Writ of Possession and Certiorari

First to be resolved is the issue of whether the remedy of certiorari may be availed of by petitioner in assailing the RTC Orders granting the issuance of a writ of possession.  The well-trenched rule provided for in Section 1, Rule 65 of the Rules of Court and elucidated in Metropolitan Bank and Trust Co., Inc. v. National Wages and Productivity Commission, [G.R. No. 144322, February 6, 2007, 514 SCRA 346]  is that:

Certiorari as a special civil action is available only if the following essential requisites concur: (1) it must be directed against the tribunal, board or any officer exercising judicial or quasi-judicial functions; (2) the tribunal, board or officer must have acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction; and (3) there is no appeal or any plain, speedy and adequate remedy in the ordinary course of law.

x x x x

x  x  x  A remedy is considered plain, speedy and adequate if it will promptly relieve the petitioner from the injurious effects of the judgment or rule, order or resolution of the lower court or agency.[Id. at 356-357] (Emphasis supplied)

Indeed, the Court in some instances has allowed a petition for certiorari to prosper notwithstanding the availability of an appeal, such as, (a) when public welfare and the advancement of public policy dictate it; (b) when the broader interest of justice so requires; (c) when the writs issued are null; and (d) when the questioned order amounts to an oppressive exercise of judicial authority.” [Leyte IV Electric Cooperative, Inc., v. LEYECO IV Employees Union – ALU, G.R. No. 157775, October 19, 2007, 537 SCRA 154, 166]

However, in the present case, the Court finds no cogent reason to sustain petitioner’s claim that the CA erred when it ruled that certiorari would not lie, as appeal is the appropriate remedy.  There is no issue here that involves public welfare or policy.  The broader interest of justice would, in fact, be better served by following the procedural steps set forth in Section 8, Act No. 3135, as amended, to wit:

SEC.  8.  The debtor may, in the proceedings in which possession was requested, but not later than thirty days after the purchaser was given possession, petition that the sale be set aside and the writ of possession cancelled, specifying the damages suffered by him, because the mortgage was not violated or the sale was not made in accordance with the provisions hereof, and the court shall take cognizance of this petition in accordance with the summary procedure provided for in section one hundred and twelve of Act Numbered Four hundred and ninety-six; and if it finds the complaint of the debtor justified, it shall dispose in his favor of all or part of the bond furnished by the person who obtained possession. Either of the parties may appeal from the order of the judge in accordance with section fourteen of Act Numbered Four hundred and ninety-six; but the order of possession shall continue in effect during the pendency of the appeal.  (Emphasis supplied)

The above procedure affords both parties the most expeditious way to resolve any conflict regarding the writ of possession alone.

Jose v. Zulueta, [No. L-16598, May 31, 1961, 2 SCRA 574] Matute v. Court of Appeals, [No. L-26751, January 31, 1969, 26 SCRA 768] Romero, Sr. v. Court of Appeals [No. L-29659, July 30, 1971, 40 SCRA 172]  and Belfront Surety and Insurance Co. v. People of the Philippines [No. L-47309, January 30, 1982, 111 SCRA 385] cited by petitioner are not applicable to the present case.  Those cases involved writs of possession issued in the course of the execution of judgment, totally unlike this case in which the writ of possession was issued by reason of an extra-judicial foreclosure.

In Green Asia Construction & Development Corp. v. Court of Appeals, [No. L-47309, January 30, 1982, 111 SCRA 385]  the Court categorically ruled that under Section 8, Act No. 3135, the remedy of a party from the trial court’s order granting the issuance of a writ of possession is to file a petition to set aside the sale and cancel the writ of possession, and the aggrieved party may then appeal from the order denying or granting said petition.  This is the plain, speedy and adequate remedy envisioned in Rule 65 of the Rules of Court, and since petitioner could have availed himself of such procedure, he is not entitled to the remedy of certiorari.  On this point alone, the CA acted properly in dismissing the subject petition for certiorari.

However, just to put petitioner’s mind at ease that the dismissal of his petition for certiorari was not grounded solely on technicalities, the Court will discuss the issue of the propriety of the issuance of the writ of possession by the trial court.

The writ of possession was issued in accordance with law and jurisprudence.  The writ of possession granted by the RTC was not a nullity; neither was its issuance an oppressive exercise of judicial authority.

In Espiridion v. Court of Appeals, [G.R. No. 146933, June 8, 2006, 490 SCRA 273] a case that is closely akin to the present petition, the Court expounded thus:

x x x  The issuance of a writ of possession to a purchaser in a public auction is a ministerial act.  After the consolidation of title in the buyer’s name for failure of the mortgagor to redeem the property, the writ of possession becomes a matter of right. Its issuance to a purchaser in an extrajudicial foreclosure sale is merely a ministerial function. The trial court has no discretion on this matter.  Hence, any talk of discretion in connection with such issuance is misplaced.

A clear line demarcates a discretionary act from a ministerial one. Thus:

The distinction between a ministerial and discretionary act is well delineated. A purely ministerial act or duty is one which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of a legal authority, without regard to or the exercise of his own judgment upon the propriety or impropriety of the act done. If the law imposes a duty upon a public officer and gives him the right to decide how or when the duty shall be performed, such duty is discretionary and not ministerial. The duty is ministerial only when the discharge of the same requires neither the exercise of official discretion or judgment.

Clearly, the use of discretion and the performance of a ministerial act are mutually exclusive.

Where the court acts on a matter that is within its jurisdiction, grave abuse of discretion must be shown to nullify the act. In this case, since the issuance of the writ of possession did not involve an exercise of discretion, no abuse of discretion could have been committed by the trial court. Thus, the instant petition for certiorari has no leg to stand on.

The issue of nullity of the extrajudicial foreclosure sale was of no moment. It could not bar the issuance of the writ of possession.  As a rule, any question regarding the validity of the mortgage or its foreclosure is not a legal ground for refusing the issuance of a writ of execution/ writ of possession.

The fact that no bond was posted by SBDB was also of no consequence. Since ownership of the property had already been consolidated in the name of the bank, there was nothing legally questionable in the issuance of the writ of possession even if no bond was posted. The posting of a bond as a condition for the issuance of the writ of possession becomes necessary only if it is applied for within one year from the registration of the sale with the register of deeds, i.e., during the redemption period inasmuch as ownership has not yet vested on the creditor-mortgagee. After the one-year period, however, the mortgagor loses all interest over it. The purchaser, who has a right to possession that extends after the expiration of the redemption period, becomes the absolute owner of the property when no redemption is made. Thus, the posting of a bond is no longer needed. [Espiridion v. Court of Appeals, supra note 12, at 276-278]   (Emphasis supplied)

Again, in Saguan v. Philippine Bank of Communications, [G.R. No. 159882, November 23, 2007, 538 SCRA 390] the Court reiterated that:

x x x Consequently, the purchaser, who has a right to possession after the expiration of the redemption period, becomes the absolute owner of the property when no redemption is made.  In this regard, the bond is no longer needed.  The purchaser can demand possession at any time following the consolidation of ownership in his name and the issuance to him of a new TCT. After consolidation of title in the purchaser’s name for failure of the mortgagor to redeem the property, the purchaser’s right to possession ripens into the absolute right of a confirmed owner. At that point, the issuance of a writ of possession, upon proper application and proof of title, to a purchaser in an extrajudicial foreclosure sale becomes merely a ministerial function.   Effectively, the court cannot exercise its discretion.

Therefore, the issuance by the RTC of a writ of possession in favor of the respondent in this case is proper. We have consistently held that the duty of the trial court to grant a writ of possession in such instances is ministerial, and the court may not exercise discretion or judgment. x x x

We emphasize that the proceeding in a petition for a writ of possession is ex-parte and summary in nature. It is a judicial proceeding brought for the benefit of one party only and without need of notice to any person claiming an adverse interest. It is a proceeding wherein relief is granted even without giving the person against whom the relief is sought an opportunity to be heard.  By its very nature, an ex-parte petition for issuance of a writ of possession is a non-litigious proceeding authorized under Act No. 3135, as amended.

Be that as it may, the debtor or mortgagor is not without recourse.  x x x

x x x x

x x x a party may file a petition to set aside the foreclosure sale and to cancel the writ of possession in the same proceedings where the writ of possession was requested.[ Saguan v. Philippine Bank of Communications, supra note 14, at 396-397]

From the foregoing, it is quite clear that petitioner’s contention — that the trial court acted with grave abuse of discretion in issuing the writ of possession despite the pendency between herein parties of an action for declaration of nullity of the extra-judicial foreclosure — does not hold water.

Eligio P. Mallari Vs Banco Filipino Savings & Mortgage Bank, G.R. No. 157660, August 29, 2008

http://sc.judiciary.gov.ph/jurisprudence/2008/august2008/157660.htm

About these ads

About Erineus

Ernesto O. Bendita. Born on December 28, 1965, Surallah, South Cotabato, Southern Mindanao, Philippines.
This entry was posted in Civil Procedures, Definitions and tagged , . Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s