007
It is deemed appropriate to impose the penalty of
fine only upon respondent considering the consequential
bearings should he be dismissed from service. If dismissal is
imposed, it would invalidate his acts during the period of
suspension. Hence, the dismissal would greatly affect the
judicial proceedings and administration of justice because
it would mean recalling of all the judicial processes and
writ of executions which he has served.10
After careful deliberation, this Court resolves to
approve and adopt the findings and recommendations of
the OCA except as to the amount of fine to be imposed.
We have held that directives issued by this Court
are not to be treated lightly; certainly not on the pretext
that one has misapprehended the meaning of said
directives.11 Every officer and employee in the judiciary is
duty bound to obey the orders and processes of the
Supreme Court without the least delay.12 Effective and
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efficient administration of justice demands nothing less
than a faithful adherence to the rules and orders laid down
by this Court, and respondent failed in this regard.
Indifference or defiance to the Courts orders or
Resolutions may be punished with dismissal, suspension or
fine as warranted by the circumstances.13
Herein respondent should have served his
suspension from 20 March to 20 April 2006. Thus, he is not
entitled to receive his salaries and benefits during this
period. His supposed suspension should have been lifted
on 21 April 2006 so as to entitle him to pay for work
rendered on 21 April to 19 July 2006. Upon receipt of the
Courts Resolution denying his motion for reconsideration,
respondent had desisted from performing his functions
ostensibly to serve but erroneously the said penalty.
Hence, he should be considered on leave without pay for
the period 20 July to 20 September 2006 since he did not
actually report for work through his own fault. And as
elucidated by the OCA, we deem that the penalty of fine
would be most warranted under the circumstances.
However, an additional fine equivalent to his claims, or at
least six (6) months salary is too stiff considering that he
and his family had already suffered the consequences of
such financial deprivation during the period that his
salaries and benefits were withheld. Instead, we believe a
fine of P5,000.00 is appropriate.
HULST VS. PR BUILDERS
September 3, 2007
If the judgment is for money, the sheriff or other
authorized officer must execute the same pursuant to the
provisions of Section 9, Rule 39 of the Revised Rules of
Court, viz:
Sec. 9. Execution of judgments for money, how
enforced.
(a) Immediate payment on demand. - The
officer shall enforce an execution of a judgment for
money by demanding from the judgment obligor
the immediate payment of the full amount stated
in the writ of execution and all lawful fees. x x x
(b) Satisfaction by levy. - If the judgment
obligor cannot pay all or part of the obligation in
cash, certified bank check or other mode of
payment acceptable to the judgment obligee, the
officer shall levy upon the properties of the
judgment obligor of every kind and nature
whatsoever which may be disposed of for value
and not otherwise exempt from execution, giving
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the latter the option to immediately choose which
property or part thereof may be levied upon,
sufficient to satisfy the judgment. If the judgment
obligor does not exercise the option, the officer
shall first levy on the personal properties, if any,
and then on the real properties if the personal
properties are insufficient to answer for the
judgment.
The sheriff shall sell only a sufficient
portion of the personal or real property of the
judgment obligor which has been levied upon.
When there is more property of the
judgment obligor than is sufficient to satisfy the
judgment and lawful fees, he must sell only so
much of the personal or real property as is
sufficient to satisfy the judgment and lawful fees.
Real property, stocks, shares, debts,
credits, and other personal property, or any
interest in either real or personal property, may be
levied upon in like manner and with like effect as
under a writ of attachment (Emphasis supplied).53
Thus, under Rule 39, in executing a money
judgment against the property of the judgment debtor, the
sheriff shall levy on all property belonging to the judgment
debtor as is amply sufficient to satisfy the judgment and
costs, and sell the same paying to the judgment creditor so
much of the proceeds as will satisfy the amount of the
judgment debt and costs. Any excess in the proceeds shall
be delivered to the judgment debtor unless otherwise
directed by the judgment or order of the court.54
Clearly, there are two stages in the execution of
money judgments. First, the levy and then the execution
sale.
Levy has been defined as the act or acts by which
an officer sets apart or appropriates a part or the whole of
a judgment debtor's property for the purpose of satisfying
the command of the writ of execution.55 The object of a
levy is to take property into the custody of the law, and
thereby render it liable to the lien of the execution, and
put it out of the power of the judgment debtor to divert it
to any other use or purpose.56
On the other hand, an execution sale is a sale by a
sheriff or other ministerial officer under the authority of a
writ of execution of the levied property of the debtor.57
In the present case, the HLURB Arbiter and
Director gravely abused their discretion in setting aside the
levy conducted by the Sheriff for the reason that the
auction sale conducted by the sheriff rendered moot and
academic the motion to quash the levy. The HLURB Arbiter
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lost jurisdiction to act on the motion to quash the levy by
virtue of the consummation of the auction sale. Absent any
order from the HLURB suspending the auction sale, the
sheriff rightfully proceeded with the auction sale. The
winning bidder had already paid the winning bid. The legal
fees had already been remitted to the HLURB. The
judgment award had already been turned over to the
judgment creditor. What was left to be done was only the
issuance of the corresponding certificates of sale to the
winning bidder. In fact, only the signature of the HLURB
Director for that purpose was needed58 a purely
ministerial act.
A purely ministerial act or duty is one which an
officer or tribunal performs in a given state of facts, in a
prescribed manner, in obedience to the mandate of a legal
authority, without regard for or the exercise of his own
judgment upon the propriety or impropriety of the act
done. If the law imposes a duty upon a public officer and
gives him the right to decide how or when the duty shall be
performed, such duty is discretionary and not ministerial.
The duty is ministerial only when the discharge of the same
requires neither the exercise of official discretion nor
judgment.59In the present case, all the requirements of
auction sale under the Rules have been fully complied with
to warrant the issuance of the corresponding certificates of
sale.
In the present case, the Sheriff complied with the
mandate of Section 9, Rule 39 of the Revised Rules of
Court, to "sell only a sufficient portion" of the levied
properties "as is sufficient to satisfy the judgment and the
lawful fees." Each of the 15 levied properties was
successively bidded upon and sold, one after the other
until the judgment debt and the lawful fees were fully
satisfied. Holly Properties Realty Corporation successively
bidded upon and bought each of the levied properties for
the total amount of P5,450,653.33 in full satisfaction of the
judgment award and legal fees.67
Secondly, the Rules of Court do not require that the
value of the property levied be exactly the same as the
judgment debt; it can be less or more than the amount of
debt. This is the contingency addressed by Section 9, Rule
39 of the Rules of Court. In the levy of property, the Sheriff
does not determine the exact valuation of the levied
property. Under Section 9, Rule 39, in conjunction with
Section 7, Rule 57 of the Rules of Court, the sheriff is
required to do only two specific things to effect a levy upon
a realty: (a) file with the register of deeds a copy of the
order of execution, together with the description of the
levied property and notice of execution; and (b) leave with
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the occupant of the property copy of the same order,
description and notice.68 Records do not show that
respondent alleged non-compliance by the Sheriff of said
requisites.
Thirdly, in determining what amount of property is
sufficient out of which to secure satisfaction of the
execution, the Sheriff is left to his own judgment. He may
exercise a reasonable discretion, and must exercise the
care which a reasonably prudent person would exercise
under like conditions and circumstances, endeavoring on
the one hand to obtain sufficient property to satisfy the
purposes of the writ, and on the other hand not to make
an unreasonable and unnecessary levy.69 Because it is
impossible to know the precise quantity of land or other
property necessary to satisfy an execution, the Sheriff
should be allowed a reasonable margin between the value
of the property levied upon and the amount of the
execution; the fact that the Sheriff levies upon a little more
than is necessary to satisfy the execution does not render
his actions improper.70 Section 9, Rule 39, provides
adequate safeguards against excessive levying. The Sheriff
is mandated to sell so much only of such real property as is
sufficient to satisfy the judgment and lawful fees.
In the absence of a restraining order, no error,
much less abuse of discretion, can be imputed to the
Sheriff in proceeding with the auction sale despite the
pending motion to quash the levy filed by the respondents
with the HLURB. It is elementary that sheriffs, as officers
charged with the delicate task of the enforcement and/or
implementation of judgments, must, in the absence of a
restraining order, act with considerable dispatch so as not
to unduly delay the administration of justice; otherwise,
the decisions, orders, or other processes of the courts of
justice and the like would be futile.71 It is not within the
jurisdiction of the Sheriff to consider, much less resolve,
respondent's objection to the continuation of the conduct
of the auction sale. The Sheriff has no authority, on his
own, to suspend the auction sale. His duty being
ministerial, he has no discretion to postpone the conduct
of the auction sale.
OBIETA VS. CHEOK
September 3, 2009
On July 19, 2004, petitioner assailed the
aforementioned orders of the RTC (citing him for
contempt) via a petition for certiorari and prohibition11 in
the Court of Appeals (CA). He argued that the RTC erred in
ordering him to deliver his VGCC stock certificate no. 1577
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since a corporate officer should not be held personally
liable for a corporate obligation. Furthermore, Section 9(b),
Rule 39 of the Rules of Court12 did not require the
judgment obligor to surrender levied property to the
sheriff. The RTC therefore had no legal basis for ordering
him to surrender his stock certificate. Consequently, it
committed grave abuse of discretion in citing him for
contempt.
In a decision dated February 4, 2005,13 the CA set
aside the September 6, 2001 decision and the assailed
orders of the RTC. It found that petitioner did not act in
bad faith or with gross negligence in performing his duties
as corporate secretary. Thus, there was no reason to
disregard the separate juridical personality of REDECO and
hold petitioner personally liable for the corporation's
judgment obligation. Furthermore, the CA noted that,
inasmuch as what was being enforced was a money
judgment, the RTC had no legal basis for compelling
petitioner to deliver his own VGCC stock certificate to the
sheriff. In view thereof, the CA held that the RTC
committed grave abuse of discretion in issuing patently
erroneous orders. Petitioner therefore justifiably refused
compliance and could not be held liable for contempt.
On reconsideration, however, the CA noted that
the September 6, 2001 decision of the RTC had already
become final and executory. It explained:
It can be gleaned from the RTC decision
that there was [a] finding of gross negligence on
the part of the [petitioner] due to his failure to act
on the letter-request of [respondent]. Such finding
of the trial court, albeit may be erroneous, does
not ipso facto render the judgment void.
A judgment contrary to the express
provision of a statute is of course erroneous, but it
is not void; and if it becomes final and executory, it
becomes as binding and effective as any valid
judgment; and though erroneous, will henceforth
be treated as valid, and will be enforced in
accordance with its terms and dispositions.
(emphasis supplied)
Thus, the CA reversed the February 4, 2005
decision insofar as it held that petitioner was not solidarily
liable with REDECO.14
Petitioner moved for reconsideration but it was
denied. Hence, this recourse16 with petitioner insisting
15
that a corporate officer cannot be held solidarily liable with
the corporation for a corporate obligation.
Unfortunately, the petition cannot be granted. It
seeks a review of a matter that has been settled with
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finality by the trial court. Settled is the rule that once a
decision acquires finality, it becomes immutable and
unalterable. Thus, despite containing erroneous
conclusions of fact or law, it can no longer be modified.17
The appeal of the September 6, 2001 decision of
the RTC (holding petitioner solidarily liable with REDECO
for the judgment obligation) was never perfected.
Furthermore, neither REDECO nor petitioner assailed the
orders dismissing the notice of appeal. Thus, the said
decision became final and executory.
PENA VS. REGALADO
February 16, 2010
Section 9, Rule 39 of the Rules of Court lays down
the procedure to be followed by the sheriff in
implementing money judgments.
When the judgment obligee is not present at the
time the judgment obligor makes the payment, the sheriff
is authorized to receive it. However, the money received
must be remitted to the clerk of court within the same day
or, if not practicable, deposited in a fiduciary account with
the nearest government depository bank. Evidently,
sheriffs are not permitted to retain the money in their
possession beyond the day when the payment was made
or to deliver the money collected directly to the judgment
obligee.
Respondents excuse for not turning over the
money to the clerk of court does not persuade us enough
to arrive at a contrary finding. He explains that it was
practical to directly give the money he collected from
complainant to Francisco, whose house is just adjacent to
that of the complainant. Firstly, complainant could have
directly made the payment to Francisco or her
representative. Secondly, considering that the first
payment was handed to him by complainant in his office,
respondent could have easily turned it over to the clerk of
court. Instead, respondent went to Franciscos house to
give her the money, presumably as an act of good will.
Respondent may have been motivated by a noble
intention when he directly gave the P13,000.00 to
Francisco, but the same cannot be said of the two
succeeding payments. Francisco had to file a complaint
against respondent before the latter delivered the same to
her. Though respondent insists that he gave the amounts
to Francisco on the same day he received them, this is
belied by Franciscos positive testimony that she received
the money several months after the dates indicated in the
receipts. This is corroborated by Franciscos letter-
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complaint to Judge Contreras and her account of what
transpired in the conference that the latter arranged.
Good faith on the part of respondent, or lack of it,
in proceeding to properly execute his mandate would be of
no moment, for he is chargeable with the knowledge that
being an officer of the court tasked thereto, it behooves
him to make due compliance.16 As implementing officers of
the court, sheriffs should set the example by faithfully
observing and not brazenly disregarding the Rules of
Court.17 Incredibly, respondent even blatantly admitted
that he followed the same procedure in some of the other
writs of execution that he enforced.
Moreover, the records show that, upon receipt
from complainant (judgment obligor) of three payments,
respondent merely issued handwritten acknowledgment
receipts to him. This act constitutes a violation of Section
113, Article III, Chapter V of the National Accounting and
Auditing Manual which provides "that no payment of any
nature shall be received by a collecting officer without
immediately issuing an official receipt in acknowledgment
thereof."18
Accordingly, we find respondent guilty of conduct
prejudicial to the best interest of the service for not
following the proper procedure in enforcing writs of
execution. Sheriffs have the duty to perform faithfully and
accurately what is incumbent upon them, and any method
of execution falling short of the requirement of the law
deserves reproach and should not be countenanced.19 The
Court will not hesitate to impose the ultimate penalty on
those who fall short of their accountabilities. The Court
condemns and does not tolerate any conduct that violates
the norms of public accountability and diminishes public
confidence in the judicial system.20
Section 52(A)(20) of the Revised Uniform Rules on
Administrative Cases classifies conduct prejudicial to the
best interest of the service as a grave offense punishable
by suspension of six months and one day to one year for
the first offense.
OCA VS. TOLOSA
June 13, 2011
The OCA correctly found that Tolosa violated
Section 9, par. 2, Rule 39 of the Rules of Civil Procedure
when he failed to turn over all the amounts he received by
reason of implementing the writ, within the same day to
the clerk of court that issued it. Sheriff Tolosa received, on
June 14, 2000 from defendant Vicente Go five (5) checks, in
varying amounts and different dates of maturity in the
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total amount of P118,000.00, in partial satisfaction of the
judgment in favor of the plaintiffs. He encashed the
matured check for P60,000.00, without having been
authorized to do so. He kept in his possession
the P60,000.00 cash and the four remaining checks. He
turned them over to the clerk of court only on October 10,
2000. The amount of P60,000.00 and the four postdated
checks were eventually delivered to the plaintiffs only on
December 21, 2000. Tolosas acts of keeping and encashing
the checks that matured spawned suspicion regarding his
true intentions.1avvphi1
A sheriff has no discretion whatsoever with respect
to the disposition of the amounts he receives. If he finds
that there is a need to clarify what to do with the checks,
prudence and reasonableness dictate that clarification be
sought immediately from the clerk or judge issuing it. He
cannot escape liability for the "misinterpretation" he had
done in connection with the case. Having been in the
service for more than 26 years, respondent sheriff cannot
wrongly interpret basic rules without appearing grossly
incompetent or in bad faith.23
As an officer of the court, sheriffs are chargeable
with the knowledge of what is the proper action to take in
case there are questions in the writ which need to be
clarified, and the knowledge of what he is bound to
comply.24 He is expected to know the rules of procedure
pertaining to his functions as an officer of the
court,25 relative to the implementation of writs of
execution, and should, at all times, show a high degree of
professionalism in the performance of his duties. Any act
deviating from the procedure laid down by the Rules is
misconduct that warrants disciplinary action.26
Misconduct is defined as a transgression of some
established or definite rule of action; more particularly, it is
an unlawful behavior by the public officer. The misconduct
is grave if it involves any of the additional elements of
corruption, and willful intent to violate the law or to
disregard established rules. For clear violation of
established rules, coupled with having encashed the checks
which matured without having been authorized to do so,
the Court finds Tolosa guilty of Grave Misconduct,
tempered only by his length of service. The Court takes into
consideration Tolosas long years of service in the judiciary
of about 25 years. Thus, in lieu of the dismissal that Section
52(A)(3), Rule IV of the Revised Uniform Rules on
Administrative Cases in the Civil Service commands, we
find the penalty of suspension for six (6) months
appropriate.
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VISCAL VS. BUENDIA
November 26, 2012
Under this rule, the duties of a sheriff are: (1) to
first make a demand from the obligor for the immediate
payment of the full amount stated in the writ of execution
and of all lawful fees; (2) to receive payment in the form of
cash, certified bank check payable to the obligee, or any
other form of payment acceptable to the latter; (3) to levy
upon the properties of the obligor, not exempt from
execution, if the latter cannot pay all or part of the
obligation; (4) give the obligor the opportunity to exercise
the option to choose which property may be levied upon;
(5) in case the option is not exercised, to first levy on the
personal properties of the obligor, including the
garnishment of debts due the obligor and other credits,
i.e., bank deposits, financial interests, royalties,
commissions and other personal properties not capable of
manual delivery or in the possession or control of third
parties; and (6) to levy on real properties if the personal
properties are insufficient to answer for the judgment.
In addition, Section 14, Rule 39 of the Rules of
Court imposes upon a sheriff the duty to submit a Sheriffs
Return, thus:
SEC. 14. Return of writ of execution. The
writ of execution shall be returnable to the court
issuing it immediately after the judgment has been
satisfied in part or in full. If the judgment cannot be
satisfied in full within thirty (30) days after his
receipt of the writ, the officer shall report to the
court and state the reason therefor. Such writ shall
continue in effect during the period within which
the judgment may be enforced by motion. The
officer shall make a report to the court every thirty
(30) days on the proceedings taken thereon until
the judgment is satisfied in full, or its effectivity
expires. The returns or periodic reports shall set
forth the whole of the proceedings taken, and shall
be filed with the court and copies thereof promptly
furnished the parties.
These provisions underscore the ministerial nature
of the functions of the sheriffs office. The sheriff has no
discretion on the manner of implementing a writ of
execution. The sheriff must strictly abide by the prescribed
procedure to avoid liability.
On grave abuse of authority
agree with the Investigating Judge that no
substantial evidence was adduced to prove that Atty.
Ateneo de Davao University College of Law
Buendia and the respondent sheriffs exceeded the limits of
their authority in garnishing the complainants bank
deposits. There was also insufficient evidence to support
the alleged violation of Section 6, Canon IV of the Code of
Conduct for Court Personnel, which requires court
personnel to "enforce rules and implement orders of the
court within the limits of their authority."
In Rafael v. Sualog,6 we defined grave abuse of
authority as "a misdemeanor committed by a public officer,
who under color of his office, wrongfully inflicts upon any
person any bodily harm, imprisonment or other injury"; it is
an act characterized with "cruelty, severity, or excessive
use of authority."
None of these circumstances are present in the
case. The records show that after receiving the writ, Atty.
Buendia reminded the respondent sheriffs to implement
the execution according to the writs terms and the
prescribed procedure under Section 9, Rule 39 of the Rules
of Court.
We note from the records that the respondent
sheriffs served a copy of the writ of execution on the
complainants general counsel who refused to pay. The
complainants general counsel also refused to exercise the
option under Section 9, Rule 39 of the Rules of Court. As
the Investigating Judge observed:
The repudiation of execution by the
Complainant claiming that it was premature
signified its express refusal to comply with the
arbitral award and settle the same. The wordings
of Rule 39, Section 9 (b) "if the judgment obligor
cannot pay all or part of the obligation" suggest
that what the provision contemplates is a situation
of INABILITY or to be sure INCAPABILITY on the
part of the judgment debtor to pay all or part of
the judgment debt. Only in that situation will the
option to choose arise, for clearly the choice is
given so as to afford the judgment debtor the
chance not to be the subject of any further
proceedings that may cause such party harm. By
the submissions of the Complainant, what it
claimed to have offered was the Surety Bond, by
showing a Certification from Pioneer Insurance and
Surety Corporation, not even the bond itself. Also,
as it was earlier discussed, the same was
unacceptable.7 (italics and underscore supplied)
Section 9, Rule 39 of the Rules of Court does not
prohibit the respondent sheriffs from garnishing the
complainants bank deposits on the same day that a copy
of the writ of execution was served on the judgment
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obligor. In Torres v. Cabling,8 we held that a sheriff is not officer shall demand of the person against whom the
required to give the judgment debtor time to raise cash. judgment for the delivery or restitution of real property is
The reason for this is to ensure that the available property rendered and all persons claiming rights under him to
is not lost.9 We even disciplined a sheriff who failed to peaceably vacate the property within three (3) working
immediately levy on the personal properties of the debtor days, and restore possession thereof to the judgment
who refused to pay the amount stated in the writ of obligee, otherwise, the officer shall oust all such persons
execution.10 therefrom with the assistance, if necessary, of appropriate
We find no proof that the respondent sheriffs peace officers, and employing such means as may be
acted in bad faith in garnishing the complainants bank reasonably necessary to retake possession, and place the
deposits. During the investigation, the respondent sheriffs judgment obligee in possession of such property. Any
denied this accusation and provided a satisfactory costs, damages, rents or profits awarded by the judgment
explanation: the bank secrecy laws prevent them from shall be satisfied in the same manner as a judgment for
knowing or securing information on the amount of the money. (13a)
complainants bank deposits with the garnishee banks. In
other words, the respondent sheriffs could not have known (d) Removal of improvements on property subject
that the bank deposits they garnished were in excess of the of execution. When the property subject of the
money judgment. execution contains improvements constructed or planted
Finally, the Investigating Judges investigation also by the judgment obligor or his agent, the officer shall not
disclosed that it was the DECCs counsels, not the destroy, demolish or remove said improvements except
respondents, who were responsible for the levy on the upon special order of the court, issued upon motion of the
complainants real properties. The levy was made by the judgment obligee after the hearing and after the former
DECCs counsels without the respondents knowledge and has failed to remove the same within a reasonable time
consent. The records show that the respondents fixed by the court. (14a)
immediately rectified the situation by asking the CIAC to lift
the levy on the complainants real properties. (e) Delivery of personal property. In judgment
for the delivery of personal property, the officer shall take
Section 10. Execution of judgments for specific act. possession of the same and forthwith deliver it to the party
entitled thereto and satisfy any judgment for money as
(a) Conveyance, delivery of deeds, or other specific therein provided. (8a)
acts; vesting title. If a judgment directs a party to
execute a conveyance of land or personal property, or to KATIHAN VS. JUDGE MACEREN
deliver deeds or other documents, or to perform, any other August 17, 2007
specific act in connection therewith, and the party fails to
comply within the time specified, the court may direct the The sole issue in this case is whether Judge
act to be done at the cost of the disobedient party by some Maceren and Sheriff Cuizon can be held administratively
other person appointed by the court and the act when so liable for the demolition of the structures of complainants
done shall have like effect as if done by the party. If real or ostensibly without due process of law, and for violation of
personal property is situated within the Philippines, the the rules of procedure concerning the execution of
court in lieu of directing a conveyance thereof may by an judgments under Rule 39.
order divest the title of any party and vest it in others, The Court finds that Judge Maceren acted within
which shall have the force and effect of a conveyance the bounds of his authority when he merely noted the
executed in due form of law. (10a) Verified Manifestation and Motion filed by PIA and
KATIHAN in Civil Case No. 35076, as the movants were not
(b) Sale of real or personal property. If the parties to the ejectment case. They did not file any formal
judgment be for the sale of real or personal property, to motion for intervention in the said case despite the
sell such property, describing it, and apply the proceeds in opportunity to do so.
conformity with the judgment. (8[c]a) As to the demolition of complainants structures
and improvements on the subject lots, as correctly
(c) Delivery or restitution of real property. The observed by the Office of the Court Administrator, there is

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no concrete evidence that Judge Maceren acquiesced to or
participated in Sheriff Cuizons act of directing the
demolition of the structures without proper authority from
the court. However, Judge Maceren should have exercised
considerable care and caution before approving the
compromise agreement, knowing that a formal
manifestation and motion was filed by persons who
claimed that they would be adversely affected by the
decision based on the compromise agreement. He should
have directed all parties in interest to intervene in the case.
Be that as it may, the lapse of judgment of Judge Maceren
is not ample basis to hold him administratively liable, since
his action of merely noting the Verified Manifestation and
Motion is well within his judicial discretion.
Conversely, Sheriff Cuizon is administratively liable
for ordering the demolition of the structures on the subject
property and for his issuance of the Final Notice of
Demolition without authority from the court. Sheriff Cuizon
exceeded his authority in issuing the Final Notice of
Demolition. He issued the same without a special order of
demolition from the court having jurisdiction over the
ejectment case.
It must be stressed that the preparation of writs is
not among the duties of sheriffs as the authority to issue
the same resides in judges.7 The Rules of Court is very clear
and categorical in saying that when the property subject of
the execution contains improvements constructed or
planted by the judgment obligor or his agent, the officer
shall not destroy, demolish or remove said improvements
except upon special order of the court, issued upon motion
of the judgment obligee after due hearing and after the
former has failed to remove the same within a reasonable
time fixed by the court.8
Sheriff Cuizons compliance with the Rules of
Court, especially in the implementation of judgments, is
not merely directory but mandatory. Sheriff Cuizon is
expected to know the rules of procedure, particularly when
it pertains to his function as an officer of the court.
Furthermore, in the Final Notice of Demolition, Sheriff
Cuizon committed misrepresentation when he stated that
a writ of demolition was issued by the trial court.1avvphi1
SPOUSES ABAGA VS. SPOUSES PANES
August 24, 2007
We agree with the Court of Appeals that in denying
respondents "Motion to Order the Clerk of Court of Any
Person To Execute Deed of Assignment," the trial court
deprived respondents of a right enjoined by law.
Ateneo de Davao University College of Law
Apparently, the trial court lost sight of Section 10 (a), Rule
39, which applies to the present incident, thus:
SEC. 10. Execution of judgments for specific act.
(a) Conveyance, delivery of deeds, or other
specific acts vesting title. If a judgment directs a
party to execute a conveyance of land or personal
property, or to deliver deeds or other documents,
or to perform any other specific act in connection
therewith, and the party fails to comply within the
time specified, the court may direct the act to be
done at the cost of the disobedient party by some
other person appointed by the court and the act
when so done shall have like effects as if done by
the party. If real or personal property is situated
within the Philippines, the court in lieu of directing
a conveyance thereof may by an order divest the
title of any party and vest it in others, which shall
have the force and effect of a conveyance
executed in due form of law.
In Caluag v. Pecson,8 we ruled that where the
judgment directs the losing party to execute a conveyance,
deliver a deed or other documents or to perform any
specific act in connection therewith, these acts can be
performed by other persons upon his refusal to comply.
The court shall appoint another person to perform the act
which shall then be done at the expense of the losing
party. The effect shall be as if it were done by the losing
party himself.1avvphi1
Verily, we held that the Court of Appeals did not
commit a reversible error of law in issuing the assailed writ
of mandamus, there being a clear showing that the trial
court has a ministerial duty to see to it that its judgment is
executed.
GUARINO VS. RAGSAC
August 27, 2009
Before the removal of an improvement must take
place, there must be a special order, hearing and
reasonable notice to remove. Section 10(d), Rule 39 of the
Rules of Court provides:
(d) Removal of improvements on property
subject of execution. When the property subject
of execution contains improvements constructed
or planted by the judgment obligor or his
agent, the officer shall not destroy, demolish or
remove said improvements except upon special
order of the court, issued upon motion of the
judgment obligee after due hearing and after the
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former has failed to remove the same within a
reasonable time fixed by the court.
The above-stated rule is clear and needs no
interpretation. If demolition is necessary, there must be a
hearing on the motion filed and with due notices to the
parties for the issuance of a special order of demolition.
Respondent [Sheriffs] ignorance of the foregoing
rule as to his functions is inexcusable. The requirement of a
special order of demolition is based on the rudiments of
justice and fair play. It frowns upon arbitrariness and
oppressive conduct in the execution of an otherwise
legitimate act. It is an amplification of the provision of the
Civil Code that every person must, in the exercise of his
rights and in the performance of his duties, act with justice,
give everyone his due, and observe honesty and good faith.
In the present administrative
complaint, respondent sheriff immediately caused the
demolition of the complainants property and destroyed
their plants without an order of demolition from the court.
Clearly his actuations amounted to grave abuse of
authority. x x x
xxxx
Anent the charge against the respondent clerk of
court Teotimo D. Cruz, we find the instant administrative
complaint unmeritorious. Complainants failed to present
substantial evidence to support their charge against him.
On the other hand, the respondent clerk of court was able
to show that he issued the subject writ pursuant to the
Order of the Court dated January 23, 2004 in compliance
with his duties as such.
The manner in which the respondent acted with
dispatch in complying with his duty of issuing the subject
writ precluded a notion that he is guilty of grave abuse of
authority.2 (Emphasis and underscoring supplied)
The Court Administrator accordingly recommended
that respondent Sheriff be found guilty of grave abuse of
authority and fined P5,000, with a stern warning that a
repetition of the same or similar act shall be dealt with
more severely.3
With respect to the complaint against respondent
Branch Clerk of Court, the Court of Administrator
recommended its dismissal for lack of merit.4ten.lihpwal
This Court finds well-taken the evaluation by the Court
Administrator.
TUMIBAY VS. SPOUSES SORO
April 13, 2010
Ateneo de Davao University College of Law
Rule 39, Section 10 sets the procedure for execution of
judgment for specific acts
In addition, Rule 39, Section 10, paragraphs (c) and
(d), of the Rules of Court provides the procedure for
execution of judgments for specific acts, as follows:
SECTION 10. Execution of judgments for
specific act.-
xxxx
(c) Delivery or restitution of real property. -
The officer shall demand of the person against
whom the judgment for the delivery or restitution
of real property is rendered and all persons
claiming rights under him to peaceably vacate the
property within the three (3) working days, and
restore possession thereof to the judgment
obligee; otherwise, the officer shall oust all such
persons therefrom with the assistance, if
necessary, of appropriate peace officers, and
employing such means as may be reasonably
necessary to retake possession, and place the
judgment obligee in possession of such property.
Any costs, damages, rents or profits awarded by
the judgment shall be satisfied in the same manner
as a judgment for money.
(d) Removal of improvements on property
subject of execution. - When the property subject
of execution contains improvements constructed
or planted by the judgment obligor or his agent,
the officer shall not destroy, demolish or remove
said improvements, except upon special order of
the court, issued upon motion of the judgment
obligee after due hearing and after the former has
failed to remove the same within a reasonable
time fixed by the court. (Emphasis
supplied)1avvphi1
In Buag v. Court of Appeals,21 we explained that a
judgment for the delivery or restitution of property is
essentially an order to place the prevailing party in
possession of the property. If the defendant refuses to
surrender possession of the property to the prevailing
party, the sheriff or other proper officer should oust him.
No express order to this effect needs to be stated in the
decision; nor is a categorical statement needed in the
decision that in such event the sheriff or other proper
officer shall have the authority to remove the
improvements on the property if the defendant fails to do
so within a reasonable period of time. The removal of the
improvements on the land under these circumstances is
deemed read into the decision, subject only to the issuance
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of a special order by the court for the removal of the
improvements.22
In light of the foregoing, we find that the CA
committed no reversible error in declaring void the
September 6, 1999 RTC Order.
ASILO VS. PEOPLE
March 9, 2011
Before the removal of an improvement must take
place, there must be a special order, hearing and
reasonable notice to remove. Section 10(d), Rule 39 of the
Rules of Court provides:
(d) Removal of improvements on property
subject of execution. When the property subject
of execution contains improvements constructed
or planted by the judgment obligor or his
agent, the officer shall not destroy, demolish or
remove said improvements except upon special
order of the court, issued upon motion of the
judgment obligee after due hearing and after the
former has failed to remove the same within a
reasonable time fixed by the court.
The above-stated rule is clear and needs no
interpretation. If demolition is necessary, there must be a
hearing on the motion filed and with due notices to the
parties for the issuance of a special order of demolition.53
This special need for a court order even if an ejectment
case has successfully been litigated, underscores the
independent basis for civil liability, in this case, where no
case was even filed by the municipality.
The requirement of a special order of demolition is
based on the rudiments of justice and fair play. It frowns
upon arbitrariness and oppressive conduct in the execution
of an otherwise legitimate act. It is an amplification of the
provision of the Civil Code that every person must, in the
exercise of his rights and in the performance of his duties,
act with justice, give everyone his due, and observe
honesty and good faith.54
Notably, the fact that a separate civil action
precisely based on due process violations was filed even
ahead of the criminal case, is complemented by the fact
that the deceased plaintiff Comendador was substituted by
his widow, herein petitioner Victoria who specified in her
petition that she has "substituted him as petitioner in the
above captioned case." Section 1, Rule III of the 1985 Rules
in Criminal Procedure mentioned in Bayotas is, therefore,
not applicable. Truly, the Sandiganbayan was correct when
it maintained the separate docketing of the civil and
Ateneo de Davao University College of Law
criminal cases before it although their consolidation was
erroneously based on Section 4 of Presidential Decree No.
1606 which deals with civil liability "arising from the
offense charged."
Section 11. Execution of special judgments.
When a judgment requires the performance of any act
other than those mentioned in the two preceding sections,
a certified copy of the judgment shall be attached to the
writ of execution and shall be served by the officer upon
the party against whom the same is rendered, or upon any
other person required thereby, or by law, to obey the
same, and such party or person may be punished for
contempt if he disobeys such judgment. (9a)
NEA VS. DANILO MORALES
July 24, 2007
Indeed, respondents cannot proceed against the
funds of petitioners because the December 16, 1999 RTC
Decision sought to be satisfied is not a judgment for a
specific sum of money susceptible of execution by
garnishment; it is a special judgment requiring petitioners
to settle the claims of respondents in accordance with
existing regulations of the COA.
In its plain text, the December 16, 1999 RTC
Decision merely directs petitioners to "settle the claims of
[respondents] and other employees similarly situated."34 It
does not require petitioners to pay a certain sum of money
to respondents. The judgment is only for the performance
of an act other than the payment of money,
implementation of which is governed by Section 11, Rule
39 of the Rules of Court, which provides:
Section 11. Execution of special judgments.
- When a judgment requires the performance of
any act other than those mentioned in the two
preceding sections, a certified copy of the
judgment shall be attached to the writ of execution
and shall be served by the officer upon the party
against whom the same is rendered, or upon any
other person required thereby, or by law, to obey
the same, and such party or person may be
punished for contempt if he disobeys such
judgment.
Garnishment cannot be employed to implement
such form of judgment. Under Section 9 of Rule 39, to wit:
Section 9. Execution of judgments for
money, how enforced. -
xxxx
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(c) Garnishment of debts and credits. - The officer
may levy on debts due the judgment obligor and
other credits, including bank deposits, financial
interests, royalties, commissions and other
personal property not capable of manual delivery
in the possession or control of third parties. Levy
shall be made by serving notice upon the person
owing such debts or having in his possession or
control such credits to which the judgment obligor
is entitled. The garnishment shall cover only such
amount as will satisfy the judgment and all lawful
fees.
Garnishment is proper only when the judgment to
be enforced is one for payment of a sum of money.
The RTC exceeded the scope of its judgment when,
in its February 22, 2000 Writ of Execution, it directed
petitioners to "extend to [respondents] the benefits and
allowances to which they are entitled but which until now
they have been deprived of as enumerated under Sec. 5 of
DBM CCC No. 10 and x x x to cause their inclusion in the
Provident Fund Membership."35 Worse, it countenanced
the issuance of a notice of garnishment against the funds
of petitioners with DBP to the extent of P16,581,429.00
even when no such amount was awarded in its December
16, 1999 Decision.
However, in its subsequent Orders dated May 17,
2000 and January 8, 2001, the RTC attempted to set
matters right by directing the parties to now await the
outcome of the legal processes for the settlement of
respondents claims.
That is only right.
NHMFC VS. ABAYARI
October 2, 2009
To begin with, a writ of mandamus is a command
issuing from a court of law of competent jurisdiction, in the
name of the state or sovereign, directed to an inferior
court, tribunal, or board, or to some corporation or person,
requiring the performance of a particular duty therein
specified, which duty results from the official station of the
party to whom the writ is directed, or from operation of
law.36 It is employed to compel the performance, when
refused, of a ministerial duty37 which, as opposed to a
discretionary one, is that which an officer or tribunal
performs in a given state of facts, in a prescribed manner,
in obedience to the mandate of legal authority, without
regard to or the exercise of his or its own judgment upon
the propriety or impropriety of the act done.38
Ateneo de Davao University College of Law
A favorable judgment rendered in a special civil
action for mandamus is in the nature of a special judgment.
As such, it requires the performance of any other act than
the payment of money or the sale or delivery of real or
personal property the execution of which is governed by
Section 11, Rule 39 of the Rules of Court39 which states:
SECTION 11. Execution of Special
Judgment.When the judgment requires the
performance of any act other than those
mentioned in the two preceding sections, a
certified copy of the judgment shall be attached to
the writ of execution and shall be served by the
officer upon the party against whom the same is
rendered, or upon any other person required
thereby, or by law, to obey the same, and such
party or person may be punished for contempt if
he disobeys such judgment.
While the April 17, 2001 Decision of the trial court
ordered petitioner to pay the benefits claimed by
respondents, it by no means ordered the payment of a
specific sum of money and instead merely directed
petitioner to extend to respondents the benefits under R.A.
No. 6758 and its implementing rules. Being a special
judgment, the decision may not be executed in the same
way as a judgment for money handed down in an ordinary
civil case governed by Section 9, Rule 39 of the Rules Court
which sanctions garnishment of debts and credits to satisfy
a monetary award. Garnishment is proper only when the
judgment to be enforced is one for payment of a sum of
money. It cannot be employed to implement a special
judgment such as that rendered in a special civil action for
mandamus.40
On this score, not only did the trial court exceed
the scope of its judgment when it awarded the benefits
claimed by respondents. It also committed a blatant error
when it issued the February 16, 2004 Order directing the
garnishment of petitioners funds with the Land Bank of
the Philippines equivalent to P4,806,530.00, even though
the said amount was not specified in the decision it sought
to implement.
Be that as it may, assuming for the sake of
argument that execution by garnishment could proceed in
this case against the funds of petitioner, it must bear stress
that the latter is a government-owned or controlled
corporation with a charter of its own. Its juridical
personality is separate and distinct from the government
and it can sue and be sued in its name.41 As such, while
indeed it cannot evade the effects of the execution of an
adverse judgment and may not ordinarily place its funds
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beyond an order of garnishment issued in ordinary this section shall be exempt from execution issued upon a
cases,42 it is imperative in order for execution to ensue that judgment recovered for its price or upon a judgment of
a claim for the payment of the judgment award be first foreclosure of a mortgage thereon. (12a)
filed with the Commission on Audit (COA).
DARMOURED VS. ORPIA
Section 13. Property exempt from execution. June 27, 2005
Except as otherwise expressly provided by law, the
following property, and no other, shall be exempt from "We cannot accede to petitioners position that the
execution: garnished amount is exempt from execution.
(a) The judgment obligor's family home as provided Section 13 of Rule 39 of the Rules of Court is plain
by law, or the homestead in which he resides, and land and clear on what properties are exempt from execution.
necessarily used in connection therewith; Section 13 (i) of the Rules pertinently reads:
(b) Ordinary tools and implements personally used SECTION 13. Property exempt from
by him in his trade, employment, or livelihood; execution. Except as otherwise expressly
(c) Three horses, or three cows, or three carabaos, provided by law, the following property, and no
or other beasts of burden, such as the judgment obligor other, shall be exempt from execution:
may select necessarily used by him in his ordinary x x x x x x x x x
occupation; (i) So much of the salaries, wages or earnings of the
(d) His necessary clothing and articles for ordinary judgment obligor for his personal services within the four
personal use, excluding jewelry; months preceding the levy as are necessary for the support
(e) Household furniture and utensils necessary for of his family.
housekeeping, and used for that purpose by the judgment The exemption under this procedural rule should
obligor and his family, such as the judgment obligor may be read in conjunction with the Civil Code, the substantive
select, of a value not exceeding one hundred thousand law which proscribes the execution of employees wages,
pesos; thus:
(f) Provisions for individual or family use sufficient ART. 1708. The laborers wage shall not be
for four months; subject to execution or attachment, except for
(g) The professional libraries and equipment of debts incurred for food, shelter, clothing and
judges, lawyers, physicians, pharmacists, dentists, medical attendance.
engineers, surveyors, clergymen, teachers, and other Obviously, the exemption under Rule 39 of the
professionals, not exceeding three hundred thousand Rules of Court and Article 1708 of the New Civil Code is
pesos in value; meant to favor only laboring men or women whose works
(h) One fishing boat and accessories not exceeding are manual. Persons belonging to this class usually look to
the total value of one hundred thousand pesos owned by a the reward of a days labor for immediate or present
fisherman and by the lawful use of which he earns his support, and such persons are more in need of the
livelihood; exemption than any other [Gaa vs. Court of Appeals, 140
(i) So much of the salaries, wages, or earnings of SCRA 304 (1985)].
the judgment obligor for his personal services within the In this context, exemptions under this rule are confined
four months preceding the levy as are necessary for the only to natural persons and not to juridical entities such as
support of his family; petitioner. Thus, the rule speaks of salaries, wages and
(j) Lettered gravestones; earning from the personal services rendered by the
(k) Monies, benefits, privileges, or annuities judgment obligor. The rule further requires that such
accruing or in any manner growing out of any life earnings be intended for the support of the judgment
insurance; debtors family.
(l) The right to receive legal support, or money or Necessarily, petitioner which is a corporate entity,
property obtained as such support, or any pension or does not fall under the exemption. If at all, the exemption
gratuity from the Government; refers to petitioners individual employees and not to
(m) Properties specially exempted by law. petitioner as a corporation.
But no article or species of property mentioned in

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 Civil Procedure | Atty. Catherine M. Guerzo-Barrion (2016-2017)
x x x. Parenthetically, in a parallel case where a
security agency claimed that the guns it gives to its guards
are tools and implements exempt from execution, the
Supreme Court had the occasion to rule that the
exemption pertains only to natural and not to juridical
persons, thus:
However, it would appear that the
exemption contemplated by the provision involved
is personal, available only to a natural person, such
as a dentists dental chair and electric fan (Belen v.
de Leon, G.R. No. L-15612, 30 Nov. 1962). As
pointed out by the Solicitor General, if properties
used in business are exempt from execution, there
can hardly be an instance when a judgment claim
can be enforced against the business entity
[Pentagon Security and Investigation Agency vs.
Jimenez, 192 SCRA 492 (1990)].
It stands to reason that only natural persons whose
salaries, wages and earnings are indispensable for his own
and that of his familys support are exempted under
Section 13 (i) of Rule 39 of the Rules of Court. Undeniably,
a corporate entity such as petitioner security agency is not
covered by the exemption.
Section 14. Return of writ of execution. The writ
of execution shall be returnable to the court issuing it
immediately after the judgment has been satisfied in part
or in full. If the judgment cannot be satisfied in full within
thirty (30) days after his receipt of the writ, the officer shall
report to the court and state the reason therefor. Such writ
shall continue in effect during the period within which the
judgment may be enforced by motion. The officer shall
make a report to the court every thirty (30) days on the
proceedings taken thereon until the judgment is satisfied in
full, or its effectivity expires. The returns or periodic
reports shall set forth the whole of the proceedings taken,
and shall be filed with the court and copies thereof
promptly furnished the parties. (11a)
DAGOOC VS. ERLINA
March 16, 2005
We find it strange and highly unusual, to say the
least, that respondent sheriff did not know his duties and
functions under Section 9, Rule 39 of the Revised Rules of
Court which clearly states how the execution of money
judgments should be made.
Respondent sheriff not only failed to levy on the
properties of the judgment debtor when they could not
Ateneo de Davao University College of Law
pay the money judgment in cash but also claimed the
exemption for them. His conduct blatantly manifested his
incompetence and ineptitude in discharging his functions.
Moreover, respondent sheriff was seriously remiss in his
duties when he stated in his return of service that the
defendants were insolvent without first diligently verifying
such fact. As it turned out, the defendants had real
properties he could have levied on to satisfy the money
judgment.
But even assuming that the defendants/judgment
debtors were insolvent, respondent sheriff should have
garnished their salaries (being paid employees) to enforce
the judgment in the subject case as provided for in Section
9(c), Rule 39 of the Revised Rules of Court.
Either to desperately cover his tracks after it was
pointed out to him that the defendants were not insolvent
at all or out of sheer ignorance of the law, respondent
sheriff advised complainant to file a motion for the
issuance of an alias writ of execution allegedly so that he
could levy on the properties of the defendants. But there
was no need for an alias writ of execution for him to levy
on the real properties of the defendants. The life of the
writ was for five years and the judgment of the court had
not yet been fully satisfied. Section 14, Rule 39 of the
Revised Rules of Court states that:
Section 14. Return of writ of execution.
The writ of execution shall be returnable to the
court issuing it immediately after the judgment has
been satisfied in part or in full. If the judgment
cannot be satisfied in full within thirty (30) days
after his receipt of the writ, the officer shall report
to the court and state the reason therefor. Such
writ shall continue in effect during the period
within which the judgment may be enforced by
motion. The officer shall make a report to the
court every thirty (30) days on the proceedings
taken thereon until the judgment is satisfied in full,
or its effectivity expires. x x x (emphasis ours)
Sheriffs, as public officers, are repositories of
public trust and are under obligation to perform the duties
of their office honestly, faithfully and to the best of their
ability. They are bound to use utmost skill and diligence in
the performance of their official duties particularly where
the rights of individuals may be jeopardized by their
neglect.5 Here, we find respondent sheriff utterly wanting
in zeal and dedication. He was highly incompetent,
downright inefficient and grossly ignorant of the law when
he did not faithfully execute the writ of execution to the
prejudice of complainant.
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Considering that respondent sheriffs primary duty
was the execution of the writ strictly according to its terms,
there was apparently more than mere "harmless"
ignorance involved here, which makes us wonder about
the very lame and docile penalty of P5,000 being
recommended by the OCA. Applying Rule 4, Section 52 B(2)
of the Revised Uniform Rules on Administrative Cases in
the Civil Service, we find respondent guilty of inefficiency
and incompetence in the performance of his official duties
and suspend him from the service for one (1) year.
KATIHAN VS. JUDGE MACEREN
August 17, 2007
Sheriff Cuizon is likewise administratively liable for value of the property exceeds fifty thousand (P50,000.00)
his failure to make periodic reports as mandated by Section
14, Rule 39 of the Rules of Court which states:
SEC. 14. Return of writ of execution. The
writ of execution shall be returnable to the court
issuing it immediately after the judgment has been
satisfied in part or in full. If the judgment cannot be or city;
satisfied in full within thirty (30) days after his
receipt of the writ, the officer shall report to the
court and state the reason therefore. Such writ
shall continue in effect during the period within
which the judgment may be enforced by motion.
The officer shall make a report to the court every
(30) days on the proceedings taken thereon until
the judgment is satisfied in full, or its effectivity
expires. The returns or periodic reports shall set
forth the whole of the proceedings taken, and shall
be filled with the court and copies thereof
promptly furnished the parties.
It is mandatory for a sheriff to make a return of the
writ of execution to the clerk or judge issuing it within
thirty (30) days upon his receipt of the writ.9 The Writ of
Execution was issued by Judge Maceren on November 30,
2005. On the same date, Sheriff Cuizon issued a Notice to
Vacate. Correspondingly, Sheriff Cuizon should have
submitted to the MeTC a return of writ on December 30,
2005 and a report every thirty (30) days thereafter until the
judgment is fully satisfied. The reason behind this
mandatory requirement is to update the court on the
status of the execution and to take necessary steps to
ensure the speedy execution of decisions.
Section 15. Notice of sale of property on execution. amended by Supreme Court Circular No. 8 dated May 15,
Before the sale of property on execution, notice thereof 1987 [now Sec. 15(d), Rule 39 of the 1997 Rules of Civil
must be given as follows:
(a) In case of perishable property, by posting
written notice of the time and place of the sale in three (3)
public places, preferably in conspicuous areas of the
municipal or city hall, post office and public market in the
municipality or city where the sale is to take place, for such
time as may be reasonable, considering the character and
condition of the property;
(b) In case of other personal property, by posting a
similar notice in the three (3) public places above-
mentioned for not less than five (5) days;
(c) In case of real property, by posting for twenty
(20) days in the three (3) public places abovementioned a
similar notice particularly describing the property and
stating where the property is to be sold, and if the assessed
pesos, by publishing a copy of the notice once a week for
two (2) consecutive weeks in one newspaper selected by
raffle, whether in English, Filipino, or any major regional
language published, edited and circulated or, in the
absence thereof, having general circulation in the province
(d) In all cases, written notice of the sale shall be
given to the judgment obligor, at least three (3) days
before the sale, except as provided in paragraph (a) hereof
where notice shall be given the same manner as personal
service of pleadings and other papers as provided by
section 6 of Rule 13.
The notice shall specify the place, date and exact time of
the sale which should not be earlier than nine o'clock in the
morning and not later than two o'clock in the afternoon.
The place of the sale may be agreed upon by the parties. In
the absence of such agreement, the sale of the property or
personal property not capable of manual delivery shall be
held in the office of the clerk of court of the Regional Trial
Court or the Municipal Trial Court which issued the writ of
or which was designated by the appellate court. In the case
of personal property capable of manual delivery, the sale
shall be held in the place where the property is located.
(18a)
VILLAVICENCIO VS. MOJARES
February 27, 2003
Whether the sheriffs sale was valid although there
was no written notice of sale to the judgment debtor as
required by Section 18, Rule 39 of the Rules of Court, as
Procedure];

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On the first issue, petitioners argue that the
sheriffs execution sale was null and void for lack of written
notice of sale to the judgment debtor as required by Sec.
18, Rule 39 (now Sec. 15 (d), Sec. 39) of the Revised Rules
of Court6 and for failure of the purchaser-judgment
creditor to pay his bid in cash.7 In support of their
argument regarding the lack of notice of sale, petitioners
quoted verbatim the Sheriffs Return, which enumerated in
detail the proceedings undertaken.8
Respondents, in response, contend that the
execution sale was valid as there was personal service of
the notice of sale and publication in the Metro Profile prior
to the sale. In support of this contention, they rely on the
testimony on cross-examination of Sheriff Payumo, one of
the witnesses for petitioners.9
At the outset, it bears stressing that this issue
involves determination of facts, which is not proper in a
petition for review on certiorari. The Court has ruled that
findings that concern compliance or non-compliance with
notice and publication requirements of an extrajudicial
foreclosure sale involve a factual issue binding on the
Supreme Court.10 It is axiomatic that only questions of law,
not questions of fact, may be raised before the Supreme
Court in a petition for review under Rule 45 of the Rules of
Court.11 The Court is not a trier of facts, and we need not
delve into the records to determine the probative value of
the evidence supporting the trial courts finding.12
Besides, it is well settled that in extrajudicial
foreclosure sale, personal notice to the mortgagor is not
necessary as publication of notice in newspaper is more
than sufficient compliance.13
The Court of Appeals has found that petitioners
arguments are mere unsubstantiated allegations not borne
out by the evidence.14 Foreclosure proceedings have in
their favor the presumption of regularity and the burden of
the evidence to rebut the same is on the petitioners.15 In
this case, petitioners have failed to prove the lack of
service of notice of sale. The Sheriffs return in itself does
not establish the non-compliance with the service of
written notice of sale. At most, it only shows the detailed
proceedings of the service of the writ of execution. The fact
that no service of the written notice of sale is mentioned
therein would not negate actual service of written notice of
sale to the judgment debtor.
SPOUSES TAGLE VS. CA
July 8, 2009
Ateneo de Davao University College of Law
Section 15(d) of Rule 39, cited by petitioners must
be read in relation to Section 6, Rule 13, which in turn
provides:
Sec. 6. Personal service. Service of the
papers may be made by delivering personally a
copy to the party or his counsel, or by leaving it in
his office with his clerk or with a person having
charge thereof. If no person is found in his office,
or his office is not known, or he has no office, then
by leaving the copy, between the hours of eight in
the morning and six in the evening, at the party's
or counsel's residence, if known, with a person of
sufficient age and discretion then residing therein.
(emphasis ours)
Verily, following Section 6, Rule 13, the written
notice of sale to the judgment obligor need not be
personally served on the judgment obligor himself. It may
be served on his counsel, or by leaving the notice in his
office with his clerk or a person having charge thereof. If
there is no one found at the judgment obligors or his
counsels office or if such office is not known/inexistent, it
may be served at the residence of the judgment obligor or
his counsel and may be received by any person of sufficient
age and discretion residing therein. Thus, petitioners
theory (that only written notice of sale served on
petitioners themselves would be valid) is utterly bereft of
merit.
Other circumstances on record further support the
finding that petitioners were duly notified of the August 9,
2000 auction sale. It can be gleaned from the Sheriffs
Report12 dated August 11, 2000 that a notice of sale was
first issued on March 20, 2000. This was a notice for the
public auction of various personal properties initially set on
March 28, 2000 but the sale on said date was postponed
upon the request of the parties (including petitioners) for
time to come up with an amicable settlement. When no
amicable settlement was reached, the sheriff issued on July
31, 2000 another notice of sale which was set for August 9,
2000. The report further states that on the auction sale
eventually conducted on August 9, 2000, the Tagles son,
Eric Tagle, was present. The Sheriffs Report is prima facie
evidence of the facts stated therein. Indeed, the fact that
petitioners were represented during the auction sale by
their son confirmed that they had actual notice of the said
auction sale.lavvphi1
We need not emphasize that the sheriff enjoys the
presumption of regularity in the performance of the
functions of his office.13 This presumption prevails in the
absence of substantial evidence to the contrary and cannot
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be overcome by bare and self-serving allegations. There
was no showing that there was any irregularity in the
report submitted by the sheriff, neither was there evidence
that the sheriff was remiss in his duty to issue the said
notices.
REYES VS. TANG SOAT ING
December 14, 2011
Contrary to the Court of Appeals holding, the
burden of evidence to prove lack of compliance with
Section 15, Rule 39 of the Rules of Court rests on the party
claiming lack thereof i.e., respondents.
In Venzon v. Spouses Juan,29 we declared that the
judgment debtor, as herein respondents, alleging lack of
compliance with the posting and publication requirements
of the auction sale in accordance with the rules, is
behooved to prove such allegation. We held, thus:
x x x. Whoever asserts a right dependent
for its existence upon a negative, must establish
the truth of the negative by a preponderance of
the evidence. This must be the rule, or it must
follow that rights, of which a negative forms an
essential element, may be enforced without proof.
Thus, whenever the [partys] right depends upon
the truth of a negative, upon him is cast the onus
probandi, except in cases where the matter is
peculiarly within the knowledge of the adverse
party.
It was error, therefore, for the trial court to hold
that:
Defendants did not present evidence to
rebut the "no notice" allegation of the plaintiff.
Although in the defendant spouses pre-trial brief,
there is that general allegation that the auction
sale was made in accordance with law, however,
there is no showing in the record that the
requirements with respect to publication/posting
of notices were complied with by the defendants.
Deliberating on the absence of notice, the fact that
the plaintiff did not come to know that Lot 12 was being
subjected to an auction sale proves two things: one, that
no notice was posted in the place where the property is
located [and, two, that] there was no auction sale that took
place on March 30, 1992. . . .
Further, the defendants, particularly defendant
sheriff, who is the most competent person to testify that a
written notice of sale was made and posted in accordance
with law, was not presented to the witness stand. Neither
Ateneo de Davao University College of Law
was a document presented like Sheriffs Certificate of
Posting to attest to the fact that a written notice of sale
was posted before the property was allegedly sold at public
auction. In fact, the record is silent as (to) where the
auction sale was conducted.
By ruling in the foregoing manner, the trial court
incorrectly shifted the plaintiffs burden of proof to the
defendants. It is true that the fact of posting and
publication of the notices is a matter "peculiarly within the
knowledge" of the Deputy Sheriff. However, the trial court
did not acquire jurisdiction over him, as he was not served
with summons. At the time of the filing of the complaint,
he was "no longer connected" with the Caloocan RTC,
Branch 126, which issued the writ of execution. Hence, he
could not testify in his own behalf.
DALANGIN VS. PEREZ
April 3, 2013
Under the 1964 Rules of Court, notice 9f the
execution sale to the judgment obligor was not required, or
was merely optional; publication and posting sufficed. It
was only in 1987 that the Court, via Circular No. 8
amending Rule 39, Section 18 of the Rules of Court,
required that written notice be given to the judgment
debtor.
The applicable rule at the time of the execution sale on
March 15, 1972 is Rule 39, Section 18 of the 1964 Rules of
Court. This rule does not require personal written notice to
the judgment debtor.
At the time of the execution sale on March 15,
1972, the applicable rule is Rule 39, Section 18 of the 1964
Rules of Court. It states:
Sec. 18. Notice of sale of property on
execution. Before the sale of property on
execution, notice thereof must be given as follows:
(a) In case of perishable property, by
posting written notice of the time and place of the
sale in three public places in the municipality or
city where the sale is to take place, for such time as
may be reasonable, considering the character and
condition of the property;
(b) In case of other personal property, by posting a
similar notice in three public places in the
municipality or city where the sale is to take place,
for not less than five (5) nor more than ten (10)
days;
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(c) In case of real property, by posting a
similar notice particularly describing the property
for twenty (20) days in three public places in the
municipality or city where the property is situated,
and also where the property is to be sold, and, if
the assessed value of the property exceeds four
hundred pesos (P400), by publishing a copy of the
notice once a week, for the same period, in a
newspaper published or having general circulation
in the province, if there be one. If there are
newspapers published in the Province in both the
English and Spanish languages, then a like
publication for a like period shall be made in one
newspaper published in the English language, and
in one published in the Spanish language.
The foregoing rule does not require written notice
to the judgment obligor. Respondents are thus correct in
their argument that at the time of the execution sale on
March 15, 1972, personal notice to the petitioners was not
required under Rule 39, Section 18 of the 1964 Rules of
Court. Indeed, notice to the judgment obligor under the
1964 Rules of Court was not required, or was merely
optional; publication and posting sufficed.
It was only in 1987 that the Court required that
written notice of the execution sale be given to the
judgment debtor, via Circular No. 823 amending Rule 39,
Section 18 of the Rules of Court on notice of sale of
property on execution. Thus, the alleged failure on the part
of the respondents to furnish petitioners with a written
notice of the execution sale did not nullify the execution
sale because it was not then a requirement for its validity.
The presumption of regularity of the execution sale and the
sheriffs performance of his official functions prevail in the
absence of evidence to the contrary and in light of the self-
serving allegations and bare denials of petitioners to the
effect that they were not served with notice of the sheriffs
sale.
In Reyes v. Tang Soat Ing,24 the Court was
confronted with similar circumstances which the herein
parties now find themselves in. In said case, the judgment
obligors claimed long after their property was subjected
to execution sale and consolidation proceedings that the
rules requiring prior notice of the execution sale were not
strictly complied with. The Court did not agree, and it held
Contrary to the Court of Appeals holding, the burden of
evidence to prove lack of compliance with Section 15, Rule
39 of the Rules of Court rests on the party claiming lack
thereof i.e., respondents.
Ateneo de Davao University College of Law
In Venzon v. Spouses Juan, we declared that the
judgment debtor, as herein respondents, alleging lack of
compliance with the posting and publication requirements
of the auction sale in accordance with the rules, is
behooved to prove such allegation. We held, thus:
x x x. Whoever asserts a right dependent
for its existence upon a negative, must establish
the truth of the negative by a preponderance of
the evidence. This must be the rule, or it must
follow that rights, of which a negative forms an
essential element, may be enforced without
proof.1wphi1 Thus, whenever the partys right
depends upon the truth of a negative, upon him is
cast the onus probandi, except in cases where the
matter is peculiarly within the knowledge of the
adverse party.
Section 16. Proceedings where property claimed by
third person. If the property levied on is claimed by any
person other than the judgment obligor or his agent, and
such person makes an affidavit of his title thereto or right
to the possession thereof, stating the grounds of such right
or title, and serves the same upon the officer making the
levy and copy thereof, stating the grounds of such right or
tittle, and a serves the same upon the officer making the
levy and a copy thereof upon the judgment obligee, the
officer shall not be bound to keep the property, unless
such judgment obligee, on demand of the officer, files a
bond approved by the court to indemnity the third-party
claimant in a sum not less than the value of the property
levied on. In case of disagreement as to such value, the
same shall be determined by the court issuing the writ of
execution. No claim for damages for the taking or keeping
of the property may be enforced against the bond unless
the action therefor is filed within one hundred twenty
(120) days from the date of the filing of the bond.
The officer shall not be liable for damages for the
taking or keeping of the property, to any third-party
claimant if such bond is filed. Nothing herein contained
shall prevent such claimant or any third person from
vindicating his claim to the property in a separate action, or
prevent the judgment obligee from claiming damages in
the same or a separate action against a third-party
claimant who filed a frivolous or plainly spurious claim.
When the writ of execution is issued in favor of the
Republic of the Philippines, or any officer duly representing
it, the filing of such bond shall not be required, and in case
the sheriff or levying officer is sued for damages as a result
of the levy, he shall be represented by the Solicitor General
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and if held liable therefor, the actual damages adjudged by party appear to claim the property levied
the court shall be paid by the National Treasurer out of upon by the sheriff, the procedure laid
such funds as may be appropriated for the purpose. (17a) down by the Rules is that such claim should
be the subject of a separate and
AIR FRANCE VS. CA independent action. (Emphasis supplied)
June 30, 1995 Multinational Food and Iolani Dionisio, not being
parties to the case, the property covered by TCT No.
It is well-settled that the power of the court in the 353935 may not be levied upon to satisfy the obligations of
execution of judgments extends only over properties private respondent spouses and the Multinational Travel
unquestionably belonging to the judgment debtor. 2 Here, Corporation.
the property in question was sold to private respondent
Iolani Dionisio, who was not a party to the case subject of CHINA BANK VS. ORDINARIO
execution. March 24, 2003
3
In Bayer Philippines, Inc. v. Agana, the Court said:
. . . Once a court renders a final judgment, Under Section 33, Rule 39 of the 1997 Rules of Civil
all the issues between or among the Procedure, as amended, the possession of the foreclosed
parties before it are deemed resolved and property may be awarded to the purchaser or highest
its judicial function as regards any matter bidder "unless a third party is actually holding the property
related to the controversy litigated comes adversely to the judgment
7
to an end. The execution of its judgment is debtor." Assuming arguendo that respondent spouses
purely a ministerial phase of adjudication. are adverse third parties, as they so averred, Section 16 of
Indeed, the nature of its duty to see to it the same Rule reserves to them the remedies of
that the claim of the prevailing party is (1) terceria to determine whether the sheriff has rightly or
fully satisfied from the properties of the wrongly taken hold of the property not belonging to the
loser is generally ministerial. . . . judgment debtor or obligor and (2) an independent
xxx xxx xxx "separate action" to vindicate their claim of ownership
In other words, construing Section and/or possession over the foreclosed property.8 Section
17 of Rule 39 of the Revised Rules of Court, 16 of Rule 39 provides:
the rights of third-party claimants over "Sec. 16. Proceedings where property claimed by
certain properties levied upon by the third person. If property levied on is claimed by
sheriff to satisfy the judgment should not any person other than the judgment obligor or his
be decided in the action where the third- agent, and such person makes an affidavit of his
party claims have been presented, but in title thereto or right to the possession thereof,
the separate action instituted by the stating the grounds of such right or title, and serves
claimants. the same upon the officer making the levy, and
This is evident from the very copy thereof upon the judgment obligee, the officer
nature of the proceedings. In Herald shall not be bound to keep the property, unless
Publishing, supra, We intimated that such judgment obligee, on demand of the officer,
the levy by the sheriff of a property by files a bond approved by the court to indemnify the
virtue of a writ of attachment may be third-party claimant in a sum not less than the
considered as made under authority of the value of the property levied on. In case of
court only when the property levied upon disagreement as to such value, the same shall be
unquestionably belongs to the defendant. If determined by the court issuing the writ of
he attach properties (sic) other than those execution. No claim for damages for the taking or
of defendant, he acts beyond the limits of keeping of the property may be enforced against
his authority. Otherwise stated, the court the bond unless the action therefor is filed within
issuing a writ of execution is supposed to one hundred twenty (120) days from the date of
enforce its authority only over properties the filing of the bond.
of the judgment debtor, and should a third

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 Civil Procedure | Atty. Catherine M. Guerzo-Barrion (2016-2017)
"The officer shall not be liable for damages
for the taking or keeping of the property, to any
third party claimant if such bond is filed. Nothing
herein contained shall prevent such claimant or any
third person from vindicating his claim to the
property in a separate action, or prevent the
judgment obligee from claiming damages in the
same or a separate action against a third-party
claimant who filed a frivolous or plainly spurious
claim. xxx."
Under the above Rule, a third-party claimant or a
stranger to the foreclosure suit, like respondents herein,
can opt to file a remedy known as terceria against the
sheriff or officer effecting the writ by serving on him an
affidavit of his title and a copy thereof upon the judgment
creditor. By the terceria, the officer shall not be bound to
keep the property and could be answerable for damages. A
third-party claimant may also resort to an independent
"separate action," the object of which is the recovery of
ownership or possession of the property seized by the
sheriff, as well as damages arising from wrongful seizure
and detention of the property despite the third-party
claim. If a "separate action" is the recourse, the third-party
claimant must institute in a forum of competent
jurisdiction an action, distinct and separate from the action
in which the judgment is being enforced, even before or
without need of filing a claim in the court that issued the
writ. Both remedies are cumulative and may be availed of
independently of or separately from the other. Availment
of the terceria is not a condition sine qua non to the
institution of a "separate action."9
Thus, respondents resort to a motion for
reconsideration is obviously a procedural misstep.
LINCOLN YAO VS. JUDGE PERELLO
October 24, 2003
It is a basic precept that the power of the court in
the execution of judgments extends only to properties
unquestionably belonging to the judgment debtor. The levy
by the sheriff on property by virtue of a writ of attachment
may be considered as made under the authority of the
court only vis-a-vis property belonging to the defendant.
For indeed, "one man's goods shall not be sold for another
man's debts."3 In the case at bar, the property levied on by
the sheriff was clearly not exclusively owned by Pablito
Villarin. It was co-owned by herein private respondent who
was a stranger in the HLURB case. The property relation of
spouses Villarin was governed by the regime of complete
Ateneo de Davao University College of Law
separation of property as decreed in the order4 dated
November 10, 1998 of the Regional Trial Court, Branch 27,
Paraaque City.
It is clear from Articles 145 and 146 of the Family
Code governing the regime of complete separation of
property that the only time the separate properties of the
spouses can be made to answer for liabilities to creditors is
when those liabilities are incurred for family expenses. This
has not been shown in the case at bar.
Accordingly, private respondent acted well within
her rights in filing a petition for prohibition against the
deputy sheriff because the latter went beyond his
authority in attaching the subject property. This right is
specifically reserved by Section 17, Rule 39 of the Rules of
Court.
NELDA APOSTOL VS. SHERIFF IPAC
July 28, 2005
A sheriffs duty in the execution of a writ issued by
a court is purely ministerial.24 When he levies on a property
which is claimed by one other than the judgment obligor,
Rule 39, Section 16 of the Rules of Court directs him to
observe the following procedure:
SEC. 16. Proceedings where property
claimed by third person. If the property levied on
is claimed by any person other than the judgment
obligor or his agent, and such person makes an
affidavit of his title thereto or right to the
possession thereof, stating the grounds of such
right or title, and serves the same upon the officer
making the levy and a copy thereof upon the
judgment obligee, the officer shall not be bound to
keep the property, unless such judgment obligee,
on demand of the officer, files a bond approved by
the court to indemnify the third-party claimant in a
sum not less than the value of the property levied
on. In case of disagreement as to such value, the
same shall be determined by the court issuing the
writ of execution. No claim for damages for the
taking or keeping of the property may be enforced
against the bond unless the action therefore is filed
within one hundred twenty (120) days from the
date of the filing of the bond.
x x x,
to free him from liability for damages in connection
therewith.
The officer shall not be liable for damages for the
taking or keeping of the property, to any third-
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 Civil Procedure | Atty. Catherine M. Guerzo-Barrion (2016-2017)
party claimant if such bond is filed. Nothing herein
contained shall prevent such claimant or any third
person from vindicating his claim to the
property in a separate action, or prevent the
judgment obligee from claiming damages in the
same or a separate action against a third-party
claimant who filed a frivolous plainly spurious
claim.
x x x25 (Underscoring supplied)
Notably, on August 15, 2003, a day after
respondent took possession of the vehicle, he, in
accordance with the above-quoted rule, made a demand
upon the judgment obligee Silver Spirit that it post an
indemnity bond. In compliance therewith, Silver Spirit
procured on August 18, 2003 from Pacific Union Insurance
Company an indemnity bond in the amount of Two
Hundred Fifty Thousand (P250,000) Pesos which was
approved by the court.26 It was only then that the public
auction of the vehicle27 was scheduled, as it did take place
on August 25, 2003.
As reflected in the above-quoted Rule 39, Section
16, the purpose of the indemnity bond is to protect and
indemnify the third-party claimant for all damages and
responsibilities which said party may suffer if the sheriff
proceeds with the levy and sale of the contested
property.28 It also serves to shield the sheriff from any
personal liability for such damages.29
Contrary to complainants assertion, respondent is
not duty bound to file a case for the nullification of
complainants Certificate of Registration. Silver Spirit
having posted an indemnity bond, complainants remedy
was to file an independent reinvindicatory action against
Silver Spirit which purchased the property at the public
auction.30
COBARRUBIAS VS. APOSTOL
January 31, 2006
The Court agrees with the finding of the OCA that
respondent Sheriff is liable for failing to hold the auction
sale as scheduled. Respondent Sheriff ignored specific
provisions of the Rules of Court outlining the procedure for
execution where the property under levy is the subject of a
third-party claim. Section 16, Rule 39 of the Rules of Court
states:
Sec. 16. Proceedings where property
claimed by third person. If the property levied on
is claimed by any person other than the judgment
obligor or his agent, and such person makes an
Ateneo de Davao University College of Law
affidavit of his title thereto or right to the
possession thereof, stating the grounds of such
right or title, and serves the same upon the officer
making the levy and a copy thereof upon the
judgment obligee, the officer shall not be bound to
keep the property, unless such judgment obligee,
on demand of the officer, files a bond approved
by the court to indemnify the third-party
claimant in a sum not less than the value of the
property levied on x x x.
The officer shall not be liable for damages
for the taking or keeping of the property, to any
third-party claimant if such bond is filed. Nothing
herein contained shall prevent such claimant or
any third person from vindicating his claim to the
property in a separate action x x x. (Emphasis
supplied)
Complainants indemnity bond was meant to
answer for damages which de Lucia might suffer if
respondent Sheriff had proceeded with the sale. It would
have served as respondent Sheriffs shield against any
personal liability. On the other hand, de Lucia could have
posted a counter-bond to stay the execution of the
decision, a remedy she obviously chose not to pursue. At
any rate, de Lucia was not helpless. Section 16 of Rule 39
provides that she had the right to file an independent
action against complainant or whoever might purchase the
property at the sale or afterwards.17
Clearly, respondent Sheriff acted beyond the
bounds of his authority, as there was no legal impediment
to the auction sale. His justification that he waited for the
courts resolution of the Omnibus Motion to ensure that
the implementation of the writ "is in accordance with law"
does not impress the Court. It is not the duty of a sheriff to
decide on the truth or sufficiency of the processes
committed to him for service.18 We remind respondent
that:
The duty of a sheriff to execute a valid writ
is ministerial and not discretionary. A purely
ministerial act or duty is one which an officer or
tribunal performs in the context of a given set of
facts, in a prescribed manner and without regard
to the exercise of his own judgment upon the
propriety or impropriety of the act done. A
discretionary act, on the other hand, is a faculty
conferred upon a court or official by which he may
decide the question either way and still be right.
CAPA VS. CA
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 Civil Procedure | Atty. Catherine M. Guerzo-Barrion (2016-2017)
September 19, 2006
We likewise find no basis for the petition
for mandamus filed by petitioners to compel the CA to act
on petitioners' Motion to Admit Claim for damages as it
had no jurisdiction to do so.
The second paragraph of Section 16, Rule 39 of the
Rules of Court which is invoked by petitioners to support
their claim provides:
x x x Nothing herein contained shall prevent such
claimant or any third person from vindicating his
claim to the property in a separate action, or
prevent the judgment obligee from claiming
damages in the same or separate action against a
third-party claimant who filed a frivolous or plainly
spurious claim.
Clearly, a third party claimant or any third person
may vindicate his claim to his property wrongfully levied by
filing a proper action which is distinct and separate from
that in which the judgment is being enforced. Such action
would have for its object the recovery of the possession of
the property seized by the sheriff, as well as damages
resulting from the allegedly wrongful seizure and detention
thereof despite the third-party claim; and it may be
brought against the sheriff, of course, and such other
parties as may be alleged to have colluded with the sheriff
in the supposedly wrongful execution proceedings, such as
the judgment creditor himself.15
The same paragraph also provides a remedy to a
judgment obligee when a frivolous and plainly spurious
claim was filed by a third-party claimant, i.e., to file his
claim for damages in the same court where the third-party
claimant filed his third-party claim or to file a separate
action. Thus, petitioners' claim for damages must be filed
in the trial court, whether in the same case where a third-
party claim has been filed or in a separate action for
damages which petitioners may institute. This is so in order
to require the filing of proper pleadings and to hold trial so
as to give the parties the chance to submit their respective
evidence.
ILDEFONSO JACINTO VS. SHERIFF CASTRO
July 3, 2007
When a person other than the judgment obligor or
his agent claims title or right to the possession over a
property levied on in execution, Section 16 of Rule 39 of
the Rules of Court directs:
Ateneo de Davao University College of Law
SEC. 16. Proceedings where property
claimed by third person. If the property levied on
is claimed by any person other than the judgment
obligor or his agent, and such person makes an
affidavit of his title thereto or right to the
possession thereof, stating the grounds of such
right or title, and serves the same upon the officer
making the levy and a copy thereof upon the
judgment obligee, the officer shall not be bound to
keep the property, unless such judgment obligee,
on demand of the officer, files a bond approved by
the court to indemnify the third-party claimant in a
sum not less than the value of the property levied
on. In case of disagreement as to such value, the
same shall be determined by the court issuing the
writ of execution. No claim for damages for the
taking or keeping of the property may be enforced
against the bond unless the action therefor is filed
within one hundred twenty (120) days from the
date of the filing of the bond.
The officer shall not be liable for damages
for the taking or keeping of the property, to any
third-party claimant if such bond is filed. Nothing
herein contained shall prevent such claimant or
any third person from vindicating his claim to the
property in a separate action, or prevent the
judgment obligee from claiming damages in the
same or a separate action against a third-party
claimant who filed a frivolous or plainly spurious
claim.
xxxx
Evidently, respondent failed to observe the
foregoing rule.
That sheriffs play an important role in the
administration of justice, they being called upon to, among
other things, serve and execute orders and processes with
due care and utmost diligence,15 can never be
overemphasized. If they fail to execute final judgments of
the courts, such judgments become empty victories for the
prevailing party.16
By receiving money from complainant to enforce
the writ of execution, respondent lost sight of the
requirements in Section 10(l)(2) of Rule 141 of the Rules of
Court which, among other things, provides the rules on
payment of sheriffs expenses in executing writs pursuant
to court orders or decisions, which section reads:
xxxx
With regard to sheriffs expenses in
executing writs issued pursuant to court orders or
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 Civil Procedure | Atty. Catherine M. Guerzo-Barrion (2016-2017)
decisions or safeguarding the property levied upon,
attached or seized, including kilometrage for each
kilometer of travel, guards fees, warehousing and
similar charges, the interested party shall pay said
expenses in an amount estimated by the sheriff,
subject to the approval of the court. Upon
approval of said estimated expenses, the
interested party shall deposit such amount with
the clerk of court and ex officio sheriff, who shall
disburse the same to the deputy sheriff assigned
to effect the process, subject to liquidation within
the same period for rendering a return on the
process. THE LIQUIDATION SHALL BE APPROVED BY
THE COURT. Any unspent amount shall be
refunded to the party making the deposit. A full
report shall be submitted to the deputy sheriff
assigned with his return, and the sheriffs expenses
shall be taxed as costs against the judgment
debtor. (Emphasis supplied)
STA. LUCIA EAST VS. LAMANO
September 19, 2007
Lastly, respondent was also guilty of inefficiency
and incompetence in the performance of his official duties
when he proceeded to order the delivery of the rentals
even after the complainant had already filed the third-
party claim. Rule 39, Section 16 of the Rules of Court,
provides:
SEC. 16. Proceedings where property
claimed by third person.- If the property levied on
is claimed by any person other than the judgment
obligor or his agent, and such person makes an
affidavit of his title thereto or right to the
possession thereof, stating the grounds for such
title, and serves the same upon the officer making
the levy and a copy of the judgment obligee, the
officer shall not be bound to keep the property,
unless such judgment obligee, on demand of the
officer, files a bond approved by the court to
indemnify the third-party claimant in a sum not
less than the value of the property levied. xxx
The above provision should enlighten respondent
that his duty was not just confined to informing the
plaintiffs in Civil Case No. 04-109259 of the filing of the
third-party claim. It was also his duty not to keep the
property of the complainant (as the third-party claimant) if
the plaintiffs (as judgment obligee) there did not post the
required bond.
Ateneo de Davao University College of Law
In his comment,20 respondent himself admitted
that the plaintiffs/judgment obligee failed to post the
necessary bond, despite notice. At this juncture,
respondent should have known better than to insist on
getting the rentals. As a sheriff who plays an important role
in the dispensation of justice, respondent was expected to
show the highest degree of competence in the
performance of his duties.21
Under the same Uniform Rules on Administrative
Cases in the Civil Service, inefficiency and incompetence in
the performance of official duties are considered a grave
offense carrying a penalty of suspension of six (6) months
and one (1) day to one (1) year for the first offense.
In the absence of any circumstance that can
extenuate respondents liability in this case, a suspension
of six (6) months for simple misconduct and six (6) months
for inefficiency and incompetence is warranted.
FERMIN VS. JUDGE ESTEVEZ
March 26, 2008
When the Court of Appeals referred to the remedy
of terceria, it must be referring to Section 16, Rule 39, not
Section 43, Rule 39 of the 1997 Rules of Civil
Procedure,12 which provides:
Sec. 16. Proceedings where property
claimed by third person. - If the property levied on
is claimed by any person other than the judgment
obligor or his agent, and such person makes an
affidavit of his title thereto or right to the
possession thereof, stating the grounds of such
right or title, and serves the same upon the officer
making the levy and a copy thereof upon the
judgment obligee, the officer shall not be bound to
keep the property, unless such judgment obligee,
on demand of the officer, files a bond approved by
the court to indemnify the third-party claimant in a
sum not less than the value of the property levied
on. In case of disagreement as to such value, the
same shall be determined by the court issuing the
writ of execution. No claim for damages for the
taking or keeping of the property may be enforced
against the bond unless the action therefor is filed
within one hundred twenty (120) days from the
date of the filing of the bond.
The officer shall not be liable for damages
for the taking or keeping of the property, to any
third-party claimant if such bond is filed. Nothing
herein contained shall prevent such claimant or
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any third person from vindicating his claim to the
property in a separate action, or prevent the
judgment obligee from claiming damages in the
same or separate action against a third-party
claimant who filed a frivolous or plainly spurious
claim.
xxxx
The remedy of terceria is available to a third
person other than the judgment obligor or his agent who
claims a property levied on. In this case, the property was
not levied on and put on auction. The implementation of
the Special Order of Demolition would result in the
destruction of petitioners property. Further, terceria is not
a speedy and adequate remedy insofar as petitioners are
concerned considering that the Special Order of Demolition
ordered the Deputy Sheriff to cause the demolition of all
the improvements immediately after the expiration of the
15-day period granted upon the defendants, their agents,
assigns, representatives, or successors-in-interest to
remove their improvements on the premises.
The Court recognizes the finality of the trial courts
Decision in Civil Case No. 925-R. However, petitioners are
contesting whether their residential structures are within
the area subject of Civil Case No. 925-R. Since petitioners
are not parties to Civil Case No. 925-R, respondent has to
file the proper action against petitioners to enforce his
property rights within the bounds of the law and our
rules.13 Petitioners right to possession, if any, should be
threshed out in a proper court proceeding.
IMANI VS. MBTC
November 17, 2010
THE UNSUPPORTED TEMPORARY RULING THAT
THE PROPERTY IS NOT CONJUGAL AND THE SUGGESTION
TO VINDICATE THE RIGHTS OF SINA IMANI AND THE
CONJUGAL PARTNERSHIP IN A SEPARATE ACTION UNDER
SEC. 16, RULE 39 ENCOURAGE MULTIPLICITY OF SUITS AND
VIOLATE THE POLICY OF THE RULES FOR EXPEDIENT AND
INEXPENSIVE DISPOSITION OF ACTIONS.
Apparently, the CA lost sight of our ruling in Ong v.
26
Tating, elucidating on the applicability of Section 16 of
Rule 39 of the Rules of Court, thus:
When the sheriff thus seizes property of a
third person in which the judgment debtor holds
no right or interest, and so incurs in error, the
supervisory power of the Court which has
authorized execution may be invoked by the third
person. Upon due application by the third person,
Ateneo de Davao University College of Law
and after summary hearing, the Court may
command that the property be released from the
mistaken levy and restored to the rightful owner or
possessor. What the Court can do in these
instances however is limited to a determination of
whether the sheriff has acted rightly or wrongly in
the performance of his duties in the execution of
the judgment, more specifically, if he has indeed
taken hold of property not belonging to the
judgment debtor. The Court does not and cannot
pass upon the question of title to the property,
with any character of finality. It can treat the
matter only in so far as may be necessary to decide
if the Sheriff has acted correctly or not. x x x.
xxxx
Upon the other hand, if the claim of impropriety on
the part of the sheriff in the execution proceedings is made
by a party to the action, not a stranger thereto, any relief
therefrom may only be applied with, and obtained from,
only the executing court; and this is true even if a new
party has been impleaded in the suit.27
The filing of the motion by petitioner to annul the
execution, the auction sale, and the certificate of sale was,
therefore, a proper remedy. As further held by this Court:
Certain it is that the Trial Court has plenary jurisdiction
over the proceedings for the enforcement of its judgments.
It has undeniable competence to act on motions for
execution (whether execution be a matter of right or
discretionary upon the Court), issue and quash writs,
determine if property is exempt from execution, or fix the
value of property claimed by third persons so that a bond
equal to such value may be posted by a judgment creditor
to indemnify the sheriff against liability for damages,
resolve questions involving redemption, examine the
judgment debtor and his debtors, and otherwise perform
such other acts as may be necessary or incidental to the
carrying out of its decisions. It may and should exercise
control and supervision over the sheriff and other court
officers and employees taking part in the execution
proceedings, and correct them in the event that they
should err in the discharge of their functions.28
Contrary to the CAs advice, the remedy of terceria
or a separate action under Section 16, Rule 39 is no longer
available to Sina Imani because he is not deemed a
stranger to the case filed against petitioner:
[T]he husband of the judgment debtor
cannot be deemed a "stranger" to the case
prosecuted and adjudged against his wife.29
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 Civil Procedure | Atty. Catherine M. Guerzo-Barrion (2016-2017)

Thus, it would have been inappropriate for him to encroachment upon the jurisdiction of a co-equal and
institute a separate case for annulment of writ of coordinate court:
execution. In the case at bar, petitioner filed an
independent action for the annulment of the
CRISOLOGO VS. JUDGE OMELIO certificate of sale issued in favor of private
October 3, 2012 respondent, contending that the property levied
upon and sold to private respondent by virtue of
As correctly pointed out by the Investigating the writ of execution issued in Criminal Case No.
Justice, Section 16, Rule 39 of the Rules of Court allows for 90-2645 was her exclusive property, not that of the
the institution of a separate action by a third-party judgment obligor. Pursuant to our ruling in Sy v.
claimant who seeks to protect his interests in an execution Discaya, petitioner is deemed a stranger to the
proceeding: action wherein the writ of execution was issued
SEC. 16. Proceedings where property and is therefore justified in bringing an
claimed by third person. If the property levied independent action to vindicate her right of
on is claimed by any person other than the ownership over the subject property.
judgment obligor or his agent, and such person Contrary to the stand taken by the trial court, the
makes an affidavit of his title thereto or right to the filing of such an independent action cannot be considered
possession thereof, stating the grounds of such an encroachment upon the jurisdiction of a co-equal and
right or title, and serves the same upon the officer coordinate court. The court issuing the writ of execution
making the levy and a copy thereof upon the may enforce its authority only over properties of the
judgment obligee, the officer shall not be bound to judgment debtor; thus, the sheriff acts properly only when
keep the property, unless such judgment obligee, he subjects to execution property undeniably belonging to
on demand of the officer, files a bond approved by the judgment debtor. If the sheriff levies upon the assets of
the court to indemnify the third-party claimant in a a third person in which the judgment debtor has no
sum not less than the value of the property levied interest, then he is acting beyond the limits of his authority
on. In case of disagreement as to such value, the and is amenable to control and correction by a court of
same shall be determined by the court issuing the competent jurisdiction in a separate and independent
writ of execution. No claim for damages for the action. This is in consonance with the well-established
taking or keeping of the property may be enforced principle that no man shall be affected by any proceeding
against the bond unless the action therefor is filed to which he is a stranger. Execution of a judgment can only
within one hundred twenty (120) days from the be issued against a party to the action, and not against one
date of the filing of the bond. who has not yet had his day in court.20
The officer shall not be liable for damages Consistent with Naguit v. Court of Appeals,21 JEWM
for the taking or keeping of the property, to any can be considered a third-party claimant and stranger to
third-party claimant if such bond is filed. Nothing the case, because, despite not being the judgment obligor,
herein contained shall prevent such claimant or JEWMs properties are being executed for So Keng Kocs
any third person from vindicating his claim to the liabilities. The Rules of Court allow JEWM to vindicate its
property in a separate action, or prevent the claim to the properties in a separate action. The court
judgment obligee from claiming damages in the exercising jurisdiction over the separate action, which in
same or a separate action against a third-party this case is RTC, Branch 14, may issue an injunction,
claimant who filed a frivolous or plainly spurious enjoining the execution of JEWMs properties in
claim. satisfaction of So Keng Kocs liabilities. For this reason, we
x x x x (Emphasis supplied) dismiss the Sps. Crisologos charge against Judge Omelio
In Naguit v. Court of Appeals,19 the Court for gross ignorance of the law due to interference with the
considered Naguit, whose exclusive property was executed proceedings of a co-equal and coordinate court.
for the debts of her husband, a stranger to the case against
the husband. Naguit was allowed to institute a separate Section 21. Judgment obligee as purchaser.
action to vindicate her right of ownership over her When the purchaser is the judgment obligee, and no third-
exclusive property, which action was not considered an party claim has been filed, he need not pay the amount of

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 Civil Procedure | Atty. Catherine M. Guerzo-Barrion (2016-2017)
the bid if it does not exceed the amount of his judgment. If
it does, he shall pay only the excess. (23a)
VILLA VICENCIO VS. MOJARES
February 27, 2003
Whether the sheriffs sale was valid although the
purchaser-judgment creditor did not pay the amount of his
bid in cash as required by Section 23, Rule 39 of the Rules
of Court [now Sec. 21, Rule 39 of the 1997 Rules of Civil
Procedure];
Still on the first issue, petitioners contend that the
execution sale was not valid for failure of the purchaser-
judgment creditor to pay his bid in cash. They invoke
Section 23, Rule 39 (now Section 21, Rule 39) of the Rules
of Court which provides that:
Sec. 21. Judgment obligee as purchaser -
When the purchaser is the judgment obligee, and
no third-party claim has been filed, he need not
pay the amount of the bid if it does not exceed the
amount of his judgment. If it does, he shall pay
only the excess.
A closer examination of Section 21, Rule 39, would
reveal that there is no requirement to pay the bid in cash.
What the Rule emphasizes is that in the absence of a third
party claim, the purchaser in an execution sale need not
pay his bid if it does not exceed the amount of the
judgment, otherwise, he shall only pay the excess. By
implication, if there is a third party claim, the purchaser
should pay the amount of his bid without, however,
requiring that it be made in cash.
Petitioners reliance in the case of Sy vs. Catajan,
164 SCRA 299, is misplaced. The cited case does not state
that any execution sale shall be null and void if the
purchaser did not pay his bid in cash.
Section 27. Who may redeem real property so sold.
Real property sold as provided in the last preceding
section, or any part thereof sold separately, may be
redeemed in the manner hereinafter provided, by the
following persons:
(a) The judgment obligor; or his successor in
interest in the whole or any part of the property;
(b) A creditor having a lien by virtue of an
attachment, judgment or mortgage on the property sold,
or on some part thereof, subsequent to the lien under
which the property was sold. Such redeeming creditor is
termed a redemptioner. (29a) real property mortgaged to and foreclosed extrajudicially
by the Development Bank of the Philippines? Must he pay
Ateneo de Davao University College of Law
Section 28. Time and manner of, and amounts
payable on, successive redemptions; notice to be given and
filed. The judgment obligor, or redemptioner, may
redeem the property from the purchaser, at any time
within one (1) year from the date of the registration of the
certificate of sale, by paying the purchaser the amount of
his purchase, with the per centum per month interest
thereon in addition, up to the time of redemption,
together with the amount of any assessments or taxes
which the purchaser may have paid thereon after
purchase, and interest on such last named amount at the
same rate; and if the purchaser be also a creditor having a
prior lien to that of the redemptioner, other than the
judgment under which such purchase was made, the
amount of such other lien, with interest.
Property so redeemed may again be redeemed
within sixty (60) days after the last redemption upon
payment of the sum paid on the last redemption, with
two per centum thereon in addition and the amount of any
assessments or taxes which the last redemptioner may
have paid thereon after redemption by him, with interest
on such last named amount, and in addition, the amount of
any liens held by said last redemptioner prior to his own,
with interest. The property may be again, and as often as a
redemptioner is so disposed, redeemed from any previous
redemptioner within sixty (60) days after the last
redemption, on paying the sum paid on the last previous
redemption, with two per centum thereon in addition, and
the amounts of any assessments or taxes which the last
previous redemptioner paid after the redemption thereon,
with interest thereon, and the amount of any liens held by
the last redemptioner prior to his own, with interest.
Written notice of any redemption must be given to the
officer who made the sale and a duplicate filed with the
registry of deeds of the place, and if any assessments or
taxes are paid by the redemptioner or if he has or acquires
any lien other than that upon which the redemption was
made, notice thereof must in like manner be given to the
officer and filed with the registry of deeds; if such notice be
not filed, the property may be redeemed without paying
such assessments, taxes, or liens. (30a)
DBP VS. WEST NEGROS COLLEGE
October 28, 2002
How much should a mortgagor pay to redeem a
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 Civil Procedure | Atty. Catherine M. Guerzo-Barrion (2016-2017)
to the bank the entire amount he owed the latter on the
date of the sale with interest on the total indebtedness at
the rate agreed upon in the obligation, or is it enough for
purposes of redemption that he reimburse the amount of
purchase with one per cent (1%) monthly interest thereon
including other expenses defrayed by the purchaser at the
extrajudicial sale?
In Development Bank of the Philippines v. Jimenez
this Court clarified the proper applications of Sec. 31 of CA
459 and Sec. 30, Rule 39 of the Rules of Court21 when we
held that "Section 31 of Commonwealth Act No. 459, and
not Section 26, Rule 39, of the Rules of Court, is applicable
in case of redemption of real estate mortgaged to the DBP
to secure a loan. As such, the redemption price to be paid
by the mortgagor or debtor to the DBP is 'all the amount
he owes the latter on the date of the sale, with interest on
the total indebtedness at the rate agreed upon, and not
merely the amount paid for by the purchaser at the public
auction, pursuant to Section 26, Rule 39, of the Rules of
Court."22 Clearly the redemption of properties mortgaged
with the Development Bank of the Philippines and
foreclosed either judicially or extrajudicially is governed by
special laws which provide for the payment of all the
amounts owed by the debtor. This special protection given
to a government lending institution is not accorded to
judgment creditors in ordinary civil actions.23
It is worth noting that the mortgage contract
between petitioner DBP and Bacolod Medical Center as
assignor of respondent West Negros College was expressly
constituted subject to the provisions of RA 85 which by
explicit reference include Sec. 31 of CA 459 requiring for
purposes of redemption the payment of all the amount the
mortgagor owed to DBP, with interest on the total
indebtedness at the rate agreed upon in the obligation,
reckoned from the date of the public auction. Respondent
cannot evade the application of this provision because it is
part of its undertaking as assignee of the mortgagor
Bacolod Medical Center.
The cases of Co v. Philippine National Bank24 and
Philippine National Bank v. Court of Appeals25 are not
controlling. These involve the redemption of property
levied upon and sold at public auction to satisfy a judgment
and unlike the instant case there is no charter that requires
the payment of sums of money other than those stipulated
in Sec. 30 of Rule 39, Rules of Court. In the cited cases the
mortgage contracts were executed when the then charter
of the Philippine National Bank under RA 1300 (1955)26 did
not provide for extrajudicial foreclosure nor the amount
necessary to redeem the property foreclosed extra-
Ateneo de Davao University College of Law
judicially. In effecting an extrajudicial foreclosure, the
Philippine National Bank has then no other recourse but to
rely wholly upon Act 3135 in relation to Sec. 30 of Rule 39,
Rules of Court for all matters related thereto including the
amount of redemption. It is thus fairly evident that at all
the times relevant to the cited cases the bank did not
resort to Act 3135 merely to find a proceeding for the sale
but to secure basic authority for its actions.
The import of the citations is further clarified by
our statement in Co v. Philippine National Bank
differentiating the latter from Nepomuceno v.
Rehabilitation Finance Corporation27 in light of the
enactment of PD 694 (1975 Revised Charter of the
Philippine National Bank) which provided for extrajudicial
foreclosure and redemption price similar to the standard
provisions in the charters of the Development Bank of the
Philippines. In Co we said unmistakably
In the Nepomuceno case, what confronted the
Court was a question relative to a mortgage with the
Rehabilitation Finance Corporation (RFC for short, now the
Development Bank of the Philippines). The Court found no
difficulty in not applying Section 6 of Act 3135 because it
found that there is in Section 31 of the Charter of the RFC a
provision basically similar to Section 25 of Presidential
Decree 694, now being invoked here by PNB. Naturally, the
Court upheld the RFC's contention that the whole amount
of the mortgagor's indebtedness should be paid. But in the
instant case, as already discussed earlier, P.D. 694 came
too late.28
Quite obviously the pivotal circumstance that
distinguishes Co v. Philippine National Bank and Philippine
National Bank v. Court of Appeals from the instant case is
the existence of provisions in the charter of the
government bank authorizing extrajudicial foreclosure and
determining the amount required to redeem the
foreclosed property. The charter provisions constitute a
special law exclusively applicable to properties mortgaged
to the government bank in question, and as such they
prevail over Sec. 30 of Rule 39, Rules of Court which
represents a general law.29 In Dulay v. Cariaga30 we said
that a mortgagor must pay his entire indebtedness to the
mortgagee plus the agreed interest thereon before
redemption can be effected, because the charter of the
mortgagee (DBP) required the payment of such amount.
Thus, while the charter of petitioner DBP authorized the
extrajudicial foreclosure of mortgaged property and its
redemption effective only upon payment of the
outstanding indebtedness and interest, the charter of the
Philippine National Bank involved in the citations in
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question did not supply similar privileges and would not
therefore properly control the disposition of the instant
case.
The unavoidable conclusion is that in redeeming
the foreclosed property respondent West Negros College
as assignee of Bacolod Medical Center should pay the
balance of the amount owed by the latter to petitioner DBP
with interest thereon at the rate agreed upon as of the
date of the public auction on 24 August 1989.
SPOUSES LANDRITO VS. CA
August 9, 2005
The law on redemption of mortgaged property is
clear. Republic Act No. 3135 (An Act to Regulate the Sale of
Property Under Special Powers Inserted In Or Annexed to
Real Estate Mortgages), as amended by Republic Act No.
4118, provides in Section 6 thereof, thus:
"Sec. 6. In all cases in which an extrajudicial
sale is made under the special power hereinbefore
referred to, the debtor, his successors in interest or
any judicial creditor or judgment creditor of said
debtor, or any person having a lien on the property
subsequent to the mortgage or deed of trust under
which the property is sold, may redeem the same
at any time within the term of one year from and
after the date of the sale; xxx" (Emphasis supplied)
In a long line of cases5, this Court has consistently
ruled that the one-year redemption period should be
counted not from the date of foreclosure sale, but from the
time the certificate of sale is registered with the Register of
Deeds. Here, it is not disputed that the sheriffs certificate
of sale was registered on 29 October 1993.
And under Article 13 of the New Civil Code6, a year
is understood to have three hundred sixty-five (365) days
each. Thus, excluding the first day and counting from 30
October 1993 (under paragraph 3 of Article 13 of the New
Civil Code), and bearing in mind that 1994 was a leap year,
petitioners had only until 29 October 1994, the 365th day
after registration of the sheriffs certificate of sale on 29
October 1993, within which to redeem the foreclosed
property in accordance with law. And since 29 October
1994 fell on a Saturday, petitioners had until the following
working day, 31 October 1994, within which to exercise
their right of redemption.
From the foregoing, it is clear as day that even the
complaint filed by the petitioners with the trial court on 09
November 1994 was instituted beyond the 1-year
redemption period. In fact, petitioners no less
Ateneo de Davao University College of Law
acknowledged that their complaint for annulment of
extrajudicial foreclosure and auction sale was filed about
eleven (11) days after the redemption period had already
expired on 29 October 19947. They merely harp on the
alleged increase in the redemption price of the mortgaged
property as the reason for their failure to redeem the
same. However, and as already pointed out herein, they
chose not, despite notice, to appear during the foreclosure
proceedings.
Of course, petitioners presently insist that they
requested for and were granted an extension of time
within which to redeem their property, relying on a
handwritten note allegedly written by Mrs. San Diegos
husband on petitioners statement of account, indicating
therein the date 11 November 1994 as the last day to pay
their outstanding account in full. Even assuming, in gratia
argumenti, that they were indeed granted such an
extension, the hard reality, however, is that at no time at
all did petitioners make a valid offer to redeem coupled
with a tender of the redemption price.
Even on this score, petitioners case must fall.
For, in Lazo v. Republic Surety & Insurance Co.,
Inc.8, this Court has made it clear that it is only where, by
voluntary agreement of the parties, consisting of
extensions of the redemption period, followed by
commitment by the debtor to pay the redemption price at
a fixed date, will the concept of legal redemption be
converted into one of conventional redemption.
Here, there is no showing whatsoever that
petitioners agreed to pay the redemption price on or
before 11 November 1994, as allegedly set by Mrs. San
Diegos husband. On the contrary, their act of filing their
complaint on 09 November 1994 to declare the nullity of
the foreclosure sale is indicative of their refusal to pay the
redemption price on the alleged deadline set by the
husband. At the very least, if they so believed that their
loan obligation was only for P1,000,000.00, petitioners
should have made an offer to redeem within one (1) year
from the registration of the sheriffs certificate of sale,
together with a tender of the same amount. This, they
never did.
It must be remembered that the period of
redemption is not a prescriptive period but a condition
precedent provided by law to restrict the right of the
person exercising redemption. Correspondingly, if a person
exercising the right of redemption has offered to redeem
the property within the period fixed, he is considered to
have complied with the condition precedent prescribed by
law and may thereafter bring an action to enforce
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redemption. If, on the other hand, the period is allowed to
lapse before the right of redemption is exercised, then the
action to enforce redemption will not prosper, even if the
action is brought within the ordinary prescriptive period.
Moreover, the period within which to redeem the property
sold at a sheriffs sale is not suspended by the institution of
an action to annul the foreclosure sale.9 It is clear, then,
that petitioners have lost any right or interest over the
subject property primarily because of their failure to
redeem the same in the manner and within the period
prescribed by law. Their belated attempts to question the
legality and validity of the foreclosure proceedings and
public auction must accordingly fail.
CAYTON VS. ZEONNIX
October 9, 2009
Section 27, Rule 39 of the Rules of Court provides:
Sec. 27. Who may redeem real property so
sold.
Real property sold as provided in the last preceding
section, or any part thereof sold separately, may be
redeemed in the manner hereinafter provided, by the
following persons:
(a) The judgment obligor, or his successor
in interest in the whole or any part of the
property;
(b) A creditor having a lien by virtue of an
attachment, judgment or mortgage on the
property sold, or on some part thereof,
subsequent to the lien under which the
property was sold. Such redeeming
creditor is termed a redemptioner.
Right of redemption is the prerogative to reacquire
a mortgaged property after registration of the foreclosure
sale. It exists only in the case of the extrajudicial
foreclosure of the mortgage. No such right is recognized in
a judicial foreclosure unless the mortgagee is a bank.27 An
attaching creditor acquires the right to redeem the
debtors attached property subsequently foreclosed extra-
judicially by a third party.
The "successor-in-interest" of a judgment debtor
includes one to whom the debtor has transferred his
statutory right of redemption; one to whom the debtor has
conveyed his interest in the property for the purpose of
redemption; one who succeeds to the interest of the
debtor by operation of law; one or more joint debtors who
were joint owners of the property sold; or his spouse or
heirs.28
Ateneo de Davao University College of Law
A "redemptioner," on the other hand, is a creditor
with a lien subsequent to the judgment which was the
basis of the execution sale. If the lien of the creditor is prior
to the judgment under which the property was sold, he is
not a redemptioner and, therefore, cannot redeem
because his interests in his lien are fully protected, since
any purchase at public auction of said property takes the
same subject to such prior lien which he has to satisfy.
Unlike the judgment debtor, a redemptioner must prove
his right to redeem by producing the documents called for
by Section 30, Rule 3929 of the Rules of Court.30
In the instant case, the Caytons aver that as
successor-in-interest of the Maoscas by virtue of the deed
of absolute sale with assumption of mortgage, they have a
better right than Zeonnix to redeem the property. This
stance deserves scant consideration.
Indeed, they are successors in interest of the
Maoscas. However, their supposed title or right over the
property is unregistered and, as such, the same cannot
affect third persons. This is because it is registration that is
the operative act to convey or affect the land insofar as
third persons are concerned. A deed, mortgage, lease, or
other voluntary instrument, except a will, purporting to
convey or affect conveyance involving registered land, shall
not take effect as a conveyance or bind the land but shall
operate only as a contract between the parties and as
evidence of authority of the Register of Deeds to make
registration.31
The unregistered sale of the house and lot to the
Caytons by the Maoscas cannot prejudice the right of
redemption granted by law in favor of Zeonnix. The levy on
attachment of Zeonnix on the subject property was duly
recorded on TCT No. S-90836. Thus, the levy on
attachment created a constructive notice to all persons
from the time of such registration.32 The record is notice to
the entire world. All persons are charged with the
knowledge of what it contains. All persons dealing with the
land so recorded, or any portion of it, must be charged
with notice of whatever it contains. The purchaser is
charged with notice of every fact shown by the record and
is presumed to know every fact which the record
discloses.33
When a conveyance has been properly recorded,
such record is constructive notice of its contents and all
interests, legal and equitable, included therein. Under the
rule of notice, it is presumed that the purchaser has
examined every instrument of record affecting the title.
Such presumption is irrefutable. He is charged with notice
of every fact shown by the record and is presumed to know
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every fact which an examination of the record would have
disclosed. This presumption may not be overcome by proof
of innocence or good faith. Otherwise, the very purpose
and object of the law requiring a record would be
destroyed. Such presumption may not be defeated by
proof of want of knowledge of what the record contains,
any more than one may be permitted to show that he was
ignorant of the provisions of the law. The rule that all
persons must take notice of the facts that the public record
contains is a rule of law. The rule must be absolute. Any
variation would lead to endless confusion and useless
litigation.34
Zeonnix has acquired by operation of law the right
of redemption over the foreclosed properties. By virtue of
the RTC decision in Civil Case No. 2173, it had the right to
redeem the property. This is pursuant to Section 6 of Act
No. 3135,35 as amended by Act No. 4118, which provides:
SECTION 6. In all cases in which an extrajudicial sale is
made under the special power hereinbefore referred to,
the debtor, his successors in interest or any judicial
creditor or judgment creditor of said debtor, or any person
having a lien on the property subsequent to the mortgage
or deed of trust under which the property is sold, may
redeem the same at any time within the term of one year
from and after the date of the sale; and such redemption
shall be governed by the provisions of sections four
hundred and sixty-four to four hundred and sixty-six,
inclusive, of the Code of Civil Procedure, in so far as these
are not inconsistent with the provisions of this Act.
The writ of attachment entitled the attaching
creditor to exercise the right to redeem the foreclosed
properties. A writ of attachment that has been levied on
real property or any interest therein belonging to the
judgment debtor creates a lien which nothing can destroy
but its dissolution.
TOLENTINO VS. SHENTON
June 19, 2009
In extrajudicial foreclosures, the requisites for a
valid redemption are provided under Section 6 of Act 3135,
as amended, thus:
SEC. 6. In all cases in which an extrajudicial
sale is made under the special power hereinbefore
referred to, the debtor, his successors in interest or
any judicial creditor or judgment creditor of said
debtor, or any person having a lien on the property
subsequent to the mortgage or deed of trust under
which the property is sold, may redeem the same
Ateneo de Davao University College of Law
at any time within the term of one year from and
after the date of the sale; and such redemption
shall be governed by the provisions of sections four
hundred and sixty-four to four hundred and sixty-
six, inclusive, of the Code of Civil Procedure [now
Rule 39, Section 28 of the 1997 Rules of Civil
Procedure], in so far as as these are not
inconsistent with the provisions of this Act.
Section 28, Rule 39 of the 1997 Rules of Civil
Procedure provides:
SEC. 28. Time and manner of, and amounts
payable on, successive redemptions; notice to be
given and filed. The judgment obligor, or
redemptioner, may redeem the property from the
purchaser, at any time within one (1) year from the
date of the registration of the certificate of sale, by
paying the purchaser the amount of his purchase,
with one per centum per month interest thereon in
addition, up to the time of redemption, together
with the amount of any assessments or taxes
which the purchaser may have paid thereon after
purchase, and interest on such last named amount
at the same rate; and if the purchaser be also a
creditor having a prior lien to that of the
redemptioner, other than the judgment under
which such purchase was made, the amount of
such other lien, with interest. (Emphasis supplied)
Thus, the debtor may redeem his property sold at
an auction sale in an extrajudicial foreclosure of mortgage
within one year from the date of registration of the
certificate of sale. Under Article 13 of the Civil Code, a year
consists of 365 days. Since the certificate of sale was
annotated on the certificate of title (TCT No. 11637) only
on 7 February 2001, petitioner could exercise her right to
redeem the property until 7 February 2002.
Although petitioner filed a complaint for judicial
redemption on 6 February 2002, the records are bereft of
any indication that petitioner ever paid or consigned with
the trial court the redemption price. Furthermore, in all her
pleadings, petitioner never indicated that she has already
paid or consigned with the trial court the redemption price.
In Tolentino v. Court of Appeals,18 the Court held:
It should, however, be noted that in Hi-
Yield Realty, Inc. v. Court of Appeals, we held that
the action for judicial redemption should be filed
on time and in good faith, the redemption price is
finally determined and paid within a reasonable
time, and the rights of the parties are respected.
Stated otherwise, the foregoing interpretation has
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three critical dimensions: (1) timely redemption or
redemption by expiration date; (2) good faith as
always, meaning, the filing of the action must have
been for the sole purpose of determining the
redemption price and not to stretch the
redemptive period indefinitely; and (3) once the
redemption price is determined within a
reasonable time, the redemptioner must make
prompt payment in full.19 (Emphasis supplied)
Considering the lack of consignation of the
redemption price since the petitioners filing of the action
for judicial redemption on 6 February 2002, it would be
unfair to deny respondent the possession of the property
which it bought for P3,958,539.92 in a public auction on 24
September 1999. Between petitioner who has not paid or
consigned with the trial court the redemption price, and
respondent who bought the property as the highest bidder
in the auction sale, the latter is more entitled to have
possession of the property. Petitioner cannot be granted
possession of the property by the mere expediency of filing
an action for judicial redemption without ever paying or
consigning the redemption price with the trial court.
TORRES VS. ALAMAG
August 3, 2010
SEC. 27. Who may redeem real property so sold. -
Real property sold as provided in the last preceding
section, or any part thereof separately, may be redeemed
in the manner hereinafter provided, by the following
persons:
xxxx
(b) A creditor having a lien by virtue of an
attachment, judgment or mortgage on the property sold,
or on some part thereof, subsequent to the lien under
which the property was sold. Such redeeming creditor is
termed a redemptioner.1avvphi1
Indeed, under the foregoing rule, petitioner Torres
had a right to redeem the properties sold at public auction.
He is a creditor who had lien on the disputed lots by virtue
of the Notice of Levy annotated on the respective titles of
the properties as a result of a final and executory judgment
for rental arrearages and attorney's fees against
respondent Alamag. Petitioner Torres' lien is subsequent to
the lien under which the property was sold, i.e., the
extrajudicial foreclosure sale, because the Notice of Levy
on the properties was annotated on the titles only after the
Certificate of Sale for the public auction had been
Ateneo de Davao University College of Law
registered in the Office of the Register of Deeds. Hence,
the RTC and the CA are correct in ruling that petitioner
Torres is indeed a redemptioner under Section 27 (b), Rule
39 of the Rules of Court.
However, the CA further held that despite the fact
that petitioner Torres is entitled to redeem the subject lots,
respondents should nevertheless be given priority in
redeeming the properties in question. In the CA's ruling,
petitioner Torres' payment of P402,993.60 made on
December 29, 1998, was not the full redemption price as it
did not include interests and taxes. Petitioner Torres only
paid the additional amount of P22,000.00 for realty taxes
on January 8, 1999, but according to the CA, by that time,
respondent Alamag had already tendered the full amount
of the redemption price, as he deposited P404,000.00 with
the Office of the Clerk of Court on January 7, 1999, one day
ahead of Torres' payment for taxes with interest thereon.
The CA then ruled that, given this circumstance, it was
respondent Alamag who is entitled to a certificate of
redemption as he made a proper redemption one day
ahead of petitioner Torres.
The foregoing analysis is flawed. There is no cavil
as to petitioner Torres' right to redeem the subject
properties, he being a redemptioner under Section 27 (b),
Rule 39 of the Rules of Court. The records show that as
early as December 29, 1998, petitioner Torres already paid
the sheriff the redemption price of P402,993.60, based on
the sheriff's computation.10 This was the very same
computation on which respondent Alamag based his
tender of the redemption price of P404,000.00 on January
7, 1999. The computation already included the bid price
paid by the Spouses Chua, capital gains and documentary
stamp taxes, fees due to the Register of Deeds, and
interest on the total amount for 18 months from June 30,
1997 to December 30, 1998. Note, however, that as of
December 29, 1998, neither the sheriff nor petitioner
Torres had been informed by the Spouses Chua of the
amount they had paid for taxes on the properties.
Petitioner Torres testified11 that he was only informed by
the Spouses Chua of the amount they spent for taxes, by
showing him the official receipts therefor, on January 8,
1999, thus, he immediately paid the amount of P22,000.00
on the same day.
The Court is unconvinced by the CA's reasoning
that petitioner Torres failed to pay the full redemption
price on December 29, 1998. The amount of P402,993.60
paid by petitioner Torres already included the bid price
paid by the Spouses Chua, capital gains and documentary
stamp taxes, fees due to the Register of Deeds, and
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interest on the total amount for 18 months from June 30,
1997 to December 30, 1998. The only amounts not
included were the expenses for payment of realty taxes
and interest thereon. Indeed, it has been held that for a
valid redemption, the amount tendered must include the
following: (1) the full amount paid by the purchaser; (2)
with an additional one percent per month interest on the
purchase price up to the time of redemption; (3) together
with the amount of any assessments or taxes which the
purchaser may have paid thereon after purchase; (4)
interest on the taxes paid by the purchaser at the rate of
one percent per month up to the time of redemption; and
(5) if the purchaser be also a creditor having a prior lien to
that of the redemptioner, other than the judgment under
which such purchase was made, the amount of such other
lien, with interest.12 However, in Baluyut v. Poblete,13the
Court held that the purchaser is required to furnish copies
of the amounts of assessments or taxes which he may have
paid to inform the mortgagor or redemptioner of the
actual amount which he should pay in case he chooses to
exercise his right of redemption and if no such notice is
given, the property may be redeemed without paying such
assessments or taxes.14 Then, in Cayton v. Zeonnix Trading
Corporation,15 the Court reiterated the ruling in Estanislao,
Jr. v. Court of Appeals 16 that the payment of the full
purchase price and interest thereon by a redemptioner,
who had not been apprised of the amount of taxes paid by
the purchaser, should already be considered sufficient for
purposes of redemption if the redemptioner immediately
pays the additional amount for taxes once notified of the
deficiency. The Court deemed this to be in consonance
with the policy of the law to aid rather than defeat the
right of redemption. 17 Therefore, the amount paid by
petitioner Torres on December 29, 1998 shall also be
deemed sufficient for purposes of redemption. Petitioner
Sheriff Jessie Belarmino acted properly in issuing a
Certificate of Redemption to petitioner Torres.
Section 33. Deed and possession to be given at
expiration of redemption period; by whom executed or
given. If no redemption be made within one (1) year
from the date of the registration of the certificate of sale,
the purchaser is entitled to a conveyance and possession of
the property; or, if so redeemed whenever sixty (60) days
have elapsed and no other redemption has been made,
and notice thereof given, and the time for redemption has
expired, the last redemptioner is entitled to the
conveyance and possession; but in all cases the judgment
obligor shall have the entire period of one (1) year from the
Ateneo de Davao University College of Law
date of the registration of the sale to redeem the property.
The deed shall be executed by the officer making the sale
or by his successor in office, and in the latter case shall
have the same validity as though the officer making the
sale had continued in office and executed it.
Upon the expiration of the right of redemption, the
purchaser or redemptioner shall be substituted to and
acquire all the rights, title, interest and claim of the
judgment obligor to the property as of the time of the levy.
The possession of the property shall be given to the
purchaser or last redemptioner by the same officer unless
a third party adversely to the judgment obligor. (35a)
VDA. DE ZABALLERO VS. CA
February 9, 1994
The issue posed is not novel. We reiterate that the
purchaser of the foreclosed property, upon ex
parte application therefor and the posting of the required
bond, has the right to acquire possession of the foreclosed
property during the 12-month redemption period. This is
sanctioned under Section 7 of Act 3135, as amended by Act
4118. 3 With more reason, a purchaser can demand for a
writ of possession after the expiration of the redemption
period. Thus, in F. David Enterprises vs. Insular Bank of Asia
and America, 4 we held:
It is settled the buyer in a foreclosure sale
becomes the absolute owner of the
property purchased if it is not redeemed
during the period of one year after the
registration of the sale. As such, he is
entitled to the possession of the property
and can demand it at any time following
the consolidation of ownership in his name
and the issuance to him of a new transfer
certificate of title. The buyer can in fact
demand possession of the land even during
the redemption period except that he has
to post a bond in accordance with Section
7 of Act 3135 as amended. No such bond is
required after the redemption period if the
property is not redeemed. Possession of
the land then becomes an absolute right of
the purchaser as confirmed owner. Upon
proper application and proof of title, the
issuance of the writ of possession becomes
a ministerial duty of the court.
Petitioners did not refute that the period for
redemption had already expired. They claim, however, that
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had they known that their property would be
extrajudicially foreclosed after the death of mortgagor
Atty. Paterno Zaballero, they would have raised money to
pay the mortgage debt. It was alleged the private
respondent bank's failure to notify them of the foreclosure,
said bank cannot claim possession of the property.
We need not delve on the regularity or validity of
the foreclosure sale in as much as any alleged defect or
irregularity in the foreclosure sale must be threshed out in
Civil Case 91-57724, and not in this case where the only
issue is the propriety of the issuance of the writ of
possession.
It ought to be mentioned that the right of private
respondent to have possession of the subject property
would not be defeated notwithstanding the pendency of
Civil Case No. 91-57724 before Branch 28 of the Regional
Trial Court of Manila. We have consistently ruled that it is
the ministerial duty of the court to issue the writ of
possession in favor of the purchaser in a foreclosure
sale. 5 There is no reason for us to depart from this ruling.
CHINA BANK VS. ORDINARIO
March 24, 2003
Under Section 7 of Act No. 3135, the purchaser in a
foreclosure sale is entitled to possession of the
property.2Thus the writ prayed for by petitioner granting it
possession has to be issued as a matter of course.3 This
Court has consistently ruled that it is a ministerial duty of
the trial court to grant such writ of possession.4 No
discretion is left for the trial court. Any question regarding
the cancellation of the writ or in respect of the validity and
regularity of the public sale should be determined in a
subsequent proceeding as outlined in Section 8 of Act No.
3135.5 Consequently, respondents motion for
reconsideration of the trial courts order dated April 10,
1991 granting the writ of possession must be denied being
bereft of merit.
Section 7 of Act No. 3135, as amended,6 provides:
"Sec. 7. In any sale made under the
provisions of this Act, the purchaser may petition
the Court of First Instance (now RTC) 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
Ateneo de Davao University College of Law
complying with the requirements of this Act. Such
petition shall be made under oath and filed in the
form of an ex parte motion in the registration or
cadastral proceedings if the property is registered,
or in special proceedings in the case of property
registered under the Mortgage Law xxx, and in
each case the clerk of the court shall, upon the
filing of such petition, collect the fees specified
xxx, 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." (underscoring supplied).
The above provision is not without exception.
Under Section 33, Rule 39 of the 1997 Rules of Civil
Procedure, as amended, the possession of the foreclosed
property may be awarded to the purchaser or highest
bidder "unless a third party is actually holding the property
adversely to the judgment
7
debtor." Assuming arguendo that respondent spouses
are adverse third parties, as they so averred, Section 16 of
the same Rule reserves to them the remedies of
(1) terceria to determine whether the sheriff has rightly or
wrongly taken hold of the property not belonging to the
judgment debtor or obligor and (2) an independent
"separate action" to vindicate their claim of ownership
and/or possession over the foreclosed property.8 Section
16 of Rule 39 provides:
"Sec. 16. Proceedings where property
claimed by third person. If property levied on is
claimed by any person other than the judgment
obligor or his agent, and such person makes an
affidavit of his title thereto or right to the
possession thereof, stating the grounds of such
right or title, and serves the same upon the officer
making the levy, and copy thereof upon the
judgment obligee, the officer shall not be bound to
keep the property, unless such judgment obligee,
on demand of the officer, files a bond approved by
the court to indemnify the third-party claimant in a
sum not less than the value of the property levied
on. In case of disagreement as to such value, the
same shall be determined by the court issuing the
writ of execution. No claim for damages for the
taking or keeping of the property may be enforced
against the bond unless the action therefor is filed
within one hundred twenty (120) days from the
date of the filing of the bond.
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"The officer shall not be liable for damages
for the taking or keeping of the property, to any
third party claimant if such bond is filed. Nothing
herein contained shall prevent such claimant or any
third person from vindicating his claim to the
property in a separate action, or prevent the
judgment obligee from claiming damages in the
same or a separate action against a third-party
claimant who filed a frivolous or plainly spurious
claim. xxx."
Under the above Rule, a third-party claimant or a
stranger to the foreclosure suit, like respondents herein,
can opt to file a remedy known as terceria against the
sheriff or officer effecting the writ by serving on him an
affidavit of his title and a copy thereof upon the judgment
creditor. By the terceria, the officer shall not be bound to
keep the property and could be answerable for damages. A
third-party claimant may also resort to an independent
"separate action," the object of which is the recovery of
ownership or possession of the property seized by the
sheriff, as well as damages arising from wrongful seizure
and detention of the property despite the third-party
claim. If a "separate action" is the recourse, the third-party
claimant must institute in a forum of competent
jurisdiction an action, distinct and separate from the action
in which the judgment is being enforced, even before or
without need of filing a claim in the court that issued the
writ. Both remedies are cumulative and may be availed of
independently of or separately from the other. Availment
of the terceria is not a condition sine qua non to the
institution of a "separate action."9
Thus, respondents resort to a motion for
reconsideration is obviously a procedural misstep.
SPOUSES SAGUAN VS. PB COM
November 23, 2007
A writ of possession is an order enforcing a
judgment to allow a persons recovery of possession of real
or personal property. An instance when a writ of
possession may issue is under Act No. 3135,15 as amended
by Act No. 4118, on extrajudicial foreclosure of real estate
mortgage.16 Sections 6 and 7 provide, to wit:
Section 6. Redemption. In all cases in
which an extrajudicial sale is made under the
special power herein before referred to, the
debtor, his successors-in-interest or any judicial
creditor or judgment creditor of said debtor or any
person having a lien on the property subsequent to
Ateneo de Davao University College of Law
the mortgage or deed of trust under which the
property is sold, may redeem the same at anytime
within the term of one year from and after the
date of the sale; and such redemption shall be
governed by the provisions of section four hundred
and sixty-four to four hundred and sixty-six,
inclusive, of the Code of Civil Procedure, in so far as
these are not inconsistent with the provisions of
this Act.
Section 7. Possession during redemption period.
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 [the] form of
an ex-parte motion in the registration or cadastral
proceedings if the property is registered, or in special
proceedings in case of property registered under the
Mortgage Law or under section one hundred and ninety-
four of the Administrative Code, or of any other real
property encumbered with a mortgage duly registered in
the office of any register of deeds in accordance with any
existing law, and in each case the clerk of court shall, upon
the filing of such petition, collect the fees specified in
paragraph eleven of section one hundred and fourteen of
Act Number Four hundred and ninety-six, 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.
From the foregoing provisions, a writ of possession
may be issued either (1) within the one-year redemption
period, upon the filing of a bond, or (2) after the lapse of
the redemption period, without need of a bond.17
Within the redemption period the purchaser in a
foreclosure sale may apply for a writ of possession by filing
for that purpose an ex-parte motion under oath, in the
corresponding registration or cadastral proceeding in the
case of property covered by a Torrens title. Upon the filing
of an ex-parte motion and the approval of the
corresponding bond, the court is expressly directed to issue
the order for a writ of possession.18
On the other hand, after the lapse of the
redemption period, a writ of possession may be issued in
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 Civil Procedure | Atty. Catherine M. Guerzo-Barrion (2016-2017)
favor of the purchaser in a foreclosure sale as the
mortgagor is now considered to have lost interest over the
foreclosed property.19 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.20 In this regard, the
bond is no longer needed. 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, to a purchaser in an extrajudicial foreclosure sale
becomes merely a ministerial function.21 Effectively, the
court cannot exercise its discretion.
Therefore, the issuance by the RTC of a writ of
possession in favor of the respondent in this case is proper.
We have consistently held that 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.22 The propriety of the issuance of the writ was
heightened in this case where the respondents right to
possession of the properties extended after the expiration
of the redemption period, and became absolute upon the
petitioners failure to redeem the mortgaged properties.
TOP ART VS. METROBANK
August 4, 2009
Hence, the general rule is that upon proper
application and proof of title, the issuance of the writ of
possession to the purchaser of the foreclosed property at a
public auction sale becomes a ministerial duty of the
court.20
However, as in all general rules, there is an
exception. In Roxas v. Buan,21 we explained thus:
In the extrajudicial foreclosure of real
estate mortgages, possession of the property may
be awarded to the purchaser at the foreclosure
sale during the pendency of the period of
redemption under the terms provided in Sec. 6 of
Act 3135, as amended (An Act to Regulate the Sale
of Property Under Special Powers Inserted In or
Annexed to Real Estate Mortgages), or after the
lapse of the redemption period, without need of a
separate and independent action [IFC Service
Leasing and Acceptance Corp. v. Nera, G.R. No. L-
Ateneo de Davao University College of Law
21720, January 30, 1967, 19 SCRA 181). This is
founded on his right of ownership over the
property which he purchased at the auction sale
and his consequent right to be placed in possession
thereof.
This rule is, however, not without exception. Under
Sec. 35, Rule 39 of the Revised Rules of Court, which was
made applicable to the extrajudicial foreclosure of real
estate mortgages by Sec. 6 Act No. 3135, the possession of
the mortgaged property may be awarded to a purchaser in
extrajudicial foreclosures "unless a third party is actually
holding the property adversely to the judgment
debtor." [Emphasis supplied.] (Clapano v. Gapultos, G.R.
Nos. 51574-77, September 30, 1984, 132 SCRA 429,
434; Philippine National Bank v. Adil, G.R. No. 52823,
November 2, 1982, 118 SCRA 110; IFC Service Leasing and
Acceptance Corp. v. Nera, supra.) As explained by the Court
in IFC Service Leasing and Acceptance Corp. v. Nera, supra:
x x x The applicable provision of Act No. 3135 is
Section 6 which provides that, in cases in which an
extrajudicial sale is made, "redemption shall be
governed by the provisions of sections four
hundred and sixty-four to four hundred and sixty-
six, inclusive, of the Code of Civil Procedure in so
far as these are not inconsistent with the
provisions of this Act." Sections 464-466 of the
Code of Civil Procedure were superseded by
Sections 25-27 and Section 31 of Rule 39 of the
Rules of Court which in turn were replaced by
Sections 29-31 and Section 35 of Rule 39 of the
Revised Rules of Court. Section 35 of the Revised
Rules of Court expressly states that "If no
redemption be made within twelve (12) months
after the sale, the purchaser, or his assignee, is
entitled to a conveyance and possession of the
property x x x." The possession of the property
shall be given to the purchaser or last
redemptioner by the officer unless a party is
actually holding the property adversely to the
judgment debtor. (Id. at 184-185; Emphasis in the
original.)
Sec. 35 of Rule 39 of the Revised Rules of Court
referred to above had been further revised, and is now Sec.
33 of the same Rule, which reads:
SEC. 33. Deed and possession to be given at
expiration of redemption period; by whom
executed or given. If no redemption be made
within one (1) year from the date of the
registration of the certificate of sale, the purchaser
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 Civil Procedure | Atty. Catherine M. Guerzo-Barrion (2016-2017)

is entitled to a conveyance and possession of the property adversely to the judgment obligor."20 We quote
property; x x x. section 33, to wit:
Upon the expiration of the right of Sec. 33. Deed and possession to be given at
redemption, the purchaser or redemptioner shall expiration of redemption period; by whom
be substituted to and acquire all the rights, title, executed or given. If no redemption be made
interest and claim of the judgment obligor to the within one (1) year from the date of the
property as of the time of the levy. The possession registration of the certificate of sale, the purchaser
of the property shall be given to the purchaser or is entitled to a conveyance and possession of the
last redemptioner by the same officer unless a property; or, if so redeemed whenever sixty (60)
third party is actually holding the property days have elapsed and no other redemption has
adversely to the judgment obligor. (Emphasis been made, and notice thereof given, and the time
supplied.) for redemption has expired, the last redemptioner
In an extrajudicial foreclosure of real property, is entitled to the conveyance and possession; but
when the foreclosed property is in the possession of a third in all cases the judgment obligor shall have the
party holding the same adversely to the defaulting entire period of one (1) year from the date of the
debtor/mortgagor, the issuance by the RTC of a writ of registration of the sale to redeem the property.
possession in favor of the purchaser of the said real The deed shall be executed by the officer making
property ceases to be ministerial and may no longer be the sale or by his successor in office, and in the
done ex parte. But, for the exception to apply, the property latter case shall have the same validity as though
must be possessed by a third party; and such possession the officer making the sale had continued in office
must be adverse to the debtor/mortgagor. and executed it.
Upon the expiration of the right of
BPI VS. ICOT redemption, the purchaser or redemptioner shall
October 12, 2009 be substituted to and acquire all the rights, title,
interest and claim of the judgment obligor to the
A writ of possession is generally understood to be property as of the time of the levy. The possession
an order whereby the sheriff is commanded to place a of the property shall be given to the purchaser or
15
person in possession of a real or personal property. A writ last redemptioner by the same officer unless a
of possession may be issued under the following instances: third party is actually holding the property
(1) land registration proceedings under Section 17 of Act adversely to the judgment obligor. (Emphasis
496; (2) judicial foreclosure, provided the debtor is in supplied)
possession of the mortgaged realty and no third person, In the recent case of Development Bank of the
not a party to the foreclosure suit, had intervened; and (3) Philippines v. Prime Neighborhood Association,21 we
extrajudicial foreclosure of a real estate mortgage under reiterated our previous ruling in Philippine National Bank v.
Section 7 of Act 3135, as amended by Act 4118 (Act Court of Appeals22 that "the obligation of a court to issue
3135).16 This case involves the third instance. Under an ex parte writ of possession in favor of the purchaser in
Section 7 of Act 3135, a writ of possession may be issued an extrajudicial foreclosure sale ceases to be ministerial
either (1) within the one year redemption period, upon the once it appears that there is a third party in possession of
filing of a bond, or (2) after the lapse of the redemption the property who is claiming a right adverse to that of the
period, without need of a bond17 or of a separate and debtor/mortgagor." We further held, thus:
independent action.18 This is founded on the purchasers Under [Article 433 of the Civil Code],23 one
right of ownership over the property which he bought at who claims to be the owner of a property
the auction sale and his consequent right to be placed in possessed by another must bring the appropriate
possession thereof.19 However, this rule admits of an judicial action for its physical recovery. The term
exception, that is, Section 33 (former Section 35) of Rule 39 "judicial process" could mean no less than an
of the Revised Rules of Court, which provides that the ejectment suit or reivindicatory action in which
possession of the mortgaged property shall be given to the ownership claims of the contending parties may be
purchaser "unless a third party is actually holding the properly heard and adjudicated.

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 Civil Procedure | Atty. Catherine M. Guerzo-Barrion (2016-2017)
An ex parte petition for issuance of a possessory
writ under Section 7 of Act 3135[, as amended,] is not,
strictly speaking, a "judicial process" as contemplated
above. Even if the same may be considered a judicial
proceeding for the enforcement of one's right of
possession as purchaser in a foreclosure sale, it is not an
ordinary suit filed in court by which one party "sues
another for the enforcement or protection of a right, or the
prevention or redress of a wrong."
It should be emphasized that an ex parte petition
for issuance of a writ of possession is a non-litigious
proceeding authorized in an extrajudicial foreclosure of
mortgage pursuant to Act 3135, as amended. Unlike a
judicial foreclosure of real estate mortgage under Rule 68
of the Rules of Court, any property brought within the
ambit of the act is foreclosed by the filing of a petition, not
with any court of justice, but with the office of the sheriff
of the province where the sale is to be made.
As such, a third person in possession of an
extrajudicially foreclosed realty, who claims a right superior
to that of the original mortgagor, will have no opportunity
to be heard on his claim in a proceeding of this nature. It
stands to reason, therefore, that such third person may not
be dispossessed on the strength of a mere ex parte
possessory writ, since to do so would be tantamount to his
summary ejectment, in violation of the basic tenets of due
process.
Besides, as earlier stressed, Article 433 of the Civil
Code, cited above, requires nothing less that an action for
ejectment to be brought even by the true owner. After all,
the actual possessor of a property enjoys a legal
presumption of just title in his favor, which must be
overcome by the party claiming otherwise.24
We also held in Tan Soo Huat v. Ongwico,25 that:
There is no law in this jurisdiction whereby
the purchaser at a sheriffs sale of real property is
obliged to bring a separate and independent suit
for possession after the one-year period for
redemption has expired and after he has obtained
the sheriffs final certificate of sale. There is neither
legal ground nor reason of public policy precluding
the court from ordering the sheriff in this case to
yield possession of the property purchased at
public auction where it appears that the judgment
debtor is the one in possession thereof and no
rights of third persons are involved. (Emphasis
supplied)
Thus, the right of possession by a purchaser in an
extrajudicial foreclosure of real property is recognized only
Ateneo de Davao University College of Law
as against the judgment debtor and his successor-in-
interest, but not as against persons whose right of
possession is adverse to the latter.26 In this case,
respondents are third parties in possession of the subject
real property, holding the same under a title adverse to
that of the mortgagor/judgment obligor, Velasco.
Respondents are claiming title by virtue of an extrajudicial
settlement of their fathers estate executed in 1964. Upon
learning of the mortgage of the real property by Velasco to
petitioner, respondents filed a case for quieting of title
against Velasco. The latter later acknowledged or
"recognized" respondents ownership of the real property
in the Compromise Agreement executed by the parties in
the quieting of title case. Velasco even agreed to undertake
restitution of the subject property by contracting anew
with and repurchasing the foreclosed property from
petitioner.1avvphi1
Moreover, respondents are not parties to the
mortgage contract between the spouses Velasco and
petitioner. As correctly ruled by the appellate court, the
mere mention of the mortgage of the real property in the
Compromise Agreement did not make respondents privies
to the mortgage contract between the spouses Velasco and
petitioner. Moreover, respondents offer to repurchase the
foreclosed property from petitioner is not tantamount to
stepping into the shoes of Velasco, nor would such offer
qualify respondents as Velascos successors-in-interest.
Rather, the offer may be considered as respondents last
ditch effort to avoid being deprived of the property they
claim to have possessed since time immemorial.
Petitioners right to issuance of a writ of possession
cannot be invoked against respondents. Respondents
possession of the subject real property is legally presumed
to be pursuant to a just title which petitioner may
endeavor to overcome in a judicial proceeding for recovery
of property.
PLANTERS VS. NG
May 5, 2010
Section 33 of Rule 39 of the Rules of Court provides:
SEC. 33. Deed and possession to be given
at expiration of redemption period; by whom
executed or given. If no redemption be made
within one (1) year from the date of the
registration of the certificate of sale, the purchaser
is entitled to a conveyance and possession of the
property; x x x
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 Civil Procedure | Atty. Catherine M. Guerzo-Barrion (2016-2017)
Upon the expiration of the right of
redemption, the purchaser or redemptioner shall
be substituted to and acquire all the rights, title,
interest and claim of the judgment obligor to the
property as of the time of the levy. (underscoring
supplied)
Since respondents failed to redeem the mortgage
within the reglementary period, entitlement to the writ of
possession becomes a matter of right and the issuance
thereof is merely a ministerial function.11
The judge to whom an application for a writ of
possession is filed need not look into the validity of the
mortgage or the manner of its foreclosure. Until the
foreclosure sale is annulled, the issuance of the writ of
possession is ministerial.12
In fact, even during the period of redemption, the
purchaser is entitled as of right to a writ of possession
provided a bond is posted to indemnify the debtor in case
the foreclosure sale is shown to have been conducted
without complying with the requirements of the law. More
so when, as in the present case, the redemption period has
expired and ownership is vested in the purchaser.13
The defaulting mortgagor is not without any
expedient remedy, however. For under Section 8 of Act
3135, as amended by Act 4118,14 it can file with the court
which issues the writ of possession a petition for
cancellation of the writ within 30 days after the purchaser-
mortgagee was given possession. So Section 8 of Rule 39
provides:
SECTION 8. The debtor may, in the
proceedings in which possession was requested,
but not later than thirty days after the purchaser
was given possession, petition that the sale be set
aside and the writ of possession cancelled,
specifying the damages suffered by him, because
the mortgage was not violated or the sale was not
made in accordance with the provisions hereof,
and the court shall take cognizance of this petition
in accordance with the summary procedure
provided for in section one hundred and twelve of
Act Numbered Four hundred and ninety-six; and if
it finds the complaint of the debtor justified, it shall
dispose in his favor of all or part of the bond
furnished by the person who obtained possession.
Either of the parties may appeal from the order of
the judge in accordance with section fourteen of
Act Numbered Four hundred and ninety-six; but
the order of possession shall continue in effect
Ateneo de Davao University College of Law
during the pendency of the appeal. (underscoring
supplied)
IN FINE, it was grievous error for QC-RTC, Branch
77 to deny petitioners motion for the issuance of a writ of
possession.
VILLANUEVA VS. CHERDAN
October 13, 2010
The core issue for resolution is the propriety of the
issuance of the writ of possession over the property
subject of the foreclosure of the real estate mortgage.
A writ of possession is an order of the court
commanding the sheriff to place a person in possession of
a real or personal property.21 It may be issued in an
extrajudicial foreclosure of a real estate mortgage under
Section 7 of Act 3135, as amended by Act 4118, either 1)
within the one-year redemption period, upon the filing of a
bond, or 2) after the lapse of the redemption period,
without need of a bond or of a separate and independent
action.22
It is settled that the buyer in a foreclosure sale
becomes the absolute owner of the property purchased if
it is not redeemed within one year after the registration of
the sale. As such, he is entitled to the possession of the
property and can demand that he be placed in possession
at any time following the consolidation of ownership in his
name and the issuance to him of a new TCT.23 Time and
again, we have held that it is ministerial upon the court to
issue a writ of possession after the foreclosure sale and
during the period of redemption. Upon the filing of an ex
parte motion and the approval of the corresponding bond,
the court issues the order for a writ of possession. The writ
of possession issues as a matter of course even without the
filing and approval of a bond after consolidation of
ownership and the issuance of a new TCT in the name of
the purchaser.24
This rule, however, is not without exception. Under
Section 33, Rule 39 of the Rules of Court, which is made to
apply suppletorily to the extrajudicial foreclosure of real
estate mortgages by Section 6, Act 3135, as amended, the
possession of the mortgaged property may be awarded to
a purchaser in the extrajudicial foreclosure unless a third
party is actually holding the property adversely to the
judgment debtor.25 Section 33 provides:
Sec. 33. Deed and possession to be given at
expiration of redemption period; by whom
executed or given.
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 Civil Procedure | Atty. Catherine M. Guerzo-Barrion (2016-2017)
If no redemption be made within one (1) year from
the date of the registration of the certificate of sale, the
purchaser is entitled to a conveyance and possession of the
property; or, if so redeemed whenever sixty (60) days have
elapsed and no other redemption has been made, and
notice thereof given, and the time for redemption has
expired, the last redemptioner is entitled to the
conveyance and possession; but in all cases the judgment
obligor shall have the entire period of one (1) year from the
date of the registration of the sale to redeem the property.
The deed shall be executed by the officer making the sale
or by his successor in office, and in the latter case shall
have the same validity as though the officer making the
sale had continued in office and executed it.
Upon the expiration of the right of redemption, the
purchaser or redemptioner shall be substituted to and
acquire all the rights, title, interest and claim of the
judgment obligor to the property as of the time of the levy.
The possession of the property shall be given to the
purchaser or last redemptioner by the same officer unless
a third party is actually holding the property adversely to
the judgment obligor.
The same issue had been raised in Bank of the
Philippine Islands v. Icot,26 Development Bank of the
Philippines v. Prime Neighborhood Association,27 Dayot v.
Shell Chemical Company (Phils.), Inc.,28 and Philippine
National Bank v. Court of Appeals,29 and we uniformly held
that the obligation of the court to issue an ex parte writ of
possession in favor of the purchaser in an extrajudicial
foreclosure sale ceases to be ministerial once it appears
that there is a third party in possession of the property
who is claiming a right adverse to that of the
debtor/mortgagor.
The purchasers right of possession is recognized
only as against the judgment debtor and his successor-in-
interest but not against persons whose right of possession
is adverse to the latter.30 In this case, petitioner opposed
the issuance of the writ of possession on the ground that
he is in actual possession of the mortgaged property under
a claim of ownership. He explained that his title to the
property was cancelled by virtue of a falsified deed of
donation executed in favor of spouses Pearedondo.
Because of this falsification, he filed civil and criminal cases
against spouses Pearedondo to nullify the deed of
donation and to punish the party responsible for the
falsified document. Petitioners claim that he is in actual
possession of the property is not challenged, and he has
come to court asserting an ownership right adverse to that
of the mortgagors, the spouses Pearedondo.
Ateneo de Davao University College of Law
BPI SAVINGS VS. GOLDEN POWER
January 12, 2011
Thus, the general rule is that a purchaser in a
public auction sale of a foreclosed property is entitled to a
writ of possession and, upon an ex parte petition of the
purchaser, it is ministerial upon the trial court to issue the
writ of possession in favor of the purchaser.
There is, however, an exception. Section 33, Rule
39 of the Rules of Court provides:
Section 33. Deed and possession to be
given at expiration of redemption period; by whom
executed or given. - x x x
Upon the expiration of the right of redemption, the
purchaser or redemptioner shall be substituted to and
acquire all the rights, title, interest and claim of the
judgment obligor to the property as of the time of the levy.
The possession of the property shall be given to the
purchaser or last redemptioner by the same officer unless
a third party is actually holding the property adversely to
the judgment obligor. (Emphasis supplied)
Therefore, in an extrajudicial foreclosure of real
property, when the foreclosed property is in the possession
of a third party holding the same adversely to the
judgment obligor, the issuance by the trial court of a writ
of possession in favor of the purchaser of said real property
ceases to be ministerial and may no longer be done ex
parte.19 The procedure is for the trial court to order a
hearing to determine the nature of the adverse
possession.20 For the exception to apply, however, the
property need not only be possessed by a third party, but
also held by the third party adversely to the judgment
obligor.
In this case, BPI Family invokes the general rule
that they are entitled to a writ of possession because
respondents are mere successors-in-interest of CEDEC and
do not possess the properties adversely to CEDEC.
Respondents, on the other hand, assert the exception and
insist that they hold the properties adversely to CEDEC and
that their possession is a sufficient obstacle to the ex
parte issuance of a writ of possession in favor of BPI Family.
Respondents argument fails to persuade the
Court. It is clear that respondents acquired possession over
the properties pursuant to the Deed of Sale which provides
that for P15,000,000 CEDEC will "sell, transfer and convey"
to respondents the properties "free from all liens and
encumbrances excepting the mortgage as may be
subsisting in favor of the BPI FAMILY SAVINGS
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 Civil Procedure | Atty. Catherine M. Guerzo-Barrion (2016-2017)
BANK."21 Moreover, the Deed of Sale provides that
respondents bind themselves to assume "the payment of
the unpaid balance of the mortgage indebtedness of the
VENDOR (CEDEC) amounting to P7,889,472.48, as of July
31, 1998, in favor of the aforementioned mortgagee (BPI
Family) by the mortgage instruments and does hereby
further agree to be bound by the precise terms and
conditions therein contained."22
In Roxas v. Buan,23 we ruled:
It will be recalled that Roxas possession of the
property was premised on its alleged sale to him by
Valentin for the amount of P100,000.00. Assuming this to
be true, it is readily apparent that Roxas holds title to and
possesses the property as Valentins transferee. Any right
he has to the property is necessarily derived from that of
Valentin. As transferee, he steps into the latters shoes.
Thus, in the instant case, considering that the property had
already been sold at public auction pursuant to an
extrajudicial foreclosure, the only interest that may be
transferred by Valentin to Roxas is the right to redeem it
within the period prescribed by law. Roxas is therefore the
successor-in-interest of Valentin, to whom the latter had
conveyed his interest in the property for the purpose of
redemption. Consequently, Roxas occupancy of the
property cannot be considered adverse to Valentin.24
In this case, respondents possession of the
properties was premised on the sale to them by CEDEC for
the amount of P15,000,000. Therefore, respondents hold
title to and possess the properties as CEDECs transferees
and any right they have over the properties is derived from
CEDEC. As transferees of CEDEC, respondents merely
stepped into CEDECs shoes and are necessarily bound to
acknowledge and respect the mortgage CEDEC had earlier
executed in favor of BPI Family.25 Respondents are the
successors-in-interest of CEDEC and thus, respondents
occupancy over the properties cannot be considered
adverse to CEDEC.
Moreover, in China Bank v. Lozada,26 we discussed
the meaning of "a third party who is actually holding the
property adversely to the judgment obligor." We stated:
The exception provided under Section 33 of Rule 39 of the
Revised Rules of Court contemplates a situation in which a
third party holds the property by adverse title or right, such
as that of a co-owner, tenant or usufructuary. The co-
owner, agricultural tenant, and usufructuary possess the
property in their own right, and they are not merely the
successor or transferee of the right of possession of
another co-owner or the owner of the property.27
Ateneo de Davao University College of Law
In this case, respondents cannot claim that their
right to possession over the properties is analogous to any
of these.1avvphi1 Respondents cannot assert that their
right of possession is adverse to that of CEDEC when they
have no independent right of possession other than what
they acquired from CEDEC. Since respondents are not
holding the properties adversely to CEDEC, being the
latters successors-in-interest, there was no reason for the
trial court to order the suspension of the implementation
of the writ of possession.
Furthermore, it is settled that a pending action for
annulment of mortgage or foreclosure sale does not stay
the issuance of the writ of possession.28 The trial court,
where the application for a writ of possession is filed, does
not need to look into the validity of the mortgage or the
manner of its foreclosure.29 The purchaser is entitled to a
writ of possession without prejudice to the outcome of the
pending annulment case.30
Section 35. Right to contribution or
reimbursement. When property liable to an execution
against several persons is sold thereon, and more than a
due proportion of the judgment is satisfied out of the
proceeds of the sale of the property of one of them, or one
of them pays, without a sale, more than his proportion, he
may compel a contribution from the others; and when a
judgment is upon an obligation of one of them, as security
for another, and the surety pays the amount, or any part
thereof, either by sale of his property or before sale, he
may compel repayment from the principal. (37a)
Section 36. Examination of judgment obligor when
judgment unsatisfied. When the return of a writ of
execution issued against property of a judgment obligor, or
any one of several obligors in the same judgment, shows
that the judgment remains unsatisfied, in whole or in part,
the judgment obligee, at any time after such return is
made, shall be entitled to an order from the court which
rendered the said judgment, requiring such judgment
obligor to appear and be examined concerning his property
and income before such court or before a commissioner
appointed by it at a specified time and place; and
proceedings may thereupon be had for the application of
the property and income of the judgment obligor towards
the satisfaction of the judgment. But no judgment obligor
shall be so required to appear before a court or
commissioner outside the province or city in which such
obligor resides or is found. (38a)
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Section 37. Examination of obligor of judgment
obligor. When the return of a writ of execution against
the property of a judgment obligor shows that the
judgment remain unsatisfied, in whole or in part, and upon
proof to the satisfaction of the court which issued the writ,
that a person, corporation, or other juridical entity has
property of such judgment obligor or is indebted to him,
the court may, by an order, require such person,
corporation, or other juridical entity, or any officer, or
member thereof, to appear before the court or a
commissioner appointed by it, at a time and place within
the province or city where such debtor resides or is found,
and be examined concerning the same. The service of the
order shall bind all credits due the judgment obligor and all
money and property of the judgment obligor in the
possession or in the control of such person corporation, or
juridical entity from the time of service; and the court may
also require notice of such proceedings to be given to any
party to the action in such manner as it may deem proper.
(39a)
Section 38. Enforcement of attendance and
conduct of examination. A party or other person may be
compelled, by an order or subpoena, to attend before the
court or commissioner to testify as provided in the two
preceding sections, and upon failure to obey such order or
subpoena or to be sworn, or to answer as a witness or to
subscribe his deposition, may be punished for contempt as
in other cases. Examinations shall not be unduly prolonged,
but the proceedings may be adjourned from time to time,
until they are completed. If the examination is before a
commissioner, he must take it in writing and certify it to
the court. All examinations and answers before a court
commissioner must be under oath, and when a corporation
or other juridical entity answers, it must be on the oath of
an authorized officer or agent thereof. (40a)
Section 39. Obligor may pay execution against
obligee. After a writ of execution against property has
been issued, a person indebted to the judgment obligor
may pay to the sheriff holding the writ of execution the
amount of his debt or so much thereof as may be
necessary to satisfy the judgment, in the manner
prescribed in section 9 of this Rule, and the sheriff's receipt
shall be a sufficient discharge for the amount so paid or
directed to be credited by the judgment obligee on the
execution. (41a)
Section 40. Order for application of property and
income to satisfaction of judgment. The court may order
Ateneo de Davao University College of Law
any property of the judgment obligor, or money due him,
not exempt from execution, in the hands of either himself
or another person, or of a corporation or other juridical
entity, to be applied to the satisfaction of the judgment,
subject to any prior rights over such property.
If, upon investigation of his current income and expenses,
it appears that the earnings of the judgment obligor for his
personal services are more than necessary for the support
of his family, the court may order that he pay the judgment
in fixed monthly installments, and upon his failure to pay
any such installment when due without good excuse, may
punish him for indirect contempt. (42a)
Section 41. Appointment of receiver. The court
may appoint a receiver of the property of the judgment
obligor; and it may also forbid a transfer or other
disposition of, or any interference with, the property of the
judgment obligor not exempt from execution. (43a)
Section 42. Sale of ascertainable interest of
judgment obligor in real estate. If it appears that the
judgment obligor has an interest in real estate in the place
in which proceedings are had, as mortgagor or mortgagee
or other- wise, and his interest therein can be ascertained
without controversy the receiver may be ordered to sell
and convey such real estate or the interest of the obligor
therein; and such sale shall be conducted in all respects in
the same manner as is provided for the sale of real state
upon execution, and the proceedings thereon shall be
approved by the court before the execution of the deed.
(34a)
Section 43. Proceedings when indebtedness denied
or another person claims the property. If it appears that
a person or corporation, alleged to have property of the
judgment obligor or to be indebted to him, claims an
interest in the property adverse to him or denied the debt,
the court may authorize, by an order made to that effect,
the judgment obligee to institute an action against such
person or corporation for the recovery of such interest or
debt, forbid a transfer or other disposition of such interest
or debt within one hundred twenty (120) days from notice
of the order, and may punish disobedience of such order as
for contempt. Such order may be modified or vacated at
any time by the court which issued it, or by the court in
which the action is brought, upon such terms as may be
just. (45a)
Section 44. Entry of satisfaction of judgment by
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clerk of court. Satisfaction of a judgment shall be While it is necessary that the credit of the
entered by the clerk of court in the court docket, and in the plaintiff in the accion pauliana must be prior to the
execution book, upon the return of a writ of execution fraudulent alienation, the date of the judgment
showing the full satisfaction of the judgment, or upon the enforcing it is immaterial. Even if the judgment be
filing of an admission to the satisfaction of the judgment subsequent to the alienation, it is merely
executed and acknowledged in the same manner as a declaratory with retroactive effect to the date
conveyance of real property by the judgment obligee or by when the credit was constituted."10
his counsel unless a revocation of his authority is filed, or These principles were reiterated by the Court when
upon the endorsement of such admission by the judgment it explained the requisites of an accion pauliana in greater
obligee or his counsel, on the face of the record of the detail, to wit:
judgment. (46a) "The following successive measures must
be taken by a creditor before he may bring an
Section 45. Entry of satisfaction with or without action for rescission of an allegedly fraudulent sale:
admission. Whenever a judgment is satisfied in fact, or (1) exhaust the properties of the debtor through
otherwise than upon an execution on demand of the levying by attachment and execution upon all the
judgment obligor, the judgment obligee or his counsel property of the debtor, except such as are exempt
must execute and acknowledge, or indorse an admission of from execution; (2) exercise all the rights and
the satisfaction as provided in the last preceding section, actions of the debtor, save those personal to him
and after notice and upon motion the court may order (accion subrogatoria); and (3) seek rescission of the
either the judgment obligee or his counsel to do so, or may contracts executed by the debtor in fraud of their
order the entry of satisfaction to be made without such rights (accion pauliana). Without availing of the
admission. (47a) first and second remedies, i.e.. exhausting the
properties of the debtor or subrogating themselves
KHE HONG CHENG VS. CA in Francisco Bareg's transmissible rights and
March 28, 2001 actions. petitioners simply: undertook the third
measure and filed an action for annulment of sale.
An accion pauliana thus presupposes the following: This cannot be done."11 (Emphasis ours)
1) A judgment; 2) the issuance by the trial court of a writ of In the same case, the Court also quoted the
execution for the satisfaction of the judgment, and 3) the rationale of the CA when it upheld the dismissal of
failure of the sheriff to enforce and satisfy the judgment of the accion pauliana on the basis of lack of cause of action:
the court. It requires that the creditor has exhausted the "In this case, plaintiffs appellants had not
property of the debtor: The date of the decision of the trial even commenced an action against defendants-
court is immaterial. What is important is that the credit of appellees Bareng for the collection of the alleged
the plaintiff antedates that of the fraudulent alienation by indebtedness, Plaintiffs-appellants had not even
the debtor of his property. After all, the decision of the trial tried to exhaust the property of defendants-
court against the debtor will retroact to the time when the appellees Bareng, Plaintiffs-appellants, in seeking
debtor became indebted to the creditor. the rescission of the contracts of sale entered into
Tolentino, a noted civilist, explained: between defendants-appellees, failed to show and
"xxx[T]herefore, credits with suspensive term or prove that defendants-appellees Bareng had no
condition are excluded, because the accion other property, either at the time of the sale or at
pauliana presupposes a judgment and unsatisfied the time this action was filed, out of which they
execution, which cannot exist when the debt is not could have collected this (sic) debts." (Emphasis
yet demandable at the time the rescissory action is ours)
brought. Rescission is a subsidiary action, which Even if respondent Philam was aware, as of
presupposes that the creditor has exhausted the December 27, 1989, that petitioner Khe Hong Cheng had
property of the debtor which is impossible in executed the deeds of donation in favor of his children, the
credits which cannot be enforced because of a complaint against Butuan Shipping Lines and/or petitioner
suspensive term or condition. Khe Hong Cheng was still pending before the trial court.
Respondent Philam had no inkling, at the time, that the

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trial courts judgment would be in its favor and further,
that such judgment would not be satisfied due to the
deeds of donation executed by petitioner Khe Hong Cheng
during the pendency of the case. Had respondent Philam
filed his complaint on December 27, 1989, such complaint
would have been dismissed for being premature. Not only
were all other legal remedies for the enforcement of
respondent Philam's claims not yet exhausted at the time
the needs of donation were executed and registered.
Respondent Philam would also not have been able to prove
then that petitioner Khe Hong Cheng had no more property
other than those covered by the subject deeds to satisfy a
favorable judgment by the trial court.
PNB MANAGEMENT VS. R&R METAL
January 2, 2002
The only issue that was not raised in the earlier
case but is raised here is the alleged necessity of an
affidavit stating that the judgment had not been satisfied,
before a third party may be examined as regards its debt to
the judgment debtor, pursuant to Section 39, Rule 39 of
the Rules of Court (prior to its amendment in 1997).
The rule cited by petitioner provides:
SEC. 39. Examination of debtor of judgment
debtor. -- After an execution against the property
of a judgment debtor has been returned
unsatisfied in whole or in part, and upon proof, by
affidavit of a party or otherwise, to the satisfaction
of the judge, that a person, corporation, or other
legal entity has property of such judgment debtor,
or is indebted to him, the judge may, by an order,
require such person, corporation, or other legal
entity, or any officer or member thereof, to appear
before the judge, or a commissioner appointed by
him, at a time and place within the province in
which the order is served, to answer concerning
the same. The service of the order shall bind all
credits due the judgment debtor and all money and
property of the judgment debtor in the possession
or in the control of such person, corporation, or
legal entity from the time of service; and the judge
may also require notice of such proceedings to be
given to any party to the action in such manner as
he may deem proper. (Underscoring supplied.)
Petitioner apparently confuses a sheriff s return
with the affidavit, or other proof, stating that another
person is indebted to the judgment debtor. The cited rule
does not refer to a sheriffs return that states whether or
Ateneo de Davao University College of Law
not the judgment has been satisfied. Rather, it speaks of an
affidavit, or some other proof, that a third person is
indebted to, or has property of, a judgment debtor.
Petitioner insists that an "affidavit of sheriffs
return" must be presented before petitioner, the debtor of
the judgment debtor, may be examined concerning its
debt. It asserts that the phrase "by affidavit of a party or
otherwise" means either an affidavit executed by a party to
the litigation, or an affidavit executed by a third person.
Petitioner is evidently only stretching the meaning of the
rule to serve its purpose. The rule is clear: proof of a
person's indebtedness to the judgment debtor may be in
an affidavit or some other form, so long as the judge is
satisfied. We cannot read into the rule what simply is not
there. Moreover, that proof other than an affidavit is
sufficient is clear from the 1997 Revised Rules of Civil
Procedure. As pointed out by respondent, the present
Section 37 of Rule 39 provides that "proof to the
satisfaction of the court" is sufficient to cause an
examination .of a judgment debtor's debtor.
On the issue of whether or not petitioner became a
forced intervenor in this case, we said in the earlier PNB
MADECOR case:
...petitioner contends that it did not become a
forced intervenor in the present case even after
being served with a notice of garnishment.
Petitioner argues that the correct procedure would
have been for respondent to file a separate action
against PNB MADECOR, per Section 43 of Rule 39
of the Rules of Court.12Petitioner insists it was
denied its right to ventilate its claims in a separate,
full-blown trial when the courts a quo ruled that
the abovementioned rule was inapplicable to the
present case.
On this score, we had occasion to rule as
early as 1921 in Tayabas Land Co. v. Sharruf,3 as
follows:
...garnishment. ..consists in the citation of
some stranger to the litigation, who is
debtor to one of the parties to the action.
By this means such debtor stranger
becomes a forced intervenor; and the
court, having acquired jurisdiction over his
person by means of citation, requires him
to pay his debt, not to his former creditor,
but to the new creditor, who is creditor in
the main litigation. It is merely a case of
involuntary novation by the substitution of
one creditor for another. Upon principle
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the remedy is a species of attachment or
execution for reaching any property
pertaining to a judgment debtor which
may be found owing to such debtor by a
third person.
Again, in Perla Compania de Seguros, Inc. v.
Ramolete,14we declared:
Through service of the writ of
garnishment, the garnishee becomes a
"virtual party" to, or a "forced intervenor"
in, the case and the trial court thereby
acquires jurisdiction to bind him to
compliance with all orders and processes
of the trial court with a view to the
complete satisfaction of the judgment of
the court.
xxx
There is no need for the institution
of a separate action under Rule 39, Section
43, contrary to petitioner's claim. This
provision contemplates a situation where
the person allegedly holding property of
(or indebted to) the judgment debtor
claims an adverse interest in the property (
or denies the debt). In this case, petitioner
expressly admits its obligation to
PNEI.15 (Citations appearing in the original
adjusted to conform to present decision.)
Petitioner, in fact, actively participated in the
proceedings before the trial court by appearing during
hearings, examining witnesses, and filing pleadings.16It
cannot now claim that it was denied the opportunity to
present its side in a full-blown trial.
RAMON MONTENEGRO VS. TERESA MONTENEGRO
June 8, 2004
In relation to the foregoing, Section 38 of Rule 39
of the Rules of Court also provides that "a party or other
person may be compelled, by an order or subpoena, to
attend before the court or commissioner to testify as
provided in the two preceding sections, and upon failure to
obey such order or subpoena or to be sworn, or to answer
as a witness or to subscribe his deposition, may be
punished for contempt as in other cases." This provision
relates specifically to Section 3(b) of Rule 71 of the Rules of
Court.
Indirect contempt may either be initiated (1) motu
proprio by the court by issuing an order or any other formal
Ateneo de Davao University College of Law
charge requiring the respondent to show cause why he
should not be punished for contempt or (2) by the filing of
a verified petition, complying with the requirements for
filing initiatory pleadings.10 In the present case, the trial
court initiated the proceedings for indirect contempt by
issuing two orders11 directing the petitioner to show cause
why he should not be punished for indirect contempt.
Contempt, whether direct or indirect, may be civil
or criminal depending on the nature and effect of the
contemptuous act. Criminal contempt is "conduct directed
against the authority and dignity of the court or a judge
acting judicially; it is an act obstructing the administration
of justice which tends to bring the court into disrepute or
disrespect."12 On the other hand, civil contempt is the
failure to do something ordered to be done by a court or a
judge for the benefit of the opposing party therein and is
therefore, an offense against the party in whose behalf the
violated order was made.13 If the purpose is to punish, then
it is criminal in nature; but if to compensate, then it is
civil.14
In the present case, the contemptuous act was the
petitioners refusal to attend a hearing for his examination
as judgment obligor, upon motion by the respondent
Teresa. It must be pointed out that the purpose of Section
36 of Rule 39 is to provide the judgment obligee a remedy
in case where the judgment obligor continues to fail to
comply with its obligation under the judgment. Petitioners
refusal to be examined, without justifiable reason,
constituted indirect contempt which is civil in nature.
Petitioners deliberate willfulness and even malice
in disobeying the orders of the trial court are clearly shown
in the pleadings he himself had filed before the trial court.
Neither can petitioner rely on the alleged
irregularity in the trial courts grant of the motion to
examine him as judgment obligor before he was able to file
a reply or comment. Section 36 of, Rule 39 of the Rules of
Court allows, as a matter of right, the plaintiff who is a
judgment obligee to examine the defendant as judgment
obligor, at any time after the return of the writ of
execution is made. Section 36 reads as follows:
Sec. 36. Examination of judgment obligor
when judgment unsatisfied. When the return of
a writ of execution issued against property of a
judgment obligor, or any one of several obligors in
the same judgment, shows that the judgment
remains unsatisfied, in whole or in part, the
judgment obligee, at any time after such return is
made, shall be entitled to an order from the
court which rendered the said judgment, requiring
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such judgment obligor to appear and be examined
concerning his property and income before such
court or before a commissioner appointed by it, at
a specified time and place; and proceedings may
thereupon be had for the application of the
property and income of the judgment obligor
towards the satisfaction of the judgment. But no
judgment obligor shall be so required to appear
before a court or commissioner outside the
province or city in which such obligor resides or is
found. (Emphasis supplied)
Thus, the trial court committed no abuse of
discretion in scheduling the examination of petitioner on
22 March 2002. On the contrary, it acted with utmost
judiciousness to avoid a miscarriage of justice because
petitioner was reported to be about to leave for Canada, a
fact which petitioner did not refute in his Manifestation of
19 March 2002.
It is noteworthy that while petitioner insisted that
he still had until 14 April 2002 to file a reply or comment on
the motion for examination, he also manifested through
counsel on 5 April 2002 that he already left for Canada on
26 March 2002 and will not be back until the last week of
July or the first week of August 2002. It is obvious then that
petitioner wanted to gain time to avoid being examined.
With respect to the 10 April 2002 hearing, it is established
that petitioner was already in Canada at the time of the
scheduled hearing. Nonetheless, it must be stressed that
the re-scheduling of the hearing to 10 April 2002 was
brought about by his unjustifiable failure to attend the 22
March 2002 hearing.
BPI VS. LEE
August 1, 2012
Section 43, Rule 39 of the Revised Rules of Court states:
SECTION 43. Proceedings when
indebtedness denied or another person claims the
property. If it appears that a person or
corporation, alleged to have property of the
judgment obligor or to be indebted to him, claims
an interest in the property adverse to him or
denies the debt, the court may authorize, by an
order made to that effect, the judgment oblige to
institute an action against such person or
corporation for the recovery of such interest or
debt, forbid a transfer or other disposition of such
interest or debt within one hundred twenty (120)
days from notice of the order, and may punish
Ateneo de Davao University College of Law
disobedience of such order as for contempt. Such
order may be modified or vacated at any time by
the court which issued it, or by the court in which
the action is brought, upon such terms as may be
just. (Underscoring supplied).
The institution of a separate action against a
garnishee contemplates a situation where the garnishee
(third person) "claims an interest in the property adverse
to him (judgment debtor) or denies the debt."19 Neither of
these situations exists in this case. The garnishee does not
claim any interest in the deposit accounts of the
defendants, nor does it deny the existence of the deposit
accounts. In fact, Citytrust admitted in its letter dated June
28, 1988 that it is in possession of the deposit accounts.
Considering the foregoing disquisitions, BPI's
liability for the garnished deposits of defendants has been
clearly established.
Garnishment has been defined as a specie of
attachment for reaching credits belonging to the judgment
debtor and owing to him from a stranger to the
litigation.20 A writ of attachment is substantially a writ of
execution except that it emanates at the beginning, instead
of at the termination, of a suit. It places the attached
properties in custodia legis, obtaining pendente lite a lien
until the judgment of the proper tribunal on the plaintiffs
claim is established, when the lien becomes effective as of
the date of the levy.21
By virtue of the writ of garnishment, the deposits
of the defendants with Citytrust were placed in custodia
legis of the court. From that time onwards, their deposits
were under the sole control of the RTC and Citytrust holds
them subject to its orders until such time that the
attachment or garnishment is discharged, or the judgment
in favor of Lee is satisfied or the credit or deposit is
delivered to the proper officer of the court.22 Thus,
Citytrust, and thereafter BPI, which automatically assumed
the formers liabilities and obligations upon the approval of
their Articles of Merger, is obliged to keep the deposit
intact and to deliver the same to the proper officer upon
order of the court.
However, the RTC is not permitted to dissolve or
discharge a preliminary attachment or garnishment except
on grounds specifically provided23 in the Revised Rules of
Court, namely,24 (a) the debtor has posted a counter-bond
or has made the requisite cash deposit;25 (b) the
attachment was improperly or irregularly issued26 as where
there is no ground for attachment, or the affidavit and/or
bond filed therefor are defective or insufficient; (c) the
attachment is excessive, but the discharge shall be limited
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to the excess;27 (d) the property attachment is exempt
from preliminary attachment;28 or (e) the judgment is
29
rendered against the attaching creditor.
Evidently, the loss of bank records of a garnished
deposit is not a ground for the dissolution of garnishment. for partition and an action for quieting of title have
Consequently, the obligation to satisfy the writ stands.
Moreover, BPI cannot avoid the obligation of res judicata:
attached to the writ of garnishment by claiming that the
fund was not transferred to it, in light of the Articles of
Merger which provides that "all liabilities and obligations of
Citytrust shall be transferred to and become the liabilities
and obligations of BPI in the same manner as if the BPI had
itself incurred such liabilities or obligations, and in order
that the rights and interest of creditors of Citytrust or liens
upon the property of Citytrust shall not be impaired by
merger."30
Indubitably, BPI IS liable to deliver the fund subject
of the writ of garnishment.
Section 47. Effect of judgments or final orders.
The effect of a judgment or final order rendered by a court
of the Philippines, having jurisdiction to pronounce the
judgment or final order, may be as follows:
(a) In case of a judgment or final order against a
specific thing, or in respect to the probate of a will, or the
administration of the estate of a deceased person, or in
respect to the personal, political, or legal condition or
status of a particular person or his relationship to another,
the judgment or final order is conclusive upon the title to
the thing, the will or administration or the condition, status
or relationship of the person, however, the probate of a
will or granting of letters of administration shall only
be prima facie evidence of the death of the testator or
intestate;
(b) In other cases, the judgment or final order is,
with respect to the matter directly adjudged or as to any
other matter that could have been missed in relation
thereto, conclusive between the parties and their
successors in interest, by title subsequent to the
commencement of the action or special proceeding,
litigating for the same thing and under the same title and in
the same capacity; and
(c) In any other litigation between the same parties
or their successors in interest, that only is deemed to have
been adjudged in a former judgment or final order which Lot 4389. On the other hand, in the case for partition filed
appears upon its face to have been so adjudged, or which by respondents, petitioners set up the defense of sole
was actually and necessarily included therein or necessary dominion in order to frustrate the equal division of the
thereto. (49a)
HEIRS OF GAUDIANE VS. CA
March 11, 2004
In Medija vs. Patcho, et al.,10 we ruled that a case
identical causes of action and can therefore be the subject
Is there identity of cause of action between
the first and second actions? The answer is yes.
The fact that Civil Case No. 1884, filed by the
appellees against the appellant was for partition of
the hereditary estate with accounting of fruits of
several parcels of land, while Civil Case No. 2665,
brought by appellant against the appellees, was for
quieting of title over two parcels which are parts of
the same properties subject of the previous case,
does not remove the present proceeding from the
operation of the principle of bar by former
judgment. As specifically stated in the decision of
the Court of Appeals in Civil Case No. 1884, now
final and executory, the right of therein plaintiffs
(appellees herein) to partition the several parcels
of land was based on Article 1103 of the Civil Code.
The appellees' right to ownership is based on
succession they being heirs of the deceased
Lorenzo Morante. What the appellant did is to
institute another action which would preclude the
execution of the judgment of the lower court in
Civil Case No. 1884. It must be remembered that a
change in the form of action or in the relief sought
does not remove a proper case from the
application of res judicata. In other words, a party
cannot, by varying the form of action, or adopting
a different method of presenting his case, escape
the operation of the principle that one and the
same cause of action shall not be twice litigated
between the same parties (Ramos vs. Pangasinan
Transportation Company, Inc., 79 SCRA 171; Aguila
vs. J.M. Tuason & Co., Inc., 22 SCRA 690,
citing Clemente vs. H.E. Heacock Co., G.R. No. L-
23212, May 18, 1967; Francisco vs. Blas, 93 Phil.
43).11
Petitioners filed an action to quiet title for the sole
purpose of claiming for themselves exclusive ownership of
property between the heirs of Felix and Juana. Considering
the similarity of petitioners' defense in this case with their

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main averment in the case for quieting of title, petitioners to any other matter that could have been raised in
are barred by res judicata from claiming sole ownership of relation thereto, conclusive between the parties
Lot 4389. and their successors in interest by title subsequent
We also find that respondents never waived their to the commencement to the action or special
right to object to petitioners' barred defense of exclusive proceeding, litigating for the same thing and under
ownership. While the petitioners were allowed in the the same title and in the same capacity;
subject case for partition, accounting and damages to (c) In any other litigation between the same parties
present their evidence of exclusive ownership, the or their successors in interest, that only is deemed
respondents' failure to oppose did not mean that the latter to have been adjudged in a former judgment or
waived their right to object to the petitioners' evidence. final order which appears upon its face to have
For reasons of public policy, res judicata cannot be waived been so adjudged, or which was actually and
by a party because the time and energy of the State and necessarily included therein or necessarily thereto.
the taxpayers are wasted by the re-litigation of settled The distinction between the doctrine of res
issues. That is the reason why, under Rule 9 of the 1997 judicata, or bar by prior judgment, under paragraph (b)
Rules of Civil Procedure, a trial court may dismiss a above and conclusiveness of judgment under paragraph (c)
case motu proprio on grounds of res judicata although it is is well-laid. In Gamboa v. Court of Appeals,28 we held:
not raised, and apparently waived, in a motion to dismiss There is bar by prior judgment when,
or answer. Conversely, a plaintiff, or the trial court itself, between the first case where the judgment was
may invoke res judicata to resist a defense barred by prior rendered and the second case which is sought to
judgment even after trial on the merits. be barred, there is identity of parties, subject
matter and cause of action. The judgment in the
CAYANA VS. CA first case constitutes an absolute bar to the
March 18, 2004 subsequent action. It is final as to the claim or
demand in controversy, including the parties and
The trial court and the appellate court both erred those in privity with them, not only as to every
in the manner by which they treated and applied the final matter which was offered and received to sustain
decision in Civil Case No. 15298 to the instant case. This or defeat the claim or demand, but as to any other
error apparently stems from a misreading of the provisions admissible matter which might have been offered
in the 1997 Rules of Civil Procedure on the effect of for that purpose and of all matters that could have
judgments. Section 47, Rule 39 thereof provides: been adjudged in that case. But where between
SEC. 47. Effect of judgments or final the first and second cases, there is identity of
orders.The effect of a judgment or final order parties but no identity of cause of action, the first
rendered by a court of the Philippines, having judgment is conclusive in the second case, only as
jurisdiction to pronounce the judgment or final to those matters actually and directly controverted
order, may be as follows: and determined and not as to matters merely
(a) In case of a judgment or final order against a involved therein.29
specific thing, or in respect to the probate of a will, For res judicata to apply, there must be (1) a
or the administration of the estate of a deceased former final judgment rendered on the merits; (2) the
person, or in respect to the personal, political, or court must have had jurisdiction over the subject matter
legal condition or status of a particular person or and the parties; and, (3) identity of parties, subject matter
his relationship to another, the judgment or final and cause of action between the first and second actions.
order is conclusive upon the title to the thing, the According to the appellate court, the third requisite for the
will or administration, or the condition, status or application of res judicata is not present in this case.
relationship of the person; however, the probate of In order to determine the identity of the causes of
a will or granting of letters of administration shall action in Civil Case Nos. 15298 and 15937, and
only be prima facie evidence of the death of the consequently, the application of the doctrine of res
testator or intestate; judicata, it is essential to consider the identity of facts
(b) In other cases, the judgment or final order is, essential to their maintenance, or whether the same
with respect to the matter directly adjudged or as evidence would sustain both causes of action. If the same

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 Civil Procedure | Atty. Catherine M. Guerzo-Barrion (2016-2017)
facts or evidence would sustain both, the two actions are
considered the same and covered by the rule that the
judgment in the former is a bar to the subsequent action.
If, however, the two actions rest upon different states of
fact, or if different proofs would be required to sustain the
two actions, a judgment in one is no bar to the
maintenance of the other.30
We find that the evidence required to prove the
allegations in Civil Case No. 15937, which involves the
annulment of the subsequent transactions and TCTs
covering the subject parcels of land and the recovery of
possession thereof on the basis of the alleged deed of
donation inter vivos, is necessarily more than that required
in Civil Case No. 15298, which involves only the annulment
of the Deeds of Absolute Sale in favor of Pastor Cayabyab
and the corresponding TCTs covering the First and Second
Parcels. Furthermore, the decision in Civil Case No. 15298
necessarily turned only upon whether the Deeds of
Absolute Sale were fictitious or simulated, while that in
Civil Case No. 15937 will also have to include a
determination of the good or bad faith of the subsequent
purchasers. Res judicata, therefore, does not apply.
Nonetheless, the trial court and the Court of
Appeals should have applied the doctrine of conclusiveness
of judgment. In Calalang v. Register of Deeds of Quezon
City,31 the concept of conclusiveness of judgment was
explained, thus:
xxx conclusiveness of judgmentstates
that a fact or question which was in issue in a
former suit and there was judicially passed upon
and determined by a court of competent
jurisdiction, is conclusively settled by the judgment
therein as far as the parties to that action and
persons in privity with them are concerned and
cannot be again litigated in any future action
between such parties or their privies, in the same
court or any other court of concurrent jurisdiction
on either the same or different cause of action,
while the judgment remains unreversed by proper
authority. It has been held that in order that a
judgment in one action can be conclusive as to a
particular matter in another action between the
same parties or their privies, it is essential that the
issue be identical. If a particular point or question
is in issue in the second action, and the judgment
will depend on the determination of that particular
point or question, a former judgment between the
same parties or their privies will be final and
conclusive in the second if that same point or
Ateneo de Davao University College of Law
question was in issue and adjudicated in the first
suit. Identity of cause of action is not required but
merely identity of issues.32
Under the doctrine of conclusiveness of judgment,
the final decision in Civil Case No. 15298 declaring null and
void the Deeds of Absolute Sale in favor of Pastor Cayabyab
and the corresponding TCTs covering the subject parcels of
land precluded the Court of Appeals from further
adjudicating on the validity of the said deeds and titles.
The appellate courts pronouncement that "the
decision in Civil Case No. 15298 which declares null and
void the deeds of absolute sale dated May 13, 1965 and
March 20, 1976 and the corresponding TCT is not
conclusive upon the action in Civil Case No. 15937"33 is,
therefore, flawed.
It is likewise utterly erroneous for the appellate
court to have disregarded the final judgment in Civil Case
No. 15298 declaring null and void the Deeds of Absolute
Sale in favor of Pastor Cayabyab and the corresponding
TCTs covering the two parcels of land. It is axiomatic that
decisions which have long become final and executory
cannot be annulled by courts and the appellate court is
deprived of jurisdiction to alter the trial courts final
judgment.
SPOUSES LEY VS. UNION BANK
April 4, 2007
The doctrine of res judicata provides that a final
judgment on the merits rendered by a court of competent
jurisdiction is conclusive as to the rights of the parties and
their privies and constitutes an absolute bar to subsequent
actions involving the same claim, demand, or cause of
action.36
For res judicata to serve as an absolute bar to a
subsequent action, the following requisites must concur:
(1) the former judgment or order must be final; (2) the
judgment or order must be on the merits; (3) it must have
been rendered by a court having jurisdiction over the
subject matter and parties; and (4) there must be between
the first and second actions, identity of parties, of subject
matter, and of causes of action.37
The present action of the spouses Ley is not barred
by res judicata since the previous and the present cases
involve different subject matters and causes of action. A
cause of action is the act or omission by which a party
violates a right of another.38 The subject matter, on the
other hand, is the item with respect to which the
controversy has arisen, or concerning which the wrong has
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 Civil Procedure | Atty. Catherine M. Guerzo-Barrion (2016-2017)
been done, and it is ordinarily the right, the thing, or the
contract under dispute.39
The subject matter in the Makati case is the
collection of a sum of money which had already become
due and demandable under the loan transaction between
UBP and LCDC whereas the subject matter of the present
case, which originated from the Tagaytay case, is the
recovery of title to the Tagaytay property owned by the
spouses Ley which had been allegedly withheld without
justification by UBP. The Makati case arose from a credit
line agreement between LCDC and UBPs predecessor-in-
interest, to which the spouses Ley were sureties, while the
Tagaytay case had its roots in the real estate mortgage
constituted by the spouses Ley on their Tagaytay property
as security for a loan secured by Azkon Refrigeration
Industries, Inc. from International Corporate Bank.
There is no similarity of causes of action between
the two cases either. While in the Makati case, the cause of
action lies in the failure of the borrower to pay the loan on
due date, the cause of action in the Tagaytay case
stemmed from the alleged refusal of UBP as the surviving
corporation in a merger with the original mortgagee bank
to release the title to the mortgaged property to the
spouses Ley despite payment of the mortgage debt.
What might have spawned the confusion is the fact
that the Tagaytay property, the title to which was sought
to be recovered by the spouses Ley in the Tagaytay case, is
the same Tagaytay property which was levied and sold on
execution in the Makati case. True, but the property is not
the subject of the Makati case; it is the loan transaction
between the spouses Ley and LCDC, on one hand, and UBP,
on the other. The property was the subject of the
proceedings on execution to satisfy the judgment in the
Makati case. Being the subject of execution is not the same
as being the subject of the main case itself.
While it is true that a certificate of sale on the
Tagaytay property was already issued in favor of UBP, the
one year period of redemption had not yet expired when
the complaint for recovery of title was filed by the spouses
Ley. It is only upon the expiration of the redemption
period, without the judgment debtor having made use of
his right of redemption, does ownership of the land sold
become consolidated in the purchaser.40
Finally, the Court cannot support the appellate
courts contention that the action for recovery of title is
barred by the doctrine of judicial stability or non-
interference in the regular orders of judgments of a co-
equal court on the premise that the levy on the Tagaytay
property in the Makati case was a mere consequence of
Ateneo de Davao University College of Law
the judgment for recovery for a sum of money. The
judgment did not order the sale of the Tagaytay property in
particular as it was not the subject of the litigation therein.
It should be made clear, however, that the central issue in
the Tagaytay case is whether the spouses Ley are entitled
to the physical title, i.e., the Owners Copy of the TCT
covering the Tagaytay property, and that the pendency of
the Tagaytay case does not affect the running of the
redemption period for the Tagaytay property.
PCGG VS. SB
August 14, 2007
Res judicata means a matter adjudged, a thing
judicially acted upon or decided; a thing or matter settled
by judgment.20 The doctrine of res judicata provides that a
final judgment on the merits rendered by a court of
competent jurisdiction is conclusive as to the rights of the
parties and their privies and constitutes an absolute bar to
subsequent actions involving the same claim, demand, or
cause of action.21
For the preclusive effect of res judicata to be
enforced, the following requisites must obtain: (1) The
former judgment or order must be final; (2) It must be a
judgment or order on the merits, that is, it was rendered
after a consideration of the evidence or stipulations
submitted by the parties at the trial of the case; (3) It must
have been rendered by a court having jurisdiction over the
subject matter and the parties; and (4) There must be,
between the first and second actions, identity of parties, of
subject matter and of cause of action. This requisite is
satisfied if the two actions are substantially between the
same parties.22
While the first three elements above are present in
this case, we rule that the fourth element is absent.
Hence, res judicata does not apply to prevent the
Sandiganbayan from proceeding with Civil Case No. 0164.
Absolute identity of parties is not a condition sine
qua non for res judicata to apply, a shared identity of
interest being sufficient to invoke the coverage of the
principle.23 In this regard, petitioners claim that while "the
Philippine government was not an impleaded party
respondent in Switzerland," it is undisputed that "the
interest of the Philippine government is identical to the
interest of the Swiss officials," harping on the fact that the
Swiss officials issued the freeze order on the basis of the
IMAC request.24 However, we fail to see how petitioners
can even claim an interest identical to that of the courts of
Switzerland. Petitioners interest, as reflected in their legal
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mandate, is to recover ill-gotten wealth, wherever the
same may be located.25 The interest of the Swiss court, on
the other hand, is only to settle the issues raised before it,
which include the propriety of the legal assistance
extended by the Swiss authorities to the Philippine
government.
Secondly, a subject matter is the item with respect
to which the controversy has arisen, or concerning which
the wrong has been done, and it is ordinarily the right, the
thing, or the contract under dispute.26 In the case at bar,
the subject matter in the Swiss Federal Court was
described in the 31 May 1989 decision itself as "ruling on
temporary measures (freezing of accounts) and of taking of
evidence (gathering bank information)."27 It was thus
concerned with determining (1) whether "there is a reason
of exclusion as defined in Art. 2 lit. b and [Art. ] 3 par. 1
IRSG28 or an applicable case of Art. 10 Par. 2 IRSG;" 29 (2)
whether legal assistance should be refused on the basis of
Art. 2 lit. a IRSG;30 (3) whether Officeco should be regarded
as a disinterested party owing to the fact that its name was
not included in the list accompanying the IMAC request as
well as in the order of the District Attorney of Zurich; and
(4) whether the grant of legal assistance is proper
considering the actions of Gapud.31 In short, the subject
matter before the Swiss courts was the propriety of the
legal assistance extended to the Philippine government. On
the other hand, the issue in Civil Case No. 0164 is whether
the PCGG may be compelled to officially advise the Swiss
government to exclude or drop from the freeze or
sequestration order the account of Officeco with BTAG and
to release the said account to Officeco. In short, the
subject matter in Civil Case No. 0164 is the propriety of
PCGGs stance regarding Officecos account with BTAG.
In arguing that there is identity of causes of action,
petitioners claim that "the proofs required to sustain a
judgment for [Officeco] in Switzerland is no different from
the proofs that it would offer in the Philippines." We
disagree.
A cause of action is an act or omission of one party
in violation of the legal right of the other.32 Causes of
action are identical when there is an identity in the facts
essential to the maintenance of the two actions, or where
the same evidence will sustain both actions.33 The test
often used in determining whether causes of action are
identical is to ascertain whether the same facts or evidence
would support and establish the former and present causes
of action.34 More significantly, there is identity of causes of
action when the judgment sought will be inconsistent with
the prior judgment.35 In the case at bar, allowing Civil Case
Ateneo de Davao University College of Law
No. 0164 to proceed to its logical conclusion will not result
in any inconsistency with the 31 May 1989 decision of the
Swiss Federal Court. Even if the Sandiganbayan finds for
Officeco, the same will not automatically result in the
lifting of the questioned freeze orders. It will merely serve
as a basis for requiring the PCGG (through the OSG) to
make the appropriate representations with the Swiss
government agencies concerned.
AGUSTIN VS. MARIANO
January 20, 2009
Res judicata applies in the concept of "bar by prior
judgment" if the following requisites concur: (1) the former
judgment or order must be final; (2) the judgment or order
must be on the merits; (3) the decision must have been
rendered by a court having jurisdiction over the subject
matter and the parties; and (4) there must be, between the
first and the second action, identity of parties, of subject
matter and of causes of action.22
In the case before us, the existence of and
compliance with the first three elements is undisputed.
Likewise, there is no issue as to the identity of the parties
in the two actions for ejectment. Hence, the identity of
subject matter and the identity of causes of action
between the first and second ejectment cases are the only
remaining bones of contention in need of our final
determination concerning the issue of res judicata.
As to the subject matter, we find that there is no
identity. The subject matter of an action is "the matter or
thing with respect to which the controversy has arisen,
concerning which the wrong has been done, and this
ordinarily is the property, or the contract and its subject
matter, or the thing in dispute."23 In an unlawful detainer
case, the subject matter is the contract of lease between
the parties while the breach thereof constitutes the suits
cause of action.24 In the present case, the lease contract
subject of the controversy is verbal and on a monthly basis.
In these instances, it is well settled that the lease is one
with a definite period which expires after the last day of
any given thirty-day period.25 Following this reasoning, it
becomes apparent that what exists between the parties is
not just one continuous contract of lease, but a succession
of lease contracts, each spanning a period of one month.
Hence, to be accurate, each action for ejectmenteach
referring to a unique thirty-day period of occupation of
respondents property by the petitionerdeals with a
separate and distinct lease contract corresponding to a
separate and distinct juridical relation between the parties.
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Considering, therefore, that the subject matter of Civil Case
No. 167142-CV is a different contract of lease from the
subject matter of the instant case, it is obvious that there is
no identity of subject matter between the first ejectment
suit and the ejectment suit subject of the present action.
Since there is no identity of subject matter between the
two cases, it is but logical to conclude that there is likewise
no identity of causes of action. A cause of action is the act
or omission by which a party violates the legal right of the
other.26 Here, petitioner argues that there is but one single
cause of action in both ejectment suits as "the alleged acts
of dispossession or unlawful withholding of possessions
were the same delict or wrong that were alleged and
prayed for by the respondents in both complaints for
ejectment."27 Petitioner is mistaken. In the first action for
ejectment, respondents cause of action consists of
petitioners continued possession of the premises in
violation of respondents' legal rights under the provisions
of the amended Rent Control Act, which rights were
deemed included into the lease contract existing at the
time of the filing of the case in May 2000.28 On the other
hand, the cause of action in the second suit only
materialized when petitioner refused to vacate the
premises despite receipt of the notice of termination of
lease sent by respondents on October 10, 2002 and the
expiration of the 30-day grace period given him. From that
moment on, petitioners possession of the leased premises
became unlawful and a new cause of action accrued.
Hence, the cause of action in the present case for
ejectment only arose subsequent to the dismissal of the
first ejectment suit dated January 9, 2002. Therefore, while
the causes of action in the first and second ejectment suits
are similar in that both consist of unlawful possession by
petitioner, they are not identical. Each act of refusal to
vacate by petitionerone in May 2000 and another in
October 2002breached separate and distinct lease
contracts which consequently gave birth to separate and
distinct causes of action. Petitioners contention that there
is but one single cause of action in the two ejectment suits
must perforce fail.
We have previously employed various tests in
determining whether or not there is identity of causes of
action as to warrant the application of the principle of res
judicata. One test of identity is the "absence of
inconsistency test" where it is determined whether the
judgment sought will be inconsistent with the prior
judgment. If no inconsistency is shown, the prior judgment
shall not constitute a bar to subsequent actions.29 In one
case,30 we held that the failure of the petitioner to secure
Ateneo de Davao University College of Law
an injunction to prevent the respondents from entering the
land and gathering nuts is not inconsistent with the
petitioners being adjudged the owner of the land. In
another case,31we found that affirmative relief in a
subsequent action for specific performance and recovery
of ownership and possession with damages against the
petitioner would be inconsistent with a prior judgment
holding the same petitioner the owner of the lot under
litigation.
Applying the same test to the case before us, we
are convinced that a finding in the instant case that the
lease contract has already expired would not be
inconsistent with the finding of lack of cause of action in
the first ejectment case. Petitioner asserts that the
expiration of the lease contract is one of the requisites of
ejectment on the ground of "need of premises," and that
necessarily, the issue of expiration of the lease contract
had already been disposed of in the first ejectment case.
Accordingly, petitioner contends that a decision in favor of
respondents in the instant case would in effect be
inconsistent with the decision rendered in the first
ejectment case. Petitioners contention is bereft of merit.
We reiterate that the subject matter of the first ejectment
suit, on the one hand, and the subject matter of the second
ejectment suit, on the other, are two separate and distinct
contracts of lease. Given these facts, the issue of expiration
of lease contract involved in the first case is different and
far removed from the issue of expiration of the lease
contract subject of the instant case. Logically, any ruling on
the expiration of lease contract in the earlier ejectment
case will never be conclusive on this subsequent case.
Conceding, for the sake of argument, petitioners
premise that the first and second ejectment cases involve
the same lease contract, petitioner's argument still does
not hold water, but even serves to boost respondents
case. It is to be noted that by singling out the issue of the
expiration of the lease contract, petitioner invoked the
application of res judicata in the concept of
"conclusiveness of judgment." Well settled is the rule that
where there is identity of parties in the first and second
cases, but no identity of causes of action, the first
judgment is conclusive only as to those matters actually
and directly controverted and determined and not as to
matters merely involved therein.32 In the first case for
ejectment, it bears stressing that the dismissal of the
complaint only declared that the respondents failed to
comply with the requirements when the ground for
ejectment is personal need of premises. Notably, no
express pronouncement can be found in the decision of the
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MeTC of Manila, Branch 22 as to whether or not the lease
contract subsisting between the parties had already
expired. The decision therefore only directly attests to
respondents lack of cause of action when the ground for
ejectment is personal need of premises, and not to the
particular issue of expiration of the contract of lease
subsisting between the parties. Hence, we cannot sustain
petitioners reliance on the doctrine of conclusiveness of
judgment as regards the expiration of the purportedly
subsisting lease contract.
The more common approach in ascertaining
identity of causes of action is the "same evidence test,"
whereby the following question serves as a sufficient
criterion: "would the same evidence support and establish
both the present and former causes of action?"33 If the
answer is in the affirmative, then the prior judgment is a
bar to the subsequent action; conversely, it is not.
In our view, a simple application of this test to the
facts of the instant case readily reveals that the evidence
necessary to obtain affirmative relief in the present action
for ejectment based on expiration of lease contract is not
the same as that in the first ejectment case based on "need
of premises." At this juncture, we again stress that there is
no identity of subject matter between the previous and
present ejectment suits. This finding necessarily translates
to the utter difference in the pieces of evidence necessary
to prove the causes of action in the two actions.
Aside from the "absence of inconsistency test" and
"same evidence test," we have also ruled that a previous
judgment operates as a bar to a subsequent one when it
had "touched on [a] matter already decided,"34 or if the
parties are in effect "litigating for the same thing."35 Under
these tests, however, petitioners reliance on the
applicability of the principle of res judicata is still for
naught, given that the two cases for ejectment do not
share the same subject matter. We have consistently held
that a judgment in a previous case of ejectment could not
serve as a bar to a subsequent one if the latter is
predicated on a new factual and juridical situation. As a
consequence, even in cases where the dismissal of a suit
brought for the ejectment of the lessee for nonpayment of
rentals for a given period becomes final and executory, the
lessor is still not precluded from making a new demand
upon the tenant to vacate should the latter again fail to
pay the rents due or should another ground for ejectment
arise, in which case such subsequent demand and refusal
of the tenant to vacate shall constitute a new cause of
action.36
Ateneo de Davao University College of Law
Finally, the circumstances of the case at bar are
comparable to those in Siapian v. Court of Appeals, which
likewise involved a monthly verbal contract of lease. We
disposed of the issue of identity of causes of action in the
following manner:
PNB VS. SIA
February 18, 2009
The doctrine of res judicata as enunciated in
Section 47, Rule 39 of the Rules of Court, reads:
SEC. 47. Effect of judgments or final
orders.The effect of a judgment or final order
rendered by a court of the Philippines, having
jurisdiction to pronounce the judgment or final
order, may be as follows:
xxxx
(b) In other cases, the judgment or final
order is, with respect to the matter directly
adjudged or as to any other matter that could have
been raised in relation thereto, conclusive between
the parties and their successors in interest by title
subsequent to the commencement of the action or
special proceeding, litigating for the same thing
and under the same title and in the same capacity;
and
(c) In any other litigation between the
same parties or their successors in interest, that
only is deemed to have been adjudged in a former
judgment or final order which appears upon its
face to have been so adjudged, or which was
actually and necessarily included therein or
necessary thereto.
Res judicata literally means "a matter adjudged; a
thing judicially acted upon or decided; a thing or matter
settled by judgment." Res judicata lays the rule that an
existing final judgment or decree rendered on the merits,
and without fraud or collusion, by a court of competent
jurisdiction, upon any matter within its jurisdiction, is
conclusive of the rights of the parties or their privies, in all
other actions or suits in the same or any other judicial
tribunal of concurrent jurisdiction on the points and
matters in issue in the first suit.34
For the preclusive effect of res judicata to be
enforced, however, the following requisites must be
present: (1) the judgment or order sought to bar the new
action must be final; (2) the decision must have been
rendered by a court having jurisdiction over the subject
matter and the parties; (3) the disposition of the first case
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must be a judgment on the merits; and (4) there must be whom OCT No. 6122 was issued. During the execution
between the first and second action, identity of parties, proceedings, Goldenrod Inc. filed a motion to intervene,
subject matter and causes of action.35 the granting of which by the trial court was challenged in
Orosa. The Court held in Orosa that Goldenrod, Inc.,
DOLLETON VS. FIL-ESTATE despite having acquired the opposing rights of Nicolas
April 7, 2009 Orosa and Jose T. Velasquez to the property sometime in
1987, no longer had any interest in the same as would
Res judicata refers to the rule that a final judgment enable it to intervene in the execution proceedings, since it
or decree on the merits by a court of competent had already sold its interest in February 1989 to the
jurisdiction is conclusive of the rights of the parties or their consortium composed of respondents, Peaksun Enterprises
privies in all later suits on all points and matters and Export Corporation, and Elena Jao.1avvphi1.zw+
determined in the former suit. Res judicata has two The adjudication of the land to respondents
concepts: (1) "bar by prior judgment" as enunciated in Rule predecessors-in-interest in Vda. de Cailles and Orosa is not
39, Section 47 (b) of the Rules of Civil Procedure; and (2) even relevant to petitioners Complaints. According to
"conclusiveness of judgment" in Rule 39, Section 47 (c). petitioners allegations in their Complaints, although the
There is "bar by prior judgment" when, as between subject properties were derived from the 119.8-hectare
the first case where the judgment was rendered, and the parcel of land referred to as Lot 9, Psu-11411, they are not
second case that is sought to be barred, there is identity of included in the 53-hectare portion thereof, specifically
parties, subject matter, and causes of action. But where identified as Lot 9, Psu-11411, Amd-2, subject of Vda. de
there is identity of parties and subject matter in the first Cailles and Orosa. This was the reason why petitioners had
and second cases, but no identity of causes of action, the to cite Vda. de Cailles and Orosa: to distinguish the subject
first judgment is conclusive only as to those matters properties from the land acquired by respondents and the
actually and directly controverted and determined and not other members of the consortium. There clearly being no
as to matters merely involved therein. There is identity of subject matter and of parties, then, the rulings
"conclusiveness of judgment." Under the doctrine of of this Court in Vda. de Cailles and Orosa do not bar by
conclusiveness of judgment, facts and issues actually and prior judgment Civil Cases No. LP-97-0228, No. LP-97-0229,
directly resolved in a former suit cannot again be raised in No. LP-97-0230, No. LP-97-0231, No. LP-97-0236, No. LP-
any future case between the same parties, even if the 97-0237, No. LP-97-0238, and No. LP-97-0239 instituted by
latter suit may involve a different claim or cause of action. petitioners in the RTC.
The identity of causes of action is not required but merely
identity of issues.45 FACURA VS. CA
Vda. de Cailles and Orosa cannot bar the filing of February 16, 2011
petitioners Complaints before the RTC under the doctrine
of conclusiveness of judgment, since they involve entirely The doctrine of res judicata is set forth in Section
different subject matters. In both cases, the subject matter 47 of Rule 39 of the Rules of Court, as follows:
was a parcel of land referred to as Lot 9 Psu-11411 Amd-2, Sec. 47. Effect of judgments or final orders.
while subject matter of the petitioners Complaints are lots - The effect of a judgment or final order rendered
which are not included in the said land. by a court of the Philippines, having jurisdiction to
It follows that the more stringent requirements of pronounce the judgment or final order, may be as
res judicata as "bar by prior judgment" will not apply to follows:
petitioners Complaints. In Vda. de Cailles, the Court xxx
confirmed the ownership of Dominador Mayuga over a 53- (b)In other cases, the judgment or final
hectare parcel of land located in Las Pias, Rizal, more order is, with respect to the matter directly
particularly referred to as Lot 9, Psu-11411, Amd-2. The adjudged or as to any other matter that could have
Court also recognized that Nicolas Orosa was Dominador been raised in relation thereto, conclusive between
Mayugas successor-in-interest. However, the judgment in the parties and their successors in interest by title
said case was not executed because the records of the subsequent to the commencement of the action or
Land Registration Authority revealed that the property had special proceeding, litigating for the same thing
previously been decreed in favor of Jose T. Velasquez, to

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 Civil Procedure | Atty. Catherine M. Guerzo-Barrion (2016-2017)
and under the same title and in the same capacity;
and
(c)In any other litigation between the same
parties or their successors in interest, that only is
deemed to have been adjudged in a former
judgment or final order which appears upon its
face to have been so adjudged, or which actually
and necessarily included therein or necessary
thereto.
The principle of res judicata lays down two main
rules: (1) the judgment or decree of a court of competent
jurisdiction on the merits concludes the litigation between
the parties and their privies and constitutes a bar to a new
action or suit involving the same cause of action either
before the same or any other tribunal; and (2) any right,
fact, or matter in issue directly adjudicated or necessarily
involved in the determination of an action before a
competent court in which a judgment or decree is
rendered on the merits is conclusively settled by the
judgment therein and cannot again be litigated between
the parties and their privies whether or not the claims or
demands, purposes, or subject matters of the two suits are
the same.50 The first rule which corresponds to paragraph
(b) of Section 47 above, is referred to as "bar by former
judgment"; while the second rule, which is embodied in
paragraph (c), is known as "conclusiveness of judgment."51
As what is involved in this case is a proceeding for
the determination of probable cause and an
administrative case, necessarily involving different
causes of action, the applicable principle is
conclusiveness of judgment. The Court in Calalang
v. Register of Deeds of Quezon City52 explained
such, to wit:
The second concept - conclusiveness of
judgment- states that a fact or question which was
in issue in a former suit and was there judicially
passed upon and determined by a court of
competent jurisdiction, is conclusively settled by
the judgment therein as far as the parties to that
action and persons in privity with them are
concerned and cannot be again litigated in any
future action between such parties or their privies,
in the same court or any other court of concurrent
jurisdiction on either the same or different cause of
action, while the judgment remains unreversed by
proper authority. It has been held that in order
that a judgment in one action can be conclusive as
to a particular matter in another action between
the same parties or their privies, it is essential that
Ateneo de Davao University College of Law
the issue be identical. If a particular point or
question is in issue in the second action, and the
judgment will depend on the determination of that
particular point or question, a former judgment
between the same parties or their privies will be
final and conclusive in the second if that same
point or question was in issue and adjudicated in
the first suit (Nabus v. Court of Appeals, 193 SCRA
732 [1991]). Identity of cause of action is not
required but merely identity of issue.
Justice Feliciano, in Smith Bell & Company (Phils.),
Inc. v. Court of Appeals (197 SCRA 201, 210 [1991]),
reiterated Lopez v. Reyes (76 SCRA 179 [1977]) in regard to
the distinction between bar by former judgment which
bars the prosecution of a second action upon the same
claim, demand, or cause of action, and conclusiveness of
judgment which bars the relitigation of particular facts or
issues in another litigation between the same parties on a
different claim or cause of action.
The general rule precluding the relitigation of
material facts or questions which were in issue and
adjudicated in former action are commonly applied to all
matters essentially connected with the subject matter of
the litigation. Thus, it extends to questions necessarily
implied in the final judgment, although no specific finding
may have been made in reference thereto and although
such matters were directly referred to in the pleadings and
were not actually or formally presented. Under this rule, if
the record of the former trial shows that the judgment
could not have been rendered without deciding the
particular matter, it will be considered as having settled
that matter as to all future actions between the parties and
if a judgment necessarily presupposes certain premises,
they are as conclusive as the judgment itself.
Under the principle of conclusiveness of judgment,
when a right or fact has been judicially tried and
determined by a court of competent jurisdiction, or when
an opportunity for such trial has been given, the judgment
of the court, as long as it remains unreversed, should be
conclusive upon the parties and those in privity with them.
Simply put, conclusiveness of judgment bars the
relitigation of particular facts or issues in another litigation
between the same parties on a different claim or cause of
action.53
Although involving different causes of action, this
administrative case and the proceeding for probable cause
are grounded on the same set of facts, involve the same
issue of falsification of official documents, and require the
same quantum of evidence54 substantial evidence, as was
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similarly found in Borlongan, and correctly relied upon by that Zamoranos divorce from De Guzman validly severed
De Jesus. their marriage ties.
ZAMORANOS VS. PEOPLE
June 1, 2011
Section 47, Rule 39 of the Rules of Court provides
for the principle of res judicata. The provision reads:
SEC. 47. Effect of judgments or final orders.
The effect of a judgment or final order rendered
by a court of the Philippines, having jurisdiction to
pronounce the judgment or final order, may be as
follows:
(a) In case of a judgment or final order
against a specific thing, or in respect to the probate
of a will, or the administration of the estate of a
deceased person, or in respect to the personal,
political, or legal condition or status of a particular
person or his relationship to another, the judgment
or final order is conclusive upon the title to the
thing, the will or administration, or the condition,
status or relationship of the person; however, the
probate of a will or granting of letters of
administration shall only be prima facie evidence
of the death of the testator or intestate.
The requisites for res judicata or bar by prior judgment are:
(1) The former judgment or order must be final;
(2) It must be a judgment on the merits;
(3) It must have been rendered by a court having
jurisdiction over the subject matter and the
parties; and
(4) There must be between the first and second
actions, identity of parties, subject matter, and
cause of action.26
The second and fourth elements of res judicata are
not present in this case. Suffice it to state that the
judgment rendered by RTC, Branch 2, Iligan City, was not a
judgment on the merits. The lower court simply dismissed
the petition for declaration of nullity of marriage since it
found that the Sharia Circuit Court had jurisdiction to hear
the dissolution of the marriage of Muslims who wed under
Islamic rites.
Nonetheless, the RTC, Branch 6, Iligan City, which
heard the case for Bigamy, should have taken cognizance
of the categorical declaration of the RTC, Branch 2, Iligan
City, that Zamoranos is a Muslim, whose first marriage to
another Muslim, De Guzman, was valid and recognized
under Islamic law. In fact, the same court further declared
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Section 48. Effect of foreign judgments or final
orders. The effect of a judgment or final order of a
tribunal of a foreign country, having jurisdiction to render
the judgment or final order is as follows:
(a) In case of a judgment or final order upon a
specific thing, the judgment or final order, is conclusive
upon the title to the thing, and
(b) In case of a judgment or final order against a
person, the judgment or final order is presumptive
evidence of a right as between the parties and their
successors in interest by a subsequent title.
In either case, the judgment or final order may be
repelled by evidence of a want of jurisdiction, want of
notice to the party, collusion, fraud, or clear mistake of law
or fact. (50a)
MIJARES VS. JUDGE RANADA
April 12, 2005
Thus, respondent judge was in clear and serious
error when he concluded that the filing fees should be
computed on the basis of the schematic table of Section
7(a), as the action involved pertains to a claim against an
estate based on judgment. What provision, if any, then
should apply in determining the filing fees for an action to
enforce a foreign judgment?
To resolve this question, a proper understanding is
required on the nature and effects of a foreign judgment in
this jurisdiction.
The rules of comity, utility and convenience of
nations have established a usage among civilized states by
which final judgments of foreign courts of competent
jurisdiction are reciprocally respected and rendered
efficacious under certain conditions that may vary in
different countries.17 This principle was prominently
affirmed in the leading American case of Hilton v.
Guyot18 and expressly recognized in our jurisprudence
beginning with Ingenholl v. Walter E. Olsen & Co.19 The
conditions required by the Philippines for recognition and
enforcement of a foreign judgment were originally
contained in Section 311 of the Code of Civil Procedure,
which was taken from the California Code of Civil
Procedure which, in turn, was derived from the California
Act of March 11, 1872.20Remarkably, the procedural rule
now outlined in Section 48, Rule 39 of the Rules of Civil
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Procedure has remained unchanged down to the last word
in nearly a century.
There is an evident distinction between a foreign
judgment in an action in rem and one in personam. For an
action in rem, the foreign judgment is deemed conclusive
upon the title to the thing, while in an
action inpersonam, the foreign judgment is presumptive,
and not conclusive, of a right as between the parties and
their successors in interest by a subsequent
title.21 However, in both cases, the foreign judgment is
susceptible to impeachment in our local courts on the
grounds of want of jurisdiction or notice to the
party,22 collusion, fraud,23or clear mistake of law or
fact.24 Thus, the party aggrieved by the foreign judgment is
entitled to defend against the enforcement of such
decision in the local forum. It is essential that there should
be an opportunity to challenge the foreign judgment, in
order for the court in this jurisdiction to properly
determine its efficacy.25
It is clear then that it is usually necessary for an
action to be filed in order to enforce a foreign judgment26,
even if such judgment has conclusive effect as in the case
of in rem actions, if only for the purpose of allowing the
losing party an opportunity to challenge the foreign
judgment, and in order for the court to properly determine
its efficacy.27 Consequently, the party attacking a foreign
judgment has the burden of overcoming the presumption
of its validity.28
The rules are silent as to what initiatory procedure
must be undertaken in order to enforce a foreign judgment
in the Philippines. But there is no question that the filing of
a civil complaint is an appropriate measure for such
purpose. A civil action is one by which a party sues another
for the enforcement or protection of a right,29 and clearly
an action to enforce a foreign judgment is in essence a
vindication of a right prescinding either from a "conclusive
judgment upon title" or the "presumptive evidence of a
right."30 Absent perhaps a statutory grant of jurisdiction to
a quasi-judicial body, the claim for enforcement of
judgment must be brought before the regular courts.31
There are distinctions, nuanced but discernible,
between the cause of action arising from the enforcement
of a foreign judgment, and that arising from the facts or
allegations that occasioned the foreign judgment. They
may pertain to the same set of facts, but there is an
essential difference in the right-duty correlatives that are
sought to be vindicated. For example, in a complaint for
damages against a tortfeasor, the cause of action emanates
from the violation of the right of the complainant through
Ateneo de Davao University College of Law
the act or omission of the respondent. On the other hand,
in a complaint for the enforcement of a foreign judgment
awarding damages from the same tortfeasor, for the
violation of the same right through the same manner of
action, the cause of action derives not from the tortious act
but from the foreign judgment itself.
More importantly, the matters for proof are
different. Using the above example, the complainant will
have to establish before the court the tortious act or
omission committed by the tortfeasor, who in turn is
allowed to rebut these factual allegations or prove
extenuating circumstances. Extensive litigation is thus
conducted on the facts, and from there the right to and
amount of damages are assessed. On the other hand, in an
action to enforce a foreign judgment, the matter left for
proof is the foreign judgment itself, and not the facts from
which it prescinds.
As stated in Section 48, Rule 39, the actionable
issues are generally restricted to a review of jurisdiction of
the foreign court, the service of personal notice, collusion,
fraud, or mistake of fact or law. The limitations on review
is in consonance with a strong and pervasive policy in all
legal systems to limit repetitive litigation on claims and
issues.32 Otherwise known as the policy of preclusion, it
seeks to protect party expectations resulting from previous
litigation, to safeguard against the harassment of
defendants, to insure that the task of courts not be
increased by never-ending litigation of the same disputes,
and in a larger sense to promote what Lord Coke in
the Ferrer's Case of 1599 stated to be the goal of all law:
"rest and quietness."33 If every judgment of a foreign court
were reviewable on the merits, the plaintiff would be
forced back on his/her original cause of action, rendering
immaterial the previously concluded litigation.34
Petitioners appreciate this distinction, and rely
upon it to support the proposition that the subject matter
of the complaintthe enforcement of a foreign
judgmentis incapable of pecuniary estimation.
Admittedly the proposition, as it applies in this case, is
counter-intuitive, and thus deserves strict scrutiny. For in
all practical intents and purposes, the matter at hand is
capable of pecuniary estimation, down to the last cent. In
the assailed Order, the respondent judge pounced upon
this point without equivocation:
The Rules use the term "where the value of
the subject matter cannot be estimated." The
subject matter of the present case is the judgment
rendered by the foreign court ordering defendant
to pay plaintiffs definite sums of money, as and for
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compensatory damages. The Court finds that the
value of the foreign judgment can be estimated;
indeed, it can even be easily determined. The Court
is not minded to distinguish between the
enforcement of a judgment and the amount of said
judgment, and separate the two, for purposes of
determining the correct filing fees. Similarly, a
plaintiff suing on promissory note for P1 million
cannot be allowed to pay only P400 filing fees (sic),
on the reasoning that the subject matter of his suit
is not the P1 million, but the enforcement of the
promissory note, and that the value of such
"enforcement" cannot be estimated.35
An examination of Section 19(6), B.P. 129 reveals
that the instant complaint for enforcement of a foreign
judgment, even if capable of pecuniary estimation, would
fall under the jurisdiction of the Regional Trial Courts, thus
negating the fears of the petitioners. Indeed, an
examination of the provision indicates that it can be relied
upon as jurisdictional basis with respect to actions for
enforcement of foreign judgments, provided that no other
court or office is vested jurisdiction over such complaint:
Sec. 19. Jurisdiction in civil cases.
Regional Trial Courts shall exercise exclusive
original jurisdiction:
xxx
(6) In all cases not within the exclusive
jurisdiction of any court, tribunal, person or body
exercising jurisdiction or any court, tribunal, person
or body exercising judicial or quasi-judicial
functions.
QUASHA VS. CA
December 4, 2009
However, as regards the second issue of whether
the Special Sixth Division of the Court of Appeals gravely
abused its discretion in considering that the Orders of the
Hong Kong Court appointing liquidators for petitioner LIRL
involved enforcement and recognition of a foreign
judgment, we hold that the same is already barred by the
principle of res judicataconclusiveness of judgment.
The doctrine of res judicata actually embraces two
different concepts: (1) bar by former judgment and (b)
conclusiveness of judgment.1avvphi1
The second concept conclusiveness of judgment
states that a fact or question, which was in issue in a
former suit and was there judicially passed upon and
determined by a court of competent jurisdiction, is
Ateneo de Davao University College of Law
conclusively settled by the judgment therein as far as the
parties to that action and persons in privity with them are
concerned and cannot be again litigated in any future
action between such parties or their privies in the same
court or any other court of concurrent jurisdiction on
either the same or a different cause of action, while the
judgment remains unreversed by proper authority. It has
been held that in order that a judgment in one action can
be conclusive as to a particular matter in another action
between the same parties or their privies, it is essential
that the issue be identical. If a particular point or question
is in issue in the second action, and the judgment will
depend on the determination of that particular point or
question, a former judgment between the same parties or
their privies will be final and conclusive in the second if
that same point or question was in issue and adjudicated in
the first suit. Identity of cause of action is not required,
but merely identity of issues.13
Legarda v. Savellano14 elucidates the rationale for
respecting the conclusiveness of judgment, thus
As we have repeatedly enunciated, public
policy and sound practice enshrine the
fundamental principle upon which the doctrine of
res judicata rests that parties ought not to be
permitted to litigate the same issues more than
once. It is a general rule common to all civilized
system of jurisprudence, that the solemn and
deliberate sentence of the law, pronounced by its
appointed organs, upon a disputed fact or a state
of facts, should be regarded as a final and
conclusive determination of the question litigated,
and should forever set the controversy at rest.
Indeed, it has been well said that this maxim is
more than a mere rule of law; more even than an
important principle of public policy; and that it is
not too much to say that it is a fundamental
concept in the organization of every jural sytem.
Public policy and sound practice demand that, at
the risk of occasional errors, judgments of courts
should become final at some definite date fixed by
law. The very object for which courts were
constituted was to put an end to controversies.
It must be stressed that the Decision dated 14
December 2007 in CA-G.R. SP No. 96717 of the Special
Tenth Division of the Court of Appeals was appealed to
this Court via a Petition for Review on Certiorari under
Rule 45 and was docketed as G.R No. 184463. The said
Decision resolved the issue of petitioner LIRLs proper legal
representation in favor of petitioner Quasha Law Office. It
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also ruled that there was no enforcement of a foreign
judgment when one of the appointed liquidators
terminated the legal services of private respondent Picazo
Law Office and engaged in its stead petitioner Quasha Law
Office to be the duly authorized counsel of petitioner LIRL.
What is involved is the prerogative of petitioner LIRL,
through its duly authorized representative -- which, in this
case, is its appointed liquidators -- to terminate and engage
the services of a counsel, which is an internal affair that
requires no prior recognition in a separate action.15 On 20
October 2008, this Court issued a Resolution denying the
said Petition for Review for being filed out of time and for
failure to sufficiently show any reversible error. Thus, the
14 December 2007 Decision of the Special Tenth Division of
the Court of Appeals in CA-G.R. SP No. 96717 became final
and executory.
In a related case filed before the Seventh Division
of the Court of Appeals docketed as CA-G.R. SP No.
98893,16 petitioner LIRLs proper legal representation and
Quasha Law Offices entry of appearance as tantamount to
an enforcement of a foreign judgment, were also raised.
On 26 February 2009, the said division of the Court of
Appeals rendered a Decision stating that no enforcement
of a foreign judgment was involved in the said case. It
further decreed that petitioner LIRLs appointed liquidators
had been duly authorized to manage petitioner LIRL. The
authority of the said liquidators extended to all of
petitioner LIRLs branches, wherever situated, the branch
in the Philippines included. Pursuant to 9 June 2006 Orders
of the Hong Kong Court, the appointed liquidators were
given the power to, among other powers, "bring or defend
any action or other legal proceeding in the name and on
behalf of the company or themselves in Hong Kong, the
Republic of the Philippines or attorneys in the Republic of
the Philippines or elsewhere and appoint a solicitor in Hong
Kong and lawyers or assist the Liquidators in the
performance of their duties generally." No cogent reason
existed to prevent petitioner LIRL from exercising its
prerogative in terminating the services of one counsel and
in engaging the services of another. Such act was purely an
internal affair of the corporation, which did not require
prior recognition in a separate action.17
The aforesaid Decision of the Seventh Division of
the Court of Appeals was appealed to this Court via a
Petition for Review on Certiorari under Rule 45 of the
1997 Revised Rules of Civil Procedure, docketed as G.R.
No. 189265. On 12 October 2009, this Court rendered a
Resolution denying the Petition for late filing, for failure
to serve a copy of the Petition to the Court of Appeals, for
Ateneo de Davao University College of Law
lack of the required number of plain copies of the
Petition, and for failure to sufficiently show any reversible
error. Thus, the Decision dated 26 February 2009 of the
Seventh Division of the Court of Appeals in CA-G.R. SP No.
98893 became final and executory.
It has already been settled in the aforesaid two
Decisions that the Orders of the Hong Kong Court
appointing liquidators for petitioner LIRL did not involve
the enforcement of a foreign judgment. The act of
terminating the legal services of private respondent Picazo
Law Office and engaging in its place petitioner Quasha Law
Office was a mere exercise of petitioner LIRLs prerogative,
through its appointed liquidators, which was an internal
affair that required no prior recognition in a separate
action. Therefore, this Court can no longer pass upon the
said issue.
CORPUS VS. STO TOMAS
August 11, 2010
We qualify our above conclusion i.e., that the
second paragraph of Article 26 of the Family Code bestows
no rights in favor of aliens with the complementary
statement that this conclusion is not sufficient basis to
dismiss Gerberts petition before the RTC. In other words,
the unavailability of the second paragraph of Article 26 of
the Family Code to aliens does not necessarily strip Gerbert
of legal interest to petition the RTC for the recognition of
his foreign divorce decree. The foreign divorce decree
itself, after its authenticity and conformity with the aliens
national law have been duly proven according to our rules
of evidence, serves as a presumptive evidence of right in
favor of Gerbert, pursuant to Section 48, Rule 39 of the
Rules of Court which provides for the effect of foreign
judgments.
To our mind, direct involvement or being the
subject of the foreign judgment is sufficient to clothe a
party with the requisite interest to institute an action
before our courts for the recognition of the foreign
judgment. In a divorce situation, we have declared, no less,
that the divorce obtained by an alien abroad may be
recognized in the Philippines, provided the divorce is valid
according to his or her national law.27
The starting point in any recognition of a foreign
divorce judgment is the acknowledgment that our courts
do not take judicial notice of foreign judgments and laws.
Justice Herrera explained that, as a rule, "no sovereign is
bound to give effect within its dominion to a judgment
rendered by a tribunal of another country."28 This means
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that the foreign judgment and its authenticity must be the substantive rule that the second paragraph of Article
proven as facts under our rules on evidence, together with 26 of the Family Code provides.
the aliens applicable national law to show the effect of the
judgment on the alien himself or herself.29 The recognition
may be made in an action instituted specifically for the
purpose or in another action where a party invokes the
foreign decree as an integral aspect of his claim or defense.
In Gerberts case, since both the foreign divorce
decree and the national law of the alien, recognizing his or
her capacity to obtain a divorce, purport to be official acts
of a sovereign authority, Section 24, Rule 132 of the Rules
of Court comes into play. This Section requires proof,
either by (1) official publications or (2) copies attested by
the officer having legal custody of the documents. If the
copies of official records are not kept in the Philippines,
these must be (a) accompanied by a certificate issued by
the proper diplomatic or consular officer in the Philippine
foreign service stationed in the foreign country in which
the record is kept and (b) authenticated by the seal of his
office.
The records show that Gerbert attached to his
petition a copy of the divorce decree, as well as the
required certificates proving its authenticity,30 but failed to
include a copy of the Canadian law on divorce.31 Under this
situation, we can, at this point, simply dismiss the petition
for insufficiency of supporting evidence, unless we deem it
more appropriate to remand the case to the RTC to
determine whether the divorce decree is consistent with
the Canadian divorce law.
We deem it more appropriate to take this latter
course of action, given the Article 26 interests that will be
served and the Filipina wifes (Daisylyns) obvious
conformity with the petition. A remand, at the same time,
will allow other interested parties to oppose the foreign
judgment and overcome a petitioners presumptive
evidence of a right by proving want of jurisdiction, want of
notice to a party, collusion, fraud, or clear mistake of law or
fact. Needless to state, every precaution must be taken to
ensure conformity with our laws before a recognition is
made, as the foreign judgment, once recognized, shall have
the effect of res judicata32 between the parties, as provided
in Section 48, Rule 39 of the Rules of Court.33
In fact, more than the principle of comity that is
served by the practice of reciprocal recognition of foreign
judgments between nations, the res judicata effect of the
foreign judgments of divorce serves as the deeper basis for
extending judicial recognition and for considering the alien
spouse bound by its terms. This same effect, as discussed
above, will not obtain for the Filipino spouse were it not for

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