26. SPS.
TOPACIO VS BANCO FILIPINO SAVINGS which states: (Said provision only applies to civil actions and not over land registration
G.R. NO. 157644
NOVEMBER 17, 2010
TOPIC: (EXTRAJUDICIAL) FORECLOSURE
PETITIONER: SPS. TOPACIO
RESPONDENTS: BANCO FILIPINO SAVINGS
PONENTE: BRION
FACTS:
1. Sps. Topacio got a PhP400k loan from respondent and to secure said loan, a real estate
mortgage was executed over a lot in Bulacan in respondent’s favor. They defaulted
prompting respondent to institute EJF proceedings. The lot was sold to respondent as
highest bidder hence a certificate of sale was issued. Respondent filed for a writ of
possession before the RTC w/c was granted on the condition of posting a PhP100k bond
w/c was complied w/ thus a writ of possession was issued.
2. This was not implemented by the sheriff as the petitioners filed to set aside the auction
sale and writ of possession w/ TRO. The RTC issued a TRO w/c enjoined the implementation
of the writ of possession that was already issued. It then issued a WPI ordering respondent
to desist from further implementing the writ of possession and not to disturb petitioner’s
possession.
3. Later, respondent opposed the setting aside the auction sale and writ of possession and to
dissolve the WPI w/c was granted to w/c petitioners opposed. Years later, the RTC
dismissed said petition for “failure to prosecute” due to numerous alleged absences of
respondent’s counsel despite notice. No copy of said order was given to respondent as its
operations ceased by the BSP.
4. Years later, when respondent’s operations resumed, it filed to clarify said order and moved
again for the issuance of the writ of possession. The RTC clarified that said dismissal
referred to the issuance of the writ of possession and denied the issuance of the writ.
However, upon respondent’s MR, the writ was granted. Petitioners filed their MR.
5. RTC: Denied petitioner’s MR. The ground of dismissal (i.e. failure to prosecute) was
unfounded. Records show that the case has dragged for years due to postponements from
both parties, particularly on petitioner’s end as they went abroad for years when the case
was pending. The dismissal was conclusive on the rights of parties and that respondent’s
MR was timely filed and that respondent had the absolute right over the issuance of the
writ of possession and petitioners failed to redeem the property.
6. CA: Affirmed RTC. The dismissal was not conclusive on the rights of the parties. Sec. 6, Rule
39 only applies to civil actions and not SpecPro. The delay in the case was not entirely
respondent’s fault.
7. Petitioners argued that the 1986 dismissal order was an adjudication on the merits hence
was final and executory since respondent belated filing for clarification on 1992. The writ
of possession cannot be issued as 5 years have elapsed when it was issued. Although the
dismissal was not properly served to respondent this was not made an issue by the CA.
Respondent’s MR was belatedly filed on 1993 in reference to the 1992 clarificatory hearing.
8. ISSUE: WoN the writ of possession may be issued in favor of respondent – YES
RULING
9. The petitioners submit that the writ of possession, issued by the RTC on 1984, may no
longer be enforced by a mere motion, but by a separate action, considering that more than
5 years had elapsed from its issuance, pursuant to Sec. 6, Rule 39 of the Rules of Court,
cases)
Sec. 6. Execution by motion or by independent action. – A final and executory judgment or
order may be executed on motion within five (5) years from the date of its entry. After the
lapse of such time, and before it is barred by the statute of limitations, a judgment may be
enforced by action. The revived judgment may also be enforced by motion within five (5)
years from the date of its entry and thereafter by action before it is barred by the statute of
limitations.
10. This provision of the Rules refers to civil actions and is not applicable to special
proceedings, such as a land registration case. This is so because a party in a civil action
must immediately enforce a judgment that is secured as against the adverse party, and his
failure to act to enforce the same within a reasonable time as provided in the Rules makes
the decision unenforceable against the losing party.
11. In special proceedings the purpose is to establish a status, condition or fact; in land
registration proceedings, the ownership by a person of a parcel of land is sought to be
established. After the ownership has been proved and confirmed by judicial declaration,
no further proceeding to enforce said ownership is necessary, except when the adverse
or losing party had been in possession of the land and the winning party desires to oust
him therefrom.
12. In this case, the aforesaid provision is inapplicable to an ex parte issuance of writ of
possession as it is not a civil action but a judicial proceeding covered by Sec. 7 of Act 3135
w/c regulated methods effecting EFJs. Sec. 7 provides:
Sec. 7. Possession during redemption period. In any sale made under the provisions of this
Act, the purchaser may petition the [Regional Trial Court] where the property or any part
thereof is situated, to give him possession thereof during the redemption period, furnishing
bond in an amount equivalent to the use of the property for a period of twelve months, to
indemnify the debtor in case it be shown that the sale was made without violating the
mortgage or without complying with the requirements of this Act. Such petition shall be
made under oath and filed in form of an ex parte motion in the registration or cadastral
proceedings if the property is registered, or in special proceedings in the case of property
registered under the Mortgage Law or under section one hundred and ninety-four of the
Administrative Code, or of any other real property encumbered with a mortgage duly
registered in the office of any register of deeds in accordance with any existing law, and in
each case the clerk of the court shall, upon the filing of such petition, collect the fees
specified in paragraph eleven of section one hundred and fourteen of Act Numbered Four
hundred and ninety-six, as amended by Act Numbered Twenty-eight hundred and sixty-six,
and the court shall, upon approval of the bond, order that a writ of possession issue,
addressed to the sheriff of the province in which the property is situated, who shall execute
said order immediately.
13. Said provision lays down the procedure that commences from the filing of a motion for the
issuance of a writ of possession, to the issuance of the writ of possession by the Court, and
finally to the execution of the order by the sheriff of the province in which the property is
located. Based on the text of the law, we have also consistently ruled that the duty of the
trial court to grant a writ of possession is ministerial; the writ issues as a matter of course
upon the filing of the proper motion and the approval of the corresponding bond. In fact,
the issuance and the immediate implementation of the writ are declared ministerial and
mandatory under the law.
14. Once the writ of possession has been issued, the trial court has no alternative but to
enforce the writ without delay. The issuance of a writ of possession to a purchaser in an
extrajudicial foreclosure is summary and ministerial in nature as such proceeding is
merely an incident in the transfer of title. The trial court does not exercise discretion in
the issuance thereof; it must grant the issuance of the writ upon compliance with the
requirements set forth by law, and the provincial sheriff is likewise mandated to
implement the writ immediately.
FALLO: WHEREFORE, the present petition is DENIED. The August 26, 2002 Decision and the
March 17, 2003 Resolution of the Court of Appeals in CA-G.R. SP No. 32389 are AFFIRMED.
Costs against the petitioners..