Writ of Possession and Injunction

The core issue for our resolution is whether the issuance of a writ of possession by the trial court may be enjoined by a writ of preliminary injunction also issued by the same court.

Section 7 of Act No. 3135, [Entitled “An Act To Regulate The Sale Of Property Under Special Powers Inserted In or Annexed To Real Estate Mortgages”] as amended by Act No. 4118, provides:

SEC. 7. In any sale made under the provisions of this Act, the purchaser may petition the Court of First Instance of the province or place where the property or any part thereof is situated, to give him possession thereof during the redemption period, furnishing bond in an amount equivalent to the use of the property for a period of twelve months, to indemnify the debtor in case it be shown that the sale was made without violating the mortgage or without complying with the requirements of this Act. Such petition shall be made under oath and filed in form of an ex parte motion in the registration or cadastral proceedings if the property is registered or in special proceedings in the case of property registered under the Mortgage Law or under section one hundred and ninety-four of the Administrative Code, or any other real property encumbered with a mortgage duly registered in the office of any register of deeds in accordance with any existing law and in such cases the clerk of court shall, upon the filing of such petition, collect the fees specified in the paragraph eleven of section one hundred and fourteen of Act Numbered Four hundred and ninety-six, as amended by Act Numbered Twenty-eight hundred and sixty-six, and the court shall, upon approval of the bond, order that a writ of possession issue, addressed to the sheriff of the province in which the property is situated, who shall execute said order immediately.

A writ of possession is a writ of execution commanding the sheriff to enter the land and give possession thereof to the person entitled under the judgment. [Moreno, Phil. Law Dictionary (3rd Ed. 1988) 1014]  It issues under the following circumstances: (1) land registration proceedings under Sec. 17 of Act No. 496; (2) judicial foreclosure provided the debtor is in possession of the mortgaged property and no third person, not a party to the foreclosure suit, had intervened; and (3) extrajudicial foreclosure of a real estate mortgage under Sec. 7 of Act No. 3135, as amended.  The case at bar falls under the second cited instance.

In De Gracia v. San Jose, [94 Phil. 623 (1954), cited in Ong v. Court of Appeals, 333 SCRA 189 (2000)] we held that under Section 7 of Act       No. 3135, as amended, the order for a writ of possession issues as a matter of course upon the filing of the proper motion and the approval of the corresponding bond.  No discretion is left to the court.  Any and all questions regarding the regularity and validity of the sale is left to be determined in a subsequent proceeding and such questions may not be raised as a justification for opposing the issuance of a writ of possession.

In Navarra v. Court of Appeals,[ G.R. No. 86237, December 17, 1991, 204 SCRA 850] we ruled that the purchaser at an extrajudicial foreclosure sale has a right to the possession of the property even during the one-year period of redemption provided that he files an indemnity bond.  After the lapse of said period with no redemption having been made, the right becomes absolute and may be demanded without the posting of a bond.  Then in Vaca v. Court of Appeals, [G.R. No. 109672, July 14, 1994, 234 SCRA 146] we reaffirmed our ruling in Navarra.

It is thus clear that during and after the period of redemption, the purchaser at a foreclosure sale is entitled as of right to a writ of possession.  Thus, in Kho v. Court of Appeals, [G.R. No. 83498, October 22, 1991, 203 SCRA 160] we ruled that an injunction to prohibit the issuance of a writ of possession is utterly out of place. And once the writ of possession has been issued, the court has no alternative but to enforce the said writ without delay.




About Erineus

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

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