XLIII. RULE 39: SECS.
15 – 30 In the case at bar, petitioner filed an independent action for the
NOVERNIA P. NAGUIT vs. CA, OSLER U.
PADUA and NORBERTO B. MAGSAJO
G.R. No. 137675 December 5, 2000
QUICK SUMMARY:
RTC ruled that petitioner’s husband is liable for violation of BP
22. In view of this, petitioner’s property was levied upon and was
sold to respondents. Petitioner filed for the annulment of sale
against the respondents before the RTC on the ground that the
property levied upon and sold to private respondent is her
exclusive property. RTC denied petitioner's prayer. The CA
upheld the trial court's decision. SC ruled that the court issuing
the writ of execution may enforce its authority only over
properties of the judgment debtor. If the sheriff levies upon the
assets of a third person in which the judgment debtor has no
interest, then he is acting beyond the limits of his authority.
Facts:
In a decision rendered on 15 October 1991, the Regional Trial
Court (RTC) of Makati, Branch 133, found Rolando Naguit liable
for violation of BP 22, and ordered him to indemnify private
respondent Osler U. Padua. A writ of execution was issued by
said court and pursuant thereto, respondent Sheriff Norberto B.
Magsajo levied upon a condominium unit. Consequently, the
property was sold at a public auction in favor of private
respondent, as the highest bidder. The certificate of sale was
issued in the name of private respondent
Petitioner filed a complaint with the RTC of Makati against
private respondent Padua and respondent Sheriff Magsajo for
the annulment of sale and for damages, with a prayer for the
issuance of a writ of preliminary injunction in order to enjoin the
final conveyance of title over the condominium unit to private
respondent. Petitioner claimed that the debt contracted by her
husband did not redound to the benefit of the family, nor was it
made with her consent, and therefore, should not be charged to
the conjugal partnership of gains or to her exclusive property;
that the condominium unit levied upon and sold to private
respondent is her exclusive property, not the judgment obligor's;
and that consequently, the levy and sale of the condominium
unit are void.
RTC of Makati denied petitioner's prayer for the issuance of
preliminary injunction, explaining that if plaintiff believes that
there were irregularities in the auction sale of the property
subject of this case which is claimed to be owned by the
petitioner, the problems should have been threshed out before
the RTC Makati, Branch 133, which court authorized the levy on
execution of judgment of property of plaintiff in this case.
Besides, the petitioner should have elevated the matter to the
higher tribunal, and seek proper injunctive relief, and not to refer
to this Court which does not exercise an appellate authority over
the court that issued the aforesaid writ of execution.
The trial court issued an order denying petitioner's motion for
reconsideration and dismissing the case on the ground of lack
of jurisdiction. The CA upheld the trial court's decision to dismiss
the case. In its decision, the appellate court explained that since
petitioner is the spouse of the judgment debtor she cannot be
considered a stranger to the case. Hence, the present petition.
Issue: Whether petitioner is deemed a stranger to the action
wherein the writ of execution was issued and is therefore
justified in bringing an independent action
Ruling: Yes.
annulment of the certificate of sale issued in favor of private
respondent, contending that the property levied upon and sold
to private respondent by virtue of the writ of execution issued in
Criminal Case No. 90-2645 was her exclusive property, not that
of the judgment obligor. Pursuant to our ruling in Sy v. Discaya,
petitioner is deemed a stranger to the action wherein the writ of
execution was issued and is therefore justified in bringing an
independent action to vindicate her right of ownership over the
subject property.
Contrary to the stand taken by the trial court, the filing of such
an independent action cannot be considered an encroachment
upon the jurisdiction of a co-equal and coordinate court. The
court issuing the writ of execution may enforce its authority only
over properties of the judgment debtor; thus, the sheriff acts
properly only when he subjects to execution property undeniably
belonging to the judgment debtor. If the sheriff levies upon the
assets of a third person in which the judgment debtor has no
interest, then he is acting beyond the limits of his authority and
is amenable to control and correction by a court of competent
jurisdiction in a separate and independent action. This is in
consonance with the well-established principle that no man shall
be affected by any proceeding to which he is a stranger.
Execution of a judgment can only be issued against a party to
the action, and not against one who has not yet had his day in
court.
MATILDE S. PALICTE vs. HON. RAMOLETE and MARCELO
SOTTO, Administrator
G.R. No. L-55076 September 21, 1987
QUICK SUMMARY:
Certain properties administered by respondent administrator
were levied upon. Within the period for redemption, petitioner
redeemed from the purchaser 4 lots. Subsequently, petitioner
filed a motion with respondent Judge for the transfer to her name
of the titles to the 4 parcels of land. This was opposed by
respondent administrator on the ground that petitioner is not one
of those authorized to redeem. The lower court held that
petitioner does not qualify as a successor-in-interest who may
redeem the real properties sold. However, SC ruled that the
petitioner, as a legitimate heir, legitimate heir, qualifies as a
successor-in- interest.
Facts:
A sale at public auction was held pursuant to a writ of execution
issued by the respondent judge in the case of Pilar Teves, et al.
vs Marcelo Sotto, Administrator, for the satisfaction of judgment
in the amount of P725,270.00.
Certain properties belonging to the late Don Filemon Sotto and
administered by respondent Marcelo Sotto were levied upon.
Some of the properties were awarded to Pilar Teves. The
residential house situated on a government lot at Lahug, Cebu
City, was awarded to lone bidder Asuncion Villarante.
Within the period for redemption, petitioner Matilde S. Palicte,
as one of the heirs of the late Don Filemon Sotto, redeemed from
purchaser Pilar Teves, 4 lots.
A deed of redemption was issued for these lots. Subsequently,
petitioner Palicte filed a motion with respondent Judge Ramolete
for the transfer to her name of the titles to the 4 parcels of land
covered by the deed of redemption.
This motion was opposed by the plaintiffs in Civil Case entitled
"Pilar Teves, et al. vs Marcelo Sotto, administrator" on the
ground that movant, Palicte, is not one of those authorized to
redeem under the provisions of the Rules of Court.
The lower court held that although Palicte is one of the declared
heirs, she does not qualify as a successor-in-interest who may
redeem the real properties sold. It ruled that the deed of
redemption is null and void. The motion of Palicte was denied.
Hence, the present petition.
Issue: Whether or not petitioner Palicte may validly exercise the
right of redemption under Sec. 29, Rule 39 of the Rules of Court.
Ruling: Yes.
Sec. 29 of Rule 39 provides:
SEC. 29. 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 debtor, or his successor in
interest in the whole or any part of the
property;
(b) A creditor having a lien by attachment,
judgment or mortgage on the property sold, or
on some part thereof, subsequent to the
judgment under which the property was sold.
Such redeeming creditor is termed a
redemptioner.
Under Subsection (a), property sold subject to redemption may
be redeemed by the judgment debtor or his successor-in-
interest in the whole or any part of the property. Does Matilde
Palicte fall within the term "successor-in-interest"? In the case at
bar, petitioner Palicte is the daughter of the late Don Filemon
Sotto whose estate was levied upon on execution to satisfy the
money judgment against it. She is one of the declared heirs in
Special Proceeding No. 2706-R. As a legitimate heir, she
qualifies as a successor-in- interest.
The lower court, therefore, erred in considering the person of the
administrator as the judgment debtor and as the only
"successor-in-interest." The estate of the deceased is the
judgment debtor and the heirs who will eventually acquire that
estate should not be prohibited from doing their share in its
preservation.
Although petitioner Palicte validly redeemed the properties, her
motion to transfer the titles of the four (4) parcels of land covered
by the Deed of Redemption from registration in the name of
Filemon Sotto to her name cannot prosper at this time.
Otherwise, to allow such transfer of title would amount to a
distribution of the estate.
ALFARO FORTUNADO, et al. v. CA and NATIONAL STEEL
CORPORATION
G.R. No. 78556. April 25, 1991
QUICK SUMMARY:
Respondent purchased a lot which was previously levied upon
by the sheriff. The said lot was not yet registered in respondent’s
name. The lots were sold at a public auction to the petitioner.
Hence, respondent filed with the trial court an urgent motion to
redeem the lots and later on issued a check to the sheriff to
cover the redemption price. The petitioner rejected the check
because it was not legal tender and was not intended for
payment but merely for deposit. SC ruled that a check may be
used for the exercise of the right of redemption, the same being
a right and not an obligation. However, although respondents
properly exercised their right or redemption, they remain liable
of course, for the payment of the redemption price.
Facts:
RTC of Quezon City 2 rendered judgment in Civil Case entitled
"Alfaro Fortunado v. Angel Bautista," ordering the defendant to
pay damages to the plaintiff. Pursuant to the said judgment,
respondent Basilisa Campano, City Sheriff, levied upon two
parcels of land registered in the name of Bautista. The latter lot
had already been purchased by respondent National Steel
Corporation, but had not yet been registered in its name.
After due notice, these lots were sold at public auction to the
petitioners as the only bidder. They were issued a certificate of
sale which was registered on April 25, 1984.
Subsequently, NSC filed with the trial court an urgent motion to
redeem both lots. This was opposed by the petitioners on the
ground that the movant did not have the personality to
intervene.
As the motion remained unresolved and the period of
redemption would expire on April 18, 1985, NSC issued to the
sheriff PNB Check which was sufficient to cover the full
redemption price for both lots.The sheriff acknowledged receipt
of the check as redemption money for the two parcels and
issued a certificate of redemption in favor of NSC and Bautista.
Bautista wrote the sheriff that he would no longer effect the
redemption because there was nothing to redeem, the auction
sale being null and void.
The sheriff wired the petitioners’ counsel, notifying him of the
deposit of the PNB check. The said counsel told the sheriff that
he was rejecting the check because it was not legal tender and
was not intended for payment but merely for deposit.
Petitioner requested the sheriff to issue a final deed of sale
over the two lots and deliver the same to them on the ground
that no valid redemption had been effected within the 12-month
period from the registration of the sale. When the request was
not granted, the petitioners filed with the respondent court a
petition for mandamus. The respondent court denied
mandamus but granted injunction to restrain the registration of
the certificate of redemption in favor of NSC and Bautista.
Aggrieved, the petitioners moved for partial reconsideration.
While their motion was pending, NSC filed a Manifestation
informing the respondent court that the certificate of
redemption had already been registered and TCT No. T-27154
had been issued in its favor.
The respondent court denied the petitioners’ motion for
reconsideration. Hence, this appeal by certiorari.
Issue: Whether or not redemption had been validly effected by
the private respondents.
Ruling: Yes.
Although the private respondents in the case at bar did not file
a redemption case against petitioners, it should be noted that
private respondents NSC filed an Urgent Motion for
Redemption dated February 11, 1985, and Bautista filed an
Urgent Motion (To Deposit Redemption Money with Quezon
City Clerk of Court) dated March 27, 1985. The motions were
well within the redemption period.
In the United States, it has also been held and recognized that
a payment by check or draft or bank bills or currency which is
not legal tender is effective if the officer accepts such payment.
If in good faith the redemptioner pays, and the officer receives
before the expiration of the time of redemption, an ordinary
banker’s check, the payment is regarded as sufficient.
We find nothing wrong with Bautista’s letter of March 21, 1985,
where he made his redemption of the lot covered by TCT No.
T-7625 subject to the reservation that "the same shall not be
taken to mean my acknowledgment of the validity of the
aforesaid writ of execution and sale . . . nor . . . as waiver on
my part of any of the legal rights and remedies available to me
under the circumstances." Had he not done so, estoppel might
have operated against him. As we held in Cometa v. IAC, 15
"redemption is an implied admission of the regularity of the
sale and would stop the petitioner from later impugning its
validity on that ground." In questioning the writ of execution
and sale and at the same time redeeming his property,
Bautista was exercising alternative reliefs.
In Javellana, it was contended that the position of Luis Mirasol
as a litigant in the prior appeal was inconsistent with his
position as litigant in the redemption case and that he was
estopped from now claiming as redemptioner the property
which he had earlier claimed as owner. The Court held:
We are unable to see any force in the suggestions; as the
positions occupied by this litigant are based upon alternative
rather than upon opposed pretension. No one can question the
right of a litigant to claim property as owner and to seek in the
same proceeding alternative relief founded upon some
secondary right. The right of redemption, for instance, is
always considered compatible with ownership, and one who
fails to obtain relief in the sense of absolute owner may
successfully assert the other right. That which a litigant may do
in any one case can of course be done in two different
proceedings.
We are not, by this decision, sanctioning the use of a check for
the payment of obligations over the objection of the creditor.
What we are saying is that a check may be used for the
exercise of the right of redemption, the same being a right and
not an obligation. The tender of a check is sufficient to compel
redemption but is not in itself a payment that relieves the
redemptioner from his liability to pay the redemption price. In
other words, while we hold that the private respondents
properly exercised their right or redemption, they remain liable
of course, for the payment of the redemption price.
VICENTA P. TOLENTINO and JOSE TOLENTINO vs.
CA, BPI, CONSUELO B. DE LA CRUZ, et al.
G.R. Nos. L-50405-06 August 5, 1981
QUICK SUMMARY:
A parcel of land was sold by the respondent de la Cruz to the
petitioner. The petitioner mortgaged the said land to BPI.
Subsequently, the respondent de la Cruz filed an action with the
CFI against the petitioner for the repurchase of the land which
was granted. Thereafter, the lower court issued a writ of
possession in favor of the respondent de la Cruz. Petitoner filed
a Motion to Quash the writ of possession but it was denied.
Aggrieved, the petitioner filed before the respondent CA a
petition for certiorari which was also denied. Later, petitioner
simultaneously consigned a crossed check with the City Sheriff
and filed a redemption case against BPI. CA ruled that the
consignation made by the petitioner was not valid. SC ruled
otherwise stating that under the last sentence of Section 31,
Rule 39 of the Rules of Court, it is expressly provided that the
tender of the redemption money may be made to the Sheriff who
made the sale. And the redemption is not rendered invalid by
the fact that the said officer accepted a check for the amount
necessary to make the redemption instead of requiring payment
in money.
Facts:
Ceferino de la Cruz died leaving as his only heirs his widow,
Consuelo de la Cruz, and their children (hereinafter referred to
as the De la Cruzes). At the time of his demise, Ceferino left a
parcel of land (homestead land). In a deed of sale executed by
the De la Cruzes, the homestead land was sold to the spouses
Jose Tolentino and Vicenta Tolentino (hereinafter referred to as
the Tolentinos). The Tolentinos took immediate possession of
the homestead land and caused the issuance of T.C.T. No. T-
11135 in their names.
The Tolentinos constituted a first mortgage over the homestead
land, together with two other parcels of land covered in favor of
BPI. Another mortgage was constituted over the said properties
in 1964 in favor of PBC. The Tolentinos failed to pay their
mortgage indebtedness to the BPI upon maturity in the judicial
foreclosure sale that followed, conducted by the City Sheriff of
Davao, BPI was the sole and highest bidder.
Meanwhile, the De la Cruzes filed an action with the CFI of
Davao against the Tolentinos for the repurchase of the
homestead land, on the ground that they had tried to repurchase
said land extrajudicially for several times already but that the
Tolentinos would not heed their request, thus constraining the
De la Cruzes to file a court action for the repurchase thereof.
The Tolentinos filed a Motion to Dismiss the repurchase case on
the ground that the complaint states no cause of action, but said
motion was denied by the lower court.
Upon a manifestation filed by the De la Cruzes, the lower court
issued an Order declaring the Tolentinos as "having no
standing" in the proceedings therein, to which the latter filed a
motion for its reconsideration. This motion, as well as their
second Motion for Reconsideration, was denied by the lower
court.
Subsequently, the lower court rendered a decision allowing the
De la Cruzes to repurchase the homestead land. Upon payment
by the De la Cruzes of the amount representing the repurchase
price to the BPI, the latter executed a deed of conveyance over
the homestead land. On motion, the lower court issued a writ of
possession in favor of the De la Cruzes.
The Tolentinos filed a Motion to Quash the writ of possession
alleging as principal grounds therefor the absence of service on
their counsel of a copy of the writ of possession, as well as the
decision of the lower court declaring the De la Cruzes entitled to
repurchase the homestead land. The lower court denied the
Motion to Quash. A motion for reconsideration was likewise
denied by the lower court.
Aggrieved, the Tolentinos filed before the respondent CA a
petition for certiorari. This petition was denied by the respondent
court. In the meantime, petitioner Vicente Tolentino went to BPI
Davao Branch, offering to redeem the homestead property for
P16,000 covered by a check. Upon being informed that she can
no longer redeem the same for the reason that it was already
conveyed to the De la Cruzes, Vicente left the office of the
manager. Vicente later on consigned with the Office of the City
Sheriff of Davao a crossed PNB check drawn against the PNB
Kidapawan Branch, allegedly for the redemption of the 3 lots,
including the homestead land. The following day, however, upon
advice of their counsel, Vicente issued a stop-payment order
against the said crossed check purportedly to protect her rights
and to prevent BPI cashing said check without returning all the
properties which BPI had foreclosed and purchased.
Simultaneously with the consignation of the crossed check with
the City Sheriff of Davao, the Tolentinos filed a complaint
(redemption case) against BPI, with the Davao CFI for the
redemption of their properties, which were foreclosed by and
sold to BPI. BPI seasonably filed an answer with counterclaim
for exemplary damages in the sum of P5,000 and attorney's fees
in the sum of P4,000 plus costs. The trial court rendered its
decision dismissing the complaint of the Tolentinos. From that
decision, both the Tolentinos and BPI appealed to the
respondent Court of Appeals,
In a consolidated decision, the respondent Court of Appeals
held, among others, that consignation by crossed check does
not satisfy the requirements set forth in Article 1249 of the New
Civil Code governing the payment of debts in money.
The Tolentinos filed a Motion for Reconsideration in CA. This
Motion for Reconsideration was denied by the respondent court
for lack of merit. Hence, the instant petition for review.
Issue: Whether or not the tender of payment and consignation
made by the Tolentinos before the City Sheriff of Davao were
valid
Ruling: Yes.
When the action to redeem was filed, a simultaneous deposit of
the redemption money was tendered to the Sheriff and under
the last sentence of Section 31, Rule 39 of the Rules of Court, it
is expressly provided that the tender of the redemption money
may be made to the Sheriff who made the sale. And the
redemption is not rendered invalid by the fact that the said officer
accepted a check for the amount necessary to make the
redemption instead of requiring payment in money. It goes
without saying that if he had seen fit to do so, the officer could
have required payment to be made in lawful money, and he
undoubtedly, in accepting a check, placed himself in a position
where he could be liable to the purchaser at the public auction if
any damage had been suffered by the latter as a result of the
medium in which payment was made. But this cannot affect the
validity of the payment. The check as a medium of payment in
commercial transactions is too firmly established by usage to
permit of any doubt upon this point at the present day. No
importance may thus be attached to the circumstance that a
stop-payment order was issued against said check the day
following the deposit, for the same will not militate against the
right of the Tolentinos to redeem, in the same manner that a
withdrawal of the redemption money being deposited cannot be
deemed to have forfeited the right to redeem, such redemption
being optional and not compulsory.
MA. FE BACOS vs. DOMINGO ARCEGA
G.R. No. 152343 January 18, 2008
QUICK SUMMARY:
An illegal dismissal case was ruled in favour of respondent.
Upon failure of his employer to pay, sewing machines were
levied upon by the sheriff. Petitioner, filed with the NLRC a
notice of third party claim, alleging that the levied machines were
previously sold to her. LA and NLRC dismissed petitioner’s claim
on the ground that the Deed of Absolute Sale presented by
petitioner is spurious. Petitioner then filed with the CA a petition
for certiorari. The CA rendered its Decision dismissing the
petition, holding that herein petitioner had not succeeded in
substantiating her claim. Petitioner argued that the Rules merely
require the third-party claimant to submit an affidavit of title to
the property, the Rule does not require that her title of ownership
be produced. SC affirmed CA’s ruling and stated that the
circumstances supporting the third-party claimant’s ownership
or possession of the levied properties must be specified.
Facts:
Domingo Arcega, respondent, filed with the Labor Arbiter a
complaint for illegal dismissal against Viabel International
Garments, Inc. (Viabel) and/or Marlon Viado. The Labor Arbiter
rendered a Decision in favor of respondent.
Due to the failure of Viabel and/or Marlon Viado to appeal to the
NLRC, the Labor Arbiter’s Decision became final and
executory. Upon respondent’s motion, a writ of execution was
issued. The sheriff of the NLRC levied 28 sewing machines
belonging to Viabel and/or Marlon Viado and scheduled their
sale at a public auction.
Maria Fe Bacos, petitioner, filed with the NLRC a notice of third
party claim, alleging that the levied machines were previously
sold to her by Marlon Viado. The respondent filed an opposition
to petitioner’s third- party claim contending that it is frivolous and
spurious.
The Labor Arbiter Barcelona dismissed the third-party claim on
the ground that the Deed of Absolute Sale appears to be
spurious. On appeal by petitioner, the NLRC dismissed the
same. In another Resolution, the NLRC denied petitioners
motion for reconsideration.
Petitioner then filed with the CA a petition for certiorari. The CA
rendered its Decision dismissing the petition, holding that herein
petitioner had not succeeded in substantiating her claim that the
levied properties were sold to her.
Forthwith, petitioner filed a motion for reconsideration, but it was
denied by the appellate court. Hence, the present petition.
Petitioner contends inter alia that the CA erred in dismissing the
petition, claiming that Section 16, Rule 39 of the 1997 Rules of
Civil Procedure, merely requires the third-party claimant to
submit an affidavit of his title to the property. The Rule does not
require that her title of ownership be produced.
Issue: Whether the circumstances supporting the third-party
claimant’s ownership or possession of the levied properties
must be specified.
Ruling: Yes.
The petition lacks merit.

Section 16, Rule 39 of the 1997 Rules of Civil
Procedure, as amended, 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.
lifted or discharged. However, should the third
party claim be found to be without factual or
legal basis, the sheriff must proceed with the
execution of the property levied upon as if no
third party claim has been filed.
It is thus clear that a third-party claim must be supported by an
affidavit stating the claimant’s title to, or right to possession of
the property, and the grounds therefor. In other words, a mere
affidavit will not suffice. The circumstances supporting the third-
party claimant’s ownership or possession of the levied
properties must be specified.
Here, both the Labor Arbiter and the NLRC found that the Deed
of Absolute Sale involving the sewing machines between
petitioner and Marlon Viado is spurious. Likewise, the Court of
Appeals found that no copy of the said document is on file with
the Clerk of Court. The appellate court aptly held that the
absence of such document is itself a badge of fraud and
simulation that could make any court suspicious and wary of
imputing any legitimacy and validity to the same, and actually
militates against its use as basis for petitioners claim.

Corollarily, Sections 2 and 3, Rule VI of the NLRC Manual of

Instructions for Sheriffs provide:

Section 2. Proceedings. If property levied upon

be claimed by any person other than the losing
party or his agent, such person shall make an
affidavit of his title thereto or right to the
possession thereof, stating the grounds of
such right or title and shall file the same with
the sheriff and copies thereof served upon the
Labor Arbiter or proper officer issuing the writ
and upon the prevailing party. Upon receipt of
the third-party claim, all proceedings with
respect to the execution of the property subject
of the third-party claim shall automatically be
suspended and the Labor Arbiter or proper
officer issuing the writ shall conduct a hearing
with due notice to all parties concerned
and resolve the validity of the claim within ten
(10) working days from receipt thereof and his
decision is appealable to the
Commission within ten (10) working days from
notice,
and the Commission shall likewise resolve the
appeal within the same period.

Section 3. Resolution of the Third-Party Claim,

Effect. In the event the third party claim is
declared to be valid, the sheriff shall
immediately release the property to the third
party claimant, his agent or representative and
the levy on execution shall immediately be