THE CONSOLIDATED BANK AND TRUST CORPORATION (SOLIDBANK),

P e t i t i o n e r,

- versus

DEL MONTE MOTOR WORKS, INC., NARCISO G. MORALES,[1] AND SPOUSE,

R e s p o n d e n t s.

G.R. No. 143338

Present:

PUNO,
Chairman,
AUSTRIA-MARTINEZ,
CALLEJO, SR.,
TINGA, and
CHICO-NAZARIO, JJ.

Promulgated:

July 29, 2005

x--------------------------------------------------x

DECISION

CHICO-NAZARIO, J.:

This is a petition for review on certiorari of the Decision[2] of the Court of Appeals
in CA-G.R. CV No. 16886 entitled, The Consolidated Bank & Trust Corporation
(SOLIDBANK) v. Del Monte Motor Works, Inc., Narciso O. Morales and Spouse
promulgated on 25 November 1999 and of the Resolution of the appellate court
dated 11 May 2000 denying petitioners motion for reconsideration. Said decision
and resolution affirmed the order dated 28 December 1987 of the Regional Trial
Court (RTC), Branch 27, Manila.

The facts of the case are as follows:

On 13 June 1984, petitioner filed before the RTC of Manila a complaint[3] for
recovery of sum of money against respondents, impleading the spouse of
respondent Narciso O. Morales (respondent Morales) in order to bind their
conjugal partnership of gains. Petitioner, a domestic banking and trust
corporation, alleges therein that on 23 April 1982, it extended in favor of
respondents a loan in the amount of One Million Pesos (P1,000,000.00) as
evidenced by a promissory note executed by respondents on the same date.
Under the promissory note, respondents Del Monte Motor Works, Inc. (respondent
corporation) and Morales bound themselves jointly and severally to pay petitioner
the full amount of the loan through twenty-five monthly installments of
P40,000.00 a month with interest pegged at 23% per annum. The note was to be
paid in full by 23 May 1984. As respondents defaulted on their monthly
installments, the full amount of the loan became due and demandable pursuant
to the terms of the promissory note. Petitioner likewise alleges that it made oral
and written demands upon respondents to settle their obligation but
notwithstanding these demands, respondents still failed to pay their
indebtedness which, as of 09 March 1984, stood at P1,332,474.55. Petitioner
attached to its complaint as Annexes A, B, and C, respectively, a photocopy of the
promissory note supposedly executed by respondents, a copy of the demand
letter it sent respondents dated 20 January 1983, and statement of account
pertaining to respondents loan.

On 31 October 1984, petitioner filed an Ex-Parte Motion to Declare the

Defendants in Default which was opposed by the defendants upon the ground
that they were never served with copies of the summons and of petitioners
complaint.

On 23 November 1984, respondent corporation filed before the trial court a

manifestation attaching thereto its answer to petitioners complaint which states
the following:

2- That it denies generally and specifically the allegations contained in

paragraphs 3, 4, 5, 6, 7 and 8 thereof for lack of knowledge and information
sufficient to form a belief as to the truth of the matters therein alleged, the truth
being those alleged in the Special and Affirmative Defenses hereinbelow
contained;

3- ANSWERING FURTHER, and by way of a first special and affirmative defense,

defendant herein states that the promissory note in question is void for want of
valid consideration and/or there was no valuable consideration involved as
defendant herein did not receive any consideration at all;

4- ANSWERING FURTHER, and by way of a second special affirmative defense,

defendant herein alleges that no demand has ever been sent to nor received by
herein defendant and if ever demands were made, denies any liability as averred
therein.

5- ANSWERING FURTHER, and by way of a third special and affirmative defense,

defendant herein avers that the complaint states no cause of action and has no
basis either in fact or in law;

VERIFICATION
I, JEANETTE D. TOLENTINO, of legal age, after having been duly sworn to in
accordance with law, depose and state:

That I am the Controller of Del Monte Motor Works, Inc., one of the defendants in
this case.

That for and in behalf of the defendant corporation, I caused the preparation of
the above-narrated answer.

That I have read the contents thereof and they are true of my own knowledge.

(SGD) JEANNETTE D. TOLENTINO[4]

On 06 December 1984, respondent Morales filed his manifestation together with

his answer wherein he likewise renounced any liability on the promissory note,
thus:

1. He ADMIT[S] paragraphs 1, 2, and 3 of the complaint with a qualification in

paragraph 3 thereof that he has long been separated from his wife and the
system governing their property relations is that of complete separation of
property and not that of conjugal partnership of gain[s];

2. He [DENIES], generally and specifically, the allegations contained in

paragraphs 4, 5, 6, 7, and 8 thereof, for lack of knowledge and information
sufficient to form a belief and as to the truth of the matter therein averred, the
truth being those alleged in the Special And Affirmative Defenses hereinbelow
pleaded;

SPECIAL AND AFFIRMATIVE DEFENSES

4. He has never signed the promissory note attached to the complaint in his
personal and/or individual capacity as such;

5. That the said promissory note is ineffective, unenforceable and void for lack of
valid consideration;

6. That even admitting, argumenti gratia, the validity and execution of the
questioned promissory note, still, defendant herein cannot be bound personally
and individually to the said obligations as banking procedures requires, it being a
standard operating procedure of all known banking institution, that to hold a
borrower jointly and severally liable in his official as well as personal capacity, the
borrower must sign a Suretyship Agreement or at least, a continuing guarranty
with that of the corporation he represent(s) but which in this case is wanting;

7. That transaction/obligation in question did not, in any way, redound/inure to

the benefit of the conjugal partnership of gain, as there is no conjugal partnership
of gain to speak with, defendant having long been separated from his wife and
their property relation is governed by the system of complete separation of
property, and more importantly, he has never signed the said promissory note in
his personal and individual capacity as such;

VERIFICATION

That I, NARCISO MORALES, after having been duly sworn to in accordance with
law, hereby depose and declare that:

I am one of the named defendant[s] in the above-entitled case;

I have cause[d] the preparation of the foregoing Answer upon facts and figures
supplied by me to my retained counsel; have read each and every allegations
contained therein and hereby certify that the same are true and correct of my
own knowledge and information.

(SGD) NARCISO MORALES

Affiant[5]

On 26 December 1984, the trial court denied petitioners motion to declare

respondents in default and admitted their respective answers.[6]

During the trial on the merits of this case, petitioner presented as its sole
witness, Liberato A. Lavarino (Lavarino), then the manager of its Collection
Department. Substantially, Lavarino stated that respondents obtained the loan,
subject of this case, from petitioner and due to respondents failure to pay a single
monthly installment on this loan, petitioner was constrained to send a demand
letter to respondents; that as a result of this demand letter, Jeannette Tolentino
(Tolentino), respondent corporations controller, wrote a letter to petitioner
requesting for some consideration because of the unfavorable business
atmosphere then buffeting their business operation; that Tolentino enclosed to
said letter a check with a face value of P220,020.00 to be discounted by
petitioner with the proceeds being applied as partial payment to their companys
obligation to petitioner; that after receipt of this partial payment, respondents
obligation again became stagnant prompting petitioner to serve respondents with
another demand letter which, unfortunately, was unheeded by respondents.
Lavarino also identified the following exhibits for petitioner: photocopy of the
duplicate original of the promissory note attached to the complaint as Exhibit A;
[7] petitioners 20 January 1983 demand letter marked as Exhibit B;[8] Tolentinos
letter to petitioner dated 10 February 1983 and marked as Exhibit C;[9] and the
09 March 1984 statement of account sent to respondents marked as Exhibit D.
[10]

On 26 September 1985, petitioner made its formal offer of evidence. However, as

the original copy of Exhibit A could no longer be found, petitioner instead sought
the admission of the duplicate original of the promissory note which was
identified and marked as Exhibit E.

The trial court initially admitted into evidence Exhibit E and granted respondents
motion that they be allowed to amend their respective answers to conform with
this new evidence.[11]

On 30 September 1985, respondent corporation filed a manifestation and motion

for reconsideration[12] of the trial courts order admitting into evidence
petitioners Exhibit E. Respondent corporation claims that Exhibit E should not
have been admitted as it was immaterial, irrelevant, was not properly identified
and hearsay evidence. Respondent corporation insists that Exhibit E was not
properly identified by Lavarino who testified that he had nothing to do in the
preparation and execution of petitioners exhibits, one of which was Exhibit E.
Further, as there were markings in Exhibit A which were not contained in Exhibit
E, the latter could not possibly be considered an original copy of Exhibit A. Lastly,
respondent corporation claims that the exhibit in question had no bearing on the
complaint as Lavarino admitted that Exhibit E was not the original of Exhibit A

which was the foundation of the complaint and upon which respondent
corporation based its own answer.

Respondent Morales similarly filed a manifestation with motion to reconsider

order admitting as evidence Exhibit E[13] which, other than insisting that the due
execution and genuineness of the promissory note were not established as far as
he was concerned, essentially raised the same arguments contained in
respondent corporations manifestation with motion for reconsideration referred to
above.

On 06 December 1985, the trial court granted respondents motions for

reconsideration.[14] Petitioner moved for the reconsideration of this order which
was denied by the court a quo on 20 December 1985.[15]

On 26 December 1985, respondents separately filed their motions to dismiss on

the similar ground that with the exclusion of Exhibits A and E, petitioner no longer
possessed any proof of respondents alleged indebtedness.[16]

On 08 April 1986, petitioner filed a motion[17] praying that the presiding judge,
Judge Ricardo D. Diaz, of the court a quo inhibit himself from this case
maintaining that the latter rushed into resolving its motion for reconsideration of
the trial courts order of 06 December 1985 thereby depriving it the opportunity of
presenting proof that the original of Exhibit A was delivered to respondents as
early as 02 April 1983. Such haste on the part of the presiding judge, according
to petitioner, cast doubt on his objectivity and fairness. This motion to inhibit was
denied by the trial court on 06 August 1987.[18]

In an order dated 28 December 1987,[19] the case before the trial court was
dismissed, the dispositive portion of which reads:

WHEREFORE, the instant case against defendants Del Monte Motor Works, Inc.
and Narciso O. Morales and spouse, is hereby DISMISSED, with costs against the
plaintiff.

The trial courts finding was affirmed by the Court of Appeals in the assailed
decision now before us. The dispositive portion of the appellate courts decision
reads:

WHEREFORE, PREMISES CONSIDERED, the decision of the Regional Trial Court,

Manila, Branch 27, dated December 28, 1987 dismissing plaintiff-appellant['s]
complaint is hereby AFFIRMED. Cost against the plaintiff-appellant.[20]

Petitioner thereafter filed a motion for reconsideration dated 14 December 1999

which was denied for lack of merit in a resolution of the Court of Appeals
promulgated on 11 May 2000.[21]

Aggrieved by the appellate courts ruling, petitioner now seeks redress from this
Court imputing the following errors on the Court of Appeals:

THE HONORABLE COURT OF APPEALS GRAVELY ERRED WHEN IT FOUND THAT

PRIVATE RESPONDENTS DENIED THE MATERIAL ALLEGATIONS OF PETITIONER
SOLIDBANKS COMPLAINT, DESPITE THE PRESENCE OF INDUBITABLE FACTS
CLEARLY POINTING TO THE FACT THAT SAID PRIVATE RESPONDENTS ADMITTED
THE GENUINENESS AND DUE EXECUTION OF THE SUBJECT PROMISSORY NOTE.

II

THE HONORABLE COURT OF APPEALS GRAVELY ERRED WHEN IT UPHELD THE

EXCLUSION OF EXHIBIT E, THE SECOND ORIGINAL OF THE PROMISSORY NOTE,
DESPITE THE FACT THAT THE ORIGINAL OF EXHIBIT A (XEROX COPY OF THE
DUPLICATE ORIGINAL OF THE PROMISSORY NOTE) WAS ACTUALLY IN THE
POSSESSION OF PRIVATE RESPONDENTS, THUS WARRANTING THE ADMISSION OF
SECONDARY EVIDENCE.

III

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN NOT HOLDING THAT

THE TRIAL JUDGE SHOULD HAVE INHIBITED HIMSELF FROM TAKING COGNIZANCE
OF AND FROM TRYING AND DECIDING THE INSTANT CASE CONSIDERING HIS
PERCEIVED AND MANIFEST BIAS AND PARTIALITY IN FAVOR OF THE PRIVATE
RESPONDENTS TO THE GRAVE PREJUDICE OF PETITIONER SOLIDBANK.[22]

The petition is meritorious.

In resolving the case against petitioner, the appellate court held that contrary to
petitioners stance, respondents were able to generally and specifically deny
under oath the genuineness and due execution of the promissory note, thus:

There can be no dispute to the fact that the allegations in the answer (Record, p.
20, 26-27), of both defendants, they denied generally and specifically under oath
the genuineness and due execution of the promissory note and by way of special
and affirmative defenses herein states that he (MORALES) never signed the
promissory note attached to the complaint (Exh. A) in his personal and/or
individual capacity. Moreover, what appears in the record (Record, p. 20) was an
admission of paragraphs 1 & 2 but they deny generally and specifically the rest
of the allegations. It would be considered that there is a sufficient compliance of
the requirement of the law for specific denial.[23]

We hold otherwise.

The pertinent portion of the Rules of Court on the matter provides:

SEC. 8. How to contest such documents. When an action or defense is founded

upon a written instrument, copied in or attached to the corresponding pleading
as provided in the preceding section, the genuineness and due execution of the
instrument shall be deemed admitted unless the adverse party, under oath,
specifically denies them and sets forth what he claims to be the facts; but the
requirement of an oath does not apply when the adverse party does not appear

to be a party to the instrument or when compliance with an order for an

inspection of the original instrument is refused.[24]

In the case of Permanent Savings and Loan Bank v. Mariano Velarde,[25] this
Court held that

. . . Respondent also denied any liability on the promissory note as he allegedly

did not receive the amount stated therein, and the loan documents do not
express the true intention of the parties. Respondent reiterated these allegations
in his denial under oath, stating that the promissory note sued upon, assuming
that it exists and bears the genuine signature of herein defendant, the same does
not bind him and that it did not truly express the real intention of the parties as
stated in the defenses

Respondents denials do not constitute an effective specific denial as

contemplated by law. In the early case of Songco vs. Sellner,[26] the Court
expounded on how to deny the genuineness and due execution of an actionable
document, viz.:

. . . This means that the defendant must declare under oath that he did not sign
the document or that it is otherwise false or fabricated. Neither does the
statement of the answer to the effect that the instrument was procured by
fraudulent representation raise any issue as to its genuineness or due execution.
On the contrary such a plea is an admission both of the genuineness and due
execution thereof, since it seeks to avoid the instrument upon a ground not
affecting either.[27]

In this case, both the court a quo and the Court of Appeals erred in ruling that
respondents were able to specifically deny the allegations in petitioners
complaint in the manner specifically required by the rules. In effect, respondents
had, to all intents and purposes, admitted the genuineness and due execution of
the subject promissory note and recognized their obligation to petitioner.

The appellate court likewise sustained the ruling of the trial court that the best
evidence rule or primary evidence must be applied as the purpose of the proof is
to establish the terms of the writing meaning the alleged promissory note as it is

the basis of the recovery of the money allegedly loaned to the defendants
(respondents herein).[28]

The best evidence rule is encapsulated in Rule 130, Section 3, of the Revised
Rules of Civil Procedure which provides:

Sec. 3. Original document must be produced; exceptions. When the subject of

inquiry is the contents of a document, no evidence shall be admissible other than
the original document itself, except in the following cases:

(a) When the original has been lost or destroyed, or cannot be produced in court,
without bad faith on the part of the offeror;

(b) When the original is in the custody or under the control of the party against
whom the evidence is offered, and the latter fails to produce it after reasonable
notice;

(c) When the original consists of numerous accounts or other documents which
cannot be examined in court without great loss of time and the fact sought to be
established from them is only the general result of the whole; and

(d) When the original is a public record in the custody of a public officer or is
recorded in a public office.

The best evidence rule, according to Professor Thayer, first appeared in the year
1699-1700 when in one case involving a goldsmith, Holt, C. J., was quoted as
stating that they should take into consideration the usages of trade and that the
best proof that the nature of the thing will afford is only required.[29] Over the
years, the phrase was used to describe rules which were already existing such as
the rule that the terms of a document must be proved by the production of the
document itself, in preference to evidence about the document; it was also
utilized to designate the hearsay rule or the rule excluding assertions made out
of court and not subject to the rigors of cross-examination; and the phrase was

likewise used to designate the group of rules by which testimony of particular

classes of witnesses was preferred to that of others.[30]

According to McCormick, an authority on the rules of evidence, the only actual

rule that the best evidence phrase denotes today is the rule requiring the
production of the original writing[31] the rationale being:

(1) that precision in presenting to the court the exact words of the writing is of
more than average importance, particularly as respects operative or dispositive
instruments, such as deeds, wills and contracts, since a slight variation in words
may mean a great difference in rights, (2) that there is a substantial hazard of
inaccuracy in the human process of making a copy by handwriting or typewriting,
and (3) as respects oral testimony purporting to give from memory the terms of a
writing, there is a special risk of error, greater than in the case of attempts at
describing other situations generally. In the light of these dangers of
mistransmission, accompanying the use of written copies or of recollection,
largely avoided through proving the terms by presenting the writing itself, the
preference for the original writing is justified.[32]

Bearing in mind that the risk of mistransmission of the contents of a writing is the
justification for the best evidence rule, we declare that this rule finds no
application to this case. It should be noted that respondents never disputed the
terms and conditions of the promissory note thus leaving us to conclude that as
far as the parties herein are concerned, the wording or content of said note is
clear enough and leaves no room for disagreement. In their responsive pleadings,
respondents principal defense rests on the alleged lack of consideration of the
promissory note. In addition, respondent Morales also claims that he did not sign
the note in his personal capacity. These contentions clearly do not question the
precise wording[33] of the promissory note which should have paved the way for
the application of the best evidence rule. It was, therefore, an error for the Court
of Appeals to sustain the decision of the trial court on this point.

Besides, the best evidence rule as stated in our Revised Rules of Civil Procedure
is not absolute. As quoted earlier, the rule accepts of exceptions one of which is
when the original of the subject document is in the possession of the adverse
party. As pointed out by petitioner in its motion to inhibit, had it been given the
opportunity by the court a quo, it would have sufficiently established that the

original of Exhibit A was in the possession of respondents which would have

called into application one of the exceptions to the best evidence rule.

Significantly, and as discussed earlier, respondents failed to deny specifically the

execution of the promissory note. This being the case, there was no need for
petitioner to present the original of the promissory note in question. Their judicial
admission with respect to the genuineness and execution of the promissory note
sufficiently established their liability to petitioner regardless of the fact that
petitioner failed to present the original of said note.[34]

Indeed, when the defendant fails to deny specifically and under oath the due
execution and genuineness of a document copied in a complaint, the plaintiff
need not prove that fact as it is considered admitted by the defendant.[35] In the
case of Asia Banking Corporation v. Walter E. Olsen & Co.,[36] this Court held that

Another error assigned by the appellant is the fact that the lower court took into
consideration the documents attached to the complaint as a part thereof, without
having been expressly introduced in evidence. This was no error. In the answer of
the defendants there was no denial under oath of the authenticity of these
documents. Under Section 103 of the Code of Civil Procedure, the authenticity
and due execution of these documents must, in that case, be deemed admitted.
The effect of this is to relieve the plaintiff from the duty of expressly presenting
such documents as evidence. The court, for the proper decision of the case, may
and should consider, without the introduction of evidence, the facts admitted by
the parties.[37]

Anent petitioners allegation that the presiding judge of the court a quo should
have inhibited himself from this case, we resolve this issue against petitioner.

In order for this Court to sustain a charge of partiality and prejudice brought
against a judge, there must be convincing proof to show that he or she is, indeed,
biased and partial. Bare allegations are not enough. Bias and prejudice are
serious charges which cannot be presumed particularly if weighed against a
judges sacred obligation under his oath of office to administer justice without
respect to person and do equal right to the poor and the rich.[38] There must be
a showing of bias and prejudice stemming from an extrajudicial source resulting

in an opinion in the merits on some basis other than what the judge learned from
his participation in the case.[39]
In this case, as petitioner failed to proffer any evidence indicating that Judge Diaz
was guilty of bias and prejudice, we affirm the Court of Appeals holding that there
was no cogent reason for him to disqualify himself from this case.
Finally, Rule 33, Section 1, of the Revised Rules of Civil Procedure states the rule
on the effect of judgment on demurrer to evidence. It reads:

SECTION 1. Demurrer to evidence.- After the plaintiff has completed the

presentation of his evidence, the defendant may move for dismissal on the
ground that upon the facts and the law the plaintiff has shown no right to relief. If
his motion is denied, he shall have the right to present evidence. If the motion is
granted but on appeal the order of dismissal is reversed he shall be deemed to
have waived the right to present evidence.

A demurrer to evidence abbreviates judicial proceedings, it being an instrument

for the expeditious termination of an action. Caution, however, must be exercised
by the party seeking the dismissal of a case upon this ground as under the rules,
if the movants plea for the dismissal on demurrer to evidence is granted and the
order of dismissal is reversed on appeal, he loses his right to adduce evidence. If
the defendants motion for judgment on demurrer to evidence is granted and the
order is subsequently reversed on appeal, judgment is rendered in favor of the
adverse party because the movant loses his right to present evidence.[40] The
reviewing court cannot remand the case for further proceedings; rather, it should
render judgment on the basis of the evidence presented by the plaintiff.[41]

Under the promissory note executed by respondents in this case, they are
obligated to petitioner in the amount of One Million Pesos, this being the amount
of loan they obtained on 23 April 1982. In addition, they also bound themselves
to pay the 23% interest per annum on the loan; and a penalty charge of 3% per
annum on the amount due until fully paid. Respondents likewise agreed to pay
attorneys fees equivalent to 10% of the total amount due, but in no case less
than P200.00, plus costs of suit with both these amounts bearing a 1% interest
per month until paid. Costs against respondents.
WHEREFORE, premises considered, the Court of Appeals decision dated 25
November 1999 as well as its Resolution of 11 May 2000, affirming the order of
the Regional Trial Court, Manila, Branch 27, dated 28 December 1987, are hereby
REVERSED and SET ASIDE. Respondents are ordered to pay One Million Pesos

(P1,000,000.00) plus 23% interest per annum, penalty charge of 3% interest per
annum, and 10% of the amount due as attorneys fees together with a 1% interest
per month until fully paid. The sum of P220,020.00 which was the value of the
postdated check given

by respondents to petitioner as partial payment should be deducted from the

amount due from respondents.

SO ORDERED
---

G.R. No. L-31048

January 20, 1976

LUCENA MAGALLANES, petitioner,

vs.
HON. UNION KAYANAN, Presiding Judge of Branch IV, CFI, Quezon and the HEIRS
OF ELIGIO MAGALLANES, respondents.
Abelio M. Marte and Clemente T. Alcala for petitioner.
Eufemio E. de Mesa for private respondents.

MARTIN. J.:
The validity of a summary judgment rendered in the Court of First Instance of
Quezon, in Special Proceedings No. 3913, entitled Re: Summary Settlement of the
Estate of Filomena Magallanes, Lucena Magallanes, petitioner, versus Heirs of
Eligio Magallanes, oppositors, is the main issue in this petition for review.
On August 4, 1960, petitioner Lucena Magallanes filed a "Solicitud" praying that
Lot No. 2657 covered by Original Certificate of Title No. 1091 and one-half () of
Lot No. 3465 covered by Original Certificate of Title No. 6447, both of the Register

of Deeds of Tayabas (Quezon) be partitioned and distributed among the heirs of

the deceased Filomena Magallanes.
On October 31, 1961, private respondents, the Heirs of Eligio Magallanes,
namely: Maria San Buenaventura, Godofredo Magallanes and Carmen Magallanes
de Ingente filed their opposition and motion to dismiss the "Solicitud" claiming
title and ownership over the parcels of land in question and raising the issue that
the trial court is devoid of jurisdiction to resolve the issues raised in the
pleadings.
On July 12, 1968, the private respondents filed a petition for summary judgment
on the pleadings praying that their absolute right of ownership over the
properties in question be recognized and confirmed. Petitioner files her opposition
to the petition for summary judgment on the ground that in a summary
settlement of an estate, the Court has no jurisdiction to pass finally and definitely
upon the title or ownership over the properties involved therein; and that
summary judgment is not proper, there being a genuine issue or material
controversy raised by the pleadings of the parties.
On March 21, 1969, the lower court, rendered a summary judgment on the
pleadings submitted by the parties confirming the private respondents' (Heirs of
Eligio Magallanes) absolute and exclusive right of ownership and possession over
the whole of Lot No. 2657 and the one-half undivided portion of Lot No. 3465 and
ordering the Register of Deeds of Quezon Province to cancel the Notice of Lis
Pendens on Original Certificate of Title No. 1091 covering Lot No. 2657.
On April 22, 1969, the petitioner moved for reconsideration of the aforesaid
summary judgment and/or new trial but the lower court on June 19, 1969 denied
the motion for reconsideration for being pro forma and declared its decision
dated March 21, 1969 to be final and executory. Accordingly, a writ of execution
was issued and served upon the petitioner on July 14, 1969. However, even
before said date, petitioner was able to perfect her appeal on June 30, 1969, with
the filing of the notice of appeal, appeal bond and record on appeal.
In her brief, petitioner presses upon the lower court the following errors:
I
THE TRIAL COURT ERRED IN PASSING UPON FINALLY AND DEFINITELY THE TITLE
TO OR OWNERSHIP OF LOT 2657 OF THE LUCENA CADASTRE, COVERED BY
ORIGINAL CERTIFICATE OF TITLE NO. 1091 OF THE REGISTER OF DEEDS OF
TAYABAS AND ONE-HALF () OF LOT NO. 3465 OF THE LUCENA CADASTRE,
COVERED BY CERTIFICATE OF TITLE NO. 6447 OF THE REGISTER OF DEEDS OF

TAYABAS, WHEN IT HAS NO JURISDICTION TO SO ACT, THE PETITIONER HAVING

CONSISTENTLY REFUSED TO SUBMIT THAT ISSUE TO THE JURISDICTION OF THE
TRIAL COURT.
II
THE TRIAL COURT ERRED IN NOT MERELY DETERMINING IN THE DECISION DATED
MARCH 21, 1969 WHETHER OR NOT THE PROPERTIES IN QUESTION SHOULD BE
INCLUDED IN THE INVENTORY ASSUMING THE AFORESAID DECISION RENDERED
THROUGH SUMMARY JUDGMENT WAS PROPER AND REGULAR.
III
THE TRIAL COURT ERRED IN RENDERING THE DECISION DATED MARCH 21, 1969
THROUGH SUMMARY JUDGMENT, WITHOUT TRIAL, WHERE THERE ARE GENUINE
ISSUES AND MATERIAL CONTROVERSY, THE PETITIONER CLAIMING IN HER
PLEADINGS THAT SHE AND HER CO-HEIRS OWN THE REALTIES IN QUEZON BY
INHERITANCE FROM THE DECEASED FILOMENA MAGALLANES WHILE THE
RESPONDENTS CLAIM OWNERSHIP OVER THE AFORESAID REALTIES BY PURCHASE
FROM THE DECEASED FILOMENA MAGALLANES DURING HER LIFETIME.
IV
THE TRIAL COURT ERRED WHEN IT HELD IN ITS ORDER OF JUNE 19, 1969 THAT
THE MOTION FOR RECONSIDERATION DATED APRIL 21, 1969 IS PRO FORMA AND
DID NOT SUSPEND THE RUNNING OF THE PERIOD TO APPEAL.
V
THE TRIAL COURT ERRED IN HOLDING THE DECISION DATED MARCH 21, 1969
FINAL AND EXECUTORY.
VI
THE TRIAL COURT ERRED IN ORDERING THE ISSUANCE OF A WRIT OF EXECUTION
IN THE SAME ORDER OF JUNE 19, 1969.
VII

THE TRIAL COURT ERRED IN ISSUING THE WRIT OF EXECUTION DATED JUNE 19,
1969 WHICH IS VOID AND OF NO EFFECT.
We find merit in the petitioner's argument that the lower court has no jurisdiction
to pass finally and definitely upon the title or ownership of the properties
involved in the summary settlement of the estate of the deceased Filomena
Magallanes instituted by the petitioner. Well established is the doctrine that the
property, whether real or personal, which are alleged to form part of the estate of
a deceased person but claimed by another to be his property by adverse title to
that of the deceased and his estate and not by virtue of any right of inheritance
from ' the deceased, cannot be determined by the probate court. Such questions
must be submitted to the Court of First Instance in the exercise of its general
jurisdiction to try and determine ordinary actions. 1 The probate court may do so
only for the purpose of determining whether or not a given property should be
included in the inventory of the estate of the deceased, but such determination is
not conclusive and is still subject to a final decision in a separate action to be
instituted between the parties. 2 Likewise, the probate court may also determine
questions of title to property if the parties voluntarily submitted to its jurisdiction
and introduced evidence to prove ownership. 3
In the case at bar, the action instituted by the petitioner was not for the purpose
of determining whether or not a given property should be included in the
inventory of the estate of the deceased. The action was for partition and
distribution of the properties left by the deceased. Neither have all of the parties
voluntarily submitted the issue of ownership for resolution by the court. As a
matter of fact the petitioner opposed the petition of private respondents to have
the issue of ownership or title decided in the proceeding for the settlement of the
estate of the deceased. It was therefore erroneous for the lower court to resolve
the question of title or ownership over the properties in said proceeding. It could
only pass upon such a question in the exercise of its general jurisdiction in an
ordinary action.
Petitioner faulted the lower court for rendering summary judgment on the case.
Summary judgment can be availed of where no genuine issue as to any material
fact is raised in the pleadings. 4 Where there is an issue or issues of fact joined
by the parties or where the facts pleaded by the parties are disputed or
contested, neither one of them can pray for a summary judgment to take the
place of a trial. 5 Summary judgment can be rendered only where there are no
questions of fact in issue or where the material allegations of the pleadings are
not disputed.
An examination of the pleadings in this case clearly shows that there is a genuine
issue or material controversy raised therein. Thus, petitioner claims that she and
her co-heirs have the right to inherit the properties in question as they form part

of the estate of Filomena Magallanes. On the other hand, herein private

respondents contend that they acquired the ownership over the said properties
by purchase from Filomena Magallanes during her lifetime. In the face of the
conflicting claims of both petitioner and respondents a factual dispute certainly
arises which can only be properly settled by means of a trial on the merits.
Summary judgment was, therefore, uncalled for in the premises.
Petitioner also assailed the order of the lower court denying her motion for
reconsideration of the summary judgment in question as pro forma. A motion for
new trial or reconsideration on the ground that the judgment is contrary to law,
which does not point out the supposed defects in the judgment is pro forma
Section 2, Rule 37 of the Rules of Court requires the movant for the new trial to
point out the findings of fact or conclusions of law supposed to be insufficiently
borne out by the evidence or contrary to law. 6 A reading of the motion for
reconsideration of the aforesaid summary judgment show's specifically the
conclusions reached by the lower court which are contrary to law, the lack of
jurisdiction on the part of the lower court to resolve the issue of ownership and
possession of properties left by a deceased person in the settlement of his estate
proceeding and the propriety of the rendition of the summary judgment on the
pleadings submitted by the parties. Although the former pleadings of the
petitioner already contained allegations on the question of jurisdiction and the
propriety of the summary judgment, this fact does not make the motion for
reconsideration pro forma because it expressly made reference to what portion of
the lower court's conclusion are contrary to law and to established jurisprudence.
In a case 7 the Supreme Court held that the motion for new trial or
reconsideration cannot be considered as simply pro forma where t not only states
that the decision is contrary to law but also explains in detail relevant facts for
seeking its revocation. Since the motion for reconsideration is not pro forma the
filing of the same on time stopped the running of the period within which to
appeal the decision. It was therefore an error on the part of the lower court to
issue a writ of execution of the decision in question before it has become final
and executory.
Finally, private respondents claim that the trial court erred in approving
petitioner's record on appeal after it had lost jurisdiction over the case. There is
no need to resolve the assigned error. It is elementary that in a petition for
certiorari like the case before Us, the submission of a record on appeal is not
necessary.
WHEREFORE, in view of all the foregoing judgment is hereby rendered:
1.
Declaring the decision of the lower court dated March 21, 1968 and the
writ of execution dated June 19, 1969 null and void; and

2.
Remanding the case to the lower court as a court of general jurisdiction to
settle the title and ownership over the parcels of land in question between
Lucena Magallanes who claims to have inherited the same from Filomena
Magallanes and-the heirs of Eligio Magallanes who claim to have purchased them.
Costs against the private respondents.
SO ORDERED
-------

[G.R. No. 144882. February 04, 2005]

LUISA BRIONES-VASQUEZ, petitioner, vs. COURT OF APPEALS and HEIRS OF MARIA
MENDOZA VDA. DE OCAMPO, respondents.
DECISION
AZCUNA, J.:
This is a petition for certiorari under Rule 65 of the Rules of Civil Procedure,
assailing the Resolution of the Court of Appeals in CA-G.R. CV No. 39025, dated
June 9, 2000, which denied petitioners motion for clarificatory judgment and the
Resolution of the Court of Appeals, dated August 3, 2000, which denied the
motion for reconsideration.
Under an agreement denominated as a pacto de retro sale, Maria Mendoza Vda.
De Ocampo acquired a parcel of land from Luisa Briones. The latter thereunder
reserved the right to repurchase the parcel of land up to December 31, 1970.[1]
Maria Mendoza Vda. De Ocampo passed away on May 27, 1979.[2] On June 14,
1990, Hipolita Ocampo Paulite and Eusebio Mendoza Ocampo, the heirs of Maria
Mendoza Vda. De Ocampo, filed a petition for consolidation of ownership, alleging
that the seller was not able to exercise her privilege to redeem the property on or
before December 31, 1970.[3]
The Regional Trial Court (RTC) of Pili, Camarines Sur, Branch 32 rendered a
Decision[4] on January 30, 1992 as follows:
WHEREFORE, premises considered, judgment is hereby rendered as follows:
1.

declaring that exh. A is a true pacto de retro sale;

2.
declaring that the defendant can still redeem the property within 30 days
from the finality of this judgment, subject to the provisions of Art. 1616 of the
New Civil Code;
3.

No costs.

SO ORDERED.[5]
Plaintiffs therein -- herein private respondents -- appealed the RTC Decision to the
Court of Appeals.[6] On June 29, 1995, the Court of Appeals promulgated a
Decision[7] and disposed of the case in the following manner:
THE FOREGOING CONSIDERED, the contested decision is hereby set aside; and
declaring the 1970 sale with right of repurchase, Exhibit A, as one of an equitable
mortgage.
SO ORDERED.[8]
Respondents filed a motion for reconsideration which the Court of Appeals denied
through a Resolution,[9] dated December 15, 1995. The Court of Appeals
Decision became final and executory and entry of judgment was made on July 17,
1996.[10]
Subsequently, at the RTC, both petitioner and respondents filed their respective
motions for a writ of execution. The RTC issued a writ of execution. However, the
writ was returned unserved per sheriffs return which reads as follows:
Respectfully returned to this Court thru the Clerk of Court VI, RTC, Pili, Camarines
Sur the herein attached original copy of the Writ of Execution issued in the aboveentitled case with the following information, to wit:
That the plaintiffs [herein private respondents] were informed that the writ of
execution was already issued for implementation and that they should pay the
necessary sheriffs and kilometrage fees;
That [one of] the plaintiff[s] came to the Office of the Clerk of Court VI but did not
deposit any amount for the kilometrage fee and for the expenses in the
implementation of the said writ, but instead plaintiff said that he is not interested
to implement such writ;
That the 60-day period within which the said writ should be implemented has
already expired.

WHEREFORE, the original copy of the Writ of Execution is hereby returned

unserved.
Cadlan, Pili, Camarines Sur July 8, 1997
For the Clerk of Court VI and
Ex-Officio Provincial Sheriff
by:
(signed)
EDDIE M. ROSERO
Sheriff IV[11]
Petitioner thereafter filed a motion for an alias writ of execution. This was granted
by the RTC:[12]
ALIAS WRIT OF EXECUTION
T O : THE SHERIFF or any person authorized
to serve process, RTC, Br. 32, Pili, C.s.
THRU : THE CLERK OF COURT VI and EX-OFFICIO
PROVINCIAL SHERIFF
Regional Trial Court
Pili, Camarines Sur
GREETINGS:
WHEREAS, on January 20, 1992, a decision was rendered by this Court, the
dispositive portion of which reads as follows:
WHEREFORE, premises considered, judgment is hereby rendered as follows:
1.

declaring that Exh. A is a true pacto de retro sale;

2.
declaring that the defendant can still redeem the property within 30 days
from the finality of this judgment, subject to the provisions of Art. 1616 of the
New Civil Code.
3.

No costs.

WHEREAS, in an order of this Court dated June 16, 1992, the notice of appeal filed
by counsel for the defendant has been granted and the Clerk of Court V of this
Court transmitted the entire records of the case to the Court of Appeals, Manila;
WHEREAS, on June 29, 1995, a decision was rendered by the Court of Appeals,
Manila, the dispositive portion of which reads as follows:
THE FOREGOING CONSIDERED, the contested decision is hereby set aside; and
declaring the 1970 sale with right of repurchase, Exh. A as one of an equitable
mortgage.
WHEREAS, on March 5, 1997, the Hon. Nilo A. Malanyaon, Presiding Judge of this
Court issued an order granting the issuance of a writ of execution, hereunder
quoted as follows:
It appearing that the decision of the Court of Appeals had become final and
executory, and an entry of final judgment had already been issued by the
Honorable Court of Appeals, let a writ of execution issue.
WHEREAS, on July 10, 1997, Sheriff Eddie M. Rosero submitted his return:
WHEREFORE, the original copy of the Writ of execution is hereby returned
unserved.
WHEREAS, on July 18, 1997, the Hon. Nilo A. Malanyaon issued an Order:
The motion for issuance of alias writ of execution filed by counsel for the
defendant, Atty. Lucille Fe R. Maggay-Principe, is hereby granted.
Consequently, the Clerk of Court of this Court is directed to issue alias writ of
execution.
WHEREFORE, you the Provincial Sheriff of Camarines Sur or his lawful deputy is
hereby commanded to effect the satisfaction of the above-quoted decision of the
Honorable Court of Appeals, Manila. Return this writ to this Court within sixty (60)
days from your receipt hereof.
WITNESS THE HON. NILO A. MALANYAON, Judge of this Court, this 21st day of July,
1997, at Cadlan, Pili, Camarines Sur.

(Sgd.) LALAINE P. MONSERATE

Officer-In-Charge
Legal Researcher II
The Sheriff was unable to effect the satisfaction of the alias writ as stated in the
sheriffs report, which is worded thus:
This is to report on the status of the implementation of the Alias Writ of Execution
issued in the above-entitled case, to wit:
That on August 6, 1997 the plaintiff[s] represented by Sps. Policarpio Paulite and
Hipolita Ocampo and Eusebio M. Ocampo personally received copy of the Alias
Writ of Execution but they refused to sign on the original copy of the said writ,
together with the letter of advise informing them to withdraw at any time the
amount deposited to the Office of the Clerk of Court VI, RTC, Pili, Camarines Sur
by defendant Luisa Briones so that the mortgage may now be deemed released
or cancelled.
That until this time the said plaintiff[s] failed and or did not bother to withdraw
the said amount deposited by defendant Luisa Briones despite letter of advice
and the alias writ of execution having been personally received by them.
Cadlan, Pili, Camarines Sur September 9, 1997.
For the Clerk of Court and
Ex-Officio Sheriff
by:
(signed)
EDDIE M. ROSERO
Sheriff IV[13]
Unable to effect the execution of the Court of Appeals decision, petitioner filed
with the RTC an omnibus motion, dated May 25, 1999, praying:
WHEREFORE, it is respectfully prayed that an order issue:
a) Declaring the equitable mortgage, Exhibit A, discharged;

b) Directing the issuance of a Writ of Possession against the plaintiffs for the
delivery of possession of the land in question to the defendant.[14]
The RTC denied the omnibus motion in an Order dated November 16, 1999, which
states:
Acting on the omnibus motion of plaintiff dated 25 May 1999 and the opposition
thereto of defendant, and considering that the decision of the Court of Appeals
referring the decision of this Court has become final and executory, hence, this
Court can no longer alter, modify or add anything thereto, the prayers set forth in
the omnibus motion is, as it is, hereby denied.
SO ORDERED.[15]
Petitioner filed a motion for reconsideration[16] of the above Order, which was
denied by the RTC in an Order dated February 23, 2000.[17]
Petitioner then filed a motion for clarificatory judgment, dated April 5, 2000, with
the Court of Appeals.[18] The motion was denied in a Resolution, dated June 9,
2000, which reads as follows:
The only issues that reached Us, through an appeal, was whether the 1970 Sale
with Right of Repurchase was actually an equitable mortgage. We ruled, it was,
necessarily there is nothing to clarify.
If it is a matter however whether the prevailing party should be entitled to a right
to repossess the property, then the remedy is not with Us, but with the Court
below.
For lack of merit, the Motion for Clarificatory Judgment is hereby DENIED.
SO ORDERED.[19]
Petitioner filed a motion for reconsideration of the above Resolution. The Court of
Appeals denied the same in a Resolution dated August 3, 2000.[20]
Petitioner now comes to this Court raising the following issues:
PETITIONER SUBMITS THAT THE PUBLIC RESPONDENT ACTED ARBITRARILY, WITH
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION IN ISSUING
THE FOLLOWING RESOLUTIONS:

A) RESOLUTION DATED JUNE 9, 2000, DENYING PETITIONERS MOTION FOR

CLARIFICATORY JUDGMENT.
B) RESOLUTION DATED AUGUST 3, 2000, DENYING PETITIONERS MOTION FOR
RECONSIDERATION.[21]
The sole issue is whether or not the Court of Appeals acted with grave abuse of
discretion amounting to lack of jurisdiction in refusing to grant petitioners motion
for clarificatory judgment.
It must be noted, as narrated above, that the Decision of the Court of Appeals
had already become final and executory at the time that the motion for
clarificatory judgment was filed. With regards to final judgments, this Court has
pronounced that:
nothing is more settled in the law than that when a final judgment becomes
executory, it thereby becomes immutable and unalterable. The judgment may no
longer be modified in any respect, even if the modification is meant to correct
what is perceived to be an erroneous conclusion of fact or law, and regardless of
whether the modification is attempted to be made by the Court rendering it or by
the highest Court of the land. The only recognized exceptions are the correction
of clerical errors or the making of so-called nunc pro tunc entries which cause no
prejudice to any party, and, of course, where the judgment is void.[22]
As a general rule, therefore, final and executory judgments are immutable and
unalterable except under the three exceptions named above: a) clerical errors; b)
nunc pro tunc entries which cause no prejudice to any party; and c) void
judgments.
In the present case, petitioner claims the second exception, i.e., that her motion
for clarificatory judgment is for the purpose of obtaining a nunc pro tunc
amendment of the final and executory Decision of the Court of Appeals.
Nunc pro tunc judgments have been defined and characterized by this Court in
the following manner:
The office of a judgment nunc pro tunc is to record some act of the court done at
a former time which was not then carried into the record, and the power of a
court to make such entries is restricted to placing upon the record evidence of
judicial action which has been actually taken. It may be used to make the record
speak the truth, but not to make it speak what it did not speak but ought to have
spoken. If the court has not rendered a judgment that it might or should have
rendered, or if it has rendered an imperfect or improper judgment, it has no
power to remedy these errors or omissions by ordering the entry nunc pro tunc of
a proper judgment. Hence a court in entering a judgment nunc pro tunc has no
power to construe what the judgment means, but only to enter of record such

judgment as had been formerly rendered, but which had not been entered of
record as rendered. In all cases the exercise of the power to enter judgments
nunc pro tunc presupposes the actual rendition of a judgment, and a mere right
to a judgment will not furnish the basis for such an entry. (15 R. C. L., pp. 622623.)
The object of a judgment nunc pro tunc is not the rendering of a new judgment
and the ascertainment and determination of new rights, but is one placing in
proper form on the record, the judgment that had been previously rendered, to
make it speak the truth, so as to make it show what the judicial action really was,
not to correct judicial errors, such as to render a judgment which the court ought
to have rendered, in place of the one it did erroneously render, nor to supply
nonaction by the court, however erroneous the judgment may have been.
(Wilmerding vs. Corbin Banking Co., 28 South., 640, 641; 126 Ala., 268.)
A nunc pro tunc entry in practice is an entry made now of something which was
actually previously done, to have effect as of the former date. Its office is not to
supply omitted action by the court, but to supply an omission in the record of
action really had, but omitted through inadvertence or mistake. (Perkins vs.
Haywood, 31 N. E., 670, 672.)
It is competent for the court to make an entry nunc pro tunc after the term at
which the transaction occurred, even though the rights of third persons may be
affected. But entries nunc pro tunc will not be ordered except where this can be
done without injustice to either party, and as a nunc pro tunc order is to supply
on the record something which has actually occurred, it cannot supply omitted
action by the court . . . (15 C. J., pp. 972-973.)[23]
From the above characterization of a nunc pro tunc judgment it is clear that the
judgment petitioner sought through the motion for clarificatory judgment is
outside its scope. Petitioners did not allege that the Court of Appeals actually
took judicial action and that such action was not included in the Court of Appeals
Decision by inadvertence. A nunc pro tunc judgment cannot correct judicial error
nor supply nonaction by the court.[24]
Since the judgment sought through the motion for clarificatory judgment is not a
nunc pro tunc one, the general rule regarding final and executory decisions
applies. In this case, no motion for reconsideration having been filed after the
Court of Appeals rendered its decision on June 29, 1995 and an entry of judgment
having been made on July 17, 1996, the same became final and executory and,
hence, is no longer susceptible to amendment. It, therefore, follows that the
Court of Appeals did not act arbitrarily nor with grave abuse of discretion
amounting to lack of jurisdiction when it issued the aforementioned Resolution
denying petitioners motion for clarificatory judgment and the Resolution denying
petitioners motion for reconsideration.

Nevertheless, for purposes of guiding the parties in the execution of the aforesaid
Decision of the CA, without altering the same, the following should be noted:
The Court of Appeals pronounced in its Decision that the contract between the
parties is an equitable mortgage. Since the contract is characterized as a
mortgage, the provisions of the Civil Code governing mortgages apply. Article
2088 of the Civil Code states:
The creditor cannot appropriate the things given by way of pledge or mortgage,
or dispose of them. Any stipulation to the contrary is null and void.
This Court has interpreted this provision in the following manner:
The essence of pacto commissorio, which is prohibited by Article 2088 of the Civil
Code, is that ownership of the security will pass to the creditor by the mere
default of the debtor (Guerrero v. Yigo, et al., 96 Phil. 37, 41-42; Puig v. Sellner, et
al., 45 Phil. 286, 287 88) [25]
The only right of a mortgagee in case of non-payment of a debt secured by
mortgage would be to foreclose the mortgage and have the encumbered
property sold to satisfy the outstanding indebtedness. The mortgagors default
does not operate to vest in the mortgagee the ownership of the encumbered
property, for any such effect is against public policy, as enunciated by the Civil
Code [26]
Applying the principle of pactum commissorium specifically to equitable
mortgages, in Montevergin v. CA,[27] the Court enunciated that the consolidation
of ownership in the person of the mortgagee in equity, merely upon failure of the
mortgagor in equity to pay the obligation, would amount to a pactum
commissorium. The Court further articulated that an action for consolidation of
ownership is an inappropriate remedy on the part of the mortgagee in equity. The
only proper remedy is to cause the foreclosure of the mortgage in equity. And if
the mortgagee in equity desires to obtain title to the mortgaged property, the
mortgagee in equity may buy it at the foreclosure sale.
The private respondents do not appear to have caused the foreclosure of the
mortgage much less have they purchased the property at a foreclosure sale.
Petitioner, therefore, retains ownership of the subject property. The right of
ownership necessarily includes the right to possess, particularly where, as in this
case, there appears to have been no availment of the remedy of foreclosure of
the mortgage on the ground of default or non-payment of the obligation in
question.
WHEREFORE, the petition for certiorari is DISMISSED. The parties are directed to
proceed upon the basis of the final Decision of the Court of Appeals, dated June
29, 1995, in CA-G.R. CV No. 39025, that the contract in question was an equitable
mortgage and not a sale.

No costs.
SO ORDERED.

-----

G.R. No. 165423

January 19, 2011

NILO PADRE, Petitioner,

vs.
FRUCTOSA BADILLO, FEDILA BADILLO, PRESENTACION CABALLES, EDWINA
VICARIO (d) represented by MARY JOY VICARIO-ORBETA and NELSON BADILLO,
Respondents.
DECISION
DEL CASTILLO, J.:
"A void judgment is no judgment at all. It cannot be the source of any right nor
the creator of any obligation. All acts performed pursuant to it and all claims
emanating from it have no legal effect."1
This petition for review on certiorari assails the Orders dated July 21 and
September 20, 20042 issued by the Regional Trial Court (RTC) of Allen, Northern
Samar, Branch 23 in Special Civil Action No. A-927, which affirmed the ruling of
the Municipal Trial Court (MTC) of San Isidro, Northern Samar that it has
jurisdiction to try Civil Case No. 104.
Factual Antecedents
On October 13, 1986, the RTC of Allen, Northern Samar, Branch 23, rendered
judgment3 in Civil Case No. A-514 for Ownership and Recovery of Possession with
Damages in favor of therein plaintiffs Fructosa Badillo, Fedila Badillo, Edwina
Badillo, Presentacion Badillo and Nelson Badillo and against therein defendants,
including Consesa Padre. The dispositive portion of the said Decision reads:
WHEREFORE, on preponderance of evidence, the Court hereby renders judgment

in favor of the plaintiffs and against the defendants, declaring and ordering as
follows:
1. That the herein plaintiffs are the lawful owners of the five-sixth (5/6) portion of
Lot No. 4080, Pls-54, registered in Original Certificate of Title No. 736, more
particularly, the said five-sixth portion is described, delineated and/or indicated in
the Sketch Plan which is now marked as Exhibit "B-1";
2. That the said five-sixth (5/6) portion which [is] herein adjudged as being owned
by the herein plaintiffs, include the portions of land presently being occupied by
defendants x x x, Concesa Padre, x x x;
3. Ordering the defendants mentioned in No. 2 hereof to vacate x x x the lots
respectively occupied by them and restore to [the herein plaintiffs] the material
possessions thereof;
4. Condemning and ordering each of the same defendants herein above-named
to pay plaintiffs the amount of P100.00 per month, as monthly rental, starting
from January 19, 1980, until the lots in question shall have been finally restored
to the plaintiffs; and
5. Condemning and ordering the herein defendants named above to jointly and
severally pay the plaintiffs the amount of P5,000.00 representing attorneys fees
and P2,000.00 as litigation expenses, and to pay the costs of suit.
SO ORDERED.4
This Decision became final and executory on November 5, 1986.5
On December 29, 1997, the Badillo family filed another complaint against those
who occupy their property which included some of the defendants in Civil Case
No. A-514.6 The case was filed with the MTC of San Isidro, Northern Samar and
was docketed as Civil Case No. 104.7 As Consesa Padre had already died in 1989,
her heir, Nilo Padre (Nilo), was impleaded as one of the defendants. While some
of the defendants filed their respective answers, Nilo was one of those who were
declared in default for failure to file their answer to the complaint.8
Although denominated as one for "Ownership and Possession," the Badillo family
alleged in their complaint in Civil Case No. 104 viz:

4. That plaintiffs are the joint owners of Lot No. 4080. Pls-54, with a total area of
10,167 square meters, covered by OCT No. 736 in the name of Eutequio Badillo,
deceased husband of plaintiff Fructosa Badillo and father of the rest of the other
plaintiffs, covered by Tax Declaration No. 9160 and assessed at P26,940.00;
5. That plaintiffs in Civil Case No. A-514, entitled Fructosa Badillo versus Celso
Castillo, et. al., were the prevailing parties in the aforesaid case as evidenced by
the hereto attached copy of the decision rendered by the Regional Trial Court in
the above-entitled case and marked as Annex "A" and made integral part of this
complaint;
6. That after the judgment in the above-mentioned case became final, the same
was executed as evidenced by a copy of the writ of execution hereto attached as
Annex "B" and made integral part hereof;
7. That despite the service of the writ of execution and vacating the properties x
x x illegally occupied by the afore-mentioned defendants, [said defendants] reentered the property in 1990 after the execution and refused to vacate the same
[thereby] reasserting their claims of ownership x x x despite repeated demands;
8. That all attempts towards a peaceful settlement of the matter outside of Court
to avoid a civil suit, such as referring the matter of the Brgy. Captain and the
Brgy. Lupon of Brgy. Alegria, San Isidro, N. Samar were of no avail as the
defendants refused to heed lawful demands of plaintiffs to x x x vacate the
premises[. I]nstead, defendants claimed ownership of the property in question
[and] refused to vacate the same despite repeated demands [such] that having
lost all peaceful remedies, plaintiffs were constrained to file this suit. Certificate
to file Action is hereby attached and marked as Annex "C" and made integral part
hereof;9 (Emphasis supplied.)
Ruling of the Municipal Trial Court
The MTC rendered judgment10 on July 17, 2003. Interpreting the suit of the
Badillo family as an action to revive the dormant judgment in Civil Case No. A514, the court recognized the right of the plaintiffs to finally have such judgment
enforced. The MTC disposed of the case as follows:
WHEREFORE, judgment is ordered reviving the previous judgment of the Regional
Trial Court there being, and still, preponderance of evidence in favor of plaintiffs,
as follows:

1. That the herein plaintiffs are the lawful owners of the five-sixth (5/6) portion of
Lot No. 4080, Pls-54, registered in Original Certificate of Title No. 730, more
particularly x x x described, delineated and/or indicated in the Sketch Plan which
is now marked as Exhibit "B-1";
2. That the said five-sixth portion which is herein adjudged as being owne[d] by
herein plaintiffs, includes the portions of land presently being occupied by
defendants Victor Eulin, Consesa Padre, Celso Castillo, Leo Atiga, Santos Corollo,
Iego Armogela, Salustiano Millano, Milagros Gile, Pusay Enting, Galeleo Pilapil,
more particularly indicated in Exhibit "B-1" and marked as Exhibits "B-3", "B-4",
"B-5," "B-6," "B-7," "B-8," "B-9," "B-10," "B-11," "B-12," and "B-13", respectively;
3. Ordering the defendants mentioned in No. 2, hereof and THOSE PRESENTLY
NAMED AS PARTY-DEFENDANTS IN THIS REVIVAL OF JUDGMENT AND THOSE
ACTING IN PRIVITY to vacate from the lots respectively occupied by them and
restore [to] the herein plaintiff x x x the material possession thereof;
4. Condemning and ordering each of the same defendants named in the previous
civil case and those NAMED ANEW to jointly and severally pay the plaintiffs the
amount of P5,000.00, representing attorneys fees, and P2,000.00 as litigation
expenses;
5. CONDEMNING ALL DEFENDANTS HEREIN TO PAY EXEMPLARY DAMAGES FOR
OBSTINATELY VIOLATING THE DECISION OF THE COURT JOINTLY AND SEVERALLY X
X X THE AMOUNT OF P5,000.00, and to pay the costs of the suit.
SO ORDERED.11
Nilo thereafter appeared and moved to reconsider12 the MTC judgment. He
argued that the MTC is without jurisdiction over the case, opining that the action
for revival of judgment is a real action and should be filed with the same court,
i.e., the RTC, which rendered the decision sought to be revived. Or, assuming
arguendo that the MTC has jurisdiction over real actions, it must be noted that
the subject property is assessed at P26,940.00, an amount beyond the
P20,000.00 limit for the MTC to have jurisdiction over real actions, in accordance
with Republic Act (RA) No. 7691.13 Nilo also contended that the action is
dismissible for a) lack of certificate of non-forum shopping in the complaint and
b) prescription, the complaint for revival of judgment having been filed beyond
the 10-year reglementary period14 from the time the judgment sought to be
revived became final and executory in November 1986.
The MTC denied the motion for reconsideration.15 It held that the case is an

action for revival of judgment and not an action for ownership and possession,
which had already long been settled. To the MTC, the former is a personal action
under Section 2, Rule 4 of the Rules of Court which may be filed, at the election
of plaintiffs, either at the court of the place where they reside or where the
defendants reside. The court found excusable the absence of the certification
against forum shopping, justifying that the action filed before it is merely a
continuation of the previous suit for ownership. Moreover, the counsel for the
Badillo family, a nonagenarian, may not yet have been familiar with the rule
when Civil Case No. 104 was filed. To it, this mistake should not prejudice the
Badillo family who deserve to possess and enjoy their properties.
Ruling of the Regional Trial Court
By way of a special civil action for certiorari, Nilo elevated the case to the RTC to
question the MTCs jurisdiction,16 reiterating the same grounds he had raised
before the MTC. The case was docketed as Special Civil Action No. A-927.
On July 21, 2004, however, the RTC dismissed said petition17 on the ground that
it was filed late. Moreover, the RTC upheld the MTCs jurisdiction over the case,
affirming the MTCs ratiocination that an action for enforcement of a dormant
judgment is a personal action, and hence may be filed either at the court of the
place where plaintiffs reside or where the defendants reside.
In his Motion for Reconsideration,18 Nilo contended that his petition with the RTC
was timely filed as shown by the registry receipt dated March 1, 2004,19
stamped on the mailing envelope he used in filing said petition. He argued that
this date of mailing is also the date of filing. He also contended that the RTCs
Decision was bereft of any explanation as to why it ruled that the case is a
personal action. He further alleged that the RTC failed to discuss the issues of
prescription and non-compliance with the rule against forum shopping.
In its Order dated September 20, 2004, the RTC denied the motion for
reconsideration. It said:
Assuming that the date of posting was March 1, 2004, as shown in the registry
receipts, still the 60-day reglementary period had already lapsed with December
30, 2003 as the reckoning period when petitioner received the December 9, 2003
Order of Hon. Judge Jose A. Benesisto. With the month of February, 2004 having
29 days, it is now clear that the petition was filed sixty one (61) days after;
hence, there is no timeliness of the petition to speak of.

Civil Case No. 104 is an ordinary action to enforce a dormant judgment filed by
plaintiffs against defendants. Being an action for the enforcement of dormant
judgment for damages is a personal one and should be brought in any province
where the plaintiff or defendant resides, at the option of the plaintiff. As regards
prescription, the present rule now is, the prescriptive period commences to run
anew from the finality of the revived judgment. A revived judgment is enforceable
again by motion within five years and thereafter by another action within ten
years from the finality of the revived judgment. There is, therefore, no
prescription or beyond the statute of limitations to speak [sic] in the instant case.
Petitioners contention must therefore fail.
It is but proper and legal that the plaintiffs in Civil Case No. 514 of which they are
the prevailing parties to institute for the enforcement of a dormant judgment
[which right] they have failed to exercise x x x for more than a decade. Being an
ordinary action to enforce a dormant judgment, not even testimonial evidence is
necessary to enforce such judgment because the decision had long obtained its
finality.
x x x x20
Hence, this petition.
Petitioners Arguments
Nilo finds the RTCs adverse ruling as wanting in sufficient explanation as to the
factual and legal bases for upholding the MTC. He also highlights the failure of the
Badillo family to attach to their complaint a certificate of non-forum shopping.
Petitioner also argues that the date of mailing of his petition with the RTC is the
date of his filing. He stressed that the filing of his petition on March 1, 2004 was
well within the prescriptive period. As the 60th day from December 30, 2003 fell
on a Saturday, he maintains that the Rules of Court allows him to file his petition
on the next working day, which is March 1, 2004, a Monday.
As have already been raised in the courts below, Nilo mentions the
following grounds for the dismissal of the action against him before the MTC:
a) The MTC lacks jurisdiction. Nilo reiterates that the prime objective of the
Badillo family in Civil Case No. 104 is to recover real property, which makes it a
real action. Citing the case of Aldeguer v. Gemelo,21 he contends that this suit

must be brought before the RTC of Allen, Northern Samar. Besides, the assessed
value of the land in controversy, i.e., P26,940.00, divests the MTC of jurisdiction.
b) Prescription. Nilo claims that the Badillo familys suit had already lapsed as
they allowed 11 years to pass without resorting to any legal remedy before filing
the action for revival of judgment. Although the Badillo family moved for the
issuance of a writ of execution in Civil Case No. A-514, the same did not interrupt
the running of the period to have the judgment enforced by motion or by action.
Respondents Arguments
While impliedly acknowledging that Nilo seasonably filed his petition for certiorari
with the RTC, the Badillo family note that he should have filed an appeal before
the RTC. They claim that they properly filed their case, a personal action, with the
MTC of San Isidro, Northern Samar as they are allowed under Section 2, Rule 4 of
the Rules of Court to elect the venue as to where to file their case.
Granting that their action is considered a revival of judgment, the Badillos claim
that they filed their suit within the 10-year period. They contend that in filing Civil
Case No. 104 in December 1997, the prescriptive period should not be counted
from the finality of judgment in Civil Case No. A-514, but should be reckoned from
August 22, 1989, when the RTC issued an Order that considered as abandoned
the motion to declare the defendants in default in the contempt proceedings.
Issue
The question that should be settled is whether the RTC correctly affirmed the MTC
ruling that it has jurisdiction over Civil Case No. 104.
Our Ruling
Indeed, "[t]he existence and availability of the right of appeal proscribes a resort
to certiorari."22 The court a quo could have instead dismissed Nilos petition on
the ground that this question should have been raised by way of an appeal.23
This rule is subject to exceptions, such as "when the writs issued are null and
void or when the questioned order amounts to an oppressive exercise of judicial
authority."24 As will be later on discussed, the RTC, although it ultimately erred in
its judgment, was nevertheless correct in entertaining the special civil action for
certiorari. The exceptions we mentioned apply in the case at bar, as it turns out
that petitioners jurisdictional objection has compelling basis.

Timeliness of the petition for certiorari

The petition for certiorari before the RTC was timely filed. If the pleading filed was
not done personally, the date of mailing, as stamped on the envelope or the
registry receipt, is considered as the date of filing.25 By way of registered mail,
Nilo filed his petition for certiorari with the RTC on March 1, 2004, as indicated in
the date stamped on its envelope. From the time Nilo received on December 30,
2003 the MTCs denial of his motion for reconsideration, the last day for him to
file his petition with the RTC fell on February 28, 2004, a Saturday. Under the
Rules, should the last day of the period to file a pleading fall on a Saturday, a
Sunday, or a legal holiday, a litigant is allowed to file his or her pleading on the
next working day,26 which in the case at bar, fell on a Monday, i.e., March 1,
2004.
Jurisdiction over Civil Case No. 104
We shall now look into the core argument of Nilo anent the MTCs lack of
jurisdiction over the case and the alleged prescription of the action.
"[W]hat determines the nature of the action and which court has jurisdiction over
it are the allegations in the complaint and the character of the relief sought."27 In
their complaint in Civil Case No. 104, some of the allegations of the Badillo
family, which petitioner never opposed and are thus deemed admitted by him,
states:
4. That plaintiffs are the joint owners of Lot No. 4080. Pls-54, with a total area of
10,167 square meters, covered by OCT No. 736 in the name of Eutequio Badillo,
deceased husband of plaintiff Fructosa Badillo and father of the rest of the other
plaintiffs, covered by Tax Declaration No. 9160 and assessed at P26,940.00;
5. That plaintiffs in Civil Case No. A-514, entitled Fructosa Badillo versus Celso
Castillo, et. al., were the prevailing parties in the aforesaid case as evidenced by
the hereto attached copy of the decision rendered by the Regional Trial Court in
the above-entitled case and marked as Annex "A" and made integral part of this
complaint;
6. That after the judgment in the above-mentioned case became final, the same
was executed as evidenced by a copy of the writ of execution hereto attached as
Annex "B" and made integral part hereof;
7. That despite the service of the writ of execution and vacating the properties x

x x illegally occupied by the afore-mentioned defendants, the latter re-entered

the property in 1990 after the execution and refused to vacate the same
[thereby] reasserting their claims of ownership over [the disputed properties] and
refused to vacate the same despite repeated demands;
8. That all attempts towards a peaceful settlement of the matter outside of Court
to avoid a civil suit, such as referring the matter of the Brgy. Captain and the
Brgy. Lupon of Brgy. Alegria, San Isidro, N. Samar were of no avail as the
defendants refused to heed lawful demands of plaintiffs to x x x vacate the
premises[. I]nstead, defendants claimed ownership of the property in question
refused to vacate the same despite repeated demands [such] that having lost all
peaceful remedies, plaintiffs were constrained to file this suit. Certificate to file
Action is hereby attached and marked as Annex "C" and made integral part
hereof;28 (Emphasis supplied.)
Under paragraph 6 of their complaint, the Badillos alleged that judgment in Civil
Case No. A-514 had become final and had been executed. Further, in paragraph
7, they alleged that in 1990, the defendants re-entered the property and despite
repeated demands they refused to vacate the same. Thus, the Badillos were not
at all seeking a revival of the judgment. In reality, they were asking the MTC to
legally oust the occupants from their lots.
The Badillo family would have been correct in seeking judicial recourse from the
MTC had the case been an action for ejectment, i.e., one of forcible entry under
Rule 70 of the Rules of Court wherein essential facts constituting forcible entry29
have been averred and the suit filed within one year from the time of unlawful
deprivation or withholding of possession, as the MTC has exclusive original
jurisdiction over such suit.30 However, as the alleged dispossession occurred in
1990, the one-year period to bring a case for forcible entry had expired since the
Badillos filed their suit only in December 1997. We thus construe that the remedy
they availed of is the plenary action of accion publiciana, which may be instituted
within 10 years.31 "It is an ordinary civil proceeding to determine the better right
of possession of realty independently of title. It also refers to an ejectment suit
filed after the expiration of one year from the accrual of the cause of action or
from the unlawful withholding of possession of the realty."32
Whether the case filed by the Badillo family is a real or a personal action is
irrelevant. Determining whether an action is real or personal is for the purpose
only of determining venue. In the case at bar, the question raised concerns
jurisdiction, not venue.
Although the Badillo family correctly filed a case for accion publiciana, they
pleaded their case before the wrong court. In civil cases involving realty or
interest therein not within Metro Manila, the MTC has exclusive original

jurisdiction only if the assessed value of the subject property or interest therein
does not exceed P20,000.00.33 As the assessed value of the property subject
matter of this case is P26,940.00, and since more than one year had expired after
the dispossession, jurisdiction properly belongs to the RTC.34 Hence, the MTC has
no judicial authority at all to try the case in the first place. "A decision of the
court without jurisdiction is null and void; hence, it could never logically become
final and executory. Such a judgment may be attacked directly or collaterally."35
Based on the foregoing discussion, it is not anymore necessary to discuss the
issue raised concerning the failure to include a certification of non-forum
shopping.
Although we are compelled to dismiss respondents action before the MTC, they
are nonetheless not precluded from filing the necessary judicial remedy with the
proper court.lawphi1
WHEREFORE, the petition is GRANTED. The Orders dated July 21 and September
20, 2004 of the Regional Trial Court of Allen, Northern Samar, Branch 23 in
Special Civil Action No. A-927 are hereby SET ASIDE. The Municipal Trial Court of
San Isidro, Northern Samar is DIRECTED to dismiss Civil Case No. 104 for lack of
jurisdiction.
SO ORDERED