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We also agree with the OCA that it was error for respondent to refuse to issue the writ of execution of the decision of the Court of Appeals in CA G.R. CV No. 31820 which awarded conditional right of possession to complainant. His refusal to issue said writ is without sufficient justification. The issuance of a writ of execution is a ministerial duty on the part of the court, after a judgment becomes final and executory, and leaves no room for the exercise of discretion.6 [Toledo-Banaga v. Court of Appeals, 302 SCRA 331, 343 (1999)] In this case, the decision of the Court of Appeals concerning complainant’s right of possession over the property subject of the litigation in the RTC became final and executory on March 13, 1995. Respondent was duty bound to grant complainant’s petition filed on December 6, 1995, for the issuance of the writ.

Justice Quisumbing, Second Division, Lumapas v. Judge Tamin [A.M. No. RTJ-99-1519. June 27, 2000]


At any rate, pursuant to Section 21 of the Revised Rules of Summary Procedure, the decision of the RTC affirming the decision of the MTCC has become immediately executory, without prejudice to the appeal before the Court of Appeals. The said Section repealed Section 10 of the Rules of Court allowing during the pendency of the appeal with the Court of Appeals a stay of execution of the RTC judgment with respect to the restoration of possession where the defendant makes a periodic deposit of rentals. Thus, immediate execution of the judgment becomes a ministerial duty of the court. No new writ of execution was, however, issued. Nevertheless, the writ of demolition thereafter issued was sufficient to constitute a writ of execution, as it substantially complied with the form and contents of a writ of execution as provided for under Section 8 of Rule 39 of the Rules of Court. Moreover, private respondents were duly notified and heard on the omnibus motion for the issuance of the writ of demolition and were given five days to remove their houses.14 [Rubio v. MTCC, Branch 4, Cagayan de Oro City, 252 SCRA 172, 181-182 [1996].]

Invoking Legaspi v. Avendaño,15 [Supra note 7.] the Court of Appeals held that there was an equitable reason to suspend the enforcement of the writ of execution and order of demolition until after the final determination of the civil case for the nullification of the Extrajudicial Partition with Deed of Absolute Sale.

In Legaspi, this Court held:

Where the action ... is one of illegal detainer ... and the right of the plaintiff to recover the premises is seriously placed in issue in a proper judicial proceeding, it is more equitable and just and less productive of confusion and disturbance of physical possession, with all its concomitant inconvenience and expense [f]or the court in which the issue of legal possession, whether involving ownership or not, is brought to restrain, should a petition for preliminary injunction be filed with it, the effects of any order or decision in the unlawful detainer case in order to await the final judgment in the more substantive case involving legal possession or ownership.

In the instant case, private respondents’ petition for review with prayer for the immediate issuance of a temporary restraining order (TRO) or preliminary injunction was mailed on 2 August 1994 but was received by the Court of Appeals only on 30 August 1994. Meanwhile, on 3 August 1994, the writ of demolition was implemented, resulting in the demolition of private respondents’ houses. Hence, any relevant issue arising from the issuance or enforcement of the writ had been rendered moot and academic. Injunction would not lie anymore, as the acts sought to have been enjoined had already become a fait accompli or an accomplished or consummated act.

CJ Davide, First Division, Aznar Brothers Realty Company v. CA et al [G.R. No. 128102. March 7, 2000]


To be sure, private respondent cannot validly seek to obtain satisfaction of the writ of execution in this case. Precisely, garnishment proceedings are the means by which the judgment creditor seeks to subject to his claim the property of the judgment debtor in the hands of a third person; such proceedings must be had in the trial court which has jurisdiction over the suit in which the judgment creditor prevailed.19 [See Cebu International Finance Corporation v. Court of Appeals, G.R. No. 123031, October 12, 1999.] Rule 39 of the 1964 Rules of Court provides the procedure in cases wherein the writ of execution is returned unsatisfied, viz.:

SEC. 38. Examination of judgment debtor when execution returned unsatisfied. ¾ When an execution issued in accordance with law against property of a judgment debtor, or anyone of several debtors in the same judgment, is returned unsatisfied, in whole or in part, the judgment creditor, at any time after such return is made, shall be entitled to an order from the judge of the Court of First Instance of the province in which the judgment was rendered or of the province from which the execution was returned, requiring such judgment debtor to appear and answer concerning his property and income before such judge of the Court of First Instance, or before a commissioner appointed by him, at a specified time and place; and proceedings may thereupon be had for the application of the property and income of the judgment debtor toward the satisfaction of the judgment. But no judgment debtor shall be so required to appear before a judge of first instance or commissioner outside the province in which such debtor resides or is found.

SEC. 39. Examination of debtor of judgment debtor. ¾ 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.

Justice Mendoza, Second Division, Philippine Transmarine Carriers, Inc. Eusebio, Gallardo and Arreza, Jr., v. Ca and Julie Song[G.R. No. 122346. February 18, 2000]


A writ of execution must conform to the judgment to be executed; it may not vary the terms of the judgment it seeks to enforce. Nor may it go beyond the terms of the judgment sought to be executed. Where the execution is not in harmony with the judgment which gives it life, and in fact exceeds it, it has pro tanto no validity. To maintain otherwise would be to ignore the constitutional provision against depriving a person of his property without due process of law.1 [Matuguina Integrated Wood Products, Inc. v. Court of Appeals, G.R. No. 98310, 24 October 1996, 263 SCRA 491.]

Adjudication of ownership necessarily includes delivery of possession. Indeed, it would be defeating the ends of justice should we require that for the parties to obtain possession of the property duly adjudged to be theirs from those who have no right to remain therein, they must submit to court litigations anew.2 [Perez v. Evite, No. L-16003, 29 March 1961, 1 SCRA 953.] An exception however exists where the actual possessor has shown a valid right over the property enforceable even against the owner thereof.3 [Id., p. 952.]

Obviously, we have no choice but to deny the petition. Section 49 (c) of Rule 39 (now Sec. 47 (c) of Rule 39) of the Rules of Court provides:

Sec. 49. Effect of judgments. - The effect of a judgment or final order rendered by a court or judge of the Philippines, having jurisdiction to pronounce the judgment or order, may be as follows:

x x x x

(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 which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto. 

From the aforestated, it is clear that a judgment is not confined to what appears on the face of the decision, but also to those necessarily included therein or necessary thereto.5 [See Note 2.] Thus although the dispositive portion of the decision of the Court of Appeals in CA-GR CV No. 12856 provides -

WHEREFORE, judgment is hereby rendered REVERSING the Decision appealed from and another is hereby rendered as follows:

1. The "Deed of Absolute Sale of Registered Land" (Exhibit "B") and Transfer Certificate of Title No. 118276 (Exhibit "F") under the name of the appellees are hereby declared null and void;

2. The Register of Deeds is hereby ordered to restore Transfer Certificate of Title No. 51798 under the name of the appellant.6 [CA Decision, p. 5; Rollo, p. 52.]

it is clear that the same resulted from the adjudication of ownership over the disputed lot which is necessarily included in the discussion. Thus, as explained by the Court of Appeals -

In sum, then, Lot 504-A-3 covered by Transfer Certificate of Title No. 51798 was owned by the appellant in her own right as vendee and not appellee's share in the estate of their deceased father. Consequently, appellee's claim that the appellant executed the "Deed of Absolute Sale" (Exhibit "B") for the purpose of conveying to the appellee the latter's share in the estate of their deceased father is utterly bereft of factual basis x x x

Evidently, the decision of the Court of Appeals required no writ of possession as the writ of execution would suffice to place Natividad in possession of Lot 504-A-3. A case in point is Perez v. Evite 7 [See Note 2.] wherein the lower court declared Evite as owner of the disputed land. When the judgment became final and executory, Evite moved for the issuance of a writ of execution which the trial court granted. Perez moved to quash the writ arguing that the writ was at variance with the decision as the decision sought to be executed merely declared Evite owner of the property and did not order its delivery to him. Perez argued citing the cases of Jabon v. Alo 8 [91 Phil. 753 (1952).] and Talens v. Garcia 9 [87 Phil. 175 (1950).] which held that adjudication of ownership of the land did not include possession thereof. In resolving in favor of Evite this Court held -

x x x Considering that herein plaintiff-appellants have no other claim to possession of the property apart from their claim of ownership which was rejected by the lower court and, consequently, has no right to remain thereon after such ownership was adjudged to defendant-appellees, the delivery of possession of the land should be considered included in the decision. Indeed, it would be defeating the ends of justice should we require that for herein appellees to obtain possession of the property duly adjudged to be theirs, from those who have no right to remain therein, they must submit to court litigations anew.

In the instant case, spouses Romeo and Eliza could not use Jabon v. Alo and Talens v. Garcia to support their contention that the adjudication of ownership over the land does not necessarily include possession. As already decreed in Perez v. Evite -

It may be observed that in both decisions (Jabon v. Alo and Talens v. Garcia), this Court underscored the possibility that the actual possessor has some rights which must be respected and defined. It is thus evident that the pronouncement was made having in mind cases wherein the actual possessor has a valid right over the property enforceable even against the owner thereof. As example, we gave the cases of tenants and lessees. However, it is our view that that above doctrine may not be invoked in instances where no such right may be appreciated in favor of the possessor. In the instant case there appears in the appealed order of June 30, 1959, the specific finding of the trial court that "the plaintiffs have not given any reason why they are retaining the possession of the property" x x x x This factual finding cannot be reviewed in this instance as the appeal has been taken to us directly on a question of law x x x x

The same ruling would apply in the instant case. The Court of Appeals categorically declared that the claim of spouses Romeo and Eliza over the disputed lot has utterly no factual basis. Therefore, they have no reason to remain in possession of the property.

But the same could not be said of the Naic Cinema. The matter of ownership and possession of the Naic Cinema was never put in issue. Consequently, petitioner cannot ask for a writ of possession to place her in physical occupancy of the Naic Cinema. Being declared owner of subject lot does not also mean that she is automatically entitled to possession of all the improvements therein. Otherwise, the actual possessor would be deprived of his property without due process of law.

Justice Bellosillo, Second Division, NATIVIDAD P. NAZARENO, petitioner, vs. COURT OF APPEALS, HON. NAPOLEON V. DILAG, Presiding Judge, RTC-Cavite, Branch XV, ROMEO P. NAZARENO and ELIZA NAZARENO, respondents. [G.R. No. 131641. February 23, 2000]


For the petition to be granted, it must be shown that the respondent appellate court committed grave abuse of discretion equivalent to lack of jurisdiction and not mere errors of judgment, for certiorari is not a remedy for errors of judgment, which are correctible by appeal. 15 [ Lipana v. Development Bank of Rizal, 154 SCRA 257 [September 24, 1987] citing Vecino v. Geronimo, 59 O.G. 579. Rule 65, Sections 1 and 2.]

The instant petition should be dismissed, there being no grave abuse of discretion on the part of respondent court in denying petitioners' application for preliminary injunction.

To be entitled to the injunctive writ, they must show that there exists a right to be protected which is directly threatened by an act sought to be enjoined. 16 [ Searth Commodities Corporation v. CA, 207 SCRA 628 [March 31, 1992]; Saulog v. CA, G.R. No. 119769, September 18, 1996. Furthermore, there must be a showing that the invasion of the right is material and substantial and that there is an urgent and paramount necessity for the writ to prevent serious damage. 17 [ Syndicated Media Access Corporation v. CA, 219 SCRA 797 [March 11, 1993]. Complainant's right must be clear and unmistakable. In the absence of a clear legal right, the issuance of the writ constitutes grave abuse of discretion. Where the complainant's right or title is doubtful or disputed, injunction is not proper. 18 [ Arcega v. CA, G. R. No. 122206, July 7, 1997 citing Vinzons-Chato v. Natividad, 244 SCRA 787 and China Banking Corporation v. CA, G. R. No. 121158, December 5, 1996.] The possibility of irreparable damage without proof of an actual existing right is not a ground for injunction. 19 [ Ibid. citing Ulang v. CA, 224 SCRA 642.]

In the instant case, the enforcement of the writ of execution, which would evict them from their homes, is manifestly prejudicial to petitioners' interest. However, they possess no clear legal right that merits the protection of the courts through the writ of preliminary injunction. Their right to possess the property in question has been declared inferior or inexistent in relation to the plaintiff in the ejectment case below after a judgment which has become final and executory.

Petitioner' ground for the issuance of the writ of prohibition and/or certiorari before the Court of Appeals is the presence of a supervening event that renders execution unjust or inequitable. Said issue remains unresolved in the main case still pending and does not confirm the existence of a clear right in favor of petitioners. At best, they can obtain the suspension of the enforcement of the writ of execution or other similar relief on equitable grounds. 20 [ When a judgment or order becomes final and executory, the trial court's ministerial duty is to issue a writ of execution to enforce this judgment. A writ of execution may, however, be refused on equitable grounds such as when there is a change in situation of the parties that would make execution inequitable. Likewise, where supervening events occurring subsequent to the judgment bring about a material change in the situation of the parties which makes the execution inequitable or where there is no compelling urgency for the execution because it is not justified by the prevailing circumstances, a stay or preclusion of execution may be properly sought. These are cases of special and exceptional nature where execution may be suspended in the higher interest of justice. Baclayon v. CA, 182 SCRA 761 [February 26, 1990]; Rodriguez v. Project 6 Market Service Cooperative, 247 SCRA 528 [August 23, 1995] citing Luna v. CA, 137 SCRA 7; Heirs of Gumimpin v. CA, 120 SCRA 687; Albar v. Carandang, 6 SCRA 211. Hualam Construction Development Corporation v. CA, 214 SCRA 612 [October 16, 1992] citing Laurel v. Abalos, 163 SCRA 237; Laurel v. Abalos, 30 SCRA 281 [October 31, 1969]; Concurring opinion of Chief Justice, then Associate Justice Andres R. Narvasa in Baclayon v. CA, 182 SCRA 761 [February 26, 1990]; and Ngo Bun Tiong v. Sayo, 163 SCRA 237 [June 30, 1988]; Lipana v. Development Bank of Rizal, 154 SCRA 257 [September 24, 1987] citing Vecino v. Geronimo, 59 O. G. 579.]



It is axiomatic that a mortgagee who effects the extrajudicial foreclosure of the mortgage, is entitled under the law, to a writ of possession over the property foreclosed, it being the ministerial duty of the proper Regional Trial Court to issue said writ upon the mortgagee's ex-parte application, even before the expiration of the period of redemption provided by the law and the Rules of Court. Upon this axiom and the undisputed facts shortly to be narrated, this Court will deny the petition.


The crucial question is whether or not the Quezon City Regional Trial Court had authority to accept and act on SIHI's motion for writ of possession of property in Quezon City which it had acquired at an extrajudicial foreclosure sale, a question to which, as stated in this opinion's opening paragraph, an affirmative answer must be given, in light of applicable legal principle and the undisputed facts. Section 7 of Act 3135 makes clear that in any sale made under its provisions, "the purchaser may petition the Court 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 the Act.  Such petition shall be made under oath and filed in form of an ex-parte motion." A fortiori, after the expiration of the redemption period without redemption having been effected, the writ must issue to place the mortgagee or highest bidder at the mortgage sale in possession of the foreclosed property. Thus, this Court cites with approval, as being in accord with the law and the facts, the relevant conclusions set out by the Intermediate Appellate Court in its challenged decision of September 24, 1985, to wit:

Undoubtedly respondent court has the power and jurisdiction to take cognizance of and grant private respondent's petition for writ of possession, pursuant to the explicit provision of Section 7 of Act 3135, as amended. And there was nothing arbitrary, abusive or despotic in the issuance of the orders of October 28, 1983 and May 31, 1984. Instead of proceeding ex-parte on the matter, the respondent court even gave petitioners a chance to be heard thereon. Only after all the pertinent pleadings were in and the issue amply discussed, did it order the issuance of the writ of possession, to which private respondent is entitled, as purchaser in the foreclosure sale. It was ministerial upon the court to issue the writ in question. In fact, the mortgagee may ask for a writ of possession over the foreclosed property during the period of redemption. In the case of the petitioners, their period of redemption had expired and title to the mortgaged properties was already consolidated in favor of the private respondent to which TCT No. 285806 was issued. The conveyance to it of subject properties vested in private respondent the right to take possession thereof, and it was thus the inescapable duty of the sheriff to place it in such possession.

The pendency of Civil Case No. 136559 for the annulment of the auction sale and/or reformation of the mortgage contract, was of no moment. It was not a sufficient ground for the denial of the petition for writ of possession or even for the suspension of resolution or action thereon.

Worthy of note is that the petitioners do not impugn the validity of the mortgage at its inception. Their assault on it is founded on events allegedly transpiring after its execution. The tenability of their challenge to the mortgage may well be determined in the civil action [No. 136559] instituted by them in the Manila Regional Trial Court.  But clearly, the pendency of that action does not and cannot bar the issuance of a writ of possession to the mortgagee who has, in the meantime, extrajudically foreclosed the mortgaged property and acquired it as highest bidder in the subsequent public auction sale. The law is quite explicit on this point, and the right of the mortgagee thereunder unquestionable. And decisions abound applying the law and declaring it to be the court's ministerial duty to uphold the mortgagee's right to possession even during the redemption period. 4 [See e.g., Barican v. IAC, 162 SCRA 358 [1988].] The petitioners have simply failed to demonstrate with any degree of persuasiveness why the clear provisions of law and the jurisprudence in application thereof should not be equally controlling in the case at bar.

CJ Narvasa, First Division, ROMEO F. VELOSO, DELIA M. VELOSO and GLOBE ENGINEERING CORPORATION, Petitioners vs.  INTERMEDIATE APPELLATE COURT and STATE INVESTMENT HOUSE, INC., Respondents, G. R. No. 73338, January 21, 1992

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