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G.R. No. L-17721 October 16, 1961
GREGORIO APELARIO, doing business under the style "GREGORIO
TRADING," plaintiff-appelleee,
vs.
INES CHAVEZ & COMPANY, LTD., doing business under the style
"FIDELITY MOTOR SUPPLY COMPANY, LTD., and INES CHAVEZ,
defendants-appellants.
Judgment on the pleadings; Failure of defendant to raise material issues in the
answer; Case at bar.—The defendants-appellants admitted all the material
allegations of the complaint concerning the existence of the debt and its non-
payment. They pleaded excuse, that they had requested plaintiff to wait
because appellants’ many accounts receivable had not yet been collected, is
no defense, for a debtor can not delay payment due just to suit its convenience,
and the creditor is not an underwriter of his debtor’s business unless so
stipulated. The denial of the averment concerning the stipulated fees of
plaintiff’s attorney tendered no genuine issue, for even without such allegation,
it was discretionary in the court to allow reasonable attorney’s fees by way of
damages, if it found it just and equitable to allow their recovery (Civil Code,
Article 2208). Nor does the denial of the complaint’s averment concerning the
fraudulent removal and disposition of defendant’s property constitute a bar to
a judgment on the pleadings since the defendant neither claimed nor asked
for any damages on account of the issuance and levy of the writ of attachment.
Under the circumstances, judgment on the pleadings was proper.
APPEAL form a judgment of the Court of First Instance of Manila.
The facts are stated in the opinion of the Court.
Egnacio M. Orendain for plaintiff-appellee.
Mariano H. de Joya for defendants-appellants.
REYES, J.B.L., J.:
Appeal from a judgment on the pleadings rendered by the Court of First
Instance of Manila on June 8, 1959 in its Case No. 39822, and certified by
the Court of Appeals to this Court on the ground that only questions of law
are involved.
The record shows that on April 8, 1959, plaintiff Gregorio Apelario filed a
complaint against Ines Chavez & Company, Ltd., a limited partnership, and
its general partner, Ines Chavez. It was therein averred, in substance, that on
or about October 28, 1958, the defendant partnership had purchased on
credit from plaintiff ten sets of axle assemblies for the sum of P2,400.00 (par.
3); that on December 6, 1958, defendant delivered in payment to the plaintiff
two postdated cash checks for P1,200.00 each, drawn against the Philippine
Bank of Commerce (par. 4); that when the checks were presented for
payment, they were dishonored for lack of funds, whereupon the defendant
took back the checks and replaced them with two other checks, also
postdated, for the same amount as before (par. 5); that these checks were
also dishonored (par. 6); that the plaintiff, on February 23, 1959, demanded
payment in cash, but defendant refused to pay (par. 7); that because of such
malicious and wilfull refusal, plaintiff had to engage the services of counsel
for an agreed fee of P750.00 (par. 8); that defendant was about to remove
and dispose of its properties with intent to defraud the plaintiff, wherefore a
writ of attachment became necessary (par. 9); and prayer was made for
judgment in favor of plaintiff and against the defendant for the sum of
P2,400.00, with legal interest from the filing of the complaint, and for P750.00
attorney's fees, with expenses and costs. Plaintiff also moved and duly
obtained a writ of attachment.
Defendants obtained the lifting of the attachment by filing a counterbond on
April 14, 1959; and on May 7, 1959, they filed an answer admitting the
allegations of paragraphs 1 and 6 of the complaint, admitting that plaintiff had
demanded payment of P2,400, but pleaded that —
defendants could not pay the plaintiff, because they have so many
accounts receivable which have not yet been paid to them, of which
fact the defendant was duly informed by the plaintiff and thereby
requested to wait a while. (R. App. p. 27)
Defendants further averred having no knowledge or information of the
allegations of paragraph 8 of the complaint concerning the attorneys' fees;
denied having performed any act of removal or disposal of its property,
branding plaintiff's allegations in paragraph 9 to be false and malicious; and
prayed for dismissal of the complaint.
Upon motion of the plaintiff, and over the objection of defendants, the trial
court rendered judgment on the pleadings, sentencing defendants to pay
 CIVPRO IV Civil Procedure Page |2

P2,400, plus legal interest from the filing of the complaint; and P500
attorney's fees.

Defendants appealed, and now claim that it was error for the lower court to
have rendered judgment on the pleadings, because the answer raised
material issues.

We find no merit in the appeal. As pointed out in the judgment complained of

the defendants-appellants had admitted all the material allegations of the
complaint concerning the existence of the debt and its non-payment. The
pleaded excuse, that they had requested plaintiff to wait because appellants'
many accounts receivable had not yet been collected, is clearly no defense,
for a debtor can not delay payment due just to suit its convenience, and the
creditor is not an underwriter of his debtor's business unless so stipulated.

The denial of the averment concerning the stipulated fees of plaintiff's

attorney tendered no genuine issue, for even without such allegations, it was
discretionary in the court to allow reasonable attorneys' fees by way of
damages, if it found just and equitable to allow their recovery (Civ. Code, Art.
2208). In this case, allowance of such fees was justified since defendant
admitted having issued to the creditor checks without funds, not once but
twice. It is well to note the P750 attorney's fees claimed by plaintiff were
reduced to P500 only.

Nor does the denial of the complaint's averments concerning the fraudulent
removal and disposition of defendant's property constitute a bar to a
judgment on the pleadings, since the defendant neither claimed nor asked for
any damages on account of the issuance and levy of the writ of attachment.

WHEREFORE, the appealed judgment of the Court of First Instance is

affirmed. Costs against appellants.

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Paredes and

De Leon, JJ., concur.

G.R. No. L-28140 March 19, 1970
CAPITOL MOTORS CORPORATIONS, plaintiff-appellee,
vs.
NEMESIO I. YABUT, defendant-appellant.
Remedial law; Civil actions; Allegations in pleadings; Specific denial; Modes
of specific denial.—Section 10, Rule 8 of the Revised Rules of Court
recognizes three modes of specific denial, namely: (1) by specifying each
material allegation of fact in the complaint the truth of which the defendant
does not admit, and, whenever practicable, setting forth the substance of the
matters which he will rely upon to support his denial or (2) by specifying so
much of an averment in the complaint as is true and material and denying only
the remainder or (3) by stating that the defendant is without knowledge or
information sufficient to form a belief as to the truth of a material averment in
the complaint, which has the effect of a denial
Same; Same; Same; Same; When averment that defendant is without
knowledge or information sufficient to form a belief as to the truth of a material
averment in the complaint, does not constitute a specific denial under Sec. 10,
Rule 8.—The rule authorizing an answer to the effect that the defendant has
no knowledge or information sufficient to form a belief as to the truth of an
averment and giving such answer the affect of a denial, does not apply where
the fact as to which want of knowledge is asserted, is so plainly and necessarily
within the defendant’s knowledge that his averment of ignorance must be
palpably untrue.
Same; Same; Same; Same; Same; Where action is founded upon a written
instrument attached to the complaint.—Where the suit is one where a copy of
the promissory note sued upon was attached to the complaint, it would be easy
for the defendant to specifically allege in his answer whether or not he had
executed the alleged instrument. Whether such fact was or was not true could
not be unknown to the defendant.
Same; Same; Same; Same; Mere allegation of ignorance of facts alleged in
the complaint is insufficient to raise an issue.—A mere allegation of
ignorance of the facts alleged in the complaint, is insufficient to raise an
issue; the defendant must aver positively or state how it is that he is ignorant
of the facts so alleged.
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Same; Same; Same; Action based on document; Where the genuineness and
due execution of document is deemed admitted -Where the action is founded
upon a written instrument atached to the complaint, and the defendant failed
to deny under ath the genuineness and due execution of the instrument; the
same are deemed admitted.
Same; Same; Judgment on the pleadings; Effect of failure to oppose motion
for judgment on the pleadings filed by plaintiff.—Where the defendant neither
opposed the motion for judgment on the pleadings filed by the plaintiff nor filed
a motion for reconsideration of the order of the court which deemed the case
submitted for decision on the pleadings, or of the decision of the same court
which rendered judgment based on the allegations and prayer of the
complaint, the defendant is deemed to have admitted the allegations of the
complaint, so that there is no necessity for the plaintiff to submit evidence of
his claim.
APPEAL from a judgment of the Court of First Instance of Rizal.
The facts are stated in the opinion of the Court.
Jose A. David, Jr. for plaintiff-appellee.
R. Correa for defendant-appellant
VILLAMOR, J.:
Appeal on a question of law from the judgment of the Court of First Instance
of Rizal in its Civil Case. No. Q-9869.
On March 1, 1966, Capitol Motors Corporations filed a complaint against
Nemesio I. Yabut. It was therein averred that on April 24, 1965, the
defendant executed in favor of the plaintiff a promissory note (copy of which
was attached to the complaint) for the sum of P30,134.25, payable in
eighteen (18) equal monthly installments with interest at 12% per annum, the
first installment to become due on June 10, 1965, that it was stipulated in the
promissory note that should the defendant fail to pay two (2) successive
installments, the principal sum remaining unpaid would immediately become
due and demandable and the defendant would, by way of attorney's fees and
costs of collection, be obligated to the plaintiff for an additional sum

equivalent to 25% of the principal and interest due; that as of February 23,
1966, the sum remaining unpaid on the promissory note was P30,754.79,
including accrued interest; that the defendant defaulted in the payment of two
(2) successive installments, and likewise failed to pay the interest due on the
promissory note; and that in spite of demands by the plaintiff, the defendant
failed and refused to pay the said principal sum and interest due. Prayer was
made that the defendant be ordered to pay the plaintiff the sum of
P30,754.79, as well as the interest due thereon from February 23, 1966, and
an additional sum equivalent to 25% of the amount due, plus costs.
On April 27, 1966, and within the reglementary period, the defendant,
through his counsel, filed an answer which reads:
DEFENDANT through counsel alleges:
1. Paragraph 1 of the complaint is admitted.
2. Paragraphs 2, 3, 4, 5, 6 and 7 of the complaint are
specifically denied for lack of knowledge sufficient to form a
belief as to the truth thereof.
WHEREFORE, it is respectfully prayed that the Complaint be
dismissed with costs against the plaintiff.
On June 16, 1966, the plaintiff filed a motion for judgment on the pleadings,
on the ground that the defendant, not having set forth in his answer the
substance of the matters relied upon by him to support his denial, had failed
to deny specifically the material allegations of the complaint, hence, must be
deemed to have admitted them. The defendant did not file an opposition to
the motion. On September 13, 1966, after hearing on the motion, the court
issued an order granting the said motion and considering the case submitted
for decision on the basis of the pleadings; and on January 9, 1967, the court
rendered judgment granting in toto the plaintiff's prayer in its complaint.
In this appeal, defendant-appellant contends that the court a quo erred in
considering him as having failed to deny specifically the material allegations
of the complaint, and, consequently, in deciding the case on the basis of the
pleadings. Citing Moran, Comments on the Rules of Court, Vol. I, 1963 Ed.,
p. 281, he argues that since Section 10, Rule 8 of the Revised Rules of
Court, recognizes three (3) modes of specific denial, namely: (1) by
specifying each material allegation of fact in the complaint the truth of which
the defendant does not admit, and, whenever practicable, setting forth the
substance of the matters which he will rely upon to support his denial or (2)
CIVPRO IV Civil Procedure Page |4
by specifying so much of an averment in the complaint as is true and material
and denying only the remainder or (3) by stating that the defendant is without
knowledge or information sufficient to form a belief as to the truth of a
material averment in the complaint, which has the effect of a denial, and he
has adopted the third mode of specific denial, his answer tendered an issue,
and, consequently the court a quo could not render a valid judgment on the
pleadings.
This appeal is without merit.
We agree with defendant-appellant that one of the modes of specific denial
contemplated in Section 10, Rule 8, is a denial by stating that the defendant
is without knowledge or information sufficient to form a belief as to the truth
of a material averment in the complaint. The question, however, is whether
paragraph 2 of defendant-appellant's answer constitutes a specific denial
under the said rule. We do not think so. In Warner Barnes & Co., Ltd. vs.
Reyes, et al., G.R. No. L-9531, May 14, 1958 (103 Phil., 662), this Court said
that the rule authorizing an answer to the effect that the defendant has no
knowledge or information sufficient to form a belief as to the truth of an
averment and giving such answer the effect of a denial, does not apply
where the fact as to which want of knowledge is asserted, is so plainly and
necessarily within the defendant's knowledge that his averment of ignorance
must be palpably untrue. In said case the suit was one for foreclosure of
mortgage, and a copy of the deed of mortgage was attached to the
complaint; thus, according to this Court, it would have been easy for the
defendants to specifically allege in their answer whether or not they had
executed the alleged mortgage. The same thing can be said in the present
case, where a copy of the promissory note sued upon was attached to the
complaint. The doctrine in Warner Barnes & Co., Ltd. was reiterated in J. P.
Juan & Sons, Inc. vs. Lianga Industries, Inc., G.R. No. L-25137, July 28,
1969 (28 SCRA 807). And in Sy-quia vs. Marsman, G.R. No. L-23426, March
1, 1968 (22 SCRA 927), this Court said:
With regard to the plea of lack of knowledge or information
set up in paragraph 3 of the answer, this Court's decision in
Warner Barnes vs. Reyes, 103 Phil. 662, 665, is authority for
the proposition that this form of denial must be availed of
with sincerity and good faith, not for the purpose of confusing
the other party, nor for purposes of delay. Yet, so lacking in
sincerity and good faith is this part of the answer that
defendants-appellants go to the limit of denying knowledge
or information as to whether they (defendants) were in the
premises (Marsman Bldg.) on January 4, 1961, as averred in

paragraph 4 of the complaint. Yet whether such a fact was or
was not true could not be unknown to these defendants.
In National Marketing Corporation vs. De Castro, 106 Phil. 803 (1959), this
Court held:
Furthermore, in his answer to the appellee's complaint, he
merely alleged that 'he has no knowledge or information
sufficient to form a belief as to the truth of the matters
contained in paragraphs 3, 4, 5 and 6 so much so that he
denies specifically said allegations.' A denial is not specific
simply because it is so qualified. (Sections 6 and 7, Rule 9;
El Hogar Filipino vs. Santos Investments, Inc., 74 Phil. 79;
Baetamo vs. Amador, 74 Phil. 735; Dacanay vs. Lucero, 76
Phil. 139; Lagrimas vs. Lagrimas, 95 Phil. 113). Material
averments in a complaint, other than those as to the amount
of damage, are deemed admitted when not specifically
denied. (Section 8, Rule 9,) The court may render judgment
upon the pleadings if material averments in the complaint are
admitted. (Section 10, Rule 35; Baetamo vs. Amador, supra,
Lichauco vs. Guash, 76 Phil. 5; Lati vs. Valmores, G.R. No.
L-6877, 30 March 1954.)
It becomes evident from all the above doctrines that a mere allegation of
ignorance of the facts alleged in the complaint, is insufficient to raise an
issue; the defendant must aver positively or state how it is that he is ignorant
of the facts so alleged. (Francisco, The Revised Rules of Court in the
Philippines, Vol. I, p. 417, citing Wood vs. Staniels, 3 Code Rep. 152 and
Vassalt vs. Austin, 32 Cal. 597.)
Thus, in at least two (2) cases where this Court ruled that judgment on the
pleadings was not proper, it will be seen that the reason was that in each
case the defendants did something more than merely alleging lack of
knowledge or information sufficient to form a belief. In Arrojo vs. Caldoza, et
al., G.R. No. L-17454, July 31, 1963 (8 SCRA 547), the defendants, in their
answer to the complaint for recovery of possession of a parcel of land, did
not merely allege that they had no knowledge or information sufficient to form
a belief as to the truth of the material allegations in the complaint, but added
the following: "The truth of the matter is that the defendants have not
occupied or taken any property belonging to the plaintiff. They took
possession and ownership only of the land belonging to them, which
properties were possessed and owned originally by their predecessors-in-
interest, who were the parents of the defendants ...." In Benavides vs.
CIVPRO IV Civil Procedure Page |5
Alabastro, G.R. No. L-19762, December 23, 1964 (12 SCRA 553), the
defendant's answer did not only deny the material allegations of the
complaints but also set up certain special and affirmative defenses the nature
of which called for presentation of evidence.
There are two other reasons why the present appeal must fail. First. The
present action is founded upon a written instrument attached to the
complaint, but defendant-appellant failed to deny under oath the
genuineness and due execution of the instrument; hence, the same are
deemed admitted. (Section 8, Rule 8 of the Revised Rules of Court; Songo
vs. Sellner, 37 Phil. 254; Philippine Commercial & Industrial Bank vs. ELRO
Development Corporation, et al., G.R. No. L-30830, August 22, 1969 [29,
SCRA 38]; J. P. Juan & Sons, Inc. vs. Lianga Industries, Inc., supra.)
Second. Defendant-appellant did not oppose the motion for judgment on the
pleadings filed by plaintiff appellee; neither has he filed a motion for
reconsideration of the order of September 13, 1966, which deemed the case
submitted for decision on the pleadings, or of the decision rendered on
January 9, 1967. In Santiago vs. Basilan Lumber Company, G.R. No. L-
15532, October 31, 1963 (9 SCRA 349), this Court said:
It appears that when the plaintiff moved to have the case
decided on the pleadings, the defendant interposed no
objection and has practically assented thereto. The
defendant, therefore, is deemed to have admitted the
allegations of the complaint, so that there was no necessity
for the plaintiff to submit evidence of his claim.
PREMISES CONSIDERED, the judgment appealed from is affirmed, with
cost against defendant-appellant.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro,
Fernando, Teehankee and Barredo, JJ., concur.

G.R. No. L-10884 March 31, 1959
PHILIPPINE NATIONAL BANK, plaintiff-appellee,
vs.
PHILIPPINE LEATHER CO. INC., ET AL., defendants-appellants.
PLEADING AND PRACTICE; SUMMARY JUDGMENT; WHEN MOVING
PARTY ENTERED TO JUDGMENT; CASE AT BAR.—In their answer, the
defendants admit the plaintiff's averments except as to the correctness of
the amounts due, the correctness of which they were still checking, and
for that reason lacking sufficient knowledge or information to form a belief
as to the truth and veracity of the amounts due, they deny the amounts
claimed by the plaintiff to be due them. Held: The defendants' answer did
not tender a genuine issue. Hence, plaintiff is entitled to summary
judgment.
APPEAL from a judgment of the Court of First Instance of Manila. Macadaeg,
J.
The facts are stated in the opinion of the Court.
Castaño & Ampil for appellants.
Ramon B. de los Reyes for appellee.
PADILLA, J.:
In its complaint filed in the Court of First Instance of Manila, the plaintiff
alleges that on 1 September 1952 the defendant Philippine Leather Co., Inc.
applied for a commercial letter of credit in the sum of $14,814.80, in U.S.
currency, under the terms and conditions set forth in an application filed by
the defendants in favor of the Turner Tanning Machinery Co. of Peabody,
Massachusetts, U.S.A. to cover the full invoice value of certain machineries
and their accessories; that on 3 October 1952 the plaintiff approved the
application "subject to 30% deposit and the joint and several signatures of
Mr. Isidoro Tinoco and Mrs. Soledad L. Basa" which conditions were
complied with; that on 8 October 1952, the plaintiffs issued Letter of Credit
No. 51469 in favor of the Turner Tanning Machinery Company; that on 15
November 1952 the Turner Tanning Machinery Co., drew upon the letter of
credit the sum of $14,549.17, U.S. currency; that upon arrival in the
CIVPRO IV Civil Procedure Page |6
Philippines of the machineries and their accessories imported by the
defendants under a trust receipt, that on 23 January 1953 the plaintiff
presented to the defendants for payment the draft drawn by the Turner
Tanning Machinery Co., upon Letter of Credit No. 51469 which was accepted
by them; that after the draft had matured on 23 April 1953 the plaintiff made
numerous demands upon the defendants to pay the amount of the draft and
the charges due thereon but the defendants failed and refused to pay; and
that as of 15 October 1953, the outstanding balance of the defendants on the
draft is P22,787.79, Philippine currency, plus interest thereon at the rate of
P4.89135 daily until fully paid. It alleges further that on 30 January 1953 the
defendant Philippine leather Co., Inc., applied for a commercial letter of credit
in the sum of $2,587.50, U.S. currency, under the terms and conditions set
forth in an application filed by the defendants in favor of Bay State Chemical
Co., of Boston, Massachusetts, U.S.A., to pay for the importation of color
dye; that the plaintiff approved the application "subject to 30% deposit and
the joint and several signatures of Mr. Isidoro Tinoco and Mrs. Soledad L.
Basa," which conditions were complied with; that thereafter the plaintiff
issued Letter of Credit No. 53753 in favor of the Bay State chemical Co., that
on 12 March 1953 the Bay State Chemical Co., drew upon the letter of credit
the sum of $2,482.40, U.S. currency; that the draft drawn by the Bay State
Chemical Co., was presented by the plaintiff to the defendants for payment;
that the defendants failed and refused to pay the amount of the draft and the
charges due thereon; that because of the failure and refusal of the
defendants to pay their obligation, the plaintiff delivered the documents of the
shipment to the Luzon Brokerage Co., and requested it to claim and store the
shipment in its bonded warehouse, for which service and storage the
defendants are liable to the Luzon Brokerage Co.; that as of 15 October
1953; the outstanding balance of the defendants on the draft is P4,503.05,
Philippine currency, plus interest thereon at the rate of P.083569 daily until
fully paid.
The plaintiff prays that after hearing judgment be rendered ordering the
defendants to pay it the sum of P22,787.79, with daily interest thereon at the
rate of P4.89135 from 15 October 1953 until fully paid; 10% of the said
amount as attorney's fee; P4,503.05, with daily interest thereon at the rate of
P0.83569 from 15 October 1953 until fully paid; the amount of storage and
other charges that the Luzon Brokerage Co., would charge the plaintiff for the
handling and storage of the merchandise imported by the defendants under
Letter of Credit No. 53753; and the costs of the suit. The plaintiff further
prays that pending hearing and final judgment, a writ of attachment be issued
commanding the Sheriff of the City of Manila to levy upon attachment on the
properties of the defendants as security for the satisfaction of any judgment
that it may secure against them.

In their answer filed on 28 December 1953 the defendants admit the
plaintiff's averments except as to the correctness of the amounts due on the
two drafts, the correctness of which they were still checking, and for that
reason lacking sufficient knowledge or information to form a belief as to the
truth and veracity of the amounts due on the two drafts, they deny the
amounts claimed by the plaintiff to be due from them.
On 25 June 1954 the plaintiff filed a motion for summary judgment on the
ground that since the defendants had admitted the material averments of its
complaint except as to the correctness of the amounts due, the defendant's
answer did not tender a genuine issue. The plaintiff attached to its motion an
affidavit subscribed and sworn to by Ceferino Saavedra, Manager of the
Special Assets Department of the plaintiff, in charge of all outstanding
accounts of its debtors, stating the payments made by the defendants on
their account and the exact total amount due from them.
On 7 October 1954 the Court granted the plaintiff's motion and rendered
judgment ordering the defendants, jointly and severally, to pay —
. . . the plaintiff in the first cause of action, the amount of P22,787.79,
with a daily interest of P4.89135 from October 15, 1953 up to full
payment thereof, and 10% of the amount due for attorney's fees. On
the second cause of action, defendants shall pay, jointly and
severally, the sum of P4,503.05, with a daily interest of P0.83569
from October 15, 1953 until full payment thereof.
Defendants shall also pay the costs.
The defendants appealed to the Court of Appeals. The latter certified the
case to this Court for the reason that only questions of law are raised.
Rule 36 provides:
Section 1. Summary judgment for claimant. — A party seeking to
recover upon a claim, counterclaim, or crossclaim or to obtain a
declaratory relief may, at any time after the pleading in answer
thereto has been served, move with affidavits for a summary
judgment in his favor upon all or any part thereof.
SEC. 3. Motion and proceedings thereon. — The motion shall be
served at least ten days before the time specified for the hearing.
The adverse party prior to the day of hearing may serve opposing
CIVPRO IV Civil Procedure Page |7
affidavits. The judgment sought shall be rendered forthwith if the
pleadings, depositions, and admissions or file, together with the
affidavits, show that, except as to the amount of damages, there is
no genuine issue as to any of the material fact and that the moving
party is entitled to a judgment as a matter of law.
SEC. 5. Form of affidavits. — Supporting and opposing affidavits
shall be made on personal knowledge, shall set forth such facts as
would be admissible in evidence, and shall show affirmatively that
the affiant is competent to testify to the matters stated therein. Sworn
or certified copies of all papers of parts thereof referred to in an
affidavit shall be attached thereto or served therewith.
The defendant's answer that as to the first cause of action they—
. . . are still checking on the correctness of the alleged balance
outstanding against them and in favor of the plaintiff; consequently,
for lack of knowledge or information sufficient to form a belief as to
the truth and veracity of the averments embodied in paragraph 7
thereof, they hereby specifically deny the allegations therein stated;
and that so to the second cause of action they—
. . . are checking on the veracity and correctness of the balance
allegedly outstanding in favor of the plaintiff manifested in paragraph
6 of the same, they, by virtue thereof, specifically deny it for lack of
knowledge and belief as to the truth of the allegations embodied in
the aforestated paragraph.
does not tender a genuine issue. In fact they admit that they are indebted to
the plaintiff. As the affidavit subscribed and sworn to by the Manager of the
Special Assets Department of the plaintiff, in charge of all outstanding
accounts of its debtors, attached to the motion for summary judgment,
furnishes the Court with the payments made by the defendants on their
account and the amount due from them, which they failed to oppose by
counter affidavits, the plaintiff is entitled to summary judgment.1
The judgment appealed from is affirmed, with costs against the appellants.
Paras, C.J., Bengzon, Montemayor, Reyes, A., Bautista Angelo, Labrador,
Concepcion, Reyes, J.B.L. and Endencia, JJ., concur.

G.R. No. L-49668 November 14, 1989
POLICARPIO, LUCIO, JULIAN, CATALINO, BONIFACIO, CONRADA,
DOMINGO, PAQUITA, AND LILIA, ALL SURNAMED GALICIA, petitioners,
vs.
THE HON. WENCESLAO M. POLO, in his capacity as Presiding Judge,
CFI, Branch V, Samar (Calbayog City), ZOSIMA PALAJOS, TITING
LISTOJAS, ALFREDO PALAJOS, MANUELITO ROSIALDA, respondents.
Civil Procedure; Summary Judgment; Summary judgment not proper where
pleadings tender vital issues the resolution of which call for the presentation of
evidence.—The Rules of Court authorizes the rendition of summary judgment
if the pleadings, depositions and admissions on file together with the affidavits,
show that, except as to the amount of damages, there is no issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law (Sec. 3, Rule 34). Conversely, summary judgment is not proper where the
pleadings tender vital issues the resolution of which call for the presentation of
evidence (Villanueva v. NAMARCO, 28 SCRA 729 [1969]; Guevarra, et al. v.
CA, et al., 124 SCRA 297 [1983]).
Same; Appeals, Issues not raised in the lower court cannot be raised on
appeal.—Neither can the issue of the validity of the execution sale help
petitioners’ cause. Well-settled in this jurisdiction, is the rule that issues not
raised and/or ventilated in the lower court cannot be raised for the first time on
appeal (Rebodos v. WCC, 6 SCRA 717 [1962]; DBP v. CA, 116 SCRA 636
and a long line of cases). A review of the records of the case shows that
petitioners failed to directly assail and raise as issue, the validity of the
aforementioned auction sale in their complaint. It was only when the
respondent judge noted such omission in his decision dismissing Civil Case
No. 758-CC dated August 11, 1978 (Rollo, p. 48-53) that petitioners later filed
a separate action for Annulment of Auction Sale and Damages on October 4,
1978 (Civil Case No. 837-CC; Rollo, p. 31-35). The validity of the execution
sale not having been raised and/or litigated in the case subject of the present
appeal, the Court, at this stage, cannot pass upon the same for the purpose of
determining the propriety of the summary judgment. Objections to the
execution sale cannot be considered in the Supreme Court inasmuch as it was
not raised in the lower court (Ramiro v. Graño, 54 Phil. 744 [1930]; citing Tan
Machan v. de la Trinidad, 3 Phil. 684 [1904] and U.S. v. Inductivo, 40 Phil. 84
[1919]).
CIVPRO IV Civil Procedure Page |8
PETITION for certiorari to review the judgment of the then Court of First
Instance of Samar, Br. V. Polo, J.
The facts are stated in the opinion of the Court.
Mateo M. Leanda for petitioners.
Zosimo Santiago for private respondents.
BIDIN, J.:
This is a petition for review on certiorari seeking to set aside the summary
judgment entered by the then Court of First Instance of Samar, Br. V in Civil
Case No. 758-CC entitled, "Policarpio, Lucio, Julian, Catalino, Bonifacio,
Conrada, Domingo, Paquita and Lilia, all surnamed Galicia v. Zosima
Palajos, Titing Listojas, Alfredo Palajos and Manuelito Rosialda" and to order
the trial court to try the above-cited case on the merits.
The facts are undisputed.
On December 15, 1973. a complaint for forcible entry (Civil Case No. 56)
entitled "Amancio Palajos v. Policarpio, Perfecto, Victorio Julian and
Eduardo, all surnamed Galicia," was filed in the Municipal Court of Almagro,
Samar, alleging that Amancio Palajos is the owner and in actual possession
of a parcel of land located at Bacjao, Almagro, Samar, more particularly
described as follows:
A parcel of land with an area of about 4-88-00 hectares,
more or less, assessed at P 360.00 as per Tax Declaration
No. 8547 in the name of Juan Palajos, it is, however,
14.2860 hectares as per approved survey plan, the
boundaries of which are: N — Pedro Galicia and the
Poblacion of Barrio Bacjao; S — Emilio Carpon, Magno
Suico and Teresa Subito; and W — Bernardo Ballarante and
Cenon S. Aguilar.
which he acquired by way of donation from his father, Juan Palajos. It is
further alleged that defendants (petitioners herein) forcibly entered the

northeastern portion of the said property covering an area of about 1 1/2
hectares.
The trial of the case was set several times but was postponed at the instance
of defendants (petitioners herein). For the fifth time, i.e., on July 19, 1974,
neither the defendants nor counsel appeared. Accordingly, the court granted
a trial ex parte on motion of plaintiffs counsel (Rollo, p. 24).
Subsequently, the municipal trial court rendered judgment against
defendants (petitioners herein), the dispositive portion of which reads:
WHEREFORE, this Court hereby renders judgment ordering
defendants Policarpio Galicia, Perfecto Galicia, Victorio
Galicia, Julian Galicia and Eduarda Galicia to restore to
plaintiff Amancio Palajos the portion of land described in par.
4 of the plaintiffs complaint consisting of one and one-half
hectares and which is the northeastern portion of land under
Tax Dec. No. 8547 as described in paragraph 2 thereof,
ordering the defendants to pay to plaintiff a monthly rental in
the amount of FIFTY PESOS (P 50.00) on the premises in
question for its use and occupation from September, 1973,
up to the time when said premises is finally restored to the
plaintiff, and to pay the costs.
SO ORDERED.
On September 28, 1974, defendants filed a motion for reconsideration and to
grant a new trial but was denied in an Order dated October 24, 1974 (Rollo,
p. 28).
On November 12, 1974, defendants filed a notice of appeal but the same
was likewise denied by the trial court on the ground that it was filed beyond
the reglementary period of fifteen (15) days to perfect an appeal.
For failure of the defendants to pay the rentals adjudged in the forcible entry
case (CC No. 56), a writ of execution was issued and after levy, the deputy
sheriff of Calbayog City, on August 4, 1976, sold at public auction the real
property owned by petitioners' deceased father adjoining the land subject of
the forcible entry case more particularly described as follows:
A piece of real estate consisting of coconut and cornland
situated at Bo. Bacjao, Almagro, Samar, Philippines,
CIVPRO IV Civil Procedure Page |9
bounded on the NORTH, by Isabelo Palajos; on the SOUTH,
by Narciso Pajalino; and on the WEST, by Seashore,
containing an area of 2-60-00 hectares, more or less
assessed at P180.00, under Tax Declaration No. 12048, in
the name of Pedro Galicia (deceased); (Rollo, p. 30).
On October 10, 1977, or over 14 months after the execution sale, petitioners
filed a complaint for Ownership and Damages against herein respondents in
the then Court of First Instance of Samar, 13th Judicial District, Br. V,
docketed as Civil Case No. 758-CC, alleging that they are co-owners of a
certain parcel of agricultural land (subject of the auction sale) which they
inherited from their deceased father, Pedro Galicia, more particularly
described as follows:
A parcel of coconut and corn land located at Bacjao,
Almagro, Samar, Philippines, with an area of 26,000 sq. m.
and bounded on the NORTH, by Isabelo Palajos; SOUTH,
by Narciso Pauline; EAST, by Benedicto Paulino and WEST,
by Seashore covered by Tax Declaration No. 12048 in the
name of Pedro Galicia.
The complaint further alleged that pursuant to Civil Case No. 56 (forcible
entry case), respondents were able to take possession of the land in
question as said case was heard ex-parte; and that a decision was rendered
in respondents' favor and said decision was executed sometime in 1976
(Rollo, p. 36-37).
In their Answer, respondents (defendants below) countered that they were
able to take possession of the land described in the complaint by virtue of the
decision and later, execution of the decision in the forcible entry case, which,
by petitioners' (plaintiffs below) averment in their complaint is an admission of
an existing judgment that would constitute res judicata; that they are the
lawful owners of the disputed land the same having been subjected to levy
and execution in 1975 thru a sale in favor of respondents' predecessor-in-
interest, Juan Palajos.
The issues having been enjoined, the case was set for pre-trial by
respondent judge Hon. Wenceslao M. Polo. At the pre-trial, counsel for
private respondents moved for time within which to file a motion for summary
judgment which was granted by respondent judge in his order dated June 28,
1978.

Defendants' (private respondents herein) motion for summary judgment was
filed on July 7, 1978 (Rollo, p. 43) alleging that no genuine issue exists in the
case at bar after the pre-trial was conducted and admission of facts were had
(Rollo, p. 44), while plaintiffs (petitioners herein) filed their opposition to the
motion for summary judgment dated July 17, 1978 alleging among others,
that genuine issues exist (Rollo, pp. 45-47).
On August 11, 1978, the court a quo rendered the assailed summary
judgment dismissing petitioners' complaint (Rollo, p. 48-53), the pertinent
portion of which reads:
As demonstrated by the parties, there is no question that the
land in dispute is that parcel described in paragraph 3 of the
complaint, a portion of which was a subject in a forcible entry
case before the Municipal Trial Court of Almagro Samar
(Exhibit 1, 2 and 3) with the defendants now as sucessors-in-
interest of the plaintiff, and most of the herein plaintiffs as
defendants.
The pleadings also show that upon the death of the primitive
owner, Pedro Galicia, the plaintiffs as children and
grandchildren possessed and owned this land pro-indiviso,
until the possession of said portion was transferred to the
defendants when the decision in that forcible entry case was
executed in 1976 (Exhibit 7) such being the case, therefore,
with respect to this portion of the land in dispute, the
possession is settled, which would constitute as a bar to this
action.
xxx xxx xxx
With respect to the other portion of the land in dispute, the
plaintiffs admit that possession was transferred to the
defendant by virtue of a sale executed by the sheriff; the one
year period having elapsed without exercising their right of
redemption, as a result a final deed of sale was issued. The
legality of the sale not having been assailed by them, for all
intents and purposes, ownership on this land have been
vested on the defendants as heirs of Juan Palajos.
WHEREFORE, premises above considered, judgment is
hereby rendered ordering the dismissal of the plaintiffs'
complaint, without pronouncement as to cost."
C I V P R O I V C i v i l P r o c e d u r e P a g e | 10
A motion to re-open the case for trial on the merits was filed by plaintiffs but
was denied in an order dated November 27, 1978 (Rollo, p. 62). Hence, this
instant petition.
Petitioners contend that the trial court erred when it decided Civil Case No.
758-CC by summary judgment when there are several genuine issues
involved therein which require a trial of these issues on the merits, such as:
(A) WAS THE EXECUTION SALE CONDUCTED BY
DEPUTY PROVINCIAL SHERIFF EUFROCINO T.
OLIFERNES OF LOT NO. 1363 OF THE LATE PEDRO
GALICIA, PETITIONERS' FATHER, VALID TO CONFER
UPON THE DEFENDANTS IN SAID CASE A JUST TITLE
OVER SAID REALTY?
(B) WERE THE UNDIVIDED SHARES AND
PARTICIPATIONS OF JULIAN GALICIA AND CATALINO
GALICIA WHO WERE TWO OF THE LEGITIMATE
CHILDREN OF PEDRO GALICIA NOT IMPLEADED AS
PARTIES IN CIVIL CASE NO. 56 IN THE MUNICIPAL
COURT OF ALMAGRO OVER LOT NO. 1363, AFFECTED
BY THAT EXECUTION SALE?
(C) WERE THE UNDIVIDED SHARES AND
PARTICIPATIONS OF EDUARDA GALICIA AND
PERFECTO GALICIA OVER LOT NO. 1363, BUT WHO
WERE NOT IMPLEADED AS PARTIES IN CIVIL CASE NO.
758-CC OF THE COURT OF FIRST INSTANCE OF SAMAR
(CALBAYOG CITY) AFFECTED BY THE DECISION OF
THE LATTER COURT OF SUMMARY JUDGMENT? (Rollo,
p. 10).
The crucial issue in this case is whether or not the trial court erred when it
decided Civil Case No. 758-CC by summary judgment.
It is the contention of petitioners that the trial court erred in deciding their
complaint (CC No. 758-CC) by summary judgment when there are several
genuine issues involved therein which require a full trial on the merits.
Among other things, petitioners contend that the execution sale conducted by
the Deputy Provincial Sheriff was null and void and would have merited a trial
on the merits. Moreover, it is further contended that as between Civil Case
No. 56 and Civil Case No. 758-CC, there can be no res judicata, considering

that there is no Identity of parties, cause of action and subject matter
between the two actions.
After a thorough review of the records, the Court finds no cogent reason to
disturb the summary judgment rendered by respondent judge.
The Rules of Court authorizes the rendition of summary judgment if the
pleadings, depositions and admissions on file together with the affidavits,
show that, except as to the amount of damages, there is no issue as to any
material fact and that the moving party is entitled to a judgment as a matter
of law (Sec. 3, Rule 34). Conversely, summary judgment is not proper where
the pleadings tender vital issues the resolution of which call for the
presentation of evidence (Villanueva v. NAMARCO, 28 SCRA 729 [1969];
Guevarra, et al., v. CA, et al., 124 SCRA 297 [1983]).
Summary judgment "is a device for weeding out sham claims or defenses at
an early stage of the litigation, thereby avoiding the expense and loss of time
involved in a trial. The very object is 'to separate what is formal or pretended
in denial or averment from what is genuine and substantial, so that only the
latter may subject a suitor to the burden of trial.' The test, therefore, of a
motion for summary judgment is-whether the pleadings, affidavits, and
exhibits in support of the motion are sufficient to overcome the opposing
papers and to justify a finding as a matter of law that there is no defense to
the action or the claim is clearly meritorious" (Estrada v. Hon. Consolacion, et
al., 71 SCRA 523 [1976]).
In addition, summary judgment is one of the methods sanctioned in the
present Rules of Court for a prompt disposition of civil actions wherein there
exists no serious controversy. The procedure may be availed of not only by
claimants, but also by defending parties who may be the object of unfounded
claims. A motion for summary judgment assumes that scrutinizing the facts
will disclose that the issues presented by the pleadings need not be tried
because they are so patently unsubstantial as not to be genuine issues, or
that there is no genuine issue as to any material facts or where the facts
appear undisputed and certain from the pleadings, depositions, admissions
and affidavits (Singleton v. Philippine Trust Co., 99 Phil, 91 [1956], cited in
Bayang v. CA, 148 SCRA 91 [1987]).
Examining petitioners' complaint, the Court finds that the disputed property is
the same parcel of land, which adjoins private respondents' lot which was the
subject of the forcible entry case and from which petitioners were ordered to
vacate. When petitioners (then defendants), failed to satisfy the rentals
adjudged in the forcible entry case, said adjoining parcel of land was sold at
C I V P R O I V C i v i l P r o c e d u r e P a g e | 11
public auction to Juan Palajos (respondents' predecessor-in-interest) as the
higher bidder in the execution sale to satisfy the monetary judgment
rendered therein. The property so described in petitioners' complaint (Rollo,
p. 36) squarely fits what has been levied upon and sold at public auction
(Rollo, p. 30), the owners of which are now private respondents upon the
demise of their predecessor-in-interest.
There is thus no question that issue of ownership of the disputed land subject
of the present petition has long been foreclosed in the forcible entry case
which culminated in the public auction sale of the parcel of land now sought
to be recovered. Having failed to redeem the property sold at the public
auction sale within the reglementary period of twelve (12) months (Sec. 30,
Rule 39 of the Rules of Court), petitioners cannot now claim that they still
own said property. Petitioners' complaint for Ownership and Damages is but
a belated and disguised attempt to revive a judgment debtors' right of
redemption which has long expired. There being no issue as to any material
fact raised in the pleadings, summary judgment may be rendered.
Neither can the issue of the validity of the execution sale help petitioners'
cause. Well-settled in this jurisdiction, is the rule that issues not raised and/or
ventilated in the lower court cannot be raised for the first time on appeal
(Rebodos v. WCC, 6 SCRA 717 [1962]; DBP v. CA, 116 SCRA 636 and a
long line of cases). A review of the records of the case shows that petitioners
failed to directly assail and raise as issue, the validity of the aforementioned
auction sale in their complaint. It was only when the respondent judge noted
such omission in his decision dismissing Civil Case No. 758-CC dated
August 11, 1978 (Rollo, p. 48-53) that petitioners later filed a separate action
for Annulment of Auction Sale and Damages on October 4, 1978 (Civil Case
No. 837-CC; Rollo, p. 31-35). The validity of the execution sale not having
been raised and/or litigated in the case subject of the present appeal, the
Court, at this stage, cannot pass upon the same for the purpose of
determining the propriety of the summary judgment. Objections to the
execution sale cannot be considered in the Supreme Court inasmuch as it
was not raised in the lower court (Ramiro v. Grano 54 Phil. 744 [1930]; citing
Tan Machan v. de la Trinidad, 3 Phil. 684 [1904] and U.S. v. Inductive, 40
Phil. 84 [1919]).
WHEREFORE, the instant petition is hereby DENIED for lack of merit. Costs
against petitioners.
SO ORDERED.
Fernan, C.J., Gutierrez, Jr., Feliciano and Cortes, JJ., concur.

G.R. No. 106436 December 3, 1994
VIRGILIO D. IMSON, petitioner,
vs.
HON. COURT OF APPEALS, HOLIDAY HILLS STOCK AND BREEDING
FARM CORPORATION, FNCB FINANCE CORPORATION, respondents.
Actions; Parties; Requisites before the case of Lim Tanhu v. Ramolete, 66
SCRA 425 (1975), may apply.— For Lim Tanhu to apply to the case at bench,
it must be established that: (1) petitioner has a common cause of action against
private respondents and the other defendants in Civil Case No. 248-R; and (2)
all the defendants are indispensable parties to the case.
Same; Same; Words and Phrases; “Cause of Action,” Defined .—Cause of
action has a fixed meaning in this jurisdiction. It is the delict or wrong by which
the right of the plaintiff is violated by the defendant. The question as to whether
a plaintiff has a cause of action is determined by the averments in the
pleadings pertaining to the acts of the defendant. Whether such acts give him
a right of action is determined by substantive law.
Same; Same; Same; “Indispensable Party,” Defined. —But this is not all.
Defendants in Civil Case No. 248-R are not all indispensable parties. An
indispensable party is one whose interest will be affected by the court’s action
in the litigation, and without whom no final determination of the case can be
had. The party’s interest in the subject matter of the suit and in the relief sought
are so inextricably intertwined with the other parties’ that his legal presence as
a party to the proceeding is an absolute necessity. In his absence there cannot
be a resolution of the dispute of the parties before the court which is effective,
complete, or equitable.
Same; Same; Same; A party is not indispensable to the suit if his interest in
the controversy or subject matter is distinct and divisible from the interest of
the other parties and will not necessarily be prejudiced by a judgment which
does complete justice to the parties in court.—Conversely, a party is not
indispensable to the suit if his interest in the controversy or subject matter is
distinct and divisible from the interest of the other parties and will not
necessarily be prejudiced by a judgment which does complete justice to the
parties in court. He is not indispensable if his presence would merely permit
complete relief between him and those already parties to the action, or will
simply avoid multiple litigation.
C I V P R O I V C i v i l P r o c e d u r e P a g e | 12
Same; Same; Same; “Proper Party,” Defined; Insurance; In a case arising from
a vehicular collision where the driver, the registered owners, the beneficial
owners, and the insurer were sued, a compromise agreement entered into
between the plaintiff and the insurer resulting in the dismissal of the case as
against the insurer did not redound to the benefit of the other defendants.—It
is true that all of petitioner’s claims in Civil Case No. 248-R is premised on the
wrong committed by defendant truck driver. Concededly, the truck driver is an
indispensable party to the suit. The other defendants, however, cannot be
categorized as indispensable parties. They are merely proper parties to the
case. Proper parties have been described as parties whose presence is
necessary in order to adjudicate the whole controversy, but whose interests
are so far separable that a final decree can be made in their absence without
affecting them. It is easy to see that if any of them had not been impleaded as
defendant, the case would still proceed without prejudicing the party not
impleaded. Thus, if petitioner did not sue Western Guaranty Corporation, the
omission would not cause the dismissal of the suit against the other
defendants. Even without the insurer, the trial court would not lose its
competency to act completely and validly on the damage suit. The insurer,
clearly, is not an indispensable party in Civil Case No. 248-R.
PETITION for review of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Polotan Law Office for petitioner.
Felix R. Solomon for private respondents.
PUNO, J.:
The case at bench arose from a vehicular collision on December 11, 1983,
involving petitioner's Toyota Corolla and a Hino diesel truck registered under
the names of private respondents FNCB Finance Corporation and Holiday
Hills Stock and Breeding Farm Corporation. The collision seriously injured
petitioner and totally wrecked his car.
On January 6, 1984, petitioner filed with the RTC Baguio City1 a Complaint
for Damages2 Sued were private respondents as registered owners of the
truck; truck driver Felix B. Calip, Jr.; the beneficial owners of the truck,

Gorgonio Co Adarme, Felisa T. Co (also known as Felisa Tan), and Cirilia
Chua Siok Bieng, and the truck insurer, Western Guaranty Corporation.
The Complaint prayed that defendants be ordered to pay, jointly and
severally, two hundred seventy thousand pesos (P270,000.00) as
compensatory damages, fifty thousand pesos (P50,000.00) each as moral
and exemplary damages, and attorney's fees, litigation expenses, and cost of
suit.8
Defendants driver and beneficial owners failed to answer and were declared
in default.4 On May 29, 1987, however, petitioner and defendant insurer,
entered into a compromise agreement which provided, inter alia:
1. Defendant Western Guaranty Corporation (Western
Guaranty for short) admits that its total liability under the
laws and the insurance contract sued upon is P70,000.00;
2. In full settlement of its liability under the laws and the said
insurance contract, defendant Western Guaranty shall pay
plaintiff (herein petitioner) the amount of P70,000.00 upon
the signing of this compromise agreement;
3. This compromise agreement shall in no way waive nor
prejudice plaintiffs (herein petitioner's) rights to proceed
against the other defendants with respect the remainder of
his claims;
4. This compromise agreement shall be a full and final
settlement of the issues between plaintiff (herein petitioner)
and defendant Western Guaranty in their complaint and
answer and, from now on, they shall have no more right
against one another except the enforcement of this
compromise agreement.
In consequence of the compromise agreement, the trial court dismissed the
Complaint for Damages against Western Guaranty Corporation on June 16,
1987.8 A copy of the Order of dismissal was received by private respondent
Holiday Hills Stock and Breeding Farm Corporation on July 13, 1987. Nearly
eighteen (18) months later, said private respondent moved to dismiss the
case against all the other defendants. It argued that since they are all
indispensable parties under a common cause of action, the dismissal of the
case against defendant insurer must result in the dismissal of the suit against
all of them. The trial court denied the motion.
C I V P R O I V C i v i l P r o c e d u r e P a g e | 13
Private respondent Holiday Hills Stock and Breeding Farm Corporation
assailed the denial order through a Petition for Certiorari, Prohibition and
Mandamus With Restraining Order filed with respondent Court of Appeals.
The Petition was docketed as CA-G.R. SP No. 17651. On July 10, 1992, the
Court of Appeals,7 through its Special Sixth Division,8 reversed the trial
court, as it ruled:
The petitioner (herein private respondent Holiday Hills Stock and Breeding
Farm Corporation) cites the doctrine laid down in Lim Tanhu v. Hon.
Ramolete, 66 SCRA 425, as applied later in Co v. Acosta, 134 SCRA 185, to
support its averment that the court a quo gravely abused its discretion in
refusing to dismiss the case.
Essentially, the doctrine adverted to essays that in a common cause of action
where all the defendants are indispensable parties, the court's power to act is
integral and cannot be split, such that it cannot relieve any of them and at the
same time render judgment against the rest.
We find applicability of the doctrine to the case at bar.
A cursory reading of the complaint . . . reveals that the cause of action was
the alleged bad faith and gross negligence of the defendants resulting in the
injuries complained of and for which the action for damages was filed. The
inclusion of Western Guaranty Corporation was vital to the claim, it being the
insurer of the diesel truck without which, the claim could be set for naught.
Stated otherwise, it is an indispensable party as the petitioner (herein private
respondent stock and breeding farm corporation) . . . . Private respondent's
(herein petitioner's argument that the said insurance company was sued on a
different cause of action, i.e., its bounden duty under the insurance law to
pay or settle claims arising under its policy coverage, is untenable, for the
cited law perceives the existence of a just cause, and according to the
answer filed by the Western Guaranty Corporation . . . the proximate cause
of the accident was the fault of the plaintiff (herein petitioner), hence it was
not liable for damages. There is in fact a congruence of affirmative defense
among the answering defendants.
Moreover, it is undisputed that the injury caused is covered by the insurance
company concerned. Thus, when the said insurer settled its liability with the
private respondent (petitioner herein) . . . , the other defendants, as the
insured and indispensable parties to a common cause of action, necessarily
benefited from such settlement including the defaulted defendants, for as
stated in the aforecited cases, it is deemed that anything done by or for the
answering defendant is done by or for the ones in default since it is implicit in

the rule that default is in essence a mere formality that deprives them of no
more than to take part in the trial, but if the complaint is dismissed as to the
answering defendant, it should also be dismissed as to them.9 (Citations
omitted.)
Petitioner now comes to this Court with the following assignments of error:
A.
RESPONDENT COURT OF APPEALS COMMITTED A
REVERSIBLE ERROR IN RULING THAT THE
DEFENDANTS IN CIVIL CASE NO. 248-R ARE
INDISPENSABLE PARTIES;
B.
RESPONDENT COURT OF APPEALS COMMITTED A
REVERSIBLE ERROR IN RULING THAT IN CIVIL CASE
NO. 248-R THERE IS A COMMON CAUSE OF ACTION
AGAINST THE DEFENDANTS THEREIN;
C.
RESPONDENT COURT OF APPEALS COMMITTED A
REVERSIBLE ERROR IN RULING THAT IN CIVIL CASE
NO. 248-R THE RULING OF THIS HONORABLE COURT IN
LIM TAN HU VS. RAMOLETE IS APPLICABLE;
D.
RESPONDENT COURT OF APPEALS COMMITTED A
REVERSIBLE ERROR IN RULING THAT THE DOCTRINE
OF ESTOPPEL AND LACHES ON MATTERS OF
JURISDICTION IS NOT APPLICABLE IN CIVIL CASE NO.
248-R.
There is merit to the petition,.
In the case of Lim Tanhu v. Ramolete, 66 SCRA 425, 458-459 (1975) this
court held that:
C I V P R O I V C i v i l P r o c e d u r e P a g e | 14
. . . (I)n all instances where a common cause of action is
alleged against several defendants, some of whom answer
and the others do not, the latter or those in default acquire a
vested right not only to own the defense interposed in the
answer of their co-defendant or co-defendants not in default
but also to expect a result of the litigation totally common
with them in kind and in amount whether favorable or
unfavorable. The substantive unity of the plaintiffs cause
against all the defendants is carried through to its adjective
phase as ineluctably demanded by the homogeneity and
indivisibility of justice itself. . . . The integrity of the common
cause of action against all the defendants and the
indispensability of all of them in the proceedings do not
permit any possibility of waiver of the plaintiffs right only as
to one or some of them, without including all of them, and so,
as a rule, withdrawal must be deemed to be a confession of
weakness as to all. . . . . Where all the defendants are
indispensable parties, for which reason the absence of any
of them in the case would result in the court losing its
competency to act validly, any compromise that the plaintiff
might wish to make with any of them must, as a matter of
correct procedure, have to await until after the rendition of
the judgment, at which stage the plaintiff may then treat the
matter of its execution and the satisfaction of his claim as
variably as he might please. Accordingly, in the case now
before Us together with the dismissal of the complaint
against the non-defaulted defendants, the court should have
ordered also the dismissal thereof as to petitioner (referring
to the defaulting defendants in the case).
In sum, Lim Tanhu states that where a complaint alleges a common cause of
action against defendants who are all indispensable parties to the case, its
dismissal against any of them by virtue of a compromise agreement with the
plaintiff necessarily results in the dismissal of the case against the other
defendants, including those in default. The ruling is rooted on the rationale
that the court's power to act in a case involving a common cause of action
against indispensable parties "is integral and cannot be split such that it
cannot relieve any of them and at the same time render judgment against the
rest. 10
For Lim Tanhu to apply to the case at bench, it must be established that: (1)
petitioner has common cause of action against private respondents and the
other defendants in Civil Case No. 248-R; and (2) all the defendants are
indispensable parties to the case.

Cause of action has a fixed meaning in this jurisdiction. It is the delict or
wrong by which the right of the plaintiff is violated by the defendant. 11 The
question as to whether a plaintiff has a cause of action is determined by the
averments in the pleadings pertaining to the acts of the defendant. Whether
such acts give him a right of action is determined by substantive law. 12
In the case at bench, it is clear that petitioner has different and separate
causes of action against the defendants in the case. The allegations in the
Complaint show that petitioner seeks to recover from the truck driver for his
wrong which caused injury to petitioner and his car. The cause of action
against him is based on quasi-delict under Article 2176 of the New Civil
Code. Quasi-delict, too, is the basis of the cause of action against
defendants beneficial and registered owners. But in their case, it is Article
2180 of the same Code which governs the rights of the parties.
However, with respect to defendant Western Guaranty Corporation,
petitioner's cause of action is based on contract. He seeks to recover from
the insurer on the basis of the third party liability clause of its insurance
contract with the owners of the truck. This is acknowledged by the second
paragraph of the compromise agreement between petitioner and defendant
insurer, thus:
2. In full settlement of its liability under the laws and the said
insurance contract, defendant Western Guaranty shall pay
plaintiff (herein petitioner) the amount of P70,000.00 upon
the signing of this compromise agreement.
Quite clearly then, Lim Tanhu will not apply to the case at bench for
there is no showing that petitioner has a common cause of action
against the defendants in Civil Case No. 248-R.
But this is not all. Defendants in Civil Case No. 248-R are not all
indispensable parties. An indispensable party is one whose interest will be
affected by the court's action in the litigation, and without whom no final
determination of the case can be had. The party's interest in the subject
matter of the suit and in the relief sought are so inextricably intertwined with
the other parties' that his legal presence as a party to the proceeding is an
absolute necessity. 13 In his absence there cannot be a resolution of the
dispute of the parties before the court which is effective, complete, or
equitable.14
Conversely, a party is not indispensable to the suit if his interest in the
controversy or subject matter is distinct and divisible from the interest of the
C I V P R O I V C i v i l P r o c e d u r e P a g e | 15
other parties and will not necessarily be prejudiced by a judgment which
does complete justice to the parties in court.15 He is not indispensable if his
presence would merely permit complete relief between him and those
already parties to the action, or will simply avoid multiple litigation.16
It is true that all of petitioner's claims in Civil Case No. 248-R is premised on
the wrong committed by defendant truck driver. Concededly, the truck driver
is an indispensable party to the suit. The other defendants, however, cannot
be categorized as indispensable parties. They are merely proper parties to
the case. Proper parties have been described as parties whose presence is
necessary in order to adjudicate the whole controversy, but whose interests
are so far separable that a final decree can be made in their absence without
affecting them.17 It is easy to see that if any of them had not been impleaded
as defendant, the case would still proceed without prejudicing the party not
impleaded. Thus, if petitioner did not sue Western Guaranty Corporation, the
omission would not cause the dismissal of the suit against the other
defendants. Even without the insurer, the trial court would not lose its
competency to act completely and validly on the damage suit. The insurer,
clearly, is not an indispensable party in Civil Case No. 248-R.
IN VIEW WHEREOF, the instant petition is GRANTED. The Decision, dated
July 10, 1992, of the Court of Appeals in CA-G.R. SP No. 17651 is
REVERSED AND SET ASIDE. The Complaint in Civil Case No. 248-R is
REINSTATED and REMANDED to the trial court for further proceedings. No
costs.
SO ORDERED.
Narvasa C.J., Regalado and Mendoza, JJ., concur.

G.R. No. 101789. April 28, 1993.
BHAGWAN RAMNANI, petitioner,
vs.
COURT OF APPEALS, HON. BUENAVENTURA J. GUERRERO, as
Regional Trial Court Judge of Makati, Metro Manila, Branch 133, SPOUSES
CENON G. DIZON and JULIETTE B. DIZON, respondents.
Remedial Law; Civil Procedure; Default; Remedies available to a defendant
declared in default.—The basic rule is found in Section 2, Rule 20, viz: “A party
who fails to appear at a pre-trial conference may be non-suited or considered
as in default.” As held in Lina v. Court of Appeals, the remedies available to a
defendant in the regional trial court who has been declared in default are: a)
The defendant in default may, at any time after discovery thereof and before
judgment, file a motion, under oath, to set aside the order of default on the
ground that his failure to answer was due to fraud, accident, mistake or
excusable neglect, and that he has a meritorious defense; (Sec. 3, Rule 18) b)
If the judgment has already been rendered when the defendant discovered the
default, but before the same has become final and executory, he may file a
motion for new trial under Section 1(a) of Rule 37; c) If the defendant
discovered the default after the judgment has become final and executory, he
may file a petition for relief under Section 2 of Rule 38; and d) He may also
appeal from the judgment rendered against him as contrary to the evidence or
to the law, even if no petition to set aside the order of default has been
presented by him. (Sec. 2, Rule 41).
Same; Same; Same; Indispensable requirement for the setting aside of a
judgment of default or the order of default; A satisfactory showing by the
movant of the existence of fraud, accident, mistake or excusable neglect is an
indispensable requirement for the setting aside of a judgment of default or the
order of default.—A satisfactory showing by the movant of the existence of
fraud, accident, mistake or excusable neglect is an indispensable requirement
for the setting aside of a judgment of default or the order of default. After going
over the pleadings of the parties and the decision of the respondent court, we
find that the motion to lift the order of default was properly denied for non-
compliance with this requirement. The defendants were less than
conscientious in defending themselves and protecting their rights before the
trial court. They did not pay proper attention and respect to its directive. The
petitioner has not shown that his and his wife’s failure to attend the pre-trial
hearing as required was due to excusable neglect, much less to fraud, accident
or mistake.
C I V P R O I V C i v i l P r o c e d u r e P a g e | 16
Same; Same; Certiorari; The special civil action for certiorari is a remedy
designed for the correction of errors of jurisdiction and not errors of
judgment.—As we held in Pure Foods Corporation v. NLRC: It must
emphatically be reiterated, since so often is it overlooked, that the special civil
action for certiorari is a remedy designed for the correction of errors of
jurisdiction and not errors of judgment. The reason for the rule is simple. When
a court exercises its jurisdiction, an error committed while so engaged does
not deprive it of the jurisdiction being exercised when the error is committed. If
it did, every error committed by a court would deprive it of its jurisdiction and
every erroneous judgment would be a void judgment. This cannot be allowed.
The administration of justice would not survive such a rule. Consequently, an
error of judgment that the court may commit in the exercise of its jurisdiction is
not correctible through the original civil action of certiorari.
PETITION for review of the decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Bernardo D. Calderon for petitioner.
Zosimo Cuasay for private respondent.
DECISION
CRUZ, J p:
On March 13, 1990, the spouses Juliette Dizon and Cenen Dizon filed a
complaint in the Regional Trial Court of Makati against the spouses
Josephine Anne Ramnani and Bhagwan Ramnani for the collection of a sum
of money representing the alleged unremitted value of jewelry received by
Josephine from Juliette on consignment basis.
Josephine Ramnani submitted an answer with counterclaim 2 in which she
alleged inter alia:
(a) That although she did receive pieces of jewelry worth P934,347.00 from
Dizon, the latter had likewise received from her jewelries worth
P1,671,842,00, including cash and unpaid checks in the amount of
P159,742.50;
(b) That she paid Dizon P50,000; and

(c) That Dizon still owes her P787,495.00;
The trial court set the case for pre-trial on August 14, 1990, 3 but the
Ramnanis did not appear. Consequently, they were declared in default. 4 On
September 12, 1990, they filed a motion to lift the order of default, but this
was denied on November 20, 1990.
On October 26, 1990, conformably to the default order, evidence of the Dizon
spouses was received ex parte. On January 28, 1991, Judge Buenaventura
J. Guerrero rendered judgment against the Ramnanis, holding them liable to
the plaintiffs in the amounts of P884,347.00, representing the principal
obligation plus legal interest thereon from March 13, 1990, until fully paid;
P100,000.00 as moral damages; and P20,000.00 as exemplary damages.
They were also required to pay P50,000.00 as attorney's fees, and the costs
of the suit.
The Ramnanis filed a motion for reconsideration on the ground that a
"personal obligation contracted by the wife without the consent of the
husband (was) being made enforceable against the spouses' conjugal
partnership despite absence of any allegation and proof that the same
redounded to the benefit of the family as required by Article 121 of the Family
Code." 7 The motion was denied on April 11, 1991.
On April 29, 1991, Bhagwan Ramnani filed a petition for certiorari before the
respondent Court of Appeals imputing error to the trial court:
(1) in denying the motion to lift order declaring petitioner as in default despite
a clear showing of a meritorious defense;
(2) in not considering petitioner's reason for failure to attend pre-trial as
excusable neglect.
In a decision dated May 10, 1991, the Court of Appeals dismissed the
petition, holding that certiorari was not the proper remedy. 9
The respondent court said:
Petitioners alleged that the respondent court erred and committed grave
abuse of discretion and/or acted in excess of jurisdiction in assigning its
Branch Clerk of Court as the hearing commissioner for the purpose of the ex
parte reception of plaintiffs' evidence (par. 19, Petition); that the questioned
Decision failed to specify whether defendants are solidarily or only jointly
C I V P R O I V C i v i l P r o c e d u r e P a g e | 17
liable (par. 20, Petition); and that petitioner had a valid and meritorious
defense (par. 21, Petition). These are matters that could very well be
ventilated in an ordinary appeal. It should be stressed that the writ of
certiorari issues for the correction of errors of jurisdiction only or grave abuse
of discretion amounting to lack or excess of jurisdiction. It cannot be legally
used for any other purpose (Silverio vs. Court of Appeals, 141 SCRA 527).
Mere error of judgment cannot be a proper subject of the special civil action
for certiorari (Zapata vs. NLRC, 175 SCRA 56). Further, it is a settled rule
that certiorari cannot be made a substitute for an perform the function of an
appeal (People vs. Cuaresma, 172 SCRA 415).
The petitioner has come to this Court to challenge that decision. He avers
that the Court of Appeals erred in upholding the refusal of the trial court to set
aside the order of default and the default judgment thereafter issued.
The basic rule is found in Section 2, Rule 20, viz: "A party who fails to appear
at a pre-trial conference may be non-suited or considered as in default."
As held in Lina v. Court of Appeals, 10 the remedies available to a defendant
in the regional trial court who has been declared in default are:
a) The defendant in default may, at any time after discovery thereof and
before judgment, file a motion, under oath, to set aside the order of default
on the ground that his failure to answer was due to fraud, accident, mistake
or excusable neglect, and that he has a meritorious defense; (Sec. 3, Rule
18)
b) If the judgment has already been rendered when the defendant discovered
the default, but before the same has become final and executory, he may file
a motion for new trial under Section 1(a) of Rule 37;
c) If the defendant discovered the default after the judgment has become
final and executory, he may file a petition for relief under Section 2 of Rule
38; and
d) He may also appeal from the judgment rendered against him as contrary
to the evidence or to the law, even if no petition to set aside the order of
default has been presented by him. (Sec. 2, Rule 41)
The first remedy was adopted by the petitioner but his motion to lift the order
of default was denied. According to the trial court:

Defendants' non-appearance is inexcusable. It is unbelievable their former
lawyer did not explain to them the mandatory character of their appearance.
Their invocation of the deteriorating health of defendant Josephine
necessitating her trip abroad for appropriate medical treatment, is unavailing.
There is no medical certificate to attest such illness. Besides, at the time of
the hearing of the motion on October 19, 1990, counsel for the defendants
admitted that Josephine had not yet arrived from the States, despite their
averment in their motion she would "only be back late September or early
October of this year." This only indicates her light regard of her duty to
appear in court. Moreover, the other defendant Bhagwan Ramnani did not
submit any other plausible explanation for his absence in the pre-trial.
A satisfactory showing by the movant of the existence of fraud, accident,
mistake or excusable neglect is an indispensable requirement for the setting
aside of a judgment of default or the order of default. After going over the
pleadings of the parties and the decision of the respondent court, we find that
the motion to lift the order of default was properly denied for non-compliance
with this requirement.
The defendants were less than conscientious in defending themselves and
protecting their rights before the trial court. They did not pay proper attention
and respect to its directive. The petitioner has not shown that his and his
wife's failure to attend the pre-trial hearing as required was due to excusable
neglect, much less to fraud, accident or mistake.
The petitioner insists, however, that they had a meritorious defense which
the trial court should not have disregarded. A meritorious defense is only one
of the two conditions. Even if it be assumed for the sake of argument that the
private respondents did owe Josephine Ramnani P900,000, as alleged in the
counterclaim, that circumstance alone is not sufficient to justify the lifting of
the order of default and the default judgment. The obvious reason is that a
meritorious defense must concur with the satisfactory reason for the non-
appearance of the defaulted party. There is no such reason in this case.
The appropriate remedy is an ordinary appeal under Section 2 of Rule 41 of
the Rules of Court providing in part as follows:
A party who has been declared in default may likewise appeal from the
judgment rendered against him as contrary to the evidence or to the law,
even if no petition for relief to set aside the order of default has been
presented by him in accordance with Rule 38.
C I V P R O I V C i v i l P r o c e d u r e P a g e | 18
In questioning the dismissal of its petition by the respondent court, the
petitioner invokes the case of Pioneer Insurance and Surety Corporation v.
Hontanosas, 11 where the Court sustained the challenge to an order of
default in a petition for certiorari rather than in an ordinary appeal, which was
held as not an adequate remedy.
That case is not applicable to the present petition. Certiorari was allowed in
that case because the petitioner was illegally declared in default. The Court
held that, first, the petitioner could not be compelled to attend an
unnecessary second pre-trial after it had indicated at the earlier pre-trial that
there was no possibility of an amicable settlement; second, the pre-trial was
premature because the last pleading had not yet been filed at the time; and
third, there was insufficient notice of the pre-trial to the petitioner. In the case
at bar, no such irregularities in the pre-trial have been alleged by the
petitioner.
As we held in Pure Foods Corporation v. NLRC:
It must emphatically be reiterated, since so often is it overlooked, that the
special civil action for certiorari is a remedy designed for the correction of
errors of jurisdiction and not errors of judgment. The reason for the rule is
simple. When a court exercises its jurisdiction, an error committed while so
engaged does not deprive it of the jurisdiction being exercised when the error
is committed. If it did, every error committed by a court would deprive it of its
jurisdiction and every erroneous judgment would be a void judgment. This
cannot be allowed. The administration of justice would not survive such a
rule. Consequently, an error of judgment that the court may commit in the
exercise of its jurisdiction is not correctible through the original civil action of
certiorari.
Even on the supposition that certiorari was an appropriate remedy, the
petition would still fail because it has not been clearly shown that the trial
court committed grave abuse of discretion in refusing to set aside the default
order and the default judgment. We have held in many cases, including
Pahilanga v. Luna, 13 that:
It is within the sound discretion of the court to set aside an order of default
and to permit a defendant to file his answer and to be heard on the merits
even after the reglementary period for the filing of the answer has expired,
but it is not error, or an abuse of discretion, on the part of the court to refuse
to set aside its order of default and to refuse to accept the answer where it
finds no justifiable reason for the delay in the filing of the answer. In motions
for reconsideration of an order of default, the moving party has the burden of
 C I V P R O I V C i v i l P r o c e d u r e P a g e | 19

showing such diligence as would justify his being excused from not filing the
answer within the reglementary period as provided by the Rules of Court,
otherwise, these guidelines for an orderly and expeditious procedure would
be rendered meaningless. Unless it is shown clearly that a party has
justifiable reason for the delay the court will not ordinarily exercise its
discretion in his favor.

The above doctrine is applicable to the inexcusable neglect of the herein

petitioner and his wife to appear at the pre-trial hearing duly scheduled and
of which they were properly notified.

We must, however, moderate the award of damages by the trial court as we

feel it is rather harsh upon the petitioner. In the exercise of our discretion, we
hereby reduce the moral damages to P20,000.00 and the attorney's fees to
P10,000.00, and disallow the exemplary damages. The rest of the award is
approved.

WHEREFORE, the challenged decision is AFFIRMED as above modified,

with costs against the petitioner. It is so ordered.

Griño-Aquino, Bellosillo and Quiason, JJ ., concur.


G.R. No. 70895 May 30, 1986
HABALUYAS ENTERPRISES, INC. and PEDRO HABALUYAS, petitioners,
vs.
JUDGE MAXIMO M. JAPSON, Manila Regional Trial Court, Branch 36;
SHUGO NODA & CO., LTD., and SHUYA NODA, respondents.
Remedial Law; Civil Procedure; Pleadings; Appeals; Fifteen-day period for
appeal or for filing a motion for reconsideration from a final order or ruling of
the Regional Trial Court cannot be extended.—We hold that the trial court
erred in granting the motion for new trial. The fifteen-day period for appealing
or for filing a motion for reconsideration cannot be extended. Even under the
existing Rules of Court the thirty-day period cannot be extended (Roque vs.
Gunigun-do, Adm. Case No. 1664, March 30, 1978, 89 SCRA 178, 182; Gibbs
vs. Court of First Instance of Manila, 80 Phil. 160, 164).
Same; Same; Same; Same; Same; B.P. Blg. 129, enactment of, designed to
avoid the procedural delays under the Rules which were originally intended to
assist the parties in obtaining a just, speedy and inexpensive administration of
justice.—The Judiciary Revamp Law, Batas Pambansa Blg. 129, is designed
to avoid the procedural delays which plagued the administration of justice
under the Rules of Court which were originally intended to assist the parties in
obtaining a just, speedy and inexpensive administration of justice. That is why
(with some exceptions) the record on appeal was dispensed with and the thirty-
day period was reduced to fifteen days.
PETITION to review the order of the Regional Trial Court of Manila, Br. 36.
Japzon, J.
The facts are stated in the opinion of the Court.
RESOLUTION
FERIA, J.:
Respondents have filed a motion for reconsideration of the Decision of the
Second Division of the Court promulgated on August 5, 1985 which granted
C I V P R O I V C i v i l P r o c e d u r e P a g e | 20
the petition for certiorari and prohibition and set aside the order of
respondent Judge granting private respondents' motion for new trial.
The issue in this case is whether the fifteen-day period within which a party
may file a motion for reconsideration of a final order or ruling of the Regional
Trial Court may be extended.
Section 39 of The Judiciary Reorganization Act, Batas Pambansa Blg. 129,
reduced the period for appeal from final orders or judgments of the Regional
Trial Courts (formerly Courts of First Instance) from thirty (30) to fifteen (15)
days and provides a uniform period of fifteen days for appeal from final
orders, resolutions, awards, judgments, or decisions of any court counted
from notice thereof, except in habeas corpus cases where the period for
appeal remains at forty- eight (48) hours. To expedite appeals, only a notice
of appeal is required and a record on appeal is no longer required except in
appeals in special proceedings under Rule 109 of the Rules of Court and in
other cases wherein multiple appeals are allowed. Section 19 of the Interim
Rules provides that in these exceptional cases, the period for appeal is thirty
(30) days since a record on appeal is required. Moreover Section 18 of the
Interim Rules provides that no appeal bond shall be required for an appeal,
and Section 4 thereof disallows a second motion for reconsideration of a final
order or judgment.
All these amendments are designed, as the decision sought to be
reconsidered rightly states, to avoid the procedural delays which plagued the
administration of justice under the Rules of Court which are intended to
assist the parties in obtaining a just, speedy and inexpensive administration
of justice.
However, the law and the Rules of Court do not expressly prohibit the filing of
a motion for extension of time to file a motion for reconsideration of a final
order or judgment.
In the case of Gibbs vs. Court, of First Instance (80 Phil. 160), the Court
dismissed the petition for certiorari and ruled that the failure of defendant's
attorney to file the petition to set aside the judgment within the reglementary
period was due to excusable neglect, and, consequently, the record on
appeal was allowed. The Court did not rule that the motion for extension of
time to file a motion for new trial or reconsideration could not be granted.
In the case of Roque vs. Gunigundo (Administrative Case No. 1684, March
30, 1979, 89 SCRA 178), a division of the Court cited the Gibbs decision to
 C I V P R O I V C i v i l P r o c e d u r e P a g e | 21

support a statement that a motion to extend the reglementary period for filing WHEREFORE, the motion for reconsideration of, and to set aside, the
the motion for reconsideration is not authorized or is not in order. decision of August 5, 1985 is granted and the petition is dismissed. No costs.

The Intermediate Appellate Court is sharply divided on this issue. Appeals SO ORDERED.
have been dismissed on the basis of the original decision in this case.
Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Alampay,
After considering the able arguments of counsels for petitioners and Gutierrez, Jr., Cruz and Paras, JJ., concur.
respondents, the Court resolved that the interest of justice would be better
served if the ruling in the original decision were applied prospectively from Abad Santos, J., took no part.
the time herein stated. The reason is that it would be unfair to deprive parties
of their right to appeal simply because they availed themselves of a
procedure which was not expressly prohibited or allowed by the law or the
Rules. On the other hand, a motion for new trial or reconsideration is not a
pre-requisite to an appeal, a petition for review or a petition for review on
certiorari, and since the purpose of the amendments above referred to is to
expedite the final disposition of cases, a strict but prospective application of
the said ruling is in order. Hence, for the guidance of Bench and Bar, the
Court restates and clarifies the rules on this point, as follows:

1.) Beginning one month after the promulgation of this Resolution, the rule
shall be strictly enforced that no motion for extension of time to file a motion
for new trial or reconsideration may be filed with the Metropolitan or
Municipal Trial Courts, the Regional Trial Courts, and the Intermediate
Appellate Court. Such a motion may be filed only in cases pending with the
Supreme Court as the court of last resort, which may in its sound discretion
either grant or deny the extension requested.

2.) In appeals in special proceedings under Rule 109 of the Rules of Court
and in other cases wherein multiple appeals are allowed, a motion for
extension of time to file the record on appeal may be filed within the
reglementary period of thirty (30) days. (Moya vs. Barton, 76 Phil. 831; Heirs
of Nantes vs. Court of Appeals, July 25, 1983, 123 SCRA 753.) If the court
denies the motion for extension, the appeal must be taken within the original
period (Bello vs. Fernando, January 30, 1962, 4 SCRA 135), inasmuch as
such a motion does not suspend the period for appeal (Reyes vs. Sta. Maria,
November 20, 1972, 48 SCRA 1). The trial court may grant said motion after
the expiration of the period for appeal provided it was filed within the original
period. (Valero vs. Court of Appeals, June 28, 1973, 51 SCRA 467;
Berkenkotter vs. Court of Appeals, September 28, 1973, 53 SCRA 228).

All appeals heretofore timely taken, after extensions of time were granted for
the filing of a motion for new trial or reconsideration, shall be allowed and
determined on the merits.

G.R. No. L-34007 May 25, 1979
MARCELINO BELAMIDE, ALFREDO BELAMIDE (deceased and herein
substituted by his children Rodolfo, Reynaldo, Lilian and Alfredo, Jr.,
all surnamed Belamide), JOSE BELAMIDE, ANTONIO BELAMIDE,
MARIA BELAMIDE, LEONISA BELAMIDE and SALUD BELAMIDE,
petitioners,
vs.
THE HONORABLE COURT OF APPEALS and BIENVENIDO MONTOYA,
FRANCISCA MONTOYA and GREGORIO MONTOYA, respondents.
Evidence; New Trial; New Trial cannot be obtained on ground that court relied
on falsified evidence where movants could have presented the alleged
genuine document, that respondent’s father is unknown, during the trial.—
There can be no grave abuse of discretion by the Court of Appeals in denying
petitioner’s Motion for New Trial. The document alleged to be falsified (Exh. 8)
was presented in the trial in the lower court. Petitioners should have attacked
the same as falsified with competent evidence, which could have been
presented, if they had exercised due diligence in obtaining said evidence,
which is Annex “A” to the Motion for New Trial (Annex F to Petition). It is,
therefore, not a newly discovered evidence that could justify a new trial (rule
37 [1-b], Rules of Court.)
Same; Same; Alleged newly-discovered evidence will not change the result as
found by the decision below. Hence, new trial properly denied.—The new
evidence would neither change the result as found by the decision. It might
prove that Hilarion Montoya was registered at birth without his father having
been given, but from the testimony of Marcelino Belamide, one of the
applicants (now petitioners), Vicenta Montoya was married twice, although he
did not know the first husband. Likewise, in the opposition of private
respondents (pp. 30-31, Record on Appeal), it is there alleged that the land
originally belonged to the spouses Martin Montoya and Vicenta Montoya. This
allegation was never contradicted.
Jurisdiction; Land Registration; Lower Court as a land registration court may
adjudicate the land applied for registration to the applicants and oppositors
when compelled to do so by the conflicting claims of ownership of the parties
to the proceedings.—The jurisdiction of the lower court as a land registration
court to adjudicate the land for purposes of registration cannot, as petitioners
try to do, be questioned. The applicants and oppositors both claim rights to the
land by virtue of their relationship to the original owner, the late Vicenta
Montoya. The Court is thus necessarily impelled to determine the truth of their
C I V P R O I V C i v i l P r o c e d u r e P a g e | 22
alleged relationship, and on the basis thereof, to adjudicate the land to them
as the law has prescribed to be their successional rights. The law does not
require the heirs to go to the probate court first before applying for the
registration of the land, for a declaration of heirship. This would be a very
combersome procedure, unnecessarily expensive and unreasonably
inconvenient, clearly averse to the rule against multiplicity of suits.
Same; Same; Court as land registration court may adjudicate ownership of
land sought to be registered between applicants and oppositors who in effect
acquiesced to the exercise of that jurisdiction and presented their respective
claims of ownership over the land in question.—In filing their opposition to the
application, private respondents merely went to the same court invoking its
jurisdiction in exactly the same fashion as did the petitioners. In effect, there
was unanimity among the parties in consenting to, or acquiescing in, the
exercise of the jurisdiction of the land registration court, no matter whether
same is a limited one. With this premise, and with the full opportunity given
both parties to air their sides with the presentation of all evidence as they may
desire in support thereof, as fully as could be done in the ordinary court with
general jurisdiction, the decision of the lower court, sitting as a land court,
supported as it is with sufficient evidence, may no longer be questioned on
jurisdictional grounds.
PETITION for certiorari to review the decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Beltran, Beltran & Beltran for petitioners.
Fortunato Jose for private respondents.
DE CASTRO, J.:
This is a petition for certiorari to review the decision of the Court of Appeals
(4th Division) promulgated on June 9, 1971, affirming the amended decision
of the Court of First Instance of Cavite City the dispositive portion of which
reads:
IN VIEW OF THE FOREGOING CONSIDERATIONS, the
Court hereby adjudicates the parcel of land described in Plan
Psu-18949 situated in the poblacion of Silang, Cavite, in
favor of the applicants (Marcelino Belamide, of legal age,

Filipino, married to Patrocinia de Castro, and resident of
Silang Cavite; Alfredo Belamide, of legal age, Filipino,
married to Anita Velez, and resident of Silang, Cavite; Jose
Belamide, of legal age, Filipino, married to Elisea Quiamzon
and resident of Silang Cavite; Antonio Belamide, of legal
age, Filipino, single, and resident of Silang, Cavite; Maria
Belamide, Filipino, of legal age, married to Sofronio Bayla
and resident of Silang, Cavite; Leonisa Belamide, of legal
age, married to Fulgencio Reyes, and resident of Silang,
Cavite; and Salud Bede of legal age, Filipino, married to
Conrado Menchavez and resident of Silang, Cavite) and the
oppositors (Bienvenido Montoya, Gregorio Montoya and
Francisco Montoya, Filipinos, of legal age, married and
residents of Silang, Cavite) in the following proportions:
Three-fourths (3/4) undivided share belongs to the
applicants, and one-fourth (1/4) undivided share belongs to
the oppositors.
Once this decision becomes final, let the corresponding
decree of registration be issued upon proof that the
corresponding estate and inheritance taxes have been paid,
or certificate of tax exemption has been issued.
Petitioners herein were the applicants for the registration of the parcel of land
involved in this case The private respondents were the oppositors allowed on
Motion for a New Trial, to file an opposition even after a decision has already
been rendered by then Judge Felix V. Makasiar, after hearing, following the
issuance of a general default order. (par. 1-3, Petition).
From the amended decision rendered after the new trial both parties
appealed to the Court of Appeals which found the essential facts as narrated
in the decision appealed thereto as duly established by the evidence, and
quoted the same approvingly as follows:
The next question that presents itself is when and by whom
was the land in question acquired. The oppositors allege that
the acquisition was made during the first marriage of Vicente
Montoya to Martin Montoya, whereas the applicants maintain
that such land was acquired during the marriage (second
marriage) of Vicente Montoya to Jose Velardo Both
contentions are not supported by any document. However,
the fact that Susana Velardo Belamide sold a portion of the
C I V P R O I V C i v i l P r o c e d u r e P a g e | 23
land in question (Exh. 6) to the Municipality of Silang, Cavite
(for widening of the street) on May 1933 without the
intervention of, or opposition from, Hilarion Montoya who
died on December 2, 1955 (Exh. 3), coupled with the fact
that Susana Velardo Belamide has possession of the
property since the death of her mother Vicenta Montoya) in
1931 after she sold the same to the herein applicants on July
20, 1951 (Exh. B), convince the Court that said property was
acquired during the coverture of Jose Velardo and Vicenta
Montoya. Consequently, upon the death of Jose Velardo in
1888, the one-half (½) undivided portion of the property
passed by inheritance to Susana Velardo Belamide and the
other one-half (½) undivided portion went to Vicenta
Montoya as her share of the conjugal estate. Upon the death
of the latter on February 28, 1931, her undivided one half (½)
share of the property should be divided equally between
Susana Velardo Belamide and Hilarion Montoya, that is,
each is entitled to one- fourth (1/4) undivided share. Hence,
Susana Velardo Belamide's share is three-fourths (3/4) while
Hilarion Montoya's share passed by inheritance to his
children, the herein oppositor. For this reason, the sale made
by Susana Velardo Belamide in favor of the applicants (Exh.
B) is null and void only with respect to the one-fourth (1/4)
undivided portion of the property (the share of the herein
oppositors) who did not consent to the sale).
As earlier stated, the Court of Appeals affirmed the amended decision of the
Court of First Instance, this time rendered by Hon. Jose P. Alejandro, and
denied a Motion for Reconsideration filed by the petitioners herein on June
29, 1971 (Annex E to Petition), as well as a Motion for a New Trial (Annex F
to Petition). The ground for the Motion for New Trial was that Exhibit 8 of the
oppositors (private respondents herein) which was allegedly relied upon by
both the Court of First Instance and the Court of Appeals is a falsified
document, As recited in the petition, par. 12 thereof (p. 8, Reno the
falsification consists of the following:
According to tie official records of the Civil Registrar of
Silang, Cavite, the name of the father of Hilarion Montoya in
the marriage column is in blank. But according to Exhibit 8,
the name of the father of Hilarion Montoya is Martin
Montoya. Thus, whale the official record of the civil registrar
shows that oppositors' father, Hilarion, had an unknown
father, thru falsification, Hilarion father was made to appear
in Exhibit 8 as Martin Montoya. The latter false. ly became

husband of Vicente Montoya, thereby enabling private
respondents to inherit 1/4 of the land in dispute from Vicente
Montoya.
It is the denial of the Motion for New Trial by the Court of Appeals which
petitioners allege to be in grave abuse of discretion, and their allegation that
the Court of First Instance, as a land registration court, has no jurisdiction to
declare who are the heirs of Vicente Montoya and partition the property by
adjudicating 1/4 pro-indiviso to private respondents as children of Hilarion
Montoya, allegedly an unacknowledged natural child of Vicenta Montoya,
and that as a consequence, the Court of Appeals, likewise, is without
jurisdiction, or acted in grave abuse of discretion, in affirming the decision of
the lower court, that petitioners came to this Court with the present petition.
1. There can be no grave abuse of discretion by the Court of Appeals in
denying petitioners' Motion for New Trial. The document alleged to be
falsified (Exh. 8) was presented in the trial in the lower court. Petitioners
should have attacked the same as falsified with competent evidence, which
could have been presented, if they had exercised due diligence in obtaining
said evidence, which is Annex "A" 1 to the Motion for New Trial (Annex F to
Petition). 2 It is, therefore, not a newly discovered evidence that could justify
a new trial (Rule 37 [1-b], Rules of Court).
The new evidence would neither change the result as found by the decision.
It might prove that Hilarion Montoya was registered at birth without his father
having been given, but from the testimony of Marcelino Belamide, one of the
applicants (now petitioners), Vicente Montoya was married twice, although
he did not know the first husband. Likewise, in the opposition of private
respondents (pp. 30-31, Record on Appeal) 3 , it is there alleged that the
land originally belonged to the spouses Martin Montoya and Vicente
Montoya. This allegation was never contradicted. The document sought to be
presented by petitioners, as stated in their Motion for New Trial in the Court
of Appeals, cannot effectively destroy this allegation, first, because the
marriage between Martin Montoya and Vicenta Montoya could have taken
place after the birth of Hilarion Montoya who was thus legitimized, and
second, Martin Montoya and Vicente Montoya evidently lived together as
husband and wife, and are, therefore, presumed to have been legally married
(Section 5, par. [bb] Rule 131, Rules of Court). This Court held that a man
and a woman who are living under the same roof are presumed to be
legitimate spouses (Que Quay vs. Collector of Customs, 33 Phil. 128), and in
the instant case, no less than one of the herein petitioners, Marcelino
Belamide, testified that Vicenta Montoya married twice. The records suggest
no other husband by the first marriage than Martin Montoya, who then could
C I V P R O I V C i v i l P r o c e d u r e P a g e | 24
have been the father of Hilarion Montoya who, undisputedly, is the son of
Vicente Montoya.
With the law and the evidence showing with reasonable sufficiency that
Hilarion Montoya from whom private respondents would derive hereditary
rights over the land in question, is the legitimate son of Vicenta Montoya, the
adjudication of said land by the lower court, as specified in its decision, is in
accordance with law.
2. The jurisdiction of the lower court as a land registration court to adjudicate
the land for purposes of registration cannot, as petitioners try to do, be
questioned. The applicants and oppositors both claim rights to the land by
virtue of their relationship to the original owner, the late Vicente Montoya.
The Court is thus necessary impelled to determine the truth of their alleged
relationship, and on the basis thereof, to adjudicate the land to them as the
law has prescribed to be their successional rights. The law does not require
the heirs to go to the probate court first before applying for the registration of
the land, for a declaration of heirship. This would be a very cumbersome
procedure, unnecessarily expensive and unreasonably inconvenient, clearly
averse to the rule against multiplicity of suits.
Furthermore, petitioners Should not now be heard to complain after they
have themselves gone to the lower court to have their title to the land
registered in their names without having had a previous declaration of their
heirship by the probate court. In filing their opposition to the application,
private respondents merely went to the same court invoking its jurisdiction in
exactly the same fashion as did the petitioners. In effect, there was unanimity
among the parties in consenting to, or acquiescing in, the exercise of the
jurisdiction of the land registration court, no matter whether Same is a limited
one. With this premise, and with the full opportunity given both parties to air
their sides with the presentation of all evidence as they may desire in support
thereof, as fully as could be done in the ordinary court with general
jurisdiction, the decision of the lower court, sitting as a land court, supported
as it is with sufficient evidence, may no longer be questioned on jurisdictional
grounds. (See Martin Aglipay vs. Hon. Isabelo delos Reyes, Jr., G. R. No. L-
12776, March 23, 1960; Franco vs. Monte de Piedad and Savings Bank, L-
17610, April 22, 1963, 7 SCRA 660; City of Tarlac vs. Tarlac Development
Corporation, L-24557, July 31, 1968, 24 SCRA 466; City of Manila vs. Manila
Lodge No. 761, L-24469, July 31, 1968, 24 SCRA 466; City of Manila vs.
Army and Navy Club of Manila, L-24481, 24 SCRA 466; Demetrio Manalo vs.
Hon. Herminio C. Mariano, et. al., L-33850, January 22, 1976, 69 SCRA, 80).
 C I V P R O I V C i v i l P r o c e d u r e P a g e | 25

For all the foregoing, the instant petition is hereby dismissed for lack of merit.
Costs against petitioners.

SO ORDERED.

Teehankee (Chairman), Santos, Guerrero, and Melencio-Herrera, JJ.,

concur.

Makasiar and Fernandez, JJ., took no part.


G.R. No. 112795 June 27, 1994
AUGUSTO CAPUZ, petitioner,
vs.
THE COURT OF APPEALS and ERNESTO BANEZ, respondents.
Civil Procedure; Default; Affidavit of Merit; Grounds for a motion for new trial.—
We agree that the verified motion of petitioner could be considered as a motion
for new trial. The grounds alleged by petitioner in his motion are the same as
the grounds for a motion for new trial under Rule 37, which are: (1) that
petitioner’s failure to file his answer was due to fraud, mistake, accident or
excusable negligence; and (2) that he has a meritorious defense. Petitioner
explained that upon receiving the summons, he immediately saw private
respondent and confronted him with the receipt evidencing his payment.
Thereupon, private respondent assured him that he would instruct his lawyer
to withdraw the complaint. The prior payment of the loan sought to be collected
by private respondent is a good defense to the complaint to collect the same
loan again. The only reason why respondent court did not consider the motion
of petitioner as a motion for new trial was because the said motion did not
include an affidavit of merit. The allegations contained in an affidavit of merit
required to be attached to a motion to lift an order of default or for a new trial
need not be embodied in a separate document but may be incorporated in the
petition itself. As held in Tanhu v. Ramolete, 66 SCRA 425 (1975): “Stated
otherwise, when a motion to lift an order of default contains the reasons for the
failure to answer as well as the facts constituting the prospective defense of
the defendant and it is sworn to by said defendant, neither a formal verification
nor a separate affidavit of merit is necessary.”
Same; Same; Same; Appeal; Remedy against an order of default.—Speaking
for the Court in Circle Financial Corporation v. Court of Appeals, 196 SCRA
166 (1991), Chief Justice Andres R. Narvasa opined that the affidavit of merit
may either be drawn up as a separate document and appended to the motion
for new trial or the facts which should otherwise be set out in said separate
document may, with equal effect, be alleged in the verified motion itself.
Respondent court erred when it held that petitioner should have appealed from
the decision, instead of filing the motion to lift the order of default, because he
still had two days left within which to appeal when he filed the said motion.
Said court must have in mind paragraph 3 of Section 2, Rule 41 of the Revised
Rules of Court, which provides that: “a party who has been declared in default
may likewise appeal from the judgment rendered against him as contrary to
the evidence or to the law, even if no petition for relief to set aside the order of
C I V P R O I V C i v i l P r o c e d u r e P a g e | 26
default has been presented by him in accordance with Rule 38.” Petitioner
properly availed of the remedy provided for in Section 1, Rule 65 of the Revised
Rules of Court because the appeal under Section 2, Rule 41 was not, under
the circumstances, a “plain, speedy and adequate remedy in the ordinary
course of law.” In an appeal under Section 2, Rule 41, the party in default can
only question the decision in the light of the evidence on record. In other words,
he cannot adduce his own evidence, like the receipt to prove payment by
petitioner herein of his obligation to private respondent.
PETITION for review on certiorari to reverse and set aside a decision of the
Court of Appeals.
The facts are stated in the opinion of the Court.
Nony R. Rivera for petitioner.
Semproniano S. Ochoco for private respondent.
QUIASON, J.:
This is a petition for review on certiorari under Rule 45 of the Revised Rules
of Court to reverse and set aside the decision of the Court of Appeals in CA-
G.R. SP No. 30030, which affirmed the judgment by default of the Regional
Trial Court, Branch 130, Kalookan City in Civil Case No. C-15501.
We grant the petition.
I
On July 15, 1992, private respondent filed a complaint for a sum of money
against petitioner with the Regional Trial Court, Branch 130, Kalookan City
(Civil Case No. C-15501).
On September 5, petitioner was served with summons.
After petitioner failed to file any answer, private respondent filed on
September 25, an Ex parte Motion to Declare Defendant in Default.
On October 23, the trial court issued an order declaring petitioner in default
and authorizing private respondent to present his evidence ex parte.

On October 28, private respondent presented his evidence ex parte.
On November 6, the trial court rendered a decision, disposing as follows:
WHEREFORE, judgment is hereby rendered in favor of the
plaintiff ERNESTO BANEZ against the defendant AUGUSTO
CAPUZ ordering the defendant to pay the following:
1. The principal amount of
P90,000.00 plus 12%
interest per annum from
June 13, 1992, the date of
the written demand, until
fully paid;
2. P10,000.00 as attorney's
fees;
3. P1,000.00 as litigation
expenses and the costs
(Rollo, p. 11).
On November 13, petitioner received a copy of the Order dated October 23,
1992 and the Decision dated November 6, 1992.
On November 23, petitioner filed a verified motion to lift the order of default
and to set aside the decision.
In said motion, petitioner averred that:
1. Defendant's failure to file his responsive pleading is due to
fraud, mistake, accident and/or excusable neglect, and that
when defendant received a copy of the summons and the
complaint on September 5, 1992, defendant wasted no time
in seeing the plaintiff and confronted him about his receipt
(payment of the subject obligation), plaintiff assured the
defendant that he (plaintiff) will instruct his lawyer to
withdraw the complaint, and not to worry anymore.
Defendant took the word of his "compadre" the plaintiff.
Hence, defendant did not file his answer to the complaint
(Rollo, p. 11).
C I V P R O I V C i v i l P r o c e d u r e P a g e | 27
On December 7, the trial court issued an order, denying petitioner's verified
urgent motion, the pertinent portion of which reads:
The filing of the motion to lift order of default did not stop the
running of the period of appeal, for his only right at the
moment is to receive notice of further proceedings
regardless of whether the order of default is set aside or not.
On the other hand, defendant could have appealed the
Decision before the expiration of the period to appeal, for he
is granted that right by the Rules. Since he failed to make a
timely appeal, the decision rendered in this case has
became (sic) final (Rollo, p. 12).
On December 23, petitioner filed an urgent motion asking for the
reconsideration of the Order dated December 7, 1992, claiming: (1) that the
said order was prematurely issued; (2) that the trial court erred in holding that
the decision had become final; and (3) that the said order was contrary to law
and jurisprudence.
On January 6, 1993, the trial court issued an order, denying petitioner's
motion for reconsideration.
Petitioner filed a petition for certiorari under Rule 65 of the Revised Rules of
Court with the Court of Appeals.
On November 18, the Court of Appeals dismissed the petition for lack of
merit, holding: (1) that petitioner's motion to lift the order of default and set
aside the judgment was improper because there was already a judgment by
default rendered when it was filed; (2) that having discovered the order of
default after the rendition of the judgment, the remedy of petitioner was either
to appeal the decision or file a motion for new trial under Rule 37; and (3)
that the said motion could not be considered as a motion for new trial under
Rule 37 because it was not accompanied by an affidavit of merit.
II
In the instant petition, petitioner argues that the motion to lift the order of
default and to set aside the decision could be treated as a motion for new
trial under Rule 37 and that a separate affidavit of merit need not be
submitted considering that the said motion was verified.
 C I V P R O I V C i v i l P r o c e d u r e P a g e | 28

We agree that the verified motion of petitioner could be considered as a
motion for new trial. The grounds alleged by petitioner in his motion are the
same as the grounds for a motion for new trial under Rule 37, which are: (1)
that petitioner's failure to file his answer was due to fraud, mistake, accident
or excusable negligence; and (2) that he was a meritorious defense.
Petitioner explained that upon receiving the summons, he immediately saw
private respondent and confronted him with the receipt evidencing his
payment. Thereupon, private respondent assured him that he would instruct
his lawyer to withdraw the complaint. The prior payment of the loan sought to
be collected by private respondent is a good defense to the complaint to
collect the same loan again.
The only reason why respondent court did not consider the motion of
petitioner as a motion for new trial was because the said motion did not
include an affidavit of merit.
Petitioner properly availed of the remedy provided for in Section 1, Rule 65 of
the Revised Rules of Court because the appeal under Section 2, Rule 41
was not, under the circumstances, a "plain, speedy and adequate remedy in
the ordinary course of law." In an appeal under Section 2, Rule 41, the party
in default can only question the decision in the light of the evidence on
record. In other words, he cannot adduce his own evidence, like the receipt
to prove payment by petitioner herein of his obligation to private respondent.
WHEREFORE, the petition is GRANTED. The challenged decision of the
Court of Appeals is REVERSED and the judgment dated November 6, 1992
of the Regional Trial Court, Branch 130, Kalookan City is SET ASIDE. Let
this case be remanded to the court of origin for further proceedings. No
pronouncements as to costs.
SO ORDERED.

The allegations contained in an affidavit of merit required to be attached to a Cruz, Davide, Jr., Bellosillo and Kapunan, JJ., concur.
motion to lift an order of default or for a new trial need not be embodied in a
separate document but may be incorporated in the petition itself. As held in
Tanhu v. Ramolete, 66 SCRA 425 (1975):

Stated otherwise, when a motion to lift an order of default

contains the reasons for the failure to answer as well as the
facts constituting the prospective defense of the defendant
and it is sworn to by said defendant, neither a formal
verification nor a separate affidavit of merit is necessary.

Speaking for the Court in Circle Financial Corporation v. Court of Appeals,

196 SCRA 166 (1991), Chief Justice Andres R. Narvasa opined that the
affidavit of merit may either be drawn up as a separate document and
appended to the motion for new trial or the facts which should otherwise be
set out in said separate document may, with equal effect, be alleged in the
verified motion itself.

Respondent court erred when it held that petitioner should have appealed
from the decision, instead of filing the motion to lift the order of default,
because he still had two days left within which to appeal when he filed the
said motion. Said court must have in mind paragraph 3 of Section 2, Rule 41
of the Revised Rules of Court, which provides that: "a party who has been
declared in default may likewise appeal from the judgment rendered against
him as contrary to the evidence or to the law, even if no petition for relief to
set aside the order of default has been presented by him in accordance with
Rule 38."
 C I V P R O I V C i v i l P r o c e d u r e P a g e | 29

G.R. No. L-48859 November 8, 1942 that he was not interested in speeding up the proceedings because he was
the defeated party. With such an attitude this Court cannot be moved to grant
EMILIANO J. VALDEZ, petitioner, an equitable relief.
vs.
FERNANDO JUGO, Judge of First Instance of Manila, ET AL.,
respondents.

Felix B. Bautista for petitioner.

Gregorio Perfecto for respondent Central Luzon Milling Co.
P.J. Dayrit and Bengson and Magsanoc for other respondents.
No appearance for respondent judge.

MORAN, J.:

1. APPEAL AND ERROR; "PRO-FORMA" MOTION FOR NEW TRIAL IS

OFFENSIVE TO NEW RULES OF COURT AND DOES NOT INTERRUPT
PERIOD FOR APPEAL; NECESSITY OF SPECIFICALLY SETTING OUT
REASONS IN SUPPORT OF MOTION OF NEW TRIAL. — Petitioner's
motion for new trial did not and could not interrupt the period for appeal, it
having failed to state in detail as required by the rules, the reasons in support
of the grounds alleged therein. Under Rule 37, section 2, third paragraph, it is
now required to "point out specifically the findings or conclusions of the
judgment which are not supported by the evidence or which are contrary to
law, making express reference to the testimonial or documentary evidence or
to the provisions of law alleged to be contrary to such findings or
conclusions." And when, as in the instant case, the motion fails to make the
specification thus required, it will be treated as a motion pro-forma intended
merely to delay the proceedings, and as such, it shall be stricken out as
offensive to the new rules.

2. ID.; ID.; ID.; DELIBERATE ATTEMPT TO DELAY PROCEEDINGS. —

Petitioner's case justifies indeed the full rigor of the new rules, there being
circumstances showing a deliberate attempt on his part to delay the
proceedings for his own convenience. He filed his motion for new trial on
November 22, 1941, and set it for hearing almost one month thereafter, i. e.,
on December 20, 1941. The reason he gave in his oral argument to justify
such delayed hearing was that he wanted to have time to study the transcript
of the testimony of witnesses and find out reasons in support of the grounds
alleged in his motion. Unquestionably, therefore, he filed his motion without
knowing whether the grounds therefor were or were not good, and wanted to
delay the proceedings to gain time for study. Again, asked as to why, when
he was already in Manila and the Manila courts were already open, he failed
to inquire as to the result of his motion for new trial, he candidly answered

G.R. No. L-62896 August 21, 1989
SPOUSES CARLOS DAVID and TERESITA DAVID, and JESUS B.
PASION petitioners,
vs.
HON. OSCAR C. FERNANDEZ in his capacity as Presiding Judge of the
Court of First Instance of Bulacan, Branch IV, Baliuag, Bulacan, (now
the Regional Trial Court, Baliuag Branch), FRANCISCA LAGMAN
MANANGHAYA, in her own behalf and as natural guardian of her minor
children NOEL, NOLLY and JOY, all surnamed MANANGHAYA,
respondents.
Remedial Law; Civil Procedure; New Trial; Once a new trial is granted under
Section 5 of Rule 37 of the Rules of Court, the original judgment is
vacated.—As provided under Section 5 of Rule 37 of the Revised Rules of
Court: “If a new trial be granted in accordance with the provisions of this rule,
the original judgment shall be vacated, and the action shall stand for trial de
novo; but the recorded evidence taken upon the former trial so far as the
same is material and competent to establish the issues, shall be used at the
new trial without retaking the same.” The law is unmistakably clear that once
a new trial is granted under aforesaid Rule, the original judgment is vacated.
The phrase “to vacate” applied to a judgment means “to annul, to render
void.”
Same; Same; Same; Same; The grant of a motion for new trial results in the
nullification of the judgment by default including all the consequential effects
thereof.—As petitioners’ motion for new trial was subsequently granted by the
respondent court, this resulted in the nullification of its judgment by default
dated April 10, 1981 against petitioners in said civil case, including all the
consequential effects thereof, to wit: the Writ of Execution, the corresponding
levy on the personal properties of petitioners and the public auction sale.
Same; Same; Same; Same; Same; Court finds validity and strength in
petitioner’s claim for restitution of the P12,000.00 proceeds of the sale in
execution of petitioners’ personal properties levied upon due to the granting of
a new trial in the subject civil case.—The Court thus finds validity and strength
in petitioners’ claim for restitution of the P12,000.00 proceeds of the sale on
execution of petitioners’ personal properties levied upon pursuant to a writ of
execution which was subsequently recalled due to the granting of a new trial
in the subject civil case. Considering that the motion for restitution was filed
C I V P R O I V C i v i l P r o c e d u r e P a g e | 30
while the subject civil case was still undergoing trial, a stage wherein the rights
and obligations of the parties have not yet been determined, it would be
unfairly enriching the private respondents, even temporarily, if they are allowed
to keep possession of the proceeds of the sale of petitioners’ personal
properties in the amount of P12,000.00. As Civil Case No. 1136-B then stood,
there has yet been no adjudication of rights and obligations between the
parties. Furthermore, there was never a plaintiff’s bond to speak of in the first
place against which petitioners may proceed in case of a favorable judgment
since the writ of execution was issued pursuant to a judgment then thought to
be final and executory.
PETITION to review the orders of the Court of First Instance of Bulacan, Br.
4. Fernandez, J.
The facts are stated in the opinion of the Court.
Porfirio C. Pineda for petitioners.
Citizens Legal Assistance Office for private respondents.
FERNAN, C .J.:
On March 7, 1980, a gravel and sand truck driven by petitioner Jesus B.
Pasion and owned and operated by his co-petitioners, Spouses Carlos David
and Teresita David, hit Paulino Mananghaya in front of Mantrade Building,
Epifanio de los Santos Avenue, Makati, Metro Manila, resulting in the latter's
death. Subsequently on May 25, 1980, Paulino's wife, Francisca Lagman
Mananghaya, in her own behalf and as natural guardian of her minor children
Noel, Nolly and Joy, (hereinafter private respondents) filed before the then
Court of First Instance (CFI) of Bulacan an action for damages docketed as
Civil Case No. 1136-B against petitioners.
For failure to file their answer despite service of summons, petitioners as
defendants in said Civil Case No. 1136-B were declared in default. Private
respondents as plaintiffs were allowed to present their evidence ex-parte,
after which a decision was rendered on April 10, 1981 1 ordering petitioners
to pay private respondents jointly and severally the amount of P100,000.00
as moral damages; P80,000.00 as exemplary damages; P100,000.00 as
actual and compensatory damages; P10,000.00 as attorney's fees plus
costs. A copy of said decision was received by petitioners on April 24, 1981.

Petitioners filed a motion for new trial, which was denied in the lower court's
order of June 5, 1981 2 for having been filed one day late. In the same
Order, the court granted private respondents' prayer for the issuance of a writ
of execution. A Writ of Execution 3 dated June 10, 1981 was correspondingly
issued directing the Provincial Sheriff of San Fernando, Pampanga to cause
to be made of the goods and chattels of petitioners the sums awarded to
private respondents in respondent court's decision of April 10, 1981.
Consequently, some personal properties of the spouses David were levied
upon and sold at public auction, the proceeds of which amounting to
P12,000.00 were subsequently delivered to private respondents.
Having received a copy of the Order of June 5, 1981 only on September 1,
1981, petitioners filed on the same day a motion for reconsideration of the
June 5, 1981 Order and a motion to quash the writ of execution dated June
10, 1981, calling the attention of the lower court to the fact that the 30th day
of the reglementary period for the filing of an appeal fell on a Sunday so that
the filing of the motion on the 31st day was nevertheless still within the
reglementary period for appeal. On February 8, 1982, the lower court issued
an order 4 reconsidering its previous order of June 5, 1981, granting
petitioners' motion for new trial and recalling the writ of execution dated June
10, 1981.
Resultantly, petitioners were allowed to file their Answer with Counterclaim
for damages against private respondents, who countered with a Motion to
Dismiss Counterclaim and Reply to Answer. The latter's motion to dismiss
was denied by the lower court. On June 5, 1982, petitioners filed a Motion for
Restitution which was resolved by respondent lower court in its assailed
Order dated June 8, 1982, 5 reading thus:
ORDER
Defendants' properties levied in execution are hereby
ordered to be returned to them pending new trial.
In the event that this could not be done, defendants may, in
the event of favorable judgment, go after plaintiffs' bond.
SO ORDERED.
Baliuag, Bulacan, June 8,1982.
OSCAR C. FERNANDEZ J u d g e
C I V P R O I V C i v i l P r o c e d u r e P a g e | 31
In their motion for reconsideration of the aforequoted Order, petitioners
manifested that they are in accord with the first paragraph of said order but
seek a reconsideration of the second paragraph by setting the same aside
and ordering the return of the proceeds of P12,000.00 obtained from the sale
of their personal properties considering that private respondents have not
posted a bond as a condition precedent to the taking of said properties as the
same was done pursuant to a decision believed by the private respondents
to be final and executory but which later turned out not to be so in view of the
allowance of petitioners' motion for new trial by the respondent lower court.
Respondent court denied petitioners' aforesaid motion for reconsideration in
its second assailed Order dated December 1, 1982 on the ground that a new
trial had been ordered as early as February 8, 1982.
Hence this petition seeking to annul and set aside the two aforementioned
Orders of respondent judge, namely: the Order dated June 8, 1982 which
required the return of the properties of the petitioners levied upon in
execution or, in the event that this could not be done, for petitioners to go
after private respondents' bond in case of a favorable judgment; and the
Order dated December 1, 1982 denying petitioners' motion for
reconsideration of the June 8, 1982 order. In addition, petitioners seek to
enjoin respondent court from further proceeding with Civil Case No. 1136-B
except to issue a corresponding order setting aside the herein assailed
Orders of June 8, 1982 and December 1, 1982 and ordering private
respondents to return to Spouses Carlos David and Teresita David the
proceeds of the public auction sale of their personal properties in the sum of
P 12,000.00.
Petitioners submit that:
1. The Hon. Respondent Court acted without or in excess of
its jurisdiction and/or with grave abuse of its discretion
amounting to lack of jurisdiction when it issued the Order of
June 8,1982 directing that in the event return of the personal
properties of Petitioners Spouses could not be done by
Private Respondents, Petitioners spouses may, in the event
of a favorable judgment go after Private Respondents' bond,
because there is no bond filed by Private Respondents in
said Civil Case No. 1136-B since said personal properties of
Petitioners Spouses were taken by the Sheriff from them by
virtue of a writ of execution (Annex G) and said writ of
execution was set aside and declared null and void by Hon.
Respondent Court in its Order of February 8,1982 (Annex L).

2. The Hon. Respondent Court acted without or in excess of
its jurisdiction and/or with grave abuse of discretion
amounting to lack of jurisdiction when it issued its order of
December 1, 1982 denying Petitioners' Motion for
Reconsideration of Said Order of June 8, 1982, for being
contrary to law, established jurisprudence on the matter and
an outright denial of substantial justice to Petitioners. 6
Petitioners maintain that the setting aside of the writ of execution by the
lower court naturally entitled them to recover from private respondents their
personal properties which were prematurely and improvidently levied upon
on execution, or to the reimbursement by private respondents of the
proceeds of the auction sale in the sum of P12,000.00 pending the hearing
on the merits of Civil Case No. 1136-B. They contend that in providing for an
alternative in its assailed order in the event restitution is not possible, the
lower court unduly deprived them of their substantial right without due
process as there was no bond to speak of in the first place.
On the other hand, private respondents submit that the lower court, under the
circumstances obtaining in this case, was merely exercising its sound judicial
discretion in not ordering restitution it appearing that the personal properties
levied upon on execution were already sold at public auction and the
proceeds thereof given to them, who, due to the untimely demise of the sole
breadwinner in their family were left orphaned and destitute. Furthermore,
petitioners are barred by laches for not taking their legal option to oppose the
levy and public sale of their personal properties which took place while their
motion for new trial was still pending resolution by the lower court and it was
only on June 5, 1982 or almost a year after the levy was made, that they
moved for the return of the properties levied upon.
We rule for the petitioners. Although the Court is aware of private
respondents' sad plight, having suffered the untimely loss of the alleged sole
breadwinner of the family, nevertheless, the Court must go by the precepts of
substantive as well as procedural law in resolving the controversy at bar for
to do otherwise would be tantamount to pre-empting the lower court in its
judgment in Civil Case No. 1136-B wherein a new trial had been ordered as
a result of the granting of petitioners' motion for new trial therein.
As provided under Section 5 of Rule 37 of the Revised Rules of Court: "If a
new trial be granted in accordance with the provisions of its rule, the original
judgment shall be vacated, and the action shall stand for trial de novo but the
recorded evidence taken upon the former trial so far as the same is material
C I V P R O I V C i v i l P r o c e d u r e P a g e | 32
and competent to establish the issues, shall be used at the new trial without
retaking the same."
The law is unmistakably clear that once a new trial is granted under aforesaid
Rule, the original judgment is vacated. The phrase "to vacate" applied to a
judgment means "to annul, to render void.7
As petitioners' motion for new trial was subsequently granted by the
respondent court, this resulted in the nullification of its judgment by default
dated April 10, 1981 against petitioners in said civil case, including all the
consequential effects thereof, to wit: the Writ of Execution, the corresponding
levy on the personal properties of petitioners and the public auction sale.
The Court thus finds validity and strength in petitioners' claim for restitution of
the P12,000.00 proceeds of the sale on execution of petitioners' personal
properties levied upon pursuant to a writ of execution which was
subsequently recalled due to the granting of a new trial in the subject civil
case. Considering that the motion for restitution was filed while the subject
civil case was still undergoing trial, a stage wherein the rights and obligations
of the parties have not yet begin determined, it would be unfairly enriching
the private respondents, even temporarily, if they are allowed to keep
possession of the proceeds of the sale of petitioners' personal properties in
the amount of P12,000.00. As Civil Case No. 1136-B then stood, there has
yet been no adjudication of rights and obligations between the parties.
Furthermore, there was never a plaintiff s bond to speak of in the first place
against which petitioners may proceed in case of a favorable judgment since
the writ of execution was issued pursuant to a judgment then thought to be
final and executory.
WHEREFORE, in view of the foregoing considerations, the second
paragraph of the Order of respondent court dated June 8, 1982 allowing
petitioners as defendants therein in case of a favorable judgment to go after
the plaintiffs' bond if restitution was not effected; and the Order of December
1, 1982 are hereby SET ASIDE. Private respondents are hereby ORDERED
to return to petitioners Spouses Carlos David and Teresita David the
proceeds of the public auction sale of their personal properties in the sum of
P12,000.00
SO ORDERED.
Gutierrez, Jr., Feliciano, Bidin and Cortes, JJ., concur.

G.R. No. 110801 December 8, 1995
MARIKINA VALLEY DEVELOPMENT CORPORATION, ISIDORO
LIAMZON, JR., SPS. BERNARDO AND DELIA ROSARIO, SPS. MANUEL
AND NORMA SANCHEZ, SPS. RUFINO AND MILAGROS JAVIER, SPS.
RODOLFO AND SONIA OCAMPO, SPS. LAZARO AND JULIETA
SANTOS, SPS. TEODORO AND ZENAIDA BAUTISTA, SPS. CHARLES
AND MA. CORAZON MILLER, SPS. EDGARDO AND CRISTINA
VALENZUELA, FRANCISCO LIAMZON, MARIETTA LIAMZON, ROMEO
THADEUS LIAMZON, MICHAEL RAYMOND LIAMZON, ROBERTO
ANTONIO LIAMZON, ROSABELLE THERESA LIAMZON, RONALDO
ISIDORO LIAMZON and RODRIGO JESUS LIAMZON, petitioners,
vs.
HON. NAPOLEON R. FLOJO, Presiding Judge of Branch 2, RTC Manila;
BASILIO SYTANGCO, as representative of the heirs of JOSE REYES
SYTANGCO; and THE HON. COURT OF APPEALS, respondents.
Actions; Pleadings and Practice; Instances when a party aggrieved by a
decision of a trial court may move to set aside the decision and reconsideration
thereof granted.—The rule in our jurisdiction is that a party aggrieved by a
decision of a trial court may move to set aside the decision and reconsideration
thereof may be granted when (a) the judgment had awarded “excessive
damages”; (b) there was “insufficiency of the evidence to justify the decision”;
or (c) “the decision was against the law.”
Same; Same; Appeals; Motions for Reconsideration; Pro Forma Motions; A
motion for reconsideration that does not satisfy the requirements of Rule 37 of
the Rules of Court will be treated as pro forma intended merely to delay the
proceedings and will not stay or suspend the reglementary period to appeal.—
A motion for reconsideration, when sufficient in form and substance—that is,
when it satisfies the requirements of Rule 37 of the Rules of Court—interrupts
the running of the period to perfect an appeal. A motion for reconsideration
that does not comply with those requirements will, upon the other hand, be
treated as pro forma intended merely to delay the proceedings and as such,
the motion will not stay or suspend the reglementary period. The net result will
be dismissal of the appeal for having been unseasonably filed.
Same; Same; Same; Same; Same; The circumstance that a motion for
reconsideration deals with the same issues and arguments posed and
resolved by the trial court in its decision does not necessarily mean that the
motion must be characterized as pro forma.—It should, however, be noted that
the circumstance that a motion for reconsideration deals with the same issues
C I V P R O I V C i v i l P r o c e d u r e P a g e | 33
and arguments posed and resolved by the trial court in its decision does not
necessarily mean that the motion must be characterized as merely pro forma.
More than two (2) decades ago, Mr. Justice J.B.L. Reyes had occasion, in
Guerra Enterprises Company, Inc. v. Court of First Instance of Lanao del Sur,
to point out that a pleader preparing a motion for reconsideration must of
necessity address the arguments made or accepted by the trial court in its
decision: “x x x. Among the ends to which a motion for reconsideration is
addressed, one is precisely to convince the court that its ruling is erroneous
and improper, contrary to the law or the evidence (Rule 37, Section 1,
subsection [c]); and in doing so, the movant has to dwell of necessity upon the
issues passed upon by the court. If a motion for reconsideration may not
discuss these issues, the consequence would be that after a decision is
rendered, the losing party would be confined to filing only motions for
reopening and new trial. We find in the Rules of Court no warrant for ruling to
that effect, a ruling that would, in effect eliminate subsection (c) of Section 1 of
Rule 37.”
Same; Same; Same; Same; Same; A motion for reconsideration which, as it
were, has some flesh on its bones, may nevertheless be rendered pro forma
where the movant fails to make reference to the testimonial and documentary
evidence on record or the provisions of law said to be contrary to the trial
court’s conclusions—i.e., the movant is also required to point succinctly why
reconsideration is warranted.—A motion for reconsideration which is not as
starkly bare as in Crisostomo and in Villarica, but which, as it were, has some
flesh on its bones, may nevertheless be rendered pro forma where the movant
fails to make reference to the testimonial and documentary evidence on record
or the provisions of law said to be contrary to the trial court’s conclusions. In
other words, the movant is also required to point out succinctly why
reconsideration is warranted. In Luzon Stevedoring Company v. Court of
Industrial Relations, the Supreme Court declared that: “it is not enough that a
motion for reconsideration should state what part of the decision is contrary to
law or the evidence; it should also point out why it is so. Failure to explain why
will render the motion for reconsideration pro forma.”
Same; Same; Same; Same; Same; The rule that a pro forma motion for
reconsideration does not stop the period of appeal from “slipping away” reflects
both poetic and substantial justice.—It is important to note that the above case
law rests upon the principle that a motion for reconsideration which fails to
comply with the requirements of Sections 1 (c) and 2 of Rule 37 of the Rules
of Court, and is therefore pro forma merely, has no other purpose than to gain
time. It is intended to delay or impede the progress of proceedings and the rule

that such motion for reconsideration does not stop the period of appeal from
“slipping away” reflects both poetic and substantial justice.
Same; Same; Same; Same; Same; Where the circumstances of a case do not
show an intent on the part of the movant merely to delay the proceedings, the
Supreme Court has refused to characterize the motion as pro forma.—Where
the circumstances of a case do not show an intent on the part of the movant
merely to delay the proceedings, our Court has refused to characterize the
motion as simply pro forma. Thus, in the Guerra Enterprises case, the Court
took note of the fact that the motion for reconsideration had been filed within
barely twelve (12) days (the reglementary period was then thirty [30] days)
after receipt by the counsel for the movant party, which fact negated the
suggestion that the motion had been used as “a mere delaying tactic.”
Same; Same; Same; Same; Same; Because the doctrine relating to pro forma
motions for reconsideration impacts upon the reality and substance of the
statutory right of appeal, that doctrine should be applied reasonably rather than
literally.—We note finally that because the doctrine relating to pro forma
motions for reconsideration impacts upon the reality and substance of the
statutory right of appeal, that doctrine should be applied reasonably, rather
than literally. The right to appeal, where it exists, is an important and valuable
right. Public policy would be better served by according the appellate court an
effective opportunity to review the decision of the trial court on the merits,
rather than by aborting the right to appeal by a literal application of the
procedural rule relating to pro forma motions for reconsideration.
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Eduardo B. Tampoc for petitioners.
Mario S. Ingco for private respondents.
FELICIANO, J.:
Jose Reyes Sytangco instituted a complaint for reconveyance of a piece of
land situated along España Street, Manila, against petitioner Marikina Valley
Development Corporation ("Marikina Valley") and Milagros Liamzon. In his
complaint, Jose Reyes Sytangco alleged that he and his wife, Aurelia
Liamzon-Sytangco had entrusted some funds to Milagros Liamzon, sister-in-
law of Aurelia, in order to purchase the España Street property from its
C I V P R O I V C i v i l P r o c e d u r e P a g e | 34
former owners. The Sytangco spouses had years ago built their house on
that parcel of land then leased from the original owners with whom they
negotiated for purchase of that land. Milagros Liamzon, however, in alleged
violation of the trust reposed upon her, purchased the España Street
property in her own name and had title to the same registered in her name.
Thereafter, she transferred title over that property to petitioner Marikina
Valley, a closed corporation owned by the Liamzon family.
In their answer, petitioner denied the allegations of Jose Reyes Sytangco
and claimed that Milagros Liamzon had purchased the España Street
property by and for herself, with funds coming from petitioner Marikina
Valley. For her part, Milagros Liamzon insisted, among other things, that the
Reyes Sytangco spouses had waived in her favor their right to buy the
property in question.
During the trial in the court below, Jose Reyes Sytangco died and he was
substituted by his heirs, who are private respondents herein. After trial, the
trial court ruled in favor of private respondent heirs in a decision dated 11
October 1991. The trial court directed petitioner Marikina Valley to execute a
Deed of Conveyance covering the property involved in favor of private
respondents.
On 28 October 1991, Marikina Valley and the other petitioners — heirs of
Milagros Liamzon (Milagros having, in the meantime, passed away) —
received a copy of the decision of the trial court. Petitioners moved for
reconsideration on 7 November 1991.
The Reyes Sytangco heirs opposed petitioners' motion for reconsideration
upon the ground that it was a pro forma one. The heirs contended that the
allegations of insufficiency of evidence were couched in very general terms,
contrary to the requirements of Section 2, Rule 37 of the Rules of Court.
On 21 November 1991, the trial court denied petitioners' motion for
reconsideration for lack of merit. The trial court said:
The defendant anchors his motion on the assertion that:
1. There is no sufficient evidence to show that the down
payment for the property came from the plaintiff;

2. That the money used for the property did not come from
the plaintiff, hence, no implied trust could have been created
between Milagros Liamzon and Aurelia Liamson;
3. That piercing the veil of corporate entity is not applicable
to this case.
After a perusal of the arguments posed in support of these
grounds, the court finds that these arguments had been
discussed and resolved in the decision. There being [no]
other matter of consequences asserted which has not been
considered in the decision, the Court resolves to deny the
same.
WHEREFORE, the Motion for Reconsideration is DENIED
for lack of merit.1 (Emphasis supplied)
Petitioners received a copy of the above order on 22 November
1991. On 25 November 1991, they filed a notice of appeal with the
trial court.
In the meantime, private respondent heirs moved for execution of the
decision of 11 October 1991. They insisted that petitioners had failed to
perfect an appeal within the reglementary period.
In its order dated 25 November 1991, the trial court dismissed the notice of
appeal filed by petitioners for having been filed beyond the reglementary
period to perfect an appeal. The trial judge reasoned that petitioners' motion
for reconsideration was pro forma and hence did not stop the running of the
reglementary period. Thereupon, the trial judge granted private respondents'
motions for execution.
Petitioners went to the Court of Appeals on certiorari and injunction. They
denied that their motion for reconsideration was merely pro forma and
claimed that they had filed their notice of appeal seasonably. They also
challenged the validity of subsequent orders of the trial court directing
execution.
The Court of Appeals dismissed the petition, declaring that petitioners'
motion for reconsideration was indeed pro forma and, "therefore, clearly
without merit." The appellate court went on to say that:
C I V P R O I V C i v i l P r o c e d u r e P a g e | 35
[w]here a motion for reconsideration merely submits,
reiterates, repleads, repeats, or reaffirms the same
arguments that had been previously considered and
resolved in the decision, it is pro forma.
The Court of Appeals concluded that petitioners' pro forma motion for
reconsideration had not stopped the running of the period to perfect
an appeal and that, accordingly, the judgment had become final and
private respondents were entitled to execution as a matter of right.
Petitioners sought reconsideration of the Court of Appeals' decision,
without success.
In their present Petition for Review on Certiorari, petitioners aver once more
that their motion for reconsideration filed before the trial court was sufficient
in form and substance and was not pro forma. They reiterate that their
motion had effectively suspended the running of the reglementary period,
and that their notice of appeal filed three (3) days from receipt of the order
denying their motion for reconsideration had been filed well within the
remaining period to perfect an appeal.
The rule in our jurisdiction is that a party aggrieved by a decision of a trial
court may move to set aside the decision and reconsideration thereof may be
granted when (a) the judgment had awarded "excessive damages;" (b) there
was "insufficiency of the evidence to justify the decision;" or (c) "the decision
was against the law."2
A motion for reconsideration based on ground (b) or (c) above must
point out specifically the findings and conclusions of the
judgment which are not supported by the evidence or which
are contrary to law, making express reference to the
testimonial or documentary evidence or to the provisions of
law alleged to be contrary to such findings and conclusions.
3
A motion for reconsideration, when sufficient in form and substance — that
is, when it satisfies the requirements of Rule 37 of the Rules of Court —
interrupts the cunning of the period to perfect an appeal.4 A motion for
reconsideration that does not comply with those requirements will, upon the
other hand, be treated as pro forma intended merely to delay the
proceedings and as such, the motion will not stay or suspend the
reglementary period.5 The net result will be dismissal of the appeal for
having been unseasonably filed.

The question in every case is, therefore, whether a motion for
reconsideration is properly regarded as having satisfied the requirements,
noted above, of Rule 37 of the Rules of Court. As already pointed out, the
Court of Appeals took the position that where a motion for reconsideration
merely "reiterates" or "repleads" the same arguments which had been
previously considered and resolved in the decision sought to be
reconsidered, the motion is a pro forma one. In taking this position, the
appellate court quoted at some length from a prior decision of this Court:
. . . Said the Supreme Court in "Dacanay v. Alvendia, et al.,"
30 SCRA 31, to wit:
In Estrada v. Sto. Domingo, recently decided by this Court,
we once again called the attention of the bar and litigants to
the "principle already forged by this Court . . . that a motion
for reconsideration which has no other purpose than to gain
time is pro forma and does not stop the period of appeal
from slipping away." Mr. Justice Dizon pointed out in his
concurring opinion that "The motion aforesaid is pro forma
on yet another ground, in substance it was but a reiteration
of reasons and arguments previously set forth in respondent
Sto. Domingo's memorandum submitted to the trial court and
which the latter had already considered, weighed and
resolved adversely to him when it rendered its decision on
the merits." And earlier in Lonaria v. De Guzman, we held
that "[T]he filing of the second motion on January 22, 1963
did not suspend the running of the period, first, because it
was " pro forma based on grounds already existing at the
time of the first motion."6 (Emphasis partly in the original and
partly supplied)
It should, however, be noted that the circumstance that a motion for
reconsideration deals with the same issues and arguments posed and
resolved by the trial court in its decision does not necessarily mean that the
motion must be characterized as merely pro forma. More than two (2)
decades ago, Mr. Justice J.B.L. Reyes had occasion, in Guerra Enterprises
Company, Inc. v. Court of First Instance of Lanao del Sur,7 to point out that a
pleader preparing a motion for reconsideration must of necessity address the
arguments made or accepted by the trial court in its decision:
. . . . Among the ends to which a motion for reconsideration
is addressed, one is precisely to convince the court that its
ruling is erroneous and improper, contrary to the law or the
C I V P R O I V C i v i l P r o c e d u r e P a g e | 36
evidence (Rule 37, Section 1, subsection [c]); and in doing
so, the movant has to dwell of necessity upon the issues
passed upon by the court. If a motion for reconsideration
may not discuss these issues, the consequence would be
that after a decision is rendered, the losing party would be
confined to filing only motions for reopening and new trial.
We find in the Rules of Court no warrant for ruling to that
effect, a ruling that would, in effect eliminate subsection (c)
of Section 1 of Rule 37.8 (Emphases supplied)
The movant is very often confined to the amplification or further
discussion of the same issues already passed upon by the trial court.
Otherwise, his remedy would not be a reconsideration of the
decision, but a new trial or some other remedy.9
The kinds of motions for reconsideration which have been regarded as
merely pro forma are illustrated by Crisostomo v. Court of Appeals,10 where
a one sentence motion for reconsideration, which read thus:
COMES NOW the petitioners-appellants in the above-
entitled case and to this Honorable Court respectfully move
for reconsideration of the decision promulgated on
November 8, 1966, copy of which was received by the
undersigned on November 9, 1966, on the ground that the
same is contrary to law and evidence. (Emphasis supplied)
was considered a pro forma motion for total failure to specify the
findings or conclusions in the trial court's decision which were
supposedly not supported by evidence or were contrary to law.
Similarly, in Villarica v. Court of
Appeals, 11 a motion for reconsideration which no more than alleged
the following:
1. that the order is contrary to law; and
2. that the order is contrary to the facts of the case,
did not suspend the running of the period for appeal, being a pro
forma motion merely. These kinds of motion present no difficulty at
all.

A motion for reconsideration which is not as starkly bare as in Crisostomo
and in Villarica, but which, as it were, has some flesh on its bones, may
nevertheless be rendered pro forma where the movant fails to make
reference to the testimonial and documentary evidence on record or the
provisions of law said to be contrary to the trial court's conclusions. In other
words, the movant is also required to point out succinctly why
reconsideration is warranted. In Luzon Stevedoring Company v. Court of
Industrial Relations, 12 the Supreme Court declared that:
it is not enough that a motion for reconsideration should
state what part of the decision is contrary to law or the
evidence; it should also point out why it is so. Failure to
explain why will render the motion for reconsideration pro
forma. (Emphasis supplied)
Where a substantial bonafide effort is made to explain where and
why the trial court should be regarded as having erred in its main
decision, the fact that the trial court thereafter found such argument
unmeritorious or as inadequate to warrant modification or reversal of
the main decision, does not, of course, mean that the motion for
reconsideration should have been regarded, or was properly
regarded, as merely pro forma.
It is important to note that the above case law rests upon the principle that a
motion for reconsideration which fails to comply with the requirements of
Sections 1 (c) and 2 of Rule 37 of the Rules of Court, and is therefore pro
forma merely, has no other purpose than to gain time. It is intended to delay
or impede the progress of proceedings and the rule that such motion for
reconsideration does not stop the period of appeal from "slipping away"
reflects both poetic and substantial justice. In Estrada, et al. v. Sto. Domingo,
et al., 13 the Court underlined.
[T]he principle [previously] forged by this Court — that a
motion for reconsideration which has no other purpose than
to gain time is pro forma and does not stop the period of
appeal from slipping away. It is in recognition of this doctrine
that we hold that where a motion for reconsideration in an
election case is taken advantage of for purposes of delay to
the prejudice of the adverse party or where such motion
forms part of a matrix delay, that motion does not stop
running of the five-day period for appeal. 14 (Emphasis
supplied)
C I V P R O I V C i v i l P r o c e d u r e P a g e | 37
Where the circumstances of a case do not show an intent on the part of the
movant merely to delay the proceedings, our Court has refused to
characterize the motion as simply pro forma. Thus, in the Guerra Enterprises
case, the Court took note of the fact that the motion for reconsideration had
been filed within barely twelve (12) days (the reglementary period was then
thirty [30] days) after receipt by the counsel for the movant party, which fact
negated the suggestion that the motion had been used as "a mere delaying
tactic." 15 Dacanay v. Alvendia, 16 on which the Court of Appeals had relied,
is not in fact in conflict with the cases we have above referred to. In Dacanay,
the motion for reconsideration was in effect a fourth motion for
reconsideration: the "reasons and arguments" set out in the motion for
reconsideration had on three previous occasions been presented to the trial
court and each time considered and rejected by the trial court. In Lonario v.
De Guzman, 17 the motion for reconsideration which the Court characterized
as pro forma was in fact a second motion for reconsideration based on
grounds already existing at the time the first motion for reconsideration was
filed. Further, at the time of the filing of the second motion, the period to
appeal had already lapsed. This Court dismissed the case for having been
appealed beyond the reglementary period. In Samudio v. Municipality of
Gainza, Camarines Sur, 18 the Court had before it a "so-called motion for
new trial based exactly on the very ground alleged in [defendant's] first
motion for reconsideration dated October 17, 1952" and accordingly, held
that the motion for new trial did not suspend the period for perfecting an
appeal "because it [was] mere repetition of the [first] motion for
reconsideration of October 17, 1952." 19 (Emphasis supplied)
We turn then to the application of the above standards to the motion for
reconsideration in the case at bar. The text of petitioners' motion for
reconsideration dated 7 November 1991 is quoted below:
(a) There [was] no sufficient evidence introduced to prove
the alleged fact that the down-payment for the property in
question came from Jose Sytangco. Private transactions are
presumed to be fair and regular (citations omitted). The
regularity of defendant Liamzon's transaction with the Prietos
for the sale of the property implies that the consideration
came from her and not from plaintiff. This presumption
cannot be rebutted by the bare testimony of abiased witness;
(b) The money used to pay for the property not belonging to
the plaintiff, there could never be a trust between him and
defendant Liamzon. Even then, plaintiff merely claimed that
what belong to him was only the down-payment, not the total

amount used to purchase the property, that the defendant
Liamzon was the one paying the installments can be gleaned
from the fact that while plaintiff allegedly authorized
defendant Liamzon to purchase the property sometime in
1968, it was only in 1981 that he came to know that the
property was titled in the name of defendant corporation.
Plaintiff's (Jose Reyes Sytangco) total lack of knowledge
about the transactions regarding the property for 13 long
years, meant that he had no contract with the Prietos, the
seller during this period. Assuming without admitting that the
down-payment belonged to plaintiff, he is only entitled to
reimbursement but not title to the property;
(c) Piercing the veil of corporate fiction applies only to cases
where the corporation was created for purposes of fraud,
usually in tax cases; fraud, however, being the exception
rather than the rule should be proven by convincing
evidences. That defendant Liamzon is a director of
defendant Corporation is not indicative of fraud. The money
used to buy the property being advances from defendant
corporation, there is nothing wrong to have said property be
titled in the name of the corporation to offset said advances;
(d) It may be mentioned that the ejectment counterpart of
this case had already been decided with finality in favor of
defendant corporation. 20
In paragraph (a) of their motion, petitioners claimed that the evidence
submitted was insufficient to show that the downpayment for the purchase of
the España Street property had in fact come from private respondents'
predecessor-in-interest Jose Reyes Sytangco. In effect, petitioners here aver
that the presumption of regularity of private transactions carried out in the
ordinary course of business had not been overturned by the testimony of
Jose Reyes Sytangco himself. This reflected petitioners' appraisal of the trial
court's conclusion that Jose and Aurelia Reyes Sytangco had handed over to
Milagros Liamzon the amount of P41,000.00 to complete the downpayment
of the Reyes Sytangco spouses on the España lot. The trial court had not
discussed the presumption of regularity of private transactions invoked by
petitioners.
In paragraph (b) of their motion, petitioners, building upon their paragraph
(a), argued that since the money used to pay the property did not belong to
the plaintiff, no constructive trust arose between Jose Reyes Sytangco and
C I V P R O I V C i v i l P r o c e d u r e P a g e | 38
Milagros Liamzon. Petitioners further argue that assuming that the money for
the downpayment had really come from the Reyes Sytangco spouses, the
rest of the payments on the España property had been made by Milagros
Liamzon. Accordingly, they argue that the Reyes Sytangco spouses would
be entitled only to reimbursement of the downpayment and not to
reconveyance of the property itself. The trial court had not addressed this
argument in its decision; the trial judge had found Milagros Liamzon's
testimony concerning whose money had been used in the purchase of the lot
as "filled with contradictions" which seriously impaired her credibility. 21
The third argument of petitioners in their motion assailed the reliance of the
trial court upon the doctrine of piercing the corporate veil by asserting that
that doctrine was available only in cases where the corporation itself had
been created for purposes of fraud. Implicitly, petitioners argue that no
evidence had been submitted to show that Marikina Valley had been created
precisely "for purposes of fraud." The trial court had not touched on this
argument. In paragraph (d) of their motion, petitioners aver that the ejectment
suit instituted by them had been decided in their favor. The trial court's
decision had not mentioned such an ejectment suit.
We are, therefore, unable to characterize the motion for reconsideration filed
by petitioners as simply pro forma. That motion for reconsideration, it may be
noted, had been filed no more than ten (10) days after receipt of the trial
court's decision by petitioner Marikina Valley.
It is scarcely necessary to add that our conclusion that petitioners' motion
was not pro forma, should not be regarded as implying however indirectly
that that motion was meritorious.
We note finally that because the doctrine relating to pro forma motions for
reconsideration impacts upon the reality and substance of the statutory right
of appeal, that doctrine should be applied reasonably, rather than literally.
The right to appeal, where it exists, is an important and valuable right. Public
policy would be better served by according the appellate court an effective
opportunity to review the decision of the trial court on the merits, rather than
by aborting the right to appeal by a literal application of the procedural rule
relating to pro forma motions for reconsideration.
WHEREFORE, for all the foregoing, (a) the Orders of the trial court dated 27
November 1991, 12 December 1991 and 22 January 1992 and (b) the
Decision of the Court of Appeals dated 8 December 1992, are hereby
REVERSED and SET ASIDE. The case is REMANDED to the trial court
 C I V P R O I V C i v i l P r o c e d u r e P a g e | 39

which is hereby DIRECTED to GIVE DUE COURSE to petitioners' notice of

appeal. No pronouncement as to costs.

SO ORDERED.

Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo,

Puno, Vitug, Kapunan, Mendoza, Francisco, Hermosisima, Jr. and
Panganiban, JJ., concur.

G.R. No. 115703 July 8, 1997
EPIFANIO L. CASOLITA, SR., ARTHUR AQUINO, BENITO GATPATAN,
JR., HENRY RELOSA, EDGAR LA TORRE, BERNARDO OCAG and
CECILIA VIERNES, petitioners,
vs.
THE COURT OF APPEALS, THE REGIONAL TRIAL COURT OF MANILA,
NATIONAL CAPITAL REGION, BRANCH 34, Presided by Judge Romulo
A. Lopez, and ATROP, INC. respondents.
Remedial Law; Civil Procedure; Appeal; The simplification of the procedure for
elevating to a higher court final judgments or orders of the lower courts
correspondingly underscores the importance of the notice of appeal.—Under
the previous rule, an appeal may be taken “by serving upon the adverse party
and filing with the trial court within thirty (30) days from notice of order or
judgment, a notice of appeal, an appeal bond, and a record on appeal.” This
provision was amended by Batas Pambansa Blg. 129, particularly Section 39
thereof, by deleting the need to file an appeal bond and record on appeal,
except in multiple appeals and in special proceedings, and by fixing the period
of appeal to fifteen (15) days. The entire original record of the case instead is
transmitted to the appellate court. Appeals from final judgments or orders of
the Regional Trial Court are now taken to public respondent Court of Appeals
by simply filing a notice of appeal. The simplification of the procedure for
elevating to a higher court final judgments or orders of the lower courts
correspondingly underscored the importance of the notice of appeal. The
adverse party may only be apprised initially of the pendency of an appeal by
the notice of appeal. To deprive him of such notice is tantamount to depriving
him of his right to be informed that the judgment in his favor is being
challenged. This requirement should be complied with so that he may be
afforded the opportunity to register his opposition to the notice of appeal if he
so desires. And service of the notice of appeal upon him may not be dispensed
with on the basis of the appellant’s whims and caprices, as in this case.
Same; Same; Same; The liberality in the interpretation and application of the
rules applies only in proper cases and under justifiable causes and
circumstances.—“Procedural rules, we reiterate, are tools designed to
facilitate the adjudication of cases. While the Court, in some instances, allows
a relaxation in the application of the rules, this, we stress, was never intended
to forge a bastion for erring litigants to violate the rules with impunity. The
liberality in the interpretation and application of the rules applies only in proper
cases and under justifiable causes and circumstances. While it is true that
litigation is not a game of technicalities, it is equally true that every case must
C I V P R O I V C i v i l P r o c e d u r e P a g e | 40
be prosecuted in accordance with the prescribed procedure to insure an
orderly and speedy administration of justice. The instant case is no exception
to this rule.”
Same; Same; Same; It is a rule that issues not properly brought and ventilated
below may not be raised for the first time on appeal.—As regards petitioner’s
residual contention that the decision of the lower court and the notice to vacate
contravened the provisions of Republic Act No. 7279, otherwise known as the
Urban Development and Housing Act of 1992, which petitioners addressed for
the first time in their memorandum, the same does not deserve serious
consideration. It is a rule that issues not properly brought and ventilated below
may not be raised for the first time on appeal, save in exceptional
circumstances none of which, however, obtain in this case.
Same; Same; Attorneys; Pleadings and Practice; A client is bound by his
counsel’s mistakes and negligence.—We hold, however, that respondent
court neither committed an error nor abused its discretion in upholding the
lower court’s denial of Casolita’s motion for reconsideration, motion to admit
appeal and notice of appeal on the ground that Atty. Baylon was not
Casolita’s counsel of record.
The records show that Atty. Aguilar was petitioner Casolita’s counsel of record.
Even Atty. Gatpatan, Jr. impliedly recognized his separate representation
when he adopted the allegations in the answer filed for said petitioner by Atty.
Aguilar. That Atty. Aguilar was the counsel of petitioner Casolita was noted by
the lower court in its Order of November 10, 1993. This was buttressed by the
fact that Casolita was furnished a copy of the decision through said counsel of
record. The failure of Atty. Aguilar to file a notice of appeal binds Casolita which
failure the latter can not now disown on the basis of his bare allegation and
self-serving pronouncement that the former was ill. A client is bound by his
counsel’s mistakes and negligence.
Same; Same; Same; Same; Substitution of counsel must be made in
accordance with Rule 138 of the Rules of Court.—It is a settled rule that a
lawyer may not simply withdraw his appearance in a case without a formal
petition filed in the case. Substitution of counsel must be made in accordance
with Rule 138 of the Rules of Court.
PETITION for review of a decision of the Court of Appeals.
The facts are stated in the resolution of the Court.

Alfredo C. Baylon, Jr. for petitioners.
Guevara Law Office for private respondents.
FRANCISCO, J.:
On March 28, 1990, private respondent ATROP, INC., a domestic
corporation, filed a complaint against herein petitioners with the Regional
Trial Court of Manila, for recovery of possession of a parcel of land located at
#731 Magallanes cor. Victoria Street, Intramuros, Manila, ATROP, INC.
claimed ownership, in fee simple, of said parcel of land under TCT No. 68927
of the Registry of Deeds of Manila.1 In answer thereto, petitioner Casolita
through his counsel, Atty. Jose L. Aguilar, alleged that he and his family had
been in continuous possession of the land since 1953, having been
designated as caretaker by the supposed "real owners" Ramon LeQuina and
Poria Pueo. The other petitioners, represented by Atty. Benito Gatpatan, Jr.
filed their answer unequivocally adopting and incorporating the allegations of
Casolita in his answer to the complaint. They further asserted that they were
not "squatters" on the land as they occupied the same in open, public,
adverse and continuous possession for more than ten years invoking Article
1134 of the Civil Code in relation to the existing land reform code. Thereafter,
trial ensued. On August 5, 1993, the lower court2 rendered a decision3 in
favor of ATROP, INC., ordering the defendants to vacate the premises, to
remove the structures they built, and to pay compensation for the use of the
land, attorney's fees and costs. Atty. Aguilar received a copy of the decision
but failed to file a notice of appeal. On the other hand, Atty. Gatpatan Jr. filed
a notice of appeal on August 23, 1993.
In its omnibus motion to dismiss the appeal and for the issuance of a writ of
execution, dated September 29, 1993, ATROP INC., argued that as far as
petitioner Casolita was concerned, the decision had become final and
executory for his counsel, Atty Aguilar, received a copy thereof without filing
a notice of appeal. As to the other petitioners, ATROP INC., observed that
while they timely filed the notice of appeal the notice was fatally defective for
they did not serve the same to the counsel of ATROP, INC. In its October 18,
1993 Order, the lower court4 granted the omnibus motion to dismiss and
ordered the issuance of a writ of execution.5
Atty. Alfredo C. Baylon, Jr. thereafter filed a notice of appearance as
"counsel for all the defendants"6 and moved for reconsideration of the
October 18, 1993 Order alleging that the dismissal of the notice of appeal
and the issuance of the writ of execution ". . . is repugnant to the principle of
due process" as it amounted to denial of justice, citing Alonzo vs. Villamor.7
C I V P R O I V C i v i l P r o c e d u r e P a g e | 41
He contended that petitioners Casolita, et. al., were not properly notified of
the August 5, 1993, decision since Atty. Aguilar had withdrawn as counsel
"due to poor health"; hence, the decision had not become final and
executory. As a last ditch effort, said counsel, for the first time, alleged that
the issuance of the writ of execution ". . . would be violative of Article VII of
the Urban Development and Housing Act of 1992, particularly Section 28,
paragraph 2 thereof," without, however, elaborating why. On November 10,
1993, the lower court denied the motion for reconsideration and the motion to
admit appeal. Thus:
There are two Notices of Appeal submitted by two different lawyers
without particularizing which among the defendants they represent.
The Notice submitted by Atty. Gatpatan, Jr., was received on August
23, 1993 and records show that Atty. Gatpatan, Jr., received the
copy of the decision on August 17, 1993, hence, well within the
period of fifteen-day to interpose an Appeal. Said lawyer represented
at the trial the following defendants: himself, Arthur Aquino, Carlito
Santosm, Henry Relosa, Edgar La Torre, Bernardo Ocag and Cecilla
Vienes, leaving defendant Epifanio Casolita who was represented by
Atty. Aguilar. Another Notice of Appeal was filed by a certain Atty.
Alfredo C. Bayhon, Jr. [should be Baylon], who at the trial was not a
counsel of records for any defendant. Atty. Bayhon, Jr. formally
appeared only, per his appearance received by this Court on
November 3, 1993, long after the lapse of fifteen-day period to
Appeal, computed from the time Atty. Aguilar received a copy of the
decision on August 25, 1993. This Court presupposes that Atty.
Bayhyon, Jr. represents the defendant Casolita only. The records,
however, does not show that Atty. Aguilar ever withdrew from the
case, hence, the appearance of Atty. Bayhon, Jr. is improper and
cannot be recognized by this Court, there being no showing that Atty.
Aguilar withdrew from the case.
When the plaintiff [herein private respondent] submitted a Motion to
Dismiss Appeal and for Issuance of a Writ of Execution on the
ground that the Notice of Appeal is defective not having been served
either on plaintiff or its counsel, no opposition was filed. That was
why the Court granted the motion and issued the Writ prayed for.
The records show likewise, that Atty. Bayhon, Jr. submitted a Motion
for Reconsideration of the Order of this Court dismissing the Appeal
of Atty. Gatpatan, Jr., and granting execution. The motion for
reconsideration deserves scant consideration, because the lawyer
who filed it has no personality in the case. Moreover, the notice to

the adverse counsel of the Notice of Appeal is a mandatory
requirement for perfecting an Appeal.
WHEREFORE, there being no merit to the motion, the same is
hereby denied, and this denials is final.
The Motion to Admit Appeal filed by Atty. Bayhon, Jr. is denied
likewise.
SO ORDERED.8 (Emphasis Added)
A notice to vacate the premises having been made, the petitioners through
Atty. Baylon filed before respondent Court of Appeals a petition via Rule 65
of the Rules of Court and Section 9 of Batas Pambansa Blg. 129 seeking the
annulment of the October 18, 1993 and November 10, 1993 Orders of the
lower court.9 On May 27, 1994, the Court of Appeals dismissed the petition.
Hence, this petition. The Court gave due course to this petition and required
the parties to submit their respective memoranda.
Petitioners contend that the Court of Appeals "committed grave abuse of
discretion tantamount to lack of jurisdiction" in denying their petition for
certiorari based on their failure to furnish private respondent with a copy of
the notice of appeal. Such omission, they insist, was a mere technicality
which should be cast aside to attain substantial justice. The contention lacks
merit.
Under the previous rule, an appeal may be taken "by serving upon the
adverse party and filing with the trial court within thirty (30) days from notice
of order or judgment, a notice of appeal, an appeal bond, and a record on
appeal". This provision was amended by Batas Pambansa Blg. 129,
particularly Section 39 thereof, by deleting the need to file an appeal bond
and record on appeal, except in multiple appeals and in special proceedings,
and by fixing the period of appeal to fifteen (15) days. The entire original
record of the case instead is transmitted to the appellate court. Appeals from
final judgments or orders of the Regional Trial Court are now taken to public
respondent Court of Appeals by simply filing a notice of appeal.10 The
simplification of the procedure for elevating to a higher court final judgments
or orders of the lower courts correspondingly underscored the importance of
the notice of appeal. The adverse party may only be appraised initially of the
pendency of an appeal by the notice of appeal. To deprive him of such notice
is tantamount to depriving him of his right to be informed that the judgment in
his favor is being challenged. This requirement should be complied with so
that he may be afforded the opportunity to register his opposition to the
C I V P R O I V C i v i l P r o c e d u r e P a g e | 42
notice of appeal if he so desires.11 And service of the notice of appeal upon
him may not be dispensed with on the basis of the appellant's whims and
caprices, as in this case. We quote with approval, in this connection,
respondent court's ruling, thus:
The judicial position on the requirement that a notice of appeal be
served upon the adverse party is articulated in the early case of
Philippine Resources Development Corp. vs. Narvasa, 4 SCRA 414
(1962), when the Supreme Court stated:
Under Section 3, Rule 41, of the Rules of Court, an appeal may be
taken by serving upon the adverse party and filing with the trial court
within 30 days from notice of the judgment a notice of appeal, appeal
bond, and a record on appeal. This section clearly requires that not
only shall the three documents be filed with the court within the
period of 30 days but that copies thereof shall be served upon the
adverse party. This requirement is made in order that the adverse
party may not only be notified of the intention of the appellant to take
the case to the appellate court, but also to afford him an opportunity
to register his opposition to any of them if he desires to do so.
As posited and as aptly argued in the private respondent's brief, the
requirement is not a mere technicality but goes into procedural due
process which, in the absence of opposition from the petitioners
(Annex A, Petition), despite proper notice and opportunity to do so
(Annexes "2" and "3" Comment), cannot be countenanced as basis
for alleged grave abuse of discretion. Moreover, the motion to
reconsider the order of dismissal was filed by counsel not of record,
no proper substitution having been made.12 (Emphasis supplied)
Petitioners additionally aver that respondent court also "abused its discretion
amounting to lack of jurisdiction" when it held that Atty. Baylon had no
personality in this case despite his formal appearance as counsel for
petitioner Casolita. We hold, however, that respondent court neither
committed an error nor abused its discretion in upholding the lower court's
denial of Casolita's motion for reconsideration, motion to admit appeal and
notice of appeal on the ground that Atty. Baylon was not Casolita's counsel of
record. The records show that Atty. Aguilar was petitioner Casolita's counsel
of record. Even Atty. Gatpatan Jr. impliedly recognized his separate
representation when he adopted the allegations in the answer filed for said
petitioner by Atty. Aguilar. That Atty. Aguilar was the counsel of petitioner
Casolita was noted by the lower court in its Order of November 10, 1993.
This was buttressed by the fact that Casolita was furnished a copy of the
 C I V P R O I V C i v i l P r o c e d u r e P a g e | 43

decision through said counsel of record. The failure of Atty. Aguilar to file a
notice of appeal binds Casolita which failure the latter can not now disown on
the basis of his bare allegation and self-serving pronouncement that the
former was ill. A client is bound by his counsel's mistakes and negligence.13
And neither may Atty. Baylon's unsupported claim that petitioner Casolita
was in Cavite at the time the decision of the lower court can be given
credence. Indeed, the unrebutted observation of private respondent cast
serious doubt over Atty. Baylon's unsubstantiated claims. Thus:
It is noteworthy that the "Motion for Reconsideration", (wherein this
alleged withdrawal of Aguilar, etc., are raised for the first time by
Baylon) is not verified (under oath) by either Casolita or Aguilar.
More, it is difficult to conceive that Casolita, did not learn of the
adverse judgment, when copy thereof was received by Gatpatan.
Gatpatan has been collaborating with Aguilar, in the instant case,
and is a personal friend of Casolita. In fact, Gatpatan is a neighbor or
Casolita. In fact, Gatpatan, Aguilar, and Casolita had been acting in
unison, all throughout the lengthy trial of the instant case.
How can Casolita claim that he was unaware of the adverse
decision, until October 23, 1993 (when Gatpatan received [the]
same, as early as August 19, 1993?)14
relaxation in the application of the rules, this, we stress, was never
intended to forge a bastion for erring litigants to violate the rules with
impunity. The liberality in the interpretation and application of the
rules applies only in proper cases and under justifiable causes and
circumstances. While it is true that litigation is not a game of
technicalities, it is equally true that every case must be prosecuted in
accordance with the prescribed procedure to insure an orderly and
speedy administration of justice. The instant case is no exception to
this rule.15
As regards petitioner's residual contention that the decision of the lower court
and the notice to vacate contravened the provisions of Republic Act No.
7279, otherwise known as the Urban Development and Housing Act of 1992,
which petitioners addressed for the first time in their memorandum, the same
does not deserve serious consideration. It is a rule that issues not properly
brought and ventilated below may not be raised for the first time on
appeal16, save in exceptional circumstances none of which however, obtain
in this case.
WHEREFORE, the instant petition is hereby DENIED.
Narvasa, C.J., Davide, Jr., Melo and Panganiban, JJ., concur.

It is a settled rule that a lawyer may not simply withdraw his appearance in a
case without a formal petition filed in the case. Substitution of counsel must
be made in accordance with Rule 138 of the Rules of Court, to wit:

Sec. 26. Change of Attorneys. — An attorney may retire at any time

from any action or special proceeding, by the written consent of his
client filed in court. He may also retire at any time from an action or
special proceeding, without the consent of the client, should the
court, on notice to the client and attorney, and on hearing, determine
that he ought to be allowed to retire. In case of substitution, the
name of the attorney newly employed shall be entered on the docket
of the court in place of the former one, and written notice of the
change shall be given to the adverse party. . . .

There having no proper substitution of counsel, Atty. Baylon, as correctly

noted by the lower court, has no personality in the case.

Procedural rules, we reiterate, are tools designed to facilitate the

adjudication of cases. While the Court, in some instances, allows a

G.R. No. 140473 January 28, 2003
MELBA MONCAL ENRIQUEZ, petitioner,
vs.
HON. COURT OF APPEALS and VICTORINA TIGLE, respondents.
Civil Procedure; Pleadings and Practice; Appeal; Under the express mandate
of the Rules of Court, the appellant is duty-bound to submit his Memorandum
on appeal.—Rule 40, Section 7 (b) provides that, “it shall be the duty of the
appellant to submit a memorandum” and failure to do so “shall be a ground for
dismissal of the appeal.” The use of the word “shall” in a statute or rule
expresses what is mandatory and compulsory. Further, the Rule imposes upon
an appellant the “duty” to submit his memorandum. A duty is a “legal or moral
obligation, mandatory act, responsibility, charge, requirement, trust, chore,
function, commission, debt, liability, assignment, role, pledge, dictate, office,
(and) engagement.” Thus, under the express mandate of said Rule, the
appellant is duty-bound to submit his memorandum on appeal. Such
submission is not a matter of discretion on his part. His failure to comply with
this mandate or to perform said duty will compel the RTC to dismiss his appeal.
Same; Same; Same; An appealing party must strictly comply with the
requisites laid down in the Rules of Court.—But it is equally true that an appeal
being a purely statutory right, an appealing party must strictly comply with the
requisites laid down in the Rules of Court. In other words, he who seeks to
avail of the right to appeal must play by the rules. This the petitioner failed to
do when she did not submit her memorandum of appeal in Civil Case No.
12044 as required by Rule 40, Section 7 of the 1997 Rules of Civil Procedure.
That she lost her case is not the trial court’s fault but her own.
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the resolution of the Court.
Marcelo G. Flores for petitioner.
S.J. Erames and Elam Law Offices for private respondent.
RESOLUTION
QUISUMBING, J.:
C I V P R O I V C i v i l P r o c e d u r e P a g e | 44
This is a petition to review the decision1 of the Court of Appeals dated July
20, 1999, in CA-G.R. SP No. 50360, affirming the orders of the Regional Trial
Court of Dumaguete City, Branch 31, in Civil Case No. 12044. In its order 2
dated October 6, 1998, the RTC dismissed herein petitioner's appeal from
the decision of the Municipal Circuit Trial Court (MCTC) of Bayawan-Basay,
Negros Oriental in Civil Case No. 1062 for ejectment, and denied petitioner's
motion for reconsideration in its order3 dated October 30, 1998. Petitioner
also assails the resolution4 of the appellate court dated September 24, 1999,
denying her motion for reconsideration.
The factual antecedents of this petition are as follows:
On February 29, 1996, herein respondent Victorina Tigle filed an action for
unlawful detainer against herein petitioner Melba Moncal Enriquez before the
MCTC of Bayawan-Basay, Negros Oriental. Tigle's complaint, which was
docketed as Civil Case No. 1062, alleged inter alia, that on December 14,
1994, she bought a parcel of land known as Lot No. 377, located at Tinego,
Bayawan, Negros Oriental from Engracia Macaraya. Prior to the sale,
Enriquez was staying at said lot by mere tolerance of Macaraya. Enriquez
was given an option to buy said lot but she refused to exercise it. After the
sale, Tigle then made demands on Enriquez to vacate the property, but
Enriquez adamantly refused.
In her Answer with Counterclaim filed before the MCTC, Enriquez averred
that the subject property is owned in common by the heirs of Felix Moncal
and any sale by Macaraya (one of the heirs of Felix Moncal) could only refer
to Macaraya's undivided 1/7 share of the lot. Since said 1/7 share of
Macaraya is still unidentified, the same cannot be a subject of ejectment
pursuant to Article 4345 of the Civil Code.
In its decision dated June 2, 1997, the MCTC of Bayawan-Basay, decreed:
ACCORDINGLY, in the light of the foregoing considerations, this
Court hereby renders judgment in favor of the plaintiff to be in
physical, actual, and prior possession of the parcel of land described
in Paragraph 3 of the Complaint unlawfully occupied by defendant
MELBA MONCAL ENRIQUEZ, and plaintiff is entitled to the reliefs
prayed for in the Complaint as follows:
1. Declaring plaintiff VICTORINA TIGLE to be in actual, physical and
prior possession of the premises of the parcel of land mentioned in
Paragraph 3 of the Complaint consisting of ONE HUNDRED

SEVENTY NINE (179) square meters, more or less, or SUB-LOT
NO. 2-A, of LOT NO. 2, mentioned in Par. 5, Page 2 of EXH. "B";
2. Ordering defendant MELBA MONCAL ENRIQUEZ, her agents,
representatives, and all other persons acting in her behalf to
immediately vacate the premises of the parcel of land mentioned in
Par. 5, Page 2, EXH. "B", otherwise known as SUB-LOT NO. 2-A of
LOT NO. 2;
3. To remove and/or demolish all workings, constructions and
improvements illegally built and/or constructed in the parcel of land
mentioned in Par. 5, Page 2, of EXH. "B", otherwise known as SUB-
LOT NO. 2-A of LOT NO. 2;
4. Ordering defendant MELBA MONCAL ENRIQUEZ to pay to
plaintiff the sum of P3,000.00 by way of litigation expenses;
5. Ordering the defendant MELBA MONCAL ENRIQUEZ to pay to
plaintiff the sum of P10,000.00 by way of attorney's fees;
6. However, for failure to allege and pray for reasonable
compensation and fair rental value for the use and occupation of the
premises of the parcel of land mentioned in land mentioned in Par. 5,
Page 2, of EXH. "B", known as SUB-LOT NO. 2-A of LOT NO. 2, the
same is deemed waived;
7. On the other hand, moral and exemplary damages are not allowed
in ejectment cases;
8. Any allegations by way of Counterclaim are dismissed for lack of
sufficient basis.
SO ORDERED.6
Enriquez seasonably appealed to the RTC of Dumaguete City. In its order of
February 16, 1998, the RTC directed respective counsel for the parties to
"submit within fifteen (15) days from receipt of this order their respective
memoranda and/or briefs."7 The RTC stated that upon expiration of the
period to submit memoranda, it "shall decide the case on the basis of the
entire record of the proceedings in the court of origin and/or such brief(s) as
may have been filed."8
C I V P R O I V C i v i l P r o c e d u r e P a g e | 45
The counsel for Enriquez failed to comply with the order to submit a
memorandum. On October 6, 1998, the RTC issued the following
order:
For failure of defendant-appellant to file and submit a memorandum
within the reglementary period as required by Rule 40, Section 7 (b), 9
her appeal is dismissed.
Upon finality of this order, the Clerk of Court is hereby directed to
remand the records of this case to the lower court for execution of
judgment.
SO ORDERED.10
Enriquez then moved for reconsideration, manifesting that she was adopting
her position paper in the MCTC as her memorandum.
On October 30, 1998, the RTC denied Enriquez's motion on the ground that
"the records does (sic) not show of such manifestation."11
Enriquez then elevated the matter to the Court of Appeals, which docketed
her petition as CA-G.R. SP No. 50360. The appellate court found the primary
issue to be procedural in character, namely: the correctness of the order of
the RTC dismissing herein petitioner's appeal for failure to file her
memorandum on appeal.
On July 20, 1999, the appellate court decided CA-G.R. SP No. 50360 as
follows:
WHEREFORE, premises considered, the instant petition is hereby
DISMISSED for lack of merit.
SO ORDERED.12
The appellate court held that "under Section 7, Rule 40 of the 1997 Rules of
Civil Procedure (the filing of a memorandum) is a mandatory obligation on
the part of the appellant, such that, the failure to do so warrants a
concomitant dismissal of the appeal."13
Enriquez moved for reconsideration of the appellate court's decision, but this
was denied by the Court of Appeals in its order of September 24, 1999.14

Hence, the instant petition before us. Petitioner raises the following issues:
1. HAS THE HONORABLE COURT OF APPEALS COMMITTED
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF
JURISDICTION OR ARE ITS DECISION (ANNEX "N") AND
RESOLUTION (ANNEX "P") APPEALED FROM NOT IN ACCORD
WITH THE RULES AND APPLICABLE DECISIONS OF THIS
HONORABLE SUPREME COURT?
2. AND, THAT IN ORDER TO SERVE THE ENDS OF JUSTICE
AND PREVENT MISCARRIAGE OF JUSTICE, SHOULD THE
ORDER DATED OCTOBER 6, 1998 (ANNEX "I"); ORDER DATED
OCTOBER 30, 1998 (ANNEX "K"); THE DECISION (ANNEX "N")
AND RESOLUTION (ANNEX "P"), BE ALL PLEASE SET ASIDE
AND THE COMPLAINT FILED IN THE MCTC OF BAYAWAN-
BASAY (ANNEXES "C" TO "C-3") BE PLEASE ORDERED
TERSELY DISMISSED WITH COSTS AGAINST THE
RESPONDENT AND THE RESPONDENT BE ORDERED TO PAY
TO THE PETITIONER THE MONETARY COUNTERCLAIMS
INTERPOSED IN THE ANSWER WITH COUNTERCLAIM
(ANNEXES "D" TO "D-7")?15
Stated simply, the sole issue for our resolution is: Did the Court of Appeals
commit a reversible error in sustaining the order of the RTC which dismissed
petitioner's appeal for failure to file memorandum on appeal?
Petitioner faults the appellate court with grave error of law when it failed to
rule that the RTC should have decided her appeal before it in accordance
with Rule 40, Section 7 (c)16 of the 1997 Rules of Civil Procedure. She avers
that the appellate court erred when it did not rule that the RTC should have
decided the case, based on the record of the MCTC proceedings, instead of
sustaining the order to dismiss for failure to file memorandum.
Private respondent counters that an appellant's failure to file the
memorandum required under Rule 40, Section 7, compelled the RTC to
dismiss the case. She points out that an appealed case cannot be decided
on the merits without an appellant's memorandum, as the assignment of
errors by the appellant is vital to the decision of the case. This is different
from the situation where it is the appellee who fails to file his memorandum,
as in this instance, the RTC may decide the case based on the records of the
proceedings in the court of origin and the appellant's memorandum.
Moreover, the failure to file a memorandum by the appellant manifests lack of
interest to pursue her appeal.
C I V P R O I V C i v i l P r o c e d u r e P a g e | 46
Rule 40, Section 7 of the 1997 Rules of Civil Procedure is a new
provision. Said section is based on Section 21 (c) and (d)17 of the
Interim Rules Relative to the Implementation of the Judiciary
Reorganization Act of 1980 (B.P. Blg. 129) with modifications. These
include the following changes: (a) the appellant is required to submit
a memorandum discussing the errors imputed to the lower court
within fifteen (15) days from notice, and the appellee is given the
same period counted from receipt of the appellant's memorandum to
file his memorandum; (b) the failure of the appellant to file a
memorandum is a ground for the dismissal of the appeal.18
Rule 40, Section 7 (b) provides that, "it shall be the duty of the
appellant to submit a memorandum" and failure to do so "shall be a
ground for dismissal of the appeal." The use of the word "shall" in a
statute or rule expresses what is mandatory and compulsory. 19
Further, the Rule imposes upon an appellant the "duty" to submit his
memorandum. A duty is a "legal or moral obligation, mandatory act,
responsibility, charge, requirement, trust, chore, function,
commission, debt, liability, assignment, role, pledge, dictate, office,
(and) engagement."20 Thus, under the express mandate of said Rule,
the appellant is duty-bound to submit his memorandum on appeal.
Such submission is not a matter of discretion on his part. His failure
to comply with this mandate or to perform said duty will compel the
RTC to dismiss his appeal.
In rules of procedure, an act which is jurisdictional, or of the essence of the
proceedings, or is prescribed for the protection or benefit of the party affected
is mandatory.21 As private respondent points out, in appeals from inferior
courts to the RTC, the appellant's brief is mandatory for the assignment of
errors is vital to the decision of the appeal on the merits. This is because on
appeal only errors specifically assigned and properly argued in the brief or
memorandum will be considered, except those affecting jurisdiction over the
subject matter as well as plain and clerical errors.22 Otherwise stated, an
appellate court has no power to resolve an unassigned error, which does not
affect the court's jurisdiction over the subject matter, save for a plain or
clerical error.23
It is true that the Rules should be interpreted so as to give litigants ample
opportunity to prove their respective claims and that a possible denial of
substantial justice due to legal technicalities should be avoided.24 But it is
equally true that an appeal being a purely statutory right, an appealing party
must strictly comply with the requisites laid down in the Rules of Court. 25 In
other words, he who seeks to avail of the right to appeal must play by the
 C I V P R O I V C i v i l P r o c e d u r e P a g e | 47

rules.26 This the petitioner failed to do when she did not submit her
memorandum of appeal in Civil Case No. 12044 as required by Rule 40,
Section 7 of the 1997 Rules of Civil Procedure. That she lost her case is not
the trial court's fault but her own.

In sum, we find that the Court of Appeals committed no reversible error of

law when it upheld (a) the order of the RTC dismissing herein petitioner's
appeal in Civil Case No. 12044, and (b) its order denying reconsideration.

WHEREFORE, the instant petition is DENIED, and the assailed decision and
resolution of the Court of Appeals in CA-G.R. SP No. 50360 are AFFIRMED.

SO ORDERED.

Bellosillo, Mendoza, Austria-Martinez, and Callejo, Sr., JJ ., concur.


G.R. No. 97535 August 4, 1995
MANILA ELECTRIC COMPANY, petitioner,
vs.
LA CAMPANA FOOD PRODUCTS, INC., Judge BENIGNO T. DAYAW,
Presiding Judge, RTC, Branch 80, Quezon City, and Deputy Sheriff
JOSE MARTINEZ, RTC, Branch 96, Quezon City, respondents.
Actions; Pleadings and Practice; Motions; A motion that does not meet the
requirements of Sections 4 and 5 of Rule 15 of the Rules of Court is a worthless
piece of paper which the clerk of court has no right to receive and the court
has no authority to act upon.—The attention of Meralco is drawn to the fact
that it indeed failed to indicate in its motion for extension of time to file an
answer a notice of place and date of hearing, an omission for which it could
offer no explanation. As we declared in the case of Gozon, et al. v. Court of
Appeals: “It is well-entrenched in this jurisdiction that a motion which does not
meet the requirements of Sections 4 and 5 of Rule 15 of the Rules of Court is
considered a worthless piece of paper which the clerk has no right to receive
and the court has no authority to act upon.”
Same; Same; Defaults; A defendant who fails to file an answer within the time
provided by the Rules of Court is already in default and is no longer entitled to
notice of the motion to declare him in default.—Meralco was aware of the
importance of such a notice since it insisted in its motion to set aside judgment
by default and/or for new trial that it should have received notice of hearing of
the motion to declare it in default which La Campana filed ex parte. La
Campana correctly rebutted this argument by citing the early case of Pielago
v. Generosa where the Court, in applying Section 9, Rule 27 of the old Rules
of Court (now covered by Section 9 of Rule 13), laid down the doctrine that a
defendant who fails to file an answer within the time provided by the Rules of
Court is already in default and is no longer entitled to notice of the motion to
declare him in default.
Same; Same; Same; What an aggrieved party seeks to set aside is the order
of default, an interlocutory order, and not the judgment by default, which is a
final disposition of the case.—It must be clarified that under the Rules, what
an aggrieved party seeks to set aside is the order of default, an interlocutory
order which is, therefore, not appealable, and not the judgment by default,
which is a final disposition of the case and appealable to the Court of Appeals.
Notice that the pertinent provisions of § 3, Rule 18, § 9, Rule 13, and §2, Rule
41 of the Rules of Court expressly state that what may be set aside is the order
of default, while the judgment itself may be appealed to the Court of Appeals.
C I V P R O I V C i v i l P r o c e d u r e P a g e | 48
Same; Same; Same; New Trial; Fraud; As a ground for new trial, fraud must
be extrinsic or collateral, that is, one which prevents the aggrieved party from
having a trial or presenting his case to the court, or that which is used to
procure the judgment without fair submission of the controversy.—On the other
hand, as a motion for new trial grounded on fraud, Meralco’s motion likewise
fails to convince. The fraud it claims is in the ex-parte motion of La Campana
to declare it in default. Meralco claims that the reason for the ex-parte motion
was “to deprive the defendant of the opportunity to oppose it, knowing that
defendant actually filed its answer.” But how could La Campana have known
about the answer with counterclaim when it was actually received only on
October 8, 1990, as evidenced by the registry return receipt attached to
Meralco’s Annex “H,” while the ex-parte motion to declare Meralco in default
was filed much earlier on September 27, 1990? “Fraud, as a ground for new
trial, must be extrinsic or collateral, that is, it is the kind of fraud which
prevented the aggrieved party from having a trial or presenting his case to the
court, or was used to procure the judgment without fair submission of the
controversy.” Meralco’s failure to go to trial in this case is solely attributable to
its failure to comply with the Rules of Court.
Same; Same; Same; Same; Pro Forma Motions; A motion to set aside
judgment by default and/or for new trial which does not specify the facts
constituting the alleged fraud which under the Rules must be alleged with
particularity is a pro forma motion that does not interrupt the running of the
period to appeal.—We agree with respondent Judge that Meralco’s motion to
set aside judgment by default and/or for new trial is a mere pro forma motion
inasmuch as it does not specify the facts constituting the alleged fraud which
under the Rules must be alleged with particularity. Being a pro forma motion,
it did not interrupt the running of the period to appeal. Accordingly, having
received the decision on November 29, 1990, Meralco had until December 14,
1990, within which to file a notice of appeal. The notice of appeal which it filed
on January 28, 1991, was clearly filed out of time.
Same; Same; Appeals; Certiorari; The special civil action of certiorari cannot
be a substitute for a lost appeal.—Having lost its right to appeal, Meralco
cannot take refuge in the instant petition for certiorari and prohibition. The
Court has always maintained that the special civil action of certiorari cannot be
a substitute for a lost appeal, and there appears to be no cogent reason why
such policy should be waived in this case.
SPECIAL CIVIL ACTION in the Supreme Court. Certiorari and Prohibition
with Temporary Restraining Order and/or Preliminary Injunction.

The facts are stated in the opinion of the Court.
Atilano S. Guevarra, Jose V. Balaoing and Gil S. San Diego for petitioner.
Herenio E. Martinez for respondents.
ROMERO, J.:
A complaint was filed on August 21, 1990, by private respondent La
Campana Food Products, Inc. (hereinafter La Campana) against petitioner
Manila Electric Company (hereinafter Meralco) for recovery of a sum of
money with preliminary injunction after it was served a notice of
disconnection by the latter for alleged non-payment of the following billings:
(a) the differential billing in the sum of P65,619.26, representing the value of
electric energy used but not registered in the meter due to alleged tampering
of the metering installation discovered on September 22, 1986; and (b) the
underbilling in the sum of P169,941.29 (with a balance of P28,323.55)
rendered from January 16, 1987, to December 16, 1987, due to meter
multiplier failure.
Summons and a copy of the complaint were duly served upon Meralco on
August 23, 1990.
The case, docketed as Civil Case No. Q-90-6480, was initially assigned on
August 21, 1990 to Branch 78 of the Regional Trial Court of Quezon City
presided over by Judge Percival M. Lopez, but was re-raffled on September
25, 1990 to Branch 80, presided over by public respondent Judge Benigno T.
Dayaw, after Judge Lopez inhibited himself from hearing the case upon
Meralco's oral motion.
On September 7, 1990, Meralco filed a motion for extension of time of fifteen
days from said date within which to file an answer to the complaint at the
Office of the Clerk of Court after the clerk of Branch 78 allegedly refused to
receive the same because the case had already been re-raffled. The motion
however, was not acted upon because it did not contain a notice of hearing
as required by Sections 4 and 5, Rule 15 of the Rules of Court.
Meralco's "Answer With Counterclaim" was actually received at Branch 78
only on September 21, 1990 which is beyond the period to answer but within
the requested extension.
C I V P R O I V C i v i l P r o c e d u r e P a g e | 49
On account of Meralco's failure to file an answer to the complaint within the
reglementary period which expired on September 7, 1990, La Campana filed
on September 28, 1990 an "Ex-Parte Motion, to Declare Defendant in
Default," which Judge Dayaw granted in an order of default dated October 8,
1990.
After hearing and receiving La Campana's evidence ex parte, the court a quo
rendered a decision dated November 20, 1990, the decretal portion of which
reads thus:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff
as against the defendant, ordering:
1) Defendant to reconnect within twenty-four (24) hours from receipt
of a copy of this decision the disconnected electric service in
plaintiff's building situated at No. 13 Serrano Laktaw St., Quezon City
under Account No. 05373-0470-17 and/or plaintiff is hereby
authorized to engage the services of a duly licensed electrician to
reconnect the said electric service at the expense of the defendant;
2) Defendant to return the amount of P141,617.74 with 12% interest
per annum from the time that the same was paid by plaintiff to
defendant, until the same is fully reimbursed; [and]
3) [Defendant] To pay attorney's fees in the amount of P50,000.00
plus costs of suit.
SO ORDERED.
Instead of appealing the said decision to the Court of Appeals under Section
2, Rule 41 of the Rules of Court, Meralco filed on December 3, 1990, a
"Motion to Set Aside Judgment by Default and/or for New Trial" on the
ground that it filed an answer to the complaint and that the judgment by
default was obtained by fraud.
In an order dated January 10, 1991, Judge Dayaw denied the said motion
and opined that Meralco cannot presume that its motion for extension will be
granted by the court, especially in this case where its motion for extension
was defective in that it did not contain any notice of date and place of
hearing. He also stated that the motion to set aside judgment by default
and/or for new trial was a pro forma motion because it did not set forth the

facts and circumstances which allegedly constituted the fraud upon which the
motion was grounded.
On January 28, 1991, Meralco filed a notice of appeal. This was opposed by
La Campana on the ground that it was filed out of time since the motion to
set aside judgment by default and/or for new trial did not stop the running of
the period to appeal, which expired on December 14, 1990, or fifteen days
from the time Meralco received the decision on November 29, 1990.
The trial court, in an order dated February 22, 1991, denied Meralco's notice
of appeal and granted the motion for execution earlier filed by La Campana.
On March 11, 1991, respondent Judge appointed respondent Deputy Sheriff
Jose Martinet of Branch 96 of the same court as special sheriff to
enforce/implement the writ of execution which was issued on March 12,
1991.
Meralco filed the instant petition for certiorari and prohibition with prayer for
the issuance of a restraining order and/or preliminary injunction on March 15,
1991, claiming that Judge Dayaw committed grave abuse of discretion in
rendering his decision dated November 20, 1990. On March 20, 1991, the
Court's First Division issued a temporary restraining order in favor of
Meralco.
After examining the trial court's assailed decision and orders, as well as the
pleadings and evidence presented below, we are convinced that respondent
Judge committed no abuse of discretion, much less grave abuse of
discretion, in the proceedings below.
The attention of Meralco is drawn to the fact that it indeed failed to indicate in
its motion for extension of time to file an answer a notice of place and date of
hearing, an omission for which it could offer no explanation. As we declared
in the case of Gozon, et al. v. Court of Appeals:1
It is well-entrenched in this jurisdiction that a motion which does not
meet the requirements of Sections 4 and 5 of Rule 15 of the Rules of
Court is considered a worthless piece of paper which the clerk has
no right to receive and the court has no authority to act upon.
Meralco was aware of the importance of such a notice since it insisted in its
motion to set aside judgment by default and/or for new trial that it should
have received notice of hearing of the motion to declare it in default which La
Campana filed ex parte. La Campana correctly rebutted this argument by
citing the early case of Pielago v. Generosa2 where the Court, in applying
C I V P R O I V C i v i l P r o c e d u r e P a g e | 50
Section 9, Rule 27 of the old Rules of Court (now covered by Section 9 of
Rule 13), laid down the doctrine that a defendant who fails to file an answer
within the time provided by the Rules of Court is already in default and is no
longer entitled to notice of the motion to declare him in default.
Thus, when it filed in Branch 78 its answer with counterclaim on September
21, 1990, fourteen days after the expiration of the period within which to file
an answer, Meralco was already in default and, naturally, it had to bear all
the legal consequences of being in default.
The judgment by default of November 20, 1990 was based solely on the
evidence presented by La Campana. No abuse of discretion attended such
decision because, as stated above, Meralco was already in default.
The records indicate that Meralco was not certain at this juncture what
remedy to adopt: a motion to set aside the judgment by default or a motion
for new trial? Meralco chose to play it safe by using the "and/or" option.
It must be clarified that under the Rules, what an aggrieved party seeks to
set aside is the order of default, an interlocutory order which is, therefore, not
appealable, and not the judgment by default, which is a final disposition of
the case and appealable to the Court of Appeals. Notice that in the following
pertinent provisions, the Rules expressly state that what may be set aside is
the order of default, while the judgment itself may be appealed to a higher
court:
Sec. 3. Relief from order of default. — A party declared in default
may at any time after discovery thereof and before judgment file a
motion under oath to set aside the order of default upon proper
showing that his failure to answer was due to fraud, accident,
mistake or excusable neglect and that he has a meritorious defense.
In such case the order of default may be set aside on such terms and
conditions as the judge may impose in the interest of justice. [Rule
18]
Sec. 9. Service upon party in default. — No service of papers other
than substantially amended or supplemental pleadings and final
orders or judgments shall be necessary on a party in default unless
he files a motion to set aside the order of default, in which event he
shall be entitled to notice of all further proceedings regardless of
whether the order of default is set aside or not. [Rule 13]
Sec. 2. Judgments or orders subject to appeal. —
 C I V P R O I V C i v i l P r o c e d u r e P a g e | 51

xxx xxx xxx and there appears to be no cogent reason why such policy should be waived
in this case.
A party who has been declared in default may likewise appeal from
the judgment rendered against him as contrary to the evidence or to WHEREFORE, the instant petition for certiorari and prohibition is
the law, even if no petition for relief to set aside the order of default DISMISSED and the TEMPORARY RESTRAINING ORDER issued on
has been presented by him in accordance with Rule 38. [Rule 41] March 20, 1991, is hereby DISSOLVED. The decision dated November 20,
[Emphasis supplied] 1990, as well as the Orders dated January 10, 1991 and March 11, 1991,
issued by respondent Judge Dayaw in Civil Case No. Q-90-6480 entitled "La
Granting arguendo that the motion to set aside judgment by default was Campana Food Products, Inc. v. Manila Electric Company," are hereby
proper, it was still correctly denied by respondent Judge for failure to show declared FINAL. Accordingly, the Writ of Execution dated March 12, 1991 is
that Meralco's omission to answer was due to any of the causes mentioned hereby declared VALID.
in Section 3 of Rule 18. At best, the motion only stressed that it was filed on
September 21, 1990, within the requested period of extension, which, as Costs against the petitioner.
earlier discussed, cannot be presumed to be granted.
SO ORDERED.
On the other hand, as a motion for new trial grounded on fraud, Meralco's
motion likewise fails to convince. The fraud it claims is in the ex-parte motion Melo and Vitug, JJ., concur.
of La Campana to declare it in default. Meralco claims that the reason for the
ex-parte motion was "to deprive the defendant of the opportunity to oppose it, Feliciano, J., concurs in the result.
knowing that defendant actually filed its answer." But how could La Campana
have known about the answer with counterclaim when it was actually
received only on October 8, 1990, as evidenced by the registry return receipt
attached to Meralco's Annex "H,"3 while the ex-parte motion to declare
Meralco in default was filed much earlier on September 27, 1990? "Fraud, as
a ground for new trial, must be extrinsic or collateral, that is, it is the kind of
fraud which prevented the aggrieved party from having a trial or presenting
his case to the court, or was used to procure the judgment without fair
submission of the controversy."4 Meralco's failure to go to trial in this case is
solely attributable to its failure to comply with the Rules of Court.

We agree with respondent Judge that Meralco's motion to set aside judgment
by default and/or for new trial is a mere pro forma motion inasmuch as it
does not specify the facts constituting the alleged fraud which under the
Rules must be alleged with particularity.5 Being a pro forma motion, it did not
interrupt the running of the period to appeal. Accordingly, having received the
decision on November 29, 1990, Meralco had until December 14, 1990,
within which to file a notice of appeal. The notice of appeal which it filed on
January 28, 1991, was clearly filed out of time.

Having lost its right to appeal, Meralco cannot take refuge in the instant
petition for certiorari and prohibition. The Court has always maintained that
the special civil action of certiorari cannot be a substitute for a lost appeal,

G.R. No. 109053 October 7, 1995
GERSON R. MENESES, petitioner,
vs.
COURT OF APPEALS and PROCTER AND GAMBLE PHILS., INC.,
respondents.
Appeals; Courts; Pleadings and Practice; There is no longer any justification
for allowing transfers of erroneous appeals from one court to the other.—The
petitioner’s first ground is devoid of merit. Section 3, Rule 50 of the Revised
Rules of Court which he invokes provides him with no sanctuary. In Murillo v.
Consul, 183 SCRA xi (1990), this Court ruled that “[t]here is no longer any
justification for allowing transfers of erroneous appeals from one court to the
other.” The Murillo rule was embodied in Circular No. 2-90 of this Court which
was issued on 9 March 1990.
Same; Same; Same; The remedy against an order dismissing a complaint is
appeal, not certiorari, and if the appeal is solely on questions of law, the
appeal to the Supreme Court should be by petition for review on certiorari in
accordance with Rule 45 of the Rules of Court.—It must also be stressed that
the trial court’s order of 5 June 1992 dismissing the petitioner’s complaint
was, whether it was right or wrong, a final order because it had put an end to
the particular matter resolved, or settled definitely the matter therein
disposed of and left nothing more to be done by the trial court except the
execution of the order. It is a firmly settled rule that the remedy against such
order is the remedy of appeal and not certiorari. That appeal may be solely
on questions of law, in which case it may be taken only to this Court; or on
questions of fact and law, in which case the appeal should be brought to the
Court of Appeals. Pursuant to Murillo vs. Consul, the appeal to this Court
should be by petition for review on certiorari in accordance with Rule 45 of
the Rules of Court.
Same; Same; Same; If the appeal from the trial court’s order of dismissal raises
both questions of law and fact, the same should be by an ordinary appeal to
the Court of Appeals and not by way of a petition for review under Rule 45.—
In the instant case then, if the petitioner had chosen to appeal from the
dismissal order of the trial court solely on questions of law, then he should
have filed a petition for review on certiorari with this Court. If he wanted to raise
in his appeal both questions of law and of fact, then he should have pursued
the remedy of an ordinary appeal to the Court of Appeals and not by way of a
C I V P R O I V C i v i l P r o c e d u r e P a g e | 52
petition for review under Rule 45. The Court of Appeals did not then commit
any reversible error when it dismissed the petition for review of the petitioner
in CA-G.R. SP No. 29328.
PETITION for review of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Sanchez, Rosales, Sanidad & Mercado Law Firm for petitioner.
Angara, Abello, Concepcion, Regala & Cruz Law Offices for private
respondent.
DAVIDE, JR., J.:
Petitioner urges us to set aside the Decision of 22 December 19921 of
respondent Court of Appeals dismissing the petition for review under Rule 45
of the Rules of Court in CA-G.R. SP No. 29328 because it erred:
. . . IN NOT CERTIFYING CA-G.R. SP NO. 21328 [sic] TO
THIS HONORABLE COURT UNDER SECTION 3, RULE 50
OF THE RULES OF COURT IN CONJUNCTION WITH THE
1991 CASE OF VICTORIAS MILLING VS. IAC; AND
. . . IN NOT REVERSING THE LOWER COURT'S
JUDGMENT DISMISSING CIVIL CASE NO. 91-52339 [sic]
FOR LACK OF JURISDICTION, AS THE LOWER COURT
ERRED IN HOLDING THAT THE NLRC RATHER THAN
THE CIVIL COURTS HAD JURISDICTION OVER THE SAID
CIVIL CASE.
In dismissing the petition, the respondent Court of Appeals held:
The petition in this case purports to be a petition for certiorari
under Rule 45 of the Rules of Court. But in its prayer, it
seeks the annulment of the orders of dismissal of the trial
court. Considering the nature of the orders in question and
the issue being raised, petitioner should have filed a petition
for review on certiorari under Rule 45, in relation to sec. 17
of the Judiciary Act of 1948 (Rep. Act No. 296, as amended
by Rep. Act No. 5440), and the petition should have been
filed not with this Court but with the Supreme Court. The
orders being alleged are in the nature of final orders and,

therefore, appeal by certiorari is the appropriate remedy. At
the same time, since the only question raised concerns the
jurisdiction of the lower court, the matter comes within [the]
exclusive appellate [jurisdiction] of the Supreme Court. This
Court has no jurisdiction over this case.2
Petitioner's motion to reconsider the decision was denied for lack of merit in
the Resolution3 of 15 February 1993 thus:
Pursuant to Circular No. 2-90, sec. 4 of the Supreme Court
an appeal taken to either the Supreme Court or this Court by
the wrong or inappropriate mode should be dismissed. And
as held in Murillo v. Consul, UDK No. 1591, March 1, 1990,
there is no longer any justification for allowing transfers of
erroneous appeals from one court to the other.
In the Resolution4 of 2 March 1994, we gave due course to the petition and
required the parties to submit their respective memoranda, which they
complied with.
The antecedents of this case are not controverted.
On 29 May 1991, the petitioner filed with the Regional Trial Court (RTC) of
Manila a complaint for damages5 against the private respondent. It was
docketed as Civil Case No. 91-57339 and assigned to Branch 31 of the said
court. The petitioner alleged therein as follows:
xxx xxx xxx
3. Plaintiff was formerly employed by defendant in the Perla
Department of its plant at No. 2279 Velasquez St., Tondo,
Manila as an operator of its "jumbo machine" where the
ingredients of soap are mixed. He worked in the said plant
for twelve (12) years before the accident complained of
herein.
4. In the course of his duties, plaintiff had to go to another
area of defendant's plant to switch on a caustic system
which feeds ingredients into the jumbo machine.
5. As early as April 25, 1986, plaintiff had already
recommended to defendant's management that the caustic
C I V P R O I V C i v i l P r o c e d u r e P a g e | 53
switch be transferred to a place nearer the jumbo [machine].
. . . Defendant accepted this recommendation but failed to
act on it.
6. The switch to the caustic system was located in the
vicinity of several giant steel storage kettles of boiling soap
oil. These kettles were provided with steel covers strong
enough to contain the tremendous pressure built-up inside
the vessel upon boiling. Plaintiff does not know of any
incident in his twelve years in the said plant when the said
steel covers failed to contain pressure build-up.
7. For reasons known only to defendant, shortly before the
accident complained of herein it changed the covers of one
of these steel kettles near the caustic system switch from the
original steel to a cheaper but more brittle fiberglass cover,
with total and reckless disregard of its plant workers' safety.
8. On June 1, 1987 at around 3:30 in the afternoon, as
plaintiff was leaving the jumbo caustic switch after turning it
on, the fiberglass cover of the said kettle exploded.
9. Plaintiff was drenched in, and burned by boiling soap oil
coming from the kettle in question.
As a result of the explosion, plaintiff:
a. Suffered third degree burns over eighty (80%) percent of
his body surface leaving highly visible scars thereover;
b. Had seven (7) toes of his feet amputated;
c. Underwent psychiatric treatment;
d. Spent six (6) months of confinement in the Makati Medical
Center; and
e. Spent seventeen (17) months of physical therapy
conducted by the same medical institution.

14. Shortly after the explosion, the kettle which exploded
was repaired by defendant. Its fiberglass cover was replaced
by a steel cover.
15. Also after the accident, defendant transferred the caustic
system switch nearer the jumbo machine, away from the
giant soap kettles.
Petitioner prayed for the following reliefs:
For the severe and permanent curtailment of plaintiff's
capacity to earn and the income opportunities lost to him due
to [h]is limited mobility, loss of skills, and general physical
deterioration, actual damages of at least P1,500,000.00;
For plaintiff's continuous mental anguish, moral anxiety,
disfigured appearance, social humiliation, depression and
inferiority complex, moral damages of at least
P2,000,000.00;
As an example to the public, on account of respondent's
wanton, reckless and malicious disregard of its obligation to
observe due diligence in safeguarding its worker's safety,
exemplary damages of at least P500,000.00; and
For plaintiff's expenses in contracting counsel's services,
attorney's fees of at least 25% of the total award.
Instead of filing an answer, the private respondent moved to dismiss
the complaint on grounds of laches and of lack of jurisdiction of the
trial court over the nature and subject matter of the suit, the same
being within the exclusive and original jurisdiction of the Labor
Arbiters of the National Labor Relations Commission (NLRC). In its
Order of 4 February 1992, the trial court deferred the resolution of
the motion until the trial.
On 5 June 1992, acting on the private respondent's motion to reconsider the
above order, the trial court issued an order dismissing the complaint on the
ground of lack of jurisdiction.6 The pertinent portion of the order reads as
follows:
C I V P R O I V C i v i l P r o c e d u r e P a g e | 54
After a careful review and close scrutiny of the entire
records, the determination of the nature and subject matter
of the suit is actually whether there is a claim for damages
filed by the employee against his employer arising from
employer-employee relationship, leaving the National Labor
Relations having original and exclusive jurisdiction over
claims for damages arising from said employer-employee
relationship, as decided in the case of the National
Federation of Labor vs. Eisma, (127 SCRA 419) and Pepsi-
Cola Bottling Co. vs. Martinez (112 SCRA 578). The
Supreme Court held that the coverage regarding disputes
involving the administration and enforcement of occupation
safety rules, regulations, standards, is exclusively vested
with the Labor Arbiters of the National Labor Relations
Commission.
The petitioner's motion to reconsider the order of dismissal was denied by
the trial court in the order of 13 October 1992.7
Instead of filing a notice of appeal, the petitioner filed within the period to
appeal a petition for certiorari under Rule 45 of the Rules of Court but with
the respondent Court of Appeals.8 It was docketed as CA-G.R. SP No.
29328.
After the respondent Court of Appeals had dismissed the petition as earlier
adverted to, the petitioner came to us imputing upon the Court of Appeals the
commission of the errors quoted in the opening paragraph of the ponencia.
The petitioner's first ground is devoid of merit. Section 3, Rule 50 of the
Revised Rules of Court which he invokes provides him with no sanctuary. In
Murillo vs. Consul,9 this Court ruled that "[t]here is no longer any justification
for allowing transfers of erroneous appeals from one court to the other." The
Court explained its ruling thus:
The two provisions just cited — Section 31 of the Judiciary
Act of 1948 and Section 3, Rule 50 — had reference to a
situation in the past where appeals could be brought from
the Court of First Instance either to the Court of Appeals or
to the Supreme Court by the same procedure. Those
appeals were governed by Rules 41 and 42 of the Rules of
court.
xxx xxx xxx

Indeed, not only the method of taking an appeal to either the
Supreme Court or to the Court of Appeals, but also the
procedure thereafter followed in either court for the
ventilation and adjudication of the appeal, were essentially
the same. According to Section 1, Rule 56, unless otherwise
provided by law, the Rules, or the Constitution, the
procedure in the Supreme Court in original as well as in
appealed cases was the same as that in the Court of
Appeals. There was therefore not much difficulty or delay
entailed by a transfer of an appeal from one court to the
other.
However, these provisions, prescribing a common mode of
appeal to the Court of Appeals and to this Court, and a
common method of passing on and resolving an appeal, are
no longer in force and effect. They have been largely
superseded and rendered functus officio by certain statutes
which have wrought substantial changed [sic] in the
appellate procedures in this jurisdiction, notably Republic
Acts Numbered 5433 and 5440 (both effective on September
9, 1968) and 6031 (effective August 4, 1969), as well as
Batas Pambansa Blg. 129 (effective August 14, 1981).
xxx xxx xxx
At present then, except in criminal cases where the penalty
imposed is life imprisonment or reclusion perpetua, there is
no way by which judgments of regional trial courts may be
appealed to this Court except by petition for review on
certiorari in accordance with Rule 45 of the Rules of Court, in
relation to Section 17 of the Judiciary Act of 1948, as
amended. The proposition is clearly stated in the Interim
Rules: "Appeals to the Supreme Court shall be taken by
petition for certiorari which shall be governed by Rule 45 of
the Rules of Court.
On the other hand, it is not possible to take an appeal by
certiorari to the Court of Appeals. Appeals to that Court from
the Regional Trial Courts are perfected in two (2) ways, both
of which are entirely distinct from an appeal by certiorari to
the Supreme Court. They are:
C I V P R O I V C i v i l P r o c e d u r e P a g e | 55
(a) by ordinary appeal, or appeal by writ of
error — where judgment was rendered in a
civil or criminal action by the RTC in the
exercise of original jurisdiction, and by
petition for review — where judgment was
rendered by the RTC in the exercise of
appellate jurisdiction, and
(b) by petition for review — where judgment
was rendered by the RTC in the exercise of
appellate jurisdiction.
The petition for review must be filed with the Court of
Appeals within 15 days from notice of the judgment, and as
already stated, shall point out the error of fact or law that will
warrant a reversal or modification of the decision or
judgment sought to be reviewed. An ordinary appeal is taken
by merely filing a notice of appeal within 15 days from notice
of the judgment, except in special proceedings or cases
where multiple appeals are allowed in which event the period
of appeal is 30 days and a record on appeal is necessary.
xxx xxx xxx
In fine, if an appeal is essayed to either court by the wrong
procedure, the only course of action open is to dismiss the
appeal. In other words, if an appeal is attempted from a
judgment of a Regional Trial Court by notice of appeal, that
appeal can and should never go to this Court, regardless of
any statement in the notice that the court of choice is the
Supreme Court; and more than once has this Court
admonished a Trial Judge and/or his Clerk of Court, as well
as the attorney taking the appeal, for causing the records to
be sent up to this Court in such a case. Again, if an appeal
by notice of appeal is taken from the Regional Trial Court to
the Court of Appeals and in the latter Court, the appellant
raises naught but issues of law, the appeal should be
dismissed for lack of jurisdiction. And finally, it may be
stressed once more, it is only through petitions for review on
certiorari that the appellate jurisdiction of this Court may
properly be invoked.
 C I V P R O I V C i v i l P r o c e d u r e P a g e | 56

There is no longer any justification for allowing transfers of In the instant case then, if the petitioner had chosen to appeal from the
erroneous appeals from one court to the other, much less for dismissal order of the trial court solely on questions of law, then he should
tolerating continued ignorance of the law on appeals. It thus have filed a petition for review on certiorari with this Court. If he wanted to
behooves every attorney seeking review and reversal of a raise in his appeal both questions of law and of fact, then he should have
judgment or order promulgated against his client, to pursued the remedy of an ordinary appeal to the Court of Appeals and not by
determine clearly the errors he believes may be ascribed to way of a petition for review under Rule 45. The Court of Appeals did not then
the judgment or order, whether of fact or of law; then to commit any reversible error when it dismissed the petition for review of the
ascertain carefully which court properly has appellate petitioner in CA-G.R. SP No. 29328.
jurisdiction; and finally, to observe scrupulously the
requisites for appeal prescribed by law, with keen awareness In view of the foregoing conclusion, it would no longer be necessary to
that any error or imprecision in compliance therewith may discuss the other issues raised by the petitioner.
well be fatal to his client's cause. (citations omitted).
WHEREFORE, the instant petition for review is hereby DENIED for lack of
The Murillo rule was embodied in Circular No. 2-90 of this Court merit.
which was issued on 9 March 1990.
SO ORDERED.
Petitioner's reliance on Victorias Milling Co., Inc. vs. Intermediate Appellate
Court10 is misplaced. In Victorias, the private respondent's complaint for
Cruz, Bellosillo, Quiason and Kapunan, JJ., concur
damages before the Regional Trial Court was dismissed by the said court on
the ground of lack of jurisdiction over the subject matter. On 19 July 1982 the
private respondent filed a notice of appeal from the dismissal order to the
Intermediate Appellate Court (IAC). The petitioner then filed a Motion to
Dismiss or Certify Appeal alleging that only pure questions of law were
involved. The motion was denied by the IAC in a resolution dated 29
February 1984. We stated in that case that the IAC should have certified the
appeal to the Supreme Court. Although it was decided in 1991, this Court did
not, for the special attendant circumstances therein obtaining, apply Murillo
but the law then controlling at the time the IAC resolved the challenged
motions principally because there was, in fact, a seasonable alternative
motion to certify the case to this Court, which was then allowed by Section 3
of Rule 50. Clearly, Victorias did not modify Murillo.

It must also be stressed that the trial court's order of 5 June 1992 dismissing
the petitioner's complaint was, whether it was right or wrong, a final order
because it had put an end to the particular matter resolved, or settled
definitely the matter therein disposed of and left nothing more to be done by
the trial court except the execution of the order. It is a firmly settled rule that
the remedy against such order is the remedy of appeal and not certiorari.11
That appeal may be solely on questions of law, in which case it may be taken
only to this Court; or on questions of fact and law, in which case the appeal
should be brought to the Court of Appeals.12 Pursuant to Murillo vs.
Consul,13 the appeal to this Court should be by petition for review on
certiorari in accordance with Rule 45 of the Rules of Court.

G.R. No. 139303 August 25, 2005
Cipriano Enriquez, Raymundo Enriquez, Concepcion Enriquez, assisted
by her husband Matias Quitanes, Tomas Enriquez, Luis Diaz, Cesar
Diaz, Manuel Diaz, Domingo Enriquez, Elpidio Enriquez, Filipina
Enriquez, Casimira Dizon, Saturnino Dizon, Jose Ramos, Amado
Mislang, Antonio Quitaneg, Villamor Quitaneg, Jimmy Clavo, Oscar
Laborce, Sevilla Pizarro, Angelita Pizzaro, Isidro Rico, Pio Famisan,
Pantaleon Abille, Beinvenido Corum, Martina Hisole, Erna D. Enriquez,
assisted by her husband Ritchie Flauta, and Ignacio Enriquez, Jr.,
Petitioners,
vs.
MAXIMO ENRIQUEZ (now deceased), substituted by CARMEN AGANA,
IGMIDIO ENRIQUEZ, CONCEPCION ENRIQUEZ, CIPRIANO ENRIQUEZ,
DIONISIONENRIQUEZ, MAXIMO ENRIQUEZ, CLEOFE ENRIQUEZ,
TOMAS ENRIQUEZ, RAYMUNDO ENRIQUEZ and NICOLAS ENRIQUEZ,
Respondents.
Appeals; Docket Fees; Pleadings and Practice; While prior to the effectivity of
the 1997 Rules of Civil Procedure, as amended, payment of appellate court
docket fee was not a prerequisite for the perfection of an appeal, now the 1997
Rules of Civil Procedure require that the appellate docket and other lawful fees
must be paid within the same for taking an appeal.—Prior to the effectivity of
the 1997 Rules of Civil Procedure, as amended, payment of appellate court
docket fee is not a prerequisite for the perfection of an appeal. In Santos vs.
Court of Appeals, this Court held that although an appeal fee is required to be
paid in case of an appeal taken from the Municipal Trial Court to the Regional
Trial Court, it is not a prerequisite for the perfection of an appeal under
Sections 20 and 23 of the Interim Rules and Guidelines issued by this Court
on January 11, 1983 implementing the Judiciary Reorganization Act of 1981
(B.P. Blg. 129). Under these sections, there are only two requirements for the
perfection of an appeal, to wit: (a) the filing with the trial court of a notice of
appeal within the reglementary period; and (b) the expiration of the last day to
appeal by any party. However, the 1997 Rules of Civil Procedure, as amended,
which took effect on July 1, 1997, now require that appellate docket and other
lawful fees must be paid within the same period for taking an appeal. This is
clear from the opening sentence of Section 4, Rule 41 of the same Rules that,
“(W)ithin the period for taking an appeal, the appellant shall pay to the clerk of
the court which rendered the judgment or final order appealed from, the full
amount of the appellate court docket and other lawful fees.”
C I V P R O I V C i v i l P r o c e d u r e P a g e | 57
Same; Same; Same; Statutory Construction; The term “shall” is a word of
command, and one which has always or which must be given a compulsory
meaning, and it is generally imperative or mandatory; Every part of the statute
must be interpreted with reference to the context, i.e., that every party of the
statute must be interpreted together with other parts, and kept subservient to
the general intent of the whole enactment.—The use of the word “shall”
underscores the mandatory character of the Rule. The term “shall” is a word
of command, and one which has always or which must be given a compulsory
meaning, and it is generally imperative or mandatory. Petitioners cannot give
a different interpretation to the Rule and insist that payment of docket fee shall
be made only upon their receipt of a notice from the trial court to pay. For it is
a rule in statutory construction that every part of the statute must be interpreted
with reference to the context, i.e., that every part of the statute must be
interpreted together with the other parts, and kept subservient to the general
intent of the whole enactment. Indeed, petitioners cannot deviate from the
Rule.
Same; Same; Same; Payment of docket fee within the prescribed period is
mandatory for the perfection of an appeal.—Under Rule 41 of the same Rules,
an appeal to the Court of Appeals from a case decided by the RTC in the
exercise of the latter’s original jurisdiction, shall be taken within fifteen (15)
days from the notice of judgment or final order appealed from. Such appeal is
made by filing a notice thereof with the court that rendered the judgment or
final order and by serving a copy of that notice upon the adverse party.
Furthermore, within this same period, appellant shall pay to the clerk of court
which rendered the judgment or final order appealed from, the full amount of
the appellate court docket and other lawful fees. The payment of docket fee
within this period is mandatory for the perfection of appeal. Otherwise, the
appellate court would not be able to act on the subject matter of the action,
and the decision sought to be appealed from becomes final and executory.
Time and again, this Court has consistently held that payment of docket fee
within the prescribed period is mandatory for the perfection of an appeal.
Without such payment, the appellate court does not acquire jurisdiction over
the subject matter of the action and the decision sought to be appealed from
becomes final and executory.
Same; Same; Same; Appeal is not a right but a statutory privilege, thus, an
appeal must be made strictly in accordance with the provision set by law.—
Petitioners argue that the Appellate Court, in issuing the assailed Resolutions,
gave premium to technicalities rather than substance and disregarded the
merits of the petition. They ask for a liberal construction of the Rules. Appeal
is not a right but a statutory privilege, thus, appeal must be made strictly in

accordance with the provision set by law. The requirement of the law under
Section 4, Rule 41 is clear. The payment of appellate docket fee is not a mere
technicality of law or procedure but an essential requirement for the perfection
of an appeal.
Same; Same; Same; Procedural Rules and Technicalities; Concomitant to a
liberal interpretation of the rules of procedure should be an effort on the part
of the party invoking liberality to adequately explain his failure to abide by the
rules.—This Court has consistently ruled that litigation is not a game of
technicalities and that every case must be prosecuted in accordance with the
prescribed procedure so that issues may be properly presented and justly
resolved. The rules of procedure must be faithfully followed except only when,
for persuasive and weighting reasons, they may be relaxed to relieve a litigant
of an injustice commensurate with his failure to comply within the prescribed
procedure. Concomitant to a liberal interpretation of the rules of procedure
should be an effort on the part of the party invoking liberality to adequately
explain his failure to abide by the rules. Anyone seeking exemption from the
application of the Rule has the burden of proving that exceptionally meritorious
instances exist which warrant such departure.
Same; Same; Same; Same; Attorneys; To grant the petition, relaxing the
mandatory rule on the payment of docket fee would be putting a premium on
counsel’s ignorance or lack of knowledge of the existing Rules.—In the present
case, petitioners failed to establish any sufficient and satisfactory reason to
warrant a relaxation of the mandatory rule on the payment of appellate court
docket fee. Actually, the payment of the required docket fee was late because
of the erroneous interpretation of the Rule by petitioners’ counsel. Verily, to
grant their petition would be putting a premium on his ignorance or lack of
knowledge of existing Rules. He should be reminded that it is his duty to keep
abreast of legal developments and prevailing laws, rules and legal principles,
otherwise his clients will be prejudiced, as in this case.
PETITION for review on certiorari of the resolutions of the Court of Appeals.
The facts are stated in the opinion of the Court.
Rebeck Espiritu & Associates Law Office for petitioner.
Saturnino Bactad for respondent.
DECISION
C I V P R O I V C i v i l P r o c e d u r e P a g e | 58
SANDOVAL-GUTIERREZ, J.:
Assailed in the instant petition for review on certiorari are the Resolutions
dated February 3, 1999 and July 7, 1999 issued by the Court of Appeals in
CA-G.R. CV UDK-7011 dismissing the appeal of petitioners for their failure to
pay the appellate court docket fee.
On November 17, 1988, Maximo Enriquez, later substituted by his heirs (now
respondents), filed with the Regional Trial Court (RTC), Branch 71 of Iba,
Zambales a complaint for partition against petitioners, docketed as Civil Case
No. RTC-568-1. The complaint involves a parcel of land situated at
Amungan, Iba, same province, covered by TCT No. T-28593, with an area of
44,984 square meters. He alleged that he owns 10/18 undivided portion of
the property, 9/18 by purchase and 1/18 by inheritance; and that petitioners
have been residing in the premises without his knowledge and consent,
thereby depriving him of his undivided share of the property.
Petitioners, in their answer, averred that Cipriano Enriquez, one of the
petitioners, owns ½ of the property, while the others are in possession of the
other areas with his knowledge and consent.
On June 4, 1998, the RTC rendered a Decision ordering the petitioners to
vacate the property and to surrender possession thereof to respondents.
A copy of the Decision was received by counsel for petitioners on June 22,
1998. On July 3, 1998, they filed a Notice of Appeal with the RTC. It was
approved on July 7, 1998.
On February 3, 1999, the Court of Appeals dismissed the appeal of
petitioners for their failure to pay the appellate court docket fee, thus:
"For failure to pay docket fee, the appeal is deemed ABANDONED and
DISMISSED, pursuant to Section 1(c), Rule 50, Revised Rules of Court."
Petitioners filed a motion for reconsideration but it was denied by the
Appellate Court in a Resolution dated July 7, 1999, thus:
"Per copy of the official receipt attached to appellants’ motion for
reconsideration, the docket fee was paid on November 4, 1998 or 4 months
after the notice of appeal was filed on July 3, 1998.
Consequently, appellants’ motion for reconsideration is hereby denied."

In the instant petition for review, petitioners raise the following errors
allegedly committed by the Appellate Court:
"I. The respondent Court of Appeals seriously erred in considering
petitioners’ appeal as deemed abandoned and dismissed for alleged failure
of petitioners to pay docket fee.
II. the respondent Court of Appeals gravely erred in denying petitioners’
motion for reconsideration of the resolution considering petitioners’ appeal as
deemed abandoned and dismissed on the ground that the docket fee was
paid on November 4, 1998, or four (4) months after the notice of appeal was
filed on July 3, 1998.
III. the respondent Court of Appeals in issuing the aforesaid resolutions gave
premium on technicalities rather on substance and substantial justice and
disregarded the merits of petitioners’ case."
In sum, the issue is whether the Court of Appeals correctly dismissed the
petition for failure of the petitioners to pay appellate court docket fee.
In dismissing petitioners’ appeal, the Court of Appeals cited Section 1(c),
Rule 50 of the Revised Rules of Court which provides:
"Section 1. Grounds for dismissal of appeal. – An appeal may be dismissed
by the Court of Appeals, on its own motion or on that of the appellee, on the
following grounds:
xxx
(c) Failure of the appellant to pay the docket and other lawful fees as
provided in Section 4 of Rule 41."
Petitioners admit that the governing Rule on their payment of appellate court
docket fee is Section 4, Rule 41 of the 1997 Rules of Civil Procedure, as
amended, which provides:
"Section 4. Appellate court docket and other lawful fees. – Within the period
for taking an appeal, the appellant shall pay to the clerk of the court which
rendered the judgment or final order appealed from, the full amount of the
appellate court docket and other lawful fees. Proof of payment of said fees
shall be transmitted to the appellate court together with the original record of
the record or the record on appeal."
C I V P R O I V C i v i l P r o c e d u r e P a g e | 59
Underscoring the sentence "Proof of payment of said fees shall be
transmitted to the appellate court together with the original record or the
record on appeal," petitioners maintain that the trial court must first send
them a notice to pay the appellate court docket fee and other lawful fees
within the period for taking an appeal. Hence, they waited for the notice for
them to pay the appellate court docket fee. When they did not receive any,
they paid the docket fee to the trial court. Consequently, they cannot be
faulted if they paid the appellate court docket fee four (4) months after their
Notice of Appeal was approved on July 7, 1998.
Prior to the effectivity of the 1997 Rules of Civil Procedure, as amended,
payment of appellate court docket fee is not a prerequisite for the perfection
of an appeal. In Santos vs. Court of Appeals,1 this Court held that although
an appeal fee is required to be paid in case of an appeal taken from the
Municipal Trial Court to the Regional Trial Court, it is not a prerequisite for
the perfection of an appeal under Sections 202 and 233 of the Interim Rules
and Guidelines issued by this Court on January 11, 1983 implementing the
Judiciary Reorganization Act of 1981 (B.P. Blg. 129). Under these sections,
there are only two requirements for the perfection of an appeal, to wit: (a) the
filing with the trial court of a notice of appeal within the reglementary period;
and (b) the expiration of the last day to appeal by any party.
However, the 1997 Rules of Civil Procedure, as amended, which took effect
on July 1, 1997, now require that appellate docket and other lawful fees must
be paid within the same period for taking an appeal. This is clear from the
opening sentence of Section 4, Rule 41 of the same Rules that, "(W)ithin the
period for taking an appeal, the appellant shall pay to the clerk of the court
which rendered the judgment or final order appealed from, the full amount of
the appellate court docket and other lawful fees."
The use of the word "shall" underscores the mandatory character of the Rule.
The term "shall" is a word of command, and one which has always or which
must be given a compulsory meaning, and it is generally imperative or
mandatory.4 Petitioners cannot give a different interpretation to the Rule and
insist that payment of docket fee shall be made only upon their receipt of a
notice from the trial court to pay. For it is a rule in statutory construction that
every part of the statute must be interpreted with reference to the context,
i.e., that every part of the statute must be interpreted together with the other
parts, and kept subservient to the general intent of the whole enactment.5
Indeed, petitioners cannot deviate from the Rule.
Also under Rule 41 of the same Rules, an appeal to the Court of Appeals
from a case decided by the RTC in the exercise of the latter’s original
 C I V P R O I V C i v i l P r o c e d u r e P a g e | 60

jurisdiction, shall be taken within fifteen (15) days from the notice of judgment
or final order appealed from. Such appeal is made by filing a notice thereof
with the court that rendered the judgment or final order and by serving a copy
of that notice upon the adverse party. Furthermore, within this same period,
appellant shall pay to the clerk of court which rendered the judgment or final
order appealed from, the full amount of the appellate court docket and other
lawful fees. The payment of docket fee within this period is mandatory for the
perfection of appeal. Otherwise, the appellate court would not be able to act
on the subject matter of the action, and the decision sought to be appealed
from becomes final and executory.6
Time and again, this Court has consistently held that payment of docket fee
within the prescribed period is mandatory for the perfection of an appeal.
Without such payment, the appellate court does not acquire jurisdiction over
the subject matter of the action and the decision sought to be appealed from
becomes final and executory.7
Petitioners argue that the Appellate Court, in issuing the assailed
Resolutions, gave premium to technicalities rather than substance and
disregarded the merits of the petition. They ask for a liberal construction of
the Rules.
to adequately explain his failure to abide by the rules.10 Anyone seeking
exemption from the application of the Rule has the burden of proving that
exceptionally meritorious instances exist which warrant such departure.11
In the present case, petitioners failed to establish any sufficient and
satisfactory reason to warrant a relaxation of the mandatory rule on the
payment of appellate court docket fee. Actually, the payment of the required
docket fee was late because of the erroneous interpretation of the Rule by
petitioners’ counsel. Verily, to grant their petition would be putting a premium
on his ignorance or lack of knowledge of existing Rules. He should be
reminded that it is his duty to keep abreast of legal developments and
prevailing laws, rules and legal principles,12 otherwise his clients will be
prejudiced, as in this case.
In fine, the Court of Appeals did not err in dismissing petitioners’ appeal.
WHEREFORE, the instant petition for review on certiorari is DENIED. Costs
against petitioners.
SO ORDERED.

Appeal is not a right but a statutory privilege, thus, appeal must be made
strictly in accordance with the provision set by law.
The requirement of the law under Section 4, Rule 41 is clear. The payment of
appellate docket fee is not a mere technicality of law or procedure but an
essential requirement for the perfection of an appeal.8

The payment of the docket fee within the period is a condition sine qua non
for the perfection of an appeal. Contrary to petitioners’ submission, the
payment of the appellate court docket and other lawful fees is not a mere
technicality of law or procedure. It is an essential requirement, without which
the decision or final order appealed from would become final and executory
as if no appeal was filed at all.9

This Court has consistently ruled that litigation is not a game of technicalities
and that every case must be prosecuted in accordance with the prescribed
procedure so that issues may be properly presented and justly resolved. The
rules of procedure must be faithfully followed except only when, for
persuasive and weighting reasons, they may be relaxed to relieve a litigant of
an injustice commensurate with his failure to comply within the prescribed
procedure. Concomitant to a liberal interpretation of the rules of
procedure should be an effort on the part of the party invoking liberality

G.R. No. 141524 September 14, 2005
DOMINGO NEYPES, LUZ FAUSTINO, ROGELIO FAUSTINO, LOLITO
VICTORIANO, JACOB OBANIA AND DOMINGO CABACUNGAN,
Petitioners,
vs.
HON. COURT OF APPEALS, HEIRS OF BERNARDO DEL MUNDO,
namely: FE, CORAZON, JOSEFA, SALVADOR and CARMEN, all
surnamed DEL MUNDO, LAND BANK OF THE PHILIPPINES AND HON.
ANTONIO N. ROSALES, Presiding Judge, Branch 43, Regional Trial
Court, Roxas, Oriental Mindoro, Respondent.
Remedial Law; Appeals; The right to appeal is neither a natural right nor a part
of due process; It is merely a statutory privilege and may be exercised only in
the manner and in accordance with the provisions of law.—First and foremost,
the right to appeal is neither a natural right nor a part of due process. It is
merely a statutory privilege and may be exercised only in the manner and in
accordance with the provisions of law. Thus, one who seeks to avail of the
right to appeal must comply with the requirements of the Rules. Failure to do
so often leads to the loss of the right to appeal. The period to appeal is fixed
by both statute and procedural rules.
Same; Same; An appeal should be taken within 15 days from the notice of
judgment or final order appealed from.—Based on the foregoing, an appeal
should be taken within 15 days from the notice of judgment or final order
appealed from. A final judgment or order is one that finally disposes of a case,
leaving nothing more for the court to do with respect to it. It is an adjudication
on the merits which, considering the evidence presented at the trial, declares
categorically what the rights and obligations of the parties are; or it may be an
order or judgment that dismisses an action.
Same; Same; Court deems it practical to allow a fresh period of 15 days within
which to file the notice of appeal in the Regional Trial Court, counted from
receipt of the order dismissing a motion for a new trial or motion for
reconsideration to standardize the appeal periods provided in the Rules.—To
standardize the appeal periods provided in the Rules and to afford litigants fair
opportunity to appeal their cases, the Court deems it practical to allow a fresh
period of 15 days within which to file the notice of appeal in the Regional Trial
Court, counted from receipt of the order dismissing a motion for a new trial or
motion for reconsideration.
PETITION for review on certiorari of the decision of the Court of Appeals.
C I V P R O I V C i v i l P r o c e d u r e P a g e | 61
The facts are stated in the opinion of the Court.
Romualdo M. Jubay for petitioners.
Miguel M. Gonzales, Rosemarie M. Osoteo and Antonio M. Chua for
respondent Land Bank of the Philippines.
Jose Rico P. Domingo for private respondents.
DECISION
CORONA, J.:
Petitioners Domingo Neypes, Luz Faustino, Rogelio Faustino, Lolito
Victoriano, Jacob Obania and Domingo Cabacungan filed an action for
annulment of judgment and titles of land and/or reconveyance and/or
reversion with preliminary injunction before the Regional Trial Court, Branch
43, of Roxas, Oriental Mindoro, against the Bureau of Forest Development,
Bureau of Lands, Land Bank of the Philippines and the heirs of Bernardo del
Mundo, namely, Fe, Corazon, Josefa, Salvador and Carmen.
In the course of the proceedings, the parties (both petitioners and
respondents) filed various motions with the trial court. Among these were: (1)
the motion filed by petitioners to declare the respondent heirs, the Bureau of
Lands and the Bureau of Forest Development in default and (2) the motions
to dismiss filed by the respondent heirs and the Land Bank of the Philippines,
respectively.
In an order dated May 16, 1997, the trial court, presided by public respondent
Judge Antonio N. Rosales, resolved the foregoing motions as follows: (1) the
petitioners’ motion to declare respondents Bureau of Lands and Bureau of
Forest Development in default was granted for their failure to file an answer,
but denied as against the respondent heirs of del Mundo because the
substituted service of summons on them was improper; (2) the Land Bank’s
motion to dismiss for lack of cause of action was denied because there were
hypothetical admissions and matters that could be determined only after trial,
and (3) the motion to dismiss filed by respondent heirs of del Mundo, based
on prescription, was also denied because there were factual matters that
could be determined only after trial.1

The respondent heirs filed a motion for reconsideration of the order denying
their motion to dismiss on the ground that the trial court could very well
resolve the issue of prescription from the bare allegations of the complaint
itself without waiting for the trial proper.
In an order2 dated February 12, 1998, the trial court dismissed petitioners’
complaint on the ground that the action had already prescribed. Petitioners
allegedly received a copy of the order of dismissal on March 3, 1998 and, on
the 15th day thereafter or on March 18, 1998, filed a motion for
reconsideration. On July 1, 1998, the trial court issued another order
dismissing the motion for reconsideration3 which petitioners received on July
22, 1998. Five days later, on July 27, 1998, petitioners filed a notice of
appeal4 and paid the appeal fees on August 3, 1998.
On August 4, 1998, the court a quo denied the notice of appeal, holding that
it was filed eight days late.5 This was received by petitioners on July 31,
1998. Petitioners filed a motion for reconsideration but this too was denied in
an order dated September 3, 1998.6
Via a petition for certiorari and mandamus under Rule 65 of the 1997 Rules
of Civil Procedure, petitioners assailed the dismissal of the notice of appeal
before the Court of Appeals.
In the appellate court, petitioners claimed that they had seasonably filed their
notice of appeal. They argued that the 15-day reglementary period to appeal
started to run only on July 22, 1998 since this was the day they received the
final order of the trial court denying their motion for reconsideration. When
they filed their notice of appeal on July 27, 1998, only five days had elapsed
and they were well within the reglementary period for appeal.7
On September 16, 1999, the Court of Appeals (CA) dismissed the petition. It
ruled that the 15-day period to appeal should have been reckoned from
March 3, 1998 or the day they received the February 12, 1998 order
dismissing their complaint. According to the appellate court, the order was
the "final order" appealable under the Rules. It held further:
Perforce the petitioners’ tardy appeal was correctly dismissed for the
(P)erfection of an appeal within the reglementary period and in the manner
prescribed by law is jurisdictional and non-compliance with such legal
requirement is fatal and effectively renders the judgment final and executory. 8
Petitioners filed a motion for reconsideration of the aforementioned decision.
This was denied by the Court of Appeals on January 6, 2000.
C I V P R O I V C i v i l P r o c e d u r e P a g e | 62
In this present petition for review under Rule 45 of the Rules, petitioners
ascribe the following errors allegedly committed by the appellate court:
I
THE HONORABLE COURT OF APPEALS ERRED IN DISMISSING THE
PETITIONERS’ PETITION FOR CERTIORARI AND MANDAMUS AND IN
AFFIRMING THE ORDER OF THE HON. JUDGE ANTONIO N. ROSALES
WHICH DISMISSED THE PETITIONERS’ APPEAL IN CIVIL CASE NO. C-
36 OF THE REGIONAL TRIAL COURT, BRANCH 43, ROXAS, ORIENTAL
MINDORO, EVEN AFTER THE PETITIONERS HAD PAID THE APPEAL
DOCKET FEES.
II
THE HONORABLE COURT OF APPEALS LIKEWISE ERRED IN RULING
AND AFFIRMING THE DECISION OR ORDER OF THE RESPONDENT
HON. ANTONIO M. ROSALES THAT PETITIONERS’ APPEAL WAS FILED
OUT OF TIME WHEN PETITIONERS RECEIVED THE LAST OR FINAL
ORDER OF THE COURT ON JULY 22, 1998 AND FILED THEIR NOTICE
OF APPEAL ON JULY 27, 1998 AND PAID THE APPEAL DOCKET FEE ON
AUGUST 3, 1998.
III
THE HONORABLE COURT OF APPEALS FURTHER ERRED IN RULING
THAT THE WORDS "FINAL ORDER" IN SECTION 3, RULE 41, OF THE
1997 RULES OF CIVIL PROCEDURE WILL REFER TO THE [FIRST]
ORDER OF RESPONDENT JUDGE HON. ANTONIO M. MORALES DATED
FEBRUARY 12, 1998 INSTEAD OF THE LAST AND FINAL ORDER DATED
JULY 1, 1998 COPY OF WHICH WAS RECEIVED BY PETITIONERS
THROUGH COUNSEL ON JULY 22, 1998.
IV.
THE HONORABLE COURT OF APPEALS FINALLY ERRED IN FINDING
THAT THE DECISION IN THE CASE OF DENSO, INC. V. IAC, 148 SCRA
280, IS APPLICABLE IN THE INSTANT CASE THEREBY IGNORING THE
PECULIAR FACTS AND CIRCUMSTANCES OF THIS CASE AND THE
FACT THAT THE SAID DECISION WAS RENDERED PRIOR TO THE
ENACTMENT OF THE 1997 RULES OF CIVIL PROCEDURE.9

The foregoing issues essentially revolve around the period within which
petitioners should have filed their notice of appeal.
First and foremost, the right to appeal is neither a natural right nor a part of
due process. It is merely a statutory privilege and may be exercised only in
the manner and in accordance with the provisions of law. Thus, one who
seeks to avail of the right to appeal must comply with the requirements of the
Rules. Failure to do so often leads to the loss of the right to appeal.10 The
period to appeal is fixed by both statute and procedural rules. BP 129, 11 as
amended, provides:
Sec. 39. Appeals. – The period for appeal from final orders, resolutions,
awards, judgments, or decisions of any court in all these cases shall be
fifteen (15) days counted from the notice of the final order, resolution, award,
judgment, or decision appealed from. Provided, however, that in habeas
corpus cases, the period for appeal shall be (48) forty-eight hours from the
notice of judgment appealed from. x x x
Rule 41, Section 3 of the 1997 Rules of Civil Procedure states:
SEC. 3. Period of ordinary appeal. ― The appeal shall be taken within
fifteen (15) days from the notice of the judgment or final order appealed
from. Where a record on appeal is required, the appellant shall file a notice
of appeal and a record on appeal within thirty (30) days from the notice of
judgment or final order.
The period to appeal shall be interrupted by a timely motion for new trial or
reconsideration. No motion for extension of time to file a motion for new trial
or reconsideration shall be allowed. (emphasis supplied)
Based on the foregoing, an appeal should be taken within 15 days from the
notice of judgment or final order appealed from. A final judgment or order is
one that finally disposes of a case, leaving nothing more for the court to do
with respect to it. It is an adjudication on the merits which, considering the
evidence presented at the trial, declares categorically what the rights and
obligations of the parties are; or it may be an order or judgment that
dismisses an action.12
As already mentioned, petitioners argue that the order of July 1, 1998
denying their motion for reconsideration should be construed as the "final
order," not the February 12, 1998 order which dismissed their complaint.
Since they received their copy of the denial of their motion for
reconsideration only on July 22, 1998, the 15-day reglementary period to
C I V P R O I V C i v i l P r o c e d u r e P a g e | 63
appeal had not yet lapsed when they filed their notice of appeal on July 27,
1998.
What therefore should be deemed as the "final order," receipt of which
triggers the start of the 15-day reglementary period to appeal ¾ the February
12, 1998 order dismissing the complaint or the July 1, 1998 order dismissing
the MR?
In the recent case of Quelnan v. VHF Philippines, Inc.,13 the trial court
declared petitioner Quelnan non-suited and accordingly dismissed his
complaint. Upon receipt of the order of dismissal, he filed an omnibus motion
to set it aside. When the omnibus motion was filed, 12 days of the 15-day
period to appeal the order had lapsed. He later on received another order,
this time dismissing his omnibus motion. He then filed his notice of appeal.
But this was likewise dismissed ― for having been filed out of time.
The court a quo ruled that petitioner should have appealed within 15 days
after the dismissal of his complaint since this was the final order that was
appealable under the Rules. We reversed the trial court and declared that it
was the denial of the motion for reconsideration of an order of dismissal of a
complaint which constituted the final order as it was what ended the issues
raised there.
This pronouncement was reiterated in the more recent case of Apuyan v.
Haldeman et al.14 where we again considered the order denying petitioner
Apuyan’s motion for reconsideration as the final order which finally disposed
of the issues involved in the case.
Based on the aforementioned cases, we sustain petitioners’ view that the
order dated July 1, 1998 denying their motion for reconsideration was the
final order contemplated in the Rules.
We now come to the next question: if July 1, 1998 was the start of the 15-day
reglementary period to appeal, did petitioners in fact file their notice of appeal
on time?
Under Rule 41, Section 3, petitioners had 15 days from notice of judgment or
final order to appeal the decision of the trial court. On the 15th day of the
original appeal period (March 18, 1998), petitioners did not file a notice of
appeal but instead opted to file a motion for reconsideration. According to the
trial court, the MR only interrupted the running of the 15-day appeal period.15
It ruled that petitioners, having filed their MR on the last day of the 15-day
reglementary period to appeal, had only one (1) day left to file the notice of

appeal upon receipt of the notice of denial of their MR. Petitioners, however,
argue that they were entitled under the Rules to a fresh period of 15 days
from receipt of the "final order" or the order dismissing their motion for
reconsideration.
In Quelnan and Apuyan, both petitioners filed a motion for reconsideration of
the decision of the trial court. We ruled there that they only had the remaining
time of the 15-day appeal period to file the notice of appeal. We consistently
applied this rule in similar cases,16 premised on the long-settled doctrine that
the perfection of an appeal in the manner and within the period permitted by
law is not only mandatory but also jurisdictional. 17 The rule is also founded on
deep-seated considerations of public policy and sound practice that, at risk of
occasional error, the judgments and awards of courts must become final at
some definite time fixed by law.18
Prior to the passage of BP 129, Rule 41, Section 3 of the 1964 Revised
Rules of Court read:
Sec. 3. How appeal is taken. — Appeal maybe taken by serving upon the
adverse party and filing with the trial court within thirty (30) days from
notice of order or judgment, a notice of appeal, an appeal bond, and a
record on appeal. The time during which a motion to set aside the judgment
or order or for new trial has been pending shall be deducted, unless such
motion fails to satisfy the requirements of Rule 37.
But where such motion has been filed during office hours of the last day of
the period herein provided, the appeal must be perfected within the day
following that in which the party appealing received notice of the denial of
said motion.19 (emphasis supplied)
According to the foregoing provision, the appeal period previously consisted
of 30 days. BP 129, however, reduced this appeal period to 15 days. In the
deliberations of the Committee on Judicial Reorganization20 that drafted BP
129, the raison d’ etre behind the amendment was to shorten the period of
appeal21 and enhance the efficiency and dispensation of justice. We have
since required strict observance of this reglementary period of appeal.
Seldom have we condoned late filing of notices of appeal,22 and only in very
exceptional instances to better serve the ends of justice.
In National Waterworks and Sewerage Authority and Authority v. Municipality
of Libmanan,23 however, we declared that appeal is an essential part of our
judicial system and the rules of procedure should not be applied rigidly. This
Court has on occasion advised the lower courts to be cautious about not
C I V P R O I V C i v i l P r o c e d u r e P a g e | 64
depriving a party of the right to appeal and that every party litigant should be
afforded the amplest opportunity for the proper and just disposition of his
cause, free from the constraint of technicalities.
In de la Rosa v. Court of Appeals,24 we stated that, as a rule, periods which
require litigants to do certain acts must be followed unless, under exceptional
circumstances, a delay in the filing of an appeal may be excused on grounds
of substantial justice. There, we condoned the delay incurred by the
appealing party due to strong considerations of fairness and justice.
In setting aside technical infirmities and thereby giving due course to tardy
appeals, we have not been oblivious to or unmindful of the extraordinary
situations that merit liberal application of the Rules. In those situations where
technicalities were dispensed with, our decisions were not meant to
undermine the force and effectivity of the periods set by law. But we hasten
to add that in those rare cases where procedural rules were not stringently
applied, there always existed a clear need to prevent the commission of a
grave injustice. Our judicial system and the courts have always tried to
maintain a healthy balance between the strict enforcement of procedural
laws and the guarantee that every litigant be given the full opportunity for the
just and proper disposition of his cause.25
The Supreme Court may promulgate procedural rules in all courts.26 It has
the sole prerogative to amend, repeal or even establish new rules for a more
simplified and inexpensive process, and the speedy disposition of cases. In
the rules governing appeals to it and to the Court of Appeals, particularly
Rules 42,27 4328 and 45,29 the Court allows extensions of time, based on
justifiable and compelling reasons, for parties to file their appeals. These
extensions may consist of 15 days or more.
To standardize the appeal periods provided in the Rules and to afford
litigants fair opportunity to appeal their cases, the Court deems it practical to
allow a fresh period of 15 days within which to file the notice of appeal in the
Regional Trial Court, counted from receipt of the order dismissing a motion
for a new trial or motion for reconsideration. 30
Henceforth, this "fresh period rule" shall also apply to Rule 40 governing
appeals from the Municipal Trial Courts to the Regional Trial Courts; Rule 42
on petitions for review from the Regional Trial Courts to the Court of Appeals;
Rule 43 on appeals from quasi-judicial agencies31 to the Court of Appeals
and Rule 45 governing appeals by certiorari to the Supreme Court.32 The
new rule aims to regiment or make the appeal period uniform, to be counted
 C I V P R O I V C i v i l P r o c e d u r e P a g e | 65

from receipt of the order denying the motion for new trial, motion for Hence, the notice of appeal was well within the fresh appeal period of 15
reconsideration (whether full or partial) or any final order or resolution. days, as already discussed.34

We thus hold that petitioners seasonably filed their notice of appeal within the We deem it unnecessary to discuss the applicability of Denso (Philippines),
fresh period of 15 days, counted from July 22, 1998 (the date of receipt of Inc. v. IAC35 since the Court of Appeals never even referred to it in its
notice denying their motion for reconsideration). This pronouncement is not assailed decision.
inconsistent with Rule 41, Section 3 of the Rules which states that the appeal
shall be taken within 15 days from notice of judgment or final order appealed WHEREFORE, the petition is hereby GRANTED and the assailed decision of
from. The use of the disjunctive word "or" signifies disassociation and the Court of Appeals REVERSED and SET ASIDE. Accordingly, let the
independence of one thing from another. It should, as a rule, be construed in records of this case be remanded to the Court of Appeals for further
the sense in which it ordinarily implies.33 Hence, the use of "or" in the above proceedings.
provision supposes that the notice of appeal may be filed within 15 days from
the notice of judgment or within 15 days from notice of the "final order," which
No costs.
we already determined to refer to the July 1, 1998 order denying the motion
for a new trial or reconsideration.
SO ORDERED.
Neither does this new rule run counter to the spirit of Section 39 of BP 129
which shortened the appeal period from 30 days to 15 days to hasten the
disposition of cases. The original period of appeal (in this case March 3-18,
1998) remains and the requirement for strict compliance still applies. The
fresh period of 15 days becomes significant only when a party opts to file a
motion for new trial or motion for reconsideration. In this manner, the trial
court which rendered the assailed decision is given another opportunity to
review the case and, in the process, minimize and/or rectify any error of
judgment. While we aim to resolve cases with dispatch and to have
judgments of courts become final at some definite time, we likewise aspire to
deliver justice fairly.

In this case, the new period of 15 days eradicates the confusion as to when
the 15-day appeal period should be counted – from receipt of notice of
judgment (March 3, 1998) or from receipt of notice of "final order" appealed
from (July 22, 1998).

To recapitulate, a party litigant may either file his notice of appeal within 15
days from receipt of the Regional Trial Court’s decision or file it within 15
days from receipt of the order (the "final order") denying his motion for new
trial or motion for reconsideration. Obviously, the new 15-day period may be
availed of only if either motion is filed; otherwise, the decision becomes final
and executory after the lapse of the original appeal period provided in Rule
41, Section 3.

Petitioners here filed their notice of appeal on July 27, 1998 or five days from
receipt of the order denying their motion for reconsideration on July 22, 1998.

G.R. No. 167631 December 16, 2005
Jenette Marie B. Crisologo, Petitioner,
vs.
GLOBE TELECOM INC. and Cesar M. Maureal, Vice President for
Human Resources, Respondents.
Actions; Appeals; Judgment by Default; For the review of a judgment by
default, the applicable rule is Section 2, Rule 41 of the 1997 Rules of Civil
Procedure.—The decision sought to be reviewed in this case is a judgment
by default rendered by the trial court in Civil Case No. MC04-2480. As such,
the applicable rule is Section 2, Rule 41 of the 1997 Rules of Civil Procedure,
as amended,which provides for the different modes of appeal from a
Regional Trial Court’s judgment or final order, to wit: Section 2. Modes of
appeal.—(a) Ordinary appeal.—The appeal to the Court of Appeals in cases
decided by the Regional Trial Court in the exercise of its original jurisdiction
shall be taken by filing a notice of appeal with the court which rendered the
judgment or final order appealed from and serving a copy thereof upon the
adverse party. No record on appeal shall be required except in special
proceedings and other cases of multiple or separate appeals where the law
or these Rules so require. In such cases, the record on appeal shall be filed
and served in like manner.
(b) Petition for review.—The appeal to the Court of Appeals in cases decided
by the Regional Trial Court in the exercise of its appellate jurisdiction shall be
by petition for review in accordance with Rule 42. (c) Appeal by certiorari.—In
all cases where only questions of law are raised or involved, the appeal shall
be to the Supreme Court by petition for review on certiorari in accordance with
Rule 45.
Same; Same; Same; Remedies Available to a Party Declared in Default.—In
Cerezo vs. Tuazon, the Court reiterated the remedies available to a party
declared in default: a) The defendant in default may, at any time after discovery
thereof and before judgment, file a motion under oath to set aside the order of
default on the ground that his failure to answer was due to fraud, accident,
mistake or excusable negligence, and that he has a meritorious defense (Sec.
3, Rule 18 [now Sec. 3(b), Rule 9]); b) If the judgment has already been
rendered when the defendant discovered the default, but before the same has
become final and executory, he may file a motion for new trial under Section 1
(a) of Rule 37; c) If the defendant discovered the default after the judgment
has become final and executory, he may file a petition for relief under Section
2 [now Section 1] of Rule 38; and d) He may also appeal from the judgment
C I V P R O I V C i v i l P r o c e d u r e P a g e | 66
rendered against him as contrary to the evidence or to the law, even if no
petition to set aside the order of default has been presented by him (Sec. 2,
Rule 41). Moreover, a petition for certiorari to declare the nullity of a judgment
by default is also available if the trial court improperly declared a party in
default, or even if the trial court properly declared a party in default, if grave
abuse of discretion attended such declaration.
Same; Same; Words and Phrases; Questions of Law and Questions of Fact;
The test of whether a question is one of law or of fact is not the appellation
given to such question by the party raising the same but whether the appellate
court can determine the issue raised without reviewing or evaluating the
evidence, in which case, it is a question of law, otherwise, it is a question of
fact.—The test of whether a question is one of law or of fact is not the
appellation given to such question by the party raising the same; rather, it is
whether the appellate court can determine the issue raised without reviewing
or evaluating the evidence, in which case, it is a question of law; otherwise, it
is a question of fact. The issues on the award of damages call for a re-
evaluation of the evidence before the trial court, which is obviously a question
of fact. Cases where an appeal involved questions of fact, of law, or both fall
within the exclusive appellate jurisdiction of the Court of Appeals.
Same; Same; Certiorari; Statutory Construction; An appeal by certiorari taken
to the Supreme Court from the Regional Trial Court submitting issues of fact
may be referred to the Court of Appeals for decision or appropriate action; Both
Sections 5(f) and 6 of Rule 57 use the term “may,” denoting discretion on the
part of the Court in dismissing the appeal or referring the case to the Court of
Appeals.—It is on this score that the Court is inclined to concur with petitioner’s
argument that even if the remedy resorted to was wrong, the Court may refer
the case to the Court of Appeals under Rule 56, Section 6, paragraph 2 of the
1997 Rules of Civil Procedure, as amended, which provides: “(A)n appeal by
certiorari taken to the Supreme Court from the Regional Trial Court submitting
issues of fact may be referred to the Court of Appeals for decision or
appropriate action.” This despite the express provision in Section 5(f) of the
same Rule, which provides that an appeal may be dismissed when there is
error in the choice or mode of appeal. Both Sections 5(f) and 6 of Rule 57 use
the term “may,” denoting discretion on the part of the Court in dismissing the
appeal or referring the case to the Court of Appeals. The question of fact
involved in the appeal and substantial ends of justice warrant a referral of this
case to the Court of Appeals for further appropriate proceedings.
MOTION FOR RECONSIDERATION of a decision of the Supreme Court.

The facts are stated in the resolution of the Court.
Sheilah F. P. Elbinias-Uyboco for petitioner.
Salalima, Gonzales & Escoto for respondents.
RESOLUTION
AUSTRIA-MARTINEZ, J.:
Petitioner was an employee of respondent company. When she was
promoted as Director of Corporate Affairs and Regulatory Matters, she
became entitled to an executive car, and she procured a 1997 Toyota
Camry. In April 2002, she was separated from the company. Petitioner filed a
complaint for illegal dismissal and reinstatement with the National Labor
Relations Commission (NLRC), which later dismissed the complaint.
Petitioner filed, on August 12, 2004, a petition for certiorari with the Court of
Appeals, docketed as CA-G.R. SP No. 85679 assailing the NLRC’s
dismissal.
Pending said petition, respondent company filed with the Regional Trial Court
of Mandaluyong (Branch 213) an action for recovery of possession of a
motor vehicle with application for a writ of replevin with damages, docketed
as Civil Case No. MC04-2480. Petitioner filed a motion to dismiss on the
ground of litis pendentia and forum shopping but this was denied by the trial
court. Thus, petitioner filed a petition for certiorari with the Court of Appeals,
docketed as CA-G.R. SP No. 85927.1 Petitioner also filed with the Court of
Appeals a motion for the issuance of a writ of prohibition to enjoin
proceedings in the replevin case before the trial court.
Thereafter, respondent company filed a motion to declare defendant in
default in Civil Case No. MC04-2480, which was granted by the trial court.
Respondent company was thus allowed to present its evidence ex-parte.
Petitioner filed a motion for reconsideration of the order of default but it was
denied by the trial court. On April 5, 2005, the trial court rendered a judgment
by default, the dispositive portion of which reads:
WHEREFORE, finding merit in all the foregoing uncontroverted facts
supported by documentary exhibits, judgment is hereby rendered declaring
plaintiff to have the right of possession over the subject motor vehicle and
ordering defendant plaintiff to pay plaintiff the following:
C I V P R O I V C i v i l P r o c e d u r e P a g e | 67
1. The amount of TWO MILLION FIVE HUNDRED FIFTY SIX THOUSAND
FOUR HUNDRED SIXTY PESOS (p2,556,460.00) as damages in the form of
unpaid daily car rental for 730 (From 15 August 2002 until 22 June 2004)
days at THREE THOUSAND FIVE HUNDRED TWO PESOS (P3,502.00) per
day;
2. The sum of TWO HUNDRED THOUSAND PESOS (₱200,000.00) AS
AND BY WAY OF Attorney’s fee;
3. The sum of TWO HUNDRED THOUSAND PESOS (₱200,000.00) as
exemplary damages in order to deter others from doing similar act in
withholding possession of a property to another to which he/she has no right
to possess; and
4. Costs of suit.
SO ORDERED.
Petitioner then filed with the Court a petition for review on certiorari under
Rule 45 of the Rules of Court, which was denied by the Court in a Resolution
dated May 16, 2005, for being the wrong remedy under the 1997 Rules of
Civil Procedure, as amended.
Petitioner thus filed the present motion for reconsideration, alleging that the
filing of said petition is the proper recourse, citing Matute vs. Court of
Appeals, 26 SCRA 798 (1969), wherein it was ruled that a defendant
declared in default has the remedy set forth in Section 2, paragraph 3 of Rule
41 of the old Rules of Court.2 Petitioner then cited in her motion, "Section 2,
paragraph 3 or (c) of the Rules of Civil Procedure."3
Evidently, petitioner misread the provision cited in the Matute case as that
pertaining to Section 2(c), Rule 41 of the 1997 Rules of Civil Procedure, as
amended, which states: "(c) Appeal by certiorari. - In all cases where only
questions of law are raised or involved, the appeal shall be to the Supreme
Court by petition for review on certiorari in accordance with Rule 45." Hence,
she directly filed her petition for review on certiorari with the Court.
Petitioner should be reminded that the Matute case is of 1969 vintage and
pertained to the old Rules of Court. As stated in the Matute case, a
defendant validly declared in default has the remedy set forth in Section 2,
paragraph 3 of Rule 41. Note that under the old Rules, Section 2, paragraph
3 of Rule 41 governed appeals from Courts of First Instance, the Social

Security Commission and the Court of Agrarian Relations TO THE COURT
OF APPEALS, and reads:
A party who has been declared in default may likewise appeal from the
judgment rendered against him as contrary to the evidence or to the law,
even if no petition for relief to set aside the order of default has been
presented by him in accordance with Rule 38. (Emphasis supplied)
Had petitioner been more circumspect, she would have easily ascertained
that said Section 2, paragraph 3 of Rule 41 of the old Rules of Court, as cited
in the Matute case, had already been superseded by the 1997 Rules of Civil
Procedure, as amended, and under these new rules, the different modes of
appeal are clearly laid down.
The decision sought to be reviewed in this case is a judgment by default
rendered by the trial court in Civil Case No. MC04-2480. As such, the
applicable rule is Section 2, Rule 41 of the 1997 Rules of Civil Procedure,
as amended, which provides for the different modes of appeal from a
Regional Trial Court’s judgment or final order, to wit:
Section 2. Modes of appeal. —
(a) Ordinary appeal. — The appeal to the Court of Appeals in cases
decided by the Regional Trial Court in the exercise of its original
jurisdiction shall be taken by filing a notice of appeal with the court
which rendered the judgment or final order appealed from and serving a
copy thereof upon the adverse party. No record on appeal shall be
required except in special proceedings and other cases of multiple or
separate appeals where the law or these Rules so require. In such
cases, the record on appeal shall be filed and served in like manner.
(b) Petition for review. — The appeal to the Court of Appeals in cases
decided by the Regional Trial Court in the exercise of its appellate jurisdiction
shall be by petition for review in accordance with Rule 42.
(c) Appeal by certiorari. — In all cases where only questions of law are raised
or involved, the appeal shall be to the Supreme Court by petition for review
on certiorari in accordance with Rule 45. (Emphasis supplied)
In Cerezo vs. Tuazon,4 the Court reiterated the remedies available to a party
declared in default:
C I V P R O I V C i v i l P r o c e d u r e P a g e | 68
a) The defendant in default may, at any time after discovery thereof and
before judgment, file a motion under oath to set aside the order of default
on the ground that his failure to answer was due to fraud, accident, mistake
or excusable negligence, and that he has a meritorious defense (Sec. 3, Rule
18 [now Sec. 3(b), Rule 9]);
b) If the judgment has already been rendered when the defendant discovered
the default, but before the same has become final and executory, he may file
a motion for new trial under Section 1 (a) of Rule 37;
c) If the defendant discovered the default after the judgment has become
final and executory, he may file a petition for relief under Section 2 [now
Section 1] of Rule 38; and
d) He may also appeal from the judgment rendered against him as contrary
to the evidence or to the law, even if no petition to set aside the order of
default has been presented by him (Sec. 2, Rule 41).
Moreover, a petition for certiorari to declare the nullity of a judgment by
default is also available if the trial court improperly declared a party in default,
or even if the trial court properly declared a party in default, if grave abuse of
discretion attended such declaration.5
The filing of the present petition is clearly not the proper remedy to assail the
default judgment rendered by the trial court. Petitioner still has the available
remedy of filing with the Regional Trial Court a motion for new trial or an
ordinary appeal to the Court of Appeals from the trial court’s default
judgment. Note that petitioner admits that she was "properly declared in
default."6 Thus, there is no question of any improvident or improper
declaration of default by the trial court, and the remedy of filing a special civil
action for certiorari has been effectively foreclosed on petitioner. Her only
recourse then is to file an ordinary appeal with the Court of Appeals under
Section 2(a), Rule 41 of the 1997 Rules of Civil Procedure, as amended.
Instead, she came directly to this Court via petition for review on certiorari,
without setting forth substantial reasons why the ordinary remedies under the
law should be disregarded and the petition entertained. Petitioner cannot
even find solace in the Matute case as the old Rules of Court then applicable
explicitly laid down the remedy of an ordinary appeal to the Court of Appeals,
and not appeal by certiorari to this Court, by a defendant declared in default.
 C I V P R O I V C i v i l P r o c e d u r e P a g e | 69

Petitioner further argues that the petition involved questions of law, and the
Court should have taken cognizance of the case. The grounds set forth in her
petition prove otherwise, viz.:
GROUNDS
I the 1997 Rules of Civil Procedure, as amended, which provides: "(A)n appeal
THE COMPLAINT FOR REPLEVIN FILED BY RESPONDENTS AGAINST
PETITIONER SHOULD HAVE BEEN DISMISSED ON THE GROUND OF
LITIS PENDENTIA AND FOR RESPONDENTS’ VIOLATION OF THE
RULES AGAINST FORUM-SHOPPING
or both fall within the exclusive appellate jurisdiction of the Court of
Appeals.8 (Emphasis supplied)
It is on this score that the Court is inclined to concur with petitioner’s
argument that even if the remedy resorted to was wrong, the Court may refer
the case to the Court of Appeals under Rule 56, Section 6, paragraph 2 of
by certiorari taken to the Supreme Court from the Regional Trial Court
submitting issues of fact may be referred to the Court of Appeals for decision
or appropriate action." This despite the express provision in Section 5(f) of
the same Rule, which provides that an appeal may be dismissed when there
is error in the choice or mode of appeal.

II
THE TRIAL COURT WENT AHEAD WITH THE EX-PARTE
PRESENTATION OF RESPONDENT’S EVIDENCE DESPITE THE
PETITIONER’S PENDING MOTION FOR RECONSIDERATION
III
THE MONETARY AWARDS FOR DAMAGES AND ATTORNEY’S FEES
ARE UNWARRANTED AND UNJUSTIFIABLE CONSIDERING THAT SUCH
ARE NOT SUPPORTED BY LAW AND JURISPRUDENCE
Both Sections 5(f) and 6 of Rule 57 use the term "may," denoting discretion
on the part of the Court in dismissing the appeal or referring the case to the
Court of Appeals. The question of fact involved in the appeal and substantial
ends of justice warrant a referral of this case to the Court of Appeals for
further appropriate proceedings.
WHEREFORE, the motion for reconsideration is GRANTED. The petition is
reinstated and the case is REFERRED to the Court of Appeals for
appropriate action.
SO ORDERED.

IV

THE COURT A QUO ISSUED THE ASSAILED DECISION IN A WAY THAT

IT IS NOT IN ACCORD WITH LAW OR APPLICABLE DECISIONS OF THE
SUPREME COURT AND HAS SO FAR DEPARTED FROM THE USUAL
COURSE OF JUDICIAL PROCEEDINGS AS TO CALL FOR THE
EXERCISE BY THE SUPREME COURT OF ITS POWER OF
SUPERVISION

The test of whether a question is one of law or of fact is not the appellation
given to such question by the party raising the same; rather, it is whether the
appellate court can determine the issue raised without reviewing or
evaluating the evidence, in which case, it is a question of law; otherwise, it is
a question of fact.7 The issues on the award of damages call for a re-
evaluation of the evidence before the trial court, which is obviously a
question of fact. Cases where an appeal involved questions of fact, of law,

G.R. No. 190660 April 11, 2011
LAND BANK OF THE PHILIPPINES, Petitioner,
vs.
COURT OF APPEALS and ELIZABETH DIAZ, represented by
FRANCISCA P. DE GUZMAN as Attorney-in-Fact, Respondents.
Appeals; Petition for Review under Rule 42 of the Rules of Court is the
proper mode of appeal from decisions of Regional Trial Courts sitting as
Special Agrarian Courts (SACs) is by petition for review under Rule 42 of the
Rules of Court and not through an ordinary appeal under Rule 41.—Following
Land Bank of the Philippines v. De Leon, 388 SCRA 537 (2002), the proper
mode of appeal from decisions of Regional Trial Courts sitting as SACs is by
petition for review under Rule 42 of the Rules of Court and not through an
ordinary appeal under Rule 41. The Court, in the immediately cited case of
Land Bank, observing that “before the instant case reached us, Land Bank of
the Philippines had no authoritative guideline on how to appeal decisions of
SACs considering the seemingly conflicting provisions of Sections 60 and 61
of RA 6657,” held that “Sec. 60 of RA 6657 clearly and categorically states that
the said mode of appeal (petition for review) should be adopted.”
Same; Although an appeal is an essential part of our judicial process, it has
been held, time and again, that the right thereto is not a natural right or a part
of due process but is merely a statutory privilege.—Although appeal is an
essential part of our judicial process, it has been held, time and again, that the
right thereto is not a natural right or a part of due process but is merely a
statutory privilege. Thus, the perfection of an appeal in the manner and within
the period prescribed by law is not only mandatory but also jurisdictional and
failure of a party to conform to the rules regarding appeal will render the
judgment final and executory. Once a decision attains finality, it becomes the
law of the case irrespective of whether the decision is erroneous or not and no
court—not even the Supreme Court—has the power to revise, review, change
or alter the same. The basic rule of finality of judgment is grounded on the
fundamental principle of public policy and sound practice that, at the risk of
occasional error, the judgment of courts and the award of quasi-judicial
agencies must become final at some definite date fixed by law.” (emphasis and
underscoring supplied)
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
C I V P R O I V C i v i l P r o c e d u r e P a g e | 70
LBP Legal Services Group for petitioner.
Vicente D. Millora for respondent.
DECISION
CARPIO MORALES, J.:
Private respondent Elizabeth P. Diaz (Elizabeth) was the registered owner of
a parcel of agricultural land measuring approximately 15 hectares, situated in
San Ricardo, Talavera, Nueva Ecija and covered by Transfer Certificate of
Title (TCT) No. 197132. Ten hectares of the land were expropriated by the
Department of Agrarian Reform (DAR) under Presidential Decree No. 27 and
Executive Order No. 228.
The DAR valued the expropriated land (the land) at ₱54,880.59 plus
increment of ₱143,041.59 or a total of ₱197,922.18. Not satisfied with the
valuation, Elizabeth, through her attorney-in-fact Francisca P. De Guzman
(Francisca), filed a complaint1 on November 28, 2001 against the Land Bank
of the Philippines (Land Bank) and the DAR before the Regional Trial Court
of Guimba, Nueva Ecija, Branch 33, acting as a Special Agrarian Court
(SAC). The complaint, docketed as Special Agrarian Case No. 1194-G,
prayed that just compensation be fixed at ₱350,000 per hectare or a total of
₱5,250.000.
Upon Elizabeth’s motion, three Commissioners were appointed to determine
the just compensation for the land.
By Decision of June 21, 2006,2 the SAC, adopted the DAR’s valuation on the
basis of average gross production and fixed the just compensation plus
increment at ₱19,107.235 per hectare or a total of ₱197,922.29. It held that
given the formula used in Gabatin v. LBP,3 the Commissioner’s Report and
the fair market or assessed value of the land can not be considered in the
valuation.
Elizabeth’s motion for reconsideration was denied by Order dated August 31,
2006,4 hence, she elevated the case to the Court of Appeals.5
Land Bank and the DAR failed to file their appellees’ brief. During the
pendency of the appeal, Land Bank filed a Motion for Leave to Admit

Defendant-Appellee[’s] Motion to Dismiss Appeal,6 maintaining that the
appeal should be dismissed because an ordinary appeal is the wrong
remedy, the proper mode being by way of a petition for review, citing Section
60 of Republic Act No. 6657 or the Comprehensive Agrarian Reform Law.
Hence, Land Bank concluded that the appellate court had no jurisdiction over
the case, the SAC decision having attained finality following Land Bank of the
Philippines v. De Leon7 which held that failure of a party to file the proper
remedy within fifteen (15) days from receipt of notice of the assailed decision
renders it final.
By Resolution8 of June 2, 2009, the appellate court denied Land Bank’s
motion to dismiss. It faulted Land Bank for not filing an appellee’s brief as
directed, and for filing the motion to dismiss the appeal after the lapse of 157
days from the last day for filing the brief.
Hence, the present petition for review on certiorari,9 Land Bank maintaining
that the SAC Decision had become final and executory and, therefore, the
appellate court never acquired jurisdiction over the appeal filed by Elizabeth,
a wrong mode of appeal.
Additionally, Land Bank ascribes bad faith on the part of Elizabeth for,
instead of sending a copy of her motion for reconsideration before the SAC
and her subsequent Notice of Appeal to Land Bank’s counsel of record Atty.
Graciela L. Gutierrez at her address at the Land Bank Field Office in
Cabanatuan City, Elizabeth sent them to the Land Bank’s main office in
Malate, Manila where, it points out, the lawyers neither have control nor
possession of the records of the case.
In view of the filing of the present petition, action on Elizabeth’s appeal was
held in abeyance by the appellate court per Resolution dated June 7, 2010.10
The petition is meritorious.
Indeed, following Land Bank of the Philippines v. De Leon,11 the proper mode
of appeal from decisions of Regional Trial Courts sitting as SACs is by
petition for review under Rule 42 of the Rules of Court and not through an
ordinary appeal under Rule 41. The Court, in the immediately cited case of
Land Bank, observing that "before the instant case reached us, Land Bank of
the Philippines had no authoritative guideline on how to appeal decisions of
SACs considering the seemingly conflicting provisions of Sections 60 and 61
of RA 6657," held that "Sec. 60 of RA 665712 clearly and categorically states
that the said mode of appeal (petition for review) should be adopted."
C I V P R O I V C i v i l P r o c e d u r e P a g e | 71
First, there is no conflict between Section[s] 60 and 61 of RA 6657 inasmuch
as the Rules of Court do not at all prescribe the procedure for ordinary
appeals as the proper mode of appeal for decisions of Special Agrarian
Courts. Section 61 in fact makes no more than a general reference to the
Rules of Court and does not even mention the procedure for ordinary
appeals in Section 2, Rule 41 of the 1997 Revised Rules of Civil Procedure
as the appropriate method of elevating to the Court of Appeals decisions of
Special method of elevating to the Court of Appeals decisions of Special
Agrarian Courts in eminent domain cases.
Second, the failure to mention Special Agrarian Courts in Section 1 of Rule
43 of the Revised Rules of Civil Procedure cannot be construed to mean that
a petition for review is not permissible for decisions of the said special courts.
In fact, the said Rule is not relevant to determine whether a petition for
review is the proper mode of appeal from decisions of Regional Trial Courts
in agrarian cases, that is, why they act as Special Agrarian Courts. Section 1
of Rule 43 of the 1997 Revised Rules of Civil Procedure merely mentions the
Court of Tax Appeals and the other different quasi-judicial agencies without
exclusivity in its phraseology. Such omission cannot be construed to justify
the contention that a petition for review is prohibited for decisions on special
agrarian cases inasmuch as the category is for quasi-judicial agencies and
tax courts to which the Regional Trial Courts do not properly belong.
Although Supreme Court of Circular No. 1-91 (precursor to Rule 43 of the
Revised Rules of Civil Procedure) included the decisions of Special Agrarian
Courts in the enumeration requiring petition for review, its non-inclusion later
on in Rule 43 merely signifies that it was inappropriately classified as a
quasi-judicial agencies.
What is indisputable is that Section 60 expressly regards a petition for review
as the proper way of appealing decisions of agrarian courts. So far, there is
no rule prescribed by this Court expressly disallowing the said procedure.
Third, far from being in conflict, Section 61 of RA 6657 can easily be
harmonized with Section 60. The reference to the Rules of Court means that
the specific rules for petitions for review in the Rules of Court and other
relevant procedures in appeals filed before the Court of Appeals shall be
followed in appealed decisions of Special Agrarian Courts. Considering that
RA 6657 cannot and does not provide the details on how the petition for
review shall be conducted, a suppletory application of the pertinent
provisions of the Rules of Court is necessary. In fact, Section 61 uses the
word "review" to designate the mode by which the appeal is to be effected.
The reference therefore by Section 61 to the Rules of Court only means that
the procedure under Rule 42 for petitions for review is to be followed for
 C I V P R O I V C i v i l P r o c e d u r e P a g e | 72

appeals in agrarian cases.13 (italics in the original; emphasis and and the award of quasi-judicial agencies must become final at some definite
underscoring supplied) date fixed by law.15 (emphasis and underscoring supplied)

The adoption of a petition for review as the mode of appeal is justified in WHEREFORE, the petition is GRANTED. The Resolution of the Court of
order to "hasten" the resolution of cases involving issues on just Appeals dated June 2, 2009 is SET ASIDE.
compensation of expropriated lands under RA 6657. Thus the Court, still in
the immediately cited Land Bank case, pronounced: The Decision dated June 21, 2006 of the Regional Trial Court of Guimba,
Nueva Ecija, Branch 33 sitting as a Special Agrarian Court in Agr. Case No.
The reason why it is permissible to adopt a petition for review when 1194-G is deemed final and executory.
appealing cases decided by the Special Agrarian Courts in eminent domain
case is the need for absolute dispatch in the determination of just SO ORDERED.
compensation. Just compensation means not only paying the correct amount
but also paying for the land within a reasonable time from its acquisition.
Without prompt payment, compensation cannot be considered "just" for the
property owner is made to suffer the consequences of being immediately
deprived of his land while being made to wait for a decade or more before
actually receiving the amount necessary to cope with his loss. Such objective
is more in keeping with the nature of a petition for review.1avvphi1

Unlike an ordinary appeal, a petition for review dispenses with the filing of a
notice of appeal or completion of records as requisites before any pleading is
submitted. A petition for review hastens the award of fair recompense to
deprived landowners for the government-acquired property, an end not
foreseeable in an ordinary appeal. . . .14 (Italics in the original; emphasis and
underscoring supplied)

Following then the same Land Bank case, resort by Elizabeth to a wrong
mode of appeal was fatal to her cause as it resulted in rendering the decision
appealed from final and executory. Her notice of appeal did not, it bears
emphasis, stop the running of the reglementary period to file a petition for
review.

Although appeal is an essential part of our judicial process, it has been held,
time and again, that the right thereto is not a natural right or a part of due
process but is merely a statutory privilege. Thus, the perfection of an appeal
in the manner and within the period prescribed by law is not only mandatory
but also jurisdictional and failure of a party to conform to the rules regarding
appeal will render the judgment final and executory. Once a decision attains
finality, it becomes the law of the case irrespective of whether the decision is
erroneous or not and no court - not even the Supreme Court - has the power
to revise, review, change or alter the same. The basic rule of finality of
judgment is grounded on the fundamental principle of public policy and
sound practice that, at the risk of occasional error, the judgment of courts

G.R. No. 104222 March 3, 1994
ASTA MOSKOWSKY, petitioner,
vs.
HON. COURT OF APPEALS, ANTONIO DORIA, EDGARDO ALCARAZ
and EVANGELINE DORIA, respondents.
Remedial Law; Pleadings and Practice; Where the day or the last day for doing
any act required or permitted by law falls on a regular holiday or special day,
the act may be done on the next succeeding business day.—The law for
pretermission of holidays is that “Where the day, or the last day, for doing any
act required or permitted by law falls on a regular holiday or special day, the
act may be done on the next succeeding business day.
Same; Same; Same; The motion for the extension sought was filed before the
expiration of the time sought to be extended.—The abovementioned motion
was, therefore, filed on time, i.e., the motion for the extension sought was filed
before the expiration of the time sought to be extended.
Same; Same; Same; Same; Court respects the appellate court’s assessment
of the good faith it perceived on the part of private respondent’s new counsel
when it granted the motion to admit appellant’s brief.—And since “Rules of
procedure are intended’ to promote, not to defeat, substantial justice and,
therefore, they should not be applied in a very rigid and technical sense,” we
therefore respect the appellate court’s assessment of the good faith it
perceived on the part of private respondent’s new counsel when it granted the
motion to admit appellants’ brief.
PETITION for review of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Alampay, Del Castillo, Maronilla for petitioner.
Ferdinand Valentin for private respondents.
NOCON, J.:
Petitioner Asta Moskowsky claims that the appellate court gravely abused its
discretion when it admitted the private respondents' brief
(as appellants therein) which she claims was filed out of time. And she points
C I V P R O I V C i v i l P r o c e d u r e P a g e | 73
to the fact that private respondents' motion for extension of time to file
appellants' brief were filed after the expiration of the time sought to be
extended. The private respondents deny this claim. Records of the case
disclose that in private respondents' peculiar case the last days when their
motions were filed just happened to fall always on holidays. In which case
the private respondents had nor recourse but to file their motions on the very
first business days after the holidays. Can such filing by the private
respondents be sustained by this Court? Keeping faith with earlier decisions
by the Court, we rule in favor of private respondents.
The facts of this case are simple enough.
In Civil Case No. 51369 of the Regional Trial Court of Pasig Branch 161,
Metro Manila entitled: "Asta Moskowsky vs. Antonio Doria," a decision was
rendered on November 16, 1989 in favor of petitioner.
Said decision was appealed by private respondents and the records were
elevated to the Respondent Court of Appeals which docketed the appeal as
CA-G.R. CV No. 30210.
Acting on a motion for extension of time to file appellants' brief filed by the
private respondents, the Respondent Court in a resolution dated August 15,
1991 granted a non-extendible period of ninety (90) days within which to file
appellants' brief or until November 1, 1991.
On November 4, 1991, the private respondents through counsel filed an
"Urgent Motion for a Final Extension of 20 days to File Brief."
On even date, the petitioner, through counsel, filed a Motion to Dismiss
Appeal on the ground that no appellants' brief had yet been filed despite the
lapse of the reglementary period on November 1, 1991.
On November 25, 1991 the private respondents filed an "Urgent Motion for
Five (5) Days to file Brief."
On December 3, 1991, the private respondents filed a "Motion to Admit
Appellants' Brief."
In a Resolution dated December 19, 1991, the Respondent Court of Appeals
resolved to admit Appellants' Brief.

On January 6, 1992, petitioner filed a Motion for Reconsideration arguing that
the period within which to submit Appellants' Brief has expired and the
admission of the Appellants' Brief is contrary to Sec. 15 Rule 46 of the Rules.
In Resolution dated February 19, 1992, the Respondent Court of Appeals
denied the Petitioner's Motion for Reconsideration.1
Hence, petitioner filed this instant petition.
Petitioner strongly argues that the filing of the "Urgent Motion For A Final
Extension Of 20 Days" on November 4, 1991 did not operate to alter the
expiration of the reglementary period which was November 1, 1991. She
states that the twenty-day period should be counted from November 1, 1991
and the same would expire on November 21, 1991. The filing of the "Urgent
Motion For Five (5) Days To File Brief" on November 25, 1991 was,
therefore, four (4) days late. The subsequent "Motion To Admit Appellants'
Brief" filed December 3, 1991 was therefore filed out of time. As of November
22, 1991 there was no longer any period to be extended as the decision of
the trial court became final and executory as of said date. The Court of
Appeals therefore, committed grave abuse of discretion in allowing the
motions to be filed in violation of Section 15, Rule 46, Rules of Court, as said
motions were not filed before the expiration of the time sought to be
extended.
In reply, the private respondents aver that:
In the instant case all motions filed by respondents for
extension of time to file their brief before the Honorable
Court of Appeals invariably stated the periods of time prayed
for within which to file the same. For example, in the urgent
motion for a final extension of twenty (20) days (Annex "C" of
petition) respondents informed the court that the last day for
private respondent to file their brief is November 4, 1991
which is a fact because November 1, November 2 and
November 3 were all non-working days, and prayed that they
may be granted another extension of twenty (20) days.
Necessarily, the twenty days should begin on November 4,
1991.
Again in the urgent motion for five (5) days to file brief
(Annex "E" of petition) private respondents ask for an
extension of five(5) days from November 25, 1991. And the
Court of Appeals, in the interest of justice and equity, for
C I V P R O I V C i v i l P r o c e d u r e P a g e | 74
indeed our courts are not only courts of justice but also
courts of equity, impliedly granted these motions. . . .2
Section 15, Rule 46, Rules of Court, reads as follows:
Sec. 15. Extension of time for filing brief . — Extension of
time for the filing of briefs will not be allowed, except for good
and sufficient cause, and only if the motion for extension is
filed before the expiration of the time sought to be extended.
Private respondents' former counsel, Emeterio T. Balguna, filed on August 2,
1991, an "Urgent Ex-Parte Motion For Extension of Time To File Brief"3 for a
period of ninety (90) days counted from August 3, 1991. Said ninety-day
period would end on November 1, 1991. November 1 is a regular holiday.
Then President Aquino declared November 2, 1991 as a special holiday. The
next day, November 3, 1991 turned out to be a Sunday. The next business
day was, therefore, November 4, 1991 — a Monday. Instead of filing a brief,
private respondents — this time, through new counsel, filed a motion for a
twenty-day extension to file a brief on November 4, 1991 in the following
tenor:
1. That due to the recurring illness, original counsel for
defendant-appellant Emeterio T. Balguna has withdrawn as
counsel for defendant-appellant and the matter of filing
appellant's brief has been endorsed to me by the said
defendant-appellant;
2. That the undersigned counsel has been informed that the
last day for defendant-appellant to file his brief is today,
November 4, 1991;
3. That the undersigned counsel was given the records only
10 days ago and for which reason he will need time to study
the records and file appellant's brief;
4. That he will need another extension of twenty (20) days
from today within which to file appellant's brief;
5. That this motion is not intended to unduly delay the
termination of this case.4

The law for pretermission of holidays is that "Where the day, or the last day,
for doing any act required or permitted by law falls on a regular holiday or
special day, the act may be done on the next succeeding business day."5
The abovementioned motion was, therefore, filed on time, i.e., the motion for
the extension sought was filed before the expiration of the time sought to be
extended.
The next question is: when should the extended period requested for
commence to run?
A similar question was posed in Vda. de Capulong vs. Workmen's Insurance
Co., Inc.6 where the issue as formulated by the Court was as follows:
The issue presented in this case is quite simple. The private
respondent received a copy of the decision against it on
January 4, 1969. On February 3, 1969, the last day for
perfecting its appeal, it filed a motion for an extension of "at
least thirty (30) days from the receipt of the Order of this
Honorable Court within which to file the Record on Appeal."
The late Judge Federico C. Alikpala of the Court of First
Instance of Manila, who rendered the decision, issued an
order on February 4, 1969, granting an extension but only for
ten days and without indicating when it would commence.
This order was received by the private respondent on
February 7, 1969, and seven days later, on February 14,
1969, it filed the record on appeal.
The question is: Was the record on appeal filed on time, that
is, within the extension? Or more to the point, when should
the 10-day extension start to run?7
Here, the Court held as follows:
Regarding the date when the 10-day extension should begin,
it is true that as a rule the extension should be tacked to the
original period and commence immediately after the
expiration of such period. But that rule will not apply in the
case at bar because the private respondent specifically
moved that it be given "at least thirty days from receipt of the
order" of the court allowing such extension.8
C I V P R O I V C i v i l P r o c e d u r e P a g e | 75
Similarly, since private respondents specifically manifested that they "will
need another extension of twenty (20) days from today within which to file
appellants' brief" and the "today" (November 4, 1991) was the date of the
filing of the motion, there was then authority for private respondents to fix the
commencement (of the extended period requested) from November 4, 1991.
The same goes for the motion for another five days to file brief. The twentieth
day from November 4, 1991 fell on a Sunday and the brief was therefore to
be filed on November 25, 1991. But, instead of the brief, the private
respondents filed the abovementioned motion for extension of time to file
brief wherein they manifested that they would need five (5) days from the
filing of said motion — the 25th of November 1991, to file said brief.
Five days from November 25, 1991 is November 30, 1991 (Bonifacio Day) —
one of the regular holidays of each year.9 The next day, December 1, 1991,
was a Sunday. The brief had to be filed the next day, December 2, 1991, it
being the first business day which was neither a regular holiday or a special
day.
The private respondents filed a "Motion To Admit Appellants' Brief" on
December 3, 1991 — one (1) day after due date with the following reasons:
That the last day for him to file appellant's brief was
yesterday, December 2, 1991. However, due to typing errors
committed by the typist on some pages of the brief,
undersigned counsel had to ask that said pages be retyped
and for which reason, he was not able to file the brief
yesterday;
That he is now filing the said appellant's brief, today,
December 3, 1991.10
A similar one (1) day delay occurred in Javier vs. Court of Appeals,11 and
there the Court ruled that:
The one (1) day delay in the filing of the said motion for
extension can justifiably be excused, considering that aside
from the change of counsel, the last day for filing the said
motion fell on a holiday following another holiday, hence,
under such circumstances, an outright dismissal of the
petition would be too harsh. Litigations should, as much as
possible, be decided on their merits and not on technicalities.
In a number of cases, this Court, in the exercise of equity
 C I V P R O I V C i v i l P r o c e d u r e P a g e | 76

jurisdiction, has relaxed the stringent application of technical

rules in order to resolve the case on its merits. Rules of
procedure are intended to promote, not defeat, substantial
justice and, therefore, they should not be applied in a very
rigid and technical sense.12

The theme of private respondents' new counsel in the motions for extension
of time to file brief was that he had just been hired as counsel by the private
respondents for which reason he needed time to go over the records of the
case and check his facts very well before submitting the private respondents'
brief — which included submitting the same without any errors in its typing.

And since "Rules of procedure are intended to promote, not to defeat,

substantial justice and, therefore, they should not be applied in a very rigid
and technical sense," we therefore respect the appellate court's assessment
of the good faith it perceived on the part of private respondents' new counsel
when it granted the motion to admit appellants' brief.

WHEREFORE, the petition is hereby DENIED for lack of merit. The case is
hereby REMANDED to the appellate court for further proceedings. No costs.

SO ORDERED.

Narvasa, C.J., Padilla, Regalado and Puno, JJ., concur.


G.R. No. 148116 April 14, 2004
ANTONIO K. LITONJUA and AURELIO K. LITONJUA, JR., petitioners,
vs.
MARY ANN GRACE FERNANDEZ, HEIRS OF PAZ TICZON ELEOSIDA,
represented by GREGORIO T. ELEOSIDA, HEIRS OF DOMINGO B.
TICZON, represented by MARY MEDIATRIX T. FERNANDEZ, CRISTETA
TICZON, EVANGELINE JILL R. TICZON, ERLINDA T. BENITEZ, DOMINIC
TICZON, JOSEFINA LUISA PIAMONTE, JOHN DOES and JANE DOES,
respondents.
Actions; Appeals; The general rule is that the Supreme Court’s jurisdiction
under Rule 45 of the Rules of Court is limited to the review of errors of law
committed by the appellate court, and since the findings of fact of the appellate
court are deemed continued, the Supreme Court is not duty-bound to analyze
and calibrate all over again the evidence adduced by the parties in the court a
quo; Exceptions.—The general rule is that the Court’s jurisdiction under Rule
45 of the Rules of Court is limited to the review of errors of law committed by
the appellate court. As the findings of fact of the appellate court are deemed
continued, this Court is not duty-bound to analyze and calibrate all over again
the evidence adduced by the parties in the court a quo. This rule, however, is
not without exceptions, such as where the factual findings of the Court of
Appeals and the trial court are conflicting or contradictory. Indeed, in this case,
the findings of the trial court and its conclusion based on the said findings
contradict those of the appellate court. However, upon careful review of the
records of this case, we find no justification to grant the petition. We, thus,
affirm the decision of the appellate court.
Contracts; Statute of Frauds; Words and Phrases; The term “statute of frauds”
is descriptive of statutes which require certain classes of contracts to be in
writing; The purpose of the statute is to prevent fraud and perjury in the
enforcement of obligations, depending for their existence on the unassisted
memory of witnesses, by requiring certain enumerated contracts and
transactions to be evidenced by a writing signed by the party to be charged.—
In Rosencor Development Corporation vs. Court of Appeals, the term “statute
of frauds” is descriptive of statutes which require certain classes of contracts
to be in writing. The statute does not deprive the parties of the right to contract
with respect to the matters therein involved, but merely regulates the
formalities of the contract necessary to render it enforceable. The purpose of
the statute is to prevent fraud and perjury in the enforcement of obligations,
depending for their existence on the unassisted memory of witnesses, by
C I V P R O I V C i v i l P r o c e d u r e P a g e | 77
requiring certain enumerated contracts and transactions to be evidenced by a
writing signed by the party to be charged.
Same; Same; For a note or memorandum to satisfy the statute, it must be
complete in itself and cannot rest partly in writing and partly in parol, and it
must contain the names of the parties, the terms and conditions of the contract
and a description of the property sufficient to render it capable of identification;
Also, to be binding on the persons to be charged, such note or memorandum
must be signed by the said party or by his agent duly authorized in writing.—
The statute is satisfied or, as it is often stated, a contract or bargain is taken
within the statute by making and executing a note or memorandum of the
contract which is sufficient to state the requirements of the statute. The
application of such statute presupposes the existence of a perfected contract.
However, for a note or memorandum to satisfy the statute, it must be complete
in itself and cannot rest partly in writing and partly in parol. The note or
memorandum must contain the names of the parties, the terms and conditions
of the contract and a description of the property sufficient to render it capable
of identification. Such note or memorandum must contain the essential
elements of the contract expressed with certainty that may be ascertained from
the note or memorandum itself, or some other writing to which it refers or within
which it is connected, without resorting to parol evidence. To be binding on the
persons to be charged, such note or memorandum must be signed by thesaid
party or by his agent duly authorized in writing. In City of Cebu v. Heirs of Rubi,
we held that the exchange of written correspondence between the parties may
constitute sufficient writing to evidence the agreement for purposes of
complying with the statute of frauds.
Same; Same; Agency; Sales; Special Power of Attorney; A special power of
attorney is necessary to enter into any contract by which the ownership of an
immovable is transmitted or acquired either gratuitously or for a valuable
consideration, or to create or convey real rights over immovable property, or
for any other act of strict dominion—any sale of real property by one purporting
to be the agent of the registered owner without any authority therefor in writing
from the said owner is null and void.—There is no documentary evidence on
record that the respondents-owners specifically authorized respondent
Fernandez to sell their properties to another, including the petitioners. Article
1878 of the New Civil Code provides that a special power of attorney is
necessary to enter into any contract by which the ownership of an immovable
is transmitted or acquired either gratuitously or for a valuable consideration, or
to create or convey real rights over immovable property, or for any other act of
strict dominion. Any sale of real property by one purporting to be the agent of
the registered owner without any authority therefor in writing from the said

owner is null and void. The declarations of the agent alone are generally
insufficient to establish the fact or extent of her authority. In this case, the only
evidence adduced by the petitioners to prove that respondent Fernandez was
authorized by the respondents-owners is the testimony of petitioner Antonio
Litonjua that respondent Fernandez openly represented herself to be the
representative of the respondents-owners, and that she promised to present
to the petitioners on December 8, 1996 the written authority to sell the
properties.
Same; Same; Same; Same; Noted businessmen who ought to be very familiar
with the intricacies of business transactions, such as the sale of real
property.—The petitioners cannot feign ignorance of respondent Fernandez’
lack of authority to sell the properties for the respondents-owners. It must be
stressed that the petitioners are noted businessmen who ought to be very
familiar with the intricacies of business transactions, such as the sale of real
property. The settled rule is that persons dealing with an assumed agent are
bound at their peril, and if they would hold the principal liable, to ascertain not
only the fact of agency but also the nature and extent of authority, and in case
either is controverted, the burden of proof is upon them to prove it. In this case,
respondent Fernandez specifically denied that she was authorized by the
respondents-owners to sell the properties, both in her answer to the complaint
and when she testified. The Letter dated January 16, 1996 relied upon by the
petitioners was signed by respondent Fernandez alone, without any authority
from the respondents-owners. There is no evidence on record that the
respondents-owners ratified all the actuations of respondent Fernandez in
connection with her dealings with the petitioners. As such, said letter is not
binding on the respondents as owners of the subject properties.
Same; Same; Default; The failure of an agent-defendant to object to parol
evidence to prove the essential terms and conditions of the contract and her
authority to sell the subject properties does not and should not prejudice the
owners-defendants who had been declared in default.—The failure of
respondent Fernandez to object to parol evidence to prove (a) the essential
terms and conditions of the contract asserted by the petitioners and, (b) her
authority to sell the properties for the respondents-registered owners did not
and should not prejudice the respondents-owners who had been declared in
default.
PETITION for review on certiorari of the decision and resolution of the Court
of Appeals.
The facts are stated in the opinion of the Court.
C I V P R O I V C i v i l P r o c e d u r e P a g e | 78
Castillo, Zamora, Poblador for petitioners.
Celso A. Fernandez for respondent Fernandez.
DECISION
CALLEJO, SR., J.:
This is a petition for review on certiorari of the Decision1 of the Court of
Appeals in CA-G.R. CV No. 64940, which reversed and set aside the June
23, 1999 Decision2 of the Regional Trial Court of Pasig City, Branch 68, in
Civil Case No. 65629, as well as its Resolution dated April 30, 2001 denying
the petitioners’ motion for reconsideration of the aforesaid decision.
The heirs of Domingo B. Ticzon3 are the owners of a parcel of land located
in San Pablo City, covered by Transfer Certificate of Title (TCT) No. T-36766
of the Register of Deeds of San Pablo City.4 On the other hand, the heirs of
Paz Ticzon Eleosida, represented by Gregorio T. Eleosida, are the owners of
a parcel of land located in San Pablo City, covered by TCT No. 36754, also
of the Register of Deeds of San Pablo City.5
The Case for the Petitioners
Sometime in September 1995, Mrs. Lourdes Alimario and Agapito Fisico who
worked as brokers, offered to sell to the petitioners, Antonio K. Litonjua and
Aurelio K. Litonjua, Jr., the parcels of land covered by TCT Nos. 36754 and
36766. The petitioners were shown a locator plan and copies of the titles
showing that the owners of the properties were represented by Mary
Mediatrix Fernandez and Gregorio T. Eleosida, respectively. The brokers told
the petitioners that they were authorized by respondent Fernandez to offer
the property for sale. The petitioners, thereafter, made two ocular inspections
of the property, in the course of which they saw some people gathering
coconuts.
In the afternoon of November 27, 1995, the petitioners met with respondent
Fernandez and the two brokers at the petitioners’ office in Mandaluyong
City.6 The petitioners and respondent Fernandez agreed that the petitioners
would buy the property consisting of 36,742 square meters, for the price of
P150 per square meter, or the total sum of P5,098,500. They also agreed

that the owners would shoulder the capital gains tax, transfer tax and the
expenses for the documentation of the sale. The petitioners and respondent
Fernandez also agreed to meet on December 8, 1995 to finalize the sale. It
was also agreed upon that on the said date, respondent Fernandez would
present a special power of attorney executed by the owners of the property,
authorizing her to sell the property for and in their behalf, and to execute a
deed of absolute sale thereon. The petitioners would also remit the purchase
price to the owners, through respondent Fernandez. However, only Agapito
Fisico attended the meeting. He informed the petitioners that respondent
Fernandez was encountering some problems with the tenants and was trying
to work out a settlement with them.7 After a few weeks of waiting, the
petitioners wrote respondent Fernandez on January 5, 1995, demanding that
their transaction be finalized by January 30, 1996.8
When the petitioners received no response from respondent Fernandez, the
petitioners sent her another Letter9 dated February 1, 1996, asking that the
Deed of Absolute Sale covering the property be executed in accordance with
their verbal agreement dated November 27, 1995. The petitioners also
demanded the turnover of the subject properties to them within fifteen days
from receipt of the said letter; otherwise, they would have no option but to
protect their interest through legal means.
Upon receipt of the above letter, respondent Fernandez wrote the petitioners
on February 14, 199610 and clarified her stand on the matter in this wise:
1) It is not true I agreed to shoulder registration fees and other
miscellaneous expenses, etc. I do not recall we ever discussed about
them. Nonetheless, I made an assurance at that time that there was
no liens/encumbrances and tenants on my property (TCT – 36755).
2) It is not true that we agreed to meet on December 8, 1995 in order
to sign the Deed of Absolute Sale. The truth of the matter is that you
were the one who emphatically stated that you would prepare a
Contract to Sell and requested us to come back first week of
December as you would be leaving the country then. In fact, what
you were demanding from us was to apprise you of the status of the
property, whether we would be able to ascertain that there are really
no tenants. Ms. Alimario and I left your office, but we did not assure
you that we would be back on the first week of December.
Unfortunately, some people suddenly appeared and claiming to be
"tenants" for the entire properties (including those belonging to my
C I V P R O I V C i v i l P r o c e d u r e P a g e | 79
other relatives.) Another thing, the Barangay Captain now refuses to
give a certification that our properties are not tenanted.
Thereafter, I informed my broker, Ms. Lulu Alimario, to relay to Mr.
Agapito that due to the appearance of "alleged tenants" who are
demanding for a one-hectare share, my cousin and I have thereby
changed our mind and that the sale will no longer push through. I
specifically instructed her to inform you thru your broker that we will
not be attending the meeting to be held sometime first week of
December.
In view thereof, I regret to formally inform you now that we are no
longer selling the property until all problems are fully settled. We
have not demanded and received from you any earnest money,
thereby, no obligations exist. In the meantime, we hope that in the
future we will eventually be able to transact business since we still
have other properties in San Pablo City.11
Appended thereto was a copy of respondent Fernandez’ letter to the
petitioners dated January 16, 1996, in response to the latter’s January 5,
1996 letter.12
On April 12, 1996, the petitioners filed the instant Complaint for specific
performance with damages13 against respondent Fernandez and the
registered owners of the property. In their complaint, the petitioners alleged,
inter alia, the following:
4. On 27 November 1995, defendants offered to sell to plaintiffs two
(2) parcels of land covered by Transfer Certificates of Title Nos.
36766 and 36754 measuring a total of 36,742 square meters in
Barrio Concepcion, San Pablo City. … After a brief negotiation,
defendants committed and specifically agreed to sell to plaintiffs
33,990 square meters of the two (2) aforementioned parcels of land
at P150.00 per square meter.
5. The parties also unequivocally agreed to the following:
(a) The transfer tax and all the other fees and expenses for the titling
of the subject property in plaintiffs’ names would be for defendants’
account.

(b) The plaintiffs would pay the entire purchase price of
P5,098,500.00 for the aforementioned 33,990 square meters of land
in plaintiffs’ office on 8 December 1995.
6. Defendants repeatedly assured plaintiffs that the two (2) subject
parcels of land were free from all liens and encumbrances and that
no squatters or tenants occupied them.
7. Plaintiffs, true to their word, and relying in good faith on the
commitment of defendants, pursued the purchase of the subject
parcels of lands. On 5 January 1996, plaintiffs sent a letter of even
date to defendants, … setting the date of sale and payment on 30
January 1996.
7.1 Defendants received the letter on 12 January 1996 but
did not reply to it.
8. On 1 February 1996, plaintiffs again sent a letter of even date to
defendants demanding execution of the Deed of Sale.
8.1 Defendants received the same on 6 February 1996.
Again, there was no reply. Defendants thus reneged on their
commitment a second time.
9. On 14 February 1996, defendant Fernandez sent a written
communication of the same date to plaintiffs enclosing therein a copy
of her 16 January 1996 letter to plaintiffs which plaintiffs never
received before. Defendant Fernandez stated in her 16 January
1996 letter that despite the meeting of minds among the parties over
the 33,990 square meters of land for P150.00 per square meter on
27 November 1995, defendants suddenly had a change of heart and
no longer wished to sell the same. Paragraph 6 thereof
unquestionably shows defendants’ previous agreement as above-
mentioned and their unjustified breach of their obligations under it. …
10. Defendants cannot unilaterally, whimsically and capriciously
cancel a perfected contract to sell. …
11. Plaintiffs intended to use the subject property for their subdivision
project to support plaintiffs’ quarry operations, processing of
aggregate products and manufacture of construction materials.
Consequently, by reason of defendants’ failure to honor their just
C I V P R O I V C i v i l P r o c e d u r e P a g e | 80
obligations, plaintiffs suffered, and continue to suffer, actual
damages, consisting in unrealized profits and cost of money, in the
amount of at least P5 Million.
12. Plaintiffs also suffered sleepless nights and mental anxiety on
account of defendants’ fraudulent actuations for which reason
defendants are liable to plaintiffs for moral damages in the amount of
at least P1.5 Million.
13. By reason of defendants’ above-described fraudulent actuations,
plaintiffs, despite their willingness and ability to pay the agreed
purchase price, have to date been unable to take delivery of the title
to the subject property. Defendants acted in a wanton, fraudulent
and malevolent manner in violating the contract to sell. By way of
example or correction for the public good, defendants are liable to
plaintiff for exemplary damages in the amount of P500,000.00.
14. Defendants’ bad faith and refusal to honor their just obligations to
plaintiffs constrained the latter to litigate and to engage the services
of undersigned counsel for a fee in the amount of at least
P250,000.00.14
The petitioners prayed that, after due hearing, judgment be rendered in their
favor ordering the respondents to –
(a) Secure at defendants’ expense all clearances from the
appropriate government agencies that will enable defendants to
comply with their obligations under the Contract to Sell;
(b) Execute a Contract to Sell with terms agreed upon by the parties;
(c) Solidarily pay the plaintiffs the following amounts:
1. P5,000,000.00 in actual damages;
2. P1,500,000.00 in moral damages;
3. P500,000.00 in exemplary damages;
4. P250,000.00 in attorney’s fees.15

On July 5, 1996, respondent Fernandez filed her Answer to the complaint.16
She claimed that while the petitioners offered to buy the property during the
meeting of November 27, 1995, she did not accept the offer; thus, no verbal
contract to sell was ever perfected. She specifically alleged that the said
contract to sell was unenforceable for failure to comply with the statute of
frauds. She also maintained that even assuming arguendo that she had,
indeed, made a commitment or promise to sell the property to the petitioners,
the same was not binding upon her in the absence of any consideration
distinct and separate from the price. She, thus, prayed that judgment be
rendered as follows:
1. Dismissing the Complaint, with costs against the plaintiffs;
2. On the COUNTERCLAIM, ordering plaintiffs to pay defendant
moral damages in the amount of not less than P2,000,000.00 and
exemplary damages in the amount of not less than P500,000.00 and
attorney’s fees and reimbursement expenses of litigation in the
amount of P300,000.00.17
On September 24, 1997, the trial court, upon motion of the petitioners,
declared the other respondents in default for failure to file their responsive
pleading within the reglementary period.18 At the pre-trial conference held on
March 2, 1998, the parties agreed that the following issues were to be
resolved by the trial court: (1) whether or not there was a perfected contract
to sell; (2) in the event that there was, indeed, a perfected contract to sell,
whether or not the respondents breached the said contract to sell; and (3) the
corollary issue of damages.19
Respondent Fernandez testified that she requested Lourdes Alimario to look
for a buyer of the properties in San Pablo City "on a best offer basis." She
was later informed by Alimario that the petitioners were interested to buy the
properties. On November 27, 1995, along with Alimario and another person,
she met with the petitioners in the latter’s office and told them that she was at
the conference merely to hear their offer, that she could not bind the owners
of the properties as she had no written authority to sell the same. The
petitioners offered to buy the property at P150 per square meter. After the
meeting, respondent Fernandez requested Joy Marquez to secure a
barangay clearance stating that the property was free of any tenants. She
was surprised to learn that the clearance could not be secured. She
contacted a cousin of hers, also one of the owners of the property, and
informed him that there was a prospective buyer of the property but that
there were tenants thereon. Her cousin told her that he was not selling his
share of the property and that he was not agreeable to the price of P150 per
C I V P R O I V C i v i l P r o c e d u r e P a g e | 81
square meter. She no longer informed the other owners of the petitioners’
offer. Respondent Fernandez then asked Alimario to apprise the petitioners
of the foregoing developments, through their agent, Agapito Fisico. She was
surprised to receive a letter from the petitioners dated January 5, 1996.
Nonetheless, she informed the petitioners that she had changed her mind in
pursuing the negotiations in a Letter dated January 18, 1996. When she
received petitioners’ February 1, 1996 Letter, she sent a Reply-Letter dated
February 14, 1996.
After trial on the merits, the trial court rendered judgment in favor of the
petitioners on June 23, 1999,20 the dispositive portion of which reads:
WHEREFORE, in view of the foregoing, the Court hereby renders
judgment in favor of plaintiffs ANTONIO K. LITONJUA and AURELIO
K. LITONJUA and against defendants MARY MEDIATRIX T.
FERNANDEZ, HEIRS OF PAZ TICZON ELEOSIDA, represented by
GREGORIO T. ELEOSIDA, JOHN DOES and JANE DOES; HEIRS
OF DOMINGO B. TICZON, represented by MARY MEDIATRIX T.
FERNANDEZ, CRISTETA TICZON, EVANGELINE JILL R. TICZON,
ERLINDA T. BENITEZ, DOMINIC TICZON, JOSEFINA LUISA
PIAMONTE, JOHN DOES and JANE DOES, ordering defendants to:
1. execute a Contract of Sale and/or Absolute Deed of Sale
with the terms agreed upon by the parties and to secure all
clearances from the concerned government agencies and
removal of any tenants from the subject property at their
expense to enable defendants to comply with their
obligations under the perfected agreement to sell; and
2. pay to plaintiffs the sum of Two Hundred Thousand
(P200,000.00) Pesos as and by way of attorney’s fees.21
On appeal to the Court of Appeals, the respondents ascribed the following
errors to the court a quo:
I. THE LOWER COURT ERRED IN HOLDING THAT THERE WAS A
PERFECTED CONTRACT OF SALE OF THE TWO LOTS ON
NOVEMBER 27, 1995.
II. THE LOWER COURT ERRED IN NOT HOLDING THAT THE
VERBAL CONTRACT OF SALE AS CLAIMED BY PLAINTIFFS-
APPELLEES ANTONIO LITONJUA AND AURELIO LITONJUA WAS
UNENFORCEABLE.

III. THE LOWER COURT ERRED IN HOLDING THAT THE LETTER
OF DEFENDANT-APPELLANT FERNANDEZ DATED JANUARY 16,
1996 WAS A CONFIRMATION OF THE PERFECTED SALE AND
CONSTITUTED AS WRITTEN EVIDENCE THEREOF.
IV. THE LOWER COURT ERRED IN NOT HOLDING THAT A
SPECIAL POWER OF ATTORNEY WAS REQUIRED IN ORDER
THAT DEFENDANT-APPELLANT FERNANDEZ COULD
NEGOTIATE THE SALE ON BEHALF OF THE OTHER
REGISTERED CO-OWNERS OF THE TWO LOTS.
V. THE LOWER COURT ERRED IN AWARDING ATTORNEY’S
FEES IN THE DISPOSITIVE PORTION OF THE DECISION
WITHOUT STATING THE BASIS IN THE TEXT OF SAID
DECISION.22
On February 28, 2001, the appellate court promulgated its decision reversing
and setting aside the judgment of the trial court and dismissing the
petitioners’ complaint, as well as the respondents’ counterclaim.23 The
appellate court ruled that the petitioners failed to prove that a sale or a
contract to sell over the property between the petitioners and the private
respondent had been perfected.
Hence, the instant petition for review on certiorari under Rule 45 of the
Revised Rules of Court.
The petitioners submit the following issues for the Court’s resolution:
A. WHETHER OR NOT THERE WAS A PERFECTED CONTRACT
OF SALE BETWEEN THE PARTIES.
B. WHETHER OR NOT THE CONTRACT FALLS UNDER THE
COVERAGE OF THE STATUTE OF FRAUDS.
C. WHETHER OR NOT THE DEFENDANTS DECLARED IN
DEFAULT ARE BENEFITED BY THE ASSAILED DECISION OF
THE COURT OF APPEALS.24
The petition has no merit.
The general rule is that the Court’s jurisdiction under Rule 45 of the Rules of
Court is limited to the review of errors of law committed by the appellate
C I V P R O I V C i v i l P r o c e d u r e P a g e | 82
court. As the findings of fact of the appellate court are deemed continued,
this Court is not duty-bound to analyze and calibrate all over again the
evidence adduced by the parties in the court a quo.25 This rule, however, is
not without exceptions, such as where the factual findings of the Court of
Appeals and the trial court are conflicting or contradictory.26 Indeed, in this
case, the findings of the trial court and its conclusion based on the said
findings contradict those of the appellate court. However, upon careful review
of the records of this case, we find no justification to grant the petition. We,
thus, affirm the decision of the appellate court.
On the first and second assignment of errors, the petitioners assert that there
was a perfected contract of sale between the petitioners as buyers and the
respondents-owners, through respondent Fernandez, as sellers. The
petitioners contend that the perfection of the said contract is evidenced by
the January 16, 1996 Letter of respondent Fernandez.27 The pertinent
portions of the said letter are as follows:
… [M]y cousin and I have thereby changed our mind and that the
sale will no longer push through. I specifically instructed her to
inform you thru your broker that we will not be attending the meeting
to be held sometime first week of December.
In view thereof, I regret to formally inform you now that we are no
longer selling the property until all problems are fully settled. We
have not demanded and received from you any earnest money,
thereby, no obligations exist…28
The petitioners argue that the letter is a sufficient note or memorandum of
the perfected contract, thus, removing it from the coverage of the statute of
frauds. The letter specifically makes reference to a sale which respondent
Fernandez agreed to initially, but which the latter withdrew because of the
emergence of some people who claimed to be tenants on both parcels of
land. According to the petitioners, the respondents-owners, in their answer to
the complaint, as well as respondent Fernandez when she testified, admitted
the authenticity and due execution of the said letter. Besides, when the
petitioner Antonio Litonjua testified on the contract of sale entered into
between themselves and the respondents-owners, the latter did not object
thereto. Consequently, the respondents-owners thereby ratified the said
contract of sale. The petitioners thus contend that the appellate court’s
declaration that there was no perfected contract of sale between the
petitioners and the respondents-owners is belied by the evidence, the
pleadings of the parties, and the law.

The petitioners’ contention is bereft of merit. In its decision, the appellate
court ruled that the Letter of respondent Fernandez dated January 16, 1996
is hardly the note or memorandum contemplated under Article 1403(2)(e) of
the New Civil Code, which reads:
Art. 1403. The following contracts are unenforceable, unless they are
ratified:
…
(2) Those that do not comply with the Statute of Frauds as set forth
in this number. In the following cases an agreement hereafter made
shall be unenforceable by action, unless the same, or some note or
memorandum thereof, be in writing, and subscribed by the party
charged, or by his agent; evidence, therefore, of the agreement
cannot be received without the writing, or secondary evidence of its
contents:
… contracts to be in writing. The statute does not deprive the parties of the right
(e) An agreement for the leasing for a longer period than one
year, or for the sale of real property or of an interest
therein.29
The appellate court based its ruling on the following disquisitions:
In the case at bar, the letter dated January 16, 1996 of defendant-
appellant can hardly be said to constitute the note or memorandum
evidencing the agreement of the parties to enter into a contract of
sale as it is very clear that defendant-appellant as seller did not
accept the condition that she will be the one to pay the registration
fees and miscellaneous expenses and therein also categorically
denied she had already committed to execute the deed of sale as
claimed by the plaintiffs-appellees. The letter, in fact, stated the
reasons beyond the control of the defendant-appellant, why the sale
could no longer push through – because of the problem with tenants.
The trial court zeroed in on the statement of the defendant-appellant
that she and her cousin changed their minds, thereby concluding that
defendant-appellant had unilaterally cancelled the sale or backed out
of her previous commitment. However, the tenor of the letter actually
reveals a consistent denial that there was any such commitment on
the part of defendant-appellant to sell the subject lands to plaintiffs-
appellees. When defendant-appellant used the words "changed our
C I V P R O I V C i v i l P r o c e d u r e P a g e | 83
mind," she was clearly referring to the decision to sell the property at
all (not necessarily to plaintiffs-appellees) and not in selling the
property to herein plaintiffs-appellees as defendant-appellant had not
yet made the final decision to sell the property to said plaintiffs-
appellees. This conclusion is buttressed by the last paragraph of the
subject letter stating that "we are no longer selling the property until
all problems are fully settled." To read a definite previous agreement
for the sale of the property in favor of plaintiffs-appellees into the
contents of this letter is to unduly restrict the freedom of the
contracting parties to negotiate and prejudice the right of every
property owner to secure the best possible offer and terms in such
sale transactions. We believe, therefore, that the trial court
committed a reversible error in finding that there was a perfected
contract of sale or contract to sell under the foregoing circumstances.
Hence, the defendant-appellant may not be held liable in this action
for specific performance with damages.30
In Rosencor Development Corporation vs. Court of Appeals,31 the term
"statute of frauds" is descriptive of statutes which require certain classes of
to contract with respect to the matters therein involved, but merely regulates
the formalities of the contract necessary to render it enforceable. The
purpose of the statute is to prevent fraud and perjury in the enforcement of
obligations, depending for their existence on the unassisted memory of
witnesses, by requiring certain enumerated contracts and transactions to be
evidenced by a writing signed by the party to be charged. The statute is
satisfied or, as it is often stated, a contract or bargain is taken within the
statute by making and executing a note or memorandum of the contract
which is sufficient to state the requirements of the statute.32 The application
of such statute presupposes the existence of a perfected contract. However,
for a note or memorandum to satisfy the statute, it must be complete in itself
and cannot rest partly in writing and partly in parol. The note or memorandum
must contain the names of the parties, the terms and conditions of the
contract and a description of the property sufficient to render it capable of
identification.33 Such note or memorandum must contain the essential
elements of the contract expressed with certainty that may be ascertained
from the note or memorandum itself, or some other writing to which it refers
or within which it is connected, without resorting to parol evidence.34 To be
binding on the persons to be charged, such note or memorandum must be
signed by the said party or by his agent duly authorized in writing.35
In City of Cebu v. Heirs of Rubi,36 we held that the exchange of written
correspondence between the parties may constitute sufficient writing to
evidence the agreement for purposes of complying with the statute of frauds.

In this case, we agree with the findings of the appellate court that there was
no perfected contract of sale between the respondents-owners, as sellers,
and the petitioners, as buyers.
There is no documentary evidence on record that the respondents-owners
specifically authorized respondent Fernandez to sell their properties to
another, including the petitioners. Article 1878 of the New Civil Code
provides that a special power of attorney is necessary to enter into any
contract by which the ownership of an immovable is transmitted or acquired
either gratuitously or for a valuable consideration,37 or to create or convey
real rights over immovable property,38 or for any other act of strict
dominion.39 Any sale of real property by one purporting to be the agent of
the registered owner without any authority therefor in writing from the said
owner is null and void.40 The declarations of the agent alone are generally
insufficient to establish the fact or extent of her authority.41 In this case, the
only evidence adduced by the petitioners to prove that respondent
Fernandez was authorized by the respondents-owners is the testimony of
petitioner Antonio Litonjua that respondent Fernandez openly represented
herself to be the representative of the respondents-owners,42 and that she
promised to present to the petitioners on December 8, 1996 a written
authority to sell the properties.43 However, the petitioners’ claim was belied
by respondent Fernandez when she testified, thus:
Q Madam Witness, what else did you tell to the plaintiffs?
A I told them that I was there representing myself as one of the
owners of the properties, and I was just there to listen to his proposal
because that time, we were just looking for the best offer and I did
not have yet any written authorities from my brother and sisters and
relatives. I cannot agree on anything yet since it is just a preliminary
meeting, and so, I have to secure authorities and relate the matters
to my relatives, brother and sisters, sir.
Q And what else was taken up?
A Mr. Antonio Litonjua told me that they will be leaving for another
country and he requested me to come back on the first week of
December and in the meantime, I should make an assurance that
there are no tenants in our properties, sir.44
The petitioners cannot feign ignorance of respondent Fernandez’ lack of
authority to sell the properties for the respondents-owners. It must be
stressed that the petitioners are noted businessmen who ought to be very
C I V P R O I V C i v i l P r o c e d u r e P a g e | 84
familiar with the intricacies of business transactions, such as the sale of real
property.
The settled rule is that persons dealing with an assumed agent are bound at
their peril, and if they would hold the principal liable, to ascertain not only the
fact of agency but also the nature and extent of authority, and in case either
is controverted, the burden of proof is upon them to prove it.45 In this case,
respondent Fernandez specifically denied that she was authorized by the
respondents-owners to sell the properties, both in her answer to the
complaint and when she testified. The Letter dated January 16, 1996 relied
upon by the petitioners was signed by respondent Fernandez alone, without
any authority from the respondents-owners. There is no evidence on record
that the respondents-owners ratified all the actuations of respondent
Fernandez in connection with her dealings with the petitioners. As such, said
letter is not binding on the respondents as owners of the subject properties.
Contrary to the petitioners’ contention, the letter of January 16, 199646 is not
a note or memorandum within the context of Article 1403(2) because it does
not contain the following: (a) all the essential terms and conditions of the sale
of the properties; (b) an accurate description of the property subject of the
sale; and, (c) the names of the respondents-owners of the properties.
Furthermore, the letter made reference to only one property, that covered by
TCT No. T-36755.
We note that the petitioners themselves were uncertain as to the specific
area of the properties they were seeking to buy. In their complaint, they
alleged to have agreed to buy from the respondents-owners 33,990 square
meters of the total acreage of the two lots consisting of 36,742 square
meters. In their Letter to respondent Fernandez dated January 5, 1996, the
petitioners stated that they agreed to buy the two lots, with a total area of
36,742 square meters.47 However, in their Letter dated February 1, 1996,
the petitioners declared that they agreed to buy a portion of the properties
consisting of 33,990 square meters.48 When he testified, petitioner Antonio
Litonjua declared that the petitioners agreed to buy from the respondents-
owners 36,742 square meters at P150 per square meter or for the total price
of P5,098,500.49
The failure of respondent Fernandez to object to parol evidence to prove (a)
the essential terms and conditions of the contract asserted by the petitioners
and, (b) her authority to sell the properties for the respondents-registered
owners did not and should not prejudice the respondents-owners who had
been declared in default.50
 C I V P R O I V C i v i l P r o c e d u r e P a g e | 85

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The decision

of the appellate court is AFFIRMED IN TOTO. Costs against the petitioners.

SO ORDERED.

Puno, (Chairman), Quisumbing, Austria-Martinez, and Tinga, JJ., concur.


G.R. No. 150888 September 24, 2004
TRAVERSE DEVELOPMENT CORPORATION, petitioner,
vs.
DEVELOPMENT BANK OF THE PHILIPPINES, respondent.
Remedial Law; Appeals; Court of Appeals has no jurisdiction over appeals
from the decision of the Regional Trial Court rendered in the exercise of its
original jurisdiction in cases wherein the issues raised are purely legal;
Remedy of the aggrieved party is to appeal the decision via a petition for review
on certiorari to the Supreme Court under Rule 45 of the Rules of Court.—Under
Batas Pambansa Blg. 129, as amended, the Court of Appeals has exclusive
appellate jurisdiction over decisions of the Regional Trial Courts in the exercise
of its original jurisdiction. Under Rule 41, Section 2 of the Rules of Court, as
amended, the aggrieved party may appeal from the said decision by filing a
notice of appeal and paying the requisite docket fees therefor within fifteen
days from notice of said decision. However, the Court of Appeals has no
jurisdiction over appeals from the decision of the Regional Trial Court rendered
in the exercise of its original jurisdiction in cases wherein the issues raised are
purely legal. In such a case, the remedy of the aggrieved party is to appeal the
decision via a petition for review on certiorari in this Court under Rule 45 of the
Rules of Court.
Same; Same; Distinction between a question of law and a question of fact.—
It has been held in a number of cases that there is a “question of law” when
the doubt or difference arises as to what the law is on certain state of facts,
and which does not call for an examination of the probative value of the
evidence presented by the parties-litigants. On the other hand, there is a
“question of fact” when the doubt or controversy arises as to the truth or falsity
of the alleged facts. Simply put, when there is no dispute as to fact, the
question of whether or not the conclusion drawn therefrom is correct, is a
question of law.
PETITION for review on certiorari of the decision and resolution of the Court
of Appeals.
The facts are stated in the opinion of the Court.
Jesus Concepcion for petitioner.
C I V P R O I V C i v i l P r o c e d u r e P a g e | 86
DECISION
CALLEJO, SR., J.:
Before us is a petition for review on certiorari assailing the Decision1 of the
Court of Appeals dismissing the petitioner’s appeal in CA-G.R. CV No. 43157
for lack of jurisdiction and the Resolution denying the motion for
reconsideration thereof.
On July 21, 1980, the respondent, Development Bank of the Philippines
(DBP), granted a loan of ₱910,000.00 to the petitioner, Traverse
Development Corporation, for the construction of a three-storey commercial
building on its property located in Tarlac (now Tarlac City), with an area of
698 square meters covered by TCT No. 154736. The loan was payable in
fifteen (15) years, or until June 30, 1996. To secure the payment thereof, the
petitioner executed a real estate mortgage over a portion of said property,
consisting of 349 square meters. The contract of mortgage was annotated at
the dorsal portion of TCT No. 154736 as Entry No. E-20-10483.2
Under the real estate mortgage, the petitioner was required to secure an
insurance policy covering the building against fire and earthquake from an
acceptable insurance company and to endorse the corresponding
policy/policies to the respondent. The respondent was authorized to
foreclose the mortgage extrajudicially in case the petitioner defaulted on its
obligation.
The petitioner secured a fire insurance policy from the FGU Insurance
Corporation for ₱1,000,000, effective until May 7, 1982. However, before the
said date, the respondent required the petitioner to secure another fire
insurance policy, this time from the Central Surety and Insurance Company
(CSIC) also for ₱1,000,000. The petitioner did as directed and secured Fire
Insurance Policy No. TAR 1056 from CSIC covering the building for the
period of May 7, 1982 to May 7, 1983.3 Under the policy, the CSIC obliged
itself to pay, in case of loss or damage to the insured property, the amount of
such loss or damage to the respondent or as its interests may appear. 4
On August 9, 1982, the building was gutted by fire. The petitioner notified the
respondent, through a written notice, of the total loss of the building and, at
the same time, filed its claim with CSIC in the amount of ₱1,000,000 under
the insurance policy.
On November 6, 1982, the CSIC proposed a settlement of the petitioner’s
claim for ₱230,748.00. The petitioner rejected the offer and filed, on February

28, 1983, a complaint against the CSIC and the respondent in the Regional
Trial Court (RTC) of Quezon City. The case was docketed as Civil Case No.
Q-37497.
The petitioner alleged that, despite its demands, the CSIC refused to pay the
amount of ₱1,000,000 which was the amount of the insurance plus interests,
and that because of such delay, it failed to pay its loan to the respondent and
to collect rentals from its prospective lessees on the building. The respondent
failed to convince the CSIC to pay the said amount.
The petitioner prayed that it be granted the following reliefs:
WHEREFORE, after hearing, it is most respectfully prayed that
judgment be rendered by this Honorable Court in favor of the plaintiff
and against the defendants as follows:
1. Sentencing the defendants, jointly and severally, to pay to
the plaintiff the amount of ₱1,000,000.00, the amount for
which Fire Insurance Company Policy No. TAR 1056 was
issued plus interest thereon at the legal rate computed thirty
(30) days after defendants received proof of loss;
2. Sentencing defendants, jointly and severally, to pay to
plaintiff actual and compensatory damages in an amount of
not less than ₱275,000.00, more or less;
3. Sentencing defendants, jointly and severally, to pay to the
plaintiff, rentals which it failed to receive from the premises
due to the unjustifiable delay of the defendants in the
settlement of plaintiff’s claim;
4. Sentencing defendants, jointly and severally, to pay to
plaintiff the interest and penalty charged to plaintiff’s loan
account with the Development Bank of the Philippines due to
the unjustifiable delay of defendants in the settlement of
plaintiff’s claim;
5. Sentencing defendant SURETY to pay to plaintiff nominal
damages in an amount of not less than ₱100,000.00, more
or less;
C I V P R O I V C i v i l P r o c e d u r e P a g e | 87
6. Sentencing defendant SURETY to pay to plaintiff
exemplary damages in an amount of not less than
₱100,000.00, more or less;
7. Sentencing defendants, jointly and severally, to pay to
plaintiff the amount of ₱50,000.00 by way of attorney’s fees
and expenses of litigation;
8. Sentencing defendants, jointly and severally, to pay the
costs of suit.
Plaintiff prays for such other and further reliefs as may be just and
equitable in the premises.5
However, the RTC did not issue any temporary restraining order.
During the pendency of Civil Case No. Q-37497, the respondent foreclosed
the real estate mortgage upon the petitioner’s default in the payment of its
obligation under the said contract. The respondent was the highest bidder at
the sale at public auction, with the bid price of ₱540,050.00. A certificate of
sale was issued in its favor on May 30, 1990 and was annotated at the dorsal
portion of TCT No. 154736.6 The respondent consolidated its title to the
property in due course.
On May 28, 1991, the petitioner filed a complaint against the respondent in
the RTC of Tarlac, for the annulment of the extrajudicial foreclosure sale and
damages; and for the issuance of a writ of preliminary injunction and
temporary restraining order, to enjoin the defendant from selling the property.
The case was docketed as Civil Case No. 74327 which was raffled to Branch
63, Tarlac, Tarlac.
As its first cause of action, the petitioner alleged, inter alia, that the
foreclosure of the real estate mortgage of the entire property, as well as the
sale thereof at public auction to the respondent, was null and void because
only 349 square meters of the entire property, or one-half (1/2) of the eastern
portion thereof, was mortgaged to the respondent. The petitioner alleged that
its failure to pay its loan was due to the fire that gutted its building, a
fortuitous event under Article 1174 of the New Civil Code; as such, it was
excused from paying its loan. The petitioner also alleged that were it not for
the delay of the payment of its insurance claim from the CSIC, an insurance
company chosen by the respondent, it would have been able to pay its loan,
as provided in the real estate mortgage.

On its second cause of action, the petitioner alleged that the respondent
proceeded with the extrajudicial foreclosure of the mortgage and the sale of
its property at public auction despite the pendency of Civil Case No. Q-
37497.
The petitioner prayed that it be granted the following reliefs:
WHEREFORE, it is respectfully prayed that –
(1) immediately upon the filing of this Complaint, a temporary
restraining order be issued ex parte and, after notice and
hearing, a writ of preliminary injunction, enjoining defendants
from consolidating ownership over the foreclosed properties
or issuing new transfer certificate of title;
(2) after trial, judgment be rendered in favor of plaintiff and
against defendants –
[a] on the First Cause of Action, annulling the
foreclosure sale and enjoining defendants from
consolidating ownership over the foreclosed
properties or issuing new transfer certificate of title
thereto;
[b] on the Second Cause of Action, ordering
defendants to pay plaintiff, jointly and severally –
moral damages in the amount of ₱200,000.00;
attorney’s fees and expenses of litigation in the sum of ₱100,000.00;
Exemplary or corrective damages of ₱100,000.00; and
the costs of suit.
Plaintiff prays for such other reliefs as this Court may deem just and
equitable in the premises.8
Since the RTC did not issue a writ of preliminary injunction, the respondent
consolidated its title on August 21, 1991 over the foreclosed property and
was placed in possession thereof.
C I V P R O I V C i v i l P r o c e d u r e P a g e | 88
Almost two (2) years thereafter, or on July 7, 1993, the petitioner filed
another complaint in the RTC of Tarlac against DBP for annulment of
extrajudicial foreclosure proceedings, reconveyance of title, cancellation of
writ of possession, damages and preliminary injunction with prayer for a
restraining order. The verification in the complaint was signed by Angel
Tadeo Q. Roxas. The case was docketed as Civil Case No. 7885 9 and raffled
to Branch 63 of the court.
The petitioner alleged, inter alia, that, despite the respondent’s interference
in the procurement of a fire insurance policy over the still-to-be constructed
building, and the fact that the respondent was entitled to the proceeds of the
insurance policy under the real estate mortgage and fire insurance policy in
the amount of ₱1,000,000.00, the said respondent still proceeded with the
extrajudicial foreclosure of the real estate mortgage; the respondent failed to
give notice to the petitioner relative to its agreement with the respondent to
await the outcome of Civil Case No. Q-37497 and Civil Case No. 7432 before
the latter consolidated its title over the property and took possession thereof;
the petitioner was no longer obliged to pay its loan to the respondent
because of the total loss of the building; the petitioner’s failure to pay its loan
was due to the delay in the payment of the amount of ₱1,000,000 in
insurance policy by the CSIC; since it was the respondent which impelled the
petitioner to procure the said policy, the petitioner should not be faulted for
failure to pay its loan. The petitioner prayed for judgment, thus:
WHEREFORE, it is respectfully prayed that a restraining order be
immediately issued by this Honorable Court prohibiting or restraining
the defendant or any other persons acting in its behalf from
proceeding with the sale of plaintiffs’ (sic) properties to third parties,
either through public bidding or through negotiated sale.
And after due hearing, judgment be rendered:
a) Making the restraining order and/or preliminary injunction
permanent and declare the extra-judicial foreclosure as null
and void;
b) Ordering defendant to reconvey to plaintiff the title to the
foreclosed properties;
c) Declaring the Writ of Possession issued thereon as
cancelled and ordering defendant to return and surrender
possession of the premises it seized to the plaintiff;
 C I V P R O I V C i v i l P r o c e d u r e P a g e | 89

d) Ordering defendant to pay the plaintiff moral damages in The petitioner appealed the decision to the Court of Appeals in which it
an amount not less than ₱500,000.00 and exemplary asserted the following:
damages in the sum of ₱100,000.00;
I
e) Ordering defendant to pay attorney’s fees and expenses
of litigation in the amount of ₱100,000.00; and THE LOWER COURT ERRED IN DISMISSING THE COMPLAINT
BECAUSE OF LITIS PENDENTIA.
f) to pay the cost of suit.
II
PLAINTIFF FURTHER PRAYS for such other reliefs this Honorable
Court may deem just and equitable in the premises.10 THE LOWER COURT ERRED IN HOLDING THAT THE PLAINTIFF
IS GUILTY OF FORUM SHOPPING UNDER THE CONCLUSION
The case was raffled to Branch 63 of the court. On July 15, 1993, the THAT CIVIL CASE NO. 7432 AND CIVIL CASE NO. 7885 ARE
respondent filed an Omnibus Motion11 in Civil Case No. 7885 for the BASED ON THE SAME ALLEGATIONS OF FACTS INVOLVING
dismissal of the case on the grounds of litis pendentia and forum shopping THE SAME ISSUE, THE SAME TRANSACTION AND ARE
and to cite Angel Tadeo Q. Roxas and the petitioner’s counsel, Atty. Jesus A. BETWEEN THE SAME PARTIES.
Concepcion, in contempt of court. The respondent asserted that Civil Case
No. 7885 was a duplication of Civil Case No. 7432 pending before the same III
branch of the RTC, with the same parties, the same issues and the same
reliefs being prayed for by the petitioner. The respondent cited Section 1(e),
THE LOWER COURT ERRED IN NOT ORDERING THE
Rule 16 of the 1985 Rules of Court, as its ground for its motion to dismiss
CONSOLIDATION OF CIVIL CASE NO. 7432 WITH CIVIL CASE
Civil Case No. 7885. It asserted that Angel Tadeo Roxas, the petitioner and
NO. 7885.13
its counsel, were guilty of indirect contempt and should be sanctioned for
abusing the processes of the courts, citing the ruling of this Court in Minister
of Natural Resources vs. Heirs of Orval Hughes.12 On July 27, 2001, the Court of Appeals rendered judgment dismissing the
appeal for lack of jurisdiction, ruling that the remedy of the petitioner from the
trial court’s order dismissing Civil Case No. 7885 was to file a petition for
The respondent opposed the motion asserting that the reliefs prayed for by it
review on certiorari under Rule 45 of the Rules of Court, the sole issue raised
in the two cases are different. It contended that in Civil Case No. 7432, it by it on appeal being purely legal and not factual.
sought the nullification of the extrajudicial foreclosure of the mortgage and
the sale of the mortgaged property at public auction and prayed for an
injunctive relief to enjoin the respondent from consolidating its title over the The petitioner now comes to this Court, asserting that:
property; on the other hand, in Civil Case No. 7885, it sought to enjoin the
respondent from selling the property to third parties, and the nullification of 1. The appeal below raises not only questions of law but also
the extrajudicial foreclosure of the mortgage, including the sale at public questions of fact that may very well be looked into.14
auction of the mortgaged property on account of the respondent’s violations
of the real estate mortgage provisions, and to cancel the writ of possession in 2. Contrary to the ruling of the lower court, the appeal below is the
its favor. The petitioner contended that the decision of the RTC in Civil Case "correct mode" of appeal.15
No. 7432 was not a bar to its action in Civil Case No. 7885 and that Roxas
and his counsel were not liable for contempt of court. 3. Because Civil Case No. 7885 is merely a continuation of Civil
Case No. 7432, consolidation, not dismissal, is the proper remedy. 16
On August 20, 1993, the trial court issued an Order granting the respondent’s
motion to dismiss the case, but denied its motion to cite Roxas, the petitioner
and its counsel for contempt of court.
 C I V P R O I V C i v i l P r o c e d u r e P a g e | 90

The issue for resolution is whether or not the Court of Appeals erred in the issues raised were purely legal or factual, and whether it had jurisdiction
dismissing the petitioner’s appeal on the ground that it had no jurisdiction over the petitioner’s appeal or not.
over the same. The resolution of the issue is, in turn, anchored on the
determination of whether the petitioner raised purely legal issues in the IN LIGHT OF ALL THE FOREGOING, the petition is DENIED DUE
appellate court. COURSE. The assailed Decision of the Court of Appeals is AFFIRMED.
Costs against the petitioner.
The petition has no merit.
SO ORDERED.
Under Batas Pambansa Blg. 129, as amended, the Court of Appeals has
exclusive appellate jurisdiction over decisions of the Regional Trial Courts in
the exercise of its original jurisdiction. Under Rule 41, Section 2 of the Rules
of Court, as amended, the aggrieved party may appeal from the said decision
by filing a notice of appeal and paying the requisite docket fees therefor
within fifteen days from notice of said decision. However, the Court of
Appeals has no jurisdiction over appeals from the decision of the Regional
Trial Court rendered in the exercise of its original jurisdiction in cases
wherein the issues raised are purely legal.17 In such a case, the remedy of
the aggrieved party is to appeal the decision via a petition for review on
certiorari in this Court under Rule 45 of the Rules of Court.

It has been held in a number of cases18 that there is a "question of law" when
the doubt or difference arises as to what the law is on certain state of facts,
and which does not call for an examination of the probative value of the
evidence presented by the parties-litigants. On the other hand, there is a
"question of fact" when the doubt or controversy arises as to the truth or
falsity of the alleged facts. Simply put, when there is no dispute as to fact, the
question of whether or not the conclusion drawn therefrom is correct, is a
question of law.19

We agree with the Court of Appeals that only legal issues were raised by the
petitioner in its appeal: (a) whether its action in Civil Case No. 7885 which
was raffled to Branch 63 of the court is barred by the pendency of Civil Case
No. 7432, also pending in the same court and, if so, whether the petitioner is
guilty of forum shopping; (b) whether Roxas, a member of the petitioner’s
Board of Directors, who signed the verification of the complaint in Civil Case
No. 7885 and its counsel are guilty of forum shopping; and (c) whether the
trial court should have denied the consolidation of the proceedings in the two
cases considering that the same were raffled to the same court.

The petitioner appended to its brief a copy of its complaint in Civil Case No.
7432. The records of Civil Case No. 7885 were elevated to the Court of
Appeals. Thus, the Court of Appeals had the complaints in Civil Cases Nos.
7885 and 7432 before it for review in resolving the issue of whether or not

G.R. No. 129742 September 16, 1998
TERESITA G. FABIAN, petitioner,
vs.
HON. ANIANO A. DESIERTO, in his capacity as Ombudsman; HON.
JESUS F. GUERRERO, in his capacity as Deputy Ombudsman for
Luzon; and NESTOR V. AGUSTIN, respondents.
Ombudsman; Administrative Law; Public Officers; Appeals; Certiorari;
Pleadings and Practice; Ombudsman Act of 1989 (Republic Act No. 6770);
Section 27 of Republic Act No. 6770 is involved only whenever an appeal by
certiorari under Rule 45 is taken from a decision in an administrative
disciplinary action—it cannot be taken into account where an original action for
certiorari under Rule 65 is resorted to as a remedy for judicial review, such as
from an incident in a criminal action.—Considering, however, the view that this
Court now takes of the case at bar and the issues therein which will shortly be
explained, it refrains from preemptively resolving the controverted points
raised by the parties on the nature and propriety of application of the writ of
certiorari when used as a mode of appeal or as the basis of a special original
action, and whether or not they may be resorted to concurrently or
alternatively, obvious though the answers thereto appear to be. Besides, some
seemingly obiter statements in Yabut and Alba could bear reexamination and
clarification. Hence, we will merely observe and lay down the rule at this
juncture that Section 27 of Republic Act No. 6770 is involved only whenever
an appeal by certiorari under Rule 45 is taken from a decision in an
administrative disciplinary action. It cannot be taken into account where an
original action for certiorari under Rule 65 is resorted to as a remedy for judicial
review, such as from an incident in a criminal action.
Same; Same; Same; Civil Service Commission; The administrative liability of
a public official could fall under the jurisdiction of both the Civil Service
Commission and the Office of the Ombudsman.—After respondents’ separate
comments had been filed, the Court was intrigued by the fact, which does not
appear to have been seriously considered before, that the administrative
liability of a public official could fall under the jurisdiction of both the Civil
Service Commission and the Office of the Ombudsman. Thus, the offenses
imputed to herein private respondent were based on both Section 19 of
Republic Act No. 6770 and Section 36 of Presidential Decree No. 807. Yet,
pursuant to the amendment of Section 9, Batas Pambansa Blg. 129 by
Republic Act No. 7902, all adjudications by the Civil Service Commission in
administrative disciplinary cases were made appealable to the Court of
C I V P R O I V C i v i l P r o c e d u r e P a g e | 91
Appeals effective March 18, 1995, while those of the Office of the Ombudsman
are appealable to this Court.
Same; Same; Same; Constitutional Law; Courts; Judicial Review; Statutes;
When it is clear that a statute transgresses the authority vested in a legislative
body, it is the duty of the courts to declare that the constitution, and not the
statute, governs in a case before them for judgment.—Since the constitution
is intended for the observance of the judiciary and other departments of the
government and the judges are sworn to support its provisions, the courts are
not at liberty to overlook or disregard its commands or countenance evasions
thereof. When it is clear that a statute transgresses the authority vested in a
legislative body, it is the duty of the courts to declare that the constitution, and
not the statute, governs in a case before them for judgment.
Same; Same; Same; Same; Same; Same; Same; Jurisdiction; Pleadings and
Practice; While courts will not ordinarily pass upon constitutional questions
which are not raised in the pleadings, it does not preclude a court from inquiring
into its own jurisdiction or compel it to enter a judgment that it lacks
jurisdiction.—While courts will not ordinarily pass upon constitutional questions
which are not raised in the pleadings, the rule has been recognized to admit
of certain exceptions. It does not preclude a court from inquiring into its own
jurisdiction or compel it to enter a judgment that it lacks jurisdiction to enter. If
a statute on which a court’s jurisdiction in a proceeding depends is
unconstitutional, the court has no jurisdiction in the proceeding, and since it
may determine whether or not it has jurisdiction, it necessarily follows that it
may inquire into the constitutionality of the statute.
Same; Same; Same; Same; Same; Same; Same; Same; Same; Constitutional
questions, not raised in the regular and orderly procedure in the trial are
ordinarily rejected unless the jurisdiction of the court below or that of the
appellate court is involved in which case it may be raised at any time or on the
court’s own motion.—Constitutional questions, not raised in the regular and
orderly procedure in the trial are ordinarily rejected unless the jurisdiction of
the court below or that of the appellate court is involved in which case it may
be raised at any time or on the court’s own motion. The Court ex mero motu
may take cognizance of lack of jurisdiction at any point in the case where that
fact is developed. The court has a clearly recognized right to determine its own
jurisdiction in any proceeding.
Same; Same; Same; Same; Same; Same; Same; Same; Whenever the
legislature intends that the decisions or resolutions of the quasi-judicial agency
shall be reviewable by the Supreme Court or the Court of Appeals, a specific

provision to that effect is included in the law creating that quasi-judicial agency
and, for that matter, any special statutory court.—By jurisprudential
developments over the years, this Court has allowed appeals by certiorari
under Rule 45 in a substantial number of cases and instances even if questions
of fact are directly involved and have to be resolved by the appellate court.
Also, the very provision cited by petitioner specifies that the appellate
jurisdiction of this Court contemplated therein is to be exercised over “final
judgments and orders of lower courts,” that is, the courts composing the
integrated judicial system. It does not include the quasi-judicial bodies or
agencies, hence whenever the legislature intends that the decisions or
resolutions of the quasi-judicial agency shall be reviewable by the Supreme
Court or the Court of Appeals, a specific provision to that effect is included in
the law creating that quasi-judicial agency and, for that matter, any special
statutory court. No such provision on appellate procedure is required for the
regular courts of the integrated judicial system because they are what are
referred to and already provided for in Section 5, Article VIII of the Constitution.
Same; Same; Same; Same; Same; Same; Same; Same; Appeals from
judgments and final orders of quasi-judicial agencies are now required to be
brought to the Court of Appeals on a verified petition for review, under the
requirements and conditions in Rule 43 which was precisely formulated and
adopted to provide for a uniform rule of appellate procedure for quasi-judicial
agencies.—Under the present Rule 45, appeals may be brought through a
petition for review on certiorari but only from judgments and final orders of the
courts enumerated in Section 1 thereof. Appeals from judgments and final
orders of quasi-judicial agencies are now required to be brought to the Court
of Appeals on a verified petition for review, under the requirements and
conditions in Rule 43 which was precisely formulated and adopted to provide
for a uniform rule of appellate procedure for quasi-judicial agencies.
Same; Same; Same; Same; Same; Same; Same; The jurisdiction of a court is
not a question of acquiescence as a matter of fact but an issue of conferment
as a matter of law.—The submission that because this Court has taken
cognizance of cases involving Section 27 of Republic Act No. 6770, that fact
may be viewed as “acquiescence” or “acceptance” by it of the appellate
jurisdiction contemplated in said Section 27, is unfortunately too tenuous. The
jurisdiction of a court is not a question of acquiescence as a matter of fact but
an issue of conferment as a matter of law. Besides, we have already discussed
the cases referred to, including the inaccuracies of some statements therein,
and we have pointed out the instances when Rule 45 is involved, hence
covered by Section 27 of Republic Act No. 6770 now under discussion, and
when that provision would not apply if it is a judicial review under Rule 65.
C I V P R O I V C i v i l P r o c e d u r e P a g e | 92
Same; Same; Same; Same; Same; Same; Same; The Supreme Court can rule
on a constitutional question sua sponte when its appellate jurisdiction is
involved.—Private respondent invokes the rule that courts generally avoid
having to decide a constitutional question, especially when the case can be
decided on other grounds. As a general proposition that is correct. Here,
however, there is an actual case susceptible of judicial determination. Also,
the constitutional question, at the instance of this Court, was raised by the
proper parties, although there was even no need for that because the Court
can rule on the matter sua sponte when its appellate jurisdiction is involved.
The constitutional question was timely raised, although it could even be raised
any time likewise by reason of the jurisdictional issue confronting the Court.
Finally, the resolution of the constitutional issue here is obviously necessary
for the resolution of the present case.
Same; Same; Same; Same; Same; Same; Same; Republic Act 6770; Section
27 of Republic Act No. 6770 cannot validly authorize an appeal to the Supreme
Court from decisions of the Office of the Ombudsman in administrative
disciplinary cases—it consequently violates the proscription in Section 30,
Article VI of the Constitution against a law which increases the appellate
jurisdiction of the Supreme Court.—Taking all the foregoing circumstances in
their true legal roles and effects, therefore, Section 27 of Republic Act No.
6770 cannot validly authorize an appeal to this Court from decisions of the
Office of the Ombudsman in administrative disciplinary cases. It consequently
violates the proscription in Section 30, Article VI of the Constitution against a
law which increases the appellate jurisdiction of this Court. No countervailing
argument has been cogently presented to justify such disregard of the
constitutional prohibition which, as correctly explained in First Lepanto
Ceramics, Inc. vs. The Court of Appeals, et al. was intended to give this Court
a measure of control over cases placed under its appellate jurisdiction.
Otherwise, the indiscriminate enactment of legislation enlarging its appellate
jurisdiction would unnecessarily burden the Court.
Same; Same; Same; Same; Same; Same; Same; Pleadings and Practice;
Appeals from decisions of the Office of the Ombudsman in administrative
disciplinary cases should be taken to the Court of Appeals under the provisions
of Rule 43.—As a consequence of our ratiocination that Section 27 of Republic
Act No. 6770 should be struck down as unconstitutional, and in line with the
regulatory philosophy adopted in appeals from quasi-judicial agencies in the
1997 Revised Rules of Civil Procedure, appeals from decisions of the Office
of the Ombudsman in administrative disciplinary cases should be taken to the
Court of Appeals under the provisions of Rule 43.

Courts; Actions; Procedural Rules; It is admitted that what is procedural and
what is substantive is frequently a question of great difficulty.—It will be noted
that no definitive line can be drawn between those rules or statutes which are
procedural, hence within the scope of this Court’s rule-making power, and
those which are substantive. In fact, a particular rule may be procedural in one
context and substantive in another. It is admitted that what is procedural and
what is substantive is frequently a question of great difficulty. It is not, however,
an insurmountable problem if a rational and pragmatic approach is taken within
the context of our own procedural and jurisdictional system.
Same; Same; Same; Pleadings and Practice; Supreme Court; In determining
whether a rule prescribed by the Supreme Court, for the practice and
procedure of the lower courts, abridges, enlarges, or modifies any substantive
right, the test is whether the rule really regulates procedure, that is, the judicial
process for enforcing rights and duties recognized by substantive law and for
justly administering remedy and redress for a disregard or infraction of them.—
In determining whether a rule prescribed by the Supreme Court, for the
practice and procedure of the lower courts, abridges, enlarges, or modifies any
substantive right, the test is whether the rule really regulates procedure, that
is, the judicial process for enforcing rights and duties recognized by
substantive law and for justly administering remedy and redress for a disregard
or infraction of them. If the rule takes away a vested right, it is not procedural.
If the rule creates a right such as the right to appeal, it may be classified as a
substantive matter; but if it operates as a means of implementing an existing
right then the rule deals merely with procedure.
Same; Same; Same; Same; Ombudsman; A transfer by the Supreme Court,
in the exercise of its rule-making power, of pending cases involving a review
of decisions of the Office of the Ombudsman in administrative disciplinary
actions to the Court of Appeals which shall now be vested with exclusive
appellate jurisdiction thereover, relates to procedure only.—In the situation
under consideration, a transfer by the Supreme Court, in the exercise of its
rule-making power, of pending cases involving a review of decisions of the
Office of the Ombudsman in administrative disciplinary actions to the Court of
Appeals which shall now be vested with exclusive appellate jurisdiction
thereover, relates to procedure only. This is so because it is not the right to
appeal of an aggrieved party which is affected by the law. That right has been
preserved. Only the procedure by which the appeal is to be made or decided
has been changed. The rationale for this is that no litigant has a vested right
in a particular remedy, which may be changed by substitution without impairing
C I V P R O I V C i v i l P r o c e d u r e P a g e | 93
vested rights, hence he can have none in rules of procedure which relate to
the remedy.
Same; Same; Same; Same; It cannot be said that the transfer of appellate
jurisdiction to the Court of Appeals is an act of creating a new right of appeal
because such power of the Supreme Court to transfer appeals to subordinate
appellate courts is purely a procedural and not a substantive power.—It cannot
be said that the transfer of appellate jurisdiction to the Court of Appeals in this
case is an act of creating a new right of appeal because such power of the
Supreme Court to transfer appeals to subordinate appellate courts is purely a
procedural and not a substantive power. Neither can we consider such transfer
as impairing a vested right because the parties have still a remedy and still a
competent tribunal to administer that remedy.
PETITION for review on certiorari of a joint order of the Ombudsman and the
Deputy Ombudsman for Luzon.
The facts are stated in the opinion of the Court.
Estelito P. Mendoza and Virgilio C. Manguera for petitioner.
Benjamin C. Santos & Ofelia Calcetas-Santos Law Offices for private
respondent.
Amador C. Casino collaborating counsel for private respondent.
REGALADO, J.:
Petitioner has appealed to us by certiorari under Rule 45 of the Rules of
Court from the "Joint Order" issued by public respondents on June 18, 1997
in OMB-Adm. Case No. 0-95-0411 which granted the motion for
reconsideration of and absolved private respondent from administrative
charges for inter alia grave misconduct committed by him as then Assistant
Regional Director, Region IV-A, Department of Public Works and Highways
(DPWH).
I
It appears from the statement and counter-statement of facts of the parties
that petitioner Teresita G. Fabian was the major stockholder and president of
PROMAT Construction Development Corporation (PROMAT) which was
engaged in the construction business. Private respondent Nestor V. Agustin

was the incumbent District Engineer of the First Metro Manila Engineering
District (FMED) when he allegedly committed the offenses for which he was
administratively charged in the Office of the Ombudsman.
PROMAT participated in the bidding for government construction projects
including those under the FMED, and private respondent, reportedly taking
advantage of his official position, inveigled petitioner into an amorous
relationship. Their affair lasted for some time, in the course of which private
respondent gifted PROMAT with public works contracts and interceded for it
in problems concerning the same in his office.
Later, misunderstandings and unpleasant incidents developed between the
parties and when petitioner tried to terminate their relationship, private
respondent refused and resisted her attempts to do so to the extent of
employing acts of harassment, intimidation and threats. She eventually filed
the aforementioned administrative case against him in a letter-complaint
dated July 24, 1995.
The said complaint sought the dismissal of private respondent for violation of
Section 19, Republic Act No. 6770 (Ombudsman Act of 1989) and Section 36
of Presidential Decree No. 807 (Civil Service Decree), with an ancillary
prayer for his preventive suspension. For purposes of this case, the charges
referred to may be subsumed under the category of oppression, misconduct,
and disgraceful or immoral conduct.
On January 31, 1996, Graft Investigator Eduardo R. Benitez issued a
resolution finding private respondent guilty of grave misconduct and ordering
his dismissal from the service with forfeiture of all benefits under the law. His
resolution bore the approval of Director Napoleon Baldrias and Assistant
Ombudsman Abelardo Aportadera of their office.
Herein respondent Ombudsman, in an Order dated February 26, 1996,
approved the aforesaid resolution with modifications, by finding private
respondent guilty of misconduct and meting out the penalty of suspension
without pay for one year. After private respondent moved for reconsideration,
respondent Ombudsman discovered that the former's new counsel had been
his "classmate and close associate" hence he inhibited himself. The case
was transferred to respondent Deputy Ombudsman Jesus F. Guerrero who,
in the now challenged Joint Order of June 18, 1997, set aside the February
26, 1997 Order of respondent Ombudsman and exonerated private
respondent from the administrative charges.
II
C I V P R O I V C i v i l P r o c e d u r e P a g e | 94
In the present appeal, petitioner argues that Section 27 of Republic Act No.
6770 (Ombudsman Act of 1989) 1 pertinently provides that —
In all administrative disciplinary cases, orders, directives or
decisions of the Office of the Ombudsman may be appealed
to the Supreme Court by filing a petition for certiorari within
ten (10) days from receipt of the written notice of the order,
directive or decision or denial of the motion for
reconsideration in accordance with Rule 45 of the Rules of
Court (Emphasis supplied)
However, she points out that under Section 7, Rule III of Administrative Order
No. 07 (Rules of Procedure of the Office of the Ombudsman), 2 when a
respondent is absolved of the charges in an administrative proceeding the
decision of the Ombudsman is final and unappealable. She accordingly
submits that the Office of the Ombudsman has no authority under the law to
restrict, in the manner provided in its aforesaid Rules, the right of appeal
allowed by Republic Act No. 6770, nor to limit the power of review of this
Court. Because of the aforecited provision in those Rules of Procedure, she
claims that she found it "necessary to take an alternative recourse under
Rule 65 of the Rules of Court, because of the doubt it creates on the
availability of appeal under Rule 45 of the Rules of Court.
Respondents filed their respective comments and rejoined that the Office of
the Ombudsman is empowered by the Constitution and the law to
promulgate its own rules of procedure. Section 13(8), Article XI of the 1987
Constitution provides, among others, that the Office of the Ombudsman can
"(p)romulgate its rules of procedure and exercise such other powers or
perform such functions or duties as may be provided by law."
Republic Act No. 6770 duly implements the Constitutional mandate with
these relevant provisions:
Sec. 14. Restrictions. — . . . No court shall hear any appeal
or application for remedy against the decision or findings of
the Ombudsman except the Supreme Court on pure
questions of law.
xxx xxx xxx
Sec. 18. Rules of Procedure. — (1) The Office of the
Ombudsman shall promulgate its own rules of procedure for

the effective exercise or performance of its powers,
functions, and duties.
xxx xxx xxx
Sec. 23. Formal Investigation. — (1) Administrative
investigations by the Office of the Ombudsman shall be in
accordance with its rules of procedure and consistent with
due process. . . . .
xxx xxx xxx
Sec. 27. Effectivity and Finality of Decisions. — All
previsionary orders at the Office of the Ombudsman are
immediately effective and executory.
A motion for reconsideration of any order, directive or
decision of the Office of the Ombudsman must be filed within
five (5) days after receipt of written notice and shall be
entertained only on any of the following grounds:
xxx xxx xxx
Findings of fact by the Office of the Ombudsman when
supported by substantial evidence are conclusive. Any order,
directive or decision imposing the penalty of public censure
or reprimand, suspension of not more than one month salary
shall be final and unappealable.
In all administrative disciplinary cases, orders, directives or
decisions of the Office of the Ombudsman may be appealed
to the Supreme Court by filing a petition for certiorari within
ten (10) days from receipt of the written notice of the order,
directive or decision or denial of the motion for
reconsideration in accordance with Rule 45 of the Rules of
Court.
The above rules may be amended or modified by the Office
of the Ombudsman as the interest of justice may require.
Respondents consequently contend that, on the foregoing constitutional and
statutory authority, petitioner cannot assail the validity of the rules of
C I V P R O I V C i v i l P r o c e d u r e P a g e | 95
procedure formulated by the Office of the Ombudsman governing the
conduct of proceedings before it, including those rules with respect to the
availability or non-availability of appeal in administrative cases, such as
Section 7, Rule III of Administrative Order No. 07.
Respondents also question the propriety of petitioner's proposition that,
although she definitely prefaced her petition by categorizing the same as "an
appeal by certiorari under Rule 45 of the Rules of Court," she makes the
aforequoted ambivalent statement which in effect asks that, should the
remedy under Rule 45 be unavailable, her petition be treated in the
alternative as an original action for certiorari under Rule 65. The parties
thereafter engage in a discussion of the differences between a petition for
review on certiorari under Rule 45 and a special civil action of certiorari under
Rule 65.
Ultimately, they also attempt to review and rationalize the decisions of this
Court applying Section 27 of Republic Act. No. 6770 vis-a-vis Section 7, Rule
III of Administrative Order No. 07. As correctly pointed out by public
respondent, Ocampo IV vs. Ombudsman, et al.3 and Young vs. Office of the
Ombudsman, et al.4 were original actions for certiorari under Rule 65. Yabut
vs. Office of the Ombudsman, et al. 5 was commenced by a petition for
review on certiorari under Rule 45. Then came Cruz, Jr. vs. People, et al.,6
Olivas vs. Office of the Ombudsman, et al.,7 Olivarez vs. Sandiganbayan, et
al.,8 and Jao, et al. vs. Vasquez,9 which were for certiorari, prohibition and/or
mandamus under Rule 65. Alba vs. Nitorreda, et al. 10 was initiated by a
pleading unlikely denominated as an "Appeal/Petition for Certiorari and/or
Prohibition," with a prayer for ancillary remedies, and ultimately followed by
Constantino vs. Hon. Ombudsman Aniano Desierto, et al. 11 which was a
special civil action for certiorari.
Considering, however, the view that this Court now takes of the case at bar
and the issues therein which will shortly be explained, it refrains from
preemptively resolving the controverted points raised by the parties on the
nature and propriety of application of the writ of certiorari when used as a
mode of appeal or as the basis of a special original action, and whether or
not they may be resorted to concurrently or alternatively, obvious though the
answers thereto appear to be. Besides, some seemingly obiter statements in
Yabut and Alba could bear reexamination and clarification. Hence, we will
merely observe and lay down the rule at this juncture that Section 27 of
Republic Act No. 6770 is involved only whenever an appeal by certiorari
under Rule 45 is taken from a decision in an administrative disciplinary
action. It cannot be taken into account where an original action for certiorari

under Rule 65 is resorted to as a remedy for judicial review, such as from an
incident in a criminal action.
III
After respondents' separate comments had been filed, the Court was
intrigued by the fact, which does not appear to have been seriously
considered before, that the administrative liability of a public official could fall
under the jurisdiction of both the Civil Service Commission and the Office of
the Ombudsman. Thus, the offenses imputed to herein private respondent
were based on both Section 19 of Republic Act No. 6770 and Section 36 of
Presidential Decree No. 807. Yet, pursuant to the amendment of Section 9,
Batas Pambansa Blg. 129 by Republic Act No. 7902, all adjudications by the
Civil Service Commission in administrative disciplinary cases were made
appealable to the Court of Appeals effective March 18, 1995, while those of
the Office of the Ombudsman are appealable to this Court.
It could thus be possible that in the same administrative case involving two
respondents, the proceedings against one could eventually have been
elevated to the Court of Appeals, while the other may have found its way to
the Ombudsman from which it is sought to be brought to this Court. Yet
systematic and efficient case management would dictate the consolidation of
those cases in the Court of Appeals, both for expediency and to avoid
possible conflicting decisions.
Then there is the consideration that Section 30, Article VI of the 1987
Constitution provides that "(n)o law shall be passed increasing the appellate
jurisdiction of the Supreme Court as provided in this Constitution without its
advice and consent," and that Republic Act No. 6770, with its challenged
Section 27, took effect on November 17, 1989, obviously in spite of that
constitutional prohibition. The conventional rule, however, is that a challenge
on constitutional grounds must be raised by a party to the case, neither of
whom did so in this case, but that is not an inflexible rule, as we shall explain.
Since the constitution is intended for the observance of the judiciary and
other departments of the government and the judges are sworn to support its
provisions; the courts are not at liberty to overlook or disregard its commands
or countenance evasions thereof. When it is clear that a statute transgresses
the authority vested in a legislative body, it is the duty of the courts to declare
that the constitution, and not the statute, governs in a case before them for
judgment. 12
C I V P R O I V C i v i l P r o c e d u r e P a g e | 96
Thus, while courts will not ordinarily pass upon constitutional questions which
are not raised in the pleadings, 13 the rule has been recognized to admit of
certain exceptions. It does not preclude a court from inquiring into its own
jurisdiction or compel it to enter a judgment that it lacks jurisdiction to enter. If
a statute on which a court's jurisdiction in a proceeding depends is
unconstitutional, the court has no jurisdiction in the proceeding, and since it
may determine whether or not it has jurisdiction, it necessarily follows that it
may inquire into the constitutionality of the statute. 14
Constitutional questions, not raised in the regular and orderly procedure in
the trial are ordinarily rejected unless the jurisdiction of the court below or
that of the appellate court is involved in which case it may be raised at any
time or on the court's own motion. 15 The Court ex mero motu may take
cognizance of lack of jurisdiction at any point in the case where that fact is
developed. 16 The court has a clearly recognized right to determine its own
jurisdiction in any proceeding. 17
The foregoing authorities notwithstanding, the Court believed that the parties
hereto should be further heard on this constitutional question.
Correspondingly, the following resolution was issued on May 14, 1998, the
material parts stating as follows:
The Court observes that the present petition, from the very
allegations thereof, is "an appeal by certiorari under Rule 45
of the Rules of Court from the "Joint Order (Re: Motion for
Reconsideration)" issued in OMB-Adm. Case No. 0-95-0411,
entitled "Teresita G. Fabian vs. Engr. Nestor V. Agustin,
Asst. Regional Director, Region IV-A, EDSA, Quezon City,"
which absolved the latter from the administrative charges for
grave misconduct, among others.
It is further averred therein that the present appeal to this
Court is allowed under Section 27 of the Ombudsman Act of
1987 (R.A. No. 6770) and, pursuant thereto, the Office of the
Ombudsman issued its Rules of Procedure, Section 7
whereof is assailed by petitioner in this proceeding. It will be
recalled that R.A. No. 6770 was enacted on November 17,
1989, with Section 27 thereof pertinently providing that all
administrative disciplinary cases, orders, directives or
decisions of the Office of the Ombudsman may be appealed
to this Court in accordance with Rule 45 of the Rules of
Court.

The Court notes, however, that neither the petition nor the
two comments thereon took into account or discussed the
validity of the aforestated Section 27 of R.A. No. 8770 in light
of the provisions of Section 30, Article VI of the 1987
Constitution that "(n)o law shall be passed increasing the
appellate jurisdiction of the Supreme Court as provided in
this Constitution without its advice and consent."
The Court also invites the attention of the parties to its
relevant ruling in First Lepanto Ceramics, Inc. vs. The Court
of Appeals, et al. (G.R. No. 110571, October 7, 1994, 237
SCRA 519) and the provisions of its former Circular No. 1-91
and Revised Administrative Circular No. 1-95, as now
substantially reproduced in Rule 43 of the 1997 revision of
the Rules of Civil Procedure.
In view of the fact that the appellate jurisdiction of the Court
is invoked and involved in this case, and the foregoing legal
considerations appear to impugn the constitutionality and
validity of the grant of said appellate jurisdiction to it, the
Court deems it necessary that the parties be heard thereon
and the issue be first resolved before conducting further
proceedings in this appellate review.
ACCORDINGLY, the Court Resolved to require the parties to
SUBMIT their position and arguments on the matter subject
of this resolution by filing their corresponding pleadings
within ten (10) days from notice hereof.
IV
The records do not show that the Office of the Solicitor General has complied
with such requirement, hence the Court dispenses with any submission it
should have presented. On the other hand, petitioner espouses the theory
that the provision in Section 27 of Republic Act No. 6770 which authorizes an
appeal by certiorari to this Court of the aforementioned adjudications of the
Office of the Ombudsman is not violative of Section 30, Article VI of the
Constitution. She claims that what is proscribed is the passage of a law
"increasing" the appellate jurisdiction of this Court "as provided in this
Constitution," and such appellate jurisdiction includes "all cases in which only
an error or question of law is involved." Since Section 5(2)(e), Article VIII of
the Constitution authorizes this Court to review, revise, reverse, modify, or
affirm on appeal or certiorari the aforesaid final judgment or orders "as the
C I V P R O I V C i v i l P r o c e d u r e P a g e | 97
law or the Rules of Court may provide," said Section 27 does not increase
this Court's appellate jurisdiction since, by providing that the mode of appeal
shall be by petition for certiorari under Rule 45, then what may be raised
therein are only questions of law of which this Court already has jurisdiction.
We are not impressed by this discourse. It overlooks the fact that by
jurisprudential developments over the years, this Court has allowed appeals
by certiorari under Rule 45 in a substantial number of cases and instances
even if questions of fact are directly involved and have to be resolved by the
appellate court. 18 Also, the very provision cited by petitioner specifies that
the appellate jurisdiction of this Court contemplated therein is to be exercised
over "final judgments and orders of lower courts," that is, the courts
composing the integrated judicial system. It does not include the quasi-
judicial bodies or agencies, hence whenever the legislature intends that the
decisions or resolutions of the quasi-judicial agency shall be reviewable by
the Supreme Court or the Court of Appeals, a specific provision to that effect
is included in the law creating that quasi-judicial agency and, for that matter,
any special statutory court. No such provision on appellate procedure is
required for the regular courts of the integrated judicial system because they
are what are referred to and already provided for, in Section 5, Article VIII of
the Constitution.
Apropos to the foregoing, and as correctly observed by private respondent,
the revised Rules of Civil Procedure 19 preclude appeals from quasi-judicial
agencies to the Supreme Court via a petition for review on certiorari under
Rule 45. In the 1997 Rules of Civil Procedure, Section 1 of Rule 45, on
"Appeal by Certiorari to the Supreme Court," explicitly states:
Sec. 1. Filing of petition with Supreme Court. — A person
desiring to appeal by certiorari from a judgment or final order
or resolution of the Court of Appeals, the Sandiganbayan,
the Regional Trial Court or other courts whenever authorized
by law, may file with the Supreme Court a verified petition for
review on certiorari. The petition shall raise only questions of
law which must be distinctly set forth. (Emphasis ours).
This differs from the former Rule 45 of the 1964 Rules of Court which made
mention only of the Court of Appeals, and had to be adopted in statutes
creating and providing for appeals from certain administrative or quasi-
judicial agencies, whenever the purpose was to restrict the scope of the
appeal to questions of law. That intended limitation on appellate review, as
we have just discussed, was not fully subserved by recourse to the former

Rule 45 but, then, at that time there was no uniform rule on appeals from
quasi-judicial agencies.
Under the present Rule 45, appeals may be brought through a petition for
review on certiorari but only from judgments and final orders of the courts
enumerated in Section 1 thereof. Appeals from judgments and final orders of
quasi-judicial agencies 20 are now required to be brought to the Court of
Appeals on a verified petition for review, under the requirements and
conditions in Rule 43 which was precisely formulated and adopted to provide
for a uniform rule of appellate procedure for quasi-judicial agencies. 21
It is suggested, however, that the provisions of Rule 43 should apply only to
"ordinary" quasi-judicial agencies, but not to the Office of the Ombudsman
which is a "high constitutional body." We see no reason for this distinction for,
if hierarchical rank should be a criterion, that proposition thereby disregards
the fact that Rule 43 even includes the Office of the President and the Civil
Service Commission, although the latter is even an independent
constitutional commission, unlike the Office of the Ombudsman which is a
constitutionally-mandated but statutorily created body.
Regarding the misgiving that the review of the decision of the Office of the
Ombudsman by the Court of Appeals would cover questions of law, of fact or
of both, we do not perceive that as an objectionable feature. After all, factual
controversies are usually involved in administrative disciplinary actions, just
like those coming from the Civil Service Commission, and the Court of
Appeals as a trier of fact is better prepared than this Court to resolve the
same. On the other hand, we cannot have this situation covered by Rule 45
since it now applies only to appeals from the regular courts. Neither can we
place it under Rule 65 since the review therein is limited to jurisdictional
questions. *
The submission that because this Court has taken cognizance of cases
involving Section 27 of Republic Act No. 6770, that fact may be viewed as
"acquiescence" or "acceptance" by it of the appellate jurisdiction
contemplated in said Section 27, is unfortunately too tenuous. The
jurisdiction of a court is not a question of acquiescence as a matter of fact but
an issue of conferment as a matter of law. Besides, we have already
discussed the cases referred to, including the inaccuracies of some
statements therein, and we have pointed out the instances when Rule 45 is
involved, hence covered by Section 27 of Republic Act No. 6770 now under
discussion, and when that provision would not apply if it is a judicial review
under Rule 65.
C I V P R O I V C i v i l P r o c e d u r e P a g e | 98
Private respondent invokes the rule that courts generally avoid having to
decide a constitutional question, especially when the case can be decided on
other grounds. As a general proposition that is correct. Here, however, there
is an actual case susceptible of judicial determination. Also, the constitutional
question, at the instance of this Court, was raised by the proper parties,
although there was even no need for that because the Court can rule on the
matter sua sponte when its appellate jurisdiction is involved. The
constitutional question was timely raised, although it could even be raised
any time likewise by reason of the jurisdictional issue confronting the Court.
Finally, the resolution of the constitutional issue here is obviously necessary
for the resolution of the present case. 22
It is, however, suggested that this case could also be decided on other
grounds, short of passing upon the constitutional question. We appreciate
the ratiocination of private respondent but regret that we must reject the
same. That private respondent could be absolved of the charge because the
decision exonerating him is final and unappealable assumes that Section 7,
Rule III of Administrative Order No. 07 is valid, but that is precisely one of the
issues here. The prevailing rule that the Court should not interfere with the
discretion of the Ombudsman in prosecuting or dismissing a complaint is not
applicable in this administrative case, as earlier explained. That two
decisions rendered by this Court supposedly imply the validity of the
aforementioned Section 7 of Rule III is precisely under review here because
of some statements therein somewhat at odds with settled rules and the
decisions of this Court on the same issues, hence to invoke the same would
be to beg the question.
V
Taking all the foregoing circumstances in their true legal roles and effects,
therefore, Section 27 of Republic Act No. 6770 cannot validly authorize an
appeal to this Court from decisions of the Office of the Ombudsman in
administrative disciplinary cases. It consequently violates the proscription in
Section 30, Article VI of the Constitution against a law which increases the
appellate jurisdiction of this Court. No countervailing argument has been
cogently presented to justify such disregard of the constitutional prohibition
which, as correctly explained in First Lepanto Ceramics, Inc. vs. The Court of
Appeals, et al. 23 was intended to give this Court a measure of control over
cases placed under its appellate jurisdiction. Otherwise, the indiscriminate
enactment of legislation enlarging its appellate jurisdiction would
unnecessarily burden the Court. 24

We perforce have to likewise reject the supposed inconsistency of the ruling
in First Lepanto Ceramics and some statements in Yabut and Alba, not only
because of the difference in the factual settings, but also because those
isolated cryptic statements in Yabut and Alba should best be clarified in the
adjudication on the merits of this case. By way of anticipation, that will have
to be undertaken by the proper court of competent jurisdiction.
Furthermore, in addition to our preceding discussion on whether Section 27
of Republic Act No. 6770 expanded the jurisdiction of this Court without its
advice and consent, private respondent's position paper correctly yields the
legislative background of Republic Act No. 6770. On September 26, 1989,
the Conference Committee Report on S.B. No. 453 and H.B. No. 13646,
setting forth the new version of what would later be Republic Act No. 6770,
was approved on second reading by the House of Representatives. 25 The
Senate was informed of the approval of the final version of the Act on
October 2, 1989 26 and the same was thereafter enacted into law by
President Aquino on November 17, 1989.
Submitted with said position paper is an excerpt showing that the Senate, in
the deliberations on the procedure for appeal from the Office of the
Ombudsman to this Court, was aware of the provisions of Section 30, Article
III of the Constitution. It also reveals that Senator Edgardo Angara, as a co-
author and the principal sponsor of S.B. No. 543 admitted that the said
provision will expand this Court's jurisdiction, and that the Committee on
Justice and Human Rights had not consulted this Court on the matter, thus:
INTERPELLATION OF SENATOR SHAHANI
xxx xxx xxx
Thereafter, with reference to Section 22(4) which provides
that the decisions of the Office of the Ombudsman may be
appealed to the Supreme Court, in reply to Senator
Shahani's query whether the Supreme Court would agree to
such provision in the light of Section 30, Article VI of the
Constitution which requires its advice and concurrence in
laws increasing its appellate jurisdiction, Senator Angara
informed that the Committee has not yet consulted the
Supreme Court regarding the matter. He agreed that the
provision will expand the Supreme Court's jurisdiction by
allowing appeals through petitions for review, adding that
they should be appeals on certiorari. 27
C I V P R O I V C i v i l P r o c e d u r e P a g e | 99
There is no showing that even up to its enactment, Republic Act No.
6770 was ever referred to this Court for its advice and consent. 28
VI
As a consequence of our ratiocination that Section 27 of Republic Act No.
6770 should be struck down as unconstitutional, and in line with the
regulatory philosophy adopted in appeals from quasi-judicial agencies in the
1997 Revised Rules of Civil Procedure, appeals from decisions of the Office
of the Ombudsman in administrative disciplinary cases should be taken to
the Court of Appeals under the provisions of Rule 43.
There is an intimation in the pleadings, however, that said Section 27 refers
to appellate jurisdiction which, being substantive in nature, cannot be
disregarded by this Court under its rule-making power, especially if it results
in a diminution, increase or modification of substantive rights. Obviously,
however, where the law is procedural in essence and purpose, the foregoing
consideration would not pose a proscriptive issue against the exercise of the
rule-making power of this Court. This brings to fore the question of whether
Section 27 of Republic Act No. 6770 is substantive or procedural.
It will be noted that no definitive line can be drawn between those rules or
statutes which are procedural, hence within the scope of this Court's rule-
making power, and those which are substantive. In fact, a particular rule may
be procedural in one context and substantive in another. 29 It is admitted that
what is procedural and what is substantive is frequently a question of great
difficulty. 30 It is not, however, an insurmountable problem if a rational and
pragmatic approach is taken within the context of our own procedural and
jurisdictional system.
In determining whether a rule prescribed by the Supreme Court, for the
practice and procedure of the lower courts, abridges, enlarges, or modifies
any substantive right, the test is whether the rule really regulates procedure,
that is, the judicial process for enforcing rights and duties recognized by
substantive law and for justly administering remedy and redress for a
disregard or infraction of them. 31 If the rule takes away a vested right, it is
no; procedural. If the rule creates a right such as the right to appeal, it may
be classified as a substantive matter; but if it operates as a means of
implementing an existing right then the rule deals merely with procedure. 32
In the situation under consideration, a transfer by the Supreme Court, in the
exercise of its rule-making power, of pending cases involving a review of
decisions of the Office of the Ombudsman in administrative disciplinary
 C I V P R O I V C i v i l P r o c e d u r e P a g e | 100

actions to the Court of Appeals which shall now be vested with exclusive Narvasa, C.J., Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan,
appellate jurisdiction thereover, relates to procedure only. 33 This is so Mendoza, Panganiban, Martinez, Quisumbing and Purisima, JJ., concur.
because it is not the right to appeal of an aggrieved party which is affected by
the law. That right has been preserved. Only the procedure by which the
appeal is to be made or decided has been changed. The rationale for this is
that no litigant has a vested right in a particular remedy, which may be
changed by substitution without impairing vested rights, hence he can have
none in rules of procedure which relate to the remedy. 34

Furthermore, it cannot be said that the transfer of appellate jurisdiction to the

Court of Appeals in this case is an act of creating a new right of appeal
because such power of the Supreme Court to transfer appeals to subordinate
appellate courts is purely a procedural and not a substantive power. Neither
can we consider such transfer as impairing a vested right because the
parties have still a remedy and still a competent tribunal to administer that
remedy. 35

Thus, it has been generally held that rules or statutes involving a transfer of
cases from one court to another, are procedural and remedial merely and
that, as such, they are applicable to actions pending at the time the statute
went into effect 36 or, in the case at bar, when its invalidity was declared.
Accordingly, even from the standpoint of jurisdiction ex hypothesi, the validity
of the transfer of appeals in said cases to the Court of Appeals can be
sustained.

WHEREFORE, Section 27 of Republic Act No. 6770 (Ombudsman Act of

1989), together with Section 7, Rule III of Administrative Order No. 07 (Rules
of Procedure of the Office of the Ombudsman), and any other provision of
law or issuance implementing the aforesaid Act and insofar as they provide
for appeals in administrative disciplinary cases from the Office of the
Ombudsman to the Supreme Court, are hereby declared INVALID and of no
further force and effect.

The instant petition is hereby referred and transferred to the Court of Appeals
for final disposition, with said petition to be considered by the Court of
Appeals pro hoc vice as a petition for review under Rule 43, without prejudice
to its requiring the parties to submit such amended or supplemental
pleadings and additional documents or records as it may deem necessary
and proper.

SO ORDERED.

G.R. No. 147995 March 4, 2004
JESSIE MACALALAG, petitioner,
vs.
OMBUDSMAN, PABLO ALORO and COURT OF APPEALS, respondents.
Actions; Pleadings and Practice; Annulment of Judgments; Grounds; The rule
covers annulment by the Court of Appeals of judgments or final orders and
resolutions in civil actions of Regional Trial Courts.—Rule 47, entitled
“Annulment of Judgments or Final Orders and Resolutions,” is a new provision
under the 1997 Rules of Civil Procedure albeitthe remedy has long been given
imprimatur by the courts. The rule covers “annulment by the Court of Appeals
of judgments or final orders and resolutions in civil actions of Regional Trial
Courts for which the ordinary remedies of new trial, appeal, petition for relief
or other appropriate remedies could no longer be availed of through no fault of
the petitioner.” An action for annulment of judgment is a remedy in law
independent of the case where the judgment sought to be annulled is
rendered. The concern that the remedy could so easily be resorted to as an
instrument to delay a final and executory judgment, has prompted safeguards
to be put in place in order to avoid an abuse of the rule. Thus, the annulment
of judgment may be based only on the grounds of extrinsic fraud and lack of
jurisdiction, and the remedy may not be invoked (1) where the party has
availed himself of the remedy of new trial, appeal, petition for relief or other
appropriate remedy and lost therefrom, or (2) where he has failed to avail
himself of those remedies through his own fault or negligence.
Courts; Jurisdiction; Ombudsman; Appeals; All appeals from decisions of the
Ombudsman in administrative disciplinary cases are instead to be taken to the
Court of Appeals under Rule 43 of the 1997 Rules of Civil Procedure.—Section
27 of Republic Act No. (R.A.) 6770, also known as The Ombudsman Act of
1989, provides that orders, directives and decisions of the Ombudsman in
administrative cases are appealable to the Supreme CourtviaRule 45 of the
Rules of Court. In Fabian v. Desierto, the Court has declared Section 27 of the
Act to be unconstitutional since it expands the Supreme Court’s jurisdiction
without its advice and consent required under Article VI, Section 30, of the
1987 Constitution. Hence, all appeals from decisions of the Ombudsman in
administrative disciplinary cases are instead to be taken to the Court of
Appeals under Rule 43 of the 1997 Rules of Civil Procedure. The rule is
reiterated in Administrative Circular No. 99-2-01-SC.
Same; Same; Same; Same; R.A. 6770 is silent on the remedy of annulment of
judgments or final orders and resolutions of the Ombudsman in the
C I V P R O I V C i v i l P r o c e d u r e P a g e | 101
administrative cases.—Parenthetically, R.A. 6770 is silent on the remedy of
annulment of judgments or final orders and resolutions of the Ombudsman in
administrative cases. In Tirol, Jr. v. Del Rosario, the Court has held that since
The Ombudsman Act specifically deals with the remedy of an aggrieved party
from orders, directives and decisions of the Ombudsman in administrative
disciplinary cases only, the right to appeal is not to be considered granted to
parties aggrieved by orders and decisions of the Ombudsman in criminal or
non-administrative cases. The right to appeal is a mere statutory privilege and
may be exercised only in the manner prescribed by, and in accordance with,
the provisions of law. There must then be a law expressly granting such right.
This legal axiom is also applicable and even more true in actions for annulment
of judgments which is an exception to the rule on finality of judgments.
Attorneys; Duties; Gross Negligence; It is only in case of gross or palpable
negligence of counsel when the courts can step in and accord relief to a
client who would have suffered thereby.—It is only in case of gross or
palpable negligence of counsel when the courts can step in and accord relief
to a client who would have suffered thereby.If every perceived mistake,
failure of diligence, lack of experience or insufficient legal knowledge of the
lawyer would be admitted as a reason for the reopening of a case, there
would be no end to controversy. Fundamental to our judicial system is the
principle that every litigation must come to an end. It would be a clear
mockery if it were otherwise. Access to the courts is guaranteed, but there
must be a limit to it.
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Edilberto B. Cosca for petitioner.
DECISION
VITUG, J.:

The elemental issue in the petition for review is whether or not the Court of
Appeals has jurisdiction over actions for annulment of decisions or orders of
the Ombudsman in administrative cases.
The factual antecedents of the case, summarized by the appellate court, are
basically undisputed –
"x x x on February 3, 1997, private respondent Pablo Aloro lodged
with the Office of the Ombudsman for Visayas a complaint for
dishonesty against the petitioner Jessie Macalalag, an employee of
the Philippine Postal Corporation, Bacolod City. The petitioner was
directed to file his answer through Orders dated February 18, July 7,
and November 13, 1997 and April 24, 1998 but he did not bother to
file any. Instead, when the case was called for preliminary
conference on 27 October 1998, he sent a telegram requesting for
postponement and praying that he be allowed to submit his position
paper after which the case shall be deemed submitted for resolution.
Again, no position paper was ever submitted by him. Accordingly, the
investigator was constrained to resolve the case on the basis solely
of the evidence furnished by the private respondent.
"It was established that the private respondent, a resident of Bacolod
City, is a retired employee receiving a monthly pension from the
Social Security System. As of September 15, 1996, however, he
failed to receive his pension checks corresponding to the months of
April, May and July, 1996. When he went to Bacolod City Post Office
to verify about the matter, he learned that his missing checks were
taken by the petitioner, an employee of the Philippine Postal
Corporation in Bacolod City, who endorsed and encashed them for
his personal benefit. When confronted by the private respondent, the
petitioner issued to the former his personal check in the amount of
P7,320.00 in payment of the checks. However, when the private
complainant presented the check for payment, it was dishonored by
the drawee bank for having been drawn against insufficient funds.
"Nonetheless, the private-respondent executed an affidavit of
desistance for the purpose of seeking the dismissal of the case
against the petitioner. But said affidavit was rejected and, instead,
the petitioner was declared administratively liable and ordered
dismissed from the service with forfeiture of all benefits and
disqualification from government service. The petitioner sought a
consideration but the same was denied.
C I V P R O I V C i v i l P r o c e d u r e P a g e | 102
"The petitioner next appealed to the Supreme Court by way of a
petition for review on certiorari. However, in the light of the decision
in Fabian vs. Desierto, [(295 SCRA 470) 1998] and Administrative
Circular No. 99-2-01-SC, the appeal was dismissed.
"In the interim, the adverse Ombudsman decision attained finality."1
Petitioner filed an action for annulment of judgment with the Court of Appeals
on the ground that "the gross ignorance, negligence and incompetence of
petitioner's former lawyer deprived petitioner of his day in court which (would)
justify the annulment of the assailed Resolution and Order." The appellate
court, however, dismissed the petition for lack of jurisdiction thereover; it
ratiocinated:
"x x x Under Section 9 (2) of B.P. Blg. 129, this Court has exclusive
original jurisdiction only over actions for annulment of judgments of
the Regional Trial Courts. Nothing is mentioned therein about
judgments of other courts, much less of the Ombudsman or any
quasi-judicial body. The case of Fabian v. Desierto, 295 SCRA 470
(1998), vested this Court only with exclusive appellate jurisdiction
to review decisions of the Office of the Ombudsman in administrative
disciplinary actions which should be taken via a petition for review
under Rule 43 of the 1997 Rules of Civil Procedure."2
Undaunted, petitioner has filed the instant petition for review, arguing that
Section 47 of the Rules of Court on annulment of judgments, refers to
"Regional Trial Courts" in its generic sense that should thus include quasi-
judicial bodies whose functions or rank are co-equal with those of the
Regional Trial Court.
Petitioner's thesis finds no support in law and jurisprudence.
Rule 47, entitled "Annulment of Judgments or Final Orders and Resolutions,"
is a new provision under the 1997 Rules of Civil Procedure albeit the remedy
has long been given imprimatur by the courts.3 The rule covers "annulment
by the Court of Appeals of judgments or final orders and resolutions in civil
actions of Regional Trial Courts for which the ordinary remedies of new trial,
appeal, petition for relief or other appropriate remedies could no longer be
availed of through no fault of the petitioner."4 An action for annulment of
judgment is a remedy in law independent of the case where the judgment
sought to be annulled is rendered.5 The concern that the remedy could so
easily be resorted to as an instrument to delay a final and executory
judgment,6 has prompted safeguards to be put in place in order to avoid an
 C I V P R O I V C i v i l P r o c e d u r e P a g e | 103

abuse of the rule. Thus, the annulment of judgment may be based only on WHEREFORE, the petition is DISMISSED and the decision, dated 24
the grounds of extrinsic fraud and lack of jurisdiction,7 and the remedy may January 2001, of the Court of Appeals in CA-G.R. SP No. 59361 is
not be invoked (1) where the party has availed himself of the remedy of new AFFIRMED. Costs against petitioner.
trial, appeal, petition for relief or other appropriate remedy and lost therefrom,
or (2) where he has failed to avail himself of those remedies through his own SO ORDERED.
fault or negligence.
Sandoval-Gutierrez, Corona, and Carpio-Morales, JJ., concur.
Section 27 of Republic Act No. (R.A.) 6770, also known as The Ombudsman
Act of 1989, provides that orders, directives and decisions of the
Ombudsman in administrative cases are appealable to the Supreme Court
via Rule 45 of the Rules of Court. In Fabian v. Desierto8 , the Court has
declared Section 27 of the Act to be unconstitutional since it expands the
Supreme Court's jurisdiction without its advice and consent required under
Article VI, Section 30, of the 1987 Constitution. Hence, all appeals from
decisions of the Ombudsman in administrative disciplinary cases are instead
to be taken to the Court of Appeals under Rule 43 of the 1997 Rules of Civil
Procedure. The rule is reiterated in Administrative Circular No. 99-2-01-SC.

Parenthetically, R.A. 6770 is silent on the remedy of annulment of judgments

or final orders and resolutions of the Ombudsman in administrative cases. In
Tirol, Jr. v. Del Rosario,9 the Court has held that since The Ombudsman Act
specifically deals with the remedy of an aggrieved party from orders,
directives and decisions of the Ombudsman in administrative disciplinary
cases only, the right to appeal is not to be considered granted to parties
aggrieved by orders and decisions of the Ombudsman in criminal or non-
administrative cases. The right to appeal is a mere statutory privilege and
may be exercised only in the manner prescribed by, and in accordance with,
the provisions of law.10 There must then be a law expressly granting such
right.11 This legal axiom is also applicable and even more true in actions for
annulment of judgments which is an exception to the rule on finality of
judgments.

Moreover, petitioner may no longer resort to the remedy of annulment of

judgment after having filed an appeal with the Supreme Court. Neither can
he claim that he is not bound by his lawyer's actions; it is only in case of
gross or palpable negligence of counsel when the courts can step in and
accord relief to a client who would have suffered thereby.12 If every
perceived mistake, failure of diligence, lack of experience or insufficient legal
knowledge of the lawyer would be admitted as a reason for the reopening of
a case, there would be no end to controversy. Fundamental to our judicial
system is the principle that every litigation must come to an end. It would be
a clear mockery if it were otherwise. Access to the courts is guaranteed, but
there must be a limit to it.

G.R. No. 134509 April 12, 2005
VENANCIO R. NAVA, Petitioner,
vs.
NATIONAL BUREAU OF INVESTIGATION, REGIONAL OFFICE NO. XI,
DAVAO CITY, respondent.
Courts; Ombudsman; Appeals; Jurisdictions; Although as a consequence of
the decision in Fabian, appeals from the orders, directives, or decisions of the
Ombudsman in administrative cases are now cognizable by the Court of
Appeals, nevertheless in cases in which it is alleged that the Ombudsman has
acted with grave abuse of discretion amounting to lack or excess of jurisdiction,
a special civil action of certiorari under Rule 65 may be filed with this Court to
set aside the Ombudsman’s order or resolution.—We agree that the alternative
remedy avails. Reiterating Tirol, we held in Mendoza-Arce v. Office of the
Ombudsman (Visayas), that although as a consequence of the decision in
Fabian, appeals from the orders, directives, or decisions of the Ombudsman
in administrative cases are now cognizable by the Court of Appeals,
nevertheless in cases in which it is alleged that the Ombudsman has acted
with grave abuse of discretion amounting to lack or excess of jurisdiction, a
special civil action of certiorari under Rule 65 may be filed with this Court to
set aside the Ombudsman’s order or resolution. In Kuizon v. Desierto, we held
that the Court has jurisdiction over such petitions questioning resolutions or
orders of the Office of the Ombudsman in criminal cases. As Nava himself
beseeched the Court to consider his Petition as a petition for certiorari under
Rule 65, we shall treat the same as one.
Remedial Law; Certiorari; In certiorari proceedings under Rule 65 of the
Rules of Court, questions of fact are generally not permitted.—In certiorari
proceedings under Rule 65 of the Rules of Court, questions of fact are
generally not permitted, the inquiry being limited essentially to whether or not
the respondent tribunal had acted without or in excess of its jurisdiction or
with grave abuse of discretion.
Same; Same; Ombudsman; The Ombudsman is not duty bound to render
anew a statement of facts or elaborate on the applicable law.—Deliberating
upon the Petition and the arguments in support thereof side by side with the
comments of the respondent thereon, we find that the Petition fails to show a
grave abuse of discretion or any act without or in excess of jurisdiction on the
part of the Ombudsman. Nava’s asseveration that the Ombudsman gravely
C I V P R O I V C i v i l P r o c e d u r e P a g e | 104
abused his discretion when he disapproved the recommendation of the Special
Prosecutor urging the dismissal of the case against the petitioner and without
giving any reasons therefor is specious. The Ombudsman is not duty bound to
render anew a statement of facts or elaborate on the applicable law.
Same; Same; Same; In case of conflict between the conclusion of the
Ombudsman and the Special Prosecutor, the former’s decision shall prevail
since the Office of the Special Prosecutor is under the supervision and control
of the Ombudsman.—It cannot be said that the Ombudsman committed a
grave abuse of discretion because he opined differently from the Special
Prosecutor that, under the facts obtaining in the case, there is probable cause
to believe that Nava is guilty of the offense charged. If the Ombudsman may
dismiss a complaint outright for lack of merit, it necessarily follows that it is also
within his discretion to determine whether the evidence before him is sufficient
to establish probable cause. In case of conflict between the conclusion of the
Ombudsman and the Special Prosecutor, the former’s decision shall prevail
since the Office of the Special Prosecutor is under the supervision and control
of the Ombudsman.
Same; Same; Same; Court ordinarily does not interfere with the Ombudsman’s
exercise of discretion in determining whether there exists a reasonable ground
to believe that a crime has been committed and that the accused is probably
guilty thereof, and thereafter in filing the corresponding information with the
appropriate courts; Exceptions.—Congruently with the rule that criminal
prosecutions may not be restrained, either through a preliminary or final
injunction or a writ of prohibition, the Court ordinarily does not interfere with
the Ombudsman’s exercise of discretion in determining whether there exists a
reasonable ground to believe that a crime has been committed and that the
accused is probably guilty thereof, and thereafter in filing the corresponding
information with the appropriate courts, save for the following instances: (1) To
afford adequate protection to the constitutional rights of the accused; (2) When
necessary for the orderly administration of justice or to avoid oppression or
multiplicity of actions; (3) When there is a pre-judicial question which is sub-
judice; (4) When the acts of the officer are without or in excess of authority; (5)
Where the prosecution is under an invalid law, ordinance or regulation; (6)
When double jeopardy is clearly apparent; (7) Where the court has no
jurisdiction over the offense; (8) Where it is a case of persecution rather than
prosecution; (9) Where the charges are manifestly false and motivated by lust
for vengeance; (10) When there is clearly no prima facie case against the
accused and a motion to quash on that ground has been denied; (11)
Preliminary injunction has been issued by the Supreme Court to prevent the
threatened unlawful arrest of the petitioners.

PETITION for review on certiorari of a decision of the Ombudsman.
The facts are stated in the opinion of the Court.
Meliton R. Reyes for petitioner.
Jose De G. Ferrer co-counsel for petitioner.
DECISION
TINGA, J.:
In this Petition1 filed pursuant to Section 27,2 Republic Act No. 6770,
otherwise known as "The Ombudsman Act of 1989," in relation to Rule 45 of
the Revised Rules of Court, petitioner Venancio R. Nava (hereinafter, Nava)
assails the disapproval3 by the Ombudsman of the Order4 of the Office of
the Special Prosecutor recommending the dismissal of the case against him
and his co-accused Aquilina Granada (hereinafter, Granada) for alleged
Falsification Thru Reckless Imprudence in OMB Cases No. 3-93-3219 and
No. 3-96-0462, in which the public respondent National Bureau of
Investigation (NBI) was the complainant. The Order was issued to resolve
the Motion for Reinvestigation5 filed by Nava. The Order reads in part:
Movant VENANCIO NAVA and AQUILINA GRANADA have to rely in
good faith upon their subordinates. In the absence of any proof that
they have knowledge of the irregularity committed by their
subordinates they cannot be held criminally liable for having acted
with reckless imprudence. In the instant case the accused could not
have suspected any irregularity in the preparation of the PAL based
on the ERF's (sic) as the said ERF's (sic) were certified as true
copies by the responsible official in the Division Office therefore as
noted by Superintendent Luceria de Leon.
In short, absence of any proof to the contrary, the accused enjoys
the presumption of regularity in the performance of their official duty.
WHEREFORE, premises considered, it is respectfully recommended
that the Motion For Reinvestigation be GRANTED and that the case
as against VENANCIO NAVA and AQUILINA GRANADA be
DISMISSED for insufficiency of evidence.
Manila, Philippines, May 4, 1998.6
C I V P R O I V C i v i l P r o c e d u r e P a g e | 105
On 21 May 1998, the Ombudsman disapproved the recommendation of his
subordinates with nary an explanation.
The case subject of this Petition emanated from anonymous letter-
complaints7 filed before the Office of the Ombudsman in Mindanao alleging
that fake Equivalent Record Forms (ERFs) of several teachers of the Davao
City National High School were made the bases for the Plantilla Allocation
List (PAL) for calendar year 1988 and for the teachers' corresponding
promotion and salary upgrading.8
The Office of the Ombudsman in Mindanao referred the matter to the NBI in
Region XI (NBI-XI) and directed it to conduct a fact-finding investigation.9
The investigation by the NBI-XI disclosed, among others, the submission by
a certain Myrna Rosales-Velez of a Service Record (DECS Form No. 93)
containing fabricated facts and the handing in of fake ERFs by other teachers
which were the bases of the PAL approved as correct by Nava who was then
the Department of Education, Culture and Sports (DECS) Regional Director
for Region XI.10 The NBI recommended the filing of appropriate charges
against the teachers and officials concerned.11
Acting on the findings of the NBI, the Office of the Ombudsman in Mindanao,
in a Joint Resolution12 dated 23 October 1996, recommended the indictment
of Nava before the Sandiganbayan for Falsification of Official Documents
thru Reckless Imprudence.13 The pertinent portions of the Joint Resolution
state:
Likewise, this Office finds prima facie evidence to hold respondent
DECS Regional Director Venancio Nava and Administrative Officer
Aquilina Granada liable for Falsification of Official Documents thru
Reckless Imprudence. Evidence on record would show that
respondents Nava and Granada are liable for the charge of
falsification for their act of approving and certifying as correct the
Plantilla Allocation List (PAL) based on the approved Equivalent
Record Forms (ERFs) of the subject teachers without verifying and
scrutinizing the ERFs which turned out to be only certified copies of
none-existing documents. Their defense that at their level of
responsibility, it is not fair and right to expect them to be responsible
for such verification as they relied and depended on the processing
and verification of the subject documents to their subordinates,
cannot be given credence. In fact, such admission all the more
bolstered the evidence against the respondents for reckless
imprudence in the performance of their official functions. Indeed
respondents Nava and Granada who are holding sensitive positions,

are liable for their failure to detect the falsity of the Equivalent Record
Forms (ERFs) and even approved and certified correct the Plantilla
Allocation List based on the fake or falsified Equivalent Record
Forms. In fact, even their subordinates in the Regional Office have
knowledge of the non-existence of the subject ERFs. On record is
the list of DCHS teachers with approved ERFs as of 1988, submitted
by Administrative Officer Rolando Suase (Records, pp. 47-48 in
OMB-3-96-0462). In the said list, not one of the subject teachers
appear. Moreover, a certification dated 15 January 1993, issued by
Administrative Officer Edilberto Madria disclosed that based on the
files of subject teachers, same do not have approved ERFs for the
years 1987, 1988 and 1989 (Record, p. 61).14
....
It is also recommended that respondents Venancio Nava and
Aquilina Granada, be indicted before the Sandiganbayan for
Falsification of Official Documents thru Reckless Imprudence.15
The Joint Resolution was approved by Ombudsman Aniano A. Desierto on
15 November 1996.16
Thus, the filing of an Information17 against Nava and his co-accused
Granada before the Sandiganbayan on 20 November 1996. The Information
was docketed as SB Criminal Case No. 23519, the accusatory portion of
which reads as follows:
That during the Calendar Year 1988 and sometime prior or
subsequent thereto, at Davao City, Philippines and within the
jurisdiction of this Honorable Court, the said accused, both public
officers, Venancio R. Nava being the DECS-XI Regional Director with
salary grade 28 and Aquilina B. Granada, being the Administrative
Officer of the same office; while in the performance of their official
duties, thus committing an offense in relation to their office, did then
and there unlawfully and feloniously through gross inexcusable
negligence, certified as correct and approved without verifying and
scrutinizing the Plantilla Allocation List for the Calendar Year 1988
and earlier of the Davao City High School Teachers, based on the
approved Equivalent Record Forms which turned out to be
photocopies of none (sic) existing Equivalent Record Forms, thereby
enabling the subject teachers to be upgraded in their salary grade
from Teacher I to Teacher III with corresponding salary increase as
in fact same teachers were able to collect salary differentials.
C I V P R O I V C i v i l P r o c e d u r e P a g e | 106
CONTRARY TO LAW.18
Nava filed before the Second Division of the Sandiganbayan a Motion for
Reinvestigation19 which was granted in a Resolution dated 22 September
1997.20 On 4 May 1998, Special Prosecution Officer Manuel A. Corpuz
(hereinafter, Special Prosecutor) recommended the dismissal of the charges
against Nava and Granada for insufficiency of evidence. This
recommendation was, however, disapproved by the Ombudsman.21 Hence,
the instant Petition in which Nava contends that the Ombudsman gravely
erred or was "manifestly mistaken" in disapproving the recommendation of
dismissal of the case against him, which disapproval, he further avers, is
based on an erroneous conclusion drawn from "undisputed" facts which
assumes the nature of a question of law reviewable by this Honorable Court.
Petitioner cites the cases of Arias v. Sandiganbayan22 and Magsuci v.
Sandiganbayan23 to support his stance that the case against him should
have been ordered dismissed.24
In Arias v. Sandiganbayan,25 the Court absolved the accused therein, who
was an auditor in an engineering district, from the indictment that he
conspired in the overpricing of land purchased by the government by
approving the vouchers for its payment. The Court concluded, to wit:
We would be setting a bad precedent if a head of office plagued by
all too common problemsdishonest or negligent subordinates,
overwork, multiple assignments or positions, or plain
incompetenceis suddenly swept into a conspiracy conviction
simply because he did not personally examine every single detail,
painstakingly trace every step from inception, and investigate the
motives of every person involved in a transaction before affixing his
signature as the final approving authority.26
It further held that:
(H)eads of offices have to rely to a reasonable extent on their
subordinates and on the good faith of those who prepare bids,
purchase supplies, or enter into negotiations . . . There has to be
some added reason why he should examine each voucher in detail.
Any executive head of even small government agencies or
commissions can attest to the volume of papers that must be signed.
There are hundreds of documents, letters, memoranda, vouchers,
and supporting papers that routinely pass through his hands. The
number in bigger offices or departments is even more appalling.27

In Magsuci v. Sandiganbayan,28 the Court acquitted the accused therein, a
regional director, of the charges that he approved the payment of a work
order based on a Certificate of Completion and Accomplishment Report
which turned out to be falsities, allegedly in conspiracy with the contractor
and the engineer who was tasked with the duty to accomplish said certificate
and report. The Court ruled in this wise:
In concluding petitioner's involvement in the conspiracy, the
Sandiganbayan could only point to Magsuci's having (1) noted the
Accomplishment Report and Certification submitted by Enriquez, (2)
signed the disbursement voucher with the usual certification on the
lawful incurrence of the expenses to be paid, and (3) co-signed four
checks for the payment of P352,217.16 to Ancla. The
Sandiganbayan concluded that the petitioner would not have thusly
acted had he not been a party to the conspiracy.
Fairly evident, however, is the fact that the action taken by Magsuci
involved the very functions he had to discharge in the performance of
his official duties. There has been no intimation at all that he had
foreknowledge of any irregularity committed by either or both Engr.
Enriquez and Ancla. Petitioner might have indeed been lax and
administratively remiss in placing too much reliance on the official
reports submitted by his subordinate (Engineer Enriquez), but for
conspiracy to exist, it is essential that there must be a conscious
design to commit an offense. Conspiracy is not the product of
negligence but of intentionality on the part of the cohorts.29
In the Comment30 filed by the Office of the Ombudsman on behalf of the
NBI, through the Office of the Special Prosecutor,31 it was put forward that
as head of office and the final approving authority of the ERFs, it behooved
Nava to see to it that the supporting documents were attached to the
PAL. Nava should have taken the necessary measures to verify the contents
of the ERFs. Yet he did nothing other than affix his signature signifying that
the ERFs were in order. His contention then that he had acted in good faith
crumbles since he had known that the ERFs of the teachers did not have the
supporting documents to warrant their approval and the eventual inclusion of
the teachers' names in the PAL.32
Corollarily, the NBI asserted that the Ombudsman did not err in not applying
the principles laid down by the Court in Arias v. Sandiganbayan33 and
Magsuci v. Sandiganbayan34 as Nava's knowledge of the infirmity of the
ERFs cannot controvert the truth that he had acted in bad faith when he
approved the said ERFs and thereafter the PAL.35
C I V P R O I V C i v i l P r o c e d u r e P a g e | 107
Moreover, it is discretionary on the Ombudsman whether or not to rely on the
findings of fact of the investigating prosecutor in making a review of the
latter's report and recommendation, as he can very well make his own
findings of fact. And citing the case of Knecht, et al. v. Desierto et al.,36 the
NBI further pleaded that it is beyond the Court's ambit to review the exercise
of the Ombudsman in prosecuting or dismissing a complaint filed before it.37
In the Comment38 filed by the Solicitor General also on its behalf, the NBI
explained that for the ERFs to be processed and approved, they must be
accompanied by the teachers' service records, performance ratings, special
order of bachelor's degree, transcripts of records of undergraduate course or
masteral units earned, if any, and a consolidated record of training seminars
and workshops attended. Had Nava exercised ordinary prudence or
reasonable care or caution, he would have noticed the absence of supporting
documents accompanying the ERFs. Nava's sole reliance on the certification
and initials of his subordinates is indicative of a wanton attitude and gross
lack of precaution.39
The NBI also argued that the Ombudsman, in denying the recommendation
of the Special Prosecutor, committed no error in fact and in law. He merely
exercised his prosecuting powers based on the constitutional mandate.40
Further, the NBI pointed out that the instant Petition is one for review on
certiorari pursuant to Section 27 of R.A. 6770 in relation to Rule 45 of the
Rules of Court, which provision of law had already been declared
unconstitutional in Fabian v. Desierto41 and reiterated in Namuhe v.
Ombudsman.42 Pursuant to the Court's ruling, appeals from orders,
directives or decisions of the Ombudsman in administrative disciplinary
cases should be taken to the Court of Appeals by way of a petition for review
under Rule 43 of the Rules of Court. In any event, as the instant case is not
an administrative disciplinary case, the proper remedy should have been a
petition for certiorari under Rule 65 of the Rules of Court. However, even
assuming that this remedy was pursued, since there is nothing on record to
even suggest that the Ombudsman committed grave abuse of discretion in
refusing to have the case against Nava dismissed, the NBI insists that the
Petition must fail.43
Nava in his Consolidated Reply44 stressed that the instant Petition was filed
on 3 September 1998 before the promulgation of the Fabian case on 16
September 1998; and maintained that it was then his honest position that
Section 27 of R.A. 6770 was available as a remedy in non-administrative
cases notwithstanding its silence on the matter. In this instance, however, he
posited that the Court of Appeals may likewise not take cognizance of the

Petition in light of the Court's ruling in Tirol, Jr. v. Justice del Rosario,45 that
the right to appeal to the Court of Appeals granted to an aggrieved party in
administrative disciplinary cases as ruled in Fabian is not available to a party
aggrieved by an order and decision of the Ombudsman in criminal cases, like
finding probable cause to indict accused persons. Nava implored the Court to
consider the instant Petition instead as a petition for certiorari under Rule 65
of the Rules of Court as the actuations of the Ombudsman amount to a grave
abuse of discretion amounting to lack or excess of its jurisdiction.46
We first dispose of the remedy issue raised by respondent NBI in its
Comment47 filed on its behalf by the Solicitor General. It asserted that since
the instant Petition was filed pursuant to Section 27 of R.A. 6770, Nava's
appeal should be taken to the Court of Appeals by way of a petition for
review under Rule 43 of the Rules of Court according to Fabian. An
alternative would be to file a petition for certiorari under Rule 65 of the Rules
of Court to the Court as the instant case is not an administrative disciplinary
case.48
We agree that the alternative remedy avails. Reiterating Tirol,49 we held in
Mendoza-Arce v. Office of the Ombudsman (Visayas),50 that although as a
consequence of the decision in Fabian,51 appeals from the orders,
directives, or decisions of the Ombudsman in administrative cases are now
cognizable by the Court of Appeals, nevertheless in cases in which it is
alleged that the Ombudsman has acted with grave abuse of discretion
amounting to lack or excess of jurisdiction, a special civil action of certiorari
under Rule 65 may be filed with this Court to set aside the Ombudsman's
order or resolution. In Kuizon v. Desierto,52 we held that the Court has
jurisdiction over such petitions questioning resolutions or orders of the Office
of the Ombudsman in criminal cases. As Nava himself beseeched the Court
to consider his Petition as a petition for certiorari under Rule 65, we shall
treat the same as one.
Coming now to the merits, the Petition cannot succeed.
In certiorari proceedings under Rule 65 of the Rules of Court, questions of
fact are generally not permitted, the inquiry being limited essentially to
whether or not the respondent tribunal had acted without or in excess of its
jurisdiction or with grave abuse of discretion.53
Grave abuse of discretion implies a capricious and whimsical exercise of
judgment tantamount to lack of jurisdiction. In other words, the exercise of
power is in an arbitrary or despotic manner by reason of passion or personal
hostility. It must be so patent and gross as to amount to an evasion of
C I V P R O I V C i v i l P r o c e d u r e P a g e | 108
positive duty or a virtual refusal to perform the duty enjoined or to act at all in
contemplation of law.54
Deliberating upon the Petition and the arguments in support thereof side by
side with the comments of the respondent thereon, we find that the Petition
fails to show a grave abuse of discretion or any act without or in excess of
jurisdiction on the part of the Ombudsman. Nava's asseveration that the
Ombudsman gravely abused his discretion when he disapproved the
recommendation of the Special Prosecutor urging the dismissal of the case
against the petitioner and without giving any reasons therefor is
specious. The Ombudsman is not duty bound to render anew a statement of
facts or elaborate on the applicable law.55 As we held in Cruz, Jr. v.
People:56
It may seem that that the ratio decidendi of the Ombudsman's
disapproval may be wanting but this is not a case of total absence of
factual and legal bases nor a failure to appreciate the evidence
presented. What is actually involved here is merely a review of the
conclusion arrived at by the investigating prosecutor as a result of his
study and analysis of the complaint, counter-affidavits, and the
evidence submitted by the parties during the preliminary
investigation. The Ombudsman here is not conducting anew another
investigation but is merely determining the propriety and correctness
of the recommendation given by the investigating prosecutor, that is,
whether probable cause actually exists or not, on the basis of the
findings of the latter. Verily, it is discretionary upon the Ombudsman
if he will rely mainly on the findings of fact of the investigating
prosecutor in making a review of the latter's report and
recommendation, as the Ombudsman can very well make his own
findings of fact. There is nothing to prevent him from acting one way
or the other. As a matter of fact, Section 4, Rule 112 of the Rules of
Court provides that "where the investigating assistant fiscal
recommends the dismissal of the case but his findings are reversed
by the provincial or city fiscal or the chief state prosecutor on the
ground that a probable cause exists, the latter may, by himself, file
the corresponding information against the respondent or direct any
other assistant fiscal or state prosecutor to do so, without conducting
another preliminary investigation.57
Likewise, it cannot be said that the Ombudsman committed a grave abuse of
discretion because he opined differently from the Special Prosecutor that,
under the facts obtaining in the case, there is probable cause to believe that
Nava is guilty of the offense charged. If the Ombudsman may dismiss a

complaint outright for lack of merit, it necessarily follows that it is also within
his discretion to determine whether the evidence before him is sufficient to
establish probable cause.58 In case of conflict between the conclusion of the
Ombudsman and the Special Prosecutor, the former's decision shall prevail
since the Office of the Special Prosecutor is under the supervision and
control of the Ombudsman.59
The Ombudsman's act of disapproving the recommendation of the Special
Prosecutor to dismiss the case against Nava was not whimsical or
capricious. He disapproved the recommendation of the Special Prosecutor
because in his estimation, there was sufficient evidence to indict the
accused. This was an exercise of the powers of the Ombudsman based on
constitutional mandate and the courts should not interfere in such exercise.
Congruently with the rule that criminal prosecutions may not be restrained,
either through a preliminary or final injunction or a writ of prohibition, the
Court ordinarily does not interfere with the Ombudsman's exercise of
discretion in determining whether there exists a reasonable ground to believe
that a crime has been committed and that the accused is probably guilty
thereof, and thereafter in filing the corresponding information with the
appropriate courts,60 save for the following instances:
(1) To afford adequate protection to the constitutional rights of the
accused;
(2) When necessary for the orderly administration of justice or to
avoid oppression or multiplicity of actions;
(3) When there is a pre-judicial question which is sub-judice;
(4) When the acts of the officer are without or in excess of authority;
(5) Where the prosecution is under an invalid law, ordinance or
regulation;
(6) When double jeopardy is clearly apparent;
(7) Where the court has no jurisdiction over the offense;
(8) Where it is a case of persecution rather than prosecution;
C I V P R O I V C i v i l P r o c e d u r e P a g e | 109
(9) Where the charges are manifestly false and motivated by lust for
vengeance;
(10) When there is clearly no prima facie case against the accused
and a motion to quash on that ground has been denied;
(11) Preliminary injunction has been issued by the Supreme Court to
prevent the threatened unlawful arrest of the petitioners.61
The Court has consistently refrained from interfering with the constitutionally
mandated investigatory and prosecutorial powers of the Ombudsman absent
any compelling reason.62 In Alba v. Nitorreda,63 we have held that:
It is beyond the ambit of this Court to review the exercise of
discretion of the Ombudsman in prosecuting or dismissing a
complaint filed before it. Such initiative and independence are
inherent in the Ombudsman, who beholden to no one, acts as the
champion of the people and preserver of the integrity of the public
service.64
While in the case of Presidential Commission on Good Government v.
Desierto,65 we reiterated:
The prosecution of offenses committed by public officers is vested in
the Office of the Ombudsman. To insulate the Office from outside
pressure and improper influence, the Constitution as well as R.A.
6770 has endowed it with a wide latitude of investigatory and
prosecutory powers virtually free from legislative, executive or judicial
intervention. This Court consistently refrains from interfering with the
exercise of its powers, and respects the initiative and independence
inherent in the Ombudsman who, 'beholden to no one, acts as the
champion of the people and the preserver of the integrity of public
service.'66
This policy of non-interference is not only based on constitutional and
statutory considerations but upon practicality as well. Otherwise, the
functions of the courts would be grievously hampered by innumerable
petitions assailing the dismissal of investigatory proceedings conducted by
the Office of the Ombudsman with regard to complaints filed before it, in
much the same way that the courts would be extremely swamped if they
could be compelled to review the exercise of discretion on the part of the
fiscals or prosecuting attorneys each time they decide to file an information in
court or dismiss a complaint by a private complainant.67
 C I V P R O I V C i v i l P r o c e d u r e P a g e | 110

Further, it needs repeating that while it is the Ombudsman who has the full SO ORDERED.
discretion to determine whether or not a criminal case should be filed in the
Sandiganbayan, once the case has been filed with said court, it is the Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Chico-Nazario, JJ.,
Sandiganbayan, and no longer the Ombudsman, which has full control of the concur.
case so much so that the Information may not be dismissed without the
approval of said court.68

Next, Nava contends that he was not accorded the opportunity to file a
motion for reconsideration within five (5) days from receipt thereof and before
the filing of the Information69 in violation of Section 7 of Administrative Order
No. 7, as amended by Administrative Order No. 9, which provides that:

Sec. 7. Motion for Reconsideration.

a) Only one motion for reconsideration or reinvestigation of an

approved order or resolution shall be allowed; the same to be filed
with the Office of the Ombudsman, or of the Deputy Ombudsman as
the case may be, within an inextendible period of five (5) days from
notice thereof.

b) No motion for reconsideration or reinvestigation shall be

entertained after the information shall have been filed in court, except
upon order of the court wherein the case was filed.70

We find that the issue not of momentous legal significance for non-
compliance with Section 7 of Administrative Order No. 7 does not affect the
validity of the Information filed with the Sandiganbayan. An aggrieved party's
motion for reconsideration or reinvestigation may nevertheless be filed and
acted upon by the Ombudsman if so directed by the court where the
information was filed such as what had taken place in this case.71

Finally, reliance on the cases of Arias and Magsuci cannot be countenanced

as they are not on all fours with the present Petition. In both cases, trial on
the merits had already been held, as in fact the judgment of conviction was
challenged in the petition, and therefore the Court had the opportunity to
appreciate the evidentiary matters which came out of the trial. On the other
hand, Nava's allegations in the case involve evidentiary issues which could
be resolved only in a full-blown trial and not presently in this Petition.

ACCORDINGLY, the instant Petition is DISMISSED. Costs against

petitioner.

G.R. No. L-55694 October 23, 1981
ADALIA B. FRANCISCO, ZENAIDA FRANCISCO, ESTER FRANCISCO,
ADELUISA FRANCISCO and ELIZABETH FRANCISCO, petitioners,
vs.
HON. BENIGNO M. PUNO, as Presiding Judge, Court of First Instance of
Quezon, Branch II, Lucena City and JOSEFINA D. LAGAR respondents.
Remedial Law; Civil Procedure; Remedies of petition for relief from judgment
and motion for new trial and/or reconsideration are exclusive of each other;
Filing of a timely motion for new trial precludes filing of a petition for relief after
denial of motion.—In other words, where, as in this case, another remedy is
available, as, in fact, private respondent had filed a motion for new trial and/or
reconsideration alleging practically the same main ground of the petition for
relief under discussion, which was denied, what respondent should have done
was to take to a higher court such denial. A party who has filed a timely motion
for new trial cannot file a petition for relief after his motion has been denied.
These two remedies are exclusive of each other. It is only in appropriate cases
where a party aggrieved by a judgment has not been able to file a motion for
new trial that a petition for relief can be filed.
Same; Same; Notices; Notice to counsel of a decision is notice to the party
represented.—In any event, We hold that notice to counsel of the decision is
notice to the party for purposes of Section 3 of Rule 38. The principle that
notice to the party, when he is represented by a counsel of record, is not valid
is applicable here in the reverse for the very same reason that it is the lawyer
who is supposed to know the next procedural steps or what ought to be done
in law henceforth for the protection of the rights of the client, and not the latter.
PETITION for certiorari to review the judgment of the Court of First Instance
of Quezon, Branch II.
The facts are stated in the opinion of the Court.
BARREDO, J.:
Petition for certiorari impugning the resolution of respondent judge of October
8, 1980 granting private respondent's petition for relief from the judgment
rendered by the same respondent judge on January 8, 1980 in Civil Case
No. 8480 of the Court of First Instance of Quezon which dismissed private
respondent's complaint for reconveyance of a parcel of land and damages.
C I V P R O I V C i v i l P r o c e d u r e P a g e | 111
That decision was rendered notwithstanding the absence of petitioners at the
pre-trial by reason of which they were declared in default. It was based alone
on the testimony of private respondent Josefina D. Lagar and the documents
she presented.
On August 29, 1979, private respondent filed with respondent judge a
complaint for reconveyance of a parcel of land and damages alleging inter
alia that respondent's father caused the land in question titled in his name
alone as "widower", after her mother's death, in spite of the property being
conjugal, and then sold it to the predecessor in interest of petitioners from
whom they bought the same.
After the defendants, herein petitioners had filed their answer, wherein they
alleged lack of personality of plaintiff to sue, prescription and that they are
buyers in good faith, the case was set for pre-trial, but petitioners failed to
appear thereat. Taking advantage of such absence, private respondent's
counsel move that they be declared in default and that private respondent,
with the assistance of her counsel, Atty. Pacifico M. Monje, be allowed to
present their evidence. The motion was granted and after presenting her
evidence, counsel rested her case. On the same date, respondent judge
rendered judgment finding the evidence insufficient to sustain the cause of
action alleged and therefore dismissing the complaint. That was on January
8, 1980. On February 15, 1980, respondent's counsel was served with copy
of the decision. (See Annex G of the petition.)
On February 16, 1980, private respondent filed, thru a new counsel, Atty.
Bienvenido A. Mapaye, a motion for new trial and/or reconsideration alleging
that the insufficiency of her evidence was due to the fault of her counsel who
presented the same without her being fully prepared. In other words, she
claimed, she had newly discovered evidence that could prove her cause of
action. It is relevant to note that said motion was signed and sworn to by
private respondent herself together with her counsel.
Acting on the said motion for new trial and/or reconsideration, on April 28,
1980, respondent judge denied the same for having been filed out of time.
Indeed, from January 15, 1980, when respondent's counsel was served with
the decision, to February 16, 1980, when the motion was filed, more than 30
days had already elapsed (32 days to be exact).
Persisting in her effort to pursue her claim, under date of May 7, 1980,
private respondent filed, thru another new counsel, Atty. Ricardo Rosales,
Jr., a petition for relief, purportedly under Rule 38, claiming:

1. She filed civil case 8480 for Reconveyance and Damages
against defendants Luis Francisco, et al., on August 29,
1979.
2. The main trust in petitioner's action against defendant was
her unlawful deprivation of one-half of the property covered
by TCT No. 2720 and denominated as Lot 4864 of the
cadastral survey of Lucena, as said parcel belongs to the
conjugal partnership of Dionisio Lagar and Gaudencia Daelo,
plaintiff-petitioner's immediate predecessor-in-interest.
3. Gaudencia Daelo having predeceased her husband,
petitioner contends that one-half of the property belongs to
her mother and therefore should rightfully by inherited by her
after her mother's death, but failed however, to inherit any
part thereof, because her father sold the entire parcel to the
defendant Luis Francisco.
4. On January 8, 1980, a pre-trial hearing was scheduled,
where defendants were declared as if in default thereafter an
order of default was issued and plaintiff adduced evidence
ex-parte.
5. On the same date, January 8, 1980, a decision was
rendered dismissing the case after plaintiff took the witness
stand, who through excusable neglect was not able to
expound on very vital points and inadvertently failed to
introduce in support of her theory.
6. Because plaintiff-petitioner was under the belief that the
scheduled hearing was one where no testimony is yet to be
taken, coupled by the fact that she was not prepared to
testify, and that it was her first time to take the witness stand,
she did not fully comprehend the questions propounded to
her.
7. Plaintiff-petitioner filed a Motion for Reconsideration
and/or new trial but was denied in its order dated April 28,
1980, which petitioner received on May 5,1980.
8. If plaintiff-petitioner will be allowed to introduce evidence
in her possession, which by excusable neglect and/or
mistake were not introduced, the same will necessarily alter
C I V P R O I V C i v i l P r o c e d u r e P a g e | 112
and, or change the decision in her favor, attached is her
affidavit of merits.
9. Evidence in support of her claim that it is a conjugal
property consist of a deed of sale executed by Manual
Zaballero and Germana Ona in favor of the conjugal
partnership of Dionisio Lagar and Gaudencia Daello (Doc.
No. 412; Page No. 55; Book No. 11; Series of 1948 of Notary
Public Francisco Mendioro xerox copy thereof is attached
herewith as Annex "A".
10. The deed of sale ratified by Notary Public Ramon
Ingente (Doc. No. 68; Page No. 7; Book No. VI; Series of
1955 executed by Dionisio Lagar should refer only to one-
half (1/2) and therefore is annulable in so far as the other
half of the property is Concerned.
11. That the petition wherein Dionisio Lagar sought [4)
change his civil status was not known personally to the
plaintiff-petitioner and/or not understood by her, otherwise
she could have made reservations in that petition eventually
protecting her right insofar as one-half (1/2) of the property is
concerned.
12. Plaintiff-petitioner has a valid substantial cause of action
consisting of evidence enumerated above, which by
excusable negligence or error was not presented otherwise,
the decision will be in favor of the plaintiff herein petitioner.
(Petition for Relief of Judgment, pp. 50-52, Record
Answering the petition for relief, petitioners maintained that aside from the
fact that no excusable negligence has been alleged, for, on the contrary,
there was an evident effort oil respondent's part to take advantage of the
absence and default of petitioners when respondent presented her evidence,
the petition for relief was filed out of time in the light of Section 3 of Rule 38,
which provides that such a petition should be " filed within sixty (60) days
after the petitioner learns of the judgment, order or proceeding to be set
aside, and not more than six (6) months after such judgment or order was
entered or such proceeding was taken."
In his resolution of October 8, 1980 now under question, respondent judge
ruled that:

Defendants' claim that plaintiff is presumed to have learned
of the judgment of January 8, 1980, either on January 15,
1980 when Atty. Monje received a copy thereof or on
February 15, 1980, when plaintiff signed the Motion for
Reconsideration and/or New Trial prepared by Atty. Mapaye,
in either case, the petition for relief of May 8, 1980 by Atty.
Rosales was resorted to beyond the 60-day period
prescribed under Section 3, Rule 38 of the Rules of Court;
from January 15 to May 8 is a period of 114 days and from
February 15 to May 8 is a period of 84 days; in either case,
the filing of the petition for relief is beyond 60 days from the
time plaintiff is presumed to have learned of said decision of
January 8, although, in either or both events, the filing
thereof is admittedly within 6 months from the issuance of
said decision; on the other hand, the plaintiff stated that she
did not actually learn of the decision of January 8, until she
received a copy thereof on March 17, 1980 (p. 67 of Record
or Exh. "G") and that she was not informed of the contents of
the motion for new trial and/or reconsideration on February
15, 1980 when she was made to sign it (TSN, pp. 20-21, July
28, 1980).
Q From where did you secure that copy of
the decision?
A I went to the court myself and secured a
copy of the decision. (TSN, p. 16-id).
xxx xxx xxx
Q And you are sure of the fact that you only
became aware of the decision in the month
of March, 1980?
A Yes. sir, (TSN, p. 20, Id).
In the light of the circumstances obtaining in this case, it is
the opinion of the Court that it is the date when plaintiff
actually learned of the decision from which she seeks relief
that should be considered in computing the period of 60 days
prescribed under Sec. 3, Rule 38 of the Rules of Court for
purposes of determining the timeliness of the said petition for
relief; this opinion finds support in Cayetano vs. Ceguerra et
C I V P R O I V C i v i l P r o c e d u r e P a g e | 113
al., No. L-18831, 13 SCRA, where the Supreme Court, in
effect, held that the date of 'actual knowledge' (and not the
presumed date of receipt or knowledge) of the decision,
order or judgment from which relief is sought shall be the
date which should be considered in determining the
timeliness of the filing of a petition for relief; in that case, the
Supreme Court said:
It is conceded that defendants received a
first registry notice on January 13, 1961, but
they did not claim the letter, thereby giving
rise to the presumption that five (5) days
after receipt of the first notice, the
defendants were deemed to have received
the letter. This Court, however, cannot justly
attribute upon defendants actual knowledge
of the decision, because there is no showing
that the registry notice itself contained any
indication that the registered letter was a
copy of the decision, or that the registry
notice referred to the case being ventilated.
We cannot exact a strict accounting of the
rules from ordinary mortals, like the
defendants. (Resolution, pp. 67-68, Record.)
We cannot agree, for two reasons. First, according to Chief Justice Moran:
The relief provided for by this rule is not regarded with favor
and the judgment would not be avoided where the party
complaining "has, or by exercising proper diligence would
have had, an adequate remedy at law, or by proceedings in
the original action, by motion, petition, or the like to open,
vacate, modify or otherwise obtain relief against, the
judgment." (Fajardo v. Judge Bayona, etc., et al., 52 O.G.
1937; See Alquesa v. Cavoda L-16735, Oct. 31, 1961, citing
49 C.J.S. 695.) The remedy allowed by this rule is an act of
grace, as it were, designed to give the aggrieved party
another and last chance. Being in the position of one who
begs, such party's privilege is not to impose conditions,
haggle or dilly-dally, but to grab what is offered him.
(Palomares, et al. v. Jimenez, et al., L-4513, Jan. 31, 1952.)
(Page 226, Moran, Comments on the Rules of Court, Vol. 2,
1979 Edition.)
 C I V P R O I V C i v i l P r o c e d u r e P a g e | 114

In other words, where, as in this case, another remedy is available, as, in ACCORDINGLY, judgment is hereby rendered setting aside the resolution of
fact, private respondent had filed a motion for new trial and/or respondent judge of October 8, 1980 and reinstating his decision of January
reconsideration alleging practically the same main ground of the petition for 8, 1980 in Civil Case No. 8480 of his court, which latter decision may now be
relief under discussion, which was denied, what respondent should have executed, the same being already final and executory. No costs.
done was to take to a higher court such denial. A party who has filed a timely
motion for new trial cannot file a petition for relief after his motion has been Aquino, Concepcion, Jr., Abad Santos and De Castro, JJ., concur.
denied. These two remedies are exclusive of each other. It is only in
appropriate cases where a party aggrieved by a judgment has not been able
to file a motion for new trial that a petition for relief can be filed.

Second, it is beyond doubt that the petition for relief of private respondent
was filed out of time. We cannot sanction respondent court's view that the
period should be computed only from March 17, 1980 when she claims self-
servingly that she first knew of the judgment because, as stated above, she
signed and even swore to the truth of the allegations in her motion for new
trial filed by Atty. Mapaye on February 16, 1980 or a month earlier. To give
way to her accusations of incompetence against the lawyer who handled her
case at the pre-trial, which resulted in a decision adverse to her despite the
absence of petitioners, and charge again later that her new counsel did not
inform her properly of the import of her motion for new trial and/or
reconsideration is to strain the quality of mercy beyond the breaking point
and could be an unwarranted slur on the members of the bar. That, however,
Atty. Mapaye cud not pursue the proper course after his motion for new trial
was denied is, of course, unfortunate, but We are unaware of the
circumstances of such failure and how much of it could be attributed to
respondent herself, hence We cannot say definitely Chat it was counsel's
fault,

In any event, We hold that notice to counsel of the decision is notice to the
party for purposes of Section 3 of Rule 38. The principle that notice to the
party, when he is represented by a counsel of record, is not valid is
applicable here in the reverse for the very same reason that it is the lawyer
who is supposed Lo know the next procedural steps or what ought to be
done in law henceforth for the protection of the rights of the client, and not
the latter.

Under the circumstances, We hold that respondent judge acted beyond his
jurisdiction in taking cognizance of private respondent's petition for relief and,
therefore, all his actuations in connection therewith are null and void, with the
result that his decision of January 8, 1980 should be allowed to stand, the
same having become final and executory.

G.R. No. L-17722 October 9, 1961
MAURICIO GORDULAN, plaintiff-appellee,
vs.
CESAREO GORDULAN, defendant-appellant.
Petition for relief; Requirements in Rule 38, Rules of Court, considered sine
qua non; Case at bar.—Rule 38 of the Rules of Court is a special remedy and
the requirements therein set forth are considered sine qua non to the proper
allowance of relief Sections 2 and 3 thereof are explicit, and require not only
a. sworn statement of the facts constituting petitioner’s good and substantial
defense, but likewise a showing that the failure to file an answer was by reason
of fraud, accident, mistake or excusable negligence. While in the case at bar,
appellant’s petition for relief contains a recital of facts, duly sworn to by him,
that the lot in dispute is owned in common by the plaintiff and the defendant in
equal shares, nothing is offered to show that there was fraud, mistake,
accident or excusable negligence in the failure of the lawyer to timely join
issues with the plaintiff. Hence, the petition was correctly denied.
Attorney and client; Client bound by acts and mistakes of his counsel.—A client
is bound by the acts, even by the mistakes and negligence, of his counsel in
the realm of procedural technique. Of course, the door is open for him to seek
redress against the erring lawyer for the wrong suffered (Isaac vs. Mendoza,
L-2820, June 21, 1951).
APPEAL from an order of the Court of First Instance of Nueva Ecija.
The facts are stated in the opinion of the Court.
Agustin Bagasao for plaintiff-appellee.
Pedro D. Maldia for defendant-appellant.
REYES, J.B.L., J.:
This appeal, which was certified to this Court by the Court of Appeals
because only issues of law are raised, questions an order of the Court of
First Instance of Nueva Ecija denying defendant's petition for relief from a
final judgment by default.
It is uncontested that in Civil Case No. 2488 of the court below, a suit for the
recovery of land, the defendant therein, Cesareo Gordulan, although duly
summoned, failed to file his answer in due time. Upon motion of the plaintiff,
C I V P R O I V C i v i l P r o c e d u r e P a g e | 115
the defendant was declared in default. After reception of evidence for the
plaintiff, the lower court rendered judgment against defendant (now
appellant). Availing himself of the provisions of Rule 38 of the Rules of Court,
the defendant Cesareo Gordulan sought to set the judgment aside, claiming
that he had good and valid defenses against plaintiff's complaint and that it
was excusable negligence on his part that his counsel failed to file an
answer.
His petition having been denied, the defendant interposed this appeal.
The questioned order should not be disturbed. Section 2 and 3 of Rule 38 of
the Rules of Court are explicit, and require not only a sworn statement of the
facts constituting petitioner's good and substantial defense, but likewise a
showing that the failure to file an answer was by reason of fraud, accident,
mistake or excusable negligence. While appellant's petition for relief contains
a recital of facts, duly sworn to by him, that the lot in dispute is owned in
common by the plaintiff and the defendant in equal shares, nothing is,
however, offered to show that there was fraud, mistake, accident or
excusable negligence in the failure of the lawyer to timely join issues with the
plaintiff.
The trial judge, Honorable Felix V. Makasiar, has correctly pointed out in the
appealed order:
considering that the negligence of Atty. Antero Tomas, as counsel for
the defendant, in failing to file his answer to the complaint within the
reglementary period is not excusable and, therefore, not a ground for
relief; that Atty. Antero Tomas has not even submitted any affidavit
with respect to his alleged negligence; that the defendant had the
duty to inquire from Atty. Tomas as to what he did with the complaint
or whether he filed his answer thereto or the status of the case
before the order of default on May 27, 1957, or before the plaintiff
presented his evidence on July 18, 1957 and could have presented a
motion to set aside the order of default prior to July 18, 1957 (See
Taguinod, et al. vs. Mangantilao, L-7970, February 28, 1956; Robles,
et al. v. San Jose, et al., L-8627, July 31, 1956; 52 Off. Gaz. 6183;
Vivero v. Belo, No. L-8105, February 28, 1956; 52 Off. Gaz, 1924);
that the defendant could have easily inquired from the records as to
the status of the case inasmuch as his residence in Muñoz is only
less than one hour by bus from Cabanatuan City; and that his duty to
make such an inquiry is underscored by his claim that his harvest of
palay of 16 cavans from the land for the agricultural year 1956-57
 C I V P R O I V C i v i l P r o c e d u r e P a g e | 116

was attached by the plaintiff's mortgagee, the petition for relief is

hereby denied.

Rule 38 is a special remedy and the requirements therein set forth are
considered as conditions sine qua non to the proper allowance of relief.

Neither is it arguable that defendant should not be held to suffer for his
counsel's shortcomings, for a client is bound by the acts, even by the
mistakes and negligence, of his counsel in the realm of procedural technique.
Of course, the door is open for him to seek redress against the erring lawyer
for the wrong suffered (Isaac vs. Mendoza, L-2820, June 21, 1951).

WHEREFORE, the order appealed from is affirmed, with costs against

appellant.

Bengzon, C.J., Padilla, Labrador, Concepcion, Paredes and De Leon, JJ.,

concur.

G.R. No. L-46674 September 16, 1985
LAUREANO ARCILLA, petitioner,
vs.
BASILISA ARCILLA, SERAPIA ARCILLA, MARCELA ARCILLA, DIONISIA
ARCILLA, ZACARIAS ARCILLA, GAVINA MOLO VDA. DE ARCILLA,
CESAR M. ARCILLA, GLORIA M. ARCILLA, ANTONIO M. ARCILLA,
POMPEY M. ARCILLA, ERNESTO M. ARCILLA, ELENA M. ARCILLA,
ASUNCION M. ARCILLA, RANULFO M. ARCILLA, IGLESIA A. CAÑETE,
ROSABELLA A. CAÑETE, and HONORABLE FRANCIS J. MILITANTE,
Presiding Judge of Branch IX of the Court of First Instance of Cebu,
respondents.
with the provisions of Rule 38, especially on timely filing of said petition.—The
rule, therefore, is that in order for a petition for relief filed under Rule 38 to be
entertained by the court, the petitioner must satisfactorily show that he has
faithfully and strictly complied with the provisions of said Rule 38.
Consequently, in assailing the lower court’s dismissal of his petition for relief
for having been filed out of time, it is incumbent upon herein petitioner to show
that the said petition was filed within the reglementary period specified in
Section 3, Rule 38. He has failed to do so, instead he argues on the merits of
his petition for relief, without first showing that the same was filed on time in
the court below. On this ground alone, the instant case should be dismissed.
Same; Same; Same.—Moreover, We agree with the respondent Judge that
the petition for relief was filed late. We note that the decision sought to be set
aside was rendered on October 27, 1976. Petitioner, through counsel, received
a copy of the said decision on November 8, 1976, and he filed his petition for
relief from judgment only on April 18, 1977. Clearly, the same was filed beyond
the period allowed by Section 3 of Rule 38. As in previous cases, this Court
holds and so rules that the instant petition filed after the lapse of the
reglementary period cannot be entertained.
Pre-trial; Actions; Default; Where defendant was actually present at the pre-
trial, the fact that only his counsel was notified in writing of the next-pre-trial is
no excuse for setting aside the order of default.—At first blush, petitioner’s
aforesaid contention appears very tenable, for indeed it is settled that a
declaration of default, in the absence of a notice of pre-trial constitutes denial
of due process. But a deeper examination of the pleadings and the record of
the case would show that petitioner was present during the pre-trial conference
on July 29, 1975 when the lower court re-set the pre-trial to October 2, 1975.
On the said date, however, although notified, both petitioner and his counsel
C I V P R O I V C i v i l P r o c e d u r e P a g e | 117
did not appear, hence, the declaration of default pursuant to Sec. 2, of Rule 20
of the Rules of Court.
Judgments; Motions; General allegation “that defendant has a good and valid
defense” is not sufficient compliance for relief from judgment to be granted
under Rule 38.—Examining the petition for relief filed by petitioner, while the
same appears verified and accompanied by an affidavit of merit, the
allegations of fact made therein do not prove either fraud, accident, mistake,
or excusable negligence, nor show a valid defense in favor of the party seeking
relief. The general allegation made therein to the effect that “petitioner has a
good and valid defense considering that the late Segunda O. Vda. de Arcilla
voluntarily and willingly executed the document of Sale”, is not sufficient
compliance with the rules. Since the Deed of Sale sought to be annulled was
written in English and it is admitted that Segunda O. Vda. de Arcilla is an
illiterate and do not know how to read and write, it would have been an easy
matter for petitioner to have secured the affidavit of Nemesio Jubay, the Notary
Public who allegedly notarized the document as well as the witnesses to the
execution and signing thereof to show that the contents of the document was
fully explained to said Segunda O. Vda. de Arcilla and that she voluntarily
signed the same. This way, petitioner could convince the Court that in his legal
fight, he had a leg on which to stand. It thus results that reversal of the order
complained of, as well as the judgment rendered thereon would be an idle
ceremony. It would not advance or for that matter serve the ends of justice. It
would only result in another waste of time, effort and expense Paraphrasing
what this Court has stated in Paner vs. Yatco it would be pointless to re-open
this case, “for like a mirage it would merely raise false hopes and in the end
avail her (him) nothing.”
SPECIAL CIVIL ACTION for certiorari and prohibition to review the Order of
the Court of First Instance of Cebu, Br. IX. Militante, J.
The facts are stated in the opinion of the Court.
Vicente Varela, Jr. for petitioner.
Basilio E. Duaban for respondents.
CUEVAS, J.:
The instant special civil action for certiorari and PROHIBITION assails the
Order1 dated May 18, 1977 issued by respondent Judge Francis J. Militante,

presiding Judge of the then Court of First Instance of Cebu, Branch IX in Civil
Case No. 395-T, denying Laureano Arcilla's Petition for Relief from
Judgment, for having been filed beyond the period prescribed by Section 3,
Rule 38 of the Rules of Court.
Petitioner was among the several defendants in Civil Case No. 395-T, an
action for Annulment of Sale with Damages, filed by the herein private
respondents before the then Court of First Instance of Cebu on May 28,
1973.
After the issues were joined by the filing of defendants' Answer, the case was
set for pre-trial conferences. At the scheduled pre-trial on July 29, 1975, the
lower court issued the following Order. 2
Let the continuation of the pre-trial of this case be set to
October 2, 1975 at 8:30 a.m. in Cebu City.
Attys. Duaban and Monteclaros are notified in open court.
On October 2, 1975, defendants (among whom is the petitioner herein) and
their counsel did not appear. Whereupon, on motion of plaintiffs' (now private
respondents) counsel, defendants were declared in default 3 pursuant to
Section 2, Rule 20 of the Rules of Court and the plaintiffs were allowed to
present their evidence ex-parte.
On October 27, 1976, judgment4 was rendered in favor of the plaintiffs, the
dispositive portion of which reading as follows—
(1) Declaring the Deed of Sale (Exh. 'E') allegedly executed
by Segunda Vda. de Arcilla in favor of defendant Laureano
Arcilla as null and void;
(2) Declaring the eight (8) children of Segunda O. Vda. de
Arcilla (including defendant Laureano) as co-owners on
equal shares of the one-half (1/2) portion of that parcel of
land covered by Tax Declaration No. 00347 which was
adjudicated to her in the Extrajudicial Partition Settlement
and as co- owner in eight (8) equal shares of the parcel of
land covered by Tax Declaration No. 00349 which was
intended for her full usufruct
C I V P R O I V C i v i l P r o c e d u r e P a g e | 118
(3) Dismissing the complaint as against defendant Nemesio
Jubay.
Although the defendants had been declared in default, let a copy of this
decision be furnished them through their counsel.
SO ORDERED.
A copy of the aforesaid decision was sent to and received by defendants'
counsel of record, Atty. Cosme D. Monteclaros, on November 8,1976.
On March 25, 1977, herein petitioner, as one of the defendants in said Civil
Case No. 395-T, through his new counsel, filed a Motion to Lift Order of
Default and to Set Aside the Decision dated October 27, 1976, 5 which was
denied by respondent Judge in his Order dated April 12, 1977.
On April 16, 1977, petitioner filed a Petition for Relief from Judgment, 6
alleging mainly—
That on July 29, 1975, a Court Order was issued setting the
pre-trial of the above-entitled case to October 2, 1975;
however, on October 2, 1975, the then Hon. Presiding Judge
of this Court, without previous examination of the records as
to whether or not said defendants were duly notified of the
setting for pre-trial on that same date (October 2nd) and
upon oral motion by counsel for the plaintiffs, declared
defendants in default based and in accordance with the
supposed provisions of Sec. 2 of Rule 20 of the Revised
Rules of Court . . . the declaration of default under said Sec.
2 of Rule 20 is within supposition that the defendants sought
to be declared as such should be shown that they actually
know of such setting, but the records of the case disclose
that no notice was ever served upon said defendants;
That, defendants, particularly the principal defendant
Laureano Arcilla, learned of the decision of October 27, 1976
only on March 24, 1977 when the herein undersigned
counsel showed him a xerox copy of the same which the
undersigned counsel procured a day earlier. (Mar. 23)
That the defendants therefore seek the setting aside and
lifting the effects of the decision aforementioned based on

mistake and/or excusable neglect for their failure to inquire
from their lawyer Atty. Monteclaros or with this Court
believing that they will be duly notified of any proceeding in
connection with the above-entitled case either by their lawyer
Atty. Monteclaros or by the Office of the Clerk of Court of this
Court inasmuch as they are not the plaintiffs and are
therefore in the defensive side of the case.
That an Affidavit of Merit is attached to the present petition
for Relief of Judgment based on Rule 38 of the Revised
Rules of Court and herein marked as Annex '1' to form an
integral part hereof executed by principal defendant
Laureano Arcilla and said defendants, in accordance with the
obligations contained in said affidavit of merits, has a good
and valid defense against the claim of plaintiffs, considering
that the late Segunda O. Vda. de Arcilla voluntarily and
willingly executed the document of sale sought to be
annulled, the contents thereof having been fully explained to
her by the notary public and it was for a valuable
consideration.
On May 18, 197 7, respondent Judge issued his now assailed Order denying
petitioner's Petition for Relief, the pertinent portion reading as follows—
The plaintiff in her opposition, contends that the petition for
relief from judgment is already filed out of time because the
judgment of this Court was received by counsel for the
defendants on November 8, 1976, hence, the defendants
had only up to January 8, 1977 to file a petition for relief from
judgment. Sec. 3 of Rule 38 of the Rules of Court clearly
states that "A petition provided for in either of the preceeding
section of this rule must be verified, filed within sixty (60)
days after the petitioner learns of the judgment, order, or
other proceeding to be set aside, and not more than six (6)
months after such judgment or order was entered or said
proceeding was taken". It is claimed by the defendants that
they learned only of the judgment on March 24, 1977. This
contention of the defendants cannot be given weight
because notice to counsel is notice to the client and since
the defendants' former counsel Atty. Cosme D. Monteclaros
received the judgment on November 8, 1976, then the date
to be reckoned with is the date when the defendants'
counsel received the judgment which is November 8, 1976.
C I V P R O I V C i v i l P r o c e d u r e P a g e | 119
This Court is in sympathy with the pathetic plight of the
defendants if it is really true that the order declaring them in
default was not through a fault of their own but since they
slept on their rights for quite a time such as would bar the
present petition, this Court is not in a position to extend the
period within which to file the present petition for relief from
judgment.
In view of the foregoing, the petition for relief from judgment
is hereby denied for having been filed beyond the
reglementary period."
Attributing grave abuse of discretion on the part of respondent Judge in
issuing the aforesaid Order, petitioner now comes to Us through the instant
petition praying that the said challenged order be set aside and declared null
and void.
The only issue then to be resolved in this case is whether or not the lower
court acted with grave abuse of discretion and/or without jurisdiction in
denying the Petition for Relief from judgment for having been filed out of
time.
The pertinent provisions of Rule 38 of the Revised Rules of Court on "Relief
from Judgments, Orders or Other Proceedings" state—
Sec. 2. Petition to Court of First Instance for relief from
judgment or other proceeding thereof.—When a judgment or
order is entered, or any other proceeding is taken, against a
party in a Court of First Instance through fraud, accident,
mistake or excusable negligence, he may file a petition in
such court and in the same cause praying that the judgment,
order or proceeding be set aside.
Sec. 3. Time for filing petition contents and verification. —A
petition provided for in either of the preceding sections of this
rule must be verified filed within sixty (60) days after the
petitioner learns of the judgment, order or other proceeding
to be set aside, and not more than six (6) months after such
judgment or order was entered or such proceeding was
taken; and must be accompanied with affidavits showing the
fraud, accident, mistake or excusable negligence relied
upon, and the facts constituting the petitioner's good and
substantial cause of action or defense, as the case may be.

In the case of Turqueza vs. Hernando, L-51626, April 30, 1980, 97 SCRA
483, this Court held that—
The Court has said time and again that the doctrine of finality
of judgments is grounded on fundamental considerations of
public policy and sound practice that at the risk of occasional
error, the judgments of courts must become final at some
definite date fixed by law. The law gives an exception or "last
chance" of a timely petition for relief from judgment within the
reglementary period (within 60 days from knowledge and 6
months from entry of judgment) under Rule 38 supra, but
such grace period must be taken as "absolutely fixed,
inextendible, never interrupted and cannot be subjected to
any condition or contingency. Because the period fixed is
itself devised to meet a condition or contingency (fraud,
accident, mistake or excusable neglect), the equitable
remedy is an act of grace, as it were, designed to give the
aggrieved party another and last chance, and failure to avail
of such last chance within the grace period fixed by the
statute or the Rules of Court is fatal.
The rule, therefore, is that in order for a petition for relief filed under Rule 38
to be entertained by the court, the petitioner must satisfactorily show that he
has faithfully and strictly complied with the provisions of said Rule 38.
Consequently, in assailing the lower court's dismissal of his petition for relief
for having been filed out of time, it is incumbent upon herein petitioner to
show that the said petition was filed within the reglementary period specified
in Section 3, Rule 38. He has failed to do so, instead he argues on the merits
of his petition for relief, without first showing that the same was filed on time
in the court below. On this ground alone, the instant case should be
dismissed.
Moreover, We agree with the respondent Judge that the petition for relief was
filed late. We note that the decision sought to be set aside was rendered on
October 27, 1976. Petitioner, through counsel, received a copy of the said
decision on November 8, 1976, and he filed his petition for relief from
judgment only on April 18, 1977. Clearly, the same was filed beyond the
period allowed by Section 3 of Rule 38. As in previous cases, this Court
holds and so rules that the instant petition filed after the lapse of the
reglementary period cannot be entertained. 7
Arguing on the merits of his petition for relief, petitioner's main contention is
that the order of default was illegally and improperly issued because he was
C I V P R O I V C i v i l P r o c e d u r e P a g e | 120
not notified of the pre-trial on October 2, 1975, consequently, all subsequent
proceedings including the judgment by default were all null and void.
At first blush, petitioner's aforesaid contention appears very tenable, for
indeed it is settled that a declaration of default, in the absence of a notice of
pre-trial constitutes denial of due process. 8 But a deeper examination of the
pleadings and the record of the case would show that petitioner was present
during the pre-trial conference on July 29, 1975 when the lower court re-set
the pre-trial to October 2, 1975. On the said date, however, although notified,
both petitioner and his counsel did not appear, hence, the declaration of
default pursuant to Sec. 2, of Rule 20 of the Rules of Court.
The case filed before the lower court is for annulment of a deed of sale
allegedly executed by Segunda O. Vda. de Arcilla in favor of one of his sons,
herein petitioner Laureano Arcilla. It was originally filed and instituted by the
said Segunda O. Vda. de Arcilla but she died even before the pre-trial of the
case and was therefore substituted by her other children. The other
defendant in the case Nemesio Jubay was the Notary Public who allegedly
notarized the document. From the evidence presented by the plaintiffs, the
lower court found—
A careful perusal of the Deed of Sale (Exh. "E") sought to be
annulled bear and bare that the same was written in English
and that Segunda O. Vda. de Arcilla is an illiterate who do
not know how to write having affixed her thumbmark on the
said document which fact is corroborated by the testimony of
Marcela Arcilla.
While it is true that the natural presumption is that one always acts with due
care and signs with full knowledge of all the contents of a document for which
he can not repudiate the transaction (Abaya vs. Standard Vaccuume Oil Co.
L-9511, August 30, 1957; Javier vs. Javier, 7 Phil . 261; Tan Tua vs, Jy Liao
Sontua, 56 Phil. 20) this presumption referred to cannot apply in the case at
bar when one of the parties is unable to read and write the contract in a
language not understood by one of the parties (Art. 1332, New Civil Code). In
both cases, the person enforcing the contract must show the terms thereof
have been fully explained to the party (Ayala vs. Balderama Lumber
Manufacturing Co., Inc. (CA) 490 O.G. 980)
Furthermore, the record is replete of proof that the care and custody of the
deceased Segunda O. Vda. de Arcilla was burdened on the defendant
Laureano Arcilla and this fact, coupled with the age, infirmity and intelligence
of the former, advantage may have favored the situation of the latter which
 C I V P R O I V C i v i l P r o c e d u r e P a g e | 121

lead to the consummation of the questioned document (Exh. "E") by virtue of

which the latter has the burden of proof to dislodge such misapprehension.
With respect to Atty. Nemesio Jubay, he should be reminded of the
protective mandate of Art. 1332 of the New Civil Code for those illiterates and
those documents drawn in English or Spanish."

Examining the petition for relief filed by petitioner, while the same appears
verified and accompanied by an affidavit of merit, the allegations of fact
made therein do not prove either fraud, accident, mistake, or excusable
negligence, nor show a valid defense in favor of the party seeking relief ...
The general allegation made therein to the effect that "petitioner has a good
and valid defense considering that the late Segunda O. Vda. de Arcilla
voluntarily and willingly executed the document of Sale", is not sufficient
compliance with the rules. Since the Deed of Sale sought to be annulled was
written in English and it is admitted that Segunda O. Vda. de Arcilla is an
illiterate and do not know how to read and write, it would have been an easy
matter for petitioner to have secured the affidavit of Nemesio Jubay, the
Notary Public who allegedly notarized the document as well as the witnesses
to the execution and signing thereof to show that the contents of the
document was fully explained to said Segunda O. Vda. de Arcilla and that
she voluntarily signed the same. This way, petitioner could convince the
Court that in his legal fight, he had a leg on which to stand. It thus results that
reversal of the order complained of, as well as the judgment rendered
thereon would be an Idle ceremony. It would not advance or for that matter
serve the ends of justice. It would only result in another waste of time, effort
and expense. Paraphrasing what this Court has stated in Paner vs. Yatco 9 it
would be pointless to re-open this case, "for like a mirage it would merely
raise false hopes and in the end avail her (him) nothing."

For the reasons stated above, the Order of the lower court dated May 8,
1977 denying herein petitioner's Petition for Relief should be affirmed.

WHEREFORE, the instant special civil action is hereby DISMISSED. Costs

against petitioner.

SO ORDERED.

Aquino (Chairman), Concepcion, Jr., Abad Santos, Escolin, Alampay and

Patajo, JJ., concur.

G.R. No. 156118 November 19, 2004
PABLO T. TOLENTINO and TEMPUS PLACE REALTY MANAGEMENT
CORPORATION, petitioners,
vs.
HON. OSCAR LEVISTE, Presiding Judge, RTC, Quezon City, Br. 97 and
SPOUSES GERARDO CINCO, JR. and PAMELA H. CINCO, respondents.
Judgments; Annulment; Grounds; Extrinsic Fraud; The overriding
consideration when extrinsic fraud is alleged is that the fraudulent scheme of
the prevailing litigant prevented a party from having his day in court.—Under
the Rule, an action for annulment of judgments may only be availed of on the
following grounds: (1) extrinsic fraud and (2) lack of jurisdiction. Extrinsic
fraud refers to any fraudulent act of the prevailing party in the litigation which
is committed outside of the trial of the case, whereby the unsuccessful party
has been prevented from exhibiting fully his case, by fraud or deception
practiced on him by his opponent. Fraud is regarded as extrinsic where it
prevents a party from having a trial or from presenting his entire case to the
court, or where it operates upon matters pertaining not to the judgment itself
but to the manner in which it is procured. The overriding consideration when
extrinsic fraud is alleged is that the fraudulent scheme of the prevailing
litigant prevented a party from having his day in court.
Same; Same; Same; Same; Negligence; Counsel; A client is bound by the
mistakes of his counsel except when the negligence of his counsel is so gross,
reckless and inexcusable that the client is deprived of his day in court.—x x x
Litigants represented by counsel should not expect that all they need to do is
sit back, relax and await the outcome of their case. To agree with petitioner’s
stance would enable every party to render inutile any adverse order or decision
through the simple expedient of alleging negligence on the part of his counsel.
The Court will not countenance such ill-founded argument which contradicts
long-settled doctrines of trial and procedure. We reiterate the rule that a client
is bound by the mistakes of his counsel except when the negligence of his
counsel is so gross, reckless and inexcusable that the client is deprived of his
day in court. Only when the application of the general rule would result in
serious injustice should the exception apply.
Same; Same; Same; Same; Lack of Jurisdiction; Lack of jurisdiction as a
ground for annulment of judgment refers to either lack of jurisdiction over the
person of the defending party or over the subject matter of the claim.—Lack of
C I V P R O I V C i v i l P r o c e d u r e P a g e | 122
jurisdiction as a ground for annulment of judgment refers to either lack of
jurisdiction over the person of the defending party or over the subject matter
of the claim. Jurisdiction over the person of the defendant or respondent is
acquired by voluntary appearance or submission by the defendant or
respondent to the court, or by coercive process issued by the court to him,
generally by the service of summons.
Jurisdiction; Exercise of Jurisdiction; Distinguished; Jurisdiction is not the
same as the exercise of jurisdiction.—Jurisdiction is not the same as the
exercise of jurisdiction. As distinguished from the exercise of jurisdiction,
jurisdiction is the authority to decide a cause, and not the decision rendered
therein. Where there is jurisdiction over the person and the subject matter, the
decision on all other questions arising in the case is but an exercise of the
jurisdiction. And the errors which the court may commit in the exercise of
jurisdiction are merely errors of judgment which are the proper subject of an
appeal.
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Camacho and Associates for petitioners.
Epifanio Cua for respondents.
DECISION
PUNO, J.:
Petitioners Pablo T. Tolentino and Tempus Place Realty Management
Corporation seek the review and reversal of the decision and amended
decision of the Court of Appeals in CA-G.R. SP No. 59506 entitled "Tempus
Place Realty Management Corporation and Pablo T. Tolentino vs. Hon.
Oscar Leviste, Presiding Judge, RTC - Quezon City, Branch 97 and Sps.
Gerardo Cinco, Jr., and Pamela H. Cinco." The Court of Appeals denied
petitioners’ petition for annulment of the decision of the Regional Trial Court
(RTC) of Quezon City, Branch 97, on the action for specific performance with

damages filed by respondents Spouses Gerardo and Pamela Cinco against
them.
The antecedent facts are as follows:
On October 18, 1996, respondents Spouses Gerardo Cinco, Jr. and Pamela
Cinco filed a complaint for specific performance with damages against
petitioners Tempus Place Realty Management Corporation and Pablo T.
Tolentino. The complaint alleged that respondents purchased from
petitioners a condominium unit in Tempus Place Condominium II at
Katarungan St., Diliman, Quezon City. Despite, however, the execution of the
Deed of Absolute Sale and the delivery of the owner’s copy of the
condominium certificate of title, petitioners failed to deliver possession of the
unit because they have allegedly leased it to a third party. The complaint
further alleged that petitioners refused to pay the corresponding capital gains
tax and documentary stamp tax on the transaction, and execute the
necessary board resolution for the transfer of the property, thus preventing
respondents from registering the Deed of Absolute Sale and transferring the
title to the unit in their names. The respondents claimed that because
petitioners refused to deliver possession of the unit and instead leased it to a
third party, they are entitled to a reasonable rental value in the amount of
P20,000.00 a month from May 1994 until the time the possession of the unit
is delivered to them. They also claimed moral damages in the amount of
P1,000,000.00 and exemplary damages in the amount of P1,000,000.00 plus
attorney’s fees in the amount of P1,000,000.00.1
As petitioners failed to file their answer to the complaint, Hon. Oscar Leviste,
Presiding Judge, RTC, Branch 97, Quezon City, issued an order on January
17, 1997 granting respondents’ motion to declare petitioners in default. He
also appointed the Branch Clerk of Court to act as commissioner to receive
respondents’ evidence ex parte.2 After reception of evidence, the trial court,
on April 15, 1997, issued a decision for the respondents. It stated:
This Court after considering the oral and documentary evidences presented
by the plaintiff finds that the allegation contained in their pleadings are all true
facts and are entitled to the relief as prayed for, to wit:
1) To deliver to the plaintiffs the possession of the condominium unit
covered by CCT No. 5002 of the Register of Deeds of Quezon City;
2) To pay the corresponding capital gains tax and documentary
stamps tax on the transaction, and deliver the receipts thereof to the
plaintiffs;
C I V P R O I V C i v i l P r o c e d u r e P a g e | 123
3) To execute and deliver to the plaintiffs the necessary Board
Resolution;
4) Jointly and severally, to pay plaintiffs the following:
a. Actual damages in the amount of P20,000.00 a month
from May 1994, up to the time possession of the
condominium units (sic) is delivered to the plaintiffs
representing the reasonable rental value of the unit;
b. Moral damages in the amount of P1,000,000.00;
c. Exemplary damages in the amount of P1,000,000.00;
d. Attorney’s fees in the amount of P1,000,000.00.3
Petitioners thereafter filed a motion for new trial. They contended that their
right to fair and impartial trial had been impaired by reason of accident,
mistake or excusable negligence of their former counsel, a certain Atty.
Villamor.4 The trial court denied the motion for new trial for lack of merit.5
On November 3, 1997, petitioners, through their new counsel, Atty. Ricardo
A. Santos, filed a notice of appeal of the April 15 decision of the trial court.6
The Court of Appeals, however, dismissed the appeal on February 26, 1999
on the ground of abandonment as petitioners failed to submit the required
appeal brief.7 The decision became final and executory on March 26, 1999
and was recorded in the Book of Entries of Judgment.8
On July 4, 2000, petitioners filed with the Court of Appeals an action for
annulment of judgment based on the following grounds:
1. The judgment in default granted reliefs in excess of what is prayed
for in the complaint in gross violation of the clear provisions of the
1997 Rules of Civil Procedure.
2. The judgment in default awarded unliquidated damages in
palpable violation of the mandatory provision of Section 3[,] Rule 9,
1997 Rules of Civil Procedure.
3. The judgment in default is in gross violation of Section 14, Article
VIII, 1987 Constitution and Section 1, Rule 36, 1997 Rules of Civil
Procedure.

4. The judgment in default was rendered in violation of the rights of
the petitioner to substantive and procedural due process.
5. Corrollarily, the gargantuan award for damages by the court a quo
in patent and blatant violation of the law and settled jurisprudence [is]
unconscionable and clearly violative of substantial justice and
equities of the case.
6. Petitioners have good and substantial defenses in respect of
private respondents’ claims.
7. A fortiori, the court has no jurisdiction and/or authority and has
committed a grave abuse of discretion in awarding amounts in
excess of what is prayed for in the complaint nor proved by the
evidence as well as in palpable violation of the mandatory provisions
of the Civil Code and the Rules of Court and applicable decisions of
the Supreme Court. Consequently, the challenged judgment in
default is an absolute nullity.9
On April 23, 2002, the appellate court issued a decision modifying the trial
court decision. It explained that the annulment of judgment may be based on
Petitioners filed the instant petition for review of the decision and amended
the grounds of extrinsic fraud and lack of jurisdiction, and it is important that
decision of the Court of Appeals. They raise the following arguments:
petitioner failed to move for new trial, or appeal, or file a petition for relief, or
take other appropriate remedies assailing the questioned judgment, final
order or resolution through no fault attributable to him. The Court of Appeals
found that the trial court decision may not be annulled on the ground of
extrinsic fraud. It stated that the failure of petitioners’ counsel to file an
appellant’s brief in the Court of Appeals did not amount to extrinsic fraud as
to justify annulment of judgment, as it was not shown that their former
counsel’s omission was tainted with fraud and/or deception tantamount to
extrinsic or collateral fraud. Neither may it be annulled on the ground of lack
of jurisdiction as the action for specific performance and damages was within
the jurisdiction of the RTC. Nonetheless, the appellate court, in the interest of
justice and in the exercise of its sound discretion in determining the amount
of damages that may be awarded, held that the moral damages in the
amount of one million pesos (P1,000,000.00) was excessive. It lowered the
moral damages to P100,000.00. It also reduced the exemplary damages to
P100,000.00, and the attorney’s fees to P100,000.00.10
Respondents filed a motion for reconsideration of the Decision of the Court of
Appeals. On November 18, 2002, the Court of Appeals issued an Amended
Decision, the dispositive portion of which reads:
C I V P R O I V C i v i l P r o c e d u r e P a g e | 124
WHEREFORE, the Motion for Reconsideration is partly GRANTED in
that the dispositive portion of the assailed decision is modified as
follows:
a) Actual damages in the amount of P10,000.00 a month from May
1994, up to the time possession of the condominium units [sic] is
delivered to the plaintiffs (private respondents herein) representing
the reasonable rental value of the unit.
b) Moral damages in the amount of One Hundred Thousand Pesos
(P100,000.00);
c) Exemplary damages in the amount of One Hundred Thousand
Pesos (P100,000.00); and,
d) Attorney’s fees in the amount of One [H]undred Thousand Pesos
(P100,000.00).
SO ORDERED.11
1. The petitioners can avail of the remedy of annulment of judgment
to annul the decision of the RTC in Civil Case No. 96-29707 as Hon.
Judge Leviste had no jurisdiction and/or acted without jurisdiction in
issuing the April 15, 1997 Decision because:
a. The judgment in default granted reliefs in excess of what
is prayed for in the complaint in gross violation of the clear
provisions of the 1997 Rules of Civil Procedure.
b. The judgment in default awarded unliquidated damages in
palpable violation of the mandatory provision of Section 3[,]
Rule 9, 1997 Rules of Civil Procedure.
c. The judgment in default is in gross violation of Sec. 14,
Art. VIII, 1987 Constitution and Sec. 1, Rule 36, 1997 Rules
of Civil Procedure.

d. The judgment in default was rendered in violation of the
rights of the petitioner to substantive and procedural due
process.
2. The petitioners were prevented from having their day in court
because of the gross negligence of their former counsel, which gross
negligence amounts to extrinsic fraud.
3. The remedies of appeal, petition for relief or other remedies are no
longer available through no fault of petitioners.
4. The petitioners have valid and substantial defenses to
respondents’ cause of action.12
The petition is without merit.
The issue that needs to be resolved in this petition for review is whether the
Court of Appeals erred in dismissing the petition for annulment of judgment
filed by petitioners.
The governing rule is Rule 47 of the 1997 Rules of Civil Procedure on
Annulment of Judgments or Final Orders and Resolutions. Sections 1 and 2
of the Rule provide for its coverage and the grounds therefor, thus:
Sec. 1. Coverage. - This Rule shall govern the annulment by the
Court of Appeals of judgments or final orders and resolutions in civil
actions of Regional Trial Courts for which the ordinary remedies of
new trial, appeal, petition for relief or other appropriate remedies are
no longer available through no fault of the petitioner.
Sec. 2. Grounds for annulment. - The annulment may be based only
on the grounds of extrinsic fraud and lack of jurisdiction.
Extrinsic fraud shall not be a valid ground if it was availed of, or could have
been availed of, in a motion for new trial or petition for relief.
Under the Rule, an action for annulment of judgments may only be availed of
on the following grounds: (1) extrinsic fraud and (2) lack of jurisdiction.
Extrinsic fraud refers to any fraudulent act of the prevailing party in the
litigation which is committed outside of the trial of the case, whereby the
unsuccessful party has been prevented from exhibiting fully his case, by
C I V P R O I V C i v i l P r o c e d u r e P a g e | 125
fraud or deception practiced on him by his opponent. Fraud is regarded as
extrinsic where it prevents a party from having a trial or from presenting his
entire case to the court, or where it operates upon matters pertaining not to
the judgment itself but to the manner in which it is procured. The overriding
consideration when extrinsic fraud is alleged is that the fraudulent scheme of
the prevailing litigant prevented a party from having his day in court.13
Petitioners in this case did not allege nor present evidence of fraud or
deception employed on them by the respondents to deprive them of
opportunity to present their case to the court. They, however, assert that the
negligence of their former counsel in failing to file the appeal brief amounts to
extrinsic fraud which would serve as basis for their petition for annulment of
judgment. We disagree. The Court has held that when a party retains the
services of a lawyer, he is bound by his counsel’s actions and decisions
regarding the conduct of the case. This is true especially where he does not
complain against the manner his counsel handles the suit.14 Such is the
case here. When the complaint was filed before the trial court, summons was
served upon the petitioners.15 They allegedly referred the matter to Atty.
Villamor who was holding office at the building owned and managed by
respondent Tempus Place Realty Management Corporation.16 However,
after they have endorsed the summons to said lawyer, they did not exert any
effort to follow up the developments of the suit. Hence, they were declared in
default and judgment was rendered against them. Even in the course of the
appeal, they never bothered to check with their counsel, Atty. Ricardo
Santos, the status of the appeal. The notice of appeal was filed on November
3, 1997 and petitioners learned of the dismissal of the appeal in October
1999, after petitioner Tolentino received notice of garnishment of his
insurance benefits in connection with the judgment in Civil Case No. Q-96-
29207. It was only at that time that they learned that Atty. Santos had
migrated to Australia. This only shows that petitioners, as what happened
during the pendency of the case before the trial court, never bothered to
confer with their counsel regarding the conduct and status of their appeal.
The Court stated in Villaruel, Jr. vs. Fernando:17
xxx Litigants represented by counsel should not expect that all they
need to do is sit back, relax and await the outcome of their case. To
agree with petitioner’s stance would enable every party to render
inutile any adverse order or decision through the simple expedient of
alleging negligence on the part of his counsel. The Court will not
countenance such ill-founded argument which contradicts long-
settled doctrines of trial and procedure.18
 C I V P R O I V C i v i l P r o c e d u r e P a g e | 126

We reiterate the rule that a client is bound by the mistakes of his counsel relate to the court’s exercise of its jurisdiction, but petitioners failed to show
except when the negligence of his counsel is so gross, reckless and that the trial court did not have the authority to decide the case.
inexcusable that the client is deprived of his day in court.19 Only when the
application of the general rule would result in serious injustice should the Based on the foregoing discussion, it is clear that petitioners’ petition for
exception apply.20 We find no reason to apply the exception in this case. annulment of judgment had no basis and was rightly dismissed by the Court
of Appeals.
In addition, it is provided in Section 2 of Rule 47 that extrinsic fraud shall not
be a valid ground if it was availed of, or could have been availed of, in a IN VIEW WHEREOF, the petition at bar is DENIED.
motion for new trial or petition for relief. In other words, it is effectively barred
if it could have been raised as a ground in an available remedial measure.21 SO ORDERED.
The records show that after petitioners learned of the judgment of default,
they filed a motion for new trial on the ground of extrinsic fraud. It was
however denied by the trial court. They filed a notice of appeal thereafter. Austria-Martinez, Callejo, Sr., Tinga, and Chico-Nazario, JJ., concur.
Hence, they are now precluded from alleging extrinsic fraud as a ground for
their petition for annulment of the trial court decision.

We are also not persuaded by petitioners’ assertion that the trial court judge
lacked jurisdiction so as to justify the annulment of his decision in Civil Case
No. Q-96-29207. Lack of jurisdiction as a ground for annulment of judgment
refers to either lack of jurisdiction over the person of the defending party or
over the subject matter of the claim.22 Jurisdiction over the person of the
defendant or respondent is acquired by voluntary appearance or submission
by the defendant or respondent to the court, or by coercive process issued
by the court to him, generally by the service of summons. The trial court
clearly had jurisdiction over the person of the defending party, the petitioners
herein, when the latter received the summons from the court. On the other
hand, jurisdiction over the subject matter of the claim is conferred by law and
is determined from the allegations in the complaint. Under the law, the action
for specific performance and damages is within the jurisdiction of the RTC.
Petitioners’ submission, therefore, that the trial court lacked jurisdiction does
not hold water.

We note that petitioners’ arguments to support their stand that the trial court
did not have jurisdiction actually pertain to the substance of the decision.
Jurisdiction is not the same as the exercise of jurisdiction. As distinguished
from the exercise of jurisdiction, jurisdiction is the authority to decide a
cause, and not the decision rendered therein. Where there is jurisdiction over
the person and the subject matter, the decision on all other questions arising
in the case is but an exercise of the jurisdiction. And the errors which the
court may commit in the exercise of jurisdiction are merely errors of judgment
which are the proper subject of an appeal.23 The errors raised by petitioners
in their petition for annulment assail the content of the decision of the trial
court and not the court’s authority to decide the suit. In other words, they

G.R. No. 206653 February 25, 2015
YUK LING ONG, Petitioner,
vs.
BENJAMIN T. CO, Respondent.
Remedial Law; Civil Procedure; Annulment of Judgment; Rule 47 of the
1997 Rules of Civil Procedure, as amended, governs actions for annulment of
judgments or final orders and resolutions, and Section 2 thereof explicitly
provides only two (2) grounds for annulment of judgment, that is, extrinsic fraud
and lack of jurisdiction.—Annulment of judgment is a recourse equitable in
character, allowed only in exceptional cases as where there is no available or
other adequate remedy. Rule 47 of the 1997 Rules of Civil Procedure, as
amended, governs actions for annulment of judgments or final orders and
resolutions, and Section 2 thereof explicitly provides only two grounds for
annulment of judgment, that is, extrinsic fraud and lack of jurisdiction.
Annulment of judgment is an equitable principle not because it allows a party-
litigant another opportunity to reopen a judgment that has long lapsed into
finality but because it enables him to be discharged from the burden of being
bound to a judgment that is an absolute nullity to begin with.
Same; Same; Same; Lack of jurisdiction on the part of the trial court in
rendering the judgment or final order is either lack of jurisdiction over the
subject matter or nature of the action, or lack of jurisdiction over the person of
the petitioner.—Lack of jurisdiction on the part of the trial court in rendering the
judgment or final order is either lack of jurisdiction over the subject matter or
nature of the action, or lack of jurisdiction over the person of the petitioner. The
former is a matter of substantive law because statutory law defines the
jurisdiction of the courts over the subject matter or nature of the action. The
latter is a matter of procedural law, for it involves the service of summons or
other processes on the petitioner.
Same; Same; Same; Jurisdiction over the defendant is acquired either upon a
valid service of summons or the defendant’s voluntary appearance in court.—
In the present case, petitioner contends that there was lack of jurisdiction over
her person because there was an invalid substituted service of summons.
Jurisdiction over the defendant is acquired either upon a valid service of
summons or the defendant’s voluntary appearance in court. If the defendant
does not voluntarily appear in court, jurisdiction can be acquired by personal
or substituted service of summons as laid out under Sections 6 and 7 of Rule
14 of the Rules of Court.
C I V P R O I V C i v i l P r o c e d u r e P a g e | 127
PETITION for review on certiorari of the decision and resolution of the Court
of Appeals.
The facts are stated in the opinion of the Court.
Ephraim B. Cortez for petitioner.
Mark John F. Dumbrique for respondent.
DECISION
MENDOZA, J.:
In court proceedings, there is no right more cherished than the right of every
litigant to be given an opportunity to be heard. This right begins at the very
moment that summons is served on the defendant. The Rules of Court
places utmost importance in ensuring that the defendant personally grasp the
weight of responsibility that will befall him. Thus, it is only in exceptional
circumstances that constructive notification, or substituted service of
summons, is allowed. If the server falls short of the rigorous requirements for
substituted service of summons, then the Court has no other option but to
strike down a void judgment, regardless of the consequences. This is a
petition for review on certiorari seeking to reverse and set aside the June 27,
2012 Decision1 and the March 26, 2013 Resolution2 of the Court of Appeals
(CA)in CA-G.R. SP No. 106271, which denied the petition for annulment of
judgment.
The Facts
Petitioner Yuk Ling Ong (petitioner), a British-Hong Kong national, and
respondent Benjamin Co (respondent), a Filipino citizen, were married on
October 3, 1982 at Ellinwood-Malate Church.3
Sometime in November 2008, petitioner received a subpoena from the
Bureau of Immigration and Deportation (BID)directing her to appear before
the said agency because her permanent residence visa was being subjected
to cancellation proceedings. Reportedly, her marriage with respondent was
nullified by the court.
When petitioner appeared before the BID, she was furnished with the copies
of the following documents: (1) petition for declaration of nullity of marriage
 C I V P R O I V C i v i l P r o c e d u r e P a g e | 128

filed as Civil Case No. CV-01-0177; (2) petition for declaration of nullity of she was not psychologically incapacitated to perform her marital
marriage docketed as Civil Case No. 02-0306; (3) Decision,4 dated obligations.12
December 11, 2002, in Civil Case No. 02-0306 of the Regional Trial Court,
Branch 260 (RTC), Parañaque City, declaring the marriage between Ruling of the Court of Appeals
petitioner and respondent as void ab initio; and (4) their marriage contract5
with the subject decision annotated thereon. Petitioner was perplexed that
On June 27, 2012, the CA rendered the assailed decision finding the petition
her marriage with respondent had been declared void ab initio. The above
for annulment of judgment to be devoid of merit. It held that there was no
documents showed that on April 26, 2001, respondent filed a petition for
sufficient proof to establish that respondent employed fraud to insure
declaration of nullity6 on the ground of psychological incapacity before the
petitioner’s non-participation in the trial of Civil Case No. CV-01-0177.
RTC, which was docketed as Civil Case No. CV-01-0177. Respondent stated
that petitioner’s address was 600 Elcano St., Binondo, Manila. There was no
showing of its status, whether pending, withdrawn or terminated. On July 19, Relying on Robinson v. Miralles,13 the CA further ruled that the substituted
2002, respondent filed another petition for declaration of Nullity7 on the service of summons in Civil Case No. 02-0306 was valid. It found that there
ground of psychological incapacity before the RTC, docketed as Civil Case was a customary practice in petitioner’s townhouse that the security guard
No. 02-0306. Respondent indicated that petitioner’s address was 23 Sta. would first entertain any visitors and receive any communication in behalf of
Rosa Street, Unit B-2 Manresa Garden Homes, Quezon City. On July 29, the homeowners. With this set-up, it was obviously impossible for the
2002, the RTC issued summons.8 In his Server’s Return,9 process server process server to personally serve the summons upon petitioner. It also
Rodolfo Torres, Jr. stated that, on August 1, 2002, substituted service of declared that the process server’s return carries with it the presumption of
summons with the copy of the petition was effected after several futile regularity in the discharge of a public officer’s duties and functions.
attempts to serve the same personally on petitioner. The said documents
were received by Mr. Roly Espinosa, a security officer. Petitioner moved for reconsideration, but her motion was denied by the CA in
its Resolution,14 dated March 26, 2013.
On December 11, 2002, the RTC rendered a decision10 in Civil Case No.
02-0306 finding respondent’s marriage with petitioner as void ab initio on the Hence, this petition, anchored on the following
ground of psychological incapacity under Article 36 of the Family Code. It
stated that summons was served on petitioner on August 1, 2002, but she ISSUES
failed to file her responsive pleading within the reglementary period. The
public prosecutor also stated that there were no indicative facts to manifest 1. Whether or not the Trial Court in Civil Case No. 02-0306 validly
collusion. Thus, the RTC concluded that petitioner was psychologically acquired jurisdiction over the person of the petitioner.
incapacitated to perform her essential marital obligations.
2. Whether or not the facts proven by the petitioner constitute
Consequently, petitioner filed a petition for annulment of judgment11 under extrinsic fraud within the purview of Rule 47 of the Rules of Court.15
Rule 47 of the Rules of Court before the CA on November 24, 2008, claiming
that she was never notified of the cases filed against her. She prayed that the
Petitioner argues that there was an invalid substituted service of
RTC decision, dated December 11, 2002, in Civil Case No. 02-0306, be
summons.1âwphi1 The process server’s return only contained a general
nullified on the grounds of extrinsic fraud and lack of jurisdiction. Petitioner
statement that substituted service was resorted to "after several futile
alleged that first, respondent committed extrinsic fraud because, as seen in
attempts to serve the same personally,"16 without stating the dates and
Civil Case No. CV-01-0177, he deliberately indicated a wrong address to
reasons of the failed attempts. Petitioner also reiterates her argument that
prevent her from participating in the trial; second, jurisdiction over her person
extrinsic fraud was employed.
was not acquired in Civil Case No. 02-0306 because of an invalid substituted
service of summons as no sufficient explanation, showing impossibility of
personal service, was stated before resorting to substituted service of In his Comment,17 filed on July 9, 2014, respondent contended that the
summons; third, the alleged substituted service was made on a security server’s return satisfactorily stated the reason for the resort to a substituted
guard of their townhouse and not on a member of her household; and fourth, service of summons on August 1, 2002; and it was improbable that petitioner

failed to receive the summons because it was sent to the same address
which she declared in this present petition.
Petitioner filed her Reply18 on October 8, 2014 reiterating her previous
arguments.
The Court’s Ruling
The Court finds merit in the petition.
Annulment of judgment is a recourse equitable in character, allowed only in
exceptional cases as where there is no available or other adequate remedy.
Rule 47 of the 1997 Rules of Civil Procedure, as amended, governs actions
for annulment of judgments or final orders and resolutions, and Section 2
thereof explicitly provides only two grounds for annulment of judgment, that
is, extrinsic fraud and lack of jurisdiction.19 Annulment of judgment is an
equitable principle not because it allows a party-litigant another opportunity to
reopen a judgment that has long lapsed into finality but because it enables
him to be discharged from the burden of being bound to a judgment that is an
absolute nullity to begin with.20
Petitioner raises two grounds to support her claim for annulment of judgment:
(1) extrinsic fraud and (2) lack of jurisdiction. Her contention on the existence
of extrinsic fraud, however, is too unsubstantial to warrant consideration. The
discussion shall then focus on the ground of lack of jurisdiction.
Lack of jurisdiction on the part of the trial court in rendering the judgment or
final order is either lack of jurisdiction over the subject matter or nature of the
action, or lack of jurisdiction over the person of the petitioner. The former is a
matter of substantive law because statutory law defines the jurisdiction of the
courts over the subject matter or nature of the action. The latter is a matter of
procedural law, for it involves the service of summons or other processes on
the petitioner.21
In the present case, petitioner contends that there was lack of jurisdiction
over her person because there was an invalid substituted service of
summons. Jurisdiction over the defendant is acquired either upon a valid
service of summons or the defendant's voluntary appearance in court.22 If
the defendant does not voluntarily appear in court, jurisdiction can be
acquired by personal or substituted service of summons as laid out under
Sections 6 and 7 of Rule 14 of the Rules of Court, which state:
C I V P R O I V C i v i l P r o c e d u r e P a g e | 129
Sec. 6. Service in person on defendant. - Whenever practicable, the
summons shall be served by handing a copy thereof to the defendant in
person, or, if he refuses to receive and sign for it, by tendering it to him.
Sec. 7. Substituted Service. - If, for justifiable causes, the defendant cannot
be served within a reasonable time as provided in the preceding section,
service may be effected (a) by leaving copies of the summons at the
defendant's residence with some person of suitable age and discretion then
residing therein, or (b) by leaving the copies at defendant's office or regular
place of business with some competent person in charge thereof.
The landmark case of Manotoc v. CA (Manotoc)23 thoroughly discussed the
rigorous requirements of a substituted service of summons, to wit: xxx
(1) Impossibility of Prompt Personal Service
xxx
For substituted service of summons to be available, there must be several
attempts by the sheriff to personally serve the summons within a reasonable
period of one month which eventually resulted in failure to prove impossibility
of prompt service. "Several attempts" means at least three (3) tries,
preferably on at least two different dates. In addition, the sheriff must cite
why such efforts were unsuccessful. It is only then that impossibility of
service can be confirmed or accepted.
(2) Specific Details in the Return
The sheriff must describe in the Return of Summons the facts and
circumstances surrounding the attempted personal service. The efforts made
to find the defendant and the reasons behind the failure must be clearly
narrated in detail in the Return. The date and time of the attempts on
personal service, the inquiries made to locate the defendant, the name/s of
the occupants of the alleged residence or house of defendant and all other
acts done, though futile, to serve the summons on defendant must be
specified in the Return to justify substituted service.
(3) A Person of Suitable Age and Discretion
xxx

The sheriff must therefore determine if the person found in the alleged
dwelling or residence of defendant is of legal age, what the recipient's
relationship with the defendant is, and whether said person comprehends the
significance of the receipt of the summons and his duty to immediately
deliver it to the defendant or at least notify the defendant of said receipt of
summons. These matters must be clearly and specifically described in the
Return of Summons. (Emphases and underscoring supplied)
The pronouncements of the Court in Manotoc have been applied to several
succeeding cases. In Pascual v. Pascual,24 the return of summons did not
show or indicate the actual exertion or positive steps taken by the officer or
process server in serving the summons personally to the defendant.
Similarly, in Spouses Afdal v. Carlos,25 the process server’s indorsements
therein failed to state that the personal service on the defendants was
rendered impossible and that efforts were made to find them personally. In
both those cases, the Court ruled that the meticulous requirements for
substituted service of summons were not met.
There are cases, however, in which Manotoc was applied, but, nevertheless,
it was ruled that there was no lack of jurisdiction over the person of the
defendant. In Sagana v. Francisco,26 the diligent efforts exerted by the
sheriff to locate the respondent were determined, not only based on the
sheriff's return, but also on the process server's notation and case records. In
the case of Wong v. Factor-Koyama,27 on the other hand, even if the sheriff
performed an invalid substituted service of summons, jurisdiction over the
person of defendant was obtained because the latter had actively
participated in trial, amounting to a voluntary appearance under Section 20 of
Rule 14.28
In the case at bench, the summons in Civil Case No. 02-030629 was issued
on July 29, 2002. In his server’s return,30 the process server resorted to
substituted service of summons on August 1, 2002. Surprisingly, the process
server immediately opted for substituted service of summons after only two
(2) days from the issuance of the summons. The server’s return stated the
following:
SERVER’S RETURN
THIS IS TO CERTIFY THAT on August 1, 2002, substituted service of
summons with copy of petition, were effected to respondent, Yuk Ling H.
Ong, at the Unit B-2, No. 23 Sta. Rosa St., Manresa Garden Homes,
Manresa Garden City, Quezon City, after several futile attempts to serve the
C I V P R O I V C i v i l P r o c e d u r e P a g e | 130
same personally. The said documents were received by Mr. Roly Espinosa of
sufficient age and discretion, the Security Officer thereat.
Therefore, respectfully returning to Court, original copy of summons, Duly
Served, this 2nd day of August, 2002.
RODOLFO P. TORRES, JR.
Process Server
(Emphasis supplied)
The server’s return utterly lacks sufficient detail of the attempts undertaken
by the process server to personally serve the summons on petitioner. The
server simply made a general statement that summons was effected after
several futile attempts to serve the same personally. The server did not state
the specific number of attempts made to perform the personal service of
summons; the dates and the corresponding time the attempts were made;
and the underlying reason for each unsuccessful service. He did not explain
either if there were inquiries made to locate the petitioner, who was the
defendant in the case. These important acts to serve the summons on
petitioner, though futile, must be specified in the return to justify substituted
service.
The server’s return did not describe in detail the person who received the
summons, on behalf of petitioner. It simply stated that the summons was
received "by Mr. Roly Espinosa of sufficient age and discretion, the Security
Officer thereat." It did not expound on the competence of the security officer
to receive the summons.
Also, aside from the server’s return, respondent failed to indicate any portion
of the records which would describe the specific attempts to personally serve
the summons. Respondent did not even claim that petitioner made any
voluntary appearance and actively participated in Civil Case No. 02-0306.
The case of Robinson v. Miralles, cited by the CA, is not applicable. In that
case, the return described in thorough detail how the security guard refused
the sheriff’s entry despite several attempts. The defendant in the said case
specifically instructed the guard to prevent anybody to proceed to her
residence. In the present case, the attempts made by the process server
were stated in a broad and ambiguous statement.
 C I V P R O I V C i v i l P r o c e d u r e P a g e | 131

The CA likewise erred in ruling that the presumption of regularity in the

performance of official duty could be applied in the case at bench. This p
resumption of regularity, however, was never intended to be applied even in
cases where there are no showing of substantial compliance with the
requirements of the rules of procedure. Such presumption does not apply
where it is patent that the sheriff's or server's return is defective.31 As earlier
explained, the server's return did not comply with the stringent requirements
of substituted service of summons.

Given that the meticulous requirements in Manotoc were not met, the Court
is not inclined to uphold the CA's denial of the petition for annulment of
judgment for lack of jurisdiction over the person of petitioner because there
was an invalid substituted service of summons. Accordingly, the decision in
Civil Case No. 02-0306 must be declared null and void.

The stricter rule in substituted service of summons was meant to address

"[t]he numerous claims of irregularities in substituted service which have
spawned the filing of a great number of unnecessary special civil actions of
certiorari and appeals to higher courts, resulting in prolonged litigation and
wasteful legal expenses."32

Although the decision in Civil Case No. 02-0306 was promulgated as early as
December 11, 2002, the Court must strike it down for lack of jurisdiction over
the person of petitioner. The favorable judgment enjoyed by respondent
cannot be categorized as a genuine victory because it was fought against an
adversary, who was ignorant of the existing dispute. Whatever prize
bestowed upon the victor in such a void decision must also be undone.
Respondent, if he wishes to pursue, must start from scratch and institute his
action for declaration of nullity again; this time with petitioner fully aware and
ready for litigation.

WHEREFORE, the petition is GRANTED. The June 27, 2012 Decision and
the March 26, 2013 Resolution of the Court of Appeals in CAG.R. SP No.
106271 are hereby REVERSED and SET ASIDE. The December 11, 2002
Decision of the Regional Trial Court, Branch 260, Parañaque City is hereby
declared VOID.

SO ORDERED.

G.R. No. 93687 May 6, 1991
ROMEO P. CO and MARCELITA CO, petitioners,
vs.
COURT OF APPEALS, EDUARDO R. MEMIJE and ADELAIDA H.
MEMIJE, respondents.
Judgments; A collateral attack is proper only when the judgment, on its face,
is null and void, as where it is patent that the court which rendered said
judgment has no jurisdiction.—Anent the issue on whether the counterclaim
attacking the validity of the Torrens title on the ground of fraud is a collateral
attack, we distinguish between the two remedies against a judgment or final
order. A direct attack against a judgment is made through an action or
proceeding the main object of which is to annul, set aside, or enjoin the
enforcement of such judgment, if not yet carried into effect; or, if the property
has been disposed of, the aggrieved party may sue for recovery. A collateral
attack is made when, in another action to obtain a different relief, an attack on
the judgment is made as an incident in said action. This is proper only when
the judgment, on its face, is null and void, as where it is patent that the court
which rendered said judgment has no jurisdiction.
Same; Same; Land Titles and Deeds; Torrens Title; Actions; A Torrens title
cannot be collaterally attacked, the issue on the validity of title i.e. whether or
not it was fraudulently issued can only be raised in an action expressly
instituted for that purpose.—It is evident that the objective of such claim is to
nullify the title of private respondents to the property in question, which thereby
challenges the judgment pursuant to which the title was decreed. This is
apparently a collateral attack which is not permitted under the principle of
indefeasibility of a Torrens title. It is well settled that a Torrens title cannot be
collaterally attacked. The issue on the validity of title, i.e., whether or not it was
fraudulently issued, can only be raised in an action expressly instituted for that
purpose. Hence, whether or not petitioners have the right to claim ownership
of the land in question is beyond the province of the instant proceeding. That
should be threshed out in a proper action. The two proceedings are distinct
and should not be confused.
Same; Same; Same; Same; Sales; Purchaser in Good Faith; The purchaser is
not bound by the original certificate but only by the certificate of title of the
person from whom he has purchased the property.—Petitioners raise the issue
of whether or not previate respondents were in bad faith in registering the
subject property. It has been held that a purchaser in good faith is one who
buys the property of another without notice that some other person has a right
C I V P R O I V C i v i l P r o c e d u r e P a g e | 132
to or interest in such property and pays a full and fair price for the same at the
time of such purchase or before he has notice of the claim or interest of some
other person in the property. Also, in order that a purchaser of land with a
Torrens title may be considered as a purchaser in good faith, it is enough that
he examines the latest certificate of title which in this case was issued in the
name of the immediate transferor. The purchaser is not bound by the original
certificate but only by the certificate of title of the person from whom he has
purchased the property.
PETITION for review from the judgment of the Court of Appeals. Elbinias, J.
The facts are stated in the opinion of the Court.
Alicia A. Risos for petitioners.
Eriberto D. Ignacio for private respondents.
REGALADO, J.:
From a coaptation of the records of this case,1 it appears that sometime in
1965, petitioner Marcelita Co contracted to buy two parcels of land owned by
Andres Gabriel at Malabon, Rizal. The sale was on installment basis and she
paid the entire consideration. Upon completion of the installment payments in
1966, Andres Gabriel, who was to execute the final deed of sale of said
properties, suggested that the titles to said properties be placed in the name
of one who still had no real property registered in his name to avoid any
difficulty in registering said properties. Consequently, Marcelita Co had the
final deeds of sale executed in the name of her brother, Ruperto Padonan.
This arrangement was to constitute Ruperto Padonan only as a trustee of
said properties. One of the lots was later sold to one Hipolito Tamayo, while
the other was titled in the name of Ruperto Padonan and a house was
constructed thereon.
On January 28, 1973, in furtherance of said trust agreement, Ruperto
Padonan simultaneously executed a deed of absolute sale in favor of
petitioner Marcelita Co and a special power of attorney constituting petitioner
Romeo Co as attorney-in-fact authorizing him to alienate and encumber said
properties. It does not appear that the deed of sale in favor of petitioner
Marcelita Co was registered.
On September 10, 1974, Ruperto Padonan executed a deed of absolute sale
of the lot registered in his name, together with the house thereon, in favor of

private respondent Eduardo Memije. Although Transfer Certificate of Title
No. 457594 was issued for the lot in the names of private respondents, they
were not able to take possession of said properties as they were occupied by
petitioners. Hence, on March 5, 1975, private respondents sued petitioners in
Civil Case No. C-3489 of the then Court of First Instance of Rizal, Branch
XIV, Caloocan City, for recovery of possession and quieting of title involving
said properties. That case was apparently not prosecuted but was dismissed.
Sometime in 1976, private respondents filed a petition for the issuance of a
writ of possession in the original land registration proceeding (GLRO Rec.
No. 1230 of the former Court of First Instance of Rizal) so that they could be
placed in possession of the properties which they bought from Ruperto
Padonan. Said writ was issued by the lower court but on March 18, 1983 the
same was, however, set aside by this Court in G.R. No. L-46239.2
Petitioners then filed Civil Case No. C-11063 in the Regional Trial Court,
Branch 120, Caloocan City, for the annulment of the deed of sale and title
involving the lot and house in question, with damages against private
respondents. This case however, was dismissed on the ground of improper
venue.
On November 14, 1983, private respondents filed Civil Case No. 370-MN in
the Regional Trial Court of Malabon, Branch 170, against petitioners for the
recovery of possession of the aforesaid residential lot and house registered
in their names. Petitioners raised the affirmative defenses of fraud and their
ownership over the land, and interposed the same as a compulsory
counterclaim, instead of refiling a separate action for annulment of the deed
of sale and title executed and issued in favor of private respondents.
After trial, the court a quo ruled against herein petitioners, as defendants,
and rendered judgment on May 18, 1987 as follows:
WHEREFORE, in view of the foregoing judgment is hereby rendered
ordering the defendants to vacate the property in question and
deliver possession to plaintiffs as the lawful owners thereof, to pay
plaintiffs the sum of P500.00 a month from September 15, 1974 as
reasonable compensation for the use and occupation of said
property until they shall have vacated the same and to pay plaintiffs
P 5,000.00 as attorney's fees and the costs of the suit.
Defendants' counter-claims are dismissed for lack of merit.3
C I V P R O I V C i v i l P r o c e d u r e P a g e | 133
On appeal to the Court of Appeals in CA-G.R. Civil Case No. 15050, said
respondent court affirmed, with modifications, the aforequoted judgment of
the court below in Civil Case No. 370-MN. It held that in an action recover
possession of realty, attacking the transfer certificate of title by way of
affirmative defenses on the ground that there was fraud committed by
Ruperto Padonan when he sold the property in question to private
respondents, is an improper procedure as this amounts to a collateral attack
on the indefeasibility of a Torrens title; that petitioners should have pursued
their original complaint for the annulment of the deed of sale and title which
was dismissed without prejudice; and that private respondents appear to
have a better right of possession considering that they are the registered
owners of the property in question.
Accordingly, respondent Court of Appeals rendered judgment which reads:
WHEREFORE, the appealed decision is MODIFIED to read thus: In
view of the foregoing, judgment is hereby rendered ordering the
appellants (defendants) to vacate the property in question and
deliver the possession thereof to the appellees (plaintiffs); to pay
appellees P500.00 monthly from November 14, 1983 as reasonable
compensation for the occupancy of said property until they shall have
vacated it; and to pay the costs of the suit. The counterclaims are
dismissed. No pronouncement as to costs.4
Their motion for reconsideration having been denied,5 petitioners are now
before us, contending that respondent court acted without or in excess of its
jurisdiction or with grave abuse of discretion in —
a) totally disregarding the compulsory counterclaims of ownership
and fraud even if undisputed, and in effect, limits the relief of a party-
defendant in a recovery of possession case;
b) finding that the affirmative defense of fraud and at the same time
raised as a compulsory counterclaim is a collateral attack on the
indefeasibility of the transfer certificate of title;
c) summarily dismissing the counterclaims of the petitioner without
stating the legal grounds for its dismissal;
d) disregarding the sentence of bad faith in the registration of the
subject property; and

e) holding that there is a double sale in this case contrary to the
evidence presented by the parties.6
The counterclaim filed by petitioners in the aforesaid case was correctly
dismissed by the trial court. A compulsory counterclaim is one which arises
out of or is necessarily connected with the transaction or occurrence that is
the subject matter of the opposing party's claim. In the case at bar, there
appears to be two distinct transactions, namely, the sale in favor of
petitioners which was not registered and the sale in favor of private
respondents which was duly registered. The only apparent peculiarity is that
the petitioners are in possession of the property in question.
Obviously, it would not be procedurally unsound for petitioners to resort to a
separate case for the annulment of the deed of sale in question. They did file
such a case but did not proceed with it to its ultimate conclusion. That is the
plausible and available remedy at law which is open to them, not a
counterclaim in a case based on a discrete cause of action. This is evident
from the requisites of a compulsory counterclaim, viz.: (1) it arises out of, or
is necessarily connected with, the transaction or occurrence which is the
subject matter of the opposing party's claim; (2) it does not require for its
adjudication the presence of third parties over whom the court cannot acquire
jurisdiction; and (3) the court has jurisdiction to entertain the claim.7
Anent the issue on whether the counterclaim attacking the validity of the
Torrens title on the ground of fraud is a collateral attack, we distinguish
between the two remedies against a judgment or final order. A direct attack
against a judgment is made through an action or proceeding the main object
of which is to annul set aside, or enjoin the enforcement of such judgment, if
not yet carried into effect; or, if the property has been disposed of, the
aggrieved party may sue for recovery.8 A collateral attack is made when, in
another action to obtain a different relief, an attack on the judgment is made
as an incident in said action. This is proper only when the judgment, on its
face, is null and void, as where it is patent that the court which rendered said
judgment has no jurisdiction.9
In their reply dated September 11, 1990, petitioners argue that the issues of
fraud and ownership raised in their so-called compulsory counterclaim
partake of the nature of an independent complaint which they may pursue for
the purpose of assailing the validity of the transfer certificate of title of private
respondents. That theory will not prosper.
While a counterclaim may be filed with a subject matter or for a relief different
from those in the basic complaint in the case, it does not follow that such
C I V P R O I V C i v i l P r o c e d u r e P a g e | 134
counterclaim is in the nature of a separate and independent action in itself. In
fact, its allowance in the action is subject to explicit conditions, as above set
forth, particularly in its required relation to the subject matter of the opposing
party's claim. Failing in that respect, it cannot even be entertained as a
counterclaim in the original case but must be filed and pursued as an
altogether different and original action.
It is evident that the objective of such claim is to nullify the title of private
respondents to the property in question, which thereby challenges the
judgment pursuant to which the title was decreed. This is apparently a
collateral attack which is not permitted under the principle of indefeasibility of
a Torrens title. It is well settled that a Torrens title cannot be collaterally
attacked. The issue on the validity of title, i.e., whether or not it was
fraudulently issued, can only be raised in an action expressly instituted for
that purpose.10 Hence, whether or not petitioners have the right to claim
ownership of the land in question is beyond the province of the instant
proceeding. That should be threshed out in a proper action. The two
proceedings are distinct and should not be confused.11
Keeping in mind that in CA-G.R. Civil Case No. 15050 herein petitioners
were the appellants and herein respondents were the appellees, we quote
the further disquisitions of respondent Court of Appeals on the position
espoused by petitioners:
The rest of the affirmative defenses (pars. 13 to 16 of the answer),
quoted above, are allegations attacking the validity of the deed of
absolute sale over the subject property executed by Ruperto
Padonan in favor of the appellees Memije, as well as attacking the
validity of TCT No. 457594, covering the same property, issued by
the Registry of Deeds of Rizal in appellees' name by virtue of deed of
sale.
Obviously, in an action to recover possession of a realty, in the
present case, attacking the TCT covering said property by way of
affirmative defenses is an improper procedure. Appellants should
have pursued the case they filed with the RTC Br. 120 at Caloocan
City for "annulment of deed of sale and title with damages" after that
court dismissed it on the ground of improper venue. In other words,
after dismissal of their complaint, appellants should have filed the
same action, as observed by that court, with the RTC at Malabon,
Metro Manila, where the property is situated.

The affirmative defenses raised by appellants in the present case
alleging fraudulent connivance between Ruperto Padonan and
appellees in the sale of the subject property by the former cannot
overcome the evidence of appellees' ownership over said property,
i.e., a torrens title designated as TCT No. 457594 in their name.
Hence, in the present case to recover possession of the realty as its
registered owner, i.e., accion publiciana, appellees certainly have a
better right to its possession than appellants.
In fine, whatever right of possession appellants may have over the
subject property cannot prevail over that of appellees for the simple
reason that appellants are not the registered owner, while appellees
are. If, as appellants alleged, fraud had vitiated the sale between
Ruperto Padonan and appellees, and consequently the issuance of
said TCT No. 457594 in appellees' name by virtue of such sale is
void, then their remedy was not to attack collaterally by way of
affirmative defenses but to institute a proceeding purposely to attack
directly such sale and torrens title.
It is a well-known doctrine that a torrens title, as a rule, is irrevocable
and indefeasible, and the duty of the court is to see to it that this title
is maintained and respected unless challenged in a direct
proceeding. (Natalla Realty Corporation vs. Vallez, G.R. 78290-94,
May 23, 1989; Gonzales vs. IAC, G.R. 69622, Jan. 29, 1988, 157
SCRA 587; Cimafranca vs. IAC, L-68687, Jan. 31, 1987, 147 SCRA
611; Barrios vs. Court of Appeals, L-32531, Aug. 31, 1977, 78 SCRA
427; Magay vs. Estandian L-28975, Feb. 27, 1976, 69 SCRA 456;
Director of Lands vs. Gan Tan, L-2664, May 30, 1951, 89 Phil. 184).
This, appellants failed to do.12
Petitioners raise the issue of whether or not private respondents were in bad
faith in registering the subject property.1âwphi1 It has been held that a
purchaser in good faith is one who buys the property of another without
notice that some other person has a right to or interest in such property and
pays a full and fair price for the same at the time of such purchase or before
he has notice of the claim or interest of some other person in the property.13
Also, in order that a purchaser of land with a Torrens title may be considered
as a purchaser in good faith, it is enough that he examines the latest
certificate of title which in this case was issued in the name of the immediate
transferor. The purchaser is not bound by the original certificate but only by
the certificate of title of the person from whom he has purchased the
property.14
C I V P R O I V C i v i l P r o c e d u r e P a g e | 135
Petitioners maintain that although respondent spouses are the registered
owners of the subject property, they were, however, in bad faith when the
land was purchased and subsequently registered. But, as found by the trial
court, the only evidence petitioners have to buttress their position is the self-
serving statement of petitioner Marcelita Co that it is a known fact in Malabon
that she is the owner of the said property, and the circumstance that Eduardo
Memije was always with Ruperto Padonan during the trial of the criminal
case filed against herein petitioners.15 These do not suffice to prove prior
knowledge of petitioners' claim as would attribute bad faith to respondent
spouses.
Furthermore, as established by respondent Eduardo Memije without
contradiction, the property was already paid in full and the deed was
registered before respondent spouses learned of the supposed adverse
claim of petitioners. In his testimony, said respondent declared that he and
Padonan, after agreeing on the projected sale, went and paid the mortgage
on the property and, thereafter, Padonan executed the deed of sale prepared
by the counsel of said private respondent. On the basis of said deed of sale
and the release of mortgage over the property, the Register of Deeds for the
Province of Rizal issued Transfer Certificate of Title No. 457594 in the names
of respondent spouses. It was subsequent thereto when the keys to the
house had been given to respondents by Padonan and the former went to
occupy the house that they were prevented from doing so by petitioners.
Although respondent spouses duly reported that matter to Padonan and the
latter promised to settle the matter, no further action was taken on their
protest.16 Consequently, private respondents had to take judicial recourse.
Finally, on the question of double sale, the pertinent provision of the Civil
Code states:
Art. 1544. If the same thing should have been sold to different
vendors, the ownership shall be transferred to the person who may
have first taken possession thereof in good faith, if it should be
movable property.
Should it be immovable property, the ownership shall belong to the
person acquiring it who in good faith first recorded it in the Registry
of Property.
xxx xxx xxx
As earlier narrated, the final deed of sale of the land was executed in 1966 in
the name of Ruperto Padonan. On January 28, 1973, Ruperto Padonan
 C I V P R O I V C i v i l P r o c e d u r e P a g e | 136

executed a deed of absolute sale in favor of petitioner Marcelita Co. Again on Melencio-Herrera, Paras, Padilla and Sarmiento, JJ., concur.
September 10, 1974, Ruperto Padonan executed a deed of absolute sale of
the same property in favor of respondent Eduardo Memije. These facts
disclose that there was indeed a double sale, hence the abovequoted
provision of law finds application.

Petitioners, however, contend that no double sale may arise due to the fact
that an implied trust was created between them and the alleged vendor,
Ruperto Padonan. The trust agreement was indeed recognized by the trial
court in its decision, thus:

Defendants' evidence that the purchase price for the acquisition of

the property in question was paid by them has not been
controverted. Consequently, said property, which was registered in
the name of Ruperto Padonan was held in trust by the latter for the
benefit of defendants. Thus, defendants claim that it was in
compliance with the trust agreement that Ruperto Padonan executed
a deed of sale covering the subject house and lot in favor of
defendant Marcelita Co on January 28, 1983 (sic, 1973) in order that
the title to said property could be transferred in the latter's name as
the real owner thereof.17

Nonetheless, despite the existence of a trust agreement, the conflict is

between the Co spouses, on the one hand, and the Memije spouses, on the
other. The trust agreement is between Ruperto Padonan and herein
petitioner Marcelita Co. Private respondents are not in privity with petitioners
or Ruperto Padonan as far as the trust agreement is concerned. Private
respondents relied on a clean transfer certificate of title in the name of
Padonan, which title does not contain any annotation concerning the trust
agreement.

Under the present posture of this case, therefore, it appearing that private
respondents are the duly registered owners of the land, without sufficient
proof of any flaw in their title thereto having been adduced by petitioners, the
right of the former to the possession thereof and to be protected therein has
to be conceded and respected.

WHEREFORE, without prejudice to such appropriate remedies as petitioners

may avail themselves of with respect to their claim of ownership of the
property in question, the instant petition is DENIED and the judgment of
respondent Court of Appeals is hereby AFFIRMED.

SO ORDERED.

G.R. No. 187021 January 25, 2012
DOUGLAS F. ANAMA, Petitioner,
vs.
PHILIPPINE SAVINGS BANK, SPOUSES SATURNINA BARIA &TOMAS
CO and THE REGISTER OF DEEDS, METRO MANILA, DISTRICT II,
Respondents.
DECISION
MENDOZA, J.:
This is a petition for review under Rule 45 assailing the March 31, 2008
Decision1 of the Court of Appeals (CA) and its February 27, 2009
Resolution,2 in CA G.R. No. SP-94771, which affirmed the November 25,
2005 Order of the Regional Trial Court, Branch 167, Pasig City (RTC),
granting the motion for issuance of a writ of execution of respondents.
The Facts
The factual and procedural backgrounds of this case were succinctly recited
by the CA in its decision as follows:
Sometime in 1973, the Petitioner, Douglas F. Anama (Anama), and the
Respondent, Philippine Savings Bank (PSB), entered into a "Contract to
Buy," on installment basis, the real property owned and covered by Transfer
Certificate of Title (TCT) No. 301276 in the latter’s name. However, Anama
defaulted in paying his obligations thereunder, thus, PSB rescinded the said
contract and title to the property remained with the latter. Subsequently, the
property was sold by PSB to the Spouses Saturnina Baria and Tomas Co
(Co Spouses) who, after paying the purchase price in full, caused the
registration of the same in their names and were, thus, issued TCT No.
14239.
Resultantly, Anama filed before the Respondent Court a complaint for
declaration of nullity of the deed of sale, cancellation of transfer certificate of
title, and specific performance with damages against PSB, the Co Spouses,
and the Register of Deeds of Metro Manila, District II.
On August 21, 1991 and after trial on the merits, the Respondent Court
dismissed Anama’s complaint and upheld the validity of the sale between
C I V P R O I V C i v i l P r o c e d u r e P a g e | 137
PSB and the Co Spouses. Undaunted, Anama appealed, at first, to this
Court, and after failing to obtain a favorable decision, to the Supreme Court.
On January 29, 2004, the Supreme Court rendered judgment denying
Anama’s petition and sustaining the validity of the sale between PSB and the
Co Spouses. Its decision became final and executory on July 12, 2004.
Pursuant thereto, the Co Spouses moved for execution, which was granted
by the Respondent Court per its Order, dated November 25, 2005.
Aggrieved, Anama twice moved for the reconsideration of the Respondent
Court’s November 25, 2005 Order arguing that the Co Spouses’ motion for
execution is fatally defective. He averred that the Spouses’ motion was pro
forma because it lacked the required affidavit of service and has a defective
notice of hearing, hence, a mere scrap of paper. The Respondent Court,
however, denied Anama’s motion(s) for reconsideration.
Dissatisfied, the petitioner questioned the RTC Order before the CA for
taking judicial cognizance of the motion for execution filed by spouses Tomas
Co and Saturnina Baria (Spouses Co) which was (1) not in accord with
Section 4 and Section 15 of the Rules of Court because it was without a
notice of hearing addressed to the parties; and (2) not in accord with Section
6, Rule 15 in conjunction with Section 13, Rule 13 of the Rules of Court
because it lacks the mandatory affidavit of service.
On March 31, 2008, the CA rendered a decision dismissing the petition. It
reasoned out, among others, that the issue on the validity of the deed of sale
between respondents, Philippine Savings Bank (PSB) and the Spouses Co,
had long been laid to rest considering that the January 29, 2004 Decision of
this Court became final and executory on July 12, 2004. Hence, execution
was already a matter of right on the part of the respondents and the RTC had
the ministerial duty to issue a writ of execution enforcing a final and
executory decision.
The CA also stated that although a notice of hearing and affidavit of service
in a motion are mandatory requirements, the Spouses Co’s motion for
execution of a final and executory judgment could be acted upon by the RTC
ex parte, and therefore, excused from the mandatory requirements of
Sections 4, 5 and 6 of Rule 15 of the Rules of Court.
The CA was of the view that petitioner was not denied due process because
he was properly notified of the motion for execution of the Spouses Co. It
stated that the act of the Spouses Co in resorting to personal delivery in
serving their motion for execution did not render the motion pro forma. It

refused to apply a rigid application of the rules because it would result in a
manifest failure of justice considering that petitioner’s position was nothing
but an obvious dilatory tactic designed to prevent the final disposition of Civil
Case No. 44940.
Not satisfied with the CA’s unfavorable disposition, petitioner filed this
petition praying for the reversal thereof presenting the following
ARGUMENTS:
THE RESPONDENT APPELLATE COURT DID NOT TAKE INTO
CONSIDERATION THE CLEAR TEACHING OF THE HONORABLE COURT
WITH REGARD TO THE REQUISITE NOTICE OF HEARING – IT SHOULD
BE ADDRESSED TO THE PARTIES NOT TO THE CLERK OF COURT,
THE LATEST (THEN) BEING GARCIA V. SANDIGANBAYAN, G.R. NO.
167103, AUGUST 31, 2006, 500 SCRA 361; DE JESUS V. JUDGE DILAG,
A.M. NO. RTJ-05-1921, SEPTEMBER 30, 2005, 471 SCRA 176; LAND
BANK OF THE PHILIPPINES V. NATIVIDAD, G.R. NO. 127198, MAY 16,
2005, 458 SCRA 441; ATTY. JULIUS NERI V. JUDGE JESUS S. DE LA
PEÑA, A.M NO. RTJ-05-1896, APRIL 29, 2005, 457 SCRA 538; AND
ALVAREZ V. DIAZ, A.M. NO. MTJ-00-1283, MARCH 3, 2004, 424 SCRA
213;
THE RESPONDENT APPELLATE COURT DID NOT TAKE INTO
CONSIDERATION THE CLEAR TEACHING OF THE HONORABLE COURT
WITH REGARD TO THE REQUISITE AFFIDAVIT OF SERVICE – IT
SHOULD BE IN THE PROPER FORM AS PRESCRIBED IN THE RULES
AND IT SHOULD BE ATTACHED TO THE MOTION, THE LATEST (THEN)
BEING ELLO V. COURT OF APPEALS, G.R. NO. 141255, JUNE 21, 2005,
460 SCRA 406; LOPEZ DELA ROSA DEVELOPMENT CORPORATION V.
COURT OF APPEALS, G.R. NO. 148470, APRIL 29, 2005, 457 SCRA 614;
ALVAREZ V. DIAZ, A.M. NO. MTJ-00-1283, MARCH 3, 2004, 424 SCRA
213; EL REYNO HOMES, INC. V. ERNESTO ONG, 397 SCRA 563; CRUZ
V. COURT OF APPEALS, 388 SCRA 72, 80-81; AND MERIS V. OFILADA,
293 SCRA 606;
THE RESPONDENT APPELLATE COURT DID NOT TAKE APPROPRIATE
ACTION ON THE "FRAUD PERPETRATED UPON THE COURT" BY
RESPONDENT-SPOUSES AND THEIR LEAD COUNSEL.
SINCE THE RESPONDENT APPELLATE COURT REFUSED TO TAKE
INTO CONSIDERATION THE RESPONDENT BANK’S ACTION – THAT OF:
C I V P R O I V C i v i l P r o c e d u r e P a g e | 138
ENGAGING IN A DAGDAG-BAWAS (LEGALLY "INTERCALATION")
OPERATION OF A PORTION OF THE TRANSCRIPT OF STENOGRAPHIC
NOTES (TSN), OCTOBER 12, 1984, OF THE REGIONAL TRIAL COURT,
BRANCH 167, PASIG CITY, IN CIVIL CASE NO. 44940, PAGES 54-55,
AND
PRESENTING IT IN ITS APPELLEE’S BRIEF (IN THE OWNERSHIP CASE,
CA-G.R. NO. CV-42663, LIKEWISE, BEFORE THE RESPONDENT
APPELLATE COURT) BY CITING IT ON PAGE 14 OF SAID BRIEF, AS
IMPLIEDLY COMING FROM THE TSN OF THE TRIAL COURT.
THINKING THAT THEIR FALSIFIED APPELLEE’S BRIEF WAS MATERIAL
IN SAID CA-G.R. NO. CV-42663.
IT COULD NOT RULE THAT THE SAME HAS BROUGHT ABOUT A
CRUCIAL MATERIAL CHANGE IN THE SITUATION OF THE PARTIES
WHICH MAKES EXECUTION INEQUITABLE (PUNCIA V. GERONA, 252
SCRA 424, 430-431), OR, IN THE WORDS OF DEVELOPMENT BANK OF
RIZAL V. CA, G.R. NO. 75964, DECEMBER 1, 1987, 156 SCRA 84, 90,
"THERE EXISTS A COMPELLING REASON FOR STAYING THE
EXECUTION OF JUDGMENT."
Basically, petitioner argues that the respondents failed to substantially
comply with the rule on notice and hearing when they filed their motion for
the issuance of a writ of execution with the RTC. He claims that the notice of
hearing in the motion for execution filed by the Spouses Co was a mere
scrap of paper because it was addressed to the Clerk of Court and not to the
parties. Thus, the motion for execution did not contain the required proof of
service to the adverse party. He adds that the Spouses Co and their counsel
deliberately "misserved" the copy of their motion for execution, thus,
committing fraud upon the trial court.
Additionally, he claims that PSB falsified its appellee’s brief by engaging in a
"dagdag-bawas" ("intercalation") operation in pages 54 to 55 of the TSN,
dated October 12, 1984.
Position of the Spouses Co
The Spouses Co counter that the petition should be dismissed outright for
raising both questions of facts and law in violation of Section 1, Rule 45 of
the Rules of Court. The Spouses Co aver that petitioner attempts to resurrect
the issue that PSB cheated him in their transaction and that the RTC

committed a "dagdag-bawas." According to the Spouses Co, these issues
had long been threshed out by this Court.
At any rate, they assert that they have substantially complied with the
requirements of notice and hearing provided under Sections 4 and 5 of Rule
15 and Section 13, Rule 13 of the Rules of Court. Contrary to petitioner’s
allegations, a copy of the motion for the issuance of a writ of execution was
given to petitioner through his principal counsel, the Quasha Law Offices. At
that time, the said law office had not formally withdrawn its appearance as
counsel for petitioner. Spouses Co argue that what they sought to be
executed was the final judgment of the RTC duly affirmed by the CA and this
Court, thus, putting the issues on the merits to rest. The issuance of a writ of
execution then becomes a matter of right and the court’s duty to issue the
writ becomes ministerial.
Position of respondent PSB
PSB argues that the decision rendered by the RTC in Civil Case No. 44940
entitled "Douglas F. Anama v. Philippine Savings Bank, et. al."3 had long
become final and executory as shown by the Entry of Judgment made by the
Court on July 12, 2004. The finality of the said decision entitles the
respondents, by law, to the issuance of a writ of execution. PSB laments that
petitioner relies more on technicalities to frustrate the ends of justice and to
delay the enforcement of a final and executory decision.
As to the principal issue, PSB points out that the notice of hearing appended
to the motion for execution filed by the Spouses Co substantially complied
with the requirements of the Rules since petitioner’s then counsel of record
was duly notified and furnished a copy of the questioned motion for
execution. Also, the motion for execution filed by the Spouses Co was served
upon and personally received by said counsel.
The Court’s Ruling
The Court agrees with the Spouses Co that petitioner’s allegations on the
"dagdag-bawas operation of the Transcript of Stenographic Notes," the
"fraud perpetuated upon the Court by said spouses and their lead counsel,"
the "ownership," and "falsification" had long been laid to rest in the case of
"Douglas F. Anama v. Philippine Savings Bank, et. al."4 For said reason, the
Court cannot review those final pronouncements. To do so would violate the
rules as it would open a final judgment to another reconsideration which is a
prohibited procedure.
C I V P R O I V C i v i l P r o c e d u r e P a g e | 139
On the subject procedural question, the Court finds no compelling reason to
stay the execution of the judgment because the Spouses Co complied with
the notice and hearing requirements under Sections 4, 5 and 6 of Rule 15.
Said sections, as amended, provide:
SECTION 4. Hearing of motion. – Except for motions which the court may act
upon without prejudicing the rights of the adverse party, every written motion
shall be set for hearing by the applicant.
Every written motion required to be heard and the notice of the hearing
thereof shall be served in such a manner as to ensure its receipt by the other
party at least three (3) days before the date of hearing, unless the court for
good cause sets the hearing on shorter notice.
SECTION 5. Notice of hearing. – The notice of hearing shall be addressed to
all parties concerned, and shall specify the time and date of the hearing
which must not be later than ten (10) days after the filing of the motion.
SECTION 6. Proof of service necessary. – No written motion set for hearing
shall be acted upon by the court without proof of service thereof.
Pertinently, Section 13 of Rule 13 of the 1997 Rules of Civil Procedure, as
amended, provides:
SEC. 13. Proof of service. – Proof of personal service shall consist of a
written admission of the party served, or the official return of the server, or
the affidavit of the party serving, containing a full statement of the date,
place, and manner of service. If the service is by ordinary mail, proof thereof
shall consist of an affidavit of the person mailing of facts showing compliance
with section 7 of this Rule. If service is made by registered mail, proof shall
be made by such affidavit and the registry receipt issued by the mailing
office. The registry return card shall be filed immediately upon its receipt by
the sender, or in lieu thereof the unclaimed letter together with the certified or
sworn copy of the notice given by the postmaster to the addressee.
Elementary is the rule that every motion must contain the mandatory
requirements of notice and hearing and that there must be proof of service
thereof. The Court has consistently held that a motion that fails to comply
with the above requirements is considered a worthless piece of paper which
should not be acted upon. The rule, however, is not absolute. There are
motions that can be acted upon by the court ex parte if these would not
cause prejudice to the other party. They are not strictly covered by the rigid
requirement of the rules on notice and hearing of motions.

The motion for execution of the Spouses Co is such kind of motion. It cannot
be denied that the judgment sought to be executed in this case had already
become final and executory. As such, the Spouses Co have every right to the
issuance of a writ of execution and the RTC has the ministerial duty to
enforce the same. This right on the part of the Spouses Co and duty on the
part of the RTC are based on Section 1 and Section 2 of Rule 39 of the 1997
Revised Rules of Civil Procedure provides, as follows:
Section 1. Execution upon judgments or final orders. – Execution shall issue
as a matter of right, on motion, upon a judgment or order that disposes of the
action or proceeding upon the expiration of the period to appeal therefrom if
no appeal has been duly perfected.
If the appeal has been duly perfected and finally resolved, the execution may
forthwith be applied for in the court of origin, on motion of the judgment
obligee, submitting therewith certified true copies of the judgment or
judgments or final order or orders sought to be enforced and of the entry
thereof, with notice to the adverse party.
The appellate court may, on motion in the same case, when the interest of
justice so requires, direct the court of origin to issue the writ of execution.
SEC. 2. Discretionary execution.—
(a) Execution of a judgment or final order pending appeal.— On motion of the
prevailing party with notice to the adverse party filed in the trial court while
it has jurisdiction over the case and is in possession of either the original
record or the record on appeal, as the case may be, at the time of the filing of
such motion, said court may, in its discretion, order execution of a judgment
or final order even before the expiration of the period to appeal.
After the trial court has lost jurisdiction, the motion for execution pending
appeal may be filed in the appellate court.
Discretionary execution may only issue upon good reasons to be stated in a
special order after due hearing.
(b) Execution of several, separate or partial judgments.—A several, separate
or partial judgment may be executed under the same terms and conditions
as execution of a judgment or final order pending appeal. (2a) [Emphases
and underscoring supplied]
C I V P R O I V C i v i l P r o c e d u r e P a g e | 140
As can be gleaned therefrom, under Paragraph 1 of Section 1 of Rule 39 of
the 1997 Revised Rules of Civil Procedure, the Spouses Co can have their
motion for execution executed as a matter of right without the needed notice
and hearing requirement to petitioner. This is in contrast to the provision of
Paragraph 2 of Section 1 and Section 2 where there must be notice to the
adverse party. In the case of Far Eastern Surety and Insurance Company,
Inc. v. Virginia D. Vda. De Hernandez,5 it was written:
It is evident that Section 1 of Rule 39 of the Revised Rules of Court
does not prescribe that a copy of the motion for the execution of a final
and executory judgment be served on the defeated party, like litigated
motions such as a motion to dismiss (Section 3, Rule 16), or motion for new
trial (Section 2, Rule 37), or a motion for execution of judgment pending
appeal (Section 2, Rule 39), in all of which instances a written notice thereof
is required to be served by the movant on the adverse party in order to afford
the latter an opportunity to resist the application.
It is not disputed that the judgment sought to be executed in the case at bar
had already become final and executory. It is fundamental that the prevailing
party in a litigation may, at any time within five (5) years after the entry
thereof, have a writ of execution issued for its enforcement and the court not
only has the power and authority to order its execution but it is its ministerial
duty to do so. It has also been held that the court cannot refuse to issue a
writ of execution upon a final and executory judgment, or quash it, or order its
stay, for, as a general rule, the parties will not be allowed, after final
judgment, to object to the execution by raising new issues of fact or of law,
except when there had been a change in the situation of the parties which
makes such execution inequitable or when it appears that the controversy
has ever been submitted to the judgment of the court; or when it appears that
the writ of execution has been improvidently issued, or that it is defective in
substance, or is issued against the wrong party, or that judgment debt has
been paid or otherwise satisfied; or when the writ has been issued without
authority. Defendant-appellant has not shown that she falls in any of the
situations afore-mentioned. Ordinarily, an order of execution of a final
judgment is not appealable. Otherwise, as was said by this Court in Molina v.
de la Riva, a case could never end. Once a court renders a final judgment, all
the issues between or among the parties before it are deemed resolved and
its judicial function as regards any matter related to the controversy litigated
comes to an end. The execution of its judgment is purely a ministerial phase
of adjudication. The nature of its duty to see to it that the claim of the
prevailing party is fully satisfied from the properties of the loser is generally
ministerial.

In Pamintuan v. Muñoz, We ruled that once a judgment becomes final and
executory, the prevailing party can have it executed as a matter of right,
and the judgment debtor need not be given advance notice of the
application for execution.
Also of the same stature is the rule that once a judgment becomes final and
executory, the prevailing party can have it executed as a matter of right and
the granting of execution becomes a ministerial duty of the court. Otherwise
stated, once sought by the prevailing party, execution of a final judgment will
just follow as a matter of course. Hence, the judgment debtor need not be
given advance notice of the application for execution nor he afforded
prior hearing.
Absence of such advance notice to the judgment debtor does not constitute
an infringement of the constitutional guarantee of due process.
However, the established rules of our system of jurisprudence do not require
that a defendant who has been granted an opportunity to be heard and has
had his day in court should, after a judgment has been rendered against him,
have a further notice and hearing before supplemental proceedings are taken
to reach his property in satisfaction of the judgment. Thus, in the absence of
a statutory requirement, it is not essential that he be given notice before the
issuance of an execution against his tangible property; after the rendition of
the judgment he must take "notice of what will follow," no further notice being
"necessary to advance justice." [Emphases and underscoring supplied]
Likewise, in the case of Leonardo Lim De Mesa v. Hon. Court of Appeals,6 it
was stated:
In the present case, the decision ordering partition and the rendition of
accounting had already become final and executory. The execution thereof
thus became a matter of right on the part of the plaintiffs, herein private
respondents, and is a mandatory and ministerial duty on the part of the court.
Once a judgment becomes final and executory, the prevailing party can
have it executed as a matter of right, and the judgment debtor need not
be given advance notice of the application for execution nor be
afforded prior hearings thereon.
On the bases of the foregoing considerations, therefore, the Court of Appeals
acted correctly in holding that the failure to serve a copy of the motion for
execution on petitioner is not a fatal defect. In fact, there was no necessity for
such service. [Emphases and underscoring supplied]
C I V P R O I V C i v i l P r o c e d u r e P a g e | 141
At any rate, it is not true that the petitioner was not notified of the motion for
execution of the Spouses Co. The records clearly show that the motion for
execution was duly served upon, and received by, petitioner’s counsel-of-
record, the Quasha Ancheta Pena Nolasco Law Offices, as evidenced by a
"signed stamped received mark" appearing on said pleading.7 The records
are bereft of proof showing any written denial from petitioner’s counsel of its
valid receipt on behalf of its client. Neither is there proof that the Quasha
Ancheta Pena Nolasco Law Offices has formally withdrawn its appearance
as petitioner’s counsel-of-record. Considering that there is enough proof
shown on record of personal delivery in serving the subject motion for
execution, there was a valid compliance with the Rules, thus, no persuasive
reason to stay the execution of the subject final and executory judgment.
Moreover, this Court takes note that petitioner was particularly silent on the
ruling of the CA that he was notified, through his counsel, of the motion for
execution of the Spouses Co when he filed a motion for reconsideration of
the RTC’s order dated June 28, 2005, holding in abeyance said motion
pending the resolution of petitioner’s pleading filed before this Court. He did
not dispute the ruling of the CA either that the alleged defect in the Spouses
Co’s motion was cured when his new counsel was served a copy of said
motion for reconsideration of the RTC’s June 28, 2005 Order.8
The three-day notice rule is not absolute. A liberal construction of the
procedural rules is proper where the lapse in the literal observance of a rule
of procedure has not prejudiced the adverse party and has not deprived the
court of its authority. Indeed, Section 6, Rule 1 of the Rules of Court provides
that the Rules should be liberally construed in order to promote their
objective of securing a just, speedy and inexpensive disposition of every
action and proceeding. Rules of procedure are tools designed to facilitate the
attainment of justice, and courts must avoid their strict and rigid application
which would result in technicalities that tend to frustrate rather than promote
substantial justice.
In Somera Vda. De Navarro v. Navarro, the Court held that there was
substantial compliance of the rule on notice of motions even if the first notice
was irregular because no prejudice was caused the adverse party since the
motion was not considered and resolved until after several postponements of
which the parties were duly notified.
Likewise, in Jehan Shipping Corporation v. National Food Authority, the
Court held that despite the lack of notice of hearing in a Motion for
Reconsideration, there was substantial compliance with the requirements of

due process where the adverse party actually had the opportunity to be
heard and had filed pleadings in opposition to the motion. The Court held:
This Court has indeed held time and again, that under Sections 4 and 5 of
Rule 15 of the Rules of Court, mandatory is the requirement in a motion,
which is rendered defective by failure to comply with the requirement. As a
rule, a motion without a notice of hearing is considered pro forma and does
not affect the reglementary period for the appeal or the filing of the requisite
pleading.
As an integral component of the procedural due process, the three-day
notice required by the Rules is not intended for the benefit of the movant.
Rather, the requirement is for the purpose of avoiding surprises that may be
sprung upon the adverse party, who must be given time to study and meet
the arguments in the motion before a resolution of the court. Principles of
natural justice demand that the right of a party should not be affected without
giving it an opportunity to be heard.
The test is the presence of opportunity to be heard, as well as to have
time to study the motion and meaningfully oppose or controvert the
grounds upon which it is based.9 [Emphases and underscoring supplied]
Likewise, in the case of KKK Foundation, Inc. v. Hon. Adelina Calderon-
Bargas,10 this Court stated:
Anent the second issue, we have consistently held that a motion which does
not meet the requirements of Sections 4 and 5 of Rule 15 of the Rules of
Court is considered a worthless piece of paper, which the Clerk of Court has
no right to receive and the trial court has no authority to act upon. Service of
a copy of a motion containing a notice of the time and the place of hearing of
that motion is a mandatory requirement, and the failure of movants to comply
with these requirements renders their motions fatally defective. However,
there are exceptions to the strict application of this rule. These
exceptions are: (1) where a rigid application will result in a manifest failure or
miscarriage of justice especially if a party successfully shows that the alleged
defect in the questioned final and executory judgment is not apparent on its
face or from the recitals contained therein; (2) where the interest of
substantial justice will be served; (3) where the resolution of the motion is
addressed solely to the sound and judicious discretion of the court; and (4)
where the injustice to the adverse party is not commensurate with the degree
of his thoughtlessness in not complying with the procedure prescribed.
C I V P R O I V C i v i l P r o c e d u r e P a g e | 142
A notice of hearing is an integral component of procedural due process to
afford the adverse parties a chance to be heard before a motion is resolved
by the court. Through such notice, the adverse party is given time to study
and answer the arguments in the motion. Records show that while Angeles’s
Motion for Issuance of Writ of Execution contained a notice of hearing, it did
not particularly state the date and time of the hearing. However, we still find
that petitioner was not denied procedural due process. Upon receiving the
Motion for Issuance of Writ of Execution, the trial court issued an Order dated
September 9, 2002 giving petitioner ten (10) days to file its comment. The
trial court ruled on the motion only after the reglementary period to file
comment lapsed. Clearly, petitioner was given time to study and comment on
the motion for which reason, the very purpose of a notice of hearing had
been achieved.
The notice requirement is not a ritual to be followed blindly.1âwphi1
Procedural due process is not based solely on a mechanical and literal
application that renders any deviation inexorably fatal. Instead, procedural
rules are liberally construed to promote their objective and to assist in
obtaining a just, speedy and inexpensive determination of any action and
proceeding. [Emphases supplied]
At any rate, it is undisputed that the August 21, 1991 RTC Decision11 in Civil
Case No. 44940 is already final and executory. Once a judgment becomes
final and executory, all the issues between the parties are deemed resolved
and laid to rest. All that remains is the execution of the decision which is a
matter of right. The prevailing party is entitled to a writ of execution, the
issuance of which is the trial court’s ministerial duty.12
The Court agrees with the respondents that petitioner mainly relies on mere
technicalities to frustrate the ends of justice and further delay the execution
process and enforcement of the RTC Decision that has been affirmed by the
CA and this Court. The record shows that the case has been dragging on for
almost 30 years since petitioner filed an action for annulment of sale in 1982.
From the time the Spouses Co bought the house from PSB in 1978, they
have yet to set foot on the subject house and lot.
To remand the case back to the lower court would further prolong the agony
of the Spouses Co. The Court should not allow this to happen. The Spouses
Co should not be prevented from enjoying the fruits of the final judgment in
their favor. In another protracted case, the Court wrote:
As a final note, it bears to point out that this case has been dragging for more
than 15 years and the execution of this Court’s judgment in PEA v. CA has
 C I V P R O I V C i v i l P r o c e d u r e P a g e | 143

been delayed for almost ten years now simply because De Leon filed a
frivolous appeal against the RTC’s order of execution based on arguments
that cannot hold water. As a consequence, PEA is prevented from enjoying
the fruits of the final judgment in its favor. The Court agrees with the Office of
the Solicitor General in its contention that every litigation must come to an
end once a judgment becomes final, executory and unappealable. Just as a
losing party has the right to file an appeal within the prescribed period, the
winning party also has the correlative right to enjoy the finality of the
resolution of his case by the execution and satisfaction of the judgment,
which is the "life of the law." To frustrate it by dilatory schemes on the part of
the losing party is to frustrate all the efforts, time and expenditure of the
courts. It is in the interest of justice that this Court should write finis to this
litigation.13

WHEREFORE, the petition is DENIED.

SO ORDERED.

G.R. No. 77353 July 30, 1987
ASSOCIATED BANK, petitioner,
vs.
HON. ARSENIO M. GONONG, in his capacity as Presiding Judge of the
Regional Trial Court of Manila, Branch VIII; ROLE, INC. and ROMEO R.
ECHAUZ, respondents.
Remedial Law; Civil Procedure; Appeals; Record on appeal as a requirement
for perfection of an appeal, removed by Sec. 39 of B.P. 129, and in its place
the entire original records are now transmitted to the appellate court—Section
39 of Batas Pambansa Blg. 129 removed the record on appeal as a
requirement for the perfection of an appeal. In lieu of the usually expensive
and time-consuming record on appeal, the entire original records are now
transmitted to the appellate court.
Same; Same; Same; Jurisdiction; The court does not lose its jurisdiction over
a case as long as any of the parties may still file his, her or its appeal under
Sec. 23 of the Interim Rules; Filing of an appeal by a losing party does not
automatically divest the party favored by a decision of the right to move for a
more favorable decision or to ask for execution pending appeal.—As long as
any of the parties may still file his, her, or its appeal, the court does not lose
jurisdiction over the case. The plaintiff or plaintiffs may not deprive the
defendants or co-plaintiffs and neither may the defendant or defendants
deprive the plaintiff or co-defendants of the right to file a motion for
reconsideration or to move for a new trial or an execution pending appeal by
immediately filing a notice of appeal. The filing of an appeal by a losing party
does not automatically divest the party favored by a decision of the right to
move for a more favorable decision or to ask for execution pending appeal. It
is ony after all the parties' respective periods to appeal have lapsed that the
court loses its jurisdiction over the case. As pointed out in Universal Far East
Corporation v. Court of Appeals (131 SCRA 642) the period when a court
considers and acts upon a motion for execution may take some time. As a
matter of fact, the resolution of a motion may take place long after the
expiration of the reglementary fifteen-day period for appeal.
PETITION to review the order of the Regional Trial Court of Manila, Br. 8,
Gonong, J.
The facts are stated in the opinion of the Court.
C I V P R O I V C i v i l P r o c e d u r e P a g e | 144
GUTIERREZ JR., J.:
The perfection of an appeal and the jurisdiction of a trial court over a motion
for execution pending appeal are the controverted issues in this petition to
review the order of the respondent court in Civil Case No. 82-7281, dated
December 16, 1986, denying the petitioner's motion for execution pending
appeal on the ground of lack of jurisdiction.
The petition was filed on February 17, 1987. Private respondents Role, Inc.
and Romeo R. Echauz filed their Comments on March 24 and March 27,
1987 respectively. The petitioner filed its Reply on June 16, 1987. We treat
the Comments as the respondents' Answers and decide the petition on its
merits.
This case has its origins in a complaint for the recovery of a sum of money
filed by petitioner Associated Bank against respondent ROLE, Incorporated
and Romeo R. Echauz before the then Court of First Instance of Manila,
Branch 37.
On November 3, 1986, the trial court rendered its decision in favor of the
petitioner. On November 6, 1986, respondent ROLE filed its notice of appeal.
On November 24, 1986, respondent Echauz followed suit.
Meanwhile, on November 19, 1986, the petitioner filed a motion for execution
pending appeal.
On December 16, 1986, the respondent court issued the questioned order
denying the petitioner's motion for execution on the ground that the notices of
appeal seasonably filed by private respondents had already been given due
course when he issued his previous orders. According to the court, the filing
of the respondents' notices of appeal and its approval of those notices
deprived the trial court of jurisdiction to entertain the motion for execution
pending appeal.
This petition for certiorari, prohibition, and mandamus was filed to — (a)
annul and set aside the order denying the petitioner's motion for execution
pending appeal; (b) enjoin and prohibit the respondents, specifically the
respondent court from elevating the records of the case to the Court of
Appeals pending resolution of the instant petition; and (c) command the

respondent court to assume its jurisdiction and resolve the petitioner's motion
for execution pending appeal.
The questioned order is based on the premise that upon the seasonable
filing and approval of the respondents' notices of appeal, the trial court is
automatically divested of its jurisdiction over the case and, consequently, it
has no more power to act upon the petitioner's motion. The mistake is
apparent.
Section 39 of Batas Pambansa Blg. 129 removed the record on appeal as a
requirement for the perfection of an appeal. In lieu of the usually expensive
and time-consuming record on appeal, the entire original records are now
transmitted to the appellate court.
In implementation of this amendatory provision, Section 23 of the Interim
Rules of Court provides:
23. Perfection of appeal. — In cases where appeal is taken, the
perfection of the appeal shall be upon the expiration of the last day to
appeal by any party.
xxx xxx xxx
As long as any of the parties may still file his, her, or its appeal, the court
does not lose jurisdiction over the case.
The plaintiff or plaintiffs may not deprive the defendants or co-plaintiffs and
neither may the defendant or defendants deprive the plaintiff or co-
defendants of the right to file a motion for reconsideration or to move for a
new trial or an execution pending appeal by immediately filing a notice of
appeal. The filing of an appeal by a losing party does not automatically divest
the party favored by a decision of the right to move for a more favorable
decision or to ask for execution pending appeal. It is only after all the parties'
respective periods to appeal have lapsed that the court loses its jurisdiction
over the case. As pointed out in Universal Far East Corporation v. Court of
Appeals (131 SCRA 642) the period when a court considers and acts upon a
motion for execution may take some time. As a matter of fact, the resolution
of a motion may take place long after the expiration of the reglementary
fifteen-day period for appeal.
As early as 1934, this Court in People v. Ursua (60 Phil. 252) stressed this
mode of determining when an appeal is perfected.
C I V P R O I V C i v i l P r o c e d u r e P a g e | 145
An appeal by the defendant in a criminal case does not result in the court's
losing its jurisdiction to entertain a motion for reconsideration filed by the
offended party, insofar as civil liability is concerned, within the 15-day period.
Thus we held in Ursua:
xxx xxx xxx
... If the accused has the right within fifteen days to appeal from the
judgment of conviction, the offended party should have the right
within the same period to appeal from so much of the judgment as is
prejudicial to him, and his appeal should not be made dependent on
that of the accused. If upon appeal by the accused the court
altogether loses its jurisdiction over the cause, the offended party
would be deprived of his right to appeal, although fifteen days have
not yet elapsed from the date of the judgment, if the accused files his
appeal before the expiration of said period. Therefore, if the court,
independently of the appeal of the accused, has jurisdiction, within
fifteen days from the date of the judgment, to allow the appeal of the
offended party, it also has jurisdiction to pass upon the motion for
reconsideration filed by the private prosecution in connection with the
civil liability of the accused. (at pp. 254-255).
The above ruling was reiterated in Simsim v. Belmonte (34 SCRA 536)
where we stated:
Timoteo Simsim balked at the order to amend the record on appeal.
contending that it was beyond the power of the Court to issue once
his appeal had been perfected by the approval of the record. ...
xxx xxx xxx
xxx xxx xxx
... Furthermore, such a view would place it within the power of one of
the parties, by the simple expedient of immediately perfecting his
appeal, to deprive the other party of the right to ask for a
reconsideration of the decision, let alone to have the court approve
his own appeal if such a motion is denied. These consequences find
no justification in the Rules. (at pp. 538 & 539).
As explained in the above case of Simsim, the Rules must be interpreted to
avoid impractical and absurd situations.
 C I V P R O I V C i v i l P r o c e d u r e P a g e | 146

WHEREFORE, the petition is hereby GRANTED. The order of the

respondent court, dated December 16, 1986 denying the petitioner's motion
for execution pending appeal is SET ASIDE. The court a quo is ordered to
retain the records of the case and to resolve the petitioner's motion for
execution.

SO ORDERED.

Fernan (Chairman), Feliciano, Bidin, and Cortes, JJ., concur.


G.R. No. L-34589 June 29, 1988
ENGINEERING CONSTRUCTION INCORPORATED, petitioner,
vs.
NATIONAL POWER CORPORATION and COURT OF APPEALS,
respondents.
G.R. No. L-34656 June 29, 1988
MANILA ELECTRIC COMPANY, petitioner,
vs.
COURT OF APPEALS and NATIONAL POWER CORPORATION,
respondents.
Remedial Law; Execution Pending Appeal; Requisites to be satisfied for the
court's valid exercise of its discretionary power to allow immediate
execution.—Section 2, Rule 39 of the Rules of Court provides: "Execution
pending appeal.—On motion of the prevailing party with notice to the adverse
party the court may, in its discretion, order execution to issue even before the
expiration of the time to appeal, upon good reasons to be stated in a special
order. If a record 011 appeal is filed thereafter, the motion and the special order
shall be included thereon." While the rule gives the court the discretionary
power to allow immediate execution, the following requisites must be satisfied
for its valid exercise: (a) There must be a motion by the prevailing party with
notice to the adverse party; (b) There must be good reasons for issuing the
execution; and, (c) The good reasons must be stated in a special order.
Same; Same; Same; Damages; The execution for any award for moral and
exemplary damages is dependent upon the outcome of th main case;
Appellate court is correct in holding that the lower court exceeded the limits of
its discretion in allowing immediate execution.—With respect to the
consequential and exemplary damages as well as attorney's fees, however,
we concur with the Appellate Court in holding that the lower court had
exceeded the limits of its discretion. Execution should have been postponed
until such time as the merits of the case have been finally determined in the
regular appeal. In the fairly recent case of RCPI, et al vs. Lantin, Nos. L59311
and 59320, January 31, 1985, 134 SCRA 395, 400-401, the Court said: "The
execution of any award for moral and exemplary damages is dependent on the
outcome of the main case. Unlike actual damages for which the petitioners
may clearly be held liable if they breach a specific contract and the amounts
of which are fixed and certain, liabilities with respect to moral and exemplary
C I V P R O I V C i v i l P r o c e d u r e P a g e | 147
damages as well as the exact amounts remain uncertain and indefinit e pendi
resolution by the Intermediate Appellate Court and eventually the Supreme
Court. The existence of the factual bases of these types of damages and their
causal relation to petitioners' act will have to be determined in the light of the
assignments of errors on appeal. It is possible that the petitioners, after all,
while liable for actual damages may not be liable for moral and exemplary
damages. Or as in some cases elevated to the Supreme Court, the awards
may be reduced."
Same; Same; Same; Courts look with disfavor upon any attempt to execute a
judgment which has not acquired a final character; Exception under Rule 39,
Sec. 2.—The point that the Court wishes to emphasize is this: Courts look with
disfavor upon any attempt to execute a judgment which has not acquired a
final character. Section 2, Rule 39, authorizing the premature execution of
judgments, being an exception to the general rule, must be restrictively
construed. It would not be a sound rule to allow indiscriminately the execution
of a money judgment, even if there is a sufficient bond. 'The reasons allowing
execution must constitute superior circumstances demanding urgency which
will outweigh the injury or damages should the losing party secure a reversal
of the judgment."
Same; Same; Same; Garnishment; Meralco should not have been faulted for
its prompt obedience to a writ of garnishment; Reasons.—But while partial
restitution is warranted in favor of NPC , we f ind the Appellate Court erred in
not absolving MERALCO, the garnishee, from its obligations to NPC with
respect to the payment to ECI of P 1, 114,543. 23, th us in effect sub jecting
ME RALCO liability. MERALCO should not have been faulted for its prompt
obedience to a writ of garnishment. Unless there are compelling reasons such
as: a defect on the face of the writ or actual knowledge on the part of the
garnishee of lack of entitlement on the part of the garnisher, it is not incumbent
upon the garnishee to inquire or to judge for itself whether or not the order for
the advance execution of a judgment is valid.
Same; Same; Same; Garnishment, define d a s a sp ecie of a ment; Obligation
of the garnishee.—Secti on 8, R ul e 57 of th e Court provides: "Effect of
attachment of debts and credits.—All persons having in their possession or
under their control any credits or other similar personal property belonging to
the party against whom attachment is issued, or owing any debts to the same,
at the time of service upon them of a copy of the order of attachment and notice
as provided in the last preceding section, shall be liable to the applicant for the
amount of such credits, debts or other property, until the attachment be
discharged, or any judgment recovered by him be satisfied, unless such

property be delivered or transferred, or such debts be paid, to the clerk, sheriff
or other proper officer of the court issuing the attachment." Garnishment is
considered as a specie of attachment for reaching credits belonging to the
judgment debtor and owing to him from a stranger to the litigation. Under the
abovecited rule, the garnishee [the third person] is obliged to deliver the
credits, etc. to the proper officer issuing the writ and "the law exempts from
liability the person having in his possession or under his control any credits or
other personal property belonging to the defendant, x x x x x x, if such pr operty
be de livered or t r a ns fe the clerk, sheriff, or other officer of the court in which
the action is pending." Applying the foregoing to the case at bar, MERALCO,
as garnishee, after having been judicially compelled to pay the amount of the
judgment represented by funds in its possession belonging to the judgment
debtor or NPC , shou ld be relea sed fro m all respons ties over such amount
after delivery thereof to the sheriff. The reason for the rule is self-evident. To
expose garnishees to risks for obeying court orders and processes would only
undermine the administration of justice
PETITIONS for review from the decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
FERNAN, J.:
In these related petitions for review under Rule 45 of the Rules of Court, the
Engineering Construction, Inc. [ECI] and the Manila Electric Company
[MERALCO] question the decision of the Court of Appeals in CA-G.R. No.
47528-R which set aside the orders of the trial court directing execution
pending appeal of a judgment for P1,108,985.31 in damages in favor of ECI.
Petitioners also question the resolution of said court holding them liable for
restitution of the garnished funds to the National Power Corporation [NPC].
On August 29, 1968, ECI filed a complaint for damages against the NPC in
the then Court of First Instance of Manila, Branch 15, alleging that it suffered
damages to its facilities and equipment due to the inundation of its campsite
in Ipo, Norzagaray, Bulacan, as a direct result of the improper and careless
opening by NPC of the spillway gates of Angat Dam at the height of typhoon
"Welming" on November 4,1967. 1
On December 23, 1970, the trial court found NPC guilty of gross negligence
and rendered its judgment, thus:
C I V P R O I V C i v i l P r o c e d u r e P a g e | 148
WHEREFORE, judgment is rendered in favor of plaintiff and
against defendant as follows:
1. Ordering defendant to pay plaintiff actual or compensatory
damages in the amount of P675,785.31;
2. Ordering defendant to pay consequential damages in the
amount of P233,200.00; *
3. Ordering defendant to pay plaintiff the amount of P50,000
as and by way of exemplary damages; and
4. Ordering defendant to pay plaintiff the amount of P50,000
as and for attorney's fees ... 2
NPC filed a notice of appeal from that decision but before it could perfect its
appeal, ECI moved for and was granted execution pending appeal upon
posting a covering bond of P200,000 which it later increased to P1,109,000
to fully answer for whatever damages NPC might incur by reason of the
premature execution of the lower court's decision. 3
In granting said motion for the exceptional writ over the strong opposition of
the NPC, the trial court adopted the grounds adduced by movant ECI.
1. x x x.
2. That the substantial portion of the award of damages
refers to the actual or compensatory damages incurred by
plaintiff, which are supported by voluminous documentary
evidence, the genuineness and due execution of which were
admitted and further, no evidence whatever was presented
to contest the same;
3. That this case has been pending for years, as the plaintiff
and the Honorable Court were led to believe that the matter
in dispute would be settled amicably;
4. That an appeal by defendant would obviously be for
purposes of delay;
5. That on appeal, the case would certainly drag on for many
years, and in the meantime, the actual loss and damages

sustained by plaintiff, who because of such loss have
become heavily obligated and financially distressed, would
remain uncompensated and unsatisfied
6. That also, plaintiff is willing and able to file a bond to
answer for any damage which defendant may suffer as a
result of an execution pending appeal. 4
Subsequently, Deputy Sheriff Restituto R. Quemada who was assigned to
enforce the writ of execution, garnished in favor of ECI all amounts due and
payable to NPC which were then in possession of MERALCO and sufficient
to cover the judgment sum of P1,108,985.31. 5
Attempts to lift the order of execution having proved futile and the offer of a
supersedeas bond having been rejected by the lower court, NPC filed with
the Appellate Court a petition for certiorari. 6
In its challenged decision of October 20, 1971, the Court of Appeals granted
NPCs petition and nullified the execution pending appeal of the judgment
rendered by the trial court on December 28, 1970, as well as all issued writs
and processes in connection with the execution. One justice dissented. 7
On November 11, 1971, MERALCO sought from the Appellate Court a
clarification and reconsideration of the aforesaid decision on the ground,
among others, that the decision was being used by NPC to compel
MERALCO to return the amount of P1,114,545.23 (inclusive of sheriff's fees)
in two checks which it had already entrusted to the deputy sheriff on
February 23, 1971, who then indorsed and delivered the same to ECI.
Whereupon, in its resolution of January 7, 1972, the Appellate Court held the
sheriff, MERALCO and ECI liable to restore to NPC the amount due to NPC
which MERALCO had earlier turned over to the sheriff for payment to ECI. 8
Their two motions for reconsideration having been denied, ECI and
MERALCO filed separate petitions for review before this Court: Nos. L-34589
and 34656, the very petitions before us for adjudication. In this connection, it
must be made clear that we are not concemed with the main appeal. For the
present, we limit our discussion to the correctness of the extraordinary writ of
execution pending appeal and the ordered restitution of the garnished funds--
-two collateral matters which have greatly exacerbated the existing dispute
between the parties.
We shall deal first with the propriety of the execution pending appeal.
C I V P R O I V C i v i l P r o c e d u r e P a g e | 149
Section 2, Rule 39 of the Rules of Court provides:
Execution pending appeal. — On motion of the prevailing
party with notice to the adverse party the court may, in its
discretion, order execution to issue even before the
expiration of the time to appeal, upon good reasons to be
stated in a special order. If a record on appeal is filed
thereafter, the motion and the special order shall be included
thereon.
While the rule gives the court the discretionary power to allow immediate
execution, the following requisites must be satisfied for its valid exercise:
(a) There must be a motion by the prevailing party with
notice to the adverse party;
(b) There must be a good reasons for issuing the execution;
and
(c) The good reasons must be stated in a special order.
In its assailed decision, the Appellate Court, through Justice Salvador V.
Esguerra, observe that NPC, as defendant in the civil case for damages, was
being ordered to pay the amount of P 1,108,985.31 pending appeal when
practically 40% thereof was made up of awards of damages based on the
court's sole and untrammeled discretion. Such amount might greatly be
reduced by the superior court, especially the items for consequential and
exemplary damages and attorney's fees which by themselves would amount
to the "staggering" sum of P433,220.00
The Appellate Court noted the many instances when on review, the amounts
for attorney's fees and exemplary and moral damages were drastically cut or
eliminated altogether in the absence of proof that the losing party acted with
malice, evident bad faith or in an oppressive manner.
Inasmuch as the list submitted by ECI of the estimated losses and damages
to its tunnel project caused by the instant flooding on November 4, 1967 was
duly supported by vouchers presented in evidence, and considering that
NPC, for its part, failed to submit proofs to refute or contradict such
documentary evidence, we are constrained to sustain the order of execution
pending appeal by the trial court but only as far as the award for actual or
compensatory damages is concemed. We are not prepared to disagree with

the lower court on this point since it was not sufficiently shown that it abused
or exceeded its authority.
With respect to the consequential and exemplary damages as well as
attorney's fees, however, we concur with the Appellate Court in holding that
the lower court had exceeded the limits of its discretion. Execution should
have been postponed until such time as the merits of the case have been
finally determined in the regular appeal.
In the fairly recent case of RCPI, et al vs. Lantin Nos. L-59311 and 59320,
January 31, 1985 , 134 SCRA 395, 400-401, the Court said:
The execution of any award for moral and exemplary
damages is dependent on the outcome of the main case.
Unlike actual damages for which the petitioners may clearly
be held liable if they breach a specific contract and the
amounts of which are fixed and certain, liabilities with
respect to moral and exemplary damages as well as the
exact amounts remain uncertain and indefinite pending
resolution by the Intermediate Appellate Court and
eventually the Supreme Court. The existence of the factual
bases of these types of damages and their casual relation to
petitioners' act will have to be determined in the light of the
assignments or errors on appeal. It is possible that the
petitioners, after all, while liable for actual damages may not
be liable for moral and exemplary damages. Or as in some
cases elevated to the Supreme Court, the awards may be
reduced.
Indeed, as later events would show, the Appellate Court was
proven right when it postulated that it is not beyond the realm
of probability that NPCs appeal from the lower court's
judgment could result in the substantial reduction of the
consequential damages and attorney's fees and the deletion
of exemplary damages.
We take judicial notice of the fact that on August 24, 1987,
the Court of Appeals rendered a decision on the main
appeal. 9 It affirmed the trial court's conclusion that NPC was
guilty of negligence but differred in the award of damages.
While it upheld the court a quo's award of P675,785.31 as
actual damages, it reduced the consequential damages from
P333,200.00 to P19,200.00 and the attorney's fees from
C I V P R O I V C i v i l P r o c e d u r e P a g e | 150
P50,000 to P30,000.00 The grant of P50,000 as exemplary
damages was eliminated. Altogether, the award of damages
was modified from P1,108,985.31 to P724,985.31. From that
decision, both the ECI and NPC filed their separate appeals
to this Court. 10 Finally, on May 16, 1988, the Court
promulgated its judgment affirming in all respects the
Appellate Court's decision in CA-G.R. No. 49955-R, thus
putting to rest the question of negligence and NPCs liability
for damages.
The point that the Court wishes to emphasize is this: Courts look with
disfavor upon any attempt to execute a judgment which has not acquired a
final character. Section 2, Rule 39, authorizing the premature execution of
judgments, being an exception to the general rule, must be restrictively
construed. It would not be a sound rule to allow indiscriminately the
execution of a money judgment, even if there is a sufficient bond. "The
reasons allowing execution must constitute superior circumstances
demanding urgency which will outweigh the injury or damages should the
losing party secure a reversal of the judgment."' 11
We come now to the second issue of whether petitioners, including the
sheriff, are bound to restore to NPC the judgment amount which has been
delivered to ECI in compliance with the writ of garnishment.
In line with our pronouncement that we are sanctioning in this particular
instance the execution pending appeal of actual but not consequential and
exemplary damages and attorney's fees which must necessarily depend on
the final resolution of the main cases, i.e., Nos. L-47379 and 47481, the
direct consequence would be to authorize NPC to proceed against the
covering bond filed by ECI but only to the extent of the difference between
the amount finally adjudicated by this Court in the main cases [P724,985.31]
and the amount originally decreed by the trial court relating to the
consequential and exemplary damages and attorney's fees [P1,108.985.31].
In other words, ECIs bond is held answerable to NPC for P384,000.
But while partial restitution is warranted in favor of NPC, we find that the
Appellate Court erred in not absolving MERALCO, the garnishee, from its
obligations to NPC with respect to the payment to ECI of P1,114,543.23, thus
in effect subjecting MERALCO to double liability. MERALCO should not have
been faulted for its prompt obedience to a writ of garnishment. Unless there
are compelling reasons such as: a defect on the face of the writ or actual
knowledge on the part of the garnishee of lack of entitlement on the part of
the garnisher, it is not incumbent upon the garnishee to inquire or to judge for
 C I V P R O I V C i v i l P r o c e d u r e P a g e | 151

itself whether or not the order for the advance execution of a judgment is upheld by the Court in the main cases (Nos. L-47379 and 47481) and those
valid. decreed for the same items by the trial court;

Section 8, Rule 57 of the Rules of Court provides, [b] MERALCO is declared absolved from any and all responsibilities in
connection with the amount of P1,114,545.23 representing the NPC
Effect of attachment of debts and credits.-All persons having garnished funds and therefore relieved from the burden of restoring the same
in their possession or under their control any credits or other to NPC.
similar personal property belonging to the party against
whom attachment is issued, or owing any debts to the same, SO ORDERED .
at the time of service upon them of a copy of the order of
attachment and notice as provided in the last preceding Feliciano, Bidin and Cortes,JJ., concur.
section, shall be liable to the applicant for the amount of
such credits, debts or other property, until the attachment be Gutierrez, Jr., J., is on leave.
discharged, or any judgment recovered by him be satisfied,
unless such property be delivered or transferred, or such
debts be paid, to the clerk, sheriff or other proper officer of
the court issuing the attachment.

Garnishment is considered as a specie of attachment for reaching credits

belonging to the judgment debtor and owing to him from a stranger to the
litigation. Under the above-cited rule, the garnishee [the third person] is
obliged to deliver the credits, etc. to the proper officer issuing the writ and
"the law exempts from liability the person having in his possession or under
his control any credits or other personal property be, longing to the
defendant, ..., if such property be delivered or transferred, ..., to the clerk,
sheriff, or other officer of the court in which the action is pending." 12

Applying the foregoing to the case at bar, MERALCO, as garnishee, after

having been judicially compelled to pay the amount of the judgment
represented by funds in its possession belonging to the judgment debtor or
NPC, should be released from all responsibilities over such amount after
delivery thereof to the sheriff. The reason for the rule is self-evident. To
expose garnishees to risks for obeying court orders and processes would
only undermine the administration of justice.

WHEREFORE, the Court in disposing of the two side issues of execution

pending appeal and petitioners' liability for restitution, hereby MODIFIES the
Court of Appeals' decision and resolution under review, and rules as follows:

[a] NPC is authorized to proceed against the P1,109,000 bond filed by ECI to
the extent of P384,000 which corresponds to the difference between the
awards for consequential and exemplary damages and attorney's fees

G.R. No. 92241 October 17, 1991
LILIA T. ONG, petitioner,
vs.
COURT OF APPEALS and VIRGINIA SARMIENTO, respondents.
Remedial Law; Civil Procedure; Appeal; What determines perfection of the
appeal is the expiration of the reglementary period for appeal.—Section 23 of
the Interim Rules (implementing the 1981 Judiciary Act, BP No. 129)
promulgated on January 11, 1983, provides: “23. Perfection of Appeal.—In
cases where appeal is taken the perfection of the appeal shall be upon the
expiration of the last day to appeal by any party.” The Interim Rules brought
about a change in the procedure for appeal by dispensing with the appeal
bond, as well as the record on appeal (except in cases of multiple appeals).
As a result, what determines perfection of the appeal is the expiration of the
reglementary period for appeal (Universal Far East Corp. v. Court of Appeals,
G.R. No. 64931, August 31, 1984, 131 SCRA 642; Montelibano v. Bacolod-
Murcia Milling Co., Inc., supra; Yabut v. IAC, supra; Sonida Industries, Inc. v.
Wasan, Sr., G.R. No. 76342, December 4, 1989, 179 SCRA 763.
Same; Same; Same; Notice of Appeal; The mere filing of appellant’s notice of
appeal does not divest the trial court of its jurisdiction over the case.—The
mere filing of appellant’s notice of appeal does not divest the trial court of its
jurisdiction over the case. The court may still take cognizance of the other
party’s motion for new trial under Rule 37, if he should opt to file one, or, as in
the instant case, a motion for execution pending appeal, provided of course,
such motions are filed within 15 days from said party’s notice of the decision.
What is crucial to determine is the timeliness of the filing of the motion for
execution pending appeal (Sonida Industries, Inc. v. Wasan, Sr., supra).
Same; Same; Same; Execution Pending Appeal; The authority to disapprove
an appeal rightfully pertains to the appellate court.—Where the reason given
is that an appeal is frivolous and dilatory, execution pending appeal cannot be
justified. It is not proper for the trial court to find that an appeal is frivolous and
consequently to disapprove it since the disallowance of an appeal by said court
constitutes a deprivation of the right to appeal. The authority to disapprove an
appeal rightfully pertains to the appellate court (Heirs of Gavino Sabenal v.
Hon. Benjamin Gorospe, G.R. No. 50168, September 30, 1988, 166 SCRA
145).
PETITION for certiorari to review the decision of the Court of Appeals.
C I V P R O I V C i v i l P r o c e d u r e P a g e | 152
The facts are stated in the opinion of the Court.
Diosdado P. Peralta for petitioner.
Adelaido J. Rivera for private respondent.
MEDIALDEA, J.:
This petition seeks to review on certiorari, the decision of the Court of
Appeals, upholding the writ of execution pending appeal issued by the trial
judge.
The facts of the case are stated in the Court of Appeals decision.
Private respondent Virginia Sarmiento (Sarmiento) sued Eligio Dee (Dee) for
the collection of the amount of P121,759.00, representing the value of
construction materials allegedly obtained by him, for attorney's fees and
expenses of litigation. Dee had earlier issued checks in the total amount of
P40,000.00, but these subsequently, bounced for insufficiency of funds.
Sarmiento also prayed for the issuance of a writ of preliminary attachment.
The complaint was subsequently amended to include petitioner Lilia Ong
(Ong) as party-defendant on the allegation that she and Eligio Dee had
issued the checks and that the construction materials were delivered to the
piggery farm of Ong.
A writ of attachment was issued by the trial judge and served upon Ong,
resulting in the levy of certain hogs valued at P40,000.00. The court later
issued a temporary restraining Order (TRO) against further enforcement of
the writ, pending resolution of a motion to quash filed by Ong.
On November 4, 1988, the trial judge rendered a decision, which was
received by Ong on November 29, 1988 (p. 91, Rollo) finding Dee and Ong
jointly and severally liable for the sum of P121,759.00.
Dee and Ong filed a notice of appeal on December 2, 1988.
On December 12, 1988, Sarmiento filed a "Motion for Immediate Execution
Pending Appeal," dated December 9, 1988, alleging that the appeal is
dilatory and frivolous.

Ong opposed the motion claiming that the trial court no longer had any
jurisdiction to act on said motion since the appeal had clearly been perfected,
and besides, there was already a writ of attachment to secure the court's
judgment.
On January 26, 1989, the trial judge issued an order granting Sarmiento's
motion for execution pending appeal, conditioned upon a bond in the amount
of P121,759.00.
On February 2, 1989, Ong filed a petition for certiorari and prohibition with
injunction with the Court of Appeals. The appellate court dismissed it on
October 18, 1989.
Hence this petition questioning the validity of the appellate court's ruling
upholding the writ of execution pending appeal.
In upholding the writ of execution pending appeal, the appellate court
observed that the trial judge had, prior to its issuance, duly noted the
presence of the circumstances laid down by Section 2, Rule 39 of the
Revised Rules of Court, allowing execution as an exception, or pending
appeal, even before final judgment; viz:
xxx xxx xxx
a. . . . motion by the prevailing party with notice to the adverse party;
b. . . . good reasons for issuing execution; and
c. . . . the good reasons be stated in a Special Order (Lao v.
Mencias, G.R. No. L-23554, November 25, 1967; 21 SCRA 1021)
(See p. 92, Rollo, CA decision).
Likewise, it accepted as "good reasons" Sarmiento's statements in
support of her motion, that "the appeal of said defendants is clearly
and obviously frivolous and dilatory in nature, considering that they
have not adduced substantial valid and meritorious defenses against
the plaintiffs." (p. 92, Rollo, CA decision) The appellate court also
ruled that "the filing of the bond required by the court constitutes
special ground authorizing the court to issue writ of execution
pending appeal:
xxx xxx xxx
C I V P R O I V C i v i l P r o c e d u r e P a g e | 153
. . . the determination of the sufficiency or insufficiency of the special
reasons rests upon the sound discretion of the court issuing the writ
of execution pending appeal. The appellate court cannot interfere
with the exercise of this discretion unless it appears that there had
been a grave abuse or excess of authority in doing so (Buenaventura
v. Peña, 78 Phil. 795; Naredo v. Yatco, 80 Phil. 220) or conditions
have so far changed since the order was issued as to require the
intervention of the appella(te) court (Buenaventura v. Peña, supra).
In the present case, this Court finds no abuse of discretion nor a
change of condition since the order was issued as to require the
intervention of this court (CA decision, pp. 87-94, Rollo, at p. 92)
The appellate court also disagreed with Ong's claim that upon filing
of her notice of appeal, the trial court had lost jurisdiction to act on
Sarmiento's motion for execution pending appeal, declaring that the
mere filing of appellant's notice of appeal does not divest the trial
court of jurisdiction over the case, since "an appeal is not perfected
on the date the notice of appeal was filed but on the expiration of the
last day to appeal," citing the cases of Montelibano v. Bacolod-
Murcia Milling Co., Inc., G.R. No. 69800, May 5, 1985, 136 SCRA
294 and Yabut v. IAC, G.R. No. 69208, May 28, 1986, 142 SCRA
124.
Thus, the appellate court observed:
. . . when petitioner received a copy of the decision on November 29,
1988, an appeal thereof was deemed perfected on December 14,
1988, the expiration of the last day to appeal by any party. When the
private respondent filed her motion for execution pending appeal on
December 12, 1988, it is very clear that the appeal was not yet
perfected. Considering then that the motion was filed well before the
perfection of the petitioner's appeal, the respondent Court has
jurisdiction to act on the motion. (CA decision, p. 91, Rollo).
We agree with the Court of Appeals.
Section 23 of the Interim Rules (implementing the 1981 Judiciary Act, BP No.
129) promulgated on January 11, 1983, provides:
23. Perfection of Appeal. — In cases where appeal is taken the
perfection of the appeal shall be upon the expiration of the last day to
appeal by any party.

The Interim Rules brought about a change in the procedure for appeal by
dispensing with the appeal bond, as well as the record on appeal (except in
cases of multiple appeals). As a result, what determines perfection of the
appeal is the expiration of the reglementary period for appeal (Universal Far
East Corp. v. Court of Appeals, G.R. No. 64931, August 31, 1984, 131 SCRA
642; Montelibano vs. Bacolod-Murcia Milling Co., Inc., supra; Yabut v. IAC,
supra; Sonida Industries, Inc. v. Wasan, Sr., G.R. No. 76342, December 4,
1989, 179 SCRA 763.
The mere filing of appellant's notice of appeal does not divest the trial court
of its jurisdiction over the case. The court may still take cognizance of the
other party's motion for new trial under Rule 37, if he should opt to file one,
or, as in the instant case, a motion for execution pending appeal, provided of
course, such motions are filed within 15 days from said party's notice of the
decision. What is crucial to determine is the timeliness of the filing of the
motion for execution pending appeal (Sonida Industries, Inc. v. Wasan, Sr.,
supra).
On the other hand, We do not agree that the writ of execution pending
appeal was premised on, or justified by good reasons, i.e. a) that the appeal
was frivolous and dilatory, and b) sufficient bond required by the court had
been posted.
In the case of Roxas v. Court of Appeals (G.R. No. L-56960, January 28,
1988, 157 SCRA 370), We stated:
Execution pending appeal in accordance with Section 2 of Rule 39
is, of course, the exception. Normally, execution of a judgment
should not be had until and unless it has become final and executory
— i.e., the right of appeal has been renounced or waived, the period
for appeal has lapsed without an appeal having been taken, or
appeal having been taken, the appeal has been resolved and the
records of the case have been returned to the court of origin — in
which case, execution "shall issue as a matter of right." (Sec. 1, Rule
39 in relation to Sec. 11, Rule 51)
On the other hand, when the period of appeal has not expired,
execution of the judgment should not be allowed, save only if there
be good reasons therefor, in the court's discretion. "As provided in
Section 2, Rule 39 of the . . . Rules . . ., the existence of good
reasons is what confers discretionary power on a Court . . . to issue a
writ of execution pending appeal. The reasons allowing execution
must constitute superior circumstances demanding urgency which
C I V P R O I V C i v i l P r o c e d u r e P a g e | 154
will outweigh the injury or damages should be losing party secure a
reversal of the judgment." (Jaca v. Lumber Co., G.R. No. L-25771,
March 29, 1982; 113 SCRA 107, 121)
It is not intended obviously that execution pending appeal shall issue
as a matter of course. "Good reasons, special, important, pressing
reasons must exist to justify it; otherwise, instead of an instrument of
solicitude and justice, it may well become a tool of oppression and
inequity." (Emphasis supplied)
Where the reason given is that an appeal is frivolous and dilatory, execution
pending appeal cannot be justified. It is not proper for the trial court to find
that an appeal is frivolous and consequently to disapprove it since the
disallowance of an appeal by said court constitutes a deprivation of the right
to appeal. The authority to disapprove an appeal rightfully pertains to the
appellate court (Heirs of Gavino Sabenal v. Hon. Benjamin Gorospe, G.R.
No. 50168, September 30, 1988, 166 SCRA 145).
Having declared that the trial judge may not rightfully determine that an
appeal from its own decision is frivolous or dilatory, it is clear that the writ of
execution pending appeal would be premised solely on the bond posted by
Sarmiento. The next question to be resolved then is whether or not the filing
of a bond, without anything more, can be considered a good reason to justify
immediate execution under Section 2 of Rule 39.
In the case of Roxas v. Court of Appeals, supra. We had occasion to address
this issue directly. We clarified the doctrine as follows:
. . . to consider the mere posting of a bond a "good reason" would
precisely make immediate execution of a judgment pending appeal
routinary, the rule rather than the exception. Judgments would be
executed immediately, as a matter of course, once rendered, if all
that the prevailing party needed to do was to post a bond to answer
for damages that might result therefrom. This is a situation, to repeat,
neither contemplated nor intended by law.
There are, to be sure, statements in some of this Court's decisions
which do generate the perception that 'the filing of the bond by the
successful party is a good reason for ordering execution. Petitioner
Roxas herself cites City of Manila v. C.A. to support her postulation
of this effect. From that case — which adverts to Hacienda Navarra,
Inc. v. Labrador, et al. (65 Phil. 531) and People's Bank and Trust
Co. etc. v. San Jose, et al. (96 Phil. 895)—she quotes the following:
 C I V P R O I V C i v i l P r o c e d u r e P a g e | 155

"From what has been said, it is thus clear that the Court of Narvasa (Chairman), Cruz and Griño-Aquino, JJ., concur.
Appeals erred in not considering the city's posting to a bond
as [heirs of the estate of a deceased person under
administra] (sic) good and special reason to justify execution
pending appeal."

But sight should not be lost of the factual context in which the quoted
statement was made. In that case, the City of Manila had succeeded
in obtaining judgment for the recovery of a piece of land it had lent to
the Metropolitan Theater, and immediate execution became
imperative because the theater was insolvent and there was
imminent danger of its creditor's foreclosing a mortgage on the
property. This combination of circumstances was the dominant
consideration which impelled the grant of immediate execution, the
requirement of a bond having been imposed merely as an additional
factor, no doubt for the protection of the defendant's creditor. In
Hacienda Navarra, there was a special reason for immediate
execution, in addition to the posting of a bond. There, the Court said
that "Inasmuch as the purpose in depositing the money is to insure
its receipts by the party obtaining a favorable judgment in the above
cited civil case, the filing of a sufficient bond for the delivery of said
proceeds secures said receipt." And in People's Bank, the order
involved in the case decreed payment of allowances for the support
of one of the heirs of the estate of a deceased person under
administration, and the urgent need of the party entitled thereto was
the paramount consideration for immediate execution, not the filing of
a bond. (emphasis supplied)

Based on the foregoing discussions, We have no alternative but to strike

down the writ of execution pending appeal for lack of "good reasons" to
justify its issuance.

The other issues raised by Ong on her alleged solidary liability are not proper
for discussion in this petition for certiorari, being errors of judgment by the
trial court, correctible by appeal and which has been already undertaken by
Ong.

ACCORDINGLY, the petition is GRANTED. The Order dated January 26,

1989 granting the issuance of a writ of execution pending appeal is hereby
SET ASIDE and NULLIFIED, having been issued in grave abuse of
discretion. Costs against private respondent.

SO ORDERED.

G.R. No. L-63188 June 13, 1990
FERNANDO, PELAGIO, CARLOS, JULIA and JUANA, all surnamed
ARANDA, petitioners,
vs.
THE HONORABLE COURT OF APPEALS, MARCELO DE LARA, MARIA
DE LARA, and DOMINADOR, PEDRO, and LIBRADA, all surnamed
RAMOS, respondents.
Certiorari; By way of exception the Court of Appeals may entertain a special
civil action for certiorari even appeal already lost because order became final
already.—Anent the first issue, the Appellate Court can legally entertain the
special civil action of certiorari in CA-G.R. No. 14821-SP considering the
broader and primordial interests of justice which compel an occasional
departure from the general rule that the extraordinary writ of certiorari cannot
substitute for a lost appeal, the order of March 15, 1979 having become final
upon the lapse of the reglementary period of appeal.
Appeals; Execution; Where execution made pending appeal is overturned
complete restitution is required. If restitution becomes impractical, losing party
is liable for full value of property seized.—When a judgment is executed
pending appeal and subsequently overturned in the appellate court, the party
who moved for immediate execution should, upon return of the case to the
lower court, be required to make specific restitution of such property of the
prevailing party as he or any person acting in his behalf may have acquired at
the execution sale. If specific restitution becomes impracticable, the losing
party in the execution becomes liable for the full value of the property at the
time of its seizure, with interest.
Same; Same; Judgment; Value of jeep seized pending appeal should be paid
by losing party and need not be so included in the appellate court’s
judgment.—On the second issue, petitioners argue that the proceeds of the
jeepney as well as the sum of P42,159.00 garnished from Tecson Chemical
Corporation cannot be returned to the De Laras, et al because such return is
not expressly included in the dispositive part of the Appellate Court’s judgment
in CA-G.R. No. 42228-R. It will be recalled that the decision of the Bulacan trial
court, aside from awarding the subject pieces of realty to the Arandas, also
ordered the De Laras, et al to pay 10,000.00 as moral damages and another
P10,000.00 as attorney’s fees. Consequently, to satisfy said judgment pending
appeal, the jeepney of Marcelo de Lara was sold in execution and the amount
of P42,159.00 due from the Tecson Chemical Corporation in favor of Marcelo
was garnished. The proceeds of the jeepney and the garnished amount were
C I V P R O I V C i v i l P r o c e d u r e P a g e | 156
later withdrawn by the Arandas. To deny restitution of these items would be to
close our eyes to the unalterable fact that such items as acknowledged by both
parties were used specifically to complete and satisfy the judgment of the lower
court in favor of the Arandas, the plaintiffs in execution, and from which they
have derived benefits since 1968.
Same; Same; Same; Same.—Indeed, the Court of Appeals need not specify
in the judgment of reversal that there should be restitution of the properties,
etc. Such restoration is expressly provided for in Section 5, Rule 39 of the
Rules and should apply in the absence of any contrary disposition in the final
judgment of the appellate court.
PETITION to review the decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Artemio M. Lobrin for petitioners.
Dakila F. Castro & Associates for private respondents.
Venustiano S. Roxas collaborating counsel for respondents.
Carlos Antiporda for Aurelia Oxiles.
FERNAN, C.J.:
The instant petition has it roots in the decision rendered on November 29,
1967 by Judge Emmanuel Muñoz of the then Court of First Instance of
Bulacan, Branch I (Malolos) ordering herein private respondents as well as
Tomasa de Lara, Felicisima Ramos and Hilario Ramos as defendants therein
to reconvey to herein petitioners, as well as Asuncion Reyes Vda. de Aranda
and Maria Aranda as therein plaintiffs several parcels of land situated in
Bigaa (now Pandi), Bulacan and covered by sixteen (16) transfer certificates
of title. Defendants were further ordered to pay P10,00.00 as moral damages
plus P10,000.00 as attorney's fees and the costs of the suit. 1
Private respondents De Laras et al., appealed from that decision. 2 However,
the Arandas, as the prevailing parties, moved for an execution pending
appeal which the trial court granted on March 15, 1968 upon the filing by the
Arandas of a bond worth P10,000.

As a consequence of the execution pending appeal, the various lots covered
by Transfer Certificates of Title Nos. 98049, 98051, 98063, 98064, 98055,
98056, 98057, 98058, 98060 and 98063 of the Bulacan Registry of Deeds
were transferred to petitioners. In addition, a jeepney belonging to private
respondent Marcelo de Lara was sold at public auction and the amount of
P42,159.00 due from Tecson Chemical Corporation to Marcelo de Lara was
garnished and turned over to the Arandas.
During the pendency of the appeal 3 on February 25, 1969, the Arandas
mortgaged eight (8) of the ten (10) reconveyed parcels of land covered by
TCT Nos. 98049, 98051, 98053, 98054, 98055, 98056, 98060 and 98063 to
Alfredo Cruz to secure a loan of P80,000.00. Similarly on April 17, 1969, the
Arandas mortgaged two more lots, covered by TCT Nos. 98057 and 98058,
to Aurelia Oxiles to secure another loan of P 40,000.00. Both loans were
payable within one (1) year from the date of the mortgages and said
encumbrances were registered on June 4, 1969. 4
The loans matured during the pendency of the appeal and because of the
failure of the Arandas to redeem the same, the two mortgages were
foreclosed and the encumbered properties were sold at public auction to
mortgagees Cruz and Oxiles on February 23, 1978 and March 30, 1978
respectively. Eventually, the mortgagees consolidated their ownership and
new transfer certificates of title were issued in their names.
Meanwhile, on June 11, 1970, while their appeal was still pending before the
Appellate Court 5 private respondents decided to register with the Register of
Deeds of Bulacan notices of lis pendens on all transfer certificates of title
covering the parcels of land mortgaged to Alfredo Cruz and Aurelio Oxiles.
On March 17, 1977, the Appellate Court, through Justice Guardson R. Lood,
reversed the decision of the Bulacan trial court and declared the De Laras et
al. as the owners of the disputed lots covered by sixteen transfer certificates
of title. The dispositive portion of the decision reads as follows:
WHEREFORE, in view of all the foregoing, the judgment
appealed from is hereby reversed; consequently, dismissing
this case against the defendants-appellants and declaring
them owners of the properties in question with costs against
the plaintiffs- appellees. The counterclaim is denied for
insufficiency of evidence. 6
This reversal was aimed by the Supreme Court in a minute resolution dated
August 1, 1977. 7
C I V P R O I V C i v i l P r o c e d u r e P a g e | 157
On February 6, 1978, the lower court, pursuant to the reversal by the
Appellate Court in CA-G.R. No. 42228-R issued an order which required the
Arandas (plaintiffs in execution) to re convey to private respondents within
five (5) days from notice the properties transferred to them by virtue of the
writ of execution pending appeal, with the exception of the property covered
by TCT No. 98052, and authorized the clerk of court to execute the proper
documents of reconveyance should the Arandas fail to comply. The order
further required the petitioners to return to private respondent Marcelo de
Lara the jeepney which was levied on execution or to turn over the proceeds
of the sale thereof, and to reimburse the latter in the sum of P 42,159.00
which had been garnished from Tecson Chemical Corporation.
On June 26, 1978, the clerk of court executed the deed of reconveyance in
favor of private respondents (defendants) with respect to the lots covered by
TCT Nos. 98049, 98050, 98051, 98062, 38605, 98059, 98080, 98061,
98063, 98058, 42055, 98055, 98054, 98053, 98057 and 98056, all of the
Bulacan Registry of Deeds.
Thereafter, on September 25, 1978, the De Laras et al. filed a motion to
nullify the aforesaid sixteen (16) titles to the disputed properties for failure
and/or refusal of the Arandas to surrender their owner's copy of the said titles
to the Register of Deeds in order that new ones could be issued in favor of
private respondents.
After hearing the arguments of both parties in said motion to nullify the titles,
the lower court, on March 15, 1979, issued an order cancelling TCT Nos.
98050, 98062, 38605, 98059, 98061 and 42055 but denied the motion of
private respondents to nullify TCT Nos. 98049, 98051, 98053, 98054, 98055,
98056, 98060, 98063 and 98057 and 98058 issued in favor of Alfredo Cruz
and Aurelia Oxiles respectively, without prejudice to private respondents'
filing a separate action for their invalidation. 8
Having failed in their attempt to nullify the titles now in the names of Cruz and
Oxiles, private respondents filed on January 14, 1980 an amended motion for
restitution with motion for contempt, which motions were rejected by the trial
court in its order dated August 21, 1980. 9 The court opined that the
consolidated ownership of said realty in the names of mortgagees Cruz and
Oxiles could no longer be disturbed in said proceedings. However, this would
not bar the De Laras, et al. from going after the Arandas in a separate direct
action to seek redress for the former's inability to recover the said properties
now in the names of Cruz and Oxiles. 10

On August 9, 1982, private respondents (De Laras et al.) filed a special civil
action for certiorari and mandamus before the Court of Appeals to set aside
the order of August 21, 1980. 11 On November 19, 1982, the Appellate
Court, through Justice Jose C. Colayco, modified the questioned order and
ruled in this wise:
1. The ... Asuncion Reyes Vda. de Aranda, and an the
other(s) ... surnamed Aranda must pay to ... Marcelo de Lara
the proceeds of the sale of the jeepney, as shown by the
certificate of sale issued by the sheriff, and return to him the
amount of P 42,159.00;
2. ... Pelagia Fernando, Maria, and Julia, all surnamed
Aranda, must pay to all the (De Laras, et al.) the proceeds of
the auction sale of the mortgaged parcels of land to Alfredo
Cruz and Aurelia Oxiles, as shown by the certificates of sale
issued by the sheriff.
The liability of the (Arandas) under these headings can be
enforced by writ of execution.
The (De Laras, et al.) may of course enforce restitution
against Alfredo Cruz and Oxiles, instead of demanding their
rights under Sec. 5, Rule 39 of the Revised Rules of Court;
but this must be done in a separate civil action, where they
can demand from the (De Laras, et al.) and Alfredo Cruz and
Aurelia Oxiles their share of the harvest from the time of the
levy. This alternative right is recognized in the case of Hilario
vs. Hicks (cf. pp. 586, et seq.). But they cannot demand the
amounts realized from the auction sale. 'The right to recover
mesne profits is evidently derived from the right to specific
restitution. ... 12
It must be home in mind in this connection that the
proceedings for the execution of the decision pending appeal
are lawful and that 'those who act under the profess are
protected by the law." 13 This is the generally recognized
rule. After a reversal, the plaintiff is bound to make
restitution-that is, to return to the defendant whatever he got
by means of the judgment; but he cannot be treated as a
wrongdoer for causing execution to issue, and the
defendant's property to be levied on and sold. It protects him
while it remains in force. 14
C I V P R O I V C i v i l P r o c e d u r e P a g e | 158
The petition for the reconsideration or review of the order
denying or dismissing the motion to find the (Arandas) in
contempt of court is not meritorous either. An appeal cannot
be availed of in contempt proceedings where the charge has
been dismissed because contempt proceedings are criminal
in nature. 15
WHEREFORE, the order of August 21, 1980 is AFFIRMED
with the modifications above indicated, and the case
remanded. for further proceedings until the proper relief are
carried out. 16
Hence this recourse.
The pivotal issues presented are:
(1) Whether or not the Court of Appeals erred in giving due
course to the special civil action of certiorari in CA-G.R. No.
14821-SP despite the lapsed remedy of ordinary appeal;
(2) Whether or not the Appellate Court erred in granting
reliefs to private respondents which are not mentioned in the
dispositive portion of the Court of Appeals'' derision in CA-
G.R. No. 42228-R which reversed the Court of First Instance
of Bulacan in Civil Case No. 2366R.
Anent the first issue, the Appellate Court can legally entertain the special civil
action of certiorari in CA-G.R. No. 14821-SP considering the broader and
primordial interests of justice which compel an occasional departure from the
general rule that the extraordinary writ of certiorari cannot substitute for a lost
appeal, the order of March 15, 1979 having become final upon the lapse of
the reglementary period of appeal. 17
While the lower court correctly denied the motion to nullify the subject titles in
the names of Cruz and Oxiles, it failed to provide private respondents
complete restitution as decreed in Section 5, Rule 39 of the Rules of Court
which states:
Effect of reversal of executed judgment.-Where the judgment
executed is reversed totally or partially on appeal, the trial
court, on motion, after the case is remanded to it, may issue
 C I V P R O I V C i v i l P r o c e d u r e P a g e | 159

such orders of restitution as equity and justice may warrant the absence of any contrary disposition in the final judgment of the appellate
tinder the circumstances. court.

When a judgment is executed pending appeal and subsequently overturned In sum, what the trial court failed to effect, the Court of Appeals sought to
in the appellate court, the party who moved for immediate execution should, rectify in the decision under review. h laid down in detail what the trial court
upon return of the case to the lower court, be required to make specific should accomplish if only to give full meaning to the earlier reversal by the
restitution of such property of the prevailing party as he or any person acting appellate court in CA-G.R. No. 42228-R and our affirmance thereof in G.R.
in his behalf may have acquired at the execution sale. If specific restitution No. L-46086 and more importantly, to Section 5, Rule 39. For without that
becomes impracticable, the losing party in the execution becomes liable for assailed judgment, an intolerably incomplete and inequitous situation would
the full value of the property at the time of its seizure, with interest. 18 have remained uncorrected in direct violation of the rules and the basic
tenets of fair play.
While the trial court may have acted judiciously under the premises, its action
resulted in grave injustice to the private respondents. It cannot be gainsaid WHEREFORE, the decision of the Court of Appeals dated November 19,
that it is incumbent upon the plaintiffs in execution (Arandas) to return 1982 is affirmed.
whatever they got by means of the judgment prior to its reversal. And if
perchance some of the properties might have passed on to innocent third SO ORDERED.
parties as happened in the case at bar, the Arandas are dutybound
nonetheless to return the corresponding value of said properties as Gutierrez, Jr., Feliciano and Bidin, JJ., concur.
mandated by the Rules.
Cortes, J., is on leave.
On the second issue, petitioners argue that the proceeds of the jeepney as
well as the sum of P42,159.00 garnished from Tecson Chemical Corporation
cannot be returned to the De Laras, et al because such return is not
expressly included in the dispositive part of the Appellate Court's judgment in
CA-G.R. No. 42228-R.

It will be recalled that the decision of the Bulacan trial court, 19 aside from
awarding the subject pieces of realty to the Arandas, also ordered the De
Laras, et al to pay 10,000.00 as moral damages and another P10,000.00 as
attorney's fees. Consequently, to satisfy said judgment pending appeal, the
jeepney of Marcelo de Lara was sold in execution and the amount of
P42,159.00 due from the Tecson Chemical Corporation in favor of Marcelo
was garnished. The proceeds of the jeepney and the garnished amount were
later withdrawn by the Arandas. To deny restitution of these items would be
to close our eyes to the unalterable fact that such items as acknowledged by
both parties were used specifically to complete and satisfy the judgment of
the lower court in favor of the Arandas, the plaintiffs in execution, and from
which they have derived benefits since 1968. 20

Indeed, the Court of appeals need not specify in the judgment of reversal that
there should be restitution of the properties, etc. Such restoration is
expressly provided for in Section 5, Rule 39 of the Rules and should apply in

G.R. No. 135128 August 26, 1999
BONIFACIO SANZ MACEDA. JR. and TERESITA MACEDA-DOCENA,
petitioners,
vs.
DEVELOPMENT BANK OF THE PHILIPPINES and the COURT OF
APPEALS, respondents.
Actions; Judgments; Appeals; Executions Pending Appeal; The rule on
execution pending appeal is strictly construed against the movant, for courts
look with disfavor upon any attempt to execute a judgment which has not
acquired a final character.—The execution of a judgment during the pendency
of an appeal is governed by Section 2, Rule 39 of the 1997 Rules of Court,
which reads: x x x This rule is strictly construed against the movant, for “courts
look with disfavor upon any attempt to execute a judgment which has not
acquired a final character.” In the same vein, the Court has held that such
execution “is usually not favored because it affects the rights of the parties
which are yet to be ascertained on appeal.”
Same; Same; Same; Same; Requisites.—There are three requisites for the
grant of an execution of a judgment pending appeal: “a) there must be a motion
by the prevailing party with notice to the adverse party; b) there must be a good
reason for execution pending appeal; and c) the good reason must be stated
in a special order.” Underscoring the importance of the requisite “good
reasons,” the Court ruled in Ong v. Court of Appeals: “It is not intended
obviously that execution pending appeal shall issue as a matter of course.
‘Good reasons, special, important, pressing reasons must exist to justify it;
otherwise, instead of an instrument of solicitude and justice, it may well
become a tool of oppression and inequity.”
Same; Same; Same; Same; If the judgment is executed and, on appeal, the
same is reversed, although there are provisions for restitution, oftentimes
damages may arise which cannot be fully compensated.—The “compelling
reason” given by the trial court for allowing execution pending appeal is far
outweighed by the injury or damage that private respondent would suffer if it
secures a reversal of the trial court’s judgment. If the trial court is reversed on
appeal, petitioners would be hard-pressed to make a complete restitution to
private respondent, to which they already owe more than P5 million—the
amount of their original loan plus accrued interests. In any event, we agree
with the Court of Appeals that there is no likelihood that DBP, a government-
C I V P R O I V C i v i l P r o c e d u r e P a g e | 160
owned and-controlled corporation, would fail to answer its obligation if the trial
court Decision is affirmed. As held in Valencia v. Court of Appeals: “If the
judgment is executed and, on appeal, the same is reversed, although there
are provisions for restitution, oftentimes damages may arise which cannot be
fully compensated. Accordingly, execution should be granted only when these
considerations are clearly outweighed by superior circumstances demanding
urgency and the provision contained in Rule 39, Section 2, requires a
statement of these circumstances as a security for their existence.”
Same; Same; Same; Same; Burden of Proof; The movant for execution
pending appeal has the burden of showing why the lower court’s Decision
should be executed without awaiting the result of the appeal.—Petitioners
have failed to present adequate reasons to show that the Court of Appeals
committed reversible errors in overturning the trial court’s Order. As movants,
they have the burden of showing why the lower court’s Decision should be
executed without awaiting the result of the appeal. Absent such justification,
execution pending appeal cannot be granted.
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Eddie U. Tamondong for petitioners.
Office of the Legal Counsel, DBP for private respondent.
PANGANIBAN, J.:
Movants have the burden of showing why the trial court decision should be
executed without awaiting the result of the appeal. Absent such justification,
its execution pending appeal cannot be granted.
The Case
Before this Court is a Petition for Review on Certiorari 1 under Rule 45 of the
Rules of Court seeking the reversal of the August 14, 1998 Decision2 of the
Court of Appeals3 (CA) in CA-GR SP No. 47405, the dispositive portion of
which reads:
WHEREFORE, based on the foregoing, the instant Petition is hereby
GRANTED. The challenged ORDER of respondent Court, dated

October 2, 1997, is hereby ANNULLED and SET ASIDE insofar as it
orders partial execution pending appeal. No pronouncement as to
costs.
The Order4 annulled by the CA was a modification by the trial court5 of the
latter's Decision6 dated February 25, 1997 in Civil Case No. 8737, Bonifacio
Sanz Maceda Jr. and Teresita Maceda-Docena v. Development Bank of the
Philippines and Oscar de Vera.
The Facts
The facts of the case as summarized by the Court of Appeals are as follows:
The case commenced on October 15, 1984, with the filing by [petitioners] 7 of
a Complaint for Specific Performance with Damages against [private
respondent]8 and one of its managers, Oscar De Vera. In their Complaint,
[petitioners] alleged that they were the owners of the old Gran Hotel in
Tacloban City; that pursuant to their plan to build a new Gran Hotel, they
applied for an Eleven Million Pesos (P11,000,000.00) loan with [private
respondent], submitting to the latter a project study of the new hotel, the
Philippine Tourism Authority's approval of the project, as well as the plans
and specifications of the new Gran Hotel; that on July 28, 1976, petitioner
approved a loan of Seven Million Three Hundred Thousand Pesos
(P7,300,000.00) after setting the cost of the project at Ten Million Five
Hundred Thousand Pesos (P10,500,000.00); that [private respondent]
required them to produce Two Million Nine Hundred Thirty Thousand Pesos
(P2,930,000.00) by way of equity, to constitute a first mortgage on several
parcels of land as well as on assets they would acquire out of the proceeds
of said loan, to sign a Promissory Note in the amount of Seven Million Three
Hundred Thousand Pesos (P7,300,000.00); that the contract for the new
Gran Hotel was awarded to Moreman Builders Co., which demolished the old
Gran Hotel and proceeded to build the new Gran Hotel; that payment to said
contractor was to be taken from the approved Seven Million Three Hundred
Thousand Pesos (P7,300,000.00) loan, on a progressive manner, based on
actual construction or work accomplishment; that they were required to
advance, as they did advance, to the contractor their required equity; that as
of June 24, 1977, they have advanced to the contractor the sum of One
Million Two Hundred Sixty Two Thousand Nine Hundred Ninety Eight Pesos
and Thirty Eight Centavos (P1,262,988.38); that [private respondent] had
also released a total of One Million Nine Hundred Eleven Thousand Three
Hundred Sixty Pesos (P1,911,360.00), out of their loan, to the contractor;
that [private respondent], through its officer in charge of the project,
defendant Oscar De Vera, conspired with the contractor to enable the latter
C I V P R O I V C i v i l P r o c e d u r e P a g e | 161
to secure undue fund releases from their loan; that this was done by the
bloating of the value and percentage of construction work; that the contractor
was able to acquire sixty percent (60%) of the cost of the projected hotel
even as its actual accomplishment was only fifteen percent (15%); that
[petitioners] were compelled to file a Complaint for Rescission of Contract
and Damages against the contractor; that they also filed a complaint for
Estafa against the contractor and defendant Oscar De Vera; that [private
respondent] and Oscar De Vera spread negative information about them,
thus influencing their suppliers to sue and repossess the items they had
supplied; that [private respondent] engaged in a series of dilatory effects in
the release of their loan funds until the period of their loan availment lapsed;
that [private respondent] has threatened to foreclose on the mortgages they
had executed for their loan; and that [private respondent's] acts prevented
them from completing the new Gran Hotel and from realizing profits
therefrom. [Petitioners] thus prayed (1) that [private respondent] be ordered
to release the balance of their approved loan, (2) that the interests and other
charges imposed on the loan be nullified, (3) that [private respondent] be
made to pay them (a) unrealized earnings and/or loss of income, (b) actual
damages representing additional costs or price increase in construction labor
and materials, (c) moral damages, (d) exemplary damages, (e) attorney's
fees, litigation expenses and costs of suit.1âwphi1.nêt
In their Answer to the Complaint, [private respondent] and Oscar De Vera
averred that releases on the loan of [petitioners] to the contractor were made
through [Petitioner] Bonifacio Maceda, Jr., that on account of the civil case
filed by [petitioners] against the contractor, [private respondent] was enjoined
from making any further releases on [petitioners'] loan; that while the trial
court decided in favor of [petitioners], still [private respondent] could not
make any releases on their loan considering the appeal filed by the
contractor; that while said case was pending, at least two suppliers filed
cases against [petitioners] for non-payment of salaries/wages and costs of
suppliers; that said pending case also caused the construction of the hotel
project to stop and the period of the loan availment to lapse; that during the
negotiation for revival of the loan, [private respondent] requested [petitioners]
to submit new cost estimates and quotations inasmuch as the original cost
estimates prepared in 1976 were no longer sufficient to complete the project
because of the intervening price increases in labor and materials; that
[petitioners] insisted that the project be completed on the original cost
estimates, with the project reduced to fifty (50) instead of the original planned
seventy five (75) rooms; that during several conferences held between them,
[private respondent] informed [petitioners] of the terms and conditions for the
resumption of their loan; that on July 18, 1979, it authorized further releases
on [petitioners'] loan; that said releases amounted to a total of Five Million
Three Hundred Forty Seven Thousand Five Hundred Ten Pesos and Ninety

Centavos (P5,347,510.90); that no further releases were thereafter made in
view of [petitioners'] failure to comply with the equity build up requirement;
that [petitioners] applied for an additional loan of Three Million Four Hundred
Thousand Pesos (P3,400,000.00); that on July 29, 1982, [private respondent]
informed [petitioners] that it had decided to reduce the approved loan amount
to Five Million Three Hundred Forty Seven Thousand Five Hundred Ten
Pesos and Ninety Centavos (P5,347,510.90), which was the amount of the
total releases made on their original loan amount; that notwithstanding said
reduction of amount of the loan, [petitioners] failed to make payments
according to schedule; and that having agreed to all the terms of their
transactions, [petitioners] are estopped from questioning the conditions of the
loan as well as the releases thereof. After praying for dismissal of the
Complaint, [private respondent] and defendant Oscar De Vera
counterclaimed for P200,000.00 by way of attorney's fees and litigation
expenses, P500,000.00 in moral damages and costs of suit.
On February 25, 1997, [the trial] [c]ourt rendered a Decision in favor of
[petitioners], disposing of the case as follows —
WHEREFORE, in view of all the foregoing premises, the Court renders
judgment, to wit:
1. The preliminary injunction issued on December 12, 1984 is hereby
made permanent;
2. Defendant Development Bank of the Philippines is ordered, to wit:
a) To immediately release in favor of plaintiff Bonifacio
Maceda, Jr. the unreleased loan balance of P1,952,489.10.
In addition, as to the portion thereof amounting to P1.003M,
DBP is further directed to pay interest thereon at the rate of
12% per annum beginning and counted from January 1978;
b) To immediately return to plaintiff Bonifacio Maceda, Jr. the
sum of P797,988.95 representing the interest/other charges
for the period October 31, 1979 to April 1, 1980;
c) To pay plaintiff Bonifacio Maceda, Jr. the sum of Five
Hundred Thousand Pesos as moral damages;
d) To pay plaintiff Bonifacio Maceda, Jr. the sum of One
Hundred Thousand Pesos as exemplary damages;
C I V P R O I V C i v i l P r o c e d u r e P a g e | 162
e) To pay plaintiff Bonifacio Maceda, Jr. the sum of
P17,547,510.90 representing the additional cost to complete
and finish the New Gran Hotel;
f) To pay plaintiff Bonifacio Maceda, Jr. the sum of
P100,000.00 as attorney's fees and litigation expense.
The counterclaims of defendants are hereby ordered dismissed.
SO ORDERED.
[Private Respondent] filed a Notice of Appeal, while [petitioners] filed a
Motion for Reconsideration, seeking to increase the amount awarded to them
by [the trial] [c]ourt. They also filed a Motion for Execution Pending Appeal.
[Private respondent] filed its corresponding Opposition to the two Motions.
On October 2, 1997, [the trial] court issued its first questioned Order, (1)
modifying its Decision by increasing the amounts awarded to [Petitioner]
Bonifacio Maceda, Jr. and (2) granting the Motion for Execution Pending
Appeal of two awards in its Decision; namely, (a) the release of the loan
balance of P1,952.489.10 as well as payment of 12% interest p.a. on the
amount of P1.003M, from January, 1978; and (b) the payment of
P17,547,510.90 representing the additional cost to finish the hotel together
with 6% interest thereon p.a. from 1987.
On November 5, 1997, [private respondent] filed its Notice of Appeal from the
February 25, 1997 Decision, as amended by the October 2, 1997 Order of
[the trial] [c]ourt. On the same date, it also filed a Motion for Reconsideration
of the October 2, 1997 Order insofar as it grants execution pending appeal.
Thereafter, or on March 26, 1998, it filed a Supplemental Motion for the
approval of a supersedeas as bond in the amount of P35M and to stay the
execution pending appeal in the event that its Motion for Reconsideration be
denied.
On April 3, 1998, [the trial] [c]ourt denied its Motion for Reconsideration and
Supplemental Motion.
The Development Bank of the Philippines (DBP) appealed the trial court
Decision to the CA. Thereafter, it also filed with the appellate court a Petition
for Certiorari challenging the lower court's October 2, 1997 Order granting
execution of the said Decision pending appeal.

Ruling of the Court of Appeals
Ruling in favor of respondent bank, the CA concluded that there existed no
sufficient ground or compelling reason to allow the execution of the judgment
pending appeal. It held:
There is nothing in the circumstances surrounding the case at bench
which is of an urgent nature. As may be gleaned from the records
and as admitted by private respondents, themselves, the project has
reached 85% completion. With private respondents' undenied
"seven-figure assets and capability to put in the required equity
participation", We see no urgent financial need on the part of private
respondent. Then, too, with the financial standing of private
respondents and their assets, including the hotel itself which they
claim to have an appraised value of P16,632,129.40, private
respondents can very well obtain loans for the project from other
financial entities. On the other hand, considering that the amounts
subject of the execution pending appeal form only a small
percentage of the amount it would take to complete the project, We
see no compelling reason to prematurely order its release since it
would have no substantial effect anyway on the project. Moreover,
measured against the injury or damage which such execution would
pose on petitioner should it secure a reversal of the judgment, the
reasons relied upon by respondent Court markedly pales in
comparison. After all where execution made pending appeal is
overturned, complete restitution is required.
xxx xxx xxx
All things considered, respondent Court should have approved the
Thirty Five Million (P35,000,000.00) supersedeas bond posted by
petitioner. Said amount can adequately assure performance of
whatever judgment may be awarded in favor of private respondents.
Neither is there any danger that the awards in favor of private
respondents will not be answered or that justice will be frustrated as
petitioner is a government owned and controlled financial institution
with an authorized capital stock of Five Billion Pesos
(P5,000,000,000.00). With the stable and sound condition of
petitioner, immediate execution is not justified as there is no danger
of the judgment becoming illusory.9
Hence, this Petition.10
C I V P R O I V C i v i l P r o c e d u r e P a g e | 163
Issue
The solitary issue in this case is whether or not the Court of Appeals erred
when it reversed the October 2, 1997 Order of the trial court granting
execution of the latter's Decision pending appeal. More simply stated, are
there good reasons to justify execution of the trial court judgment pending
appeal?
This Court's Ruling
The Petition is not meritorious.
Sole Issue:
Execution of Judgment Pending Appeal
The execution of a judgment during the pendency of an appeal is
governed by Section 2, Rule 39 of the 1997 Rules of Court,11 which
reads:
Sec. 2. Discretionary execution. —
(a) Execution of a judgment or final order pending appeal —
On motion of the prevailing party with notice to the adverse
party filed in the trial court while it has jurisdiction over the
case and is in possession of either the original record or the
record on appeal, as the case may be, at the time of the
filing of such motion, said court may, in its discretion, order
execution of a judgment or final order even before the
expiration of the period to appeal.
After the trial court has lost jurisdiction, the motion for
execution pending appeal may be filed in the appellate court.
Discretionary execution may only issue upon good reasons
to be stated in a special order after due hearing.
xxx xxx xxx
This rule is strictly construed against the movant, for "courts look with
disfavor upon any attempt to execute a judgment which has not

acquired a final character."12 In the same vein, the Court has held
that such execution "is usually not favored because it affects the
rights of the parties which are yet to be ascertained on appeal."13
There are three requisites for the grant of an execution of a judgment
pending appeal: "a) there must be a motion by the prevailing party
with notice to the adverse party; b) there must be a good reason for
execution pending appeal; and c) the good reason must be stated in
a special order."14 Underscoring the importance of the requisite
"good reasons," the Court ruled in Ong v. Court of Appeals:15
It is not intended obviously that execution pending appeal
shall issue as a matter of course. "Good reasons, special,
important, pressing reasons must exist to justify it; otherwise,
instead of an instrument of solicitude and justice, it may well
become a tool of oppression and inequity."16
Moreover, "the reasons allowing execution must constitute superior
circumstances demanding urgency which will outweigh the injury or
damages should the losing party secure a reversal of the
judgment."17
In its Order dated October 2, 1997, the trial court ordered execution
pending appeal of the following awards:
(a) To immediately release in favor of the plaintiff Bonifacio
Maceda, Jr. the unreleased loan balance of P1,952,489.10.
In addition, as to the portion thereof amounting to P1.03M,
DBP is further directed to pay interest thereof at the rate of
12% per annum beginning and counted from January 1978;
xxx xxx xxx
(e) To pay plaintiff Bonifacio Maceda Jr. the sum of
P17,547,510.90 representing the additional cost to complete
and finish the New Gran Hotel, plus six percent interest (6%)
thereon effective as of the year 1987 until finality. 18
In other words, the trial court, pending the appeal, ordered the
immediate release by the bank of (1) the unreleased amount of the
loan agreement and (2) the sum needed to complete the construction
of the hotel, subject to the filing of a bond of equivalent amount.
C I V P R O I V C i v i l P r o c e d u r e P a g e | 164
The "good reason" invoked by the trial court was the urgency
resulting from almost twenty years of delay and the yearly increase in
costs that made the completion of the hotel construction more
difficult.
We are not convinced.
Good Reasons not Established
To repeat, an execution pending appeal is an extraordinary remedy,
being more of the exception rather than the rule. It is allowed only
upon showing of "good reasons" by the movant. In the present case,
we find no justification for the execution, pending appeal, of the
awards of P1,952,489.10 under disposition (a) and more than P17
million under disposition (e).
There is no guarantee that petitioner can indeed complete the
project, even if the sum referred to in disposition (e) is immediately
released. It must be underscored that this was the amount needed to
finish the project way back in 1987 and was based on 1987 prices.
Equally unjustified is the release, pending appeal, of the remaining
portion of the loan in the amount of P1,952,489.10. As the trial court
itself has held in 1987, the award of more than P17 million under
disposition (e) was the amount needed to finish the project.
Consequently, there was no urgent need for the unreleased portion
of the loan. The said amount was relatively minuscule compared with
that needed for the remainder of the hotel project and would have
little effect on its completion.
More important, the "compelling reason" given by the trial court for
allowing execution pending appeal is far outweighed by the injury or
damage that private respondent would suffer if it secures a reversal
of the trial court's judgment. If the trial court is reversed on appeal,
petitioners would be hard-pressed to make a complete restitution to
private respondent, to which they already owe more than P5 million
— the amount of their original loan plus accrued interests. In any
event, we agree with the Court of Appeals that there is no likelihood
that DBP, a government-owned and -controlled corporation, would
fail to answer its obligation if the trial court Decision is affirmed. As
held in Valencia v. Court of Appeals:19
 C I V P R O I V C i v i l P r o c e d u r e P a g e | 165

If the judgment is executed and, on appeal, the same is Decision should be executed without awaiting the result of the appeal.
reversed, although there are provisions for restitution, Absent such justification, execution pending appeal cannot be
oftentimes damages may arise which cannot be fully granted.1âwphi1.nêt
compensated. Accordingly, execution should be granted only
when these considerations are clearly outweighed by WHEREFORE, the Petition is hereby DENIED. Costs against petitioner.
superior circumstances demanding urgency and the
provision contained in Rule 39, Section 2, requires a
SO ORDERED.
statement of these circumstances as a security for their
existence.
Melo, Vitug, Purisima and Gonzaga-Reyes, JJ., concur.
Reasons Cited by Petitioners

In their Memorandum, petitioners passionately argue that DBP, as the

lending bank, has the obligation to deliver the full amount of the loan. They
allege that the bank "unilaterally reduced the amount of the approved loan
and unilaterally terminated the transaction."20 They also point out that the
project has been delayed for 22 years, and that the award of more than P17
million, with interest, for the completion of the hotel "is less in value and
purchasing power than the original estimate of P10.5 M had the hotel been
finished on its deadline in 1972."

These, however, involve issues that should be resolved in the appeal, not in
these proceedings. The respondent bank itself contends that it could not
release the remaining amount of the loan, because of the stipulation in the
loan agreement that such release is contingent on the amount of work
accomplished. Thus, an order of this Court releasing the balance of the loan,
notwithstanding the bank's argument to the contrary, would certainly be
construed as a definitive judgment on the present issue.

Petitioners' argument that the project has been delayed for twenty-two years
is not persuasive either. The release of the amount at this time is tantamount
to a pronouncement that respondent bank was responsible for the delay.
Moreover, petitioners are in effect taking the position that the undertaking of
the bank was meant to finance the complete construction of the hotel. The
Court cannot at this time declare that the bank was the cause of the delay, or
that it was obliged to finance the construction to its completion. To repeat,
these questions pertain to the merits of the case, which is on appeal. It must
be stressed that the only issue in these proceedings is whether there are
"good reasons" to justify the execution of the judgment pending appeal.

In sum, petitioners have failed to present adequate reasons to show that the
Court of Appeals committed reversible errors in overturning the trial court's
Order. As movants, they have the burden of showing why the lower court's